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S t:,..}: ,.. :,+�':- tt� r `,:t.:r' e.F, rJ t(, i.�' t` r � t J , 'i i' •t }s E f v r r 1 �• 1 , t J � k r + , 0 •ryyy- "`"'"1"y"'k: """..`.''...«�.w++.%:.,s��w.,+.r..J+. tu' _.,...""!.:lc"r'"�z'•+i.'.""'-,.-ir+•t*F.-..�•-•,...:::....:..n.._.;'�y" '• p'; ;'efrN. � 'pm :.rs�:`C' �Y.�L=^�xhrXS�:'-'� .d ...�•_„ ..��x. :.@Y.' �C`.Wgy"�'',<„_'i�rn.. a�:..� 54 r F• F: }f. } JJ J ' THIS DOCUMENT HAS � NOT BEEN RECORDED �UWE FILE COPY ONLY! = f' Town of Barnstable Zoning Board of Appeals �__- Decision and Notice .98 =�ky' 30 A 9 .331 Morin Appeal Number 1998-103-Variance to section 3-3.6(5) Bulk Regulations Summary: Granted with Conditions Petitioner. Jacques N. Morin Property Address: 1597 Falmouth Road(Route 28),Centerville Assessor's Map/Parcel: Map 209, Parcel 084 Area: 0.40 acre Zoning: HB Highway Business Zoning District Groundwater Overlay: AP Aquifer Protection District Background: The property that is the subject of this appeal is a 0.40 acre lot, located across from the Bell Tower Mall in Centerville, commonly addressed as 1597,Falmouth Road. The lot is triangular shaped and was created when the right-of-way for Route 28 was established. It was originally part of a larger, 10 acre parcel. The subject lot has approximately 263 feet of frontage on Route 28 and measures approximately 134 feet at its depth. In July of 1990; the Zoning Board of Appeals granted Variances from the minimum 100 foot front yard setback and the minimum 40,000 sq. ft. lot size requirement(Appeal No. 1990-40), in order to permit construction of a two-story office building to be located on a 17,526 sq. ft. lot and sited 61 feet from the front property line. Office uses are allowed as-of-right in the HB District. The Board granted this relief with the following conditions: 1. The building shall have a footprint of 1,908.5 sq. ft. and shall be two(2) stories(3,817 sq. ft. gross floor area); 2. The petitioner shall not create an access to Old Post Road, either by purchase or easement, for the purpose of ingress/egress; and 3. Prior to any construction, the petitioner shall have the approval of the Site Plan Review Committee. At this point in time, only the foundation has been constructed, in accordance with the original approved site plan. The property was located in an HB Highway Business Zoning District, which has a minimum total side yard setback of 30 feet, provided that no allocation of such total results in a setback of less than 10 feet, and a minimum 20 foot rear yard setback. The original proposal met the minimum required side and rear yard setbacks. The new proposed building does not meet the minimum required side or rear yard setbacks. The applicant is proposing a slightly different building footprint, however, the gross floor area will remain the same at 3,817 sq. ft. To accommodate the new proposal, the applicant applied for two forms of relief: Appeal Number 1998-102-Modification of Variance Number 1990-40 to allow for a side setback of 10.44 feet(west side) and 11.50 feet(east side)and to allow for a rear yard setback of 10.66 feet. Appeal Number 1998-103-Variance to Section 3-3.6(5) Bulk Regulations, to allow for a side setback of 10.44 feet and 11.50 feet and to allow for a rear yard setback of 10.66 feet. Since the submittals of Appeal Nos. 1998-102 and 1998-103, the property has been rezoned to a HO Highway Office Zoning District(July 16, 1998 Town Council Meeting, Item#98-133). Under the HO Highway { Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal Number 1998-103-Morin Variance to Section 3-3.6(5)Bulk Regulations Office Zoning District(Section 3-3.7), the proposal meets the FAR (Floor/Area Ratio)and all other requirements of the district with the exception of the side and rear yard setback requirements, which are 15 and 20 feet respectively. The proposal meets the front yard setback which is now 45 feet. Procedural Summary: This appeal was filed at the Town Clerk's Office and at the Office of the Zoning Board of Appeals on July 01, 1998. A 90 day extension of time for holding the hearing and for filing of the decision was executed between the applicant and the 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 September 09, 1998 and continued to November 11, 1998 and December 16, 1998, at which time the Board granted the requested Variance with conditions. Hearing Summary: Board Members hearing this appeal were Ron Jansson, Richard Boy, Gail Nightingale, David Rice, and Chairman Emmett Glynn. Attorney Patrick Butler represented the applicant, Jacques Morin, who was present. Also present were Arne Ojala, Down Cape Engineering; and Gordan Clark,Architect. Attorney Butler submitted a memorandum to the file including a deed dated April 17, 1998 from John T. Callahan &Sons, Inc. to the applicant, Jacques Morin, to show standing before the Board. Regarding traffic, Attorney Butler stated this proposal will generator a minor amount of traffic. Mr. Butler submitted a letter from Town Engineer Robert Burgmann which indicates the proposed improvements to be done by the State on Route 28(in front of locus) obviates the need for traffic mitigation for this proposal. The Board discussed the letter to the Zoning Board of Appeals from Town Engineer Robert Burgmann dated September 8, 1998. The letter given to the Board Members is three paragraphs long while the[same?] letter submitted by Mr. Butler from Town Engineer Robert Burgmann has an additional fourth paragraph. It is that last paragraph that the Board was concerned with as that deals with left turns in and out of the site. The Board Members indicated they may want to condition the grant of this proposal to only right turns in and out. The Board stated they would like to review the most recent plan for the Route 28 improvements. They also asked about double barreling of the area and if there were any proposed traffic lights in the immediate area. There was still a concern about left turns in and out of the site. The Board asked that a letter be sent to Mr. Burgmann requesting his presence at the continuance of this appeal to answer the Board's questions. The Board suggested the applicant review the idea of right in and out only before the continuance. It was unanimously decided to continue Appeal Number 1998-102 to November 18, 1998 at 7:00 PM. At the continuance on November 18, 1998, Alternate Board Member Thomas DeRiemer, who was present when testimony was previously presented in these appeals, replaced Gail Nightingale who was absent. Town Engineer Robert Burgmann addressed the Board. He explained when this project started in the early 1990s, the Town was under the jurisdiction of District 7 of the MA Highway Department(located in Middleboro). But since that time,jurisdiction has changed to District 5 in Taunton. Mr. Burgmann reported he had just attended a pre-construction conference at the MA Highway Department in Taunton. The Route 28 project is underway and construction will start after the first of the year. The telephone company will start their work next month. The Route 28 project involves the intersections of Route 28&Phinneys Lane and Route 28 &Old Stage Road. The Town is working to improve that area during the same time frame as the State so the repaving of Route 28 will overlap and be paid by the State. As to curbcuts along this section of Route 28, the MA Highway does not agree with the driveways being limited to right in and right out only because the configurations do not work. The only approach that MA Highway will agree to (in an effort to limit left hand turns and not allow people to illegally turn into the site) is through the use of a median in the center of the roadway. In looking at this section of Route 28, the use of a median is not practical. The State does not have a problem with the"theory"of right in -right out however, they are concerned with the geometry of driveway and the turning movements. There is a problem with the 2 Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal Number 1998-103-Morin Variance to Section 3-3.6(5)Bulk Regulations Town's ability to enforce only right in and right out turning movements because people go over the curb and they do not obey the signs. No matter how good the Town's intentions, people ignore signs. The Board again addressed the issue of the modification of Appeal Number 1990-40. The 1973 Belfer vs. Building Commissioner of Boston Case involves a variance being tolled because an appeal was taken on that variance. There is reference in the Belfer Decision to Woods vs. Newton(351 MA 98)which may apply to this [Morin]appeal. The Board asked Assistant Town Attorney Ruth Weil if she could address the issue of tolling of time. The Variance granted in 1990 had specific conditions put upon the granting of the Variance which made the applicant unable to exercise the grant of the Variance until those specific conditions were fulfilled. She reported to the Board that she needs to look at the facts in this appeal and the case of Belfer vs. Building Commissioner of Boston before she could advise the Board. It was unanimously decided to continue Appeal Number 1998-102 and Appeal Number 1998-103 to December 16, 1998 at 7:00 PM. Board Members hearing these appeals on December 16, 1998 were Ron Jansson, Tom DeRiemer, David Rice,and Chairman Emmett Glynn. Attorney Patrick Butler represented the applicant, Jacques Morin,who was present. Upon opening these appeals, Chairman Emmett Glynn explained that there are only four Board Members present tonight who had previously heard these appeals. Under MGL Chapter 40A, a positive vote of at least four out of a five member board is needed to grant the relief being sought. The applicant was given the opportunity to have his appeals heard this evening by the four member board, or the option of asking for a continuance to a date when the original five members hearing these appeals would be present. Attorney Butler elected to proceed with a four member board. Prior to this continuance, a memorandum regarding the issue of the tolling of time, dated December 11, 1998, from the Legal Department was submitted to Board along with a memorandum from Attorney Butler also dated December 11, 1998. Board Member Ron Jansson stated he reviewed both memorandums, and after reading the supplied information-in his opinion -the original Variance expired. It was decided that the Petitioner would proceed onto Appeal Number 1998-103 and then go back to Appeal Number 1998-102. Attorney Butler reminded the Board of his memorandum of September 9, 1998 which gave Variance Conditions. He reviewed his memorandum and displayed a conceptual drawing of the proposed building. The applicant is seeking a Variance to the bulk regulations, to allow for a side setback of 10.44 feet to the west and 11.50 feet to the east and to allow for a rear yard setback of 10.66 feet. The lot is small and triangular in shape and adjacent to Route 28. The site is located in the newly developed HO Highway Office Zoning District. The foundation that is currently in the ground, was built in accordance with a foundation permit issued by the Town in 1992. A six year time period has transpired since the foundation was poured pursuant to a valid building permit. In that time period, changes have occurred in ADA Regulations and Code Requirements. This building now requires an elevator and the entire property must be handicapped accessible which impacts the layout of the.building. These structural changes affect the rear and side setback requirements. This is the only relief they are seeking. As to Variance Conditions, Attorney Butler stated the uniquely shaped nature of the lot-an inverted triangle- together with the location of the existing foundation to the rear of the lot is a unique condition that exists that affects the locus but not the zoning district in which it is located. A literal enforcement of the provisions of the Zoning Ordinance would involve a substantial financial hardship to the Petitioner in light of all the previous permitting and the need for additional screening and buffers along Route 28. The relief may be granted without substantial detriment to the public good and without derogating from the Zoning Ordinance as the extension into the setback requirement is minimal. 3 Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal Number 1998-103-Morin Variance to Section 3-3.6(5)Bulk Regulations Attorney Butler addressed the site's location on Route 28 and its impact on traffic. He pointed out that the relief they are seeking is not directly related to traffic since they are only asking for a slight intrusion into the setback requirements. He repeated what the Town Engineer reported last time about right in and right out. The Board and Attorney Butler discussed the new HO Highway Office Zoning District and the requested relief. Under the HO Highway Office Zoning District, the proposal meets the FAR(Floor/Area Ratio), the parking requirements, and all other requirements of the district with the exception of the side and rear yard setback requirements. They meet the front yard setback which is now 45 feet. For the record, the site will not be accessed for egress and ingress out the rear of the lot. Jacques Morin reported that he will move his real estate office to this site and will lease the other part of the building. He is allowed to have (and has parking for) up to four units in the building. The offices will be for professional office use. The applicant will accept the condition that medical office use and the treatment of patients will not be allowed at this site due to the high traffic those uses generate. Public Comment(taken on September 09, 1998): Dan Swartz, President of the Centerville Civic Association spoke. He stated the building height conforms to Zoning and the Association does not want to see a third floor. They liked the appearance and felt this proposal will get rid of an"eye sore" in the area. They were pleased this site would be used as an office and not a retail business. The Association voted to support the proposal. No one else spoke in favor or in opposition to this appeal. There are letters of support from Charles C. Case, Jr. of Case& Rapp, LLP; Marcel R. Poyant of Rene L. Poyant Realtors;Allen J. White of Bayberry Investors Trust; Frank J. Catania of Dan'I Webster/Hearth 'n Kettle; John T. Callahan, III of Bell Tower Mall; Earle C. William; Guy Roberts; Stuart Bornstein of Holly Management&Supply Corp.; Mary Croughwell; and Carter Luke of the MSPCA(MA Society for the Prevention of Cruelty to Animals). Findings: At the hearing of December 16, 1998, the Board unanimously found the following findings of fact as related to Appeal No. 1998-103: 1. The Petitioner is Jacques N. Morin. The property in issue is 1597 Falmouth Road (Route 28), Centerville, MA, as shown on Assessor's Map 209, Parcel 084 with an area of 0.40 acres. It is located in the newly zoned HO Highway Office Zoning District. The site is also located in the AP Aquifer Protection Overlay District. 2. The property is burdened by a foundation which was installed after the granting of a Variance by the Zoning Board of Appeals in August 1990. That foundation is still in place. More than six years has lapsed since the construction of the foundation and as a result, under MGL Chapter 40A Section 7, the Building Commissioner can not compel the removal of that foundation. 3. The lot itself is unique in that it is the only lot in this particular area that is triangular in shape. The overall dimensions of the lot consists of 263 feet of frontage and 134 feet along each of the sides. It is triangular in shape and due to this unique shape of a lot, the lot itself is not fully able to be utilized to its fullest extent in the event that the Petitioner seeks to put a typical use on this site-that of an allowed office use. 4. Given the fact that the lot is triangular and fans out drastically to the vertex of the triangular in the rear, the Petitioner is denied the use of a substantial portion of the lot due to the side yard and rear yard setbacks of this district. 5. This shape contributes to the hardship for which the Petitioner is seeking the relief from, in that he can not build a normal building due to the irregular shape of the lot,without violating the Zoning Ordinance. 6. The Petitioner is seeking relief on two fronts. The relief is requested from the side yard setback, which is now 15 feet in the new HO Highway Office Zoning District, and relief from the rear yard setback which is now 20 feet in the new HO Highway Office Zoning District. 7. The Petitioner seeks to construct a building on the existing foundation which will encroach into the side yard setback requirements by approximately 5 feet. The building will be sited 10.44 feet from one side yard and 11.50 feet from the other. The building will also encroach on the rear yard setback as the building will be located 10.66 feet from the rear lot line. 8. Owing to circumstances relating to the shape of this particular lot, it would be a significant hardship to the Petitioner if he could not build the proposed structure that is before the Zoning Board of Appeals. 4 Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal Number 1998-103-Morin Variance to Section 3-3.6(5)Bulk Regulations 9. The relief may be granted without substantial detriment to the public good or neighborhood affected and without nullifying or substantially derogating from the intent or purpose of the Zoning Ordinance. Decision: Based on the findings of fact, a motion was made and duly seconded to grant the relief being sought in Appeal Number 1998-103 with the following terms and conditions: 1. The property shall be developed in accordance with a plan entitled"Plan of Land in (Centerville) Barnstable, MA Showing A Proposed Site Design At#1597 Falmouth Road (Rt. 28)", prepared by Down Cape Engineering, Inc. and dated November 13, 1997, revised December 18, 1997, March 12, 1998 and May 12, 1998. 2. Landscaping shall be provided in accordance with a determination made by the Building Commissioner. 3. The applicant shall comply with all the traffic mitigation measures required by the Commonwealth of Massachusetts Highway Department Permit No. 7-25723 and as shown on a plan entitled"Proposed Traffic Mitigation prepared for Swift Assembly Trust by A.M.Wilson Associates Inc." and dated 10-5-90. 4. The Petitioner shall include signage-large enough to be read on the property-indicating No Left Tums out of the property. 5. The uses of the property shall be restricted to professional and government office use and medical office use-but excluding any medical use which includes medical patient treatment. Patient treatment is to be excluded for this site. There shall be no drive-thru facilities and no banks on site. 6. The Petitioner shall not create an access to Old Post Road (either by purchase or easement)for the purposes of egress and ingress. 7. The building square footage shall not exceed the total amount of 4,713 square feet. The Vote was as follows: AYE: Ron Jansson, David Rice, Thomas DeRiemer, and Chairman Emmett Glynn NAY: None Order: Variance Number 1998-103 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 one year. Appeals of this decision, if any, shall be made pursuant to MGL Chapter 40A, Section 17, within twenty(20) da after the da e_ the filing of this decision. A copy of which must be filed in the office of the Town Clerk. 1998 Emmett Glynn, Chairman Date Signed { a I Linda Hutchennder, 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 an&-that no appeal of the decision has been filed in the office of the Town Clerk. Signed and sealed this day of nder the pains and penalties of°perjury.- f Linda Hutchenrider, Town Clerk 5 PAR: 8209 013. PARt R209 014. KEY: 128114 TAX CODE:300 KEY* 128123 TAX CODE:300 POYANTi MARCEL R BELL-TOWER CORPORATION P 0 BOX K ZJOHN'T CALLARAMA-PRES HYANNIS MA 02601-0000 1403 FALMOUTH ROAD CENTERVILLE MA 02632-0000 PAR: R209 015. PAR: R209 061. PAR. R209 062. KEYS 128132'TAX CODE:300 KEY: 128560 TAX C8DEz300 KEY* 128579 TAX CBOE:300 ONE CENTER PLACE LAY PARTHR VALLIERE• EUGENE P MALSMs MARTIN M 8 297 NORTH ST 167 OLD POST ROAD 6OVONIo MARY.W' HYANNIS MA 026D1-0000 CENTERVILLE MA 02632-0000 891.35 CERTERVILLE MA 02632-0000 PAR., R209 083. PAR: R909 084. PARS R209 035. KEYS 123739 TAX CODEz300 KEY: 129748 TAX CODE:300 KEY: 123757 TAX COOE:300 MASS SOCIETY FOR PREVENTION JOHN'S CALLAHAN 6 SONS INC SUN'OIL CO OF CRUELTY;TO ANIMALS 59 PLEASANT ST TEN PENN CTRIATTJ AX=DEPT 15T7.ROUTE 28 RANDOLPH MA 02368-0000 1901 .MARKET ST CENTERVILLE MA 02632-0000 PHILADELPHIA PA 19103-0000 PAR: R209 091. PAR:.2209 121. PAR: 9209 063. KEY: 129006 TAX C09E:300 KEY! 129293 TAX CODE:300 KE12' 128588 TAX•CODE:300 PHILLIPS• ANN C LYNAV. ROGER A 6 DIANNE M WILLIAMS& EARLE C. 1367 BEACON ST 157 OLD POST AD BEVERLY:L WILLIAMS BROOKLINE MA 02146-0000 CENTERVILLE MA 02632-0000 151tOLD POST RD CENTERVILLE MA 02632-0000 PAR: 2209 086.A01 PAR: 0209 086.A02 PAR* R209 086.A03: KETS 128766 TAX CODE:300 KEY: 335319 TAX'COOE:300 KET: 335328 TAX=C8DEz300 WHITE• ALLEN"J.TRS GLATKI• CLAIRE S TRS WNITEo ALLEN J TR8 BATBERRY.ASSOC REALTY TRUST TRAVANA REALTY'TRUST. BAYBERRY ASSOC.REALTY*.TRUST P 0 BOX 9" 701 MAIN ST P OtBOX 979 HYANNIS NA 02601-0000 COTOIT- MA 02635-0000 HYANNIS AA.02601+0000 PARz 2209 086.AO4 PARt R209 086.601 PARz R209 086.8132 KEY* 354752 TAX CODE:300 KEY: 128775 TAX COOE:300 KEY2 128794 TAX:COOE:300 GLATKI. CLAIRE TRS DWYER♦ JEFFRET.F 8 CAROL A CLOT" SUSAN A. TRAVANA REALTT:TRUST 549 BAT'LANE 51.MAPLE AVE 701 MAIN ST CENTERVILLE MA 02632-0000 CENTERVILLE MA 02632-0000 COTUIT MA 02635-0000 PAR: R209-086.603 PAR: R209 036.804 PARS'RZ09 086.CO1. KET: 128793 TAX CODE:300 KEY:` 128800 TAX CODE:300 KEV2 128828 TAXaCODE:300 UNITE. ALLEN J TRS WHITE• ALLEN J CAQU6NVELL#-PART.C A OVEN F BAYBERRY INVESTORS TRUST P 0 BOX 979 114.SCUDOER AVE P 0 BOX 979 HYANNIS MA 02601-0000 OSTERVILLE MA:02655-0000 MYANNIS MA 02601-0000 PAR: R209 086.CO2 PA22 R209 086.0O3 PAR: R209,086.04 KEY: 128837-TAX CODE:300 KEY:' 128846 TAX COOE:300 KEYS 128855 TAY'CODE9300 CASE. B LORI TRS BAYSIOE BUILDING INC' BAYSI69 BUILDING-CO`INC LORI CASE INVESTMENT TRUST P 0 BOX 95 P50 BOX 95 49 BELDAM LANE CENTERVILLE MA 02632-0000 CENTERVILLE MA 02632-0000 CENTERVILLE MA 02632-0000 � V � (aa laa $ � 103 PAR: R209 036.901 PAR: R209 086.002 PARS 9209 086.001 KEY: 341543 TAX CODE:300 KEY: 128873 TAX CODE:300 KEY: 128882 TAX CODE:300 NASTASIA. THOMAS V LOWERYP JEFFREY P A NANCY C YNITEP ALLEN J.TRS SHAKALISPR A FALCO• P A 88 BAY RD dAYBE ART 1 INVESTORS TRUST 1645 ATE 28 COTUIT MA 02635-0000 P-O BOX 979 CENTERVILLE MA 02632-0000 NYANNIS HA 02601-0000 PAR: R209 086.004 PAR: R209 086.005 PARS R209 086.DO6 KEY: 128891 TAX CODE:300 KEY: 128908 TAX CODE:300 KEY: 128917 TAX CODE:300 OEOECKOP JAMIE S TRUSTEE PRICE, WILLIAM A_JR TR PRICE. WILLIAM A JR TR GREENSWARD REALTY TRUST CHEQUAQUET NOMINEE TRUST CHEQUAQUET NOMINEE TRUST P.O. BOX 154 17 CREQUAQUET WAY 17:CNEQUAQUET WAY: MASNPEE MA 02649-0000 CENTERVILLE MA 02632-0000 CENTERVILLE MA 02632-0000 PAR: e209 086.D07 PAR: R209 086.008 PAR& R209 086.009 KEYS 128926 TAX CODE:300 KEY: 128935 TAX CODE:300 KEYS' 128944 TAX:CODE:300 NASTASIA. THOMAS.V A NASTASIA, THOMAS V'S WHITEP ALLEN J WAS SHAKALISP R R A FALCOP P A SMAKALISP R R A FALCOP P A BAYBERRY INVESTORS TRUST WAS COA REALTY TRUST TRS OF CDA REALTY TRUST PO BOX 979 1645 ROUTE 28 1645 ROUTE 28 HYANNIS MA 02601-0000 CENTERVILLE MA 02632-0000 CENTERVILLE RA 02632-0000 PARS R209 086.E01 PARS R209 086.E02 PARs'R209 086.EO3 KEY: 341339 TAX C00E:300 KEYS 341348 TAX CODE:300 KEYS: 341157 TAX CODE:300 DWYER, JEFFREY F.A CAROLE A WNITEP ALLEN J WAS WHITED ALLEN J WAS 549 SAY LANE BAYBERRY ASSOC REALTY TR BAYBERRY ASSOC REALTT TR CENTERVILLE MA 0263Z-0000 P 0 BOX 979 P O`BOX 979 HYANNIS MA 02601—OWO HYANNIS MA 02601-0000 PAR: R209 086.E04' PAR: R209 086.E05 PARS R209 066.E06 KEY: 341366 TAX CODE:300. KEY: 341375 TAX CODE:300 KEY: 341384 TAX CODE:300 MARTIN• LESLIE K A RUTH S MARTIN, LESLIE K A RUTH S WHITE* ALLEN J TRS 001 855 BOX 855 BAYBERRY ASSOC REALTY TR E FALMOUTH MA 02536-0000 E FALMOUTH MA 02536-0000 P:O BOX 979 HYANNIS MA 02601-0090 PARS R209 086.E07 PAR: R209 086.E08 PARS R209 086.EO9 KEY: 341393 TAX CODE:300 KEY: 341400 TAX'CODE:300 KEY: 341419.TAX CODE:300 WHITEi ALLEN J .TRS LAKISP STEPHEN 6 8 A LYNNE LAKISP STEPHEN 6 A A LTNNE 8AYBERY ASSOC REALTY TR 36 THORNBERRY LANE 36 TdORNBERRY LANE P 0 BOX 979 CENTERVILLE RA 02632-0000 CENTERVILLE RA 02632-0000 HYANNIS MA 026M—0000 PARS R209 086.E10 PAR: 2209 086.E11 PAR: R209 086.E12 KEYS, 341428 TAX CODE:300 KEY: 341437 TAX CODE:300 KEY. 341491 TAX'COOE:300 LAKISP STEPHEN 6 A A LYNNE LAKISP STEPHEN 6 A A LYNNE LAKISP STEPHEN 6 A A'LYNNE 16 BAYBERRY SQUARE 36 THORNBERRY LANE 36.THGRNBERRY LANE CENTERVILLE MA 02632-0000 CENTERVILLE MA 02632-0000 CENTERVILLE MA 02632-0000 PAR: R209 086.FO1 PAR: R209 086.F02 PARS R209 086.FO3, KEYS . 341446-TAX CODE:300 KEYS 341455 TAX CODE:300 KEYS 3414" TAX?CODE:300 CASEP-LORI TRS JONESP RUTH.M WHITES ALLEN J TRS LORI CASE INVESTMENT TRUST P 0 BOX 396 BAYBERRY INVESTORS TRUST 49 BELDEN:LANE HYANNISPORT MA 02647-0000 PD'BOK 979 CENTERVILLE MA 02632-0000 HYANNIS MA 02601-0000 PARS'R209 086.F04 PAR: R209 086.F05 KEY: 341473 TAX CODE:300 KEY: 341482 TAX CODE:300 WHITEP ALLEN J.TRS UNITED ALLEN.J TRS BAYBERRY'INVESTORS TRUST BAYBERRY IMVSTORS TRUST PO BOX 979 PO BOX 979 HYANNIS MA 02601-0000 HYANNIS MA 026014-0000 y , Proof of Publication . TOWN OF BARNSTABLE ZONING BOARD OF APPEALS NOTICE OF PUBLIC HEARINGIINDER THE ZONING_ORDINANCE FOR SM37EMBER 09.19981 To an persons interested in.or effected by the Board of Appeals under Sec.11 of Chapter 40A of the General Laws of the Commonwealth of Massachusetts.and all amendments thereto you are hereby notified that 7s35 PMJlaW Appeal Number 1998.101 Stephen C.Jais has petitioned to the Zoning Board of Appeals for a Special Permit for a Far*Apartment pursuant to Section 3.1.l(3XD)of the Zoning OMkonce.The property is shown on Assessors Map 268.Parcel 204 and is commonly addressed as 97 Sterling Road. Hyannis.MA In an RB Residential B Zoning District. 7945 PMMorrin Appeal plumber 1998-102 Jacques.N.Morin has applied for a Modification to Variance Number 1990-40 to allow for side setback of 10.44 feet and 11.50 feet and to allow fore rear yard setback of 10.66 feet The property is shown on Assessors Map 209,Parcel 084 and is commonly addressed as 1597 Falmouth Road(Route 28).Centerville.MA in an HS Highway Business District 7250 PYMorin 'Appeal Nuasber 1998-103 Jacque%N.Morin has.epplied fora Variance to Section 3-3.6 Bulk Regulations.The Valance Is requested to slow forside setback of 10.44 feet and.1 1.50 feet and to allow fora rearyerd setback of 10.66 feel The property is shown on Assessors Map 209.Parcel 84 and is commonly addressed as 1597 Falmouth Road(Route 28),Centerville,MA In an HB Highway Business District. 8r1S PMMoroelu Appeal Number 1998-1" Bleen and Wallace Morosid have applied to the Zoning Board of Appeals fore Use Variance to Section 3.1.3(3XA)Principal Permitted Uses to pem tt lodging fora Bed b Breakfast for not mare than six(6)people in three(3)bedrooms. The property is shown on Assessors Map 267. Parcel 033 and Is commonly addressed as 122 Am Avenue.Hyannis(West Hyannisport).MA in an RF 1 Residential F-1 Zoning District 8:30 PIYIGIII Appeal Number 1998.105 . Joseph B.and Nancy F.Gill have applied to the Zoning Board of Appeals for a Variance to Section 3-1.4(5)Bulk Regulations. The petitioner is requesting a reduction in the side yard and rear yard setbacks from 15 feet to 61/2 feet to accommodate a house addition. The property Is shown on Assessors Map 136.Parcel 026 and is commonly addressed as 42 Burring Tree Lane.West Barnstable.MA in an RF Residential F Zoning District. These Public Hearings will be held 1h the Hearing Room;Second Roor.New Town Hall.367 Main Street Hyannis.Massachusetts on Wednesday.September 09.1998. All plans and applications may be reviewed at the Zoning Board of Appeals Office.Town of Barnstable. Planning Deparbrient 230 South Street,Hyannis.MA &nett Gynn.Chairman Zoning Board of Appeals Barnstable PaMot August 20 and August 27.1998 pfr1ME rop, Town of Barnstable Regulatory Services i ■ i * BAMSTABLE. MAss. g Thomas F.Geiler,Director ATF1639. &`� Building Division - Tom Perry,Building Commissioner 200 Main Street,Hyannis,MA 02601 Office: 508-862-4038 Fax: 508-790-6230 May 2, 2006 Jacques Morin 1597 Falmouth Road, Suite 4 Centerville, MA 02632 RE: 1597 Falmouth Rd. Centerville Map : 209 Parcel : 084 Dear Mr. Morin: This letter is to follow up an issue first brought to your attention last year and to date remains unresolved. As you may recall, the issue is a lack of proper egress from the basement. Additionally, upon further research into the property it has been identified that to date there has been no Certificate of Occupancy issued for the building or any of the tenants. Furthermore, during a recent inspection of the property several additional violations to 780 CMR have been identified. It is imperative that you contact this office immediately at (508) 862-4034 to resolve these issues. You have until June 2, 2006 to bring the building into compliance and arrange for a final inspection. If the building is not brought into compliance by the above date this office will issue an EXIT ORDER as required. Thank you for your anticipated cooperation in this matter. By order, Jeffrey L. Lauzon Local Inspector Cc: Chief John Farrington Q:zoning5 ru DIYll:1i11 M U�ll%►1�`ffiil m co .'• Ul Lr) Postage $ I O Certified Fee r)� C3 ; Return Rtm eclept Fee !a P H ey (Endorsement Required) ere O Restricted Delivery Fee ' MAY 3 ZU06 co (Endorsement Required) Total Postage&Fees m p Sent To O Street,orPOB3 t o.; City State,Z,P+4 Certified Mail Provides: o A mailing receipt (asi-911)zooz eunr'008C WJ0A Sd e A unique identifier for your mailpiece o A record of delivery kept by the Postal Service for two years Important Reminders: o Certified Mail may ONLY be combined with First-Class Mail®or Priority Mail®. o Certified Mail is not available for any class of international mail. o NO INSURANCE COVERAGE IS PROVIDED with Certified Mail. For valuables,please consider Insured or Registered Mail. n For an additional fee,a Return Receipt may be requested to provide proof of delivery.To obtain Return Receipt service,please complete and attach a Return Receipt(PS Form 3811 to the article and add applicable postage to c2ver the fee.Endorse mailpiece'Return Receipt Requested".To receive a fee waiver for a duplicate return receipt,a USPS®postmark on your Certified Mail receipt is required. - TP$,, o For an additional fee, delivery may be restricted to the addressee or addressee's authorized agent.Advise the clerk or mark the mailpiece with the endorsement"Restricted-Delivery". o If a postmark on the Certified Mail receipt is desired,please present the arti- cle at the post office for postmarking. If a postmark on the Certified Mail receipt is not needed,detach and affix label with postage and mail. IMPORTANT:Save this receipt and present it when making an inquiry. Internet access to delivery information is not available on mail addressed to APOs and FPOs. UNITED STATE ;:i.Q 04 MAkY .. ' • Sender: Please print your name, address, and ZIP+4 in this box • TOWN OF BARNSTABLE BUILDING DIVISION 200 MAIN ST. ,r HYANNIS,MA 02601 C fj Tj' - {i'lilifld{1111ro�1lrotlitl�i�t1�{1S.tfl�iiflfli{I�roft11lt!l i�fl M THIS SECTION ON DELIVERY SENDER: coMPLETE THIS SEChON ■ Complete items 1,2,and 3.Also complete A. Si.nature item 4 if Restricted Delivery is desired. ❑Agent ■ Print your name and address on the reverse kkffiyaiX ❑Addressee so that we can return the.card to you. B. Received by(Prl a fe, C. Da a of elivery ■ Attach this card to the back of the mailpiece, or,on the front if space permits. 5 �� D. Is delivery address different from item 1? ❑'Ye s 1. Article Addressed to: M- If YES,enter delivery address below: ❑No Cyr ei¢ Cl ca1� `�n 3. Service Type ❑Certified Mail ❑Express Mail !o ❑Registered ❑Return Receipt for Merchandise Q Insured Mail ❑C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes ------------------------------- 2. Article Number t s = 7003 1680 0.004 IS456 3602,'� � (rransfer from seivice label) i PS Form 3811,February 2004 .Domestic Return Receipt 102595-02-M-1540 i r� I g.ST. CENTERVILLE-OSTERVILLE-MARSTONS MILLS FIRE DISTRICT (� DEPARTMENT OF FIRE-RESCUE&EMERGENCY SERVICES 1875 Route 28•Centerville, MA 02632-3117 1926 508-790-2380•FAX: 508-790-2385 John M.Farrington,Chief Martin O'L. MacNeely, Fire Prevention Officer Craig E.Whiteley,Deputy Chief Francis M. Pulsifer, Fire Prevention Officer April 28, 2006 Mr. Jacques Morin Bayberry Builders 1597 Falmouth Road Centerville, MA 02632 Dear Mr. Morin: It was brought to our attention from a State of Massachusetts Elevator Inspector, that the building at 1597 Falmouth Road in Centerville, Massachusetts does not have adequate egress from the basement. Since May 27, 2005 both the building department and fire department have provided you information relative to this situation both verbally and through written documentation. In my letter to you dated July 11, 2005 I reinforced the urgency of the situation and requested in writing a timetable for correction. To date, Q� the corrections have not been made,nor has a timetable for correction been'established. Pursuant to Massachusetts General Law Chapter 148 Section 5, you are hereby "l ordered to remedy the situation by providing adequate egress from the basement of this structure. Failure to comply with this order within twenty- four(24)hours will result in further actions to abate the conditions as dictated by the fire department. In addition, failure to comply will result in notification to the State of Massachusetts Fire Marshals Office- Code Compliance Division. Your immediate attention to this issue is anticipated to ensure the life safety of all occupants of this structure. Please call me at the fire prevention office Monday through Friday between 8:00 a.m. and 4:00 p.m. at (508) 790-2375 with any questions relative to this issue.. Sincerely, Francis M. Pulsifer Fire Prevention Officer Cc: Town of Barnstable-Building Department "Commitment to Our Community" 'Engineering Dept. (3rd floor) Map o Parcel , U `W• Permit# �j House# 1y �h Date Issued C Board of Health(3rd floor)(8:15 -9:30/1:00-4:30) r59 @ Fee Conservation Office(4ih floor)(8:30-9:30/1:00-2:00) -3 ) GG - Planning Dept. (1st floor/School Admin. Bldg.) THE T°r;_ Definitive Plan Approved by Planning Board 19 Y IVi� � � tom. �( �t�✓ `� i679• TOWN OF BARNSTAB E, Building Permit Application Project ddress l-97 Village ��-/vS�Fa_rd✓/`E Owner ] 71�s. Address Telephone Z�;'Q 8 Permit Request 7 e!7oA1 S-1rno4--?4 38/7 Soo First Floor 19p�," s ec nd Floor /9 d • S^ square feet Construction Type g�t �az) Estimated Project Cost $ 0200, o�, Zoning District f Flood Plain d Water Protection R P Lot Size Grandfathered ❑Yes ❑No r, Dwelling Type: Single Family ❑ Two Family ❑ Multi-Family(#units) Age of Existing Structure /9?,3 Historic House ❑Yes 5* o On Old King's Highway ❑Yes 8,1Go Basement Type: Full ❑Crawl ❑Walkout ❑Other Basement Finished Area(sq.ft.) i4 44L,,� Basement Unfinished Area(sq.ft) os- Number of Baths: Full: Existing New -3 Half. Existing New } No. of Bedrooms: Existing New �i± Total Room Count(not including baths): Existing New &,yam First Floor Room Count Heat Type and Fuel: f tas ❑Oil ❑Electric ❑Other Central Air 8I'es ❑No Fireplaces: Existing New �j/��y Existing wood/coal stove ❑Yes ❑No Garage: ❑Detached(size) Other Detached Structures: ❑Pool(size) ❑Attached(size) ❑Barn(size) ffione ❑Shed(size) ❑Other(size) Zoning Board of Appeals Authorization Appeal# l`1 749 -yO Recorded[� Commercial ZYes ❑No If yes, site plan review# 11770 Current Use mNt© 40posed Use Builder Information Name Telephone Number Address License# d 6'°7 710 Home Improvement Contractor# 6y`,¢ p a.:;.. Worker's Compensation# .,Z" ��j/f 773 NEW CONSTRUCTION OR ADDITIONS REQUIRE A SITE PLAN(AS BUILT)SHOWING EXISTING,AS WELL AS PROPOSED STRUCTURES ON THE LOT. ALL CONSTRUCTION DEBRIS RESULTING FROM THIS PROJECT WILL BE TAKEN TO SIGNATURE c DATE 3`i 7/e8 BUILDING MIT DENIED FOR THE FOLLOWING REASON(S) r' FOR OFFICIAL USE ONLY PERMIT NO. _ DATE ISSUED t •}: MAP/PARCEL NO. ADDRESS VILLAGE OWNER DATE OF INSPECTION: = FOUNDATION FRAME , INSULATION FIREPLACE h I ELECTRICAL: ROUGH r` FINAL PLUMBING: ROUGH FINAL GAS: ROUGH FINAL - FINAL BUILDING DATE CLOSED OUT f ,• 4 ASSOCIATION PLAN NO. LO �' n < ,a 7`1 Al _., ..::. I I r 1 r 0 I -QI - i < I � g �o .. 7Dssr- S,f rweE'FeoTAb�. � � t 2 G/roz =3,8/a f6 A �l c , J j i I n J �Aw U I , t-- AI � _ j �I., . SFLp�JD FLNR P,..Afv � :.yf�1 QI•' '��i vex Jx2ti&'Ooe o30/v r,n 'e � i , LL, Q J3 \ N en t _ II � 95D I I e c L.1 ' o Cn �«.Mr' MAYS ir In.Q ON A. a - pq .. .. ---------.--.- jj ? Lip EK I r�------- --t--------- ---- --- ----- - -------a 1 ... r 7-3 441 rill!• Lg T' -•� �,! t lJ 'P Rv NT E i►E�/L>��a N � , r I i .e�µrva - T �t o -.. .. r J14[ _ I ff r, It 77 1 RJhHT SIDE ELE�ATjON LEFT SDE 5LE ATIOt -_ — E3J ...«s.:o.asw...p.. � ::�' � ��_ �p P @ E @..4.•.�....L�I....s-�.a�• - _ - � ,q] wn y. ,ham. 11 i t V orte ssl , i -------------- ' I, i� ! 1 ...._.. �� -T---••-.�.�rara rye_ --� DE:A.L - 2 PETAIi� __ 3 S { i I! inn I I � I I ggg + i G ,�1.-• f _ o� s tom•� ' — of e f v=1.---. - of ^e.. '- �� . UjI�II/�AW�I ./ 4 /�� V •' �V�V-ems w r � 7 OCT-07-97 TUE 15 :08 DOWN CAPE ENGINEERING 5.08 362 9880 P. 62 ROUTE 28 135.55' 127.85' a, 0 a 17, 526+/- s. f. 2 CONCRETE FOUNDATION 0� el, rdlo. $ QQ� P�,S 5 GQ QPgS:�F i i # 86-069 CERTIFIED PLOT PLAN LOCATION : ROUTE 28 CENTERVILLE, MASS. SCALE ; 1 p = 40' DATE ; 7115193 PREPARED FOR: REFERENCE : ASSESS. MAP 209 LOT 84 J. T CALLAHAN SONS I HEREBY CERTIFY THAT THE StHUCTURE SHOWN ON THIS PLAN IS LOCATED ON THE GROUND AS SHOWN HEREON. AWE 1 Q down Cape engineering inc. {; CIVIL' ENGINEERS � 9 �STERE v. kAt � 9 LAND SURVEYORS 7S<f RTE 6A - YARMOUTH. MASS. DATE AEG. LAND 'SURVEYOR } a r hiM fl..T ��►e Is A,, LT • � S.ZZ Cevc.. Co.�.a�, C •�a c� . t^ a ?'lift Flo.03 o,A, r1 O tee. %.%S f.v . r 3T 9� •� S� 34. �� Z3�-39.-/C) a •- pk 302 .12 4. 00 1 O� wc_ i TOWN .OF BARNSTABLE BUILDING PERMIT PARCEL ID 209 084 GEOBASE ID - 1.2 874 ADDRESS 1597 FALMOUTH ROAD (ROUTE PHONE ` i CENT.ERVILLE ZIP BLOCK LOT SIZE DISTRICT CO DEVELOPMENT :UI3A PERMIT 297B6 DESCRIPTION 3817 SQ_' FT. COMMERCIAL OFFICE BLDG. /PRIVAj PERMIT TYPE BUILDC TITLE COMMERCIAL BUILDING ` Department of Health Safety ; CONTRACTORS: MORIN, JACQUES N. ARCHITECTS- and.Environmental Services i TOTAL FEES: $1,220.00 Ox1ME CONSTRUCTION COSTS $2000000.00 j . 324 PROF., BANKS, OFFICE BLDG 1 PRIVATE P 9M$TPABU& � MA83. 1639. A i - Ep WVi;I BUILDING DIVISIO BY DATE ISSUED 04/01/1998 E.YPIRA'TIVAI :DATE THIS PERMIT CONVEYS NO RIGHT TO OCCUPY ANY STREET,ALLEY OR SIDEWALK OR ANY PART THEREOF,EITHER TEMPORARILY OR PERMANENTLY.EN. CROACHMENTS ON PUBLIC PROPERTY,NOT SPECIFICALLY PERMITTED UNDER THE BUILDING CODE,MUST BE APPROVED BY THE.JURISDICTION.STREET OR ALLEY GRADES AS WELL AS DEPTH AND LOCATION OF PUBLIC SEWERS MAY BE OBTAINED FROM THE DEPARTMENT OF PUBLIC WORKS.THE ISSUANCE OF THIS PERMIT DOES NOT RELEASE THE.APPLICANT FROM THE CONDITIONS OF ANY APPLICABLE SUBDIVISION RESTRICTIONS. MINIMUM OF FOUR CALL INSPECTIONS REQUIRED FOR ALL CONSTRUCTION WORK: APPROVED PLANS MUST BE RETAINED ON JOB AND WHERE APPLICABLE, SEPARATE 1.FOUNDATIONS OR FOOTINGS THIS CARD KEPT POSTED UNTIL FINAL INSPECTION PERMITS ARE REQUIRED FOR 2. PRIOR TO COVERING STRUCTURAL MEMBERS . HAS BEEN MADE.WHERE A CERTIFICATE OF OCCU- ELECTRICAL,PLUMBING AND MECH- (READY TO LATH). PANCY IS REQUIRED,SUCH BUILDING SHALL NOT BE ANICAL INSTALLATIONS. 3.INSULATION. OCCUPIED UNTIL FINAL INSPECTION HAS BEEN MADE. 4.FINAL INSPECTION BEFORE OCCUPANCY. VISIBLEPOST THIS CARD SO IT IS BUILDING INSPECTION APPROVALS . PLUMBING INSPECTION APPROVALS ELECTRICAL INSPECTION APPROVALS 2 2 ' 2 3 1 HEATING INSPECTION APPROVALS ENGINEERING DEPARTMENT 2 BOARD OF HEALTH OTHER: SITE PLAN REVIEW APPROVAL . WORK SHALL NOT PROCEED UNTIL PERMIT WILL BECOME NULL AND VOID IF CON-. INSPECTIONS INDICATED ON THIS THE INSPECTOR HAS APPROVED THE STRUCTION WORK IS NOT STARTED WITHIN SIX CARD CAN BE ARRANGED FOR BY VARIOUS STAGES OF CONSTRUC- MONTHS OF DATE THE PERMIT IS ISSUED AS TELEPHONE OR WRITTEN NOTIFICA- TION. NOTED ABOVE. TION. THE COMMONWEALTH OF MASSACHUSETTS - F HEALTH . i BOARD O T ,,. TOWN OF BARNSTABLE j� ' FEE..._..:Y._... No...G ...... ----- Bilivaga1 Iforkii Tonstrurtion rrmit Permission is hereby granted------- to ._ ------------------------ ._.... ----- ...-- ------. --- Construct or R ( ) n Individ wa a Dis o System � .................. at No. 1 �•� t-� f��✓ t2CaG .... . --- I '.Street as shown on the application for Disposal Works Construction Permit No...... _ -------- Dated -."-- oard of Health YDATE. ..1.. ._.`: ............................... - FORM 36308 HOBBS&WARREN•INC-.PUBLISHERS 17 Town of RornOnble ,�ar,srnea,$ • — ' Department of Public Works r � 367 Main Street,Hyannis MA 02601 Office: '508-790-6300, Thomas J.Mullen Fax:. 508-790-6400 Superintendent TO: Ralph Crossen,Building Commissioner FROM: Robert A. BuTjmann, P.E., Town Engineer,)Mb DATE: March 15, 1995 SUBJECT: Office Building, 1597 Route 28, Centerville I would recommend_holding$67,500 insecurities to ensure completion of this project. Thesecurity should be in a form acceptable to the Town Treasurer. . The Engineering Division has estimated the cost of the construction work required in Route 28 by the Massachusetts Department of Public Works permit number 7-25723. The estimated cost of this work is$45,000.00. I would recommend holding security equal to 150% of this estimate($45,000 x 150%_ $67,500) to ensure that work is completed by the developers. This formula would be consistent to the town's polilcy on subdivisions To ensure that the work is completed in,a timely fashion,I would,recommend that the security be tied to an acceptable time frame for completion of the work. . CDT W ,. ..A . ._. . 14AR 2 �0 1995' j shccl-1 Uruer A0. 6 40 7 TOWN kPk'J$AKNS'tAliJAI!i rage /of / Engineering Division Office Cale.Book 5 _�Z 367 Main Street Hyannis,MA 02601 PRELIlI aV"Y ESTEWATE Sta to Sta. 3 37 f S/ Pillage egx,,l«y,fl r Sta `3 3 17-f 2-1 I to Sta 3 yaa- D O Road Class Contract Length= Fed Aid Date —Q-3 9S ITEM NO QUANTITY UNIT Item UNIT PRICE AMOUNT l�dz/ o ly e- e / 7ak 3 4C 5 '� I=�r. � ail:� C6- C � � �d� �• oo .9(�eD Y, v o:^rrte c) '70 1010 70 0 442, 20 S-25' 466,1.3.8 7D. 7si 3600 Xhb, 1000 14F 4" &-A w- Se Sao S o- Cis r S" l.)D 0 G/yD 1!0 prIIG/Y � PAr"rP �7 J"ov T"-r Pa a Total Sub Total ;7fib` Made b Y t� Checked by � ��� Submitted by Page 1 / T TOXIN 09 BARNSTABLF BUILDING PERMIT : d; PARCEL . ID 209 084 GEOBASF ID 12874 hDDRESS .1597 FALMOUTH ROAD (ROUTE PHONE CENT.ERVILLE ZIP LOT LOT SIZE DBA DEVELOPMENT DISTRICT CO PERMIT 29786 DESCRIPTION :3817 SQ_ FT., COMMERCIAL OFFICE E3LDG. /PRIM PERMIT TYPE BCII:LDC; TITLE COMMERCIAL BUILDING CONTRACTORS: MOWN, JACQUES N . Department of Health Safet ARCHITECTS: and Environmental Services I 'TOTAL FEES: $1,220.00 Ox1HE CONSTRUCTION COSTS $200;000-00 II 324 PROF., BANKS, OFFICE BIXG 1 PRIYA`7.E P"( 9AIWI LE, • �S BUILDING DIVISIO BY l i DAT a ISSUED 04/01/1998 E.KPIRATION DATR THIS PERMIT CONVEYS NO RIGHT TO OCCUPY ANY STREET,ALLEY OR SIDEWALK OR ANY PART THEREOF, EITHER TEMPORARILY OR PERMANENTLY.EN- CROACHMENTS ON PUBLIC PROPERTY,NOT SPECIFICALLY PERMITTED UNDER THE BUILDING CODE,MUST BE APPROVED BY THE JURISDICTION.STREET OR ALLEY GRADES AS WELL AS DEPTH AND LOCATION OF PUBLIC.SEWERS MAY BE OBTAINED FROM THE DEPARTMENT OF PUBLIC WORKS.THE ISSUANCE OF THIS. PERMIT DOES N:OT RELEASE THE APPLICANT FROM THE CONDITIONS OF ANY APPLICABLE SUBDIVISION RESTRICTIONS.. . MINIMUM OF FOUR CALL INSPECTIONS REQUIRED FOR ALL CONSTRUCTION WORK: APPROVED PLANS MUST BE RETAINED ON JOB AND WHERE APPLICABLE, SEPARATE 1.FOUNDATIONS OR FOOTINGS THIS CARD KEPT POSTED UNTIL FINAL INSPECTION PERMITS ARE REQUIRED FOR 2.PRIOR TO COVERING STRUCTURAL MEMBERS HAS BEEN MADE.WHERE A CERTIFICATE OF OCCU- ELECTRICAL,PLUMBING AND M FOR (READY TO LATH). PANCY IS.REQUIRED,SUCH BUILDING SHALL NOT BE ANICAL INSTALLATIONS. CH- 3.INSULATION. OCCUPIED UNTIL FINAL INSPECTION HAS BEEN MADE. 4.FINAL INSPECTION BEFORE OCCUPANCY. VISIBLEPOST THIS CARD SO IT IS BUILDING INSPECTION APPROVALS PLUMBING INSPECTION APPROVALS ELECTRICAL INSPECTION APPROVALS f. 2 2 2 .a 3 1 HEATING INSPECTION APPROVALS ENGINEERING DEPARTMENT 2 BOARD OF HEALTH y OTHER: SITE PLAN REVIEW APPROVAL WORK SHALL NOT PROCEED UNTIL PERMIT WILL BECOME NULL AND VOID IF CON INSPECTIONS INDICATED ON THIS THE INSPECTOR HAS APPROVEDTHE STRUCTION WORK IS NOT STARTED WITHIN SIX CARD CAN BE ARRANGED FOR BY VARIOUS STAGES OF CONSTRUC- MONTHS OF DATE THE PERMIT IS ISSUED AS. TELEPHONE OR WRITTEN NOTIFICA- TION. NOTED ABOVE. TION. 4 ' NUTTER, McCLENNEN & FISH, LLP ATTORNEYS AT LAW ROUTE 132-1513 IYANNOUGH ROAD P.O.BOX 1630 HYANNIS,MASSACHUSETTS 02601-1630 TELEPHONE:508 790-5400 FACSIMILE:508 771-8079 DIRECT DIAL NUMBER (� Q (508) 790-5407 DEC 1 i FA December 11, 1998 #101858-3 ! TOWN OF BARNSTABLE B i°Hand" ")"APB Emmett Glynn Chairman Zoning Board of Appeals Zoning Board of Appeals 230 South Street Hyannis, MA 02601 Re: Anneal Nos. 1998-102 and 103: Dear Mr. Chairman: In accordance with the request of the Board, the applicant has conducted further research with reference to chronology of events surrounding site plan review approval and the ultimate obtaining of the State DPW curb cut approval, and the due diligence and good faith exercised by the prior owner in obtaining same. Based upon our review of additional information, we are reporting to you the following: • The initial variance in question, Variance No. 1990-40 became valid on August 29, 1990. The variance contained a specific condition that "prior to any construction, the petitioner shall have the approval of the Site Plan Review Committee." That request was made, not by the applicant, but at the request of the Building Inspector, Joseph DeLuz, by letter dated July 23, 1990. • On December 14, 1990, Site Plan Review No. 04-90 was approved, subject to two specific conditions: State DPW curb cut approval is required. 2. All previously agreed upon road improvements and traffic mitigation I 4 NUTTER. McCLENNEN & FISH. LLP Emmett Glynn, Chairman Zoning Board of Appeals December 11, 1998 Page 2 work must be completed before any certificate of occupancy will be issued." A copy of that site plan approval is attached here to as Exhibit A. • A review of correspondence by and between the Town of Barnstable, the Cape Cod. Commission and the Applicant at that time indicates that during summer and fall of 1990, this matter had been referred to the Cape Cod Commission as a discretionary referral and that based upon an agreement reached by and between the Town, the Commission and the applicant, the Commission declined to take jurisdiction of the project, but solely subject to the implementation of a traffic mitigation plan. The traffic mitigation plan involved the preparation of additional engineering plans and documents, a significant component of which was the curb cut in question. • On January 4, 1991 the applicants' representative forwarded to Robert Smith, District Highway Engineer, a copy of the Site Plan Review Approval and a request that the previous Curb Cut Permit (Curb Cut Permit - 7-23981) be amended. The owner further forwarded a copy of the proposed Traffic Mitigation Plan for approval by the State DPW. See Exhibit B. • On April 24, 1991 Mr. Smith responded to the request for modification with requests for further changes to the Plan. In addition, the Department of Public Works requested that a formal application for permit be filed with the State DPW. A copy of the correspondence to Mr. Jolly (owner's engineer) dated April 24, 1991 is attached hereto as Exhibit C. • On or about May 10, 1991 an application was filed by the owner seeking to modify the existing curb cut in accordance with the Traffic Mitigation Plan. See Exhibit D attached. • On or about July 3, 1991 the applicants' representatives delivered to Robert A. Smith revised plan complying with comments received from DPW on or about April 24 1991. A copy of that correspondence is attached hereto as Exhibit E. Review of that correspondence indicates that in addition to the additional work required by the unique nature of the Traffic Mitigation Plan negotiated between the Cape Cod Commission, the Town and the applicant, DPH was also reviewing the requested permit in conjunction with the permit for the Bell Tower Mall (Permit No. J-20378). • From discussions with the prior owner, it appears that the owner changed engineering firms in the late summer of 1991, and that additional revisions to the Plan were then NUTTER. McCLENNEN & FISH. LLP Emmett Glynn, Chairman Zoning Board of Appeals December 11, 1998 Page 3 made by Down Cape Engineering. Based upon information available from Down Cape Engineering, it appears that additional revisions to the Plan were made in February and April of 1992 to comport with comments from State DPW to implement the Traffic Mitigation Plan. Based upon the foregoing we believe that the owner of record at the time of the original variance proceeded diligently and in good faith to obtain the DPW curb cut permit, numerous requests for revisions were made by DPW and were responded to appropriately by the owner of record. Further, the unique nature of the traffic mitigation requirements agreed upon by and between the Cape Cod Commission, the Town and the applicant support the applicant's position that it could not exercise its rights pursuant to the variance pending receipt of the curb cut. More importantly, a review of this factual background confirms that the owner of record at the time had no practical way to determine when die curb cut permit would be received. Finally, we note again for the record the owner's immediate filing of a request for building permit upon receipt of the curb cut permitting in 1992. Finally, I enclose a copy of my correspondence to Assistant Town Attorney, Ruth Weil, outlining further research with regard to the Belfer standard discussed at the last meeting. Thank you for your consideration of the enclosed. V truly yours, atrick M. Butler PMB:kp Enclosures 557277-1 f EXHIBIT A Joseph D. DaLuz Bui4ding Commissioner Telephone: 790-6227 TOWN OF BARNBTAM BUILDING DEPARTMENT' TOWN OFFICE BUILDING HYANNIS, MASS. 02601 December 14 , 1990 Ms Arlene M. Wilson , President. A.M. Wilson Associates, Inc. 911 Main Street Osterville, MA 02655 Re: Site Plan Review Number 04-90 Swift Assembly Trust Project Route 28, Centerville (Your File 2.0454. 0 ) Dear Ms Wilson: The above referenced site Plan is approved contingent the following conditions: Upon 1 • State DPW curb-cut approval is required. 2. all previously agreed upon road mitigation improvements and traf work must be completed before any Certificate ofc Occupancy will be issued. Enclosed is a signed and stamped copy of your plan. Please notify this office when the work is begun and, upon completion of all work, submit the letter of. certification required by Section 4-7.8(7) of the Town of Barnstable Zoning Ordinances. Should you have any questions, please feel free to ca1I . Peace , l/t .�vsePh D. IDaL'uz Building Commissioner JDDrkm CC A11 Site Plan Review staff enclosure EXHIBIT B -)-03-1998 01: 11PM FROM A.M. WILSON ASSOC. Iu rrl�ce'ry r.w, A1 1.Willn j January 4, 1991 ' ' � • � � �ob�rt .Sni � �. Q:'iZ.tkict 'Highway Engirieer i assai�hd'setts: Department of Public °Works:::` r 2 `. :.Omme oulevard ` idlebora iA 02346 ' :. Plan of Prpjiosed Traffic :M ti atio ..n .. 3 n . bye' ,.M.. Wilson t. . ;. .'. ., Assaciate6.. h 059 d :e3 -3=9Q for:1 t1�e :'Con'struction of a Office .BuiXdiaq'on Rt:�. 28 Centerville::"(Across .from Bell..Tower Mall), ear., . `smith;:::, Ore: ..w-i rig''to ,.ycu: :our c1 ent.I.Sw' ;- a j. befiaYf''.of' �'Witt. As*s . j'`'�:'. rust :regadiiq� the :above. e noel' � ?3y;;I r' der$ pro:je6t-:`: .As :hated::'; uss l.k:.bavenpyrt s :.Letter :dated >7ecember 6 ...19`9:0.: . co ;Iosed� �:. tYie:: 'z�w�a 'of : a'rnstab' .`e':;h (• pY i as.':approved'..'a -n.Traf f is , �'ltgatort 'Plan!' '::as part` of the zv osed:: ` have ;P p. .pripyect: w. 1 ]:so,=en�clos'ed' a^:'co of: 'a Dice , : . $y arler °14; 19;�4. letter .P'roia: 'tYie �<�;..;...� ,� ';. ::! ,:�- I•.:. of 1 prcpo�e • ,.. :': . ff is ,'$a:rhstable ;'approving ,the� s 'te 'plan;:.f o'r .the ksia; ding;;'' : . • . } . ' r lease' ?"'4td , - that'`':.a Curb; ;cut_permit Pert. �7::. i; .�:• :5 ( .,�3'9'4..1:,) :doss ;I tevou 'ly' :been: : asued f;or :this ro:' i .. :3 p + "' ' The ,.only.`chaff " ri .die. g �raiut 'e approved 'szte::pian': ro tlie. : } :I ► x:eviousl. :a rove i .y pp d. pernut 'is: fine;.addzto2�.':of:=e`:' otnt 1' r oncre e;': sand''�et t] e" ?er be. (.. able I i;.. Y' gi nimg of :=trie.:drive. -<Vhd; ropose ,off ce co 1ex' ;is • 3: '(� < d: Ap. ,8i7<.s.-f andt;:based o .`: site -og.::.Tras 'orta o E :ire i e xY :tYle P: i. ri:: ers (:;Y;; 1;E -} a=dlboo=k: fir. rid' 'a. )': �esti�nated''a� at it. r. csed: I, e: P .ap f dd;:bu iri w 11 eherate a.'t 9., g otaL of '13 . trips. dura:ng';tbe.. iho urs:: . �rri receive a• v ,' :•, 5.f d ppro ah from.'ahe.;'Z'bWh of =B d� '��� `Comic s� cri �. is' a are zira `seekin our �a 'o ..9°`y` pPr .va1:'.of'�,.the " 11 t, j ra'f fc.Mt :at' {. g, io�i'� Flan.. arid: approval of 'an''�amenided� . ?1rb cut:' psr iit•; if :.necess Cry. 1 u �� t h t t�� e: r. �1. P: ll::'1�: ��e: R:. .;b :'co. f1,- 41.short]: to 'd' .s i 1 (' y: i cuss 'any :coident's ou ':ma. a: f �ori: t�ie . h ve .. I , i� �y i 'i .r +7' Y If t( LI'my,7,y�wyy ,;. IAX.:a20;'1856, I' ' j'.; y •ti. 1: J �t 1777 ((-Y. :Y:1 r_ '-03-1998 01:12PM FROM A.M. WILSON ASSOC. TO 7718079 P.04 i t •raffic .�aiti.gation lan.: Please do ? P not hesitate to call if� i ou, have: any questions. j ,espectfully, � `i ,' :.M; W,ISPgM :ASSOCIATES, 6C a l istop er i"Jo'YIyivy giiietr�g Ass;odiate c� SWi�ft Ass'emb'ly;'' Trust l . now oil �i nus r i•. . .I K 01 i' + i I - I „ 4 MOT, v' i - f, opals Gwzw +.i 1 t i^ f' , I'. .4 ft 9., 1 S 4 Y' rl' Ir f< �. , I + I ' r'• 3 TOE -I- it sj5pogy �3 1 is ,•Ir !)i •a ;•d i e: 1•r ^;\ 1 q'. 1 all; r1 :1• Y / , r .. 1 ). r t• I. 4 I. ,t• 't•: rl. :J� "I S i'. h tr 1' � 1 l, •f, i, a 1,• , I A.TAT Sy 0 XT in TV A i•. - r. , r `^r S: _r. into! l i' s AN A. S !Alto, .. 1. r :�•- ... 1 M l 1, •fir: 4: 1 .j d• :.1 OVA SAW .t.ryou, t. .1 :,t '1 .9'wo :i ... ,.q',•.;... .... Ste.:�.�,i_. i Y , :1 i 1 'a{y 'Y 6 1 1 7_. • EXHIBIT C -03-1998 01:16PM FROM A.M. WILSON ASSOC. TO 7718079 P.07 . �. �LJ fiax�m'z�r�zr o�✓�ue�' i%{�s�x�c6 i i P f ' DISTRICT #7 OFFICE 2 COMMERCE PARK BLVp., P.O.,80X ill M:IDDLEBORO, MA 02346-bill I April 24, ; 1997. st.opher;',P. Joll P,E., i 9.11 ;M i $t7rOet Ir 1: ;EnC1°os°ed �.`• 1S •Otix'i 1.` :.Y P ari: `for. the i; S eft' �1ss �b rust. oiite. .2.8` in :• pro ect.. C?r�ter�iille faith• .two Cot re ' =•�, 1 wed cti6hs :,tto •:be�'tade Sri:' '1`�ie' S0 f •control .raciu as- '. 1 00'. s gor. hei,.•Be11.act ; 'i'].1"efgectvely`�1oue `the ' t ��- oer i land!:': 'cl : away :Eros tie IS is ne'ceSsari in •a>r " :< the,:''tum':i ice. .. i d�.x• �to.:.�a� ems, desl°acid ;must :be .` . of :the. �. nium. Of tvo,.'feet`.fro 33�ne#'off; edgy. of the 'roadw I: m' the: .pro�,ected: foni� ay; his ill ..preven "errait mvtorst:s:i' htthg 'the :island . : :now logs 'f>. and °s :in; e rom:.,c�airiag g slaric��. �< d.'these ''+co. ies P c'f..the •tiiia� aP cc letied: 1. .:. lan. .and,'two. copies.':tQ.: as 'off€�.c e: . .... � .. . .f�� �SrocessYlg. A° ot ::also :b:e` zeiuIred`'for..tZs:;pra m$ da•'- . t}iew $ruder .ou y. Mat' icy:.at 3'l; this: office. •z f: ou ha e a stiozrs: ' t 5 rdi i ;t. Y. '£�• ny que i' rig. h '' Perk t.,A P13.datton.. . it 'Sinderelij f- Ro ert ,A. .Smt3i: trice 'H hw RLG% th 1 s 1 i EXHIBIT D 12-03-1998 01:09PM FROM A.M. WILSON ASSOC. TO 7718079 P.02 Gap !'=c ivas � l00 IL.°ilTl_a7fS: $03TC2f� H1l�S1C�3S'� Q�1?� ' 5-10 1991 Zy ,Robert Sma.th .Distziot;;!7::w..T.o. Box ill ' ! aid Ie ib MA 02346 Thomas M. :Shields ;I �p , .}� ,:a::.�G ppcf ,� 'C9 .aac•. .•:•e%.•.:•�wr••.S.r•••,►••1•�a••.i'yr.'rrL:a:'••..i.'cuoa�:.:.i.i•'�.'s• • i 115:' :'Rott6.:'2-8 C-Amte 11*4 HA Po rills mod :(•v.'exis M,.,:.:•;..- .....MI •1 f i.i. '•..`....• r....i i i,i i.''ii��:i el�'iKii i'iil�iSi .;•aa nn� • ' CC SSh�yy,b ap pp�� :s.�!:�.... ...s•..w•. ':�31,$ 8rld•.: @S Cri' D313 oil• . .(hut@ :ad:tack. '?roposed!sn:r affic:Miti a ion '?lan" b A:M::.W'i3s n Ass Y ; o ociates dated ,•w:•Il�:��i•w'�i�r.i';i��'r•..•�s.i'•••.•��'rir.•�..r'�j•i••.•v:y..:•.r.•r.•..'.•i ,r�i'isil..�:i'`,....�•i'�.:.•r!•�i•r!.ii'•.•�. ` 'in��...1..t�a1111io'4•�:<,i.��.!•�r•�,IJ��;.�w,V.•�•.•1,r.':i ••.•ii•�•••r.09•.••�.'�•;1•'i•-t i��C i�1.r�IN•r�•:•�1.1.•r1.� .:j•' w. '� �..:,'.i '•'•'I;.j,:. I'��,y'• •��`•:�'1�•:;e•�w•�isbw:4.ei.�i�•.:`�•1•w•�br�1.r:" - '+ ?l �1 �M. r.'•�i0'..y�A :.��.., ;��.:.rV'1•1• •0•• 46 ii: :1•. •!•••••;•••bj�,�1�i1•••:a'I.�•r'1.•1r•:•�.Ai�:..�'e7.• .. `,'��' ,.�. ::,, �.. • , • •�.,•�..r•�.•.a:L���iri�.i.'�'•�'�..��•�i'rri:iif,i:.w'� ��,i•.II•.,►•i•v:.i•r•'.!iii'w�•i':iri.�i1�...�.• . �'. ,<• �4�. �. .. is A 1 `i i ; .;Barb'to s b ' 1 .I' j b, a is .. I . �Q 1S5O Rau'texvi �y�.b� . C�nt� e;,:. : 02 _ 1 R S •::..:...�..�:'.�:.�. . .:... • ;: , ". �.•.,r�"..i" i �.r ,�j ++�� ,,ma�yy �.y-_ . •( 'I !Ili' 1 �`�I•� '1� . •%wms��` ;his";'a ;v ,��;` _ fib;.:� .,.',. �: .. f _40. I1 » „ ;� "f �,�+ri='a o�d�: ter.�d� :s�o• r•• .,.:r . :. . ... ..: `t EXHIBIT E .1998 01:18PM FROM A.M. WILSON ASSOC. TO 7718079 P.09 1 A.M.Wilson ' ;; As�ocia�es 1nCir. 7uly 3, 1991 F ILE obert: A. Smith;., P:E: assacYiusetts'be ar'tment, of '.Public :Works I, p . :Cptiuiter'.ce Park: Boulevard .;twfddlebor.or M a�tthew :Broderick . .. 1 £:, ' ;5w.i:£t. :Assei ' �rus't Pro 'ect .:.. Rt �' R . e- :2..8. : Centerville f i:.cation7 ta;.Ex stin :perms''d Acc,es iy s 'a{ ii . :Ella' Na. '2;:::Q45°h .0 l {;. f.. ) . ear' i� r•: 're ested. ri':i ;:.our; A r;i •i:- :,.:• .. .,.,(;; ;.�;.'? <, ,. ,..� .�. `24..;;� '1:9�'91. �'.letter: :;.�we.:Y�ave: e�y .:. . ., �� :r lead , i. ,. o.:c yes;: f.-;a Apg, fp• P�ez7n�;t �' •to. odity:the'"Lxist>ri er'itted•I acaes' 5 P.. s drives.:::t.q.;8e13 :.`Power Mall. ;; r• % ;.; ,pra 'o:sed .of f c:e c6- 'lax across •o ::tYie': P. Bel`1:::,Tawet. , .. r 'eriGlos�d:` y:. ;g o u'' ar' al. are: �-bc '. i .es' acre' �` dz �ram' :e stte he� ;•'`;e'rar.Zt`•�fer.."tYie •a ,gip �:8e11:.Tower�Ma� . stye 5' 5. -8�8''a nd�:th e ' e �':' �;� ':. ::.' :•• .'.. ;� for.' thdpr ro d,.. .. .':...::,'..:: :.' . '. ...:.. . :. . fiower°Mall:. ''J.. 3:9 :i :p-w s,; �e xsaed': i�n: c5,.'.9 '.89�:aA revi';ew of';� . !and seceit correspondeno s w" liq��s ;tiat t 'ermt;aor. tie' T1' Tows M 1' was. :r:: . gs r' al a zovd wi: 'at%on:o„p !.the `drive iirectl. across :.froid'•, t Ia I :\"r'L'3�1.L 1;1 acces� the::. •.ro os.ed�:of :8. .fa¢e�..�'c 'l:ex:: e , �:. o�iip had:�r r sous' Y P y, your: agf ce:' :slid.;4.6 k' w ` accord once.with' shot;, er�ii t the'.TcWri: .0. Barn` �i.<:;..?;: �:- ::,�,;: : :�• �: I . ���' abIe 'Sate: ` Committee ''aic>,:the' ataf ': ,af.alie e v' ew >; .,.,. Cape::�C'-' � :Caaiarssol7.�>:�itade�: n. e ' . r t�iisve' 'rev+ eti�i of this•;p j :.:: ro act'.and: conii iosie!d aFProual �•' `'f a siteplai based '.Qn Xev:i'sed' laris •includ •n tion p;. r�. p' .g.:i' ha`t :they. .I. ,eeed ari. acce#gable" ;tra•fftc,;mi.t ati:or :?; 'l'a c i r a. , � >The% ;en l.osiad' fan tiy�th several< revisions is what':;has-' e+vlo lve�d `t13�oi�gh`tb;is�. cot�dto �'; •of :loco si ,��:., 1 �ppro�ial:�.�•:our. - 3..iert<:Ya's .been� . • :re i're G •`.to':-�iod: fyi°.�t2e� access des2gn �.�ihic� :';�'wasir.. , rr' IG27ril+ ed rtiaen ' but .f.or h'c � •W i. h ��w' �o� '. ,..:, ._ om ```te' 'si � d` ' e,:.do .;ndt,:belYeae, an -A, 5Q8�:�428:74$P . . I F il46 4856- 1, 1 , 1. I� 1� .J ,7' ' 12-03-1998 01:20PN FROM A.M. WILSON ASSOC. TO 7718079 P.10 , � I 1 • i i b eharged. We would hope that you will give :dtze consideration to the extensive .time and m ' —which 'has been :. .e cpended to :develop 'a "traffic mitigation's plan for a 3.817 s;.f office building anticipated to generate 13 vehicles i during the peak hour. ;1 I ' you:;'have a'ny questions; 'please do: 'not :hesitate. :to call... :vary,truly .yours, . Aj. M ''.VILSON` ASSOCIATES, .INC. {: 'Cfiristophe3� P.' :3o'ily; P.E. at csiat S�3c ./ p' i t:j 1 ai' i' .. : I '•, : , i .r...5 rf. .I ;5 'Y.V t 11i <I _ 5 , 3 f I. i r 1 :k• : 3. 'S^ l , I "I i. t �r '4 Y _ ,r l: r•. 1 „ r •'i 1 TOTAL P.10 +rt� LEGAL DEPARTMENT, TOWN OF BARNSTABLE OFFICE OF TOWN ATTORNEY Q Inter-Office Memorandum DEC I t DATE: DECEMBER 11, 1998 TOWN OF BARNSTABLE !)F APPEALS TO: ZONING BOARD OF APPEALS FROM: ROBERT D. SMITH, TOWN ATTORNEY RUTH J. WEIL, ASST. TOWN ATTORNEY RE: QUESTION AS TO WHETHER THE ONE-YEAR PERIOD FOR EXERCISING A VARIANCE UNDER G.L. C. 40A, §10, IS TOLLED BY THE VARIANCE-HOLDER'S INABILITY TO FULLFIL A CONDITION CONTAINED IN THE VARIANCE. OUR FILE REF: #98-0141 ----------------------------------------------------------------------------------------------------------- With regard to a petition for modification of a variance which is pending before you in the case of Morin, Appeal No. 98-101, we have been asked to advise the Board whether the provision of G.L. c. 40A, §10, which states that a variance lapses if not exercised within a year, is tolled under circumstances where the property-owner asserts that he was unable to exercise the variance because of an inability to fulfill a condition contained in the variance. FACTS. The pertinent facts of the case, as presented to us, are as follows: By decision dated August 30, 1990, Thomas Shields, Trustee, received a variance which varied certain bulk requirements to permit the construction of an office building on property located at 1597 Falmouth Road (Route 28) Centerville. The then-Building Commissioner granted Mr. Shields' request to 98-0141/zbamemo 1 allow him to apply to the Zoning Board of Appeals before obtaining Site Plan review, with the proviso that if the Board issued a favorable decision, Mr. Shields would be required to obtain the approval from the Site Plan Review Committee of his final engineered plans. (See letter of Building Commissioner Joseph D. DaLuz dated July 23, 1990, attached to petitioner's September 9, 1998 letter to the Board as attachment "C"). Accordingly, when the Zoning Board of Appeals granted a variance, it included a condition that "[p]rior to any construction, the petitioner shall have the approval of the Site Plan Review Committee." (There is no indication from the information provided whether the variance has been recorded). By letter dated December 14, 1990, the Site Plan was approved subject to the following conditions: 1. State DPW curb-cut approval is required. 2. All previously agreed upon road improvements and traffic mitigation work must be completed before any Certificate of Occupancy will be issued. (See letter of Building Commissioner Joseph D. DaLuz dated December 14, 1990, attached to petitioner's September 9, 1998 letter to the Board as attachment "D"). The petitioner represents that based upon complexities in the curb-cut application, which the petitioner asserts were impacted by a discretionary referral to the Cape Cod Commission, which referral was not accepted, the state DPW did not issue final approval of the permit until May 21, 1992. On June 2, 1992, an application for a building permit was filed. 98-0141/zbamemo 2 r DISCUSSION. The last paragraph of G.L. c. 40A, s 10, as amended by St.1977, c. 829, s 4B, provides that "(i)f the rights authorized by a variance are not exercised within one year of the date of grant of such variance they shall lapse, and may be reestablished only after notice and a new hearing pursuant to this section; provided, however, that the permit granting authority in its discretion and upon written application by the grantee of such rights may extend the time for exercise of such rights for a period not to exceed six months; and provided, further, that the application for such extension is filed with such permit granting authority prior to the expiration of such one year period." This provision represents an amendment to the language contained in the Zoning Act prior to the adoption of Chapter 808 which allowed the Board to impose "...limitations both of time and use..." (former G.L. c. 40A, s. 15) but did not contain its own "lapse" provision. The interpretation of the language "(i)f the rights authorized by a variance are not exercised within one year of the date of grant of such variance they shall lapse" and the legislative history of the change which led to the inclusion of the provisions was extensively reviewed by the Appeals Court in Hunters Brook Realty Corp. v. Zoning Bd. of Appeals of Boume 14 Mass. App. Ct. 76 (1982).' The Court, in construing the text in accordance with their common usage, noted 1 Although the primary issue in Hunters Brook Realty Corp. v. Zoning Bd. of Appeals of Boume was whether at a hearing to reestablish lapsed rights granted by a previous variance the applicant is faced with the burden of again proving compliance with the statutory variance criteria set forth in G.L. c.40A, s. 10,the Court's lengthy and thoughtful analysis of the language in G. L.40A,§10 regarding the lapse provisions is certainly germane to the issue currently before the Board. 98-0141/zbamemo 3 that"[t]he word 'shall,' used with reference to the lapse, ordinarily connotes an imperative obligation" Id at 80. Further, the Court opined that "[b]y ordinary lay definitions, the word 'lapse' means 'to become void or ineffective,' American Heritage Dictionary 737 (1976), or to 'lose, forfeit ... (or) nullify.' Websters Third New Intl. Dictionary 1272 (1971). Its legal definition signifies a 'termination or failure of a right or privilege through neglect to exercise it within some limit of time, or through failure of some contingency.' Black's Law Dictionary 792 (5th ed. 1979)." Id at 80. The Court went on to conclude that "[b]ased on these simple and straightforward definitions, the words used in the last paragraph of §10, read in context with the rest of the statute, convey the clear impression that variance rights which are not seasonably exercised will automatically become void; that the holder of a lapsed variance who seeks to reestablish his rights must initiate a new proceeding under s 10; that he must therefore make a new showing of the requirements set out in the first paragraph of that statute; and that it is for the board, as before, to decide the matter in the exercise of its discretion." Id. at 80-81 (citations omitted). After so holding the Court went on to review the legislative history of the amendment which revealed that the Legislature's intention in including the one year lapse provision was to curb the perceived widespread abuses of the variance power. Id at 81-83. "The lapse provision, voiding variances not used in a relatively short time period, is an expression of that policy." Lopes v. Board of Appeals of Fairhaven, 27 Mass. App. Ct. 754, 756 (1989). 98-0141/zbamemo 4 • x } Since the adoption above-cited amendments, we have found no reported cases under G.L. c. 40A, §10 that have held that the purported inability to exercise one's rights under a variance, tolls the one year statute of limitations. The petitioner, however, relies upon several cases, which were decided under different statutes and ordinances, for that proposition. Belfer v. Building Commissioner of Boston, 373 Mass. 439 (1973), is a case cited by the petitioner involving the Boston Zoning Act, which Act contained a provision stating that a variance lapsed and became null and void if the rights thereunder were not exercised within two years of the grant. After Belfer was granted a variance, abutters appealed to the Superior Court. As the two year period drew near, Belfer was advised by the Building Commissioner that if the two year period for exercising the variance expired during the pendency of the litigation, he would not grant a building permit. Thereupon, Belfer filed a separate action for declaratory relief wherein the Court concluded that unless an appeal tolled the time period for exercising a variance, many variances would be rendered meaningless. In Wood v. Newton, 351 Mass. 98 (1966), another case relied upon by the petitioner, the Court, in interpreting an ordinance which allowed the Board of Alderman, the permit-granting authority, to extend the time for exercise of an exception (read special permit), held that the extension granted by the Board was reasonable in light of the fact that the reason for the failure to exercise rights under the ordinance was delayed due to the filing of an appeal and an injunction. 98-0141/zbamemo 5 Moreover, the petitioner's reliance upon Smith v. Board of Appeals of Brookline, 366 Mass. 197 (1974), which case also pre-dated St. 1975, c. 808, for the broad proposition that the statutory time limitation imposed upon the exercise of any form of zoning relief or protection, must be tolled as long is there any real practical impediment to its exercise, is also clearly misplaced. Smith involved the question of whether a property-owner had timely exercised rights under a building permit in order to obtain the protection of G.L.. c. 40A, §11, which was the provision in effect at the time which shielded a property owner against a change in zoning, as long as he obtained a building permit before the notice of hearing before the planning board and exercised the building permit within six months of its issuance. In holding that the property-owner had not timely exercised his rights, the Court also rejected the contention that previous litigation, involving the same property, tolled the six month statutory exercise period based upon the fact that the property-owner had dismissed litigation. The sole discussion in this section of the case, as in Belfer, related to the issue of whether pending litigation tolled the six month time limitation to exercise a building permit contained in G.L. c. 40A, §11. To extrapolate a mandatory rule that any time there is a real impediment to the exercise of any form of zoning relief, the time for exercise is tolled from dicta (a non-controlling discussion in a case by the Court) in Smith, without reference to the plain language of G.L. c. 40A, §10, defies basic principles of statutory construction.2 2 Similarly,Pasqualino v.Board of Appeals of Wareham, 14 Mass.App.989(1982), relied upon by petitioner, is not relevant to the issue of the lapse of a variance under G.L. c.40A,§10;The portion of the 98-0141/zbamemo 6 1 The petitioner acknowledges that In Hunters Brook Realty Corp. v. Zoning Bd. of Appeals of Bourne, the Court notes that "[n]o question has been raised as to the determination of the one year period. The parties apparently take the position that the period was tolled during the pendency of the action brought by the planning board. See Belfer v. Building Commr. of Boston, 363 Mass. 439, 444-445, 294 N.E.2d 857 (1973). See also Woods v. Newton, 351 Mass. 98, 104, 217 N.E.2d 728 (1966); Cape Ann Land Dev. Corp. v. Gloucester, 371 Mass. 19, 23 n.5, 353 N.E.2d 645 (1976); M. DeMatteo Constr. Co. v. Board of Appeals of Hingham, 3 Mass. App. Ct. 446, 458, 334 N.E.2d 51 (1975)." 14 Mass. App. Ct. 76, 78, fn. 4. Interestingly, the Court did not specifically rule that the position taken by the parties was correct. However, the Court's language suggests that, at best, the pendency of an appeal provides a very narrow exception to the otherwise automatic voiding of a variance if not exercised within one year. While Belfer may provide authority for the general proposition that during the pendency of an appeal of a variance, the time for the exercising rights under a variance is tolled, in light of the plain language of G.L. c. 40A, §10, it does not necessarily follow that any purported impediment to the exercise of a variance results in the indefinite tolling of the mandatory one-year variance exercise Pasqualino case cited by the petitioner, involved the issue of whether the then applicable seven year subdivision plan protection under G.L.40A,s.6 was extended. The petitioner relies on the statement that"[t]he seven year period under the present G.L. c.40A,§6 may be tolled if litigation,appeals or actions of public officials make the legality of construction or plans so questionable as to impede work on the completion of the project." However,this language appears to refer to the specific provisions under Section 6 vis a vis plan freezes which extend the seven year freeze time period for the length of any 98-0141/zbamemo 7 f period. This is particularly true based upon the facts of this case where the property-owner specifically requested that site plan review be delayed until after the case was decided by the Zoning Board of Appeals. Now the current property-owner is claiming that the condition subsequent imposed by the site plan review committee had created an impediment to the exercise of the variance. However, the onus was on the property-owner to appeal a condition which he believed was legally untenable or may adversely affect his rights. See generally Klein v. Planning Board of Wrentham, 31 Mass.App.Ct. 777 (1992). In sum, to date, there have been no cases interpreting the provisions of G.L. c. 40A, §10 which have held that the inability to satisfy a condition of a variance automatically tolls the running of the one-year period.' We trust that this is responsive to your inquiry. appeal or for the time period during which a moratorium is in effect. It is important to note that the Court specifically questions the applicability of estoppel to a municipality. 3 As noted above, pursuant to G.L. c.40A, §10,the permit granting authority in its discretion and upon written application by the grantee of such rights may extend the time for exercise of the variance for a period not to exceed six months provided,that the application for such extension is filed prior to the expiration of such one year period 98-0141/zbamemo 8 f 316 N.E.2d 501, 366 Mass. 197, Smith v. Board of Appeals of Brookline, (Mass. 1974) Page 1 *501 316 N.E.2d 501 such a permit for the building as to come under statute permitting the construction of a 366 Mass. 197 nonconforming building if construction is pursuant to a permit issued before notice of hearing on zoning Stewart J.SMITH amendments and if construction under such permit is V. begun within six months after its issuance, the BOARD OF APPEALS OF BROOKLINE et al. record supported trial judge's finding that no construction work was commenced within six Supreme Judicial Court of Massachusetts, Norfolk. months of the permit's issuance; moreover, even Argued May 13, 1974. upon the view of the evidence most favorable to the Decided Aug. 28, 1974. builder, the most that occurred prior to December 15, 1971 was mere preliminary excavation. A bill in equity was filed challenging board of M.G.L.A. c. 40A§ 11. appeals' denial of plaintiff's appeal from the granting of a building permit. The Superior Court, 2• APPEAL AND ERROR C�.�987(1) Abrams, J., entered a final decree annulling the 30 ---- board's decision, and the board, owner, and builder 30XVI Review brought an appeal. The Supreme Judicial Court, 30XVI(I) Questions of Fact, Verdicts, and Reardon, J., held that (1) even assuming, arguendo, Findings that building commissioner's letter of June 15, 1971 30XVI(I)1 In General was in fact such a permit for the building as to come 30k987 Power and Duty to Review under statute permitting the construction of a Ineneral. ge neral. nonconforming building if the construction is pursuant to a permit issued before notice of hearing [See headnote text below] on zoning amendments and if construction under 2 APPEAL AND ERROR <. 1008.1(6) such permit is begun within six months after its �30 ---- issuance, the record supported trial judge's finding 30XVI Review that no construction work was commenced within 30XVI(I) Questions of Fact, Verdicts, and six months of the permit's issuance; moreover, even Findings upon the view of the evidence most favorable to the 30XVI(I)3 Findings of Court builder, the most that occurred prior to December 30k1008 Conclusiveness in General 15, 1971 was mere preliminary excavation, and (2) 30k1008.1 In General the statutory six-month period in which 30k1008.1(6) Plainly or palpably wrong nonconforming construction must begin was not findings. tolled in the instant case, despite the claim of owner Mass. 1974. and builder that 'real practical impediments' to Supreme Judicial Court has the duty to examine starting construction prevented them from taking the evidence and make its own judgment upon it, but advantage of the six-month period. it is to accord due weight to the trial judge's findings and will not reverse them unless they are plainly Decree affirmed. wrong. 1. ZONING AND PLANNING tgzP645 3. ZONING AND PLANNING (&=467 414 ---- 414 ---- 414X Judicial Review or Relief 414VIII Permits, Certificates and Approvals 414X(C) Scope of Review 414VIII(D)Effect of Determination; Revocation 414X(C)2 Additional Proofs and Trial De 414k467 Duration of rights. Novo Mass. 1974. 414k644 Weight and Sufficiency of Statutory six-month period in which Evidence in General nonconforming construction, pursuant to a building 414645 Permissions or certificates. permit issued before notice of hearing on zoning Mass. 1974. bylaw amendments, had to begin was not tolled in Even assuming, arguendo, that building the instant case, despite the claim of owner and commissioner's letter of June 15, 1971 was in fact builder that "real practical impediments" to starting Copyright(c)West Group 1998 No claim to original U.S. Govt. works 316 N.E.2d 501, 366 Mass. 197, Smith v. Board of Appeals of Brookline, (Mass. 1974) Page 2 construction prevented them from taking advantage building located at 175 Freeman Street in Brookline. of the six-month period; in fact, the record showed It is agreed that the building does not conform to that there was never any impediment to the two new provisions of the town zoning by-law construction of the building which eventually concerning environmental design review and parking commenced since it in no way utilized special permit requirements. The defendants claim that which had been the subject of pending litigation. notwithstanding this nonconformance the building is protected under G.L. c. 40A, s 11, inserted by 4. ZONING AND PLANNING (=376 St.1954, c. 368, s 2, since it was constructed 414 ---- pursuant to a 'permit issued . . . before notice of 414VIII Permits, Certificates and Approvals hearing before the planning board . . . (on the 414VIII(A) In General amendments to the zoning by-law adding the 414075 Right to Permission, and Discretion relevant provisions and) construction work under 414076 Change of regulations as affecting such a permit . . (was) commenced within six right. months after its issue, and the work . . . (proceeded) Mass. 1974. in good faith continuously to completion . . ..' The Statute permitting nonconforming construction notice of the hearing before the planning board was pursuant to a building permit issued before notice of given on October 14, 1971. The date on which the hearing on zoning amendments, provided the building permit was issued is in dispute. construction is begun within six months after permit's issue, should be interpreted so as to afford In outline, the relevant sequence of events was as protection from zoning changes to good-faith holders follows. On December 2, 1968, the board granted of building permits taken out before the first zoning to the owner's predecessor a special permit allowing notice who proceed with some diligence to build construction of an apartment building (different in under such permits. M.G.L.A. c. 40A§ 11. dimension and design from the one which was eventually built) which did not conform to the height *502 Kenneth H. Zimble, Boston, for James, D. and floor area ratio requirements of the zoning by- Pratt. law. On November 2, 1970, the then owner filed an application for a building permit for an apartment David, M. Roseman, Boston, for the Board of building based on plans which took advantage of the Appeals of Brookline. 'bonuses' (dimensional variations from the zoning by-law) of the 1968 special permit. On November Rudolph Kass, Boston, for the Brookline Housing 9, 1970, a suit was instituted challenging the 1968 Associates. special permit. On January 28, 1971, the building commissioner responded to the permit application in Lawrence D. Shubow, Boston, for plaintiff. a letter which, under authority of s 207d of the Brookline building code, gave permission 'for Before TAURO, C.J., and REARDON, excavation, footings and the erection of foundation HENNESSEY, KAPLAN and WILKINS, JJ. forms,' and which noted that upon verification of the location of the foundation and compliance with the REARDON, Justice. zoning by-law and building code 'a permit may issue for completion.' Section 207d provides for issuance A final decree was entered in the Superior Court of 'excavation permits' under which the holder annulling a decision of the board of appeals of 'shall proceed at his own risk and without assurance Brookline (board) which had denied the plaintiff's that a permit for the super-structure will be appeal from the granting of a building permit by the granted.' On June 15, 1971, the commissioner building commissioner of Brookline. The board, the wrote a practically identical letter noting it was 'an Brookline Housing Associates (the owner), and answer to the request of June 11, 1971 for the James D. Pratt (FN1) brought this appeal. The trial extension of the excavation permit.' In August, judge made findings of fact, rulings of law, an order 1971, at roughly the same time as the transfer to the for decree, and a report of material facts. The present owners, new plans were submitted to the evidence is reported. chief building plan examiner and building inspector of Brookline. These plans were *503 for the The building which is the subject of this dispute building upon which construction was eventually was planned as a nine-story, 411 unit apartment begun and did not take advantage of the 1968 special Copyright(c)West Group 1998 No claim to original U.S. Govt. works 4 . 31'6 N.E.2d 501, 366 Mass. 197, Smith v. Board of Appeals of Brookline, (Mass. 1974) Page 3 permit provisions. After reviewing these plans the and to make our own judgment upon it. But we are building inspector gave oral permission to proceed to accord due weight to the trial judge's findings and with construction. On October 14, 1971, notice was will not reverse them unless they are plainly wrong. given of a hearing before the planning board on the Allen v. Moushegian, 320 Mass. 746, 752, 71 proposed new zoning provisions. On October 20, N.E.2d 393 (1947); Richmond Bros., Inc. v. 1971, another application for a building permit was Westinghouse Bdcst. Co., Inc., 357 Mass. 106, 109, filed based on the new plans. On the same day the 256 N.E.2d 304 (1970). On the evidence, we commissioner issued another letter substantially cannot say that the judge was plainly wrong in her identical to those of January 28, 1971, and June 15, finding as to the date upon which construction 1971. On December 13, 1971, the commissioner began. replied to a December 9, 1971, request for a six month's extension of the permit. Instead he stated Moreover, even upon the view of the evidence that 'the time of starting this project may be most favorable to the defendants, the most that extended for a period of 90 days from this date.' occurred prior to December 15, 1971, was On May 26, 1972, the building commissioner wrote preliminary excavation. There is question whether a letter in which he stated that he had granted a this amounts to the commencement of construction permit to construct the apartment building. On the called for by the statute. Not every expenditure of same date he signed the reverse side of the October, 'time, effort and money' is enough to qualify as 1971, permit application under the heading, 'Permit construction which is to be distinguished from Granted.' On June 2, 1972, the building department 'demolition and site preparation.' Alexander v. sent notice of the application to other municipal Building Inspector of Provincetown, 350 Mass. 370, departments. 374--375, *504. 214 N.E.2d 876 (1966). See Murphy v. Selectmen of Manchester, --- Mass.App. [1] [2] For the building to have the protection of ---, ---, (FNa) 298 N.E.2d 885 (1973). However, G.L. c. 40A, s 11. it must appear that a permit was because of the judge's findings we need not consider issued prior to October 14, 1971, and that exactly when preparation ends and construction construction under that permit commenced within begins. six months of its issuance. There is serious question, given the course of events described, [3] The defendants argue that the statutory six- whether either the letter of January 28, 1971, or the months' period in which construction must begin letter of June 15, 1971, each issued under authority should be tolled in this case because 'real practical of s 207d, was the type of permit contemplated by impediments' to starting construction prevented the statute. (FN2) However, we need not decide them from taking advantage of the six-months' either whether such excavation permits were period. Belfer v. Building Commr. of Boston, --- sufficient to win the protection of the statute or Mass. ---, ---, (FNb) 294 N.E.2d 857 (1973). They whether the subsequent submission of changed plans argue that the pendency of the challenge to the 1968 and new permit application indicate that these special permit and the possibility that the deviations permits were abandoned. Even if we assume from the zoning law authorized by that permit would arguendo that the letter of June 15, 1971, was in fact be lost made it impracticable to start construction such a permit for the building as to come under until August, 1971, when the owner altered its plans G.L. c. 40A, s 11, no construction work was so as to conform to the zoning by-law without the commenced within six months of its issuance. The assistance of the zoning 'bonuses' of the special trial judge found "actual construction work' was not permit. It is agreed that construction began within commenced until after December 15, 1971.' She six months of August 5 and 13, 1971, when the new further found that there was no excavation work plans were submitted. The Belfer case, upon which before the middle of December. Only one witness the defendants rely, held that a zoning code testified that he observed excavation on the site prior provision which caused a variance to expire within to December 15, 1971, and the trial judge 'based two years if not used must be tolled while the upon . . . (her) observations of the witnesses and variance itself is the subject of an appeal. We held their testimony' found that the testimony was 'vague that there must be relief from such time limitations and not credible.' The documentary evidence on the so long as there are 'real practical impediments to matter was in conflict on this point but there was the use of a benefit.' Ibid. We think the reasoning sufficient evidence to support the judge's findings. of that case applies as well to the commencement of It is, of course, our duty to examine the evidence construction within the six months necessary for the Copyright(c)West Group 1998 No claim to original U.S. Govt. works 31'6 N.E.2d 501, 366 Mass. 197, Smith v. Board of Appeals of Brookline, (Mass. 1974) Page 4 protection of G.L. c. 40A, s 11. See Murphy v. See Alexander v. Building Inspector of Selectmen of Manchester, supra. But this does not Provincetown, 350 Mass. 370, 375--376, 214 mean that every inconvenience or risk may extend N.E.2d 876 (1966). Here the owner failed to act the relevant period. The period in the Belfer case under the permit in a manner which might have was tolled so that the plaintiffs might retain the given it that protection within the statutory period. benefit of their variance if the appeal resulted in a The owner thus falls outside the policy of the determination that it was properly granted. Ibid. statute, which must not be allowed to create 'a Likewise, if the owner here had successfully resisted permanent license to construct a building for a non- the challenge to the special permit and had then conforming use.' Papalia v. Inspector of Bldgs. of sought to construct the building under it according to Watertown, 351 Mass. 176, 179, 217 N.E.2d 911, the original plans, a strong claim for applying the 914 (1966). rule of the Belfer case would have been made out. But the record shows that the litigation was Decree affirmed. terminated by the owner who abandoned its special FN 1. James D. Pratt is the builder to whom the permit and substituted new plans. This means of building permit of May 26, 1972, was issued. terminating its difficulties was available to it from the very outset. The type of 'impediment' to which FN2. Nor could the submission of the new plans on reference was had in the Belfer case was not one August 5, and August 13, 1971, and their oral which the party seeking an exception to the statute approval constitute a permit. No application was had the power to remove at will. See Murphy v. filed, no fee was paid, and no document of any Selectmen of Manchester, supra, --- Mass.App. at kind was issued. See Brookline Building Code, ss ---, (FNc) 298 N.E.2d 885. Indeed, there was 206b and 207a. Viewed in context, it is clear that never any impediment to the construction of the none of the parties seriously intended this. It is building which eventually commenced since it in no inconceivable that such an informal procedure way utilized the special permit which was the could alone create the fixed expectations that the subject of litigation. statute was designed to protect. [4] General Laws c. 40A, s 11, should be FNa. Mass.App.Adv.Sh. (1973)485, 486. interpreted so as to afford protection from zoning changes to good faith holders of building permits FNb. Mass.Adv.Sh. (1973) 607, 612. taken out before the first zoning notice who proceed with some diligence to build under such permits. FNc. Mass.App.Adv.Sh. (1973) at 487. Copyright(c)West Group 1998 No claim to original U.S. Govt. works 440 N.E.2d 523, 14 Mass.App.Ct. 989, Pasqualino v. Board of Appeals of Wareham, (Mass.App.Ct. Page 1 1982) *523 440 N.E.2d 523 1. ZONING AND PLANNING (.'=593 414 ---- 14 Mass.App.Ct. 989 414X Judicial Review or Relief 414X(B) Proceedings Angelo PASQUALINO et al. 414k593 Dismissal. V. Mass.App. 1982. BOARD OF APPEALS OF WAREHAM et al. Where only notice sent of complaint seeking (FN1) judicial review of decision of town board of appeals Appeals Court of Massachusetts, was addressed to board, required notice could not be Plymouth. claimed to have been received by town clerk within required statutory period, and thus counts of Submitted May 7, 1982. complaint seeking review of board's denial of Decided Sept. 27, 1982. request for variance from minimum lot size requirements of town's zoning bylaw were properly Developers brought action for review of town dismissed. Rules Civ.Proc., Rule 12(b)(1), 43A board of appeals' denial of their request for a M.G.L.A.; M.G.L.A. c. 40A, § 17. variance from the minimum lot size requirements of the town's zoning bylaw and for declaratory 2. ZONING AND PLANNING (°=533 judgment that they were entitled to develop certain 414 ---- property within the town pursuant to a previously 4141X Variances or Exceptions approved subdivision plan. A Plymouth County trial 4141X(B) Proceedings and Determination court granted a motion to dismiss and entered 414k533 Application. judgment for the defendants, and plaintiffs appealed. Mass.App. 1982. The Appeals Court held that: (1) where only notice Where there was nothing in record that would sent of complaint seeking review of decision of permit conclusion that application for variance from board of appeals was addressed to board, required minimum lot size requirements of town's zoning notice could not be claimed to have been received by bylaw had been filed with town clerk in accordance town clerk within required statutory period; (2) in with requirements of statute so as to cause town absence of anything in record that would permit board of appeals' denial of request for variance to conclusion that plaintiffs' application had been filed fall outside 757day limit mandated by such with town clerk in accordance with requirements of provision, variance had not been "constructively" statute so as to cause board's.decision to fall outside granted by board as matter of law. M.G.L.A. c. 75-day limit mandated by such provision, variance 40A, § 15. was not "constructively" granted by board; (3) impediments which arose because of financial 3. ZONING AND PLANNING C-=191 difficulties experienced by developers did not 414 ---- warrant tolling of seven-year grace period of 414I1I Modification or Amendment statutory "freeze" on zoning amendments; and (4) 414III(B) Manner of Modifying or Amending town was not estopped from enforcing zoning 414k191 In general. bylaw. Mass.App. 1982. ` Seven-year "freeze" on zoning amendments under Judgment affirmed in part, modified in part and statute may be tolled if litigation, appeals or actions affirmed. by municipal officials make legality of construction or plans questionable so as to impede work on or 1. ZONING AND PLANNING C=588 completion of project. M.G.L.A. c. 40A, § 6. 414 ---- 414X Judicial Review or Relief 4. ZONING AND PLANNING (&=191 414X(B) Proceedings 414 ---- 414k588 Process or notice and appearance. 4141I1 Modification or Amendment 414III(B) Manner of Modifying or Amending [See headnote text below] 414k191 In general. Mass.App. 1982. Copyright(c)West Group 1998 No claim to original U.S. Govt. works I � iT 440 N.E.2d 523, 14 Mass.App.Ct. 989, Pasqualino v. Board of Appeals of Wareham, (Mass.App.Ct. Page 2 II i 1982) I Impediments which arose because of financial are entitled to develop certain property within the i difficulties experienced by developers had to be town pursuant to a previously approved subdivision characterized as personal and did not warrant tolling plan. The trial judge granted a motion to dismiss i I of seven-year grace period of statutory "freeze" on under 54-7554 (1974),iv and 1 entered anjudg 365 Mass. ment for the zoning amendments. M.G.L.A. c. 40A, § 6• defendants. The plaintiffs have appealed. i 5. ZONING AND PLANNING (&::1762 Counts 1 through 3: 414 ---- i 414XI Enforcement of Regulations 414XI(A) In General [1] The judge did not err in dismissing counts 1 through 3 of the complaint. The circumstances of 414k762 Defenses to enforcement. 41476p. 1982. this aspect of the case are controlled in all material Mass.ApIn absence of facts which would establish that respects by Costello v. Board of Appeals of developers reasonably relied on town's actions in Lexington, 3 Mass.App. 441, 442-445, 333 N.E.2d changing positions concerning development of land, 210 (1975), where this court construed G.L. c. 40A, i 21, the predecessor of the current § 17. A town was not estopped from enforcing zoning bylaw § to deny developers' request for variance from complaint seeking review in the Superior Court of a minimum lot size requirements of bylaw. decision of a board of appeals must be filed (with a copy of the complaint) with the appropriate town 6. ZONING AND PLANNING(&;=762 clerk within twenty days of such decision. G.L. c. 414 ---- 40A, § 17, as most recently amended by St.1978, c. 414XI Enforcement of Regulations 478, § 32. The plaintiffs cannot claim that the 414XI(A) In General required notice was received by the town clerk 414062 Defenses to enforcement. within the required statutory period, because the Mass.App. 1982. only notice sent was addressed to the board. In order for town to be estopped, under statute "Manifestly the purpose of the notice provision is j providing for land shown on subdivision plan to be not served within the time limited unless the notice governed by applicable provisions of zoning bylaw is received within the time limited." Costello v. Board of Appeals of Lexington, 3 Mass.App. at 443, in effect at time of first submission, from enforcing zoning bylaw to deny developers' request for 333 N.E.2d 210. The case of Twomey v. Board of variance from minimum lot size requirements of Appeals of Medford, 7 Mass.App. 770, 390 N.E.2d i bylaw, any actions on developers' part in alleged 272(1979), relied on by the plaintiffs, is of no avail, reliance on town's actions must have been taken as that case is entirely consistent with Costello. See with understanding that they were working under Twomey, supra 7 Mass.App. at 773, 390 N.E.2d constraints imposed by such statute and zoning 272. See also Marvin v. Board of Appeals of bylaw then in effect. M.G.L.A. c. 40A, § 6. Medfield, 5 Mass.App. 772, 359 N.E.2d 318 (1977) *524 John R. Walkey and Laura J. Goldin, Count 4: Boston, for plaintiffs. Joseph R. Grassia, Town Counsel, Wareham, and [2] The plaintiffs claim that they are entitled to a Alice M. Vogler, Boston, for defendants. variance on the ground that it had been granted as matter of law--"constructively" granted--by the Before GRANT, CUTTER and BROWN,JJ. board under the fifth paragraph of G.L. c. 40A, § 15 (as appearing in St.1975, c. 808, § 3)• See RESCRIPT. Rinaudo v. Zoning Bd. of Appeals of Plymouth, --- Mass. _--, Mass.Adv.Sh. (1981) 1244, 421 N.E.2d The plaintiffs brought an action in the Superior 439. We cannot agree, as there is nothing in the Court seeking review of the board's demo of lot�size theeir ord that plaintiffs'ould applcat on hadt the udge beenofiledcw�h the request for a variance from the minim town clerk in accordance requirements of the town's present zoning by-law o as odc requirements cause the board's and seeking a declaratory judgment stating that they G.L. c. 40A, , Copyright(c)West Group 1998 No claim to original U.S. Govt. works i ` 440 N.E.2d 523, 14 Mass.App.Ct. 989, Pasqualino v. Board of Appeals of Wareham, (Mass.App.Ct. Page 3 1982) decision of April 21, 1981, to fall outside the do not warrant a tolling of the seven-year grace seventy-five day limit mandated by that provision. period. See Papalia v. Inspector of Bldgs. of The plaintiffs' allegations in their complaint and Watertown, 351 Mass. 176, 179-180, 217 N.E.2d amended complaint that they filed their application 911 (1966); Smith v. Board of Appeals of for a variance on February 4, 1981, not only lacks Brookline, 366 Mass. 197, 201-202, 316 N.E.2d support in the record, but is not in accord with the 501 (1974); Murphy v. Selectmen of Manchester, 1 evidence. Mass.App.Ct. 407, 410-411, 298 N.E.2d 885 (1973). Counts 5 and 6: [5] [6] The plaintiffs' estoppel argument, apart [3) [4] The plaintiffs' claim that "real practical from the dubious nature of the assumption that a impediments" tolled the seven-year "freeze" on town may be estopped from enforcing its zoning by- zoning amendments under former G.L. c. 40A, § law, must fail for the reason, if no other, that there 7A, as now embodied in G.L. c. 40A, § 6; that are no facts alleged which would establish that the their plans for development vested prior to the plaintiffs reasonably relied on the town's actions in zoning changes; and that the town is estopped changing their positions concerning development of *525. from enforcing the zoning amendments. We the land. Furthermore, the plaintiffs' reliance on summarily reject those contentions. The seven-year G.L. c. 40A, § 6, fifth par., as the underlying period under the present G.L. c. 40A, § 6, may be principle of vested rights and estoppel is self- tolled if litigation, appeals or actions by municipal defeating, as any actions on their part in alleged officials make the legality of the construction or reliance on the town's actions must have been taken plans questionable so as to impede work on or with the understanding that they were working under completion of the project. Compare Woods v. the constraints imposed by that paragraph and the Newton, 351 Mass. 98, 103-104, 217 N.E.2d 728 zoning by-law then in effect. (1966); Belfer v. Building Commnr. of Boston, 363 Mass. 439, 442-445, 294 N.E.2d 857 (1973); Cape The judgment of dismissal is affirmed as to Counts Ann Development Corp. v. Gloucester, 371 Mass. 1-4; the judgment as to Counts 5 and 6 is to be 19, 23, 353 N.E.2d 645 (1976); M. DeMatteo modified to declare the rights of the parties in a Constr. Co. v. Board of Appeals of Hingham, 3 manner consistent with this opinion, and as so Mass.App.Ct. 446, 458, 334 N.E.2d 51 (1975). modified is affirmed. The impediments in this case, however, which arose because of financial difficulties experienced by the So ordered. developers, must be characterized as personal and FN1. The town of Wareham(town). Copyright(c)West Group 1998 No claim to original U.S. Govt. works j 294 N.E.2d 857, 363 Mass. 439, Belfer v. Building Com'r of Boston, (Mass. 1973) Page 1 *857 294 N.E.2d 857 414k549 Duration and revocation. Mass. 1973. 363 Mass. 439 Where zoning variances which were granted, as a practical matter, could not be used during pendency Arthur B.BELFER&others of appeal by persons claiming to be aggrieved by V. granting of variances and where appeal was not BUILDING COMMISSIONER OF BOSTON. collusively made for purpose of extending life of variances, filing of appeal from granting of Supreme Judicial Court of Massachusetts, Suffolk. variances tolled running of two-year period during Argued March 8, 1973. which variances had to be used. M.G.L.A. c. 231A Decided April 4, 1973. § 1 et seq.; St.1956, c. 665, § 11. Bill for declaratory relief brought in County Court, Peter Van. Robert F. Sylvia and Frederick F. Suffolk County, asking that court declare that filing Schauer, Boston, on brief for plaintiffs. of appeal from granting of zoning variances acted to stay two-year time limitation of city zoning code for Before TAURO, C.J., and REARDON, using variance. A single justice of the Supreme QUIRICO, HENNESSEY and KAPLAN, JJ. Judicial Court reserved and reported the matter without decision to the full court. The Supreme HENNESSEY, Justice. Judicial Court, Hennessey, J., held that where zoning variances which were granted, as a practical This is a bill for declaratory relief pursuant to matter, could not be used during pendency of appeal G.L. c. 231A brought in the county court. A single by persons claiming to be aggrieved by granting of justice of this court reserved and reported the matter variances and where appeal was not collusively without decision to the full court. The plaintiffs are made for purpose of extending life of variances, the general partners of Devonshire Associates, a filingof appeal from granting of variances tolled Massachusetts limited partnership. By direction of PP g g running of two-year period during which variances the single justice, Paul R. Devin, Domenic DeLuca had to be used. and Fidelity Management & Research Company, plaintiffs in a separate but related action pending in Remanded. the Superior Court, were ordered to file appearances as interveners.. 1. DECLARATORY JUDGMENT C=129 118A ---- We summarize the facts as agreed by the parties. 118AII Subjects of Declaratory Relief On March 10, 1970, the plaintiffs acquired title to 118AII(F) Ordinances certain premises located at 228--256 Washington 118Ak129 Zoning ordinances. Street, Boston (the locus). Prior to this, on March Mass. 1973. 21, 1969, Carol Management Company (Carol) filed Where plaintiffs, who brought bill for declaratory an application for a building permit relative to the relief, claimed that they had right to a building locus, with the knowledge and.approval of the permit despite lapse of two years between time when plaintiffs' predecessor in title to the locus. The variances to construct building were granted and application requested permission to erect a thirty- time when plaintiffs requested defendant to issue three story bilding. On March 24, *858 1969, the building permit consistent with variances and defendant denied the application for a building defendant denied this and expressed intention not to permit on the grounds that the building which Carol grant permit subsequent to two-year limitation for proposed to erect violated the provisions of the using variance even if variances granted were valid, Boston Zoning Code for a business district in respect there was an actual controversy presented by bill. to floor area ratio, parapet setback, and off-street M.G.L.A. c. 231A § 1; St.1956, c. 665, § 11. loading facilities. 2. ZONING AND PLANNING (9=549 Carol filed an appeal with the board of appeal of 414 ---- the city of Boston seeking variances from those 414IX Variances or Exceptions sections of the zoning code which the proposed 414IX(B) Proceedings and Determination building would violate. On September 22, 1970, the Copyright(c)West Group 1998 No claim to original U.S. Govt. works 294 N.E.2d 857, 363 Mass. 439, Belfer v. Building Com'r of Boston, (Mass. 1973) Page 2 board of appeal granted the variances and filed its permit. See School Comm. of Cambridge v. decision in the office of the defendant on September Superintendent of Schs. of Cambridge, 320 Mass. 29, 1970. Various persons claiming to be aggrieved 516, 518, 70 N.E.2d 298; New Bedford v. New by the granting of the variances filed an appeal Bedford, Woods Hole, Martha's Vineyard & under St. 1956, c. 665, s 11, in the Superior Court Nantucket S. S. Authy., 329 Mass. 243, 247, 107 sitting in Suffolk County. This zoning appeal N.E.2d 513. It is true that declaratory relief in this remains pending in the Superior Court. The case will *859 not terminate the dispute over the appellants in the zoning appeal are the interveners in validity of the variances, but it will terminate the the instant case, These interveners and the plaintiffs uncertainty of whether a building permit will issue if in the instant suit entered into a contract which the variances are adjudged valid in the suit involving provides for the dismissal of the zoning appeal upon them. Under his present position, the defendant will the happening of certain contingencies. not issue a permit even if the variances are held to be valid. See Travelers Ins. Co. v. Graye, 358 On September 22, 1972, the plaintiffs wrote to the Mass. 238, 240, 263 N.E.2d 442. defendant asking whether he would issue a building permit consistent with the variances granted if the [2] 2. As to the merits, the plaintiffs argue that application for the permit was made concurrently since the zoning variances, as a practical matter, with the dismissal of the zoning appeal, but could not be used during the pendency of the appeal subsequent to September 28, 1972. The defendant from the granting of the variances, the appeal tolled replied on September 26, 1972, that he would not the running of the two year period during which the issue a building permit consistent with the variances variances had to be used. Though the plaintiffs have granted, on the ground that the variances granted by brought no Massachusetts case in point to our the board of appeal would lapse and become null attention, they cite Tantimonaco v. Zoning Bd. of and void subsequent to September 28, 1972, Review of Johnston, 102 R.I. 594, 599--600, 232 pursuant to s 7--1 of the Boston Zoning Code. (FN1) A.2d 385, as supportive of their position. In that case, the court held that where the validity of a Section 7--1 of the Boston Zoning Code was building permit was the subject of litigation, the enacted pursuant to St.1956, c. 665, which in its local zoning ordinance providing for the expiration main features corresponds to G.L. c. 40A but of a permit if not acted upon within six months was applies to the city of Boston only. Section 7--1, as stayed during the litigation. The court relied on the set out in the margin, (FN2) provides in substance common sense practical consideration that the holder that variances from zoning regulations granted by of a permit under attack would be more reluctant to the board of appeal expire if not used within two incur obligations in using the permit than he years of the date the variance is filed in the office of otherwise would be. the building commissioner. Since the decision granting the variances in the instant case was filed The plaintiffs also argue that, by analogy, the case on September 29, 1970, the defendant would not of Woods v. Newton, 351 Mass. 98, 103--104, 217 issue a building permit after September 28, 1972. N.E.2d 728, supports their contention. In that case, Consequently, the plaintiffs brought this bill for a building permit had expired, the board of declaratory relief, asking that the court declare that aldermen gave no further extension and an the filing of the appeal in the Superior Court from injunction preventing construction on the locus was the granting of the variances by the board acted to in effect during litigation. We held that the board stay the two year time limitation of s 7--1 of the. could extend the permit since it was not Boston Zoning Code. unreasonable to allow an extension without a further public hearing and since the delay caused by [1] 1. That there is an actual controversy, as litigation and an injunction should not prejudice required by G.L. c. 231A, s 1, is clear. The parties who, as it turned out, had valid permits. plaintiffs claim they have a right to a building permit This result, however, turned on the interpretation of despite the lapse of two years. The defendant denies an ordinance expressly granting the city of Newton this and has expressed his intention not to grant a the right to extend the period of time for exercising permit subsequent to the two year limitation. It is rights under a building permit, and hence, while not necessary actually to apply for and be denied a helpful, is clearly distinguishable from the instant permit, as long as the granting authority has case. Moreover, in the Woods case, the holder of unequivocally stated that he will refuse to grant a the permit was legally unable to use it because of the Copyright(c) West Group 1998 No claim to original U.S. Govt. works i 294 N.E.2d 857, 363 Mass. 439, Belfer v. Building Com'r of Boston, (Mass. 1973) Page 3 outstanding injunction. In the instant case, although the appeal from the decision granting variances It can also be argued that, if an appeal tolls the created practical obstacles to their use, in that expiration date of a variance, a collusive and construction could proceed only at a legal risk nonadversary appeal can be used to toll the time caused by the appeal, the plaintiffs were entitled as limitation of a variance, perhaps to allow the owner of right to a building permit consistent with the more time to speculate on the value of the property variances for a period of two years. interest which is the subject of the variance. We are not faced with that issue in this case, because there The plaintiffs also analogize the instant case to is no suggestion that the Superior Court appeal here cases from other jurisdictions relating to the tolling is not bona fide. Nor do we suggest that the time of a statute of limitations pending an appeal. The limitation would necessarily be tolled during the rule the plaintiffs ask us to adopt is that stated in pendency of a collusive and nonadversary appeal. Dillon v. Board of Pension Commrs. of Los We observe also that the board of appeal, as a .Angeles, 18 Cal.2d 427, 431, 116 P.2d 37, 39. In defendant in the Superior Court, can press for an that case, where an administrative remedy prevented early trial and disposition of any appeal which the commencement of a civil action for a pension, appears to be collusive. In sum, we are not the court said: '(t)he running of the statute of persuaded that the argument concerning the limitations is suspended during any period in which possibility of collusive appeals is controlling here. the plaintiff is legally prevented from taking action to protect his rights' (emphasis added). We need We conclude that the relief from time limitations is the rule in the given in cases such as Woods v. Newton, 351 Mass. not de cide whether this Commonwealth, since even if it were, it does not 98, 217 N.E.2d 728, Supra, where a legal help the plaintiffs. As in the Woods case, Supra, impediment exists to the use of a benefit, should also this rule applies when the plaintiff is legally be given where can appeal from the granting of the prevented from acting. No such legal disability variance creates equally real practical impediments attended the circumstances in the instant case. to the use of a benefit. Otherwise a variance which was lawfully awarded can be frustrated by the delay Two other considerations can be argued in inherent in an appeal. Unless an appeal tolls the opposition to the plaintiffs' position. The first time period, many variances would be meaningless. argument arises out of St.1956, c. 665, s 11, which provides that parties who appeal to the Superior We hold that, in the instant case where there is no Court in Suffolk County from decisions of the board contention or showing that the appeal was of appeal must file a surety bond, approved by the collusively made for the purpose of extending the court, to indemnify and save harmless the person or life of the variance, the period, of limitations persons in whose favor the decision was rendered regarding the use of a variance set forth in s 7--1 of from all damages and costs which he or they may the Boston Zoning Code is tolled during the appeal sustain in case the decision of the board is affirmed. from the decision of the board granting the variance See. Begley v. Board of Appeal of Boston, 349 under St.1956, c. 665, s 11. Mass. 458, 460, 208 N.E.2d 799; McNeely *860. v. Board of Appeal of Boston, 358 Mass. 94, 106, 3. The case is remanded to the county court for the 261 N.E.2d 336. Thus it is urged that a person who entry of a decree consistent with this opinion. refrains from using a permit because of an appeal may recover secured damages including the value of So ordered. an expired variance. The argument is not FN1. Although it is not crucial to the issues of this convincing. Such damages in many instances would case, we observe that the defendant apparently was provide a poor substitute for the right of a person to in error by one day, even as to the position he build under a variance, without the risks inherent in asserted. a pending appeal. We have in mind here, also, that there are limits to the amount of the bond which the FN2. 'Section 7--1. Authorization for Variance. judge may properly order. See Damaskos v. Board As provided for in Section 9 of Chapter 665 of the of Appeal of Boston, 359 Mass. 55, 63--64, 267 Acts of 1956, as now in force or hereafter N.E.2d 897. BRODERICK V. BOARD OF amended, and subject to the provisions of Sections APPEAL OF BOSTON, MASS., 280 N.E.2D 670 7--2, 7--3 and 7-4, the Board of Appeal may, in a (FNA). specific case after public notice and hearing, grant Copyright(c)West Group 1998 No claim to original U.S. Govt. works f \Y 294 N.E.2d 857, 363 Mass. 439, Belfer v. Building Com'r of Boston, (Mass. 1973) Page 4 a variance from the terms of this code; provided, however, that such grant shall lapse and become null and void unless such variance is used within two years after the record of said Board's proceedings pertaining thereto is filed in the office of the Building Commissioner pursuant to Section 8 of said Chapter 665.' FNa. Mass.Adv.Sh. (1972) 633, 635. Copyright(c) West Group 1998 No claim to original U.S. Govt. works f " \ 436 N.E.2d 978, 14 Mass.App.Ct. 76, Hunters Brook Realty Corp. v. Zoning Bd. of Appeals of Page 1 Bourne, (Mass.App.Ct. 1982) *978 436 N.E.2d 978 2. ZONING AND PLANNING G=623 14 Mass.App.Ct. 76 414 ---- 414X Judicial Review or Relief HUNTERS BROOK REALTY CORPORATION 414X(C) Scope of Review V. 414X(C)l In General ZONING BOARD OF APPEALS OF BOURNE. 414k619 Matters of Discretion 414623 Variances or exceptions, Appeals Court of Massachusetts, Barnstable. decisions relating to. Argued April 21, 1982. Mass.App., 1982. Decided June 24, 1982. Discretion contemplated by variance power is vested in zoning board of appeals alone, and court The Barnstable Superior Court, Keating, J., ruled should not usurp such authority by substituting its that reestablishment of lapsed variance required only judgment for that of board. M.G.L.A. c. 40A, §§ 8 showing that conditions relating to grant of variance , 10, 15. had not changed materially since date of its original approval, and zoning board of appeals appealed. 3. ZONING AND PLANNING q=534 The Appeals Court, Greaney, J., held that holder of 414 ---- variance which has lapsed must show anew that he is 414IX Variances or Exceptions entitled to variance in order to reestablish it. 414IX(B) Proceedings and Determination 414534 Notice. Reversed. [See headnote text below] 1. ZONING AND PLANNING (8:;=534 414 ---- 3. ZONING AND PLANNING @�=547 414IX Variances or Exceptions 414 ---- 414IX(B) Proceedings and Determination 4141X Variances or Exceptions 414k534 Notice. 414IX(B) Proceedings and Determination 414k547 Rehearing or reconsideration; new [See headnote text below] application. Mass.App., 1982. 1. ZONING AND PLANNING G=547 Words used in statute providing for 414 ---- reestablishment of variance not exercised within one 414IX Variances or Exceptions year of grant only after notice and new hearing are 414IX(B) Proceedings and Determination to be construed according to their common and 414k547 Rehearing or reconsideration; new approved usage. M.G.L.A. c. 4, § 6; c. 40A, § 10 application. Mass.App., 1982. Reestablishment of lapsed variance requires new 4. ZONING AND PLANNING (8=549 showing which satisfies criterion for grant of 414 ---- variance set out in statute providing for 4141X Variances or Exceptions reestablishment of lapsed variance only after notice 414IX(B) Proceedings and Determination and new hearing. M.G.L.A. c. 40A, § 10. 414k549 Duration and revocation. Mass.App., 1982. 2. ZONING AND PLANNING C:=488 "Shall," used in statute with reference to lapse of 414 ---- variance rights which are not timely exercised, 414IX Variances or Exceptions ordinarily connotes imperative obligation. 414IX(A) In General M.G.L.A. c. 40A, § 10. 414488 Right to variance or exception, and discretion. 5. ZONING AND PLANNING C8=�549 414 ---- [See headnote text below] 414IX Variances or Exceptions Copyright(c) West Group 1998 No claim to original U.S. Govt. works 436 N.E.2d 978, 14 Mass.App.Ct. 76, Hunters Brook Realty Corp. v. Zoning Bd. of Appeals of Page 2 Bourne, (Mass.App.Ct. 1982) 414IX(B) Proceedings and Determination amended by St.1977, c. 829, s 4B, provides that 414549 Duration and revocation. "(i)f the rights authorized by a variance are not Mass.App., 1982. exercised within one year of the date of grant of "May," used in statute with reference to such variance they shall lapse, and may be reestablishment of variance rights which are not reestablished only after notice and a new hearing timely exercised, is customarily permissive term pursuant to this section." The issue in this case is which imports existence of discretion. M.G.L.A. c. whether the holder of a variance which has lapsed 40A, § 10. must show anew that he is entitled to the variance in order to reestablish it. We conclude that he must, 6. ZONING AND PLANNING <8;;1547 i.e., that the reestablishment of a lapsed variance 414 ---- requires a new showing which satisfies the criteria 414IX Variances or Exceptions for the grant of a variance set out in s 10. (FN1) 414IX(B) Proceedings and Determination Accordingly, we reverse a decision *980 of the 414k547 Rehearing or reconsideration; new Superior Court which held that the reestablishment application. of a lapsed variance requires only a showing that Mass.App., 1982. conditions relating to the grant of the variance have Words used in statute governing reestablishment of not changed materially since the date of its approval. variance rights that are not timely exercised, read in context with rest of statute, convey clear impression The case was presented on a statement of agreed that variance rights which are not seasonably facts and exhibits, from which we draw the exercised will automatically become void, that following summary. The plaintiff is the owner of holder of lapsed variance who seeks to reestablish 49.33 acres of land located in the town of Bourne. his rights must initiate new proceeding, that he must The plaintiff sought to construct on this land an open therefore make new showing of requirements set out space community consisting of a mixture of town in such statute, and that it is for zoning board of houses and cluster homes. The parcel, however, is appeals, as in prior application, to decide matter in located partly in a district zoned residential and exercise of its discretion. M.G.L.A. c. 40A, § 10. partly in a district zoned for scenic development. On February 15, 1977, the plaintiff filed with the 7. ZONING AND PLANNING C 547 Zoning Board of Appeals of Bourne (board), see 414 ---- G.L. c. 40A, ss 8, 10, 15, an application for 414IX Variances or Exceptions variances from town by-laws governing the intensity 414IX(B) Proceedings and Determination of use and dimensions of the parcel. (FN2) After 414k547 Rehearing or reconsideration; new appropriate notice and hearing, the board granted the requested variances by decision dated August 9, application. 1977. Mass.App., 1982. Dissenting members of zoning board of appeals Within the statutory appeal period, the planning were not required to state in detail all possible board of Bourne commenced an action in the factors which might have influenced their decision to Barnstable Superior Court challenging the grant of disapprove reinstatement of zoning variance which the variances. The parties ultimately settled that had not been exercised within one year of original action, and a "O)udgment by (a)greement" entered grant. M.G.L.A. c. 40A, § 10. on June 30, 1978. That judgment provided (a) that the plaintiff's request to construct 107 units was *979 Robert Sweeney Troy, Buzzards Bay, Town "deemed denied by withdrawal"; (b) that no new Counsel, for defendant. request for variance of the density requirements would be made by the plaintiff for a period of two Richard C. Anderson, Hyannis, for plaintiff. years; (c) that the variances granted by the board were "upheld"; and (d) that the plaintiff could Before GREANEY, CUTTER and DREBEN, JJ. proceed to develop the project subject to certain enumerated requirements. (FN3) The rights GREANEY, Justice. authorized by the variances were not exercised within one year of the entry of the judgment. (FN4) [1] The last paragraph of G1. c, 40A, s 10, as On July 5, 1979, the plaintiff filed with the board an Copyright(c)West Group 1998 No claim to original U.S. Govt. works ' 436 N.E.2d 978, 14 Mass.App.Ct. 76, Hunters Brook Realty Corp. v. Zoning Bd. of Appeals of Page 3 Bourne, (Mass.App.Ct. 1982) application which sought to reestablish the variances 310 Mass. 784, 786, 39 N.E.2d 636 (1942); Cline pursuant to G.L. c. 40A, s 10. On October 9, v. Cline, 329 Mass. 649, 652, 110 N.E.2d 123 1979, after proper notice and hearing, the board (1953); Turnpike Amusement Park, Inc. v. filed a decision with the town clerk denying that Licensing Commn. of Cambridge, 343 Mass. 435, application. (FN5) 437, 179 N.E.2d 322 (1962). By ordinary lay definitions, the word "lapse" means "to become void *981 [2] The plaintiff next commenced an action or ineffective," American Heritage Dictionary 737 in the Superior Court seeking to overturn the (1976), or to "lose, forfeit ... (or) nullify." board's decision. The case was heard on the same Websters Third New Intl. Dictionary 1272 (1971). record as is before us. The judge filed a Its legal definition *982 signifies a "termination or memorandum of decision in which he ruled that "at failure of a right or privilege through neglect to a hearing to reestablish lapsed rights granted by a exercise it within some limit of time, or through previous variance, an applicant is not faced with the failure of some contingency." Black's Law burden of again proving compliance with the Dictionary 792 (5th ed. 1979). In addition, the statutory variance criteria set forth in G.L. (c.) word "pursuant" is a "restrictive term" which means 40A, (s) 10." Based on that ruling, he framed the "in conformance to or agreement with." Id. at issue before the board as "whether, since the 1112. Based on these simple and straightforward granting of the variance, there has been a change in definitions, the words used in the last paragraph of s zoning ... (requirements or) in the nature or 10, read in context with the rest of the statute, character of the area, or whether other significant convey the clear impression that variance rights conditions or circumstances have developed" which are not seasonably exercised will (emphasis original), and further ruled that "the automatically become void; that the holder of a decision ... should be based only upon a lapsed variance who seeks to reestablish his rights consideration of such factors." Since the judge must initiate a new proceeding under s 10; that he found that "(n)o evidence was presented of any such must therefore make a new showing of the change," he concluded that the board's decision to requirements set out in the first paragraph of that deny relief was based on "legally untenable statute; and that it is for the board, as before, to grounds" and was "unreasonable and arbitrary." A decide the matter in the exercise of its discretion. judgment entered annulling the board's decision as See Pendergast v. Board of Appeals of Barnstable, in excess of its authority, and adjudging that "the 331 Mass. 555, 559-560, 120 N.E.2d 916 (1954). rights authorized by the variances granted to the We find nothing in the wording of s 10, or plaintiff ... by (the board's initial) decision ... are elsewhere in G.L. c. 40A, which logically supports reestablished. (FN6) an interpretation like that reached below. [3] [4] [5] [6] The words used in s 10 are to be Any doubt in the matter is put to rest by an construed according to their "common and approved examination of the statute's legislative history. usage." See G.L. c. 4, s 6; Commissioners of Pub. (FN7) See Worcester v. Quinn, 304 Mass. 276, Works v. Cities Serv. Oil Co., 308 Mass. 349, 281, 23 N.E.2d 463 (1939), and cases cited; 360, 32 N.E.2d 277 (1941); Board of Assessors of Aldoupolis v. Commonwealth, 386 Mass. 260, 264, Amherst v. State Tax Cmmmn., 357 Mass. 505, 435 N.E.2d 330 (1982). The new zoning enabling 507, 258 N.E.2d 539 (1970). The operative words act sought to eliminate problems which had arisen of the statute provide that variance rights which are under the old statute by providing "standardized not timely exercised "shall lapse, and may be procedures for the administration ... of municipal reestablished only after notice and a new hearing zoning laws." St.1975, c. 808, s 2A. One such pursuant to this section" (emphasis supplied). The problem had been the lack of any provision in the word "shall," used with reference to the lapse, prior G.L. c. 40A for the loss of variance rights by ordinarily connotes an imperative obligation, see a failure to exercise them, or by a delay in doing so. Johnson v. District Attorney for the No. Dist., 342 The Department of Community Affairs (DCA), Mass. 212, 215, 172 N.E.2d 703 (1961), while the which had been designated by the Legislature to word "may," used with reference to the investigate the need for a comprehensive revision of reestablishment, is customarily a permissive term G.L. c. 40A, (FN8) and to prepare a proposed which imports the existence of discretion, see revision, see 1970 House Doc. No. 6192; 1972 Brennan v. Board of Election Commrs. of Boston, House Doc. No. 5009 (initial draft report), No claim to on inal U.S. Govt. works Copyright c)West Group 1998 g ' 436 N.E.2d 978, 14 Mass.App.Ct. 76, Hunters Brook Realty Corp. v. Zoning Bd. of Appeals of Page 4 Bourne, (Mass.App.Ct. 1982) discussed the importance of this issue in its 1973 govern the reestablishment of a variance, so long as report to the House of Representatives. In that such rules were "not inconsistent with the ... report, the DCA sought to curb "the widespread purposes of(G.L. c. 40A)." Id. at 18. The change abuse of the variance granting power," see also 1972 was retained in several subsequent versions of the House Doc. No. 5009, at 65, through bill. See 1974 House Doc. No. 6480, at 15; 1975 "recommendations (which) reflect a common House Doc. No. 5457, at 16. Ultimately, however, concern and a common approach," and specifically the reference to ss 7 and 12 were struck, and the cited the recommended "provisions for lapse of reestablishment of a lapsed variance was tied variances" as an example of that approach. 1973 directly to the procedures regulating the grant of a House Doc. No. 6200, at 9. In a chapter entitled variance in the present s 10. 1975 House Doc. No. "Limitations on Variance Granting Power," the 5600, at 15. (FN10) The lapse provision was DCA report "concluded that there should be a time finally enacted in this form by St.1975, c. 808, s 3. limit in which a (holder) can take advantage of a See 1975 House Doc. Nos. 6849, 8060. granted variance ... in order to eliminate to some degree the current confusion regarding status of land It thus appears that the Legislature considered and within municipalities," and stressed that it was rejected language which could have left the criteria "giving priority" to a change in G.L. c. 40A "to for reestablishing a lapsed variance open to local specify conditions under which a variance may lapse definition and control. It chose instead to require ." Id. at 20. Based on this view, the report uniform regulation of the matter, thereby recommended legislation to amend the former s 15 implementing the "common approach" originally (which stated the requirements for the grant of a recommended by the DCA, by making variance) to provide that "(i)f a use to which a reestablishment dependent on the same criteria as variance is granted is not established on the premises required for the grant of any other variance under s within three years of such granting, the authorization 10. See generally Warren v. Board of Appeals of for such variance shall lapse and become void, and Amherst, --- Mass. ---, --- - ---, Mass.Adv.Sh. may be reestablished only after another public (1981) 522, 530-531, 416 N.E.2d 1382, and cases hearing and notice in accordance with ... (the cited. Based on this evidence, it seems clear that the former s 17)," which stated the procedure therefor. reestablishment of a lapsed variance was intended to Id. at 45. be predicated on a new showing of the requirements set out in that section. (FNI1) The DCA report and recommended legislation were referred to the House Committee on Urban [71 "The general and familiar rule is that a statute Affairs. See 1972 House Doc. No. 6001; 1973 must be interpreted according to the intent of the House Doc. Nos. 6035, 7072. That committee Legislature ascertained from all its words construed ultimately recommended a bill which included a by the ordinary and approved usage of the language, lapse provision virtually identical to that proposed considered in connection with the cause of its by the DCA, as *983 quoted above, except that the enactment, the mischief or imperfection to be period triggering a lapse was reduced from three remedied and the main object to be accomplished, to years to one year. See 1974 House Doc. No. 2522, the end that the purpose of its framers may be at 23 (third interim report). A subsequent version of effectuated." Industrial Fin. Corp. v. State Tax the bill deleted the words "and become void" from Commn., 367 Mass. 360, 364, 326 N.E.2d 1 (1975) the prior phrase "shall lapse and become void." , quoting from Hanlon v. Rollins, 286 Mass. 444, 1974 House Doc. No. 5864, at 16. (FN9) That 447, 190 N.E. 606 (1934). See also Labor bill also proposed that a lapsed variance be Relations Commn. v. Selectmen of Dracut, 374 reestablished 'only after notice and hearing pursuant Mass. 619, 624, 373 N.E.2d 1165 (1978). To to (ss 7 and 12)" of the proposed legislation. Ibid. accept the construction placed on the statute below Read in light of the specified sections, which would be to disregard these guidelines, and to ignore correspond substantially to those sections of the the fact that the Legislature has chosen a bright line present G.L. c. 40A, this revision was somewhat test to settle the question. (FN12) The *984. two ambiguous. Particularly in view of the language of members of the board were not required to state in s 12, the change suggested that individual boards detail all of the possible factors which might have could, through the exercise of their rule making influenced their decisions. See Cefalo v. Board of powers, fashion local discretionary standards to Appeal of Boston, 332 Mass. 178, 181, 124 N.E.2d Copyright(c) West Group 1998 No claim to original U.S. Govt. works 436 N.E.2d 978, 14 Mass.App.Ct. 76, Hunters Brook Realty Corp. v. Zoning Bd. of Appeals of Page 5 Bourne, (Mass.App.Ct. 1982) 247 (1955); Ferrante v. Board of Appeals of Northampton, 345 Mass. 158, 162, 186 N.E.2d 471 "If the rights authorized by a variance are not (1962). We conclude that the board applied the exercised within one year of the date of grant of proper legal standard and that its decision, reached, such variance they shall lapse, and may be in the exercise of its discretion, should not have reestablished only after notice and a new hearing been annulled. pursuant to this section." The judgment is reversed. A new judgment is to FN2. Under s 1310 of the town zoning by-law, the be entered which upholds the decision filed by the board consists of five members and two associate board on October 9, 1979. members. The five members of the board were present at the two public hearings held on the So ordered. plaintiff's application. In support of the variances FN 1. Read in its entirety, and as subsequently granted, the board's decision stated specific amended by St.1977, c. 829, s 4B, s 10 provides findings on each of the statutory elements as follows: "The permit granting authority shall enumerated in G.L. c. 40A, s 10. That decision have the power after public hearing for which was signed by four members of the board. The notice has been given by publication and posting as fifth member did not sign the decision. Under the provided in section eleven and by mailing to all fourth paragraph of G.L. c. 40A, s 15, the vote of parties in interest to grant upon appeal or upon four members was sufficient to grant the petition with respect to particular land or structures variances. a variance from the terms of the applicable ordinance or by-law where such permit granting FN3. Among other things, these requirements authority specifically finds that owing to limited development to thirty-five cluster single circumstances relating to the soil conditions, houses and sixty multifamily units, and provided shape, or topography of such land or structures for planning board approval of the site and and especially affecting such land or structures but subdivision plans. not affecting generally the zoning district in which it is located, a literal enforcement of the provisions FN4. No question has been raised as to the of the ordinance or by-law would involve determination of the one year period. The parties substantial hardship, financial or otherwise, to the apparently take the position that the period was petitioner or appellant, and that desirable relief tolled during the pendency of the action brought by may be granted without substantial detriment to the the planning board. See Belfer v. Building public good and without nullifying or substantially Commr. of Boston, 363 Mass. 439, 444-445, 294 derogating from the intent or purpose of such N.E.2d 857 (1973). See also Woods v. Newton, ordinance or by-law. Except where local 351 Mass. 98, 104, 217 N.E.2d 728 (1966); Cape ordinances or by-laws shall expressly permit Ann Land Dev. Corp. v. Gloucester, 371 Mass. variances for use, no variance may authorize a use 19, 23 n.5, 353 N.E.2d 645 (1976); M. DeMatteo or activity not otherwise permitted in the district in Constr. Co. v. Board of Appeals of Hingham, 3 which the land or structure is located; provided, Mass.App.Ct. 446, 458, 334 N.E.2d 51 (1975). however, that such variances properly granted prior to January first, nineteen hundred and FNS. The second application was heard by four of seventy-six but limited in time, may be extended the five members who had heard the original on the same terms and conditions that were in application, and one member who had not effect for such variance upon said effective date. participated in the initial decision. After repeating the findings made in the original decision, three "The permit granting authority may impose members voted to reestablish the variances because conditions, safeguards and limitations both of time that relief would "conform to, and recognize the and of use, including the continued existence of spirit of (the) (c)ourt (o)rder ... issued in 1978 in any particular structures but excluding any which these same variance(s) were upheld by the condition, safeguards or limitation based upon the court. The fourth member was the one who had continued ownership of the land or structures to not signed the original decision. He voted to deny which the variance pertains by the applicant, the plaintiff relief because the "conditions for a petitioner or any owner. variance were not met." The associate member Copyright(c)West Group 1998 No claim to original U.S. Govt. works 436 N.E.2d 978, 14 Mass.App.Ct. 76, Hunters Brook Realty Corp. v. Zoning Bd. of Appeals of Page 6 Bourne, (Mass.App.Ct. 1982) voted to deny relief because "the plan substantially of this case. derogated from the intent of the by-law." Under the fourth paragraph of G.L. c. 40A, s 15, two FN9. As noted above, the ordinary meaning of the dissenting votes on a five member board are word "lapse" is, of itself, "to become void." We sufficient to deny the relief sought. therefore attribute no special legislative intent to the deletion of this language beyond the removal of *984 FN6. After the appeal was docketed in this redundant words from the statute. court, the judge filed an amended memorandum of decision "nunc pro tunc" to the date on which the FN10. Although the language originally proposed original judgment was entered, in which he expressly required "another" public hearing and amplified his previous conclusions of law. The notice, 1973 House Doc. No. 6200; 1974 House judge stated that in ordering the board to grant the Doc. No. 2522, and that word had previously relief requested, he had relied upon the possibility been deleted, 1974 House Doc. No. 5864, we briefly discussed in Ferrante v. Board of Appeals think that the ultimate insertion of language of Northampton, 345 Mass. 158, 162, 186 N.E.2d requiring reestablishment "pursuant to this section 471 (1962) that: "Conceivably a decision of the (s 10)," 1975 House Doc. No. 5600, had the board might be held to be arbitrary when all the practical effect of restoring that language to the facts presented compelled a finding that each provision. requirement of (the former) s 15 had been satisfied, and the board failed to make any findings FN11. The specification of a definite time limit for to support its exercise of discretion in denying the the use of a variance, upon the expiration of which variance." However, as that opinion goes on to its holder is required to start anew before the note, "Such a case is not before us." Ibid. board, can be viewed as consistent with the Further, despite this discussion, the Ferrante case Legislature's policy of setting time limits on other applied and affirmed the settled rule that the uses and authorizations arising in connection with discretion contemplated by the variance power is land development under or pursuant to zoning and vested in the board alone, and that a court should planning laws. See G.L. c. 40A, s 6, as amended not usurp this authority by substituting its judgment by St.1979, c. 106. See also Healy, Massachusetts for that of the board. See id. at 161-162, 186 Zoning Practice Under the Amended Zoning N.E.2d 471; Pendergast v. Board of Appeals of Enabling Act, 64 Mass.L.Rev. 157, 158-160 Barnstable, 331 Mass. 555, 557-560, 120 N.E.2d (1970). 916 (1954). In view of our conclusion that the judgment must be reversed, we need not consider FN12. We therefore pass over the policy reasons any question raised by the judge's affirmative which might favor an interpretation like that order that the board grant the relief sought or reached below. Nor need we consider the whether the amended memorandum is properly plaintiff's argument that if the Legislature had before us. intended to relegate holders of lapsed variances to their original position, it would have ended the FN7. It would have advanced consideration of this final sentence of s 10 with the word "lapse." case substantially, both here and below, if the Based on the foregoing discussion, we think the parties had investigated and briefed the applicable phrase which follows that word was merely legislative history, consistent with their duty to intended to make clear that rights under a lapsed acquaint the court with the pertinent law. See variance may, in fact, be reestablished, and to Mass.R.A.P. 16(a)(4), as amended, 367 Mass. specify the procedure for doing so. Finally, it is 921 (1975). unnecessary to review cases from other jurisdictions relied upon below which have reached FN8. The DCA succeeded the "Advisory Committee different results in the absence of statute. Many of to Study and Report on the Zoning Law" appointed these cases are collected and discussed in 3 by the Legislature in 1967. See Res.1967, c. 141. Rathkopf, The Law of Zoning and Planning s The reports of this earlier committee, however, 38.06(2) (4th ed. 1981), and 6 Rohan, Zoning and contain nothing which sheds light on the resolution Land Use Controls s 43.03(4)(a) (1981). Copyright(c) West Group 1998 No claim to original U.S. Govt. works ,1 NUTTER, McCLENNEN & FISH, LLP ATTORNEYS AT LAW ROUTE 132-1513 IYANNOUGH ROAD P.O.BOX 1630 HYANNIS,MASSACHUSETTS 02601-1630 TELEPHONE:508 790-5400 FACSIMILE:S08 771-8079 o lnj DIRECT DIAL NUMBER �i DEC 19% (508) 790-5407 of BAhNS ABLE AP EP,�S December 11, 1998 #101858-3 ` Ruth Weil Assistant Town Attorney Town of Barnstable Barnstable Town Hall 367 Main Street Hyannis, MA 02601 Re: Appeals No, 1998-102 and 103 Dear Ruth: Thank you for the opportunity of providing you with additional information r concerning the above matter. I enclose for your information and review a copy of Section 5.2.2 (pages 194 and 195) of the Handbook of Massachusetts Land Lease and Planning Law, Mark Brobowski, 1993. In addition, I have had an opportunity to further review the case of Belfer vs. Building Commissioner of Boston, 362 Mass. 439. . The proposition that the time limitation _ in the exercise of a variance should be tolled while legal impediments to such exercise exist was first established in the Belfer case, 366 Mass. at 444. The Supreme Judicial Court concluded that the holder of a variance from the Boston Board of Appeals had been, for practical purposes, prevented from exercising its rights under the variance by virtue of an appeal by third parties as to the validity of the Board's grant of the variance. The SJC - specifically recognized (as properly stated in Brobowski) that unless the use period was tolled while the impediment existed, an otherwise lawfully authorized variance would be rendered meaningless. The specific standard established in Belfer was that relief for the time limitation and the use of a variance should be given where an appeal from the granting of the variance creates real practical impediments to the use of the benefit of the variance. Id. However, the SJC refined the standard a little over a year later in Smith vs. Board of Appeals of Brookline, 366 Mass. 167, 201 (1974), ruling that under Belfer relief should be granted so NUTTER. McCLENNEN & FISH. LLP Ruth Weil, Esquire December 11, 1998 Page 2 long as there is aM real practical impediment to the use of the variance. While a strict interpretation of the Belfer standard might limit its application to only legal actions contesting the validity of the benefit granted (i.e., Hunters Brook Realty Corp. vs. Zoning Board of Appeals of Bourne, 14 Mass. App. Ct. 76, 78 (fn. 4) (1982)) under the refined Belfer standard as further interpreted in Smith, it has been held that in addition to any litigation or appeals, any other action by municipal officials may also amount of a real practical impediment if the action impedes the benefit holder's use of the benefit. See Pasqualino vs. Board of Appeals of Wareham, 14 Mass. App. Ct. 1989, 1990 (1982) (copy enclosed). In point of fact, only in cases where the nature of the impediment is personal or unrelated to the use of the benefit previously granted by the Zoning Board of Appeals have the courts declined to recognize a real practical impediment and, correspondingly, not tolled the application use limitation period. Directly related to this issue is the unique nature of the requirements of site plan review and the concomitant requirement to obtain a DPW curb cut permit. I enclose for your information and review a copy of my correspondence to the Chairman of the Zoning Board of Appeals responding to a request for further information concerning the history of the DPW curb cut. As you will see, the site plan review condition associated with the DPW curb cut was directly related to the referral by the Town of Barnstable to the Cape Cod Commission, and the subsequent agreement by and between the own, the applicant and the Commission to provide a traffic mitigation plan. The enclosed summary indicates that the applicant acted in good faith and with due diligence to obtain the permit in accordance with the site plan conditions. I would be happy to provide you with any additional information or documentation that you may require. Thank you for your consideration.of the enclosed. ery urs trick M. Butler PMB:kp Enclosures cc: Zoning Board of Appeals 557006 12/09/1998 15:09 617-439-2679 NUTTER MCCLENNEN FIS PAGE 08 65.2.2 S. Vested Rights intendent of buildings may modify .a pelt if the builder "demonstrate[s]a good faith effort to comply with the applica- ble law"and the defects are remediable." Thy,modifications to correct errors made in good faith will be backdated to the original issuance. Carstensen does not,however,grant the same treatment to substantive modifications. There are gn� reported cases exploring the fine distinction between a substantive mod- ification and a "good, faith effort to comply with applicable law." §5.2.2.2 Tolling the Freeze Period Finally, the time constraints of the freeze may be tolled under certain circumstances. First, some types of litigation clearly bar practical use of the permits issued In Murphy V. Beard of Selectmen of Manchester,'1 the appeals court ruled that (1)an appeal of the issuance of the permit itself,or(2)litigation enjoining construction under the perrtut'Z would act to extend the six-month construction window.'.however, the freeze pe. riod may not be extended where delay arises from litigation unrelated to the construction process.' mId, at 356(citing Smith v.Building Commr. of Brookline, 367 Mass. 5 765, 771-779(1975)(Smith 11)).Smith 11 was decided on the unique facts of a Brookline dispute, which involved an initial trip to the Supreme judicial Court and it subsequent zoning change, n 1 Mass. App. Ct. 407, 410 (1973). Note that 780 CUR 114.3 places the additionw requirement of a written extension of time from the building inspector and calls upon the inspector to determine that the action is"adequately defended." being Por an example of Mass.98 1 P eiluation, see Wooer v, City of Newton,351 - 04(1966). "Note that 780 CMR 114.3 allows the building inspector to exftd the life of a building permit"for cause" for one or more periods not to exceed six months each.It is unclear whether an extension granted"for cause"but not tied to the litigation specified in Murphy would act to extend rights under a ti*eze, but it is doubtful that such an extension would shelter the permit holder. "Id.at 410-411 (litigation involved title to premises). See also Smith v Board of Appeals of Brookline,366 Mass. 197,201.202(1974). 194 " r 12/09/1998 15:09 617-439-2679 NUIILK MUULLNNLN hl5 , fHut t7y S. Vested Rights §5.3 Second, in Belfer v. Building Commissioner of Boston,25 the Supreme Judicial Court suggested that where "real practical impediments" interfere with use of a permit, the time limita- tions may be tolled. Bel fer ruled that the appeal of an awarded variance was such a circumstance, and that the Boston lapse provision2a was tolled. Permit recipients are free to argue that appeals or denials of other development-relat ennits consti- tute"real practical impediments"under Belft4,Y,13ersonal prob- lems, however, are not deemed "real practical impediments" where they cause a delay in commencement or continuity of construction. §5.3 Freeze for Prerecorded Residential Lots Mass. Gen. L. ch. 40A, §6, 14 establishes two freezes for lots for single- and two-family residential construction recorded or endorsed prior to a zoning change which renders the lots non- conforming,The first sentence applies only to lots held in sepa- rate ownership; the second sentence applies to lots held in common ownership.In either case,the key inquiry is the status of the lot at the time of the zoning change. This freeze is primarily designed for the small landowner. An isolated residential lot, or up to three adjacent lots, may be ► grandfathered if legal when created and large enough to meet statutory minimums. The court discussed this rationale in t° Vazza v. Board of Appeals of Brockton;' 1 25363 Mass.439(1973). 26 n had a two-year lapse provision at that time. p or example,a denial of-an application for a wetlands orders of condi- tic�%sewer connection permit,or curb cut it would render the building permit meaningless until the issue to resolved. -imilady,.an appeal by, an abutter would cause it delay in use of the permit. , "Papalia v. Inspector of Bldgs. of Watertown, 351 Mass. 176, 179 (1966). §5.3 1359 Mass. 256, 263(1971). 195 _ The Commonwealth ofMassachuselis _ Department of Industrial Accidents w wM . _. B/�/cee/Indesu�a�►eos w= - 600 Washington Street Boston,Mass. 02111 Workers'Compensation Insurance Affidavit a /- ; location• w city phone# ❑ 1 am a homeowner performing all work myself. p I am a sole proprietor and have no one working in any capacity employer provlding workers'compensa I am f r my employees working on,this;compensationo c' 'ariY'Ra`' am p y 1'+I"css� ;• .......:.:... .,. ...::. •,�,(,• i—wrr�-L.. ' off•... �`,��:. `• ❑ 1 am a sole proprietor,general contr ,or,or homeowner(sir one)and have hired the contractors listed below who have the following workers'compensation polices: S;y; can ^1taM31D'" --- ;:; a�: gaaT Y' 9.• •'•4W :<:' Y'4 �F 'one,` •i ti�uranssy!o•Y•' r Y!! yf4 SiIQPe r! neur'iince'"n'Failure to secure coverage as required under Section 2SA of MGL 152 can lead to the imposition of criminal penalties are fine up to SLS00.00 and/or nne years'imprisonment as well as civil pcoslties In the form of a STOP WORK ORDER and a fine of$100.00 a day against me. I understand that it copy of this sta nt may be forwarded to the Offiec of lovestigations*(the DIA for coverage verification. !do hereb Yee fy nder the pales and enattles ojpraf ury that the information provided above!s true and correct a Signaturo ate �' f Print n CAW Q , 1'V1,o Phone# S ga'� Cronlact y do not wrile In this area to bt:completed by city or town official pennit/11cense# rBullding Department . 0Licensing Board mediate response is required dSeleetmen'e Office (]Health Department : phone H; Lr'10ther- (reAstd3/95PIA) s 1�v k' A:} 073toain�ma�uuea o� a4oac`ivaea i k x OEPARTNENT OF PUBLIC SAFETY 1 COHSTRXTIO]1 SUPERVISOR LICENSE �ljl Nubet. Expires: I ResriteQ�To-'; ' 1G i JACQUS �14 NORLN 300 BEABSESIAY ? % •" + foe HYANNIS. NA 02601 i DEPARTMENT OF PUBLIC SAFETY ONE: ASHBUR`I'ON PLACE:, RM 1301 80ST0 ;� MA 02108-•1618 CONSTRUCTION SUPERVISOR LICENSE L„ N:.ifilber: Expires: (IS 057770 02/16/2000 Rogtri_cted To: 16 d n# i :JACQUES N MORIN r" J/.^ 300 BEARSES WAY --- HYANNIS, MA 02601 r� Keep top for receipt and change {... .._.. of address noLi'fication. The Town of Barnstable . MUMSTABLL . Department of Health Safety and Environmental Services MAB& �' 1as� Building Division . 367 Main Street,Hyannis MA 02601 Office: 508-790-6227 Ralph M. Crossen Fax: 508-790-6230 Building Commissioner March 9, 1998 Jacques Morin Bayberry Building Co. 300 Bearses Way Hyannis, MA 02601 Re: SPR-082-97 Office Building, 1597 Falmouth Road (Route 28), Centerville (209/084) Proposal: Construct office building with parking and drainage Dear Mr. Morin, The above referenced proposal was reviewed at the Site Plan Review Staff Meeting of March 5, 1998 and approved under Section 4-7.4 (2) of the Barnstable Zoning Ordinance and with the following conditions: • Submit landscaping plan. • Replace Mass. Highway bound. • Address septic issue with Applicants' Engineer. If cannot be resolved, Applicant must return to Site Plan Review. Please be informed that a building permit is necessary prior to any construction. Upon completion of all work, the letter of certification required by Section 4-7.8 (7) of the Town of Barnstable Zoning Ordinances must be submitted. Also, all signage must be discussed with Gloria Urenas of this Division. Should you have any questions,please feel free to call. Respectfully, RACrossen6� Building Commissioner r The Town of Barnstable `MAM Department of Health Safety and Environmental Services tee,`` Building Division 367 Main Street,Hyannis MA 02601 Office: 508-862-4038 Ralph Crossen Fax: 508-790-6230 Building Commissioner August 10, 1998 Jacques Morin Bayberry Building Co. 300 Bearses Way Hyannis, MA 02601 Re: SPR-082-97 Office Building, 1597 Falmouth Rd, Centerville (209/084) Proposal: Construct office building with parking and drainage. Dear Mr. Morin, The alterations to the approved plan (SPR approval 3/5/98) are minor and do not require additional review by the Site Plan Review Committee. Respectfully, Ralph Crossen Building Commissioner PROJECT NAME:_ _ Mal- ADDRESS: PERMIT# DATE: J� M/P: 0 LARGE ROLLED PLANS ARE IN: BOX 3 4 SLOT DATE: Q� q/wpfiles/archive , 47 7/- °FZFIE The Town of Barnstable 9� MAM �e� Department of Health Safety and Environmental Services 16jjg. Building Division 367 Main Street,Hyannis MA 02601 Office: 508-790-6227 Ralph Crossen Fax: 508-790-6230 Building Commissioner November 7, 1997 Mr. Jacques Morin, President Bayberry building Company, Inc. 300 Bearses Way Hyannis, MA 02601 Dear Jacques: In answer to your letter of November 5, 1997, your site has a conforming foundation in that is was build according to the existing bylaws at the time. The issue of weather or not you have exercised the variance is a different matter. I think you have as to the first part of construction, but never obtained final Site Plan approval to proceed beyond the foundation. I believe you may use that foundation after a new Site Plan review has been approved. Please feel free to call if you have any questions. Sincerely, 4 Ralph M. Crossen Building Commissioner RMC/lm j971107 FT 1 -- EEr_T 1 r'- 1� IT rTT a-A f Ro+.;T E`E-/A N 1 1 a- - I ' , `a i ti n.ae.�a LU ' 7DfN��SAr.P�"FdbTi96'g .. -j�2me .e a3,8/'o Fj • AZ , Ogg �,gg IV i . as 9 ,R too ;i-- —-...-- — —'--�- a .3 leas to SfiCOIvD FLGbR P�P,iJ � -c•�'a+:"': J L_c - 70nr /fir 2d&W j9/0 -I ...t.-.?.,,- +4i .sY''� U. " rz In < S TT ram ta f � � i �• i n ac a.....r � ..� _i R C • i a � n �n v. S �i 1 1 aP.�T cLEVAT O\ - 1 _ • y � ; i ta - I 1 it7777777777_- • r 4� t: S Fr i Sri ,t — rye li�J, I f i i t p I --� ��•.. f t FT ! j f_I I...l I u CIE' ri ---- . • — a I' —--- 'f. 1.t1 — - — L.4— p is 930 .1 , ,S ; a q 00 , RJCH'^SIDE ELE,AT�C--y - .LEFT SDE 1.EvA 101 _- 'tie- • le a n e e.:L..L-,:.-�...—. a J . 2 -irl.vw '—__.. -.�� � / I ft — x t'./dF.S.< j, I m i 0 to o� ylo Al — ...,..��. —.—_..____.. ..._-.. ...__. _...."• _�.Y \ Vie•� 1o+m wo s aN N w � o I - - - _ _. ,...—..�, of:AIL h' l � i ; 1 1 _ . • 1 , -tIF 11�l 6�"�, 11�W-- ol .t _ of j 1 I r----•`k: I; � - i�ss.ru++.e .. � �._,a�b:.ar , I u r.rw W Z _ D • R O I 1 Q — NL a bETA1L � .. s �T s t 1.k __ ,�.— p .h:�,.• � W 1'rin, �A t Assessor's office(1st Floor); Assessor's map and;lot nu bar Ma © T of THE>o�` Conservation -- —�-� -- SEPTIC SYSTEM MUSS' e DA8,7T�DL6 s Board of Health(3rd floor): INSTALLED IN COMPLI S , Sewage Permit number �1 � W"TITLE j Engineering Department(3rd floor): ENVIRONMENTAL CODE c trw►- t�I�� � House number TOWN REO °�ON Definitive Plan Approved by Planning Board 19 APPLICATIONS PROCESSED 8:30-9:30 A.M.and 1:00-2:00 P.M.only TOWN OF BARNSTABLE BUILDING INSPECTOR APPLICATION FOR PERMIT TO 5 t TYPE OF CONSTRUCTION � `/UL 19� TO THE INSPECTOR OF BUILDINGS: The undersigned hereby applies for a permit according to the following information: ,Y Location 1PT RE ( "es�t�► Y'(2I'� A v�6 cxu � 2(7 j Proposed Use ©� ��l 10J10 Zoning District /7 Fire District U!/ Name of Owner_:1 OL14 OCt l I"LkL4 Address Name of Builder Address Do QQ ,t � , Name of Architect �,�t T�c 4!( e ��5�� Address V Number of Rooms f /y``e Foundation / rp,,�P e'4M, r-�p �`_" S� e Exterior � � j�+�� Roofing G.� Floors 171,4pInterior �� ae,4Dm r Heating �2 4�/l.�z C1�� Plumbing 1 Fireplace Approximate Cost o� Area -- Diagram of Lot and Building with Dimensions Fee OCCUPANCY PERMITS REQUIRED FOR NEW DWELLINGS I hereby agree to conform to all the Rules and Regulations of the Town of Barnstable regarding the above constructs Name /��✓ Construction Supervisor's License 00 f . CALLAHAfU, JOHN T. No Permit For BUILD COMMERCIAL BLDG. Commercial/Offices Location 1597 Rte 28 ,.,Centerville Owner. John T. Callahan - Type of Construction Frame Plot- � Lot Permit Granted February 7 , r 19 ' 9 4 Date of Inspection ' 19 . Date Completed 19-p wv mr so � j t g j Y• • + `+ ' • y • f ~. II is •f ct t t• Rk'345 496 418 Receipt few`: �i Certified Mail - _ No Insurance Coverage Provided UNITEDOST ES Do not use for International Mail R STRL SERVICE (See Reverse) Sent to Mr. Douglas Lebel Street and No. 1600 Falmouth Rd. Unit MO P.O.,State and ZIP Code _ Centerville, MA_.02632_ Postage Certified Fee Special Delivery Fee Restricted Delivery Fee Return Receipt Showing p� to Whom&Date Delivered a) Return Receipt Showing to Whom, C Date,and Addressee's Address 7 TOTAL Postage C &Fees 0 Postmark or Date M E o U- tn a STICK POSTAGE STAMPS TO ARTICLE TO COVER FIRST CLASS POSTAGE, CERTIFIED MAIL FEE,AND CHARGES FOR ANY SELECTED OPTIONAL SERVICES(see front). 1. If you want this receipt postmarked,stick the gummed stub to the right of the return address leaving the receipt attached and present the article at a post office service window or hand it to your rural carrier(no extra charge). w` 2. If you do not want this receipt postmarked,stick the gummed stub to the right of the return address of the article,date,detach and retain the receipt,and mail the article. jf el 3. If you want a return receipt,write the certified mail number and your name and address on a f return receipt card,Form 3811,and attach it to the front of the article by means of the gummed k ends if space permits.Otherwise,affix to back of article.Endorse front of article RETURN RECEIPT �o REQUESTED adjacent to the number. pp� 4. If you want delivery restricted to the addressee,or to an authorized agent of the addressee, 9 endorse RESTRICTED DELIVERY on the front of the article. E `o 5. Enter fees for the services requested in the appropriate spaces on the front of this receipt.If LL return receipt is requested,check the applicable blocks in item 1 of Form 3811. rn a 6. Save this receipt and present it if you make inquiry. US.GPO:1991-302-916 ♦ � y�{TM[t0` ` 4' The Town of Barnstable i '"1117"" ''" Inspection Department 367 Main Street, Hyannis, MA 02601 �,Y►T► 508-790-6227 Joseph D. DaLuz Building Commissioner October 22, 1993 Mr. Douglas Lebel 1600 Falmouth Road Unit 40 Centerville, MA 02632 RE: A=209 084 1597 Falmouth Road (Route 28) , Centerville Dear Mr. Lebel: This letter will confirm our telephone conversation of October 21st re the foundation located at 1597 Falmouth Road, Centerville. The foundation will have to be protected from unauthorized entry, either by decking over or fencing. The foundation must be secured within forty eight (48) hours of receipt of this notice. Very truly yours, Richard R. Bearse Building Inspector RRB/gr Certified mail: P 345 496 418 R.R.R. w r The Town of Barnstable I ,A..,T►314 ' Inspection Department 0110. a r►r►•. 367 Main Street, Hyannis, MA 02601 � 508-790-6227 Joseph D. DaLuz Building Commissioner October 22, 1993 Mr. Douglas Lebel 1600 Falmouth Road Unit 40 Centerville, MA 02.632 RE: A=209 084 1597 Falmouth Road (Route 28) , Centerville Dear Mr. Lebel: This letter will confirm our telephone conversation of October 21st re the foundation located at 1597 Falmouth Road, Centerville. The foundation will have to be protected from unauthorized entry, either by decking over or fencing. The foundation must be secured within forty eight (48) hours of receipt of this notice. Very truly yours, Richard R. Bearse Building Inspector RRB/gr Certified mail: P 345 496 418 R.R.R. "r NO. 7-25723 T4? &Mmouwralth - of Aassorllusrtts !!gig4Wq 3rpartmrnt PERMIT BARNSTABLE Subject to all of the terms, conditions and restrictions printed or written below, and on the reverse side hereof, permission is hereby granted to BELL TOWER CORPORATION, John T. Callahan III, 1600 Falmouth Road, Unit 40, Centerville, MA 02632 to enter upon State Highway in the Town of BARNSTABLE locally known as Falmouth Road, Route 28 for the purpose of constructing a drive r to his property between Stations 341+15 and 341+39 at the Southerly line of the State Highway Layout Line, flaring to Stations 340+70 and 341+83 at the edge of the hardened surface as shown on the attached plan. Light grading may be done between Stations 340+65 and 341+85. DRIVES Three driveways are to be reconstructed as follows: 1. Between Stations 337+29 and 337+51 on the Southerly line of the State Highway Layout Line, flaring to Stations 337+15 and 337+56. 2. Between Stations 338+78 and 338+98 on the Southerly line of the State Highway Layout Line, flaring to Stations 338+55 and 339+12. 3. Between Stations 341+00 and 341+53 on the Northerly line of the State Highway Layout Line, flaring to Stations 340+56 and 342+00. A widening is to be constructed on the Southerly side of the road as follows: Beginning at the existing edge of the road at Station 336+45 (10' Left of the Baseline) and tapering to the proposed edge of the road at Station 338+55 (24': Left of the Baseline) . The proposed edge of the road will continue from Station 338+55 to Station 342+92 (24' Left of the Baseline) where it will match into the existing edge of road. A widening is to be constructed on the Northerly side of the road as follows: Beginning at the existing edge of road at Station 337+83 (12' Right of the Baseline) and tapering to the proposed edge of road at Station 339+63 (24' Right of the Baseline) . The proposed edge of road will continue from Station 339+63 to Station 344+04 (24' Right of the Baseline) . A taper will be installed form Station 344+04 (24' Right of the Baseline) to the existing edge of road at Station 346+13 (12' Right of the Baseline) . In the area to be widened, the Grantees shall excavate the existing material to a depth of 15" and install 8" dense graded crushed stone, 4" bituminous concrete base Class I-1, and 3" top course bituminous concrete pavement Class I Type I-1 to be laid in two courses. Cmditlow Aerating Fudcalady to permits for the Laying daps,Conduits,ore. After ay pipes,conduits,drains or aha undergroundstmemres at laid,or my eceavation is made in the roadway,the trenches,or oprainq shall be properly bacldilled with sdtaWe material,the hackhlling shal be&. shlytamped,and the surface tithe road ova said structures shall be left even with the adjoining proud.if the work is done in cold weather no hozen material shall be used for haekfillieg. Whenever the hardened surface d the roadway.gutters,or my put of the surface of the highway is disturbed it shall be replaced in as good condition as before it wr disturbed, and if new materials arc required they shall correspond with those already in place am the road. Where advice pipes are to cross the highway the connections"Ube made without disombing the hardened surface tithe roadway,by driving the pips under the roadway.or the advice pipes&haft be carded under and actor the road n a larger pipe,®lens otherwise orderedby the Engineer. The Grmsoe shall maintain the arfaee d the roadway ova add structos r Iwg r the Depnmaatmay dram m ccaaay,ssT all signs d the trenches shall have been eliminated Comditiens Relating Particularly b Parma for the Breaion ofFeles,Wires sad Ovedwed Structures,and the Casting and 7limmdngdTrem In the asecdon d pole lien,alm otherwise halm provided,so tree located within the limits d tht:Sate Highway shall be cat or trimmed.No gay wires shall be attached r trees without a special permit horn the Deparmentl,and in no went shall they be so attached an to girdle the met or in any wry interfere with their growth The wino shall be su protected r d times and places that they"not interfat with a I*m the tram eitherioside at aatide the loadom of the highway. What tha eaaing a trimming dtrce is m6oriredby this permit,only mach cuing ad ndmm ing shall be done as maybe designated by the Engine. In the cosmuacdom a teemaunctlon d pole times no guy wires"O bt aected onm to the surfaced the ground tbm six feet provided however,that the owns d such lien may maintain such guy wire at a lower devcdoo.(ban cis feet ham the gmkad until awl time r the Department sW notify them to remove add wires at to raise them to the elevation dress statod. Its order so proud the aces 6=0 which my vises may par,acid wires&hall be insulated sod meh other an goads mad as any be diraded by the Engineer. Where high tension wire me aeaed under this padt,thtty shall be so bated thin,under ocnditioms dmlaaimam severity as regards a carting dice or now,there shall be a space of at leant eight Amer between such high bo da wires and other wires. 7be Gaatce*hall within sixty days hum the date of compktion of the work;Se is the office of the Department a plan showing do location dash pole erected in accordance with the permit.said plan to be of such size and in such form a the Department may direct. Oaaenl and Additional Condition Whenever the word'Depalmame In sad herein it shall men the Massachusetts highway Department Whenever the wend"Emeaca'is aced hinds it shall am the Distkt bfigbwq Engines or other authorized representative of the Wbm"the ward'Gramme Is and bade shall mesa the Pena of peiwa;corporation Of wounicipality to whom this permit is gra t4or their legal mpreseatstives. During the progress dtha work all stracmrn under groadd and above g►oud"be propdy Fraeeted tram damage or Hilary:=4 baadas atoll be aceted and maintained as maybe necessary for the protectios d the aweBngpmbBe,the same shall be propalyliold r might and the G matee shell be responsible for aD damages to persons a property due to Of resulting tram my work dome under this punk Fioepr r hcrdn ambaritd so aea►aIon sball be made or obstacle pined withis the Radio tithe Sate H ighwwys In much a soma man interfere umnece&saa7y with the travel ova said end If my graiagar sidewah work done under this permit interface with the drainage tithe.Sete Hfighwwy n any.wmy,such web basis and oadas shall be camsaacad an may be accessary,in the opiias tithe Engineer,to Was props cue of rid drdnsge. Whaeve the hardened amtfsee d the roadway is dLnubed sod the 6gmmeamay consider it may,at advisable to do sot maid surface will be reamed by the employer of the Department,at sorb time r the Depart sent mmy dire m,and the expense theredmhaii be boneby the Grantee,who shall purchase and dclvaa the rod the materials necessary fa add worltif mad when direetd by the Bagimcer.AO psym mato sakdalmen aid to laborau,b"ecw%ae,®pioydby the Deprmment for a m wwmtof tbe wwk hernia cmtamFlattd"D be mrde by rid Grantee forthwith an the receipt d written adds,pay rolls,a vouchers approved by the Deparizacun P THE GRAIfm DOES ANY WORK calnRARY 70 THE ORDERS OF THE ENGDrE7l.AND AFIEJR DUE NancE.FAL4 TO CORRECT SUCH WORK OR 70 REMOVE STRUCiURF.S OR MATERIALS ORDERED 70 BE REMOVED,OR FAILS TO CoMtrLBIB Wiium THE SPBCt PIED TIMETHP WORK AunioRoRD BY THRS PERLQP.THE DEPARTMWT MAY,WTIH OR wrimo fy NanC E.CORRBCP OR COMPLETM SUCH WORK IN WHOLE OR IN FART,OR REMOVE.SUCH SIRUCnMES OR MATERIALS AND TiiE GRAXM SHALL REiMBURSE THE COMMONWEALTH FOR ANY E oew INCURRED IN CORRBCIDNO AND/OR COMPIEn NOME WORK OR RE?,hOVHNGTHItE STRUCRJRE.S OR MATERIALS. ALL OF Me WORK HERON CONTEMPLAIM SHALL BE DONE UNDER THE SUPERVWDN AND TO TH$SATISFACnON OFIM MASSACHUSETHS IDGHWAY DEmARTBA NiAND 7EP ENHDRB EXPENSE TI®tEOF SHALL BE BORNE BY 7EP GRANIM On the completion tithe work hadm comempnad all rubbish and debris shaft be removed and the roadway and roadsides"be left mat and presentable and satisfactory to the �giaoer. The Depwuwmbusby reserves the right to add the cbuw dbaion or the removal rimy ssmcture or structures sudtaized by this permit at my time,add change or antoval to be ode by sal as the c9com tithe Granter or its their suwcaaa or rigs Thin peat pay be a mMed or revoked at my time by the Department without redaieg=4 Department or the CommawabbdMisamcbmaats liable is uny wy. The Grmtee dO py the allay,sabdoaee and awdisg empmsr daghssPeaor oppdmdby the Depamsas to sopuvise the wakbada eoaumFhmL AD of the above eoaidanta shall be applicable to tht work bachk slberira 1.unless the me an lmeadrem with the conAdas as the bce dibc Pamir,is which cue the cositions written at primed as die hce of On permit"apply. The aoesptasee ofthis permit or the dongdmy work thereunder comadtsa a aBeemem by the dstee to comply with all ddme oaidons smd taaiabna printed Of written bercia. JOHN T. CALLAHAN (cont.) BARNSTABLE 7-25723 For any permit requiring a widening an Engineer from this Department will be assigned to supervise and oversee all construction and materials for this project. All work must be done as indicated on plans entitled "Plan of Proposed Traffic Mitigation to State Highway (Rt. 28) Falmouth Rd. , Centerville, Massachusetts" drafted by Down Cape Engineering, dated April 10, 1992. This includes all island construction, pavement markings, traffic signs, and any other details as indicated. The Massachusetts Highway Bound (MHB) at Station 341 (Right) must be removed and reset below grade by a Registered Land Surveyor. A 12" x 12" junction box cover with "MASS DPW" stamped on it (copy enclosed) will be placed over this bound after it has been reset. A copy of the paid bill must be submitted to this office upon completion of this work. This permit is granted to access the proposed 3,817 sq. ft. office building which is being built on the Southerly side of the road utilizing the proposed driveway at centerline Station 341+27. Any change in use or additions to said building will require the Grantee to re-apply to this office for a new permit. This permit supersedes permits #7-23981 and #J-20378, therefore making them null and void. Before any work is to be done within the State Highway layout the Grantee must call the Permit Engineer, Matthew Broderick or Assistant Permit Engineer, Gregory Nicholas at (508) 947-9000, Ext. 3014. Within the State highway layout, the drive must have a six inch foundation of compacted gravel and be paved with three inches of bituminous concrete mix, 1 1/2 inches binder and 1 1/2 inches top to be laid in two courses. Any bituminous concrete berm that exists in the driveway area must be sawcut and removed. The pavement must butt into and not overlap the edge of the hardened surface. The Grantee must not apply the bituminous concrete mix to the proposed drive before the gravel base is inspected by the Section Foreman. All disturbed areas within the State highway layout must be graded, loamed, and seeded to the Engineer's satisfaction. The drive must be graded in such a manner that no ponding of water occurs within this highway layout. If such ponding results, the Grantee shall be responsible for its correction. All present and future structures located on the property of the Grantee shall be at least twelve feet from the Southerly line of the State -highway. The part of the drive located within the State highway location shall be maintained by the Grantee at his expense to the satisfaction of the Engineer. r JOHN T. CALLAHAN (cont.) BARNSTABLE 7-25723 The drive must be constructed on a minus grade from the edge of the hardened surface to the State Highway Layout Line. The Grantee is responsible for the disposal of all surface water from the proposed drive. Under no circumstances is any of this surface water to enter the State Highway layout. If the Grantee should paint any curbing or curb returns within the State Highway layout, the paint must be white and must be applied at the time the drive is installed. The Grantee shall indemnify and save harmless the Commonwealth and its Department of Public Works against all suits, claims or liability of every name and nature arising at the time out of or in consequence of the acts of the Grantee in the performance of the work covered by this permit and/or failure to comply with the terms and conditions of this permit whether by themselves or their employees or subcontractors. Please contact the Permit Engineer, Matthew Broderick or Assistant Permit Engineer, Gregory Nicholas at (508) 947-9000, Ext. 3014 when the work required under this permit has been COMPLETED in order that an inspection may be made by the Maintenance Foreman. A copy of this permit must be on the job site at all times for inspection. Failure to have this permit available at such site will result in suspension of the rights granted by the permit. Signs and traffic control devices are required in the work area. All required signs and traffic warning devices shall be furnished by .the applicant. All signs and devices shall be in accordance with the Massachusetts Manual on Uniform Traffic Control Devices. Any additional signs and devices shall be as deemed necessary by the Engineer for the safe and efficient performance of the work and the safety of the travelling public. All warning devices shall be subject to removal, replacement and/or repositioning by the applicant as often as deemed necessary by the Engineer. Cones or non-reflectorized warning devices shall not be left in operating position on the highway when the daytime operations have ceased. If it becomes necessary for the department to remove the construction warning devices or their appurtenance from the project due to negligence by the applicant, all costs for this work will be charged to the applicant. All vehicles, excepting passengers cars, which are assigned to the permitted project and which operating on the site at speeds of 25 MPH or less, shall have an official. SLOW MOVING VEHICLE emblem displayed. All personnel who are working on the travelled way or breakdown lanes and who are not protected by traffic cones or similar protective devices shall wear safety vests. ALL OF SAID WORK SHALL BE DONE AS DIRECTED BY AND TO THE SATISFACTION OF THE ENGINEER. - T - r JOHN T. CALLAHAN (cont.) KBARNSTABLE , . 7-25723 All' work and materials used 'must conform to the 1988 edition of the "Commonwealth of Massachusetts Department of Public Works Standard Specifications For Highways and Bridges" as amended. All construction shall conform to the 1977 edition .of the "Commonwealtl of Massachusetts Department of Public. Works Construction '. Standards" as amended. i s ',,wl (SEE OTHER SIDE FOR ADDITIONAL CONDITIONS) No work shall be done under this permit until the Grantee shall have communi- cated with and received instructions from the District Highway Engineer of the Massachusetts Highway Department, at 2 Commerce Park Blvd., P.O. Box . 111, Middleboro, Ma. 02346-0111 . ,Tel. (508) 947-9000 This permit shall be, void( unless the work herein contemplated, shall have .been completed before MAY 21; 1993 , Dated at Middleboro this 21st day of May, ,1992 GSN:gls MASSACHUSETTS HIGHWAY jqEPARTMEN� cc: Foreman By Bernard McCourt a HMD-604 115, 1, "District Highway Engineer Conditions Relating Particularly to Permits for the Laying of Pipes,Conduits,etc. After any pipes,conduity,drains or other underground structures are laid,or any excavation is made in the roadway,the trenches or openings shall be properly backfilled with suitable material,the backfilliog shall be thoroughly tamped,and the surface of the road ova said structures shall be left even with the adjoining ground.If the work is done in cold weather no frozen material shall be used for backfilling. _ Whenever the hardened surface of the roadway,gutters,or any part of the surface of the highway is disturbed it shall be replaced in as good condition as before it was disturbed, and if new materials are required they shall correspond with those already in place on the mad. Where service pipes are to cross the highway the connections shall be made without disturbing the hardened surface of the roadway,by driving the pipes under the roadway,or the service pipes shall be carried under and across the road in a larger pipe,unlem otherwise ordered by the Engineer. . The Grantee shall maintain the surface of the roadway ova said structures as long n the Deparuneut may deem necessary,until all sign of the trenclrs shall have been eliminated. Conditions Relating Particularly to Permits for the Erection of Poles,Wires and Overhead Structures,and the Cutting and Trimming of Tree In the erection of pole limes,unless otherwise herein provided,no trees located within the limits of the State Highway&hall be cut or trimmed.No guy wires shall be attached to trees without a special permit&am the Department,and in no event shall they be so attached as to girdle the tree or in any wry interfere with their growth.The wires shall be so protected at all times and places that they shall not interfere with or injure the trees either inside or outside the location of the highway. Where the cutting or trimming of trees is authorized by this permit,only each cutting and trimming&hall be done as may be designated by the Engineer. In the construction or reconstruction of pole lines no gay wires shalf be erected nearer to the surface of the gonad than tbx fat provided,however,that the owners of such lines may maintain such gay wires at slower elevation than six feet from the gonad unn7 snob time as the Deparmtem shall notify them to remove said wires or to raise them to the elevation first stated. In order to protect the tram through which any wires may pass,said wires shall be insulated and such other tree guards used as may be directed by the Engineer. Where high tension wires are erected under this permit,they shall be so located that;under conditions of maximum severity as regards a coating of ice or snow,there shall be a space of at least eight feet between such high tension wires and other wires. The Grantee shag within sixty days from the date of completion of the work;file in the office of the Department a plan showing the location of each pole erected in accordance with the permit,said plan to be of such size and in such form as the Department may direst General and Additional Conditions Whenever the word'Deparmuent'la used herein it shall mean the Massschusetts Highway Departmrnt. Whenever the word'&gineer s used herein it shall mean the District Highway Fngixer or other authorized representative of the Department. Whenever the word*Grantee is used herein shall mean the person or persons,corporation or mamdpaliry to whom this permit is granted,or their legal representatives. During the progress of the work all structures under ground and above ground shall be propcelyh=otected from damage or injary:such barriers shell be erected and maintained as may be necessary for the protection of the travelling public,the same shall be propcAylighted at night sod the Grantee shall be responsible for all damages to persons or property due to or resulting from any work done under this permit. Except as,herein amhorized,m excavation shall be made or obstacle placed within the limits of the State Highways in such a manna ss to interfere unnecesssn7y with the travel over said road. If any gradingor sidewalk work done under this permit interferes with the drainage of the State Highway in my way,such catch basins and outlets shall be constructed as may be necessary,in the opinion of the Env'nea,to take props care of said'drainaga Wherever the bardened surface of the roadway is disturbed and the Engineer may consider it neaasary or advisable to elo so,said surface will be restored by the employees of the. Department,at such time as the Department may direct,and the expense thereof shall be home by the Grantee,who shall pnrehaxe and deliver on the toad the materials necessary for said work if and when directed by the Engineer.All payments to m merialmen and to laborers,inspectors,etc.,employed by the Department for or on account of the work herein contemplated shall be made by said Grantee forthwith on the receipt of written ordera,pay ro1L,or vouchers approved by the Department. IF THE GRANTEE DOES ANY WORK CONTRARY TO THE ORDERS OFTHE ENGINEER,AND AFTER DUE NOTICE,FAILS TO CORRECT SUCH WORK OR TO RB40VE STAUCiURES OR MATMUALS ORDERED TO BE REMOVED,OR FAILS TO COMPLEDE WI]MIN THE SPECIFIED TiMETHE WORK AUTHORIZED BY THiS PERMrT,THE DEPARTMENT MAY,WITH OR WrTHOUr NOIICP,CORRECT OR COMM SUCH WORK iN WHOLE OR IN PART,OR REMOVE,SUCH STRUCIURES OR MATERIALS AND THE GRANTEE SHALL REIMBURSE THE COMMONWEALTH FOR ANY EXPENSE INCURRED IN CORRECTING AND/OR COM14XI ING THE WORK OR. REMOVING THE STRUCTURES OR MATERIALS. ALL OF THE WORK NERM CONTEMPLATED SHALL BE DONE UNDER THE SUPERVISION AND TO THE SATISFACTION OF THE MASSACHUSEM HIGHWAY DEPARTEMNT AND THE ENTIRE EXPENSE TMU30F SHALL BE BORNE BY THE GRANTEE. On the completion of the wank herein contemplated all rubbish and debris shall be removed and the roadway and roadsides shall be left neat and presentable and satisfactory to the Engtnea. The Depatmrcm hereby reserves the right to order the change of location or the removal of any structure or structures authorized by this permit at any time,said change or removal to be made by and at the a xpmee of the Grantee or its their successors or assigns. This permit may be modified or revoked at any time by the Department without rendering said Department or the Commonwealth of Massachusetts liable in any way. The Grantee Ball pay the salary.subsistence and traveling c xpenso of any inspector appointed by the Department to supervise the work herein contemplated. All of the above conditions&hall be applicable to the work herein authorized,=less the same are inoonsimem with the conditions on the face of the permit,in which case the conditions written or printed on the face of the permit shall apply. ibe acceptance of this permit or the doing of any work thaermder shall constitute an agreement by the Grantee to comply with all of the conditions and restrictions printed or written herein. t I l June 3, 1992 Town of Barnstable Highway Review Committee Town Hall Hyannis, MA 02601 Re: Proposed 3 ,800 square foot office building on Route 28 Dear Members: Enclosed please find a copy of a recently issued curb cut permit for a proposed office building across from Bell Tower Mall in Centerville. As you are aware, over the last two years there have been several meetings regarding this proposed office building including a filing with the Cape Cod Commission. I have enclosed, for your review, the final curb cut plan, curb cut permit, proposed office complex site plan and building plan along with a copy Qf he variance granted b t� $oard of Appeals. v?�rj �Jr S le � 4 up-', /SS 0 Please review the information and let me know in writing if. all of your initial concerns have .been satisfied. I would like to pull a building permit as soon as possible. Very truly yours, John, T. Callahan, III " '` _--- �'— '----- --- President JTC/ljm/9916 � r s� v,Ok G � bb 'Zel - 494 . TOW4 CLERK RL Ili TOWN TOWN OF BARNSTABLE 1-;GA, r►,.G I. '90 AGO -9 -1 ZONING BOARD OF APPEALS VARIANCE DECISION AND NOTICE f ! PETITION: 1990-40 PETITIONER: THOMAS M. SHIELDS. TR. OF SWIFT ASSEMBLY TRUST At a regularly scheduled hearing of the Barnstable Zoning Board of Appeals, held on June 21 , 1990 and continued to July 26. 1990, notice of which was duly published in the -� Barnstable Patriot, and notice of which was forwarded to all interested parties pursuant to Chapter 40A of the General Laws of Massachusetts, the petitioner, Thomas M. Shields, through Attorney Stephen Jones, petitioned the Board for a Variance from Section 3-3.6 (5) of the Zoning Bylaw to allow construction of an office building which will not meet the minimum front yard or lot size requirements. The petitioner's property is located on Route 28 In s Centerville, MA and is shown on Assessors' Map 209 as lot 84. It is in the Highway Business Zoning District. SUMMARY OF EVIDENCE: The following material evidence was submitted to the Zoning ' Board of Appeals: e Memorandum in Support of Petition for Variance submitted by Attorney Stephen C. Jones. Including the following exihbits: Exhibit A - "Woodlands in Centerville, Barnstable, Mass. Plan Showing Exchanges of Land Between T. Walter Wann'ie and Gunner Dahlberg". dated August, 1926; Exhibit B - "Plan of Land in Centerville. Barnstable, Mass belonging to Oilian A. Langford Roundtree' prepared by Nelson Bearse and Richard Law. dated January 16. 1957; Exhibit C - Letter from Joseph D. DaLuz. Building _ z Commmissioner. dated July 23, 1990: Exhibit 0 - Plan of the lot: r I f i i i i i '4 aoo�?312r,�F G42 2 Exhibit E - Commonwealth of Massachusetts, Department of Public Works. Permit to allow a curb cut on the State Highway, Route 28; and Exhibit F - Traffic report prepared by A. M. Wilson Associates. Inc. , dated May 10, 1990,. (four (4) attachments) . Letter to Site Plan Review Committee from Thomas J. Marcello, P.E. , dated July 19, 1990 Staff report prepared by the Department of Planning and Development. includes a letter dated June 14, 1990 from Thomas J. Mullen. Superintendent, Town of Barnstable, Department of Public Works Attorney Stephen Jones was present to represent the petitioner. Mr. Jones stated the petitioner is requesting a Variance from the Bulk Regulations of the Highway Business - Zoning District. Mr. Jones explained that the petitioner's lot is 0.25 acres and it was created when the layout for Route 28 bisected the original parcel . Mr. Jones referred to a Plan dated August, 1926 depicting a lot entitiled "Ambrose Lewis et al" that shows the original ten (10) acre parcel prior to the layout of Route 28. Mr. Jones then referred to a Plan dated January 16, 1957 which shows Route 28 bisecting the original parcel. Mr. Jones stated that the lot is unique due to its triangular shape and the circumstances which caused it to be separated, by Route 28, From the original parcel . Attorney .Jones gave a summary of the project. He stated that the petitioner plans to construct a 3,800 sq. ft. office building on the site. Mr. Jones further stated that the proposed building would meet all requirements except the 43,560 sq. Ft. minimum lot size and the 100 foot minimum front yard setback from Route 28. The building has a proposed setback sixty-one (61) feet. Mr. Jones stated that the petitioner has received a State curb cut permit and the proposed Parking Plan meets requirements. Concern was expressed over the amount of traffic that the project will generate and the fact that the ingress/egress for the project will be directly opposite the access to the Bell Tower Mall . Attorney Jones stated that a traffic report has been submitted. It was further stated that this project is subject to approval by the Site Plan Review Committee and they are dealing with traffic concerns and ways to mitigate any potential problems. FINDINGS OF FACT: Based on the evidence presented, the Zoning Board of Appeals made the following findings of fact: 3p^!.7:�12P!GF 043 3 { 3 1 . The topography of the lot is unique due to the triangular shape of the lot; 2. It is not the intent of the Zonning Bylaw tc cause a hardship on the landowner so that he could not use his property in the manner that has been proposed at this hearing. further, it would be a hardship if the petitioner could not use his property for any purpose; and 3. The proposed use as an office building is consistent with the uses allowed for that area and the proposed use would not be substantially detrimental to the ; area. The vote on the findings of fact was as follows: AYES: BLISS, BOY, BURLINGAME, LALLY, NIGHTINGALE NAYES: NONE DECISION: Based on the evidence presented and the findings of fact, at a meeting held on July 26. 1990, by a motion duly made and seconded, the Zoning Board of Appeals voted to grant the relief requested with the following conditions: I . The building shall have a footpringt of 1,908.5 sq. ft. and shall be two (2) storys (3,817 sq. ft. gross floor area) ; 2. The petitioner shall not create an aceess to Old Post Road. either by purchase or easement, for the purpose of ingress/egress; and 3. Prior to any construction, the petitioner shall have the approval of the Site Plan Review Committee. The vote was as follows: AYES: BLISS, BOY, BURLINGAME, LALLY. NIGHTINGALE NAYES: NONE i. 1 i I - i en7312P.6E 044 J PARTIES OF INTEREST APPEAL NO. 1990-40 THOMAS M. SHIELDS, TURSTEE OF SWIFT ASSEMBLY TR. A MEETING OF JUNE 2.1, 1990 Mass society for prevention of Cruelty to animals Route 28, Centerville, MA B J Moloney, MM & Mw Walsh 145 Old Post Rd, Centerivlle, MA Rosita Fernandes c/o R Lacey 157 Old Post Rd, Centerville, MA Martin & Maria Walsh 167 OOld-IPtost Rd, Centerville, MA Ru ieJoneYsant P 8 Box 196HyHyannisport. MA Stephen & Lynne Lakis 16 Bayberry Square, Centerville, MA Stephen & Lynne Lakis 36 Thornberry Ln, Centerville, MA t Leslie & Ruth Martin PLO Box 855, E Falmouth, MA Jeffrey & Carole Dwyer 549 Bay Lane, Centerville, MA Owen & Mary Croughwell 114 Scudder Rd, Osterville, MA Jeffrey & Nancy Lowery 88 Bay Rd, Cotuit, MA Thomas Nastasia /Shakalis & Falco 1645 Rte 28, Centerville, MA Brian Dacey Trs/Celtic Investment Trust P 0 Box 95, Centerville, MA Charles & Barbara Case 49 Beldan Ln, Centerivlle, MA Mary & Owen Croughwell 114 Scudder Ave, Osterville, MA Jeffrey & Carol Dwyer 1639 Falmouth Rd, Centerville, MA Claire Glatki Trs/Travana Rlty Tr 1639 Falmouth Rd, Bayberry Sq, Centerville MA Theodore Schilling Trs Bayberry Assoc Realty Trust P O Box 979, Hyannis, MA Stanley Nowak P Daigle & Croughwell Trs 1639 Falmouth Rd, centerville, MA Stanley Nowak Trs Center P1 Tr 597 Bay Lane, Centerville, MA Thomas Shields Trs & Douglas Lebelil B rn table Br8W Co 1150 Rte 28, Centerville, MA Sun O Ho en Penn tr AttN Tax Dept 1801 Market St, Philadelphia, PA Albert & Margaret Simpson 9 Babicz Rd, Tewksbury E, MA Earl & Beverly Williams 131 Old Post Rd, Centerville, MA Susan trs Schilling , The Schilling Family.Tr P 0 Box 39; Osterville, MA Kate Dupre Tr Three Bayberry Sq 17 West End Ave, Middleboro, MA Susan Schilling C/o Susan Klotz 51 Maple St, Centerville, MA Yarmouth Planning Board Mashpee Planning Board Sandwich Planning Board i ROUTE 28 135.55' 127.85' 0 a 17, 526+/- S. f. �2 CONCRTE ss6'' FOUNDATION Z00 5� C, G., # 86-069 CERTIFIED PLOT PLAN L OCA TA ON : ROUTE 28 CEN TER VILLE. MASS. SCALE : 1 ° 40 ' DATE : 7115193 PREPARED FOR: REFERENCE : ASSESS. MAP 209 LOT 84 J. T CALLAHAN 9 SONS I HEREBY CERTIFY THAT THE STRUCTURE SM SHOWN ON THIS PLAN IS LOCATED ON THE GROUND AS SHOWN HEREON. E JrC i OJALA #26348 C down cape engineering inc. 9 iStEa�� CIVIL ENGINEERS NAt S' LAND SURVEYORS SATE .�6A - YARMOUTH, MASSI, DATE REG. LAND SURVEYOR !i o TOY"OF BARNSTABLE Zcwlag Bow A of Appnla NOTICE OF PUBLIC HEARING t UNDER ZONING BY-LAWS Meeting of June 21.IM To all penau deemed iownw d at dfamd by ft Boud dAppnL,wader Set It d oup 40Ad Qema!Ln d tbs Cammmtrealdl d Matusbowem and d smmdma o*WW4 Ion an bwaeby se ified dwu APITALNO1ffa77 7.30P.IR 7Daeu A Patricia MUCAD bawe oppeawoolkz0abilland peadan for d�dA onnr dsr Section 3.1.13(DX a allow a Footo Aprmmmt a May 168 Lot 1206 35 Bteattrood Low.Cearnlb is an RC Zmat Dittrirt . A PUBLIC NWINO RILL Bs t HELD ON THIS PETITION AT 700.P.11f., ';'APPs++i xd is�e�t� ris rats - : :appealedmAaZadaZBaddApp'aL pe3(Ll6r s Spelil Permit radar 3 Ill 3 a allow,a Family . Aputmega k Map 4%Lai 713..ii Pbosf La*Efiriom Milt i as RP ZxxuaSVbtrkL A PUBLIC wjja fO W"its "'IMM.ON'TRM"PETI M AT 7.43 P.M,' APPF.ALN0.mea R00PAL Deoald P.*yAq tete appealed a tali ` Zosle/.86W1 die Appdaadptilaii •"faa VuitaioitiadarSaalaI-p p), 8a1k;keaalwtloa"w aRoi;tb6 ills � dasafa°"ta'r3arw>totis r nos�pBiioe law wtbwk wgsbmata at 9912M Let d►.Lviet A"00% _H7atatirpattsuRAlTasigDittiitt PtIBLIC HEARM0 MLL B[ HEUI.ON .THIS PETMON AT :.R•Otl P.1i: ,. 'APPPAI.NO,t"be sta rx <'rTIMM It Sblddw.SNOW of Sw M ''Mina v Two 6u wppntd ao tie Ka Bmd �fa Valseao 3-UM m a0otr da tatowactta da tagwory efLwr bs�sj at My 2w let K Ram.%k comma r a Hiyt MW Radom Zoabs bbtft A'POlILIC REARM WML Bs HELD AGM Tltn.MMM.AT 'rHsss.HtutuRw W" u °111MIM THs lsO 1 PLOOs d'�1:OtUP�RlNu17200lPR w 1��Rtt��a,wa�aNa�wa�aI'.^TKMDAT ,, 3�`r l�gd4dt� - w2.-7f.. �elaf .rsraicor,:,c.:Eaft .. �,....,t:��;r•7RsMr RiW dAiMar i 01 s 1 I i s L Ak Y v 096 _ ' i Any person aggrieved by this decision may appeal to the Barnstable Superior Court, as described in Section 17 of Chapter 40A of the General Laws of the Commonwealth of Massachusetts by bringing an action within twenty days after the decision has been filed in the office of the Town Clerk. j Chairman 4� I, I D2er•2 bA Clerk of the Town of Barnstable, Barnstable County, Hassachusetts, hereby certify that twenty (20) days have elapsed since the Board of Appeals rendered its decision in the above entitled petition and that no appeal of said decision has been filed in the office of the Town Clerk. Signed and Staled this H` day of. Amy yam' 19 _u �er the pains and penalties of perjury. Distribution: 17 1 Property Owner ��ST i. •_. "` Town Clerk Town Clerk Applicant Persons Interested Building Inspeceor Public Information Board of Appeals RELOh�[D OCT 3 90 Bayberry Building Com an , Inc. 300 Bearses Way, Hyannis, Massachusetts 02601 (508) 775-8822 Mr. Ralph Crossen, Commissioner November 5, 1997 Town Of Barnstable 367 Main Street Hyannis,MA 02601 Dear Mr. Crossen: I am pursuing the purchase of a parcel of property across from Bell Tower Mall, Centerville, identified in Assessors Map [look 209 Parcel 84. I have particular questions that follow and respectfully request your ` written opinion on the same. The facts are as follows: - July 26, 1990 a variance was granted by the Zoning Board Of Appeals granting relief from minimum lot area and front yard setback requirements. (See enclosed). December 7, 1992 a foundation permit issued for this site. A foundation was subsequently constructed at the site. July 15, 1993 a certified plot plan of the building showing compliance with the variance:setback was created. (See enclosures). The engineer, Arnie Ojala,Down Cape Engineering, seems to recall that this building had already been before site plan review prior to the issuance of the foundation permit which review was a condition of the variance. The minutes of the July 26, 1990 zoning hearing indicated that" At the present time the petitioner has received permission from Site plan review Ex. C in the Memorandum to come before the Board Of Appeals even though they have not received final Site Plan Approval - have received Site Plan approval of all other the aspects concerning the Site Plan with the exception of concern regarding Traffic Mitigation". I trust that the final concern(traffic) of Site Plan Review was addressed since a foundation permit was issued with the knowledge of the 3 conditions unposed by the Zoning Board with the third condition being that"Prior to construction, the petitioner shall have the approval of the Site Plan Review Committee".- That being the case, I still have the following questions: Is the building permit still active for the site? , Has the variance been acted upon to the extent I could proceed with the 3,817 sq. ft. building along with the conditions placed in that variance? - I thank you in advance for your time in this matter. It is my hope I can create the attractive building that has been proposed for this site. I am available should you have any questions. Sincerely, Jacques N. Morin, President Bayberry Building Company, Inc. __ EXHIBIT E TOWN CLERK .•i.-C. 11 Cf TOWN OF BFRNSTABLE ,� I set, M.G I. '90 AGO -9 °?•-E ZONING BOARD OF APPEALS VARIANCE DECISION AND NOTICE PETITION: 1990-40 PETITIONER: THOMAS M. -SHIELDS, TR. OF SWIFT ASSEMBLY TRUST At a regularly scheduled hearing of the Barnstable Zoning Board of Appeals. held on June 21 . 1990 and continued to July 26. 1990, notice of which was duly published In the Barnstable Patriot. and notice of which was forwarded to all interested parties pursuant to Chapter 40A of the General . Lams of eassachusettst the petitioner. Thomas M. Shields. through Attorney Stephen Jones. petU toned the Board for a ; ; ,;,;.• Variance from Section: 3-3.6 (5) of the Zoning Bylaw to allow construction of an office buliding which will not meet the t minimum front yard or lot size _requirements. The petitioner's property Is located on Route 28 In Centerville. MA and: is shown on Assessors' Map 209 as lot 1 84. It Is In the Highway Business Zoning District. SUMMARY OF EViDENCEt The following material evidence was submitted to the Zoning 'r Board of Appealst Memorandurn in Support of Petition for 'Variance submitted by Attorney Stephen-C. Jones. Including the i following exihbicss Exhibit A - "Woodlands In Centerville. Barnstable. Mass. Plan Showing Exchanges of Land Between T. Walter Wann'le and Gunner Dahlberg". dated August. S 1926; .; Exhibit B - "Plan of Land in Centerville. Barnstable. Mass belonging to Lillian A. Langford 1 Roundtree". prepared by Nelson Bearse and Richard r Law. dated January 16. 1957t Exhibit C - Letter from Joseph 0. OaLuz. Building Comm issioner. dated July 23. 1990; Exhibit 0 - Plan of the lot; r 2 Exhibit E - Com,K,nwea l th ot�-, Hassachusetts, Oer+artment of Public Works,: Permit to allow a curb cut on the State Highway. P.oute 28; and L` Exhibit F - Trafflc report prepared by A. M. Wilson Associates. inc.. dated may 10. (4) attachments). 1990. (four ' Letter to Site Plan Review Committee from Thomas J. Marcello. P.E. , dated July 19, 1990 Staff report prepared by the- Depart Development. ment of Planning and From Thomas Includes a letter•,dated June 14 J. Mullen. Superintendent ' 1990 Barnstable, Department of Public Works Town of Attorney Stephen Jones was petitioner. Hr. Jones statedethet et represent the Variance from the Bulk Regulations poftthener is requesting a Zoning Otstrict. Mr. Jones explained Highway Business lot is 0.2'S acres and tt was created whenathehlayouttfor- Route 28 bisected the original parcel to a Plan dated August. 1926 depicting Mr' Jones referred "AmbroseoaPla Lewisda „ g a lot entitiled Farce I pr for to thel I ayout of* Route at shows e23.original. ten referred to a Plan dated JanuaryMr. Jones(thenacre 28 bisecting the original parce . 1957 which shows Route lot Is unique due to (ts triangularHr• Jones stated that the circumstances which caused It to-be 3hape and the From the ariginal 'parcel . Parated. by Route 28, Attorney Jones �i that the gave a summary of the protect. He stated Petitioner plans to construct a 3,800 sq. ft. office building on the site. Mr. Jonas f the proposed building would meet all es urther. stated that 43.560 sq. ft. minimum lot slza quirements except the Front yard setback from Route• 28� the 100 foot minimum proposed setback slxt The building has a y-vne (61) feet Mr. Jones stated that the petitioner has received a State curb cut permit and the proposed Parking Plan .meets requirements. Concern was expressed over the project will generate and the fact thant ttraffic that the for the project will be directl the ingres3/egress Bell Tower Mall . Attorney Jones statedtthate access to the report has been submitted. It was further a traffic project is subject to approval b stated that this C�Ittee and they are dealing with traffic Site Plan Review ways to mitigate any potential traffic concerns and problems. FIN0INGS 'OF FACT: madeaasedton the evidence presented. the e following findings of fact: Zoning Board of Appeals b 30��.7312r��f 043 ;_... 3 1 . The toPogr`aphy of the lot is unique due to the trian,ular shape of the lot; It is not the intent of the .Zenning Bylaw to cause a hardship on the landowner so that,he could not use his property in the manner that has been proposed at this hear inrj. Further, it would be a hardship If the petitioner could not use his property for any purpose; and 3. The proposed use as an office building is consistent .with the uses allowed for that area and the proposed use would not be substantially detrimental to the area: ; The vote on the findings of fact was as follows: AYES: BLISS, BOY, BURLINGAM,E. LALLY. NIGHTINGALE NAYES: NONE • DECISION: Based on the evidence presented and the findings of fact, at a meeting held on July 26, 1990, by a motion duly made and seconded, the Zoning Board of Appeals voted to grant the relief requested with the .following conditions: I . The building shall have a footpringt of .1,908.5 sq. ft. and shall be two (2) storys (3,817 sq. ft. gross Floor area) ; 2. The petitioner shall not create an aceess .to Old Post Road, either by purchase or easement, for the purpose of Ingress/egress; and 3. Prior to any construction, the petitioner shall have the approval of the Site Plan Review Committee. The vote was as follows: AYES: BLISS, BOY, BURLiNGAME. LALLY, NIGHTINGALE NAYES: NONE ` j 2 APPEAL NO. 1990-40_ THOMAS SHIELDS, TRUSTEE OF SWIFT ASSEMBLY TRUST, THOMAS M. SHIELDS, TRUSTEE OF SWIFT ASSEMBLY TRUST HAS APPEALED TO THE ZONING BOARD OF APPEALS AND PETITIONS FOR A VARIANCE UNDER SECTION 3-3 . 6 (5) , TO ALLOW THE CONSTRUCTION OF A TWO-STORY OFFICE BUILDING AT MAP 209, LOT 84 , ROUTE 28, CENTERVILLE IN A HIGHWAY BUSINESS ZONING DISTRICT. The following is background information . relating to this petition : This petition was originally scheduled for the meeting of June 21 . At that time the Attorney for the petitioner, Stephen Jones , submitted a letter dated June 21 requesting a continuance of the above petition to a date convenient to the Board. Although Site Plan Review is not a precondition to the relief sought, the petitioner has met with the Department of Public Works and certain issues raised have yet to be resolved. At the present time the petitioner has received permission from Site Plan Review Ex. C in the ? Memorandum to come before the Board of Appeals even though/ they have not received final Site Plan Approval - have received Site Plan approval, ,of all of the aspects concerning . the Site Plan with . the exception of concern regarding Traffic Mitigation. In addition, Attorney Jones is waiving the time requirements of Chapter 40A , Section 15 , ,whereby he agrees to extend the time for the Decision to a date equivalent to the extension period. A motion was made and seconded to allow a continuation of the petition to the meeting of July 26 with the provision that the petitioner waive the time constraints as indicated in his letter. Attorney Jones will file the letter of waiver with the Town Clerk on Friday, June 22. Since there was no testimony taken at this prior hearing , we will have the following Board members sit on this petition : . Ron Jansson excused himself and asked that he be allowed to step down. Gail Nightingale, Dexter Bliss , Richard Boy, Bruce Burlingame and Chairman Lally will sit on this petition . . A letter from the Department of Public Work's dated July 19, has been submitted to the file. A Staff Report prepared by the Department of Planning & Development has been submitted to the file. . . �: The Town of Barnstable MAM• L►srier,�. • �� 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 January 14, 1998 Mr. John Callahan Bell Tower Corp. 1600 Falmouth Road Centerville, MA 02632 Re: 1600 Falmouth Road, Centerville Dear Mr. Callahan: I inspected your handicapped spaces and signage on January 14, 1998 and they are in compliance with our handicapped regulations.. Many thanks for your cooperation. Sincerely, Ralph L. Jones Deputy Building Inspector RLJ/lbn g980114a r `� ti•"` `i.`1•".' °+e!. o-uw'Yr+;.o_ of OWN CIF BARNSTABLE;NtASSACHUSETTS �:. BUtLDING` P_ERii�I1T A=2097 84 - 0 36479 } DATE r�eb 1 ; , 19 O1s PERMIT NO. � t , APPLICANT Douglas W. Lebel ADDRESS 1600_Falmouth Road, Unit 40, Centery (NO.) (STREET) (C 9TH811F2 ST i Bui' d Commercial pp1` Commercial/Office +` NUMBER of LL PERMIT TO +Y L��T.STORY - OWELI-ING,UNITS (TYPE OF IMPROVEMENT) NO. (PROPOSED USE) AT (LOCATION) 1597 Rte 2.8, Ci nterville t D ON CT— tits IN0.) (STREET) BETWEEN AND (CROSS STREET) (CROSS STREETI LOT SUBDIVISION LOT BLOCK SIZE +� BUILDING IS TO BE FT, WIDE BY - FT, LONG BY FT. IN HEIGHT AND SHALL CONFORM IN CONSTRUCTION �• TO TYPE USE GROUP BASEMENT WALLS OR FOUNDATION - - (TYPE) Se�oay-e #92-349 REMARKS: Bond AREA OR 3800 sq _l 160, 000. 00 PERMIT. 684 00 VOLUME ESTIMATED COST S (CUBIC/SQUARE FEET) _ Johi� T. Callahan OWNER ADDRESS D j Pleasant JC Z c:t:i.� !<cailill�i BUILDING DEPT, - BY I f l r J.� . `I �f l OF ANY APPLICABLE SUBDIVISION RESTRICTIONS. MINIMUM OF THREE CALL APPROVED PLANS MUST BE RETAINED ON JOB AND THIS WHERE APPLICABLE SEPARATE INSPECTIONS REQUIRE CARD KEPT POSTED UNTIL FINAL INSPECTION HAS BEEN PERMITS ARE REQUIRED FOR ALL CONSTRUCTION WORRK:K: ELECTRICAL, PLUMBING AND i. FOUNDATIONS OR FOOTINGS. MADE. WHERE A CERTIFICATE OF OCCUPANCY IS RE- MECHANICAL INSTALLATIONS. 2. PRIOR TO COVERING STRUCTURAL QUIREO,SUCH BUILDING SHALL NOT BE OCCUPIED UNTIL MINAL INSPECTION TI TO BEFORE FINAL INSPECTION HAS BEEN MADE. ., 3. FINAL INSPECTIpN BEFORE OCCUPANCY. POST THIS CARD SO IT IS VISIBLE FROM STREET BUILDING INSPECTION APPROVALS PLUMBING INSPECTION APPROVALS ELECTRICAL INSPECTION APPROVALS 2 2 2 t , 1 HEATING INSPECTION APPROVALS ENGINEERING DEPARTMENT 2 BOARD OF HEALTH 1 OTHER SITE PLAN REVIEW APPROVAL y WORK SHALL NOT PROCEED UNTIL THE INSPEC. PERMIT W!LL BECOME NULL AND VOID IF CONSTRUCTION INSPECTIONS INDICATED ON THIS CARD CAN BE TOR HAS APPROVED THE-V.ARI000S STAGES OF WORK IS NOT STARTED WITHIN SIX MONTHS OF DATE THE ARRANGED FOR BY TELEPHONE OR WRITTEN CONSTRUCTION. I PERMIT IS-ISSUED AS NOTED ABOVE. NOTIFICATION. r JONES,HOULIHEIN& IHLTON, P.C.. 3010-Route`6A. Barnstable,MA 02630 STEPHEN C.JONES Te1ephone:'(508),362=3010 LISA-LEO HOULIHAN Telecopier;,(508)362-69I1 MICHELE HILTON REPLY OUR FILE No: 91-84 August 14, 1991 Joseph DaLuz, - Building Inspector Town of Barnstable 367 Main Street Hyannis, MA 02601 -, - i' Re: Bell Tower Mall A 6 Dear Mr. DaLuz: Please be advised that I represent Bell Tower Mall and have received a copy of the letter dated August 9 1991, regarding Unit 5 . We are convinced that Mr. Elacqua i residing in Unit 5 and anything you -could do would be appreciat d. I cidentally, we are evicting him, but as you know this take time.. e trul e rs, en C. Jones SCJ/jr 15:82 CENT.05T.FIRE DEPT. , } F 1.t 1 ' CENTERVILLE-OSTERVILLE-MARSTO _ NS MILLS TIRE DISTRICT ;� 1926 OFFICE OF THE FIRE DEPARTMENT 1875 Route 28 v Centp&iile, MA 02632-3117 508-790-2380• FAX:508-790.2385 ohn M.Farrington,Chief 3 Craig E.Whiteley,Deputy Chief Clan S.Wilcox,Lieutenanre Inspector. ,. Marlin 0'L MacNoely,Lieutman sire lrispectw". 6 l 62 • f DAT 8 9 91 a � e 3 TO:. Building Department Town of Barnstable 367 Bain Street Hyannis, MA. 02601 AsIn accordance with M.G.L. Chapter 14$, Sectiort 2$A, the Centerville `; terville-Marstons Mills Fire Department bri s to following potential violation of 780 CMR: Massachusetts rStatenBuildine� rrfi3s Code, askingforg your viewing and/or interpretation of same; NAME/BUSINESS: Dell Tower Mall + ADDRESS: 1600 e 28 Centeraille Unit-5 OBSERVANCE: Received a complaint from Laurie Lebel, manager of Bell Towner Mall, that.:the above unit (second floor) is being used as a residence. She that:,this may be a violation of the lawn. I investigated, and found evidence of what was concerned.:appear$ ` ::. to be articles of clothing and furniture found in a residential setting Please advise this Department of your decision. regarding this matter. ' 6-0:;n as possible. I feel this unit does not comply with applicable codes for sleeping acComodations. tY :y c. Bell.Tower -Mall.,Manager Unit-1 Thank you, REp0;2TING'.tWFYCIAL- . Glen -S 'Wilcox ' Cµ0-MM Fixe District ieutenant -AUG 09 '91 15:22 CENT.05T.FIRE DEPT. P. 1/2 FIRE DEPARTMEN w, , FIRI 019TRUCT OFFICE" OF RRE PREVE 10N 1675 ROUTE 28 CENTERVILLE,MA. 02632 (508) 790--2380/FAX* (508) 790-2385 FAX COMMUNICATION MESSAGE Y DATE: ' TO, '' t 3 . U G .VYIIY bd1��� i ATT4 FROM: l�.�l G Co t WE ARE SENDING PAGES,INCLUDING THIS COVER LETTER. .PLEASE CAL. (508) 790-2360•IF YOU � t -DO NOT RECEI VE THE TOTAL NUMBER OF DOCUMENTS . t n AUG 09 '91 15:22 C:ENT.OST.FIRE KEPT. P.2/2 ^tsr CENTERVILLE•OSTERVILLE-MARSTONS MILLS FIRE DISTRICT OFFICE OF THE FIRE DEPARTMENT ' r926 1875 Route 28•Centerville, MA 02632-3117 508-790-2380• FAX:508-790-2385 John M,Farrington,Chief Glen S.Wilcox,Lieutenant)Fire Inspector Craig E.Whiteley,Deputy Chief Martin aL MacNaely,Lieutenant/Fire Inspector DATE 8/9/91 T0: Building Department Town of Barnstable 367 Main Street Hyannis, MA. 02601 In accordance with M.C.L. Chapter 148, Section 28A, the Centerville- .Ostervi.11e-Marstons Mills Fire Department brings to your attention the following potential violation of 780 CMR: Massachusetts State Building Code, asking for your viewing and/or interpretation of saute. NAME/BUSINESS: Bell Towner Mall ADDRESS: 1600 Route 28, Centerville Unit-5 OBSERVANCE: Received a complaint from Laurie Lebel, manager of Bell Towner Mall, that the above unit (second floor) is being used as a residence. She was concerned that this may be a violation of the law. I investigated, and found evidence of what appears to be articles of clothing and furniture found in a residential setting. Please::advise this Department of your decision regarding this matter As soon as possible. I feel this unit does not comply with applicable codes for sleeping ? accomodations. i cc: Bel T°ojr6k Mall Aanager Vnit-1 Thank you, REpO1tTINC.:tOFFYCIALr.' . Glen S. 'Wilcox Lieutenant C-0-M14 Fire District i i Builoseph b. DaLuz ding Commissioner Telephone, 790-6227 TOWN Of PARNSTABL9 BUILDING DEPARTMENT�.� TOWN OFFICE BUILDING HYANNIS,-MASS. 02601 December 14 , 1990 Ms Arlene M. Wilson , President ~ A.M. Wilson Associates, Inc. 911 Main Street Osterville, MA 026.55 Re: Site Plan Review Number 04-90 Swift Assembly Trust Project Route 28, Centerville (Your File 2. ( 454. 0 ) ° Dear Ms Wilson: i The above referenced site P.1an is approved contingent the following conditions, gent upon 1 • State DPW curb--cut T approval is required. 2• all previously agreed upon road improvement mitigation work must be completed before an s and traffic Occupancy will be issued. Ce ref ,y rtificar, of Enclosed is a si gned.. and stamped copy of your plan.. Please notify this office when. the work is begun completion of all work submit the letter of. certind required by Section 4 ► upon Zoning ordinances. 7. 8(7) ' °f'.the Town of Barnstable Should you have any questions, pleaseffeel .f - ree to call . , Peace , ` J/,seph D. �p JDDrkm Brii.Iding Commissioner „ cc ` All Site Plan Review sta ft: enclosure y �� �� �/�d� I X 3 �o � � . < < � . ,. �: _ r Sheetl Order No. 3 (o 4/ -7 Cf TOWN OF BARNSTABLE Page /of / Engineering Division Office Calc.Book Z 367 Main Street Hyannis,MA 02601 PRFAMUNARY ESTDUTE Sta. to Sta. 3 37 t- S/ Village Sta 3374 2-1 to Sta 3 Y.;{ D O Road Class Contract Length= Fed Aid Date --2-3-9S' / 7 2�e � ��,/p��i /lam �Do 1zs GJ. ede ITEM NO QUANTITY UNIT Item UNIT PRICE AMOUNT 1,VvZ! 0 a, y e-W v 4, e, -0 4 60 s / D e� Y, v �-eQ o ry pe v p '71 �ri 7e o ZD S.S pE'ht lu-oIt �//�c( /� s �61 d:-V /.2S25� 466,6 3.8 O 70• c-0 3 So-o 4a 3600 xb6,eA (000 14F So ado G/,yQ I lc �• �r IG e6 P!y1 E� �siD, 0 8 (� • 1, Pa a Total 40, 11 br Sub Total 40,115� Made by Checked by Submitted by Page 1 -494 EXHIBIT 'E TOW4 CLERK REF. ' ' p; �'• C':�3 BAfXF ti I{`i C ••. "i %S'C' 11 of TOWN OF BARNSTABLE '7 � M.G I. _ - .. 190 AGO -9 -- --- ZONING BOARD OF APPEALS VARIANCE DECISION AND NOTICE PETITION: 1990-40 PETITIONER: THOMAS M. SHiELOS; TR. OF SWIFT ASSEMBLY TRUST At a regularly scheduled hearing of the Barnstable Zoning - Board of Appeals. held on June 21 . 1990 and continued to -- July 26. 1990. notice of which was duly published in the w Barnstable Patriot. and notice of which .was forwarded to all _,-. Interested parties pursuant to Chapter 40A of the General Laws of tassachusetts, the petitioner. Thomas M. Shields. through Attorney Stephen Jones, petUtoned the Board for a 1 .,: ; :• Variance from Section 3-3.6 (5) of the Zoning Bylaw to allow construction of an office building which will not meet the i.. minimum front yard or lot size.requirements. The petitioner's property Is located on Route 28 In . Centerville. MA and is shown on Assessors' Map 209 as lot 1 84. It is 1n the Highway Business Zoning District. SUMMARY OF EVIDENCE: The following material evidence was submitted to the Zoning f Board of Appeals: Memorandum In Support of Petition for Variance submitted by Attorney Stephen-C. Jones. Inciuding the . following exihbicss Exhibit A - "Woodlands In Centerville. Barnstable, Mass. Plan Showing Exchanges of Land Between T. WaIter. Wann•1e and Gunner Dahlberg". dated August. S 1926; I Exhibit 8 - "Plan of Land in Centerville. • Barnstable. Mass belonging to Lillian A. Langford Roundtree". prepared by Nelson Bearse and Richard 1 Law. dated January 16, 19571 Exhibit C - Letter from Joseph D. OaLuz. Building I Comnmissioner. dated July 23. 1990; t1 5 Exhibit 0 - Plan of the lot: _ a i l • ' eoos7312�=,� 0•�2 - 2 i Exhibit E - commonwealth a th 01 Massa chusetts.chu OePartmen Setts. t of Public Works.. Permit to allow a curb cut on the State Highway. P•oute 28; and Exhibit F - Traffic report prepared by A. M. Wilson Associates. Inc.. dated May 10. 1990. (four ' (4) attachments). Letter to Site Plan Review Committee from Thomas J. MarceIIo. P.E. . dated July 19, 1990 Staff report prepared by the 0e ' Development. Department of Planning and Includes a- 1 etter- datedJune 14. 1990 from Thomas J. Mullen, Superintendent. Town of Barnstable, nepartrent of Public Works Attorney Stephen Jones was e the Petitioner. Mr. Jones stated the Petitionerent Is requesting a Variance From the Bulk Regulations of Zoning District. Mr. Jones explained tthat he itheay Business lot (s 0.25 acres and tt was created when the layouttfor- Route 28 bisected the original parcel to a Plan dated August. 1926 depicting Mr. Jones referred "Ambrose Lewis et al"' that shows the 9 a lot eten (10) Parcel prior to the layout of' oute origin.{ ten ( h acre referred to a Plan dated January28' Mr• Jones then 28 bisecting the original parcel. Mr-1957 which shows Route lot Is unique due to its triangular- ram Jones stated that the circumstances which caused It to- be Separated, and the from the original parcel . Pasted. by Route 28, Attorney Jones gave a summary of the that the petitioner plans to constructraj ,80 He stated office building on the site. Mr. 3.the ss to the proposed Janes further stated that s 43.560 sq. ft. minimmumwlootdsi2et all requirements except the Front yard setback from Route• 28� the 100 foot, minimum proposed setback The building has a sixty-one (61 ) f Mr. Jones stated that feet.the petitioner has received a State curb cut permit and the proposed Parking Plan meets requirements. Concern was expressed over the amount of Project will generate and the fact that traffic that the For the project will be directl o the ingress/egress Bell Tower Mali • Attorney Jones statt the access to the report has ed t been submitted. It was furthest a traffic Project is subject approval b stated -that this Coittee and the Y the Site Plan Review ways to mitt Y are dealing with traffic gate any potential problems, concerns and FINOINGS OF FACT: - ceded on the evidence presented. the the followin Zoning Board of Appeals g F(nd(ngs of fact: 3n7312 r_:',E 043 3 I . The topography of the lot is unique due to the triangular shape of the lor.; 2. it is not the intent of the Zonning Bylaw tc cause a hardship on the landowner so that he could not use his property in the manner that has been proposed at this hearing. Further, it would be a hardship If the Petitioner could not use his property for any purpose; and 3. The proposed use as an office building is consistent' with the uses allowed for that area and the proposed use would not be substantially detrimental to the area. The vote on the findings of fact was as follows: AYES: BLISS. BOY, BURLINGAME, LALLY. NIGHTINGALE NAYES: NONE DECISION: Based on the evidence presented and the findings of fact, at a meeting held on July 26. 1990, by a motion duly made and seconded, the Zoning Board of Appeals voted to grant the relief requested with the following conditions: I . The building shall have a footpringt of 1,908.5 sq. ft. and shall be two (2) storys (3,817 sq. Ft. gross Floor area) ; y 2. The petitioner shall not create an aceess to Old Post Road, either by purchase or easement, for the purpose Of ingress/egressi and 3. Prior to any construction. the petitioner shall have the approval of the Site Plan Review Committee. The vote was as follows: AYES: BLISS, BOY, BURLiNGAnE.AALLY. NIGHTINGALE NAYES: NONE r f eoo�7.312r�cF 044 PARTIES •OF I%TEREST APPEAL NO. 1990-40 THOMAS M. SHIELDS, TURSTEE OF SWIFT ASSEu3LY TR. MEETING OF JUNE 21 1990 Mass society for prevention of Cruelty. to animals B J Moloney, MM i Mw Walsh Route 28, Centerville, MA .'.a tin rernandes c/o R Lace 157 Old Post Rd, Centerivlle, MA Martin b Maria Walsh Y 167 Old Post Rd, Centerville, MA Vu€fieJ°ne°sant p167 gold.xPost Rd, Centerville, HA Stephen i L p 8 Box jg6H Hnais MA Lynne Lakis °X � Y nn�sport, HA Stephen b Lynne Lakis 16 Bayberry Square, Centerville, fiA Leslie & Ruth Martin 36 Thornberry La, Centerville, MA ,Jeffrey G Carole Dwyer P"O Box 855, E Falmouth, MA Owen b Ma 549 Bay Y Lane Mary ughxell , Centerville, !!A Jeffrey t Nancy Lower 114 Scudder Rd, Ostervi Y lle ThomasCotuit, MA Nastania /Shakalis b Falco 1645aRted28, Centerville,MA Brian Dacey Trs/Celtic ills, MA Investment Trust Charles G Barbara Case P O Box 95, Centerville, MA Mary & Owen Croughxell 49 Belden Ln, Centerivlle, MA Jeffrey t Carol Dwyer 114 Scudder Ave.1639 Osterville, MA Clair© Clatki Trs/Trnvana Rlty Tr 1639 Falmouth RRdd� Centerville, MA Theodore Schilling Bayberry Sq, Centerville Assoc Real t g T=s Bayberry MA Stanley NovakDaigle , P O Box 979, Hyannis, MA Croughwell Trs Stanley Novak Trs Center P1 Tr 1639 Falmouth Rd, centerville, MA Thomas Shields Trs t 597 Bay Lane, Centerville. MA LL 11 EEB rn 1 DOualas ' Sune0il �° enbPennrgtr CO 1150 Rte 28, Centerville, MA AttN Tax Dept Albert b Margaret Simpson1801 Market St, Philadelphia. Earl t BeverlyWi 9 Babicz Rd. Tewksbury PA Susan trs Schillingliams 131 Old Post Rd, Cenrville, MA Schillingre ' The Kate Du g Fa-lilY TrTr P 0 Box 39 Three Bayberry S . Osterville, MA Susan Schillin g C/o Susan Klotz S1 Est End Av Yar e, Middleboro, MA nouth Planning Board ple St, Centerville, MA Mashpee Planning Board Sandwich Planning Board 2 APPEAL NO. 1990-40 THOMAS SHIELDS TRUSTEE OF SWIFT ASSEMBLY TRUST. THOMAS M. SHIELDS, TRUSTEE OF SWIFT ASSEMBLY TRUST HAS APPEALED TO THE ZONING BOARD OF APPEALS AND PETITIONS FOR A VARIANCE UNDER SECTION 3-3 .6 (5) , TO ALLOW THE CONSTRUCTION OF A TWO-STORY OFFICE •BUILDING AT MAP 209, LOT 84, ROUTE 28, CENTERVILLE IN A HIGHWAY BUSINESS ZONING DISTRICT. The following is background information relating to this petition : This petition was originally scheduled for the meeting of June 21 . At that time the Attorney for the petitioner, Stephen Jones , submitted a letter dated June 21 requesting a continuance of the above petition to a date convenient to the Board. Although Site Plan Review is not a precondition to the relief sought, the petitioner has met with the Department of Public Works and certain issues raised have yet to be resolved. At the present time the petitioner has received permission from Site Plan Review Ex. C in the Memorandum to come before the Board of Appeals even though they have not received final Site Plan Approval - have received Site Plan approval of all of the aspects concerning the Site Plan with the exception of concern regarding Traffic Mitigation. In addition, Attorney Jones is waiving the time requirements of Chapter 40A9 Section 15, whereby he agrees to extend the time for the Decision to a date equivalent to the extension period. A motion was made and seconded to allow a continuation of the petition to the meeting of July 26 with the provision that the petitioner waive the time constraints as indicated in his letter . Attorney Jones will file the letter of waiver with the Town Clerk on Friday, June 22. Since there was no testimony taken at this prior hearing, we will -have the following Board members sit on this petition: - - - Ron Jansson excused himself and asked that he be allowed to step down. Gail Nightingale, Dexter Bliss , Richard Boy, Bruce Burlingame and Chairman Lally will sit on this petition. . A letter from the Department of Public Works dated July 19, has been submitted to the file.. A Staff Report 'prepared - by the Department of -Planning 8 - Development has been submi.tted to the file. 3 Also submitted to the file is a letter dated July 23 from Joseph Daluz, Bulding Inspector for the Town of Barnstable. Attorney Jones presented the petition for Variance relief from Bulk Regulations of the Highway Business Zoning District relating to minimum lot area and front yard setback. The lot contains .25 acres and was created by Route 28 bisecting the original parcel . As the Plan dated 1926 shows , the parcel entitled "Ambrose Lewis et als" was a 10 acre parcel with no roadfrunning through it (Exhibit A) . The State Highway bisected this parcel as is shown on Plan dated 1957 (Exhibit B) . Thus the parcel was in separate ownership and in existence prior to the imposition of Zoning in Centerville. The petitioner proposes to construct a 3 ,800 square foot office building on said premises, for a permitted use in a Highway Business Zoning District. The proposed building meets all the requirements except the minimum lot area of 43 , 560 square feet and the front yard setback requirement. Without the Variance there are no other uses permitted as a matter of right . Under a Variance there is no necessity of getting Site Plan approval prior to coming before the Board of Appeals. The building is setback 61 ' - there is no rear setback, because the lot is triangular in shape. The proposed building will have a first floor containing 1700 square feet, will contain a total of 3800 square feet and the lot coverage of 107. - the By law allows 307.. The parking requirements are satisfied - a curb cut has been obtained (Exhibit E) . The area is essentially commercial . With respect to traffic concerns , the petitioner contends that a 3800 square foot office building will have little effect on traffic - studies indicate approximately 13 additional trips at peak time (Exhibit F) . The approval is subject to Site Plan approval which is dealing with the traffic concerns. Attorney Jones submits that the small impact of traffic in no way creates a substantial detriment . To deny relief simply on traffic is in effect saying that "you have a piece of land that the Town has zoned for business purposes which You cannot use" - that is not the Intent of the Zoning By- law. The granting of relief will not nullify or derogate .from the intent of the Zoning By- law. The parcel is unique. The Board has the authority to grant Variances where a literal enforcement of the By- law will create a hardship. Chairman Lally questions the 24' curb cut in relation to the Bell Tower Mall - this is directly opposite, is that correct. Attorney Jones responded that it is . That is one of the concerns being addressed in Site Plan - concerned with the mitigation aspect. The problem is that the project z, is a State Highway - the developer has a curb cut, yet, in working with the Town, they are asking for modifications of the curb cut which require engineering and returning to the , State to modify the curb cut - it is a concern of the Engineer i-ng Department-of-the----Town-.-that i t . is opposite Bell Tower Mall so that the curb cut, access and egress - they are asking for restrictions on right turn vs left turn that type of thing. Gail Nightingale questions the Plan of the building and the number of offices it will contain. Attorney Jones responded that the Plan submitted really does not indicate how it will be petitioned. We have a prospective tenant which would be one use for the entire thing. I can say that my law office, consisting of three (3 ) lawyers ,number ofe size tenants i n the buildingd b t- t here Part 1itions have a great nue not been designated. The building is set back 61 ' - actually conforms to the normal setback, but because of Route 28, the rear as proposed is 32' in the tip of the pyramid - 17' at the closest point at the rear. The rear is 20' and they are saying they are 32' - can be split. No relief requested on side yard setback - they are 17' . Mr . Williams of Old Post Road questioned when the property was purchased and also, that the Board place a restriction that there be no exit/entrance onto Old Post Road. Attorney Jones stated that the condition has existed since the 1930s - the petitioner purchased this about 7 years ago. There have been Zoning changes since it was purchased - did not create hardship ourselves . Chairman Lally questioned Attorney Jones whether if relief is granted if he would have an objection to a restriction that there never be created an ingress/egress to Old Post Road. Attorney Jones would have no problem with that. There was no one present to speak either in support or opposition to the petition as presented. Dexter Bliss clarified that this would be just office use. Chairman Lally commented that if the Board is agreeable It Site shall not take effect until the traffic issue with the S Plan Review Board has been resolved.. Dexter Bliss made the following findings : i5 'The lot concerned is unique in its shape and based on its shape is unique in the topography for the general zoning vicinity. Find that it is not the intent of the By- law to cause a . hardship on a land owner so that he could not utilize his property in a productive or in any manner whatsoever as we have heard tonight . The use is consistent with that which is allowed based on its being an office building. Such a use would not be substantially detrimental to the area. That it would be a hardship on the applicant if he could not utilize the lot for any purpose - seconded by Richard Boy. AYES : BURLINGAME , BOY , BLISS, NIGHTINGALE . Based on the affirmative findings of the Board, Dexter Bliss made a motion that the relief sought be granted for a building �wIth a footprint .of 1908. 5-) square feet two stories or 381'I)square feet. Request that there be a restriction that the applicant not create any access either by, purchase or easement to Old Post Road for egress/ingress . Prior to any construction that the approval of the Site- Plan - Review Board be received - seconded by Richard Boy. AYES : BURLINGAME , BOY , BLISS, NIGHTINGALE , LALLY THE PETITION IS GRANTED. APPEAL NO. 1988-71 COOLIDGE HOMES INCORPORATED Attorney Gerald Garnick appeared to represent the petitioner for an app-ea_l that has been continued on two different dates to allow the-petitioner to purchase additional land in order to comply w i'th parlri ng at the site. . Attorney Garn i ck descr b`'his attempt-" to purchase extra land and stated that at th i s-�t`me he has not been successful ; however, he has one other--opt I on which he is working on and therefore, he is request'i-ng yet another extension for one month tn' order. to try to fl.na] Ize the transaction - cannot seem to get everyone to the negotiating table. The request- was"discussed by the Board this wi l l' be the�� �- third extension. d �� Chad man La11V discussed and clarified ythe fact that if the petitioner is not successful he will not, have ;adequate .�axsrna[a, Town of Barnstable MARA Department of Public Works 1639. 367 Main Street,Hyannis MA 02601 Office: 508-790-6300 Thomas I Mullen Fax: 508-790-6400 Superintendent TO: Ralph Crossen, Building Commissioner FROM: Robert A. Burgmann, P.E., Town Engineer�� �%6y� DATE: March 15, 1995 SUBJECT: Office Building, 1597 Route 28, Centerville I would recommend holding $67,500 in securities to ensure completion of this project. The security should be in a form acceptable to the Town Treasurer. The Engineering Division has estimated the cost of the construction work required in Route 28 by the Massachusetts Department of Public Works permit number 7-25723. The estimated cost of this work is $45,000.00. I would recommend holding security equal to 150% of this estimate ($45,000 x 150% = $67,500) to ensure that work is completed by the developers. This formula would be consistent to the town's policy on subdivisions. To ensure that the work is completed in a timely fashion, I would recommend that the security be tied to an acceptable time frame for completion of the work. 6GV�(I+i i)t'BANS `1ABLE DEPT �� MAR 2 � 1995 / t J; + - Sheetl . Order No. 3 (o y 7,ct TONM OF BARNSTABLE Page /of / Engineering Division Office Calc.Book 5 _�� 367 Main Street Hyannis,MA. 02601 PRE1,DUNARY ESTBUTE Sta. to Sta. 3 3 7 f S/ Village lei y, Sta .:3 3 r/-1 2-1 to Sta Road Class Contract Length= Fed Aid Date —'2- 3-9s' / 6-1r7 2�e 62 ITEM NO QUANITTY UNIT Item UNIT PRICE AMOUNT t764,/' o e, 'Y v 4,� moo. .-e 80 / 3 4 0 51 y � p��ti �:u v S � 6 rI 0 0 s / e.-V e, Y, - -o:^r 4-0 '7, 0-0 17D O 442, 2 a SS d7 Phr-e (�5,-zz 4 W (? j S /6- cv /.2 S 2 5' 446,43.3 O T 43, 1 ec rc• / 70 C-0 3 So-o CID J.Jr/ v�b ..5�'d $ Y. �ru`y ��r.�[ �-. � D O ✓'2 �O O Khb, /000 14F 41, ILA � i , So ado 3 l F Si C ter/ IGft c6 c�Li?P (oD, oB . ,J'DD o/�� Pa a Total Sub Total Made byLL Checked by ���a Submitted by Page 1 - 7-25723 NO. � Ql�P (�nmmonwpttlt� of �Rttssttr�usef�� PERMIT BARNSTABLE Subject to all of the terms, conditions and restrictions printed or written below, and on the reverse side hereof, permission is hereby granted to BELL TOWER CORPORATION, John T. Callahan III, 1600 Falmouth Road, Unit 40, Centerville, MA 02632 to enter upon State Highway in the Town of BARNSTABLE locally known as Falmouth Road, Route 28 for the purpose of constructing a drive to his property between Stations 341+15 and 341+39 .at the Southerly line.of the State Highway .Layout Line, flaring to Stations 340+70 and 341+83 at the-,edge of the hardened surface as shown on the attached plan. Light grading may be done between Stations 340+65 and 341+85. DRIVES Three driveways are to be reconstructed as follows: 1. Between Stations 337+29- and 337+51 'on the Southerly line of the State Highway Layout Line, flaring to`Stations 337+15 and 337+56. 2. Between Stations 338+78 and 338+98 on the Southerly line of the State Highway Layout Line, flaring to Stations 338+55 and 339+12.. 3. Between Stations 341+00 and 341+53 on the.Northerly line of the State Highway Layout Line, flaring to Stations 340+56 and 342+00. . A widening is to be constructed. on the Southerly side of the road as follows: Beginning at the existing edge of the road at Station--336+45 (10' Left of the Baseline) and tapering to -the proposed edge of the road if, Station 338+55 (24' Left of the Baseline) . The .proposed edge- of the road will continue from Statiori-.338+55 to Station 342+92:-. (24'..Left of the Baseline) where it will match into the existing edge of road-.-,- -m A widening is to be, constructed on the Northerly side of the road -as follows: Beginning at the existing edge of road at Station 337+83 (12' Right of the Baseline) and tapering to the proposed edge of road at _Station 339+63 (24' Right. of the Baseline) . The proposed edge of road will continue from Station' 339+63 to Station 344+04 (24' Right of the Baseline) . - A taper will be installed form Station .344+04_.(24' Right of the Baseline) to ,the existing edge of road at Station 346+13. ("12' Right of the Baseline) . In the area to be widened, the Grantees shall excavate the existing material to a depth of 15" and ins.tall ,8" dense graded crushed stone; 4" bituminous concrete base Class I-1, and 3" top course bituminous concrete pavement Class I 'Type I-1 _ to be laid in two courses. JOHN T. CALLAHAN (cont.) . BARNSTABLE 7-25723 F�r;gny permit .ramiirina._ a widening an. Engineer from _this.'Department _will be _. .-. / assigned to supervise, and oversee all construction and materials for this project. All work must be done as indicated on plans entitled "Plan of- Proposed Traffic Mitigation to State Highway (Rt. 28) Falmouth Rd. , Centerville, Massachusetts" drafted by Down Cape Engineering, dated April 10, 1992. This includes all island construction, pavement markings, traffic signs, and any other details as indicated. The Massachusetts Highway Bound (MHB) at Station 341 (Right) .iustpbe removed and reset below grade by a Registered Land. Surveyor. A 12" x 12" junction box cover with "MASS DPW" stamped on it (copy enclosed) will be placed over this bound after it has been reset. A copy of, the paid bill must be submitted to this office upon completion of this work. This permit is granted to access the proposed 3,817 sq. ft. office building which is being built on the Southerly side of the road utilizing the proposed driveway at centerline Station 341+27. Any change in use or additions to said,building , will require the Grantee to re-apply to this: office for a new permit. This permit supersedes permits #7-23981 and #J-20378, therefore..making them null and void. Before any work is to be done within the` State Highway layout the Grantee must- call the Permit Engineer, Matthew Broderick or Assistant ,Permit- Engineer, Gregory. Nicholas at (508) 947-9006, Ext. 3014. Within the State highway layout, the drive must have a six inch foundation of compacted gravel and be paved with threeinches of bituminous concrete mix,.-1 1/2 inches binder and 1 1/2 inches top to be laid in two -courses. Any bituminous concrete berm that exists in the driveway area must be sawcut and removed. The pavement must butt into and not overlap the edge of the hardened surface. The Grantee must not apply the bituminous' concrete mix -to, the proposed drive before the gravel base is inspected by• the Section Foreman. ; All disturbed areas. within the State highway layout must be graded, loamed, and seeded to the Engineer's satisfaction, The drive must be graded in such a manner that no ponding of water occurs within this highway layout. If such ponding results, the Grantee shall be responsible for its correction. All present and future structures located on the property of the Grantee shall be at least twelve, feet from the Southerly line .of 'the State highway. . The part of the drive located within the State highway location shall be maintained by the Grantee- at his expense,,to ,the satisfaction of the Engineer. .. . 1. • JOHN T. CALLAHAN (cont.) BARNSTABLE 7-25723 Thp drive must be constructed.'nn a mimts­; c rnde_from_the eAnbo_nf._ the hardened_ surface to the State Highway Layout Line.: .. The Grantee is responsible for the / disposal of all surface water from the proposed drive. Under no circumstances is any of this surface water to enter the State Highway layout. If the Grantee should paint any curbing or curb returns within the State-Highway layout, the paint must be white and must 'be applied at the time the drive -is installed. The Grantee shall indemnify and save harmless the -Commonwealth and its Department of Public Works against all suits,, claims or liability of every name and nature arising at the time out of or in consequence of the acts of the Grantee in the performance of the work covered by this permit and/or failure to comply with the terms and conditions of this permit whether.-by themselves or their employees er subcontractors. Please contact the Permit Engineer, Matthew Broderick or Assistant Permit Engineer, Gregory Nicholas at (508) 947-9000, Ext. 3014 when the work required under this permit has been COMPLETED in order that an inspection may be made by the Maintenance Foreman. A copy of this permit must be on the job site at all times for inspection. Failure to have this permit available at such site will result in suspension of the rights granted by the permit. Signs and traffic control devices are required in the work area. All required signs and traffic warning devices shall be furnished by the applicant. All signs and devices shall be in accordance with the 'Massachusetts Manual on Uniform Traffic Control Devices. Any additional signs and devices shall be as deemed necessary by the Engineer for the safe ,and efficient performance of the work and the safety of the travelling public. All warning devices shall be subject to removal,' replacement and/or repositioning by the applicant as often as deemed necessary by the Engineer. . Cones or non-reflectorized warning devices shall not be left in operating position on the highway when the daytime operations have .ceased. If-it becomes necessary for the department to remove the construction warning devices -or their appurtenance from -the project' due to negligence` by_ the applicant,'all' costs for this work will be charged to the applicant. All vehicles, excepting passengers cars, which are assigned to the permitted project and which operating on the. site at speeds of 25 MPH or less, shall have an official SLOW MOVING VEHICLE emblem displayed. All personnel who are working on the travelled way or breakdown, lanes and who are not protected by traffic -cones or similar protective devices shall wear safety , vests. { ALL OF SAID WORK SHALL BE DONE AS, DIRECTED BY AND TO THE SATISFACTION OF THE ENGINEER: /A, OHN T. CALLAHAN (cont.) BARNSTABLE 7-25723 ll work and materials used must conform to the 1988 edition, of the "Commonwealth f Massachusetts Department of Public Works Standard C„o_4.F-#_ ..1___d Bridgas" as amende.i. Aid �iuii� For ijighways the "Commonwealth of Massachusetts c epartmentaof Public orksll conform to hCo1str edition of Standards" as amended. Construction f I 440- I ill: (SEE OTHER SIDE FOR ADDITIONAL CONDITIONS) No work shall be done under this permit until the Grantee shall have communi- cated with and received instructions from the District Highway Engineer of the Massachusetts Highway Department,' at 2 Commerce Park Blvd., P.O. Box 111 Middleboro, Ma. 02346-0111 Tel. (508) 947-9000 This permit shall be void unless the work herein,c l completed' before MAY 21, 1993 ontem Pate d shall have been Dated at 'Middleboro this .21st day of May, 1992 GSN:gls MASSACHUSETTS HIGHWAg TMEcc: ForemanBy H]1D-604 rd McCourt L. V District Highway Engineer {.rL)171ITL0lZL1 tCztP1 D �'.�����gQG' EA AMENDMENT PER 11T BARNSTPABLE Subject to all of the terms, conditions and re-strictiors ;printed or written below, and or, the reverse side hereof, .permission is t e,:eby granted to t!.e BELL TO,;ER CCkPOPATION John T. Call r 1 = , 'r. j ,- �r . ahar: III, 600 almowc.: Read, 1ni -��, Cenr�erville, MA 02E32: AMENTMENT TO PERMIT #7-25723. This permit is being ended to change the use Ercm 3,S?7 s bt.. or-J.c: building to a 1,760 sq. ft. service station/re-tail service balding. ' The bLt:.11C1i.ng will r-orsist of 1220 sq. ft. Service_ s'_aLion (3 Says) r1a 56- zq. Lt: retu_1 service area. This building will be accessed by the proposed driv_; ay at cenY__-1ine Starion 341T2 - t ri� i ? ;1d 7. Any change �n ,1 e ;,.: ad- di a�,.: tc 5u d'' �u_ .,;.ng w.._._ rp�zire L; e Grar:tee too re-apply to this office- for a new permit. The proposed building i5 sho,,m on plan entitled "Flare ._.r Land i,- C&nter,/ is MASS e Sarnstablc, !'tAS—S Showing proposed S:urb cut and proposed :u 1 d-' :-i o� Au1torliQc1 Fpair 5hog" drafted by Down Cape Engineering, .:nc. and rdvised Jane 25, 1_92. must adhere to the ar+ginal stipul_it'ons P _ it _>aid e rr,12'.1- _it,_ +C1.10 (SEE OTHER-SIDE- FOR ADDITIONAL CONDITIONS) ' a ` NO NORM SHALL BE DONE UNDER THIS. FERPdIT UNTIL THE 3RANTz SHALL HAVE WITH RECEIVED INSTRUCT G S ? DISTRICT HiSHrAX DIRECT R wn TH` 1-!:. A'-_H SETTS HlOzH?dAY DEPA.RTr-fEN:P, AT i000 CCU1111! STREET, TAJNTON. ilA THIS PERMIT T SrIA?, : BE 'VOID UNLESS TIC WORK MEREL11 CCNInnif A.ED SiUku N.c%AJE 3EE" �0; '_�"'ED BEFORE l4AY 21. 1993. DATED AT TAMM14 THIS 2IH FDXf OF6 DE(MeM, 1992. MA.SSACHUSETTS HIGWAY ,DEP 1H ENT �Yz BERNARD MCCoURT DISTR_CT HIGHWAY D7 CAR cc: Foreman i SITE PLAN REVIEW CERTIFICATE 0F. REVIEW I certify that Centerville 'Associates/Heritage Research (applicant's name) has submitted a site'plan SP-29-92 (site plan review ID number) pursuant to Barnstable Zoning Ordinance, Section 4-7, and that such site plan has been reviewed and is deemed approvable for purposes of submission ` to the Zoning Board of -Appeals .by the site Plan Review staff. ; _ Buildi C ission rJ ;r' his designee December 17, 1992 date of action ' a i A $a�ze General Contractors/Developers &Custom Builders February 1, 1995 Mr. Ralph Crossen Town of Barnstable Building Department Hyannis, MA 02601 Re: Office Building, 1597 Route 28, Centerville, MA Dear Mr. Crossen: It was a pleasure meeting with you recently. This letter will confirm our discussions regarding the extension of Building Permit No. 36479. To refresh your memory, a building permit for the above referenced project was issued on February 7, 1994. Work has proceeded, including a foundation that is currently in the ground, some drainage and miscellaneous site work. Shortly after the work was started, John T. Callahan, III, owner, started negotiating with a prospective tenant regarding some changes to the building plans. After long and drawn out negotiations, including some proposed changes to the building plans, the deal fell through. We are now ready to again start construction based on the building plans that you would have in your file drawn by Terry Luff, Archi- Tech Associates, a new copy of which I am enclosing. As you are aware from our conversations, the original permits were subject to the issuance of a State DPW curb cut permit, which was issued and I have enclosed for your review. The original approval by site plan review called for the road work to be completed prior to the issuance of an occupancy permit, as is indicated in the attached letter. 59 Pleasant Streeto Randolph, Massachusetts 023680 617-963-3618 1600 Falmouth Road• Unit 40o Centerville, MA 02632o 508-778-2400 6� Page 2 - Ralph Crossen, Town of Barnstable Per our meeting you indicated that prior to extending the building permit you would like to have the road work bonded off. John T. Callahan & Sons will agree to bond off the road work and we have forwarded all appropriate plans to Steve Seymour at the Engineering Department so that he could come up with an estimate for bonding. If you have any questions or comments, please don't hesitate to call. Very t ly yours, Douglas W. Lebel Director of Construction & Marketing DWL/cc Enclosure /13427 i� ­Ii T V1,41 rX V:f'7 it, `4 1 1,10 01 It 1) 1.�.A it. m It. AIL 54 RevIsIons: J- 1 1 T I DATE .41 Desaw I ON r 54 9-27-89 REMSED 12-27-89 SITE PLAN 0 L -4-41 4 Lows t j,1,;� 7 4V JL 0 BELL TOWER ENTRANCE 14� 55 �,44'44 11 P AVE CEDGE 0 F 1 208.3' SCALE: j, References r MAP ;OF P AVE PLAN, 0 F LOCU S I t EDGE` TR AV M 84 , (CENTERMLLE),�,.FOR SOLCOWS:': ASSESSOWS C�GROUP IZATM'S :86. rBY ;THE,,,BiS. 4 tLO C T U T,SIZE ! 46,000 Sr,,� (CENtt�vILLE)'�,13AR M Oft' '"CENTER M LLE,�'ASS 6.� SET BACKS ,FRONT, 0 * �, 0 SIDES ,' 'A Y .5" PkLF$ARED 'F GHV 20: WOE STATE HI Lj -AT-r'(BO' 28 E N G E R I N G INC.� ) OUTE ZONING VARIANCE REQUI`RED 12''ZoIX r itPAVE EDGE -F OF BIKE PATH TO BE REGRADED ACCELERATION LANE IN THIS SE ON. (MAX. GRADE 55 17., CONSTR CT TO TOWN STANDARDS) ---- Project UTILITY POLE D OF. 'ANE;,,� L PAVE LERATION# EDGE _R�iEAD C4 E BIKEPATH 8..5' WID R=30'(PER STATE PLRMIT 7- 2.50 M H.B.(DO NOT D'STURB) NJNL C E N-mi, E,R F O'E SED 7 2 2 1.N; f ALIPER A4E "71 tS IGN W/LIGHT 1­10' WIDE GREEN BUFFER e. )PU ED CH PIT PROPOSED 120' OF 6' HIGH STOCKADE S?�p EET SEE 2) FENCE (58.0) (SEE�'DETAIL.,S EET 2) tCHt 8ASIN PROPOSEO 'CA BOWER (SEE DETAIL :: .''V`iI L PROPOSED LE CH PIT y (SEE DETAIL SHEETr2) OPOSED CATCH BASIN 4w vII SH EET 2) LIGHT E�$,W&EDA RIM=(55.5) 5 .3 GE 6 AAh SKEEV 2) 6' BIT. '(SEE DETAIL ONC. CUR ------------— Hu ,�Al AG�,ZY TE GHT w 57 5.00, 24.00 Bu 11 T. C NC CJF c3 56 (6- EVLAL) 2" CALIPER AP PRO OSED LEACH P11 I 0.()U W/ MANHOLE COVER �aEt-LEFT (SEE DETAIL SHEET 2) UNDISTURBED R2.50' 58 ,;j 2.50' R 100% RESER`VE LEACH AREA EXISTING TREES TO REMAIN;.i,, 4�Atk t 4vj. 0 M 1 N'j 0 0 f 57 58 2 57 0 17 -526' S S W I F T S S E M B LY�1'.r 56 F ,�4 0 UST t'ROPOSED D-BOX .40 AC. L AlTH .H. COVER 57 �(SEF DETAIL SHEET 2) w 58.0 0 +1 -It R A V P—7 4" CHEDUIE 40 CEL.��GAt ULI TAI VIC. PIPE CALIPER LE S 1ON (57�3) RESIDENTIAL: �IJSE wi, 2(p 00P§TtR, �A& HB ZONE" -poll PROPOSED 'D fIC3.00, CONCRETE: WALK (4-; OVV-GRADE)' REINFORCED CONC, SLAB),_ 77 BRICK f.K�IVN t 4 1 H I GH ,STO A FOUNDATION PLANTS FENCE :7,2 GA 4 IT IV son Associates 0 3.OF Inc. .56. L r TIC TANK VADE BIT. CONC. COVERED SEP T A I IRS O SiDEWAA—K ostW4 57 COVE�ED 'n SIDEW Dr,awlng, t S OFFICE 3' WDE BIT. CO STAIRS 15, 5' TOP FOUND. 59.0 P.V.C. P1 (Tyl OENb OVERLAY DISTRICT AP 12' tXISTING.- EL6X116Ns 55.4 DRAINAGE SYSTEM# 4 Z) �,r �-L , �1".. BUILLIDING AREA: 30' X 38'=1140 41; ' PR SFD .0 4.0) qPROP0SM,!tLtVATION Ik L 11 ' X 18'= 198 DOWNSPOU 14' X(16'+14') 420 y sti N cir it 11 dl!. (TYP) �52 IV� =1 758 IN 'A N N E;141� FIRST FLOOR TOTAL 56 G .0 PROPO 0. 18 bRAINAbE,' ............... SE I �', , 4� EXTERNAL STAIRS =150.5 R0POSMdASikJN8 SYSTEM 3---/ TOTAL =1908.5 600 GAL LEACH PIT LOOR COMBINED 3817 SF ORT' STONE \ 1 5'±: W/1 JVi 0 17' V483 PARKING REQ'D.: 3817 300 13 SPACES C4 1 BUSINESS 1 EXISTING 'TREES TO REMAIN UNDISTUR D k AL­ 55 17 PROMDED (INCLUDED 2 H.C.) 32 Scale.. tTREES: 21 8 3 REQ'D- -(3 SHOWN + UNDISTURBED AREAS) ' 0 10 20 , 25 J'FEET� 56 08.5 7.526 X 100% 10.9% Date: 9-20-89 Dw g N a: 'R.S TRAVEL LANE H WA Y) Desl n: C. ------------ 4y Check: 'Draw n J.VA3. 'Shea 01 2.0454'0'.." 55 Job N , ",„ it• ..v .t r ,a,.. ♦ .. , ,. .,... ». ,_. '. .-, a ,. 'N... ., - 2 ,a„�,.,p �k " 4 MQ a rr^ ,. •,, `fit_ _ . s .. f ,8�..,.w.,. . .. y�' F ... , J p { �X •Of r' _,' Mk r. .. qy,^ , , a,.: x✓.. s., ,<.,,-4,.-,..t,:L..:,...f n. .6yy AF t c as 1 a_' . ..>4 . �Y.. ,. 1 FR, 5w .i:,in '♦M' ;'�` v.'X (' ; �X;.-_.. �r - ,.{SK ,r ,:., ..,.. ',....y ..,. ^.'YR .• . ..i,'e.a ,•'�i�., ,�. t`n •wr ;E ,�':,y ... :,. Y .. s�. 2,.rr',• .• _:^-. .y.w•r, t-, •5,,,.,. .*:. ! `>�z.,,... '.ii'"' -r�'#'f., u wx*' - ..,...,,tiv ,,:. ., t, -..;...' ,�'.-5:,,..._:... ...-. .,_ ,'3'. � .:., 3 r L ��y�� � z���'1 r*r. :'•t .a•� z. rl,>„�.a,.. v y w 4, s�yr _� a �� .• - Vfti.,�ri4,, I"-Y-*I�+.fi B. w � �1'.F.—..___.__.._. "'y,�� $r ., `z�2 i h F uj Y U (p N 4 W v. n Cot. M a'2'j v s1KI rfltJQ t',i�AA.11 , fi- - Al- .. 2 �} GG�i'(, Tc�P to" 1Ectuc�. boxua�. Tyr. I�3 I D J 1 N i O„ �� F � t5•l,dy. C�•1♦J r I`y i t z „ to o \ �, <,� ry fiC�UF•1raCs.-Tlc�r`°o w w w 2 itlC�lt7RIMF�[' K �, INSULA'TIt3►JRR..Cr I r Ow r� ` L„/' V) < c� can i w — --- O ~ \ j � � QWz ¢ � � �-- u � � ' \ \ r J All��''e^N w O -j U •i-.} .SG. �; I~(.O. p W 12A46 FWS14 / a°O twr� n CO)�Ljul ul 0 Z w Z r - c Q Z ... r fir• cm tl C:,�G S T-7 A( -f-['.>✓l [' H'T/ L�llr o N r. mLLJ Z I �- .;; t•� Ge�+�t F? .ahttP ! CiNEIZ.�L NOTES. cr �n►,t Q o~ o T ' _ I.SUIVERIMPOSED LOAD FOR FIRST FLOOR AND SECOND FLCX)R. > S r0 w U Z aP a TO C+1\ ITT r7C1 T S/�46 �1 X )b-- c G�/%r }5(QiG DL-20 PSF(PARTITIONS) LL-SO PSF � w r f�� r f DL-10 PSF FLOOR LL*100 PSF(LOBBIES) O w O O T- O X Z W ' N ROOF:I.L-25 PW -1 � - __ _.--__—.--- -_--.___-__ __. I � •- • .+• WIND:DBi1BQ➢'dDL(7AD-21 PSF Y MAMINO-36 o SECONDARY ➢SF ) --T— . �r•C�a —yam _ SUPS f0 EXCEED 113G0 FOR TOTAL N �t K ( biz�1,�/ ���� ttiJ PROVIDE I30'T -- — 11 y 1 "I^ >`r, riJp tAs VIP P. - 7 2.ALL TLC)OR JOi&1 S SHALL HAVE MANl1Fle4`713RkR SUBMIT SHOP DRAWINGS to 40 O O a � 3 I *'x t 171 P T. i V � w Fl•US>rl dt Stz f War,c.w �'/z'r ' i ` I ri TO BE APPROVED BY A REGISTERED PROFESSIONAL ENGINEER IN MASSACHUSETTS. w <n a ► ± t,, _ __.._ __ _. 3 ALL WOOD BEAMS!b-29W PSI ~� ao � Is Ian J` ------. ip -'-_--._..__. .�r i _._ __._ __—_. 4. ALL CONCRETE.3000 PSI @ 29 DAYS PROVOE 2-#5 CON'I-.BARS f>a60 ksi `•-+-i O" ,*"T mot► F�uPS Q o.G. `� TOP do BOTTOM OF ALL NEW WALLS. rw � r a N I I"r1' r•�,.1. �.(�' CL � 1--� L 71- 2 5,ALL MASONRY fm-2400 PSI PROVIDE 2-#5 PERT.(4 32"O.C.W1#9 TRUSS 5 BARS EVERY OTHER COURSE,TYPICAL. O W 8 0 - - n.ALL CONSTRUCTION IN ACCORDANCE WITH THE MASS.BLDG CODE J < 6411 EDMON. i -`---' ___ lwqu_.w/ rMU 7v lM. Z 'fi �._____�.— ____-, _—_-- _ _ ASSIiMEDSEARINGCAPACITY-2TONSPSF. O .__ !� ._ _r ..s- 3.1'I`�G}aX 1(�/bi t.Vt. 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