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HomeMy WebLinkAbout0409 ELLIOTT ROAD A nas benq cLe e4e I '111,1110"MWO RVO 4 It NAA It 1 P"p IV+ Pz K Iva 4., 77 'i4 1 rg�, I�Q A All too Elling, wHOW WON 'T V41f TI �A 4M Ae CIAO., Now S of �ZR IX X� AN E N.7 I 1w P aRT". 'Ali g I i'm i lot 5WROW M ;g4 pin j- --MW' IM, %iR A k r! YX V RWN. Q�. �"WRJT k10,74 gj ��r'T �!U113MMU 10 gg g Al 61, Ylftl""�Ml 151,00" k�l;0111,Ell ,M4 NO glfnllg,(."�� j;,Fy JIM In ,r—s ;,�!A '4rqM"V 1�, p Mii, �:z, Fig UMWAU R PY Y, "u �1'1 I �� �"I," t llililr�YN ;6l KA Nll�lql,4 yk M RA Ki uil TWO IN f UL LS l! U LS NOV 21 I0 Tr Mamtonwalt# of filasilar4usistb T01hN ATTORNEY TOWN Ur BARNSTABLE BARNSTABLE, ss. SUPERIOR COURT No. 96-151 4._. JOHN J. CROUTHAMEL et al �e <<- 6 - New U ur- • . vs. I�495\ i 11 TOWN OF BARNSTABLE q9G ' Sol ZONING BOARD OF APPEALS et al MEMORANDUM AND ORDER ON DEFENDANTS MOTION FOR RECONSIDERATION This case is before the Court on the defendant's motion for reconsideration of this Court's denial of the defendant's motion for summary judgment, and granting of summary judgment for the plaintiffs. For the reasons set forth below, the defendant's motion for reconsideration is denied. DISCUSSION The defendant argues that this Court's was incorrect in its finding that: There is nothing in [the Town of Barnstable by-law] 4-4.2 or in.the Massachusetts case law interpreting the similarly worded forth paragraph of G.L. c. 40A, § 6, which suggests that an owner of two adjoining, nonconforming lots can vest available zoning protections in one lot by performing the statutory conditions precedent on the adjoining lot. . The defendant continues by stating correctly that an owner of two adjoining, nonconforming lots can vest available zoning protections in one lot by the sale or tragsfer of the adjoining lot. i In its memorandum in support of its motion for summary judgment, the defendant attempted to equate the sale or transfer of an adjoining lot with the building of a residence upon an adjoining lot. The-defendant claimed: e . [t]he by-lauds use of the disjunctive "or" equates the result which flows from one event with the result which flows from another designated event. Def. Motion for Summ. Tudg:, p.11. This interpretation ignores the obvious difference between the two designated' events set forth in the Town of Barnstable by-law 4-4.2. If the landowner conveys an adjoining lot, he loses the ability to comply by merging the adjoining lots to meet the new area requirements. Therefore, the zoning protections would vest. But if a landowner builds a residence upon an.adjoining lot, but does not convey or build upon the vacant adjoining lot, the landowner still possesses the ability to comply with new area requirements by merging the adjoining lots, and is required to do so. The above analysis is supported by the long standing principle that if a land owner has adjoining land which would allow him to avoid or reduce a nonconformity, . he is required to do so by law. Planning Board of Norwell v. Serena, 27 Mass. App. Ct. 689, 690 (1989).(a landowner will not be permitted to create a nondimensional nonconformity if he could have used his adjoining land to avoid or diminish the nonconformity). In-the case at hand, at the conclusion of the five-year grandfather clause provided by § 4-4.2, the land_owner possessed the ability to comply with the increased acreage requirements and, therefore, zoning protections did not vest in Lot 4. d 2 ' ORDER Based upon the above stated findings, it is hereby ORDERED that the defendant's motion for reconsideration be and hereby is DENIED without a hearing. Gerald F. O'Neill, Jr, Justice of the Superior Court DATED: November 26, 1996 4 3 Wa4,AN A -- The Town of Barnstable • s�nrisrn�s, • Department of Health, Safety and Environmental Services +' Building Division 367 Main Street,Hyannis MA 02601 Office: 508-790-6227 Ralph Crossen Fax: 508-790-6230 Building Commissioner June 20, 1995 Edward W. Kirk Attorney at Law Wianno Place 901 Main Street Osterville, Mass. 02655-0393 Re: Lot 4 Elliott Rd., Centerville, MA Dear Ed: I have reviewed your letter of June 19, 1995 and, unfortunately, disagree with you. The argument that your client's land was within the five year freeze period and had 75 feet of frontage is the point that I have a problem with. Your lot has 20 feet of frontage in my view and, as such, is not able to look at 40A section 6 for the five year grace period. I do not agree that the easement right of way should be considered as frontage. Sincerely, Ralph M. Crossen Building Commissioner RMC/km 'EDWARD W. KIRK ATTORNEY AT LAW W IANNO PLACE 901,MAIN STREET OF COUNSEL OSTERVILLE,MASSACHUSETTS 02655-0393 P. O.,BOX 393 RICHARD C.ANDERSON (508)428-4800 Ralph Crossen June 19, 1995 Building Commissioner Town. of Barnstable Hyannis, Mass . 02601 Re: Lot 4 Elliot Rd. Dear Ralph: In Lurtherance of our discussion today regarding the status of the subject lot, it is my understanding, that if the subject lot is found to have 75 feet of frontage, the lot would be buildable for -'Che reasons which I have cited in my letter to you earlier today. On the issue of frontage, I enclose for your consideration a copy of the plan as approved by the Planning Board which has been highlighted to show that Lots 2 , 4, 5, 6, 7 and 8 all have =their actual frontage/access on the right of way which was approved by the Planning Board ,for that, purpose. While the lots also have 20 feet of technical frontage on Elliot Road, the shape and width of the area between the street and the buildable area, together with the-existence of intervening wetlands required the creation of the right of way which the Planning Board ap,.:):roved for that purpose under the Subdivision Control Law, as a condition of plan approval . nder the language- of both the Arrigo case and the Corcoran case, copies of which are enclosed, it seems clear that this approved way is t:he actual frontage for purposes of providing access The Lot in question would appear to. have in excess of 80 feet along the way. is within the area: of zoning that we find the requirement for le "quantity" of frontage, ( i.e. linear feet) but it is within the purview of Subdivision Control and the Planning Board to determine the adequacy of the way upon which such actual frontage is to be `ound. With this information at hand, I would request that you determine t.lzat Lot 4 qualifies as a lawful building lot at this time. Thank you again for your consideration of the matter. Ralph Crossen June 19 , 1995 page two Very truly yours, war W4' 1(Z EWK/se w/encl . f 1 +I i ' s � <o J ,Cp>zGA� ''/,S l� N A rst�NA 6 �ARG/� /yrpJ ex n.� qqFMI 41 } r V/Atj ��� i!o� ovE er,eo, , •s-o, VIP A !�O?0TNy �� � 1 � v�,v,q.C� ���3/�,y�, '•�j,�ky�. � � .,� I � %i2�gg0� 0 o � MCP; : PY � ;- ^' J t F x II ARRIGO v. PLANNING BD. OF FRANKLIN Mass. 361 Cite as,Mass.App.,429 N.E.2d 355 not re- [11] The criteria for waiver'set out in cial review can be more exacting because` plan no § SIR are that "such action [be] in the the standard is more definite. An analo- See public interest and not inconsistent with the gous standard appears in .the law of vari- ch -- intent and purpose of the [S]ubdivision antes, grants of which are subject to the i dv.Sh. [Coontrol [L]aw." The judge ruled correct- statutory requirement that they not dero- a 9, and ly that the board was not required to make gate substantially from the intent and pur- princi- findings in support of its determinations. pose of the applicable zoning ordinance or It an en- Wheatley v. Planning Bd.-of Hingham, 7 by-law. Commonly variances do not found- There Mass.App. at 439 n.8, 388 N.E.2d 315. But er on that ground alone,7 and the cases at of a he concluded that neither criterion was met discussing the concept of substantial dero- ;I I Law, and annulled the decision. The Mercers gation emphasize that some deviation from I re sub- and the board challenge the correctness of the literal requirements of the zoning ordi- I ! oard to that conclusion. Its basis, as articulated by nance or by-law is obviously contemplated l s Kay- the judge, is open to two interpretations: by a statute that authorizes variances. Ca- :! udlow, one, that the judge made an independent vanaugh v. DiFlumera, 9 Mass.App. 396, si [1969]), evaluation that the subdivision was not in —, Mass.App.Ct.Adv.Sh. (1980) 535, 539, �F ctor or the public interest and was contrary to the 401 N.E.2d 867. The derogation must be g their 1 intent and purpose of c. 41 and substituted substantial before a variance will be struck #i ence to ! his determination for that of the board; or, down on that ground. Ibid. I` I two that the motive of the board in grant- ng any i [13-15) Because the Mercers' variance I in the waiver was not to further the public age, as g I failed to survive the more often fatal test i[ interest and the intent and purpose of c. 41 pproval p p that it be based on substantial hardship has an but was'instead to "bail out' the Mercers. ` arising from conditions specially affecting ling the { [12] If consonance with "the public in- the land, we were not required in this case L.c. 41, , terest" is a justiciable standard (see Casa to decide whether a fourteen foot deviation f Har- Loma, Inc. v. Alcoholic Beverages Control from a two hundred foot frontage require- Mass. Commn.,377 Mass. 231, 235, 385 N.E.2d 976 ment, not being de minimis, could reason- ` 71, 410 [1979]; Dubois v. Selectmen of Dartmouth, ably be regarded by the board of appeals as ! fecting 2 Mass.App. 674, 677-678, 319 N.E.2d 735 an insubstantial derogation from the pur- he plan. [19741, and cases cited), it is obviously one pose and intent of the zoning by-law. But he posi- that involves a large measure of judgment we are required to decide the quite differ- ke two or discretion. If, in a given case, it is one ent and much easier question whether the equate as to which reasonable minds might in good planning board exceeded its authority in o inde- faith differ, without doubting the reasona- concluding that such a deviation would not i tanning �ii bleness of the opposing view, the conclusion be inconsistent with the purpose and intent, ive the I reached by the planning board should be . of the Subdivision Control Law., The ques-''. I eria for sustained on judicial review. For it is the tion is easier,because the primary signifi-� `I board not the court to whom the statute II and one � � cance of frontage for purposes of the Subdi- !I ay vary delegates the discretion, and the role of the,- vision Control Law is to ensure access to . der the court is merely to ascertain whether the vehicular traffic and the availability of util- c. 40A, hoard exceeded its authority. ities and municipal services to lots in the nt pur- The same is true to some extent of the subdivision. See G.L. c. 41, § SIM. Con- the lots concept of consistency with the intent and . tern under the Subdivision Control Law l able the purpose of the Subdivision Control Law, `arises from frontages too narrow to permit I, neither although in considering this standard judi- 'easy access or from frontages connected to e other, 6. "What occurred here .. was to bail out 7. An exception was Planning Bd. of Framing- ased on Mercer who in the process of selling off several ham v. Board of Appeals of Framingham, 5 t parcels at the locus had boxed himself into Mass.App. 789, 360 N.E.2d 677 (1977). having a remaining parcel with a frontage of j ng board 386 feet. Such a bailing out is clearly not in1 board or all disap- the public interest and is plainly contrary to the I intent and purpose of G.L. c. 41." � 41 '1 362 Mass. 429 NORTH EASTERN REPORTER, 2d SERIES ft4 - the lots they serve by necks too narrow or- contrary is shown. See Foster from Glou- winding to permit easy access. See Gifford cester, Inc. v. City Council of Gloucester,. .Iosel v. Planning Bd. of Nantucket, 376 Mass. — Mass.App. Mass.App.Ct. 1 801, 807-809, 383 N.E.2d 1123 (1978). Adv.Sh. (1980) 1423, 1432, 407 N.E.2d 363. NE Frontage as a factor in controlling density "It cannot be presumed that the [approval] of development or in preserving the charac- was [given]solely in the interest of a single Appet ter of a neighborhood is more appropriately owner without regard to the broad public a concern of zoning, although, for consisten- interests involved in the whole subject." , cy of regulatory purpose, a planning board Ayer v. Commissioners on Height of Bldgs., 1 j may adopt a regulation requiring, 9s a con- 242 Mass. 30, 35, 136 N.E. 338 (1922). The dition of approval, that lots shown on a evidence in this case contained not a hint or subdivision plan comply with the provisions suggestion of impropriety. If the. chair- Insure of the applicable zoning by-law. G.L. c. 41, man's testimony concerning the board's rea- project dai § 81Q. Significantly the record before us son is disbelieved despite its surficial plausi- Lion action does .not disclose whether the planning bility, there is no other evidence from which that fires ` board has adopted such a regulation. The the board's motives can be ascertained. To negligence, i burden of proving that the board has ex- whatever extent subjective motivation may County, do 1 eceded its authority ties,of course, with the be relevant, the burden would be on the for summF plaintiffs. Selectmen of Ayer v. Planning plaintiff to show the impropriety. Wheat- case. The Bd. of Ayer, 3 Mass.App. 545, 548, 336 insurance 1 ley v. Planning Bd. of Hingham, 7 Mass. i N.E.Zd 388 (1975). App. at 448, 388 N.E.2d 315. and subcor z of the ow [16] The two lots shown on the Mercers' We hold, therefore, that the planning subcontrae j subdivision plan have long frontages on an board's waiver of strict compliance with the Remai established public way. Both lots are two hundred foot frontage requirement was roughly rectangular, and no potential prob_ valid for purposes of the Subdivision Con- lems concerning access or the provision of trol Law, and that its decision approving 1. Contrac municipal services or utilities have been the Mercers' subdivision plan was not in Sectio suggested. In these circumstances we do excess of its authority. s owner to p not think it can be said that the planning In case No. 120206, the judgment is af- interests o. board exceeded its authority in concluding firmed. In case No. 121458, the judgment Subcontrat i that the fourteen foot frontage deviation the owner I is reversed, and a new judgment is to enter would not be inconsistent with the intent nil rights and purpose of the Subdivision Control. declaring that the decision of the planning. caused by board was not in excess of its authority and Law. ance did t is affirmed. i' tween owr [17,181 We turn finally to the doubt So ordered. 2. Contrac which may have been suggested as to the Prov`i. r board's motivation (see n.6, supra). Here we assume, _without deciding, that the general cc �I tractors H ' board's approval of the subdivision plan caused by would have to be annulled if it were shown o S�QY�NIMBIRSISIEM T ance did that the approval was actuated by improper tract of v motives of the members of the board,such contractor ii as a motive to do favors for friends, heed- less of the consequences to the public. But 3. Contrac t j if a proper motive is essential to the regu- Sectio i larity of the official act, it follows from the contractor presumption of regularity that the motive which will must be assumed to be proper until the 1. Joseph d ,i 1; 1 17 t CORCORAN v. PLANNING BD. OF SUDBURY Mass. 357 Cite as 530 N.E.2d 357 (Mass.App.Ct. 1988) •edirect, the } difficulties inherent in identification_L999as was fleeting. There was no attempt by the )lain why he prescribed by Commonwealth v. Rodri- prosecution to argue that Glenn had fur- , I figured I guez, 378 Mass. 296, 301-302, 391 N.E.2d nished information about the defendant to �a friend of 889 (1979), to which is appended a set of the victim or to the police. The judge et involved, recommended instructions published in offered to give a curative instruction to the 'testify that x United States v. Telfaim, 469 F.2d 552, jurors that they ought not to "consider in of the rob- 558-559 (D.C.Cir.1972). In addition the de- any way whether Mr. Glenn knew this de- er "he [i.e., fendant wanted the judge to instruct the fendant or not because Mr' Glenn is not the night." jurors: "Are you convinced that the wit- here to testify." The offer was declined. ness had sufficient-sobriety to have an It is unlikely in the extreme that the re- f exclusion ( accurate recollection of the offender?" So mark about Glenn knowing the robber here are, as particularized an -instruction, which may tainted the trial or the verdict. See Com- If it can be suggest a certain view of the evidence, is naoizwealth" v. Vareetxian, 350 Mass.- 491, stent state- not required. See Commonwealth v. Key, 495, 215 N.E.2d 658 (1966); Common- eculiar and 381 Mass. 19, 27, 407 N.E.2d 327 (1980). wealth v. Allayo, 21 Mass.App.Ct. 212, 219— } ne kind;the See also a case bearing the same name but, 220, 486 N.E.2d 84 (1985). The case for a t e admitted in fact, involving a different defendant, mistrial is so unpersuasive that the denial 1 •ourt state- Commonwealth v. Key, 19'Mass.App.Ct. of the motion for one could not be an abuse nkins, 10 234, 242-243, 472 N.E.2d 1381 (1985). The of the discretion conferred upon a trial alth v.- Zit- judge sufficiently instructed the jury about � judge to decide if a mistrial ought to be .E.2d 690, their gauging the capacity of identifying declared. Commonwealth v. Simmonds, to the bias witnesses to observe as a factor in assess- 386 Mass. 234, 241, 434 N.E.2d 1270 (1982). d idea that, i ing the reliability of the observations. As Commonwealth v. Mayo, 21 Mass.App.Ct. nconsistent to the defendant's request that the jury be at-219, 486 N.E.2d 84. ourt state- instructed that interracial identification the prior 1 must be received with special caution, the JUDGMENT AFFIRMED. eceived to fi unpleasant implicit contention, that persons ess said in of different race all look alike to the ob- DIE X O Y NUMBER SYSTEMed. Ibid. server, has been rejected in Massachusetts. The bar- Commonwealth v. Charles, 397 Mass. 1, 8, elt himself 489 N.E.2d 679 (1986). The judge was in want to right to refuse the request. case. The [91 4. Request for mistrial. Terrence 26 Mass.App.Ct. 1000 } ation was Glenn, a customer, blundered onto the rob- p for the bery scene in the men's room and was _L1e00William J. CORCORAN et al.' efendant's ordered out by the robber on pain of be- V. least the coming a second victim. During direct ex PLANNING BOARD OF SUDBURY. scretion in amination of the victim, the prosecutor d made a asked: "By the way, do.you know whether No. 87-1348. nce. See or not Mr. Glenn knew the defendant?" Appeals Court of Massachusetts, Mass. at Before defense counsel could object, the Middlesex. awealth v. ( witness answered, "Yes." The judge sus- 7-530, 364 { tained the virtually simultaneous defense Argued Sept. 16, 1988. nwealth v. objection- and declared the question and Decided Nova 21, 1988. 346 N.E.2d ' answer struck as calling for impermissible Binienda, hearsay.' Glenn was said by the victim to :82 N.E.2d ' be in North Carolina. At all events Glenn Town planning board appealed from ), ament was did not appear. The reference to Glenn judgment of the Middlesex Land Court rul _ 1. As asked, the question did not necessarily call and, therefore, the judge reasonably anticipated , for hearsay. The answer might have been that that the witness would say Glenn had told him i on idea the witness had often seen Glenn and the de- he knew the assailant. ' that the fendant together. The victim,however,had not 1. William J. Corcoran, trustee of Erin Realty about the testified that he had seen his assailant before, Trust, and Douglas McCone. sMass.Dec.526-530 N.E.2d-18 , i j 2d SERIES 358 Mass. 530 NORTH .EASTERN REPORTER, 3 i The plan submitted for ing.that approval under Subdivision Con- ' G.L. 131, § 40). t trol Law was not required with respect to endorsement and a sketch of the locus { x lots. . (showing wetland areas) indicate that ac plan to separate parcel of land into si d that proposal was to proposedildable areas lot can in the rea r of The Appeals Court hel be afforded by what each "subdivision" under Subdivision Control appears on the maps to show an adequate l Law. twenty-five-foot-wide common driveway, Reversed. not crossing any wetland area, but travers ing dry parts of lots 1, 2, 3, and 4 and joining Powder Mill Road only on lot V Zoning and Planning c=245 1 Proposal to separate parcel of]and into The judge found that regulations of the 's board of it the construe- six lots was "subdivision" under Sl bd as tiionnof one house health nd its tleaching system i sion Control Law even though each between Powder Mill Road and its wet frontage on publie.way; there was no di- lands on each of three of the six proposed to rect access across public way frontage three lots (Lots 4, 5, and 6). The space between f main buildable area with respect to three the lots without appropria public way and wetland areas for each te official approval to of. the other three lots (Lots 1, 2, and 3) cross,wetland area, and access to buildable area on three lots was in fact dependent would be adequate for the construction of a house between the public way and the wet- upon proposed common driveway. M.G.L. ]and area on each such lot but not for the f A. c. 41, § 81P; c. 131, § 40• necessary leaching system to be attached See publication Words and Phrases t and to that house. The plan and sketch in the for other judicial constructions i definitions. record show substantial buildable areas be- tween wetland areas and the rear of each of the six lots. It does not appear to be .^ Paul L. Kenny, Town Counsel, Danvers, , disputed that this space on each lot would (David J. Doneski, Asst. Town Counsel, be sufficient for a house and its septic . Waltham, with him), for defendant. system. ` Wayne H. Scott (Edward A. Cunning- The, judge decided that the plaintiffs ham, Boston, .with him), for plaintiffs. - were entitled to an "ANR" endorsement under G.L. 41, § 81L (as amended through 1 Before'DREBEN,1 CUTTER and St. 1979, c. 534), and § 81P (as amended by FINE, JJ. St. 1987, c. 122), "forthwith without a pub- s, lic hearing." For her conclusion, she relied RESCRIPT. upon broad language in Fox v. Planning t The planning board ,of Sudbury (the Bd. of Milton, 24 Mass.App.Ct. 572 511 y_ town)appeals from a judgment pursuant to N.E.2d 30 (1987). That decision (which ap- s a decision of. the Land Court dated Septem parently did not deal with any nonbuildable her 25, 1987. The judge ruled that the area) said (at 574_575, 511 N.E.2d 30, foot- owners are entitled to an endorsement"ap- note omitted), "The proposed common proval under the subdivision control law driveway is not relevant to determining required" an "ANR" en- whether .. . [the su not (he bmitted] plan shows a not upon a plan showing a parcel of subdivision. If all the lots have the requi- land (the locus)which the owners propose site frontage on a public way, and the to separate into six numbered lots. Each availability of access implied by that front- such lot has the actual frontage on Powder age is not shown to be illusory in fact, it Mill Road, a public way, for the distance T is of no concern. to a planning hoard that required by the town zoning by-law. Each+ the developer may propose a common ands (see driveway, rather than individual drive f` lot. however, also contains wed l 2. The Land Court judge took a view of the locus. its and a stipulation of facts. No testimony, The case was submitted on the basis of the except for a deposition, was included in the agreed admission in evidence of various exhib- record. ` 1 1104, $� 4 s MASSEY v. CLOUTIER Mass. 359 Citc as 530 N.E.2d 359 (Mass.App.Cl. 1988) 1, submitted for ways, perhaps for aesthetic reasons or rea- der G.L. c. 131, § 40, for permission to of the locus sons of cost. The Subdivision Control Law cross any wetland area on the locus has 1 icate that ac- is concerned with access U01to the lot, not been approved by any State or local public e rear part of to the house; there is nothing in it that board or official with authority to give such # rded by what prevents owners from choosing, if they are approval. In the Fox case, the access of . an adequate so inclined, to build their houses far from the lot owners to buildable areas did not 1 on driveway, the road, with no provision for vehicular depend upon any proposed common drive- a, but travers- access, so long as their lots have the front- way. Here, however, for three of the lots 1 3, and 4 and age that makes such access possible." proposed, no direct access across the public , my on lot 1.2 (Emphasis supplied.) The Fox decision (24 way frontages of the lots to the main build- 1 '' Mass.App:Ct. at 573, 511 N.E.2d 30) distin alations.of the able part of those lots, respectively, is now E uished cases where no "serviceable ac- ► the construe- b possible in the absence of appropriate offi- cess" was provided "front buildable c citing system m , i portion of the[proposed] lot[s] to the cial approval. We thus treat the present public 1 and its wet. proposal as a 'subdivision" within the way," such as Gifford v. Planning Bd. of s six proposed [Weaning of G.L. c. 41, § 81P, as amended. i puce between Nantucket, 376 Mass. 801, 807-809, 383 N.E.2d 1123 (1978). There the owner It seems likely that the owners of the reas for each x locus can obtain planning board approval roval of • 1, 2, and 3) sought approval of a very complicated plan p b l p (shown at 810, 383 N.E.2d 1123), which the what on this record appears to be a reason- struction of a Supreme Judicial Court disapproved for able proposal for development of six fairly E and the wet- reasons fully stated in the opinion.3 large rural lots. We cannot predict, of t not for the course, what problems may be raised by be attached The Fox decision (24 Mass.App.Ct. at sketch in the 573-574; 511 N.E.2d 30) dealt with a situa that board and other boards and officials. ble areas be- tion. where in fact there could. be, direct _L1002The judgment of the Land Court is } 1 access b vehicles from a public motor reversed. Judgment is to be entered for 1 rear of each y p 6 i . appear to be parkway to all buildable parts of each lot -the defendant. No party is to have costs j ch lot would shown on the plan there submitted.. That of this appeal. nd its septic access could have been accomplished by a So ordered. separate driveway crossing the frontage line of each proposed separate lot without CEhe plaintiffs oY NUMUER SYSTEMencountering any major obstacles to any endorsement buildable area within that lot. The Fox ded through opinion (as quoted above) recognized that a , amended by common driveway was permissible (and ithouC a pub likely to be adopted). Here for three lots 26 Mass.App.Ct. 1003 on, she relied ' 1 (Lots 1, 2, and 3), a driveway crossing the _LIoo.TPatricia A. MASSEY et al. ( v. Planning frontage line of each such lot would give v, Ct. 572, 511 direct access to a significant solid area of it (which ap William F. CLOUTIER. land in that lot (immediately adjacent to t nonbuildable . Powder Mill Road) but would not give di Nos. 87-1398, 88-P-747. t edd common rect access through that lot to the substan- Appeals Court of Massachusetts, tial buildable area in the rear of that lot. Middlesex. B determining The indicated twenty-five-foot-wide com- )]an shows a t Argued Oct. 13 1988. mon driveway, however, if constructed, as ve the requi a practical matter probably would provide Decided Nov. 22, 1988. ay, and the access. } y that front No common driveway of the type pro- ` , In personal injury action brought s:_ 1 �J in fact, it posed for the locus and no application un- against landlord arising from accident in board that a cominto"n 3. To be read with the Gifford case is Hrenchuk Mass.App.Ct. 599, 601-605, 410 N.E.2d 1219 — a 'dual drive- v. Planning Bd. of Walpole, 8 Mass.App.Ct. 949, (1980); Hutchinson v. Planning Bd. of Hingham, i 397 N.E.2d 1292 (1979). Compare Gallitano v. 23 Mass.App.Ct. 416, 419-421, 502 N.E.2d 572 No testimony, Board of Survey & Planning of Waltham, 10 (1987), where the pertinent authorities were re- eluded in the Mass.App.Ct. 269, 272-274, 407 N.E.2d' 359 viewed. ' (1980); Smalley v. Planning Bd. of Harwich, 10 l 1 { EDWARD W. KIRK ATTORNEY AT LAW WIANNO PLACE 90.1 MAIN STREET OF COUNSEL OSTERVILLE,MASSACHUSETTS 026SS-0393 P. O. BOX 393 RICHARD C.ANDERSON - (508)428-4800 Ralph. Crossen June 19 , 1995 Bui.l_ding Commissioner To,v:n of Barnstable Farnstable, Mass . . Re : Lot 4 Elliott Rd. Dear Ralph: Based upon the enclosed site plan, chronology and case law I would request your opinion that the above referenced lot may not be denied a building permit on the basis of it' s area, notwithstanding the fact that it does not have one acre as required by the current bylaw. lot came into existence in 1976 at which time it was in conformity with existing zoning requirements . It rema;in Pd ' in conformity with existing zoning until February of 1985 when the area requirement increased to one acre. It vaent into ownership separate from adjoining land in 1.986 while _auJ- _ding on such lot "was otherwise permitted" under the provisions of M.G.L. c . 40A. section 6, and has remained in separate ownership a1 all. times since then ven assuming, without conceding that the Lot may have been deemed to be contigous to Lot 2 .for purposes of discussing common ownership,, under the Barnstable by law as it existed at that time and as it now exists, it may now be built upon, notwithstanding the increase in area which occurred after the recording of both the plan and the original deed to this lot. The Tsagronis decision, as written by the Appeals Court in September of 1992. long after this lot went into separate ownership, has no applicability to these facts . Whatever circumstances made Lot 2 a valid building lot in 1985 must also apply to Lot 4, and no decision rendered by a Court six years =atrr with respect to the application of a now repealed provision of the General laws to different facts can alter the plain meaning of the Barnstable ordinance. Ralph Crossen June 19 , 1995 page two The Tsagronis decision did not discuss, focus on, interpret, or turn on the meaning of the phrase "while building was otherwise permitted" . That language happened to be in section 5A of the former c . 40A. But the focus of the Court was on the language which required that the lot in question had to conform to the zoning requirements of the town at the time that the plan was endorsed or the deed recorded. In Tsagronis the lot in question did not. A zoning change had occurred bewteen the date of the preliminary plan and the approval of the definitive plan. The Court said that the fact that a "freeze" was in effect when the plan went on record and the deed was recorded did not satisfy the language of the statute which required a lot to "comply" with current zoning. The SJC emphasized this point and noted that the lots were "nonconforming" at the time the plan went on record. In this case the lot in question was in conformity at the time the plan went on record. No "freeze" went into effect until February 2.8, 1985 at which time a five year "freeze" went into effect. During that five year "freeze" building was "otherwise permitted" . During that five year period while building was "otherwise permitted" , the lot went into separate ownership from adjoining land and under section 4-4-5 "may be built upon" , as all the criteria of that section have been complied with. I believe it is the only lot in the subdivision which remains unbuilt upon. Thank you for your thoughtful consideration of this request. Very truly yours, 4war W. EWK/se w/encl . ; ZONING CITIES, TOWNS AND DISTRICTS 40A § 6 5 rovisions of ` ease in area, frontage, width, yard or depth requirement of date.•rof sub mi frontage. Any increase j for a period of five years from its in ordinance or by-law shall not apply nineteen `hundred and L: y< In°:the even zoning first g January effective date or for five years after Jan ry he,subject m: ei seventy-six, which ever is later, to aJot for single and two family reside held i t s section.sl ided the plan for such lot was recorded or endorsed and sucho s prov P adjoining land and conformed to the. existing laid appeal of in common ownership with any J f� Hof-final dispoe zoning requirements as of January first; nineteen hundred and seventy-s 'ewld ,.o 'said Iot: ` area, frontage, width, yard or depth requirements than e n Y r , •, had less > g, The }record uirements but contained at least seven thousand.five hun- ;�.r effective zoning re( rovided that said >instrument d five-feet o outage, and p first, nineteen hundred r x. dyed square feet of area an seventy- . f�land lies, to v five perio`c�does not commence prior to January „ provided further that the Provisions of this sentence shall by-law then , and seventy-six, and p plan or of a not apply. to more than three of such adjoining lots held in common ownership. being = a h shall not be construed.to prohi rt a .� : �such a waive The provisions of this paragr .P budding` upon `such lot is Pot the ordina if at the time of the building, built upon, laws in effect`in., ,city or town:. ,acciimpaniec prohibited by the zoning ordinances or by- • • a reliminarY plan followed vVithin seven months y a but only to c. If a definitive plan, or P planning board : for ' approval under the y ~ktch waiver, Plan, is submitted to a plan. g definitive P given Added by St.. • • • trol law, and written notice of such subni fission has b e i ' ;z ,fit:i 982,. c. i subdivision eon to the city or town clerk before the effective date:'of ordinance ,or y be governed by the applicable provisions of the r land shown on such plan shall g in effect _at the :time• of the' first such. zoan ning ordinance or by-law, if any, rocessed under thes ubdivision Y� at:1.977, C. s. submission while such plan or plans are being P r roved Dec. 2C tow substituted "m 'f such definitive plan or an amendment thereof' is fin p control law, and, i for eight years from the date of the endorsement ofdsa proved ;� the7secc approved, n _.._g 1 } except the case where such*plan was submitted or submitted P e p for seven years from the h st.1979, c. i before January first, nineteen hundred and seveethe guch period is eight'yea �x nner eacy"d . filed-April.^20, date of the endorsement of such approvala eriod equal to the time which a city or �� ry St.1982, c: i „r seven wears, it shall be extended by P _. _`��-. „ ro,ipraf a�ency_or' a court, a ors �?.tuted "eight y f x CHRONOLOGY June 24, 1976 :" Plan recorded and all lots meet zoning requirements in existence as of January 1, 1976 and as of date of recording. �' No changes to zoning which trigger the need to 1 , claim the protection of an 8 year freeze. All lots remain in conformity with the bylaw as written throughout the entire 8 year period. } September 1 , 1984 : Developer sells Lot 2 to Allen W. Morrisey. t i t January 4, 1985 : Developer sells Lot 4 to Allen W. Morrisey who f gives mortgage, deed to Bank of New England. Under Massachusetts law title passes to Bank { of New England. a February 19, 1985 : Building permit issued for Lot 2 . February 28, 1985 : Town enacts zoning change to one acre. FIVE YEAR PROTECTION OF '4OA S. 6 IN EFFECT Lot 5 remains in the developer. Lot 2 , owned by Allen W Morrisy has a building permit. Lot 4 does not . March 4, 1986 : Within the five year freeze period,Lot 2 which now has a house on it, is conveyed to Allen and Louise Morrisey, leaving Lot 4 in an ownership separate from any adjoining lot. The same circumstances which make Lot 2 a lawful building lot also make Lot 4 a lawful building lot. December 9, 1991 : Lot 4 sold at foreclosure by Bank of New England for. $100, 000 . 00 1993 : Lot 2 sold to Crouthamel . June 1993 : Lot 4 sold to Allison Donaghue by Bank of New England. CAiii / t 9�C LE7✓ �/ �inr,,r3/°Zoil E- �. Ale ����/�a �(/��G �o5r' '�'F'yi � ✓o y'v::ems :�''Y�,w �• , �I 'Noi,► __ -may V1 g DE/SORE Y n `hp V. CoYL45 ' ��� ds-�/ v. _ /.ram / '�+'cb- 1 �� • -74 Jlit ,o9I .q' (O (o oveereocuv 1 '5'�v� �5/9/a .0 ,� ; 410 hR ✓o f/lv /q• .CARGAy AIJ/) J 1 .'q;2'o "1 Q 8 n /�88i• � �- � � 60�0/• t ��Q y �. K �iq , /J/r��s �C,2.gi�/BE�,�� � , �t,`� .a�N\ ��.�i '. •. , 02 O^j,Q� �cf'y 6c,�j C�a i�i,�2• 1�7ip '9- ii� ;(1 q z „ .. t 1•f ., 1 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE S. S. SUPERIOR COURT NO. * ALISON DONAHUE Plaintiff * v. * RON S. JANSSON EMMETT F. GLYNN ELIZABETH NILSSON * COMPLAINT DEXTER BLISS GAIL NIGHTINGALE Defendants,as members of the Barnstable Zoning Board of Appeals * and * RALPH CROSSEN Defendant, as he is the Building Commissioner * ' of the Town of Barnstable INTRODUCTION Count I Pursuant to M. G. L. c. 40A sec. 17 the plaintiff,. appeals the decision of the Barnstable Zoning Board of Appeals ,wherein the Board denied the plaintiff ' s application for a variance to construct a single family dwelling on a lot located in a residential district, which lot contains 38, 330 square feet. The reasons for the denial were legally untenable, not based upon fact and arbitrary, capricious and whimsical. The plaintiff requests that the matter be remanded to the board for another hearing and decision in accordance with .the provisions of M.G.L. c. 40 A sec. 10 . Count II. Pursuant to M.G. L. c. 231A the plaintiff requests that the Court declare and enter judgment that the lot in question may be built upon as a matter of right under the provisions of M. G. L. c. 40A sec. 6 and the provisions of the Barnstable Zoning Bylaw, without the need for a variance or other approval from the Zoning Board of Appeals . THE PARTIES 1 . The plaintiff Alison Donahue is the own er of L ot�4�sh"o'w on-a -- = plan of land entitled "Riverview Landing Subdivision Plan-of 7 Land--in Centerville, kMass . for Daniel C. Hostetter et al dated April 9, 1976 Barnstable Survey Consultants" which plan was approved on May 3, 1976 and recorded in the Barnstable County t ' Registry of Deeds on June 30,, 1976 in Plan Book 305 Page 42 . A copy of the plan is attached hereto as exhibit A. 2 . The defendants Ron S. Jansson, Emmett F. ' G1ynn, Elizabeth Nilsson,Dexter Bliss, Gail Nightingale are all* duly appointed members of the Barnstable Zoning Board of Appeals which Board has as it's usual place of business the Town Hall of Barnstable located at 367 Main Street, Hyannis, Mass., 3 . The defendant Ralph Crossen is the duly appointed Building i Commissioner of the Town of Barnstable with an office at the Town Hall of Barnstable at 367 Main Street, Barnstable, Mass. ' f 4s FACTS COMMON TO BOTH COUNTS Y 4 . By deed dated September 18, 1964 and recorded at Barnstable. County Registry of Deeds at Book 4252 Page 246 Allen W. Morrisey, (who is the father of the plaintiff) acquired title to Lot 2 as shown on the plan for a purchase price of $70,000.00. 5 . By deed dated January 4, 1985 and recorded at Barnstable County Registry of Deeds at Book 4374 Page 51 Allen w. Morrisey acquired title to to Lot 4 as shown on the plan for a purchase price of $70, 000 . 00 . 6. Lot .4 is contiguous to Lot 2 as shown on the plan. 7 . Both Lot 2 which contains . 92 acres and Lot 4 which contains .88 acres were vacant Pots at the time of the conveyances to Allen W. Morrisey and each complied with the area requirements of the , zoning district in which the lots were located. 8 . On February 28, 1985 the Town of Barnstable Annual Town Meeting . voted to increase the area requirement for all residential districts to one acre. 9 . By deed dated March 3, 1986 and recorded at Barnstable Registry of Deeds on March 4, 1986 at Book 4948 Page 319, Allen W. Morrisey conveyed Lot 2 to Allen W. Morrisey and Louise M. Morrisey, husband and wife, as tenants by the entirety. 10 . By mortgage deed dated September 24, 1986 and recorded at Barnstable Registry of Deeds Book 5319 Page 79 Allen W. Morrisey conveyed Lot 4 to the Bank of New England to secure the payment of a promissory note in the original princpial amount of $100, 000 . 00 . 11 . Although Allen W. Morrisey continued to make payments on the note as required, the loan was determined to be a "non performing loan" by bank regulators and foreclosure proceedings were commenced in connection with lot 4, which resulted in a sale of lot 4 in 1991 . 12 . At the foreclosure auction, the Federal Deposit Insurance Corporation (FDIC) bid $100, 000.00 for Lot 4. t • j 13 . Another party bid $101, 000. 00 and entered into an agreement to purchase Lot 4 . 14 . As a result of concerns relating to certain wetlands/ conservation issues with respect to Lot 4, the high bidder did not not complete the sale and the property was sold to the FDIC for $100, 000 . 00 by deed recorded at Barnstable County Registry of Deeds on November 18, 1991 at .Book 7759 Page 238. 15 . The plaintiff' Alison Donahue investigated the wetlands issues which had caused the high bidder to decide not to purchase the property and was advised that an Order of Conditions could be obtained for the construction of a single family dwelling on Lot 4 . t t } 16 . The plaintiff entered into negotiations with the FDIC and Yr:-t purchased the property from the FDIC for $22, 000 . 00. The deed was recorded at Barnstable Registry of deeds on July 1, 1993 at Book 8659 Page 294 . 17 . On or about September 27, 1993 the plaintiff received an Order of Conditions from the Barnstable Conservation Commission which allowed the construction of a single family dwelling on Lot 4 . 18. Alison Donahue entered into an agreement to sell Lot 4 for the price of $103, 000 . 00 . 19 . The attorney for the buyer spoke with the Building Inspector `- who stated that the lot did not comply with the minimum area requirements of one acre and that a variance would have to be t obtained in order for a building permit to issue. 20 . The plaintiff made application to the Barnstable Zoning Board of Appeals for a variance and hearings were held on that application. 21 . As is set forth in the decision of the Board which is attached hereto as exhibit B, certain members of the Board found that the petitioner had satisfied the criteria for the grant of a variance. 22 . Other members of the board voted to deny the variance and stated the reasons for doing so in the decision. F r .sr 23 . The stated reasons for the denial were: a) Because Lots 2 and 4 were in common ownership between January 4, 1985 and March 4, 1986 they became a single building lot for purposes of zoning and, Allen W. Morrisey, the father of the plaintiff, knew of that alleged occurence. b) Because the plaintiff only paid the FDIC the sum of $22, 000 . 00 the plaintiff purchased the lot "fully knowing that the buidability of the lot under zoning was questionable" . c) The wetlands, soil, shape and topography of the lot was similar to other lots in the immediate neighborhood, and therefore the criteria for the grant of a variance had not been met. f 24 . All of the foregoing reasons were legally untenable as a basis for denial and the denial was arbitrary, capricious and whimsical for the following reasons . 25 . The legal conclusion assumed by the Board, i.e. that contiguous lots in common ownership become merged into one lot for building purposes when an increase in area requirements has been enacted, is incorrect. Such individual lots lots remain valid building lots under the various protective provisions contained in M.G.L. c 40A sec. 6 and town zoning bylaws. 26 . There was and is no evidence to suggest that the prior owner believed( incorrectly) that the lots had merged into one for purposes of zoning. h P 27 . There is no factual or. legal basis upon which to charge Alison 9 P 9 Donahue in 1995 with the same erroneous legal conclusions which her father did not reach in 1985 . 28 . The fact that the FDIC, whose purpose is to dispose of property :s which it holds by reason of bank failure, sold the premises for less than fair market value is no evidence of the owners belief as to the status of the lot under zoning. 29 . The fact that other lots in the "immediate, neighborhood have some characteristics which are similar to the lot which is the subject of a variance application' is not a basis for denial, as the language of C. 40A section 10 requires an evaluation of the lot in comparison with the "zoning district(;` generally) in which it is locatdd" . f 30 . The reasons given for denial are improper and the matter should be remanded to the Zoning Board of Appeals for a rehearing in accordance with proper standards applicable to variances. ADDITIONAL FACTS WITH RESPECT TO COUNT II 3'1 . Section 4-4 .5 of the Barnstable Zoning Bylaw contains the following language with respect to non-conforming lots: "Any lot lawfully laid out by a plan or deed duly recorded, or any lot shown on a plan endorsed with the words "approval under the subdivision control law not required or, words of similar import, which complies at the time of such recording or such . r endorsement, whichever is earlier, with the minimum area frontage, width and depth requirements, , if any, of the the w , zoning ordinance in effect at the time of such recording or : endorsement may thereafter be built upon for residential use (notwithstanding amendment of the zoning ordinance changing such requirements, including yard requirements or more than one such requirement in excess of those in effect at the time of such recording or such endorsement) if: 1 ) . . . .while building on such a lot was otherwise permitted. . . . : ° . such lot was held in ownership separate from that of adjoining land located in the same residential district,. . . . . . . . and further provided. . . 3) At the time of building, such lot has an area of beventy-five t hundred (7500) sq. .feet or more and a frontage of twenty (20) ` I feet or more, is in a district zoned for residential use, and conforms except as to area, frontage, width and depth with the applicable provisions of the zoning ordinance in effect; and any proposed structure is to be located on such* lot so as to conform with the minimum requirements of front, side and rear setbacks, if any , in efect at the time of` such recording or endorsement whichever is earlier, and to all other requirements ' for such structure in effect at the time of building. " A complete copy of the text is attached hereto as exhibit C. t: 12 32 . The Town of Barnstable voted to increase the area requirements for residential lots to one acre on February 28, 1985 at a time when Allen W. Morrisey owned Lots 2 and 4, which Lots were contiguous. 33 . Under the provisions of M.G.L. c. 40A sec 6, paragraph 4 second ' sentence, the increase in area voted by the. Town on February 28, 1985 would not apply to either Lot 2 .or Lot 4 until February 28, 1990 and both Lots remained. valid building lots under the zoning requirements in existence prior to the town meeting vote on February 28, 1985 . 34 . On March 4, 1986, while both Lot 2 and 4 were valid building. lots under the provisions of the prior zoning, Allen W.. • f Morrisey conveyed Lot 2 to Allen W. Morrisey and Louise M. Morrisey, husband and wife as tenants by the entirety. 35 . As of March 4, 1986 Lot 4 was now in ownership separate from that of adjoining land" and has remained 'in separate ownership since that date. 36 . Under the specific language of the Barnstable Zoning Bylaw, lot 4 is a lot which may be built upon without the need to obtain a variance from the Zoning Board of Appeals . COUNT I Wherefore the plaintiff requests that the decision of the Board of Appeals which denied the variance be annulled and that the matter be remanded to the Board for a rehearing in accordance with the standards applicable to variances . r' •' i COUNT II F Wherefore the plaintiff requests that the Court, pursuant to M. G. L. c . 231A: 1 . Declare that Lot 4 conforms to the requirements of the-M. G. L. c. 40A section 6, paragraph 4 and the provisions of the Barnstable zoning Bylaw with respect to nonconforming lots and may be built upon without the need for a variance from the Board of Appeals. 2 . Make such other declarations and enter such judgments as are necessary to protect the rights of the parties . Respectfully Submitted Alison Donahue by er attorney ` c B.B.O. #2737 Edward W. Kirk P.O. Box 393 Osterville, Mass.02655 428-4800 - q ��AL o Lor iyl �- f• V+ �,E'�,� ,✓CWN may, l'�9N"t/a ' .-' � � •. . ,- �Z_.ter`"-��?ti ! y ,,�� .ham. -- ��- •A�„y � Q t �.* 1 � • of ,. . 10 15 , i ..4:2 r, ,p;y' a 4,�`,��, '.fees.. . w �. .t .. � ;♦ `, '���•'�� �� �. '�.,:b. •cam. �•,,b r' - . 1T,� � �, .�; ; �. . a p• ,�, � �e.,weq,EeafJ. �1 �, � 3�,' h � X •' 30 lel gr r AL t Q , � � �, • . • pry '�� TOWN OF BARNSTABLE ZONING BOARD OF APPFj,AL� Decision and Notice r` Appeal Number 1994-105 -99 FF; 15 P,A :16 Variance Bulk Regulations, Minimum Lo -----� - ' A TRUE COPY ATTEST Summary Denied Applicant/Owner. Alison Donahue Address: 335 Landfair Avenue,San Meteo,CA,' 94403 Property Location: "Lot 4", Elliot Road(aka"Lot 4"Salt Creek Roadl Cen 'll6, s,,;;.•.: (also addressed by Assessor record as 409 Elliott R rn'. own Clerk Assessor's Map/Parcel: 277-106 0.88 Acres BARNSTABLE Zoning: RC-Residential District ., Applicant's Request: Variance to Section 3-1.3 (5)Bulk Regulations,Minimum Lot Area Activity Request: Construction of a single family dwelling on a lot under the minimum lot area. Background Information: The locus is off the west side of Elliot Road opposite Fox Run in Centerville. According to the Assessors ` g Records the vacant 1 is 0.88 acres or 38 330 .ft.of which only 26 282 P� .R is upland. Public �1 Y sq. P water service is available. The rear of the lot is adjacent Centerville River and the parcel technically has frontage by the extension of a 400 ft(approx.)long panhandle segment to Elliott Road The panel was transferred to the current owner on June 23, 1993 through the Federal Deposit Insurance Corporation,as Receiver of New Bank of New England,N.A.,a copy of the Quitclaim Deed is in the file. The applicant desires to construct a single family dwelling. Procedural Summary: Application was filed with the Town Clerk on October 27, 1994 and was scheduled for hearing before the Zoning Board of Appeals on November 30, 1994. Board members sitting on this appeal are:Richard Boy, Ron Jansson,Emmett Glynn,Dexter Bliss and Chairman Gail Nightingale. John Stephenson,Esq.represents the petitioner. He explained the petitioner is the owner of Lot 4;Map 277 Panel 106 and is requesting a variance from bulk regulations. This lot was created by subdivision "Riverview Landing"which was approved in 1976 to include 40 house lots all similar in size. This lot has 38,330 sq.ft.with access provided by a 15 ft.paved drive easement called Salt Creek Road. The lot was purchased by Dr.Morrisey,the applicant's father,from the RTC. He bought it in order to build a home.. Dr.Morrisey owns an adjacent lot that is his home. Ms.Donahue bought it from her father Dr.Morrisey and had a perk test and submitted building plans to the build commissioner which he approved on Sept.27, 1993 with conditions. The permit was good for three years. Ms.Donahue's husband was transferred to California. They now have a buyer for the land. But a title search reveals common ownership during 1985 to 1986. This purchase and sale is contingent on this variance.. All lots in the neighborhood are similar in size and all but one has.been build on. This lot has been taxed as buildable. There would be no substantial detriment to the neighborhood. A denial would cause financial hardship as they have invested a large amount of money. The Board observed that given this location,a buildable lot at the sale price of$22,000.00 is unlikely, when lots in this area sell for a lot more. Additionally no variance conditions had been stated so far. . 3 Zoning Board of Appeals Decision and Notice Appeal Number 1994-105—Donahue X =;,{3 Attorney Stephenson said that perhaps the FDIC thought it was not buildable but when Ms.Donahue bought it she thought that it was buildable.;It is an undersized lot but impossible to acquire any adjacent " property. Attorney Stephenson said that access was from a 15 ft private road which serves 7 houses. He submitted an Order of Conditions by the Barnstable Conservation Commission. 3 The Board observed that the value of the land was$84,700.00 on the assessor's field card and reiterated that the purchase price was$22,000.00. , Public Comment was requested:,b one spoke in favor of this petition.a No spo In Opposition: Attorney Arthur Highland,represents the owner of lot 2,Mr.and Mrs. Crouthamel. They purchased their property from Dr.Morrisey. He said he had heard nothing in respect to soil,topography or shape that would allow a variance. There was nothing unique about this property. At the time of the zoning change to one acre,Dr.Morrisey owned.both lots and therefore a merger had occurred at which point they lost their-rights to have a buildable lot Shortly after his clients purchased from Dr.Morrisey a feeler went out to sell the subject lot for over$100,000. Attomey Highland advised that they,the r :G Crouthamels,not pay that because it may not be buildable. a s Mr.Hirshberg,(of Lot 6)spoke in opposition stating deed restrictions on lot four,given lot 2's river view ' 3 rights and so the only place for building on this lot to meet conservation conditions would be on the street which would be very,detrimental to neighborhood 1 Dr.Morissey spoke saying he had owned lot 2 and lot 4.,They sold property to the Crouthamels and at no `. time represented lot four was not buildable. There are no deed restrictions on Lot 4. The subject lot sold for$22,000.00 because it was foreclosed by BNE. The lot was sold for$101,000.00 before but prior to final consummation,a civil engineer told of problems because of new conservatiop laws and a slope. The people buying petitioned the bank and the bank bought it back. Dr.Morissey thought it was buildable and s his daughter hired environmental and civil engineers for perk tests. Within a year she was told by the g B� Pe . . >F environmental engineer that it fell within the boundaries. She then bid on the lot and was successful. She ` made improvements and her present expenses exceed$122,000. it was presented to conservation and •' approved V)ith minor restrictions. They were not aware of one acre zoning when they ownedihe two lots. 1 ' Six of the Seven lots already have houses on them. The Board's felt there were two issues: One:the need for a bulk variance from overall size and uplands. l: Two:A need for setback from wetlands.;.It seems this lot is probably not buildable for that alone. A possible third issue is the shape factor 22. An engineered plan is needed The Board said this is an incomplete application and would continue for more information and to consult with town counsel. The Board continued this hearing until January 4, 1995 at 7:00 PM and advised that Elizabeth Nilsson will take Richard Boy's place at that time as Mr.Boy will be away. An Extension of Time was signed Zoning Board of Appeals Hearing of January 4,1995: : i r This hearing is continued to 7:15 P.M.on January IS,1995 due to the fact that one Board member, ' Dexter Bliss is unable to attend this evening.Zoning Board of Appeals Hearing of January 18,1995: This hearing is continued to 7:15 P.M.on February 1, 1995 due to the fact that one Board member,Dexter Bliss is unable to attend this evening. . Zoning Board of Appeals Hearing of February 1,1995: h' John Stephenson,Esq. represents the petitioner. A letter was received by the Zoning Board Office on February 1, 1995,from the Oyster Bay Residents Association clearly stating the conditions under which they would not be opposed to the granting of this • �.... ,request. , FINDINGS: ' M n < s t a Zoning Board of Appeals Decision and Notice 4 t ' ; Appeal Number 1994-105—Donahue } -were made by Dexter Bliss and seconded by Gail Nightingale. - ' The lot in question is unique to the neighborhood especially when that concept of neighborhood r ` is interpreted in the broad sense of the Centerville area. f; 2. It is unique in shape. The presents of the wetlands-and the upland slope to it creates a unique topographic feature. 3. If the applicant is denied this variance,the parcel would have no value. 4. This lot is the only lot within the 8 lots served by the right of way that is not developed. 5. Development of this lot,in accordance with Board of Health and with Conservation Commission regulations and requirements would not be tubstantially detrimental to the neighborhood 6. Views from neighboring properties would not be effected by development of the lot. b The Votes were as follows: . Ayes:. Dexter Bliss and Gail Nightingale 6 Nays: Ron S.Jason,,Emmett F.Glynn and Elizabeth Nilsson, n Chairman Gail Nightingale noted for the record,that her positive vote was on the findings excluded detriment to the neighborhood. he felt this development would be of substantial finding No 5. S . A Motion was duly made by Dexter Bliss and seconded by Gail Nightingale to grant Appeal No. 1994- 105 with the following condition: 1. The applicant seek the approval of Conservation Commission for the development and, 2. The applicant upgrade the electrical service to the neighbors as he agreed to with the Neighborhood Association. f The Vote was as follows: } Ayes: Dexter Bliss Nays: Ron S.Janson,,Emmett F. Glynn and Elizabeth Nilsson,and Gail Nightingale. The motion did not carry and the appeal is denied. In support of the denial,Ron Janson made the following observation of facts for the nay votes cast in this appeal. 1. The lot was purchased by the applicant from R.T.A.in 1992 for the price of$20,000. The assessed value of the lot in question at the time was$84,700. Buildable lots in this area of the town sell for considerably more. The applicant purchased the lot and it was sold fully knowing that the buildability of the lot under zoning was questionable. 2. No variance conditions exist under Ch.40A Section 10. The lot is not unique to neighboring ' - lots bordering on the same wetland,the topography within the area is rolling woodlands. All lots in the immediate neighborhood are similar in shape and have similar soils.'Y j . 3. Dr.Morissey,the father of the petitioner Alice Donahue,held this lot in common ownership with the adjacent lot and knew that under zoning the two lots would be considered one for the j. purposes of zoning: ORDER: Appeal Number 1994-105-Donahue; has been denied. 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. 4 i Gai ightingal Chairng Date Signed i r P S 1 y y z Non- o fo Ming saes ;l - or any lawful use r ° building, , 3 ses Any lawful 5° on-conformi existing at the time_ A". 4_ Lawful or part thereof, a building or,;premises,; finally adopted in the area in which of prdinance,was, ori9 although such the Zoning in use is located, may be continued, g r. rovisions hereof such building to; the .p building or;use does not. conform. z change of . a f " Use to Another Any ,. Cha a from One No -Confolteration, relocation or increase in size {f� � -4• use, anY a or 'structure to extend the non-conforming . building of an existing.:non-conforming or use of existing or shall only be allowed use on the same lot, non-conforming or structure, construction of a new building 1 p ` provided that: use to one other ;;;` e f s from one non-conforming ��y 1) The proposed Chang r,�.. non-conforming use .only; ' objectionable or substantially E 2) The proposed change is no more obis detrimental to the neighborhood; and it is. obtained from• the Zoning. Board of App eals. I 1 ) ecial:.Perm {I 3 A Sp 4-4.3 Reconstru ction of Dama ed Non-Conformin Buildin s: in building which has: been damaged by !' Any lawful non-conform 9 may:be repaired or rebuilt, ff er cause to any extent, building permit and start fire or oth l for a b within providing the owner sin11 apply said ;building operations for restor g or rebuilding , twelve (12) months after such catastrophe. . building osed :increase ' in floor area of such damage by the ro ecial Permit is granted 2 Anyip p shall ,not ;commence ealssasaper Section �4-4.2 herein. Zoning ,Board of App • non- 4_ •4 Re-rstabli slunent of Certain Non-Conformior notsusednfor. five (5) conforming use, which has .been abandoned nor `shall it be s shall not be shall not be ring USe. Any' subsequent uses in year ; replaced twaiCeSashallrconform to therequirements of this i such ins i ordinance. aid out by a em ed: Any lot lawfully l ' 4-4. Non-Conformin Lots Who or any lot shown on a plan endorsed ot plan or deed duly recorded, u val under the subdivision Cliesoat-thel law ntime of with the words appof imilar import, which -Complies with the required" or words uchsendorsement, whichever is earlier, . :such ding or width and depth require meets, if any, of minimum area, effect at the time of such rcording or se the zoning ordinance in on for residential thereafter be built upon ordinance changing such . endorsement may amendment of 'the zoning (notwithstanding and requirements��or:,more than one such requirements, including Y t excess of those in effect at. the time of such ,p requirement, in if: recording or such endorsement) ,r . 70 , 1 f` E;. _ to ..• t At the time :of the adoption of such requirements or increased. , a, t 1) on such a lot was otherwise requirements, or ..while,building held ermitted,' whichever' occurs later, such lolandslocatednin the:: ;,�,� p i se crate, from that of adjoining. I owners, p P �i11�� or , same residential', district } or increased rt,i requirements V�: 2) At the .,time ofI'.the-, adoption of such requ requirements, such lot was held in common ownership with that III of adjoining land located in the same res idential district, ,tip . ears from the date of } � but then only for a period of five (5) Y such recording or such endorsement, whichever is earlier, }}�. IKI s And further provided in either instance, such lot has an area of seventy-five 3) At the time of building, I� hundred (7500) Sc .ft. or more and a frontage of twenty (20) a district zoned for residential use, and ' t or more, is in with the _ fee ; conforms except as to area, frontageordinanceninaeffect; and applicable provisions of the zoning , i to d structure is to be located on such lot s and srear 4) Any propose conform with the minimum requirements of front, side ' setbacks, if any, in effect at the time,_ of such recording or f. ' .' such endorsement, whichever is earlier, and to all other � .. for such structure in effect at the time of 'I requirementsI, building. 5 vision Clearance/Corner sots -5.1 vision Clearance on Corner ots In residential districts, on L ;- corner lbts, no fence, wall or structure; planting or foliage more than three (3) feet in height above the plane off th°featfronthor grades of the streets shall be allo wed in any par side yard herein established, that is udistantded hin fromhtheireet point lines at points which are twenty ( 0) feet of intersection measured aeWngofsaaidrivereoflanvehicle,approaching a materially obstruct the vi street intersection. 4 6 Special standards/Certain Subdiv scone standards Certai Subd visions The Planning Board, 6.1 planning Board within- as part of its review of subdivision Routes 28fi132hu149eand5West feet of the major arteries Main Street, is hereby authorized to: , i) Prescribe, in distance and composition, a vegetation buffer ,: strip between said major arteries and a proposed subdivision. 2 Locate streets within a proposed subdivision so that: ) A) Ingress and egress onto the aforementioned major arteries N.. As safe, efficient and convenient; .f 71 .•t L b'a oaf �,�q`"r�> `.. � aa,.� t3�r"'>K•rvx(`#,v`�xjf` yd 1� ...f- '-� � Firs� 7 �,<,. a'n"'�1� ..q,'v�. i,tx h �4,�; . ;',M>asa a .�Y� .r. ✓�� /. LEGAL DEPARTMENT, TOWN OF BARNSTABLE 1plpl DATE: 'MARCH 9, 1995. TO: RALPH CROSSEN, BUILDING COMMISSIONER FROM: RUTH J. WEIL, ASSISTANT TOWN ATTORNEY RE: ALISON DONAHUE VS. ZBA;&CROSSEN, ETC.,.,., BARN.SUPR.CT. , C.A. NO. 91-171 � x k LEGAL REF #95-0038 WE RECENTLY RECEIVED.THE.ATTACHED COMPLAINT HAND DELIVERED TO US BY THE ATTORNEY FOR THE PLAINTIFF. IT IS OUR �f-- UNDERSTANDING THAT THE SAME WILL BE FORMALLY SERVED AND IN. ADVANCE OF THAT SERVICE OF PROCESS, MAY I ASK OF YOU TO PLEASE GO AHEAD AND SUBMIT TO US IN WRITING YOUR PROPOSED RESPONSE TO THAT PARAGRAPH DESIGNATED AS "19," TOGETHER WITH ANY COMMENTS YOU WISH TO MAKE RELATIVE TO THE COMPLAINT IN GENERAL, OR OTHERWISE. WHEN YOUR RESPONSE IS RECEIVED, WE CAN MAKE IT A PART OF THE PROPOSED ANSWER WE ARE PREPARING FOR FILING WITH THE COURT AT THE APPROPRIATE TIME. THANKS. l 'EDWARD.W.,KIRK ATTORNEY AT LAW WIANNO,PLACE 901,'MAIN STREET OF COUNSEL OSTERNILLE,MA'SSACHUSETTS02655=0393 P. O:BOX 39.3 RICHARD C.ANDERSON. ' 1508)'428=4800 Ralph Crossen March 15, 1995 Building Inspector Town of Barnstable 367 Main Street Hyannis, Mass . 02601 Re:Alison Donahue v. Zoning Board of Appeals et al . Superior Court No. 95-171 Dear Ralph: Enclosed you will please find a summons and copy of the complaint . filed in the above referenced case. Please note that in addition to the appeal from the denial of the variance in Count I, the plaintiff also seeks, in Count II, a declaration that the lot is a buildable lot and that the plaintiff is therefore entitled to the .issuance of a permit without the approval of the Board of Appeals . Accordingly, you are the named defendant in that part of the action. Very truly yours, EdwaWdWV1 'k EWK/se w/encl . cmrrr # Z-028-298-372