HomeMy WebLinkAbout0000 POWERS DRIVE s ®P'OVI ERS DRIVE ASSOC. A "`
' { LEGAL GUIDANCE CORRES.
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John C. Doriss
61 Powers Drive
Centerville, MA 02632
Thomas Perry
Town of Barnstable r
Building Commissioner
200 Main Street
Hyannis, Massachusetts
May 29, 2007
Dear Thomas Perry:
I regret that I feel compelled to write to you in your official capacity, regarding the yet
incomplete issue of a proposed dock at the end of Powers Drive in Centerville. A record 1�
can easily be produced from a letter'written by your office dated June 11, 2006. The letter
was written to me as well as other abutting neighbors on Powers Drive. In the letter,the
Building Commissioner, through the office of the Building Division, reviewed a 6/7/06
Zoning Board of Appeals decision to withhold any approval of dock construction, at that
site.-."Therefore,'a'concluded.'the'coirimissioner, "We are'iiotifyirig all abutterslisted
Corrective'action mu§iJbe°aecomplis&&e ..: if ihis structure is'not'removed':. .this office_
wi=11'take the riecessary'steps:':::::.and seek monetary,compensation from the individual '
'owners ..:. :":Finally,'•the office concludes`with,"This office looks forward to`'your'' ` .
anticipated cooperation."
From the closing sentence, I am prepared to say that I have cooperated I have hired
outside legal counsel on my behalf. I have received updates on what I believe to be the
major rights and privileges. I have been told the full extent of the conservation issues as
they apply to "The Coastal Bank" and the setbacks of the neighbors.
On November 6, 2006 the Conservation Division issued an enforcement order regarding
DEP file SE3-4317, the very same dock in question. In it the agency stated that the,
"Applicant of the project.... To seek approval from the Commission, or remove the
structure." "Failure to meet these deadlines......and a non criminal citation of $300.00.
Failure to comply with thisorder may constitute grounds for additional legal action."
Soon after this notice, all of the steps heading down to the water, and especially those that
were actually touching the water, were quickly removed. The purpose of this letter is to
inform you that the seven remaining pillars that were holding up the, now removed
stairwell,re"main mstahed in the Coastal Bd,an�dlwithip yrivatd way. The presence of
these-pilings now'block'';any usual access to-the water as is likely to'be expected on'a way
in--thi§466ti6h. Issues of this nature are m N,news regularly,and are certainly on'
people's"minds':We need only to get tglc�n � �$�"Cape Cod Times Wednesday
May.2, 2007 and find the article, "A oad to Nowhere !"
-
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Believing as I do, that fundamental issues of rights and privileges, ultimately get settled
in court, setting the standard for"ways" and their usage is apparently clearing Superior
Court in Barnstable. In the Civil Action No. BAC2004-00571-A in request for Summary
Judgement the Thomas' complain against a George White in the absence of a Chapter 91
E License, "...which resulted in the removal of the floats and the closing of the pier."
(page 4. 7/24/06) This court dispute is the heated issue of piers on Follins Pond, at the
origin of the Bass River. In addition, on page one of the same document, "Because...is
not necessary or essential for foot passage accessing the water and because of the
following, we are asking the court to permanently enjoin....." In addition, in argument
#3. Yarmouth Conservation's general.condition#2 states, "This order does not grant any
property rights or....It does not authorize any injury to...property or invasion of private
rights and DEP's standard waterways license#6...nothing shall be construed as
authorizing encroachment in, on or over property not owned or controlled by the
Licensee...."
I have enclosed several recent photographs of the condition of the private way
approaching the water. I must insist that you fulfill your job as building commissioner,
As you see fit and remove or order removed, the support pilings blocking the access and
general usage of the Powers Drive terminus. The Conservation Commission offered its
Order of Conditions once it was made clear of the invasion to the water. An awkward
condition between neighbors has developed since the premature installation of a support
structure. I feel powerless to make what I would consider"reasonable suggestions." My
ultimate hope is to have one or more applicant neighbors sit down with Mr. Rob
Gatewood and myself to dialogue about what natural, earthbound options might exist
suitable to Conservation, without activating a permit requirement from the building
department. We all need guidance regarding whether any boardwalk features are really
acceptable; or to what degree can an abutter assume that any practical extension of
convenience, is by nature the spirit of granting a way. This of course, is one attitude
supported By Judge Kilbourn's land court decisions. However, in Sheftel versus Lebel
44 Mass. App.Ct. 175 the land court judges decision was overturned. That leaves us back
to the July 24, 2006 Follins.Pond—Yarmouth Conservation....."No injury to private
property." I hope your department can solve this
Sincerely,
John C. Doriss
y4i,
1
i 1,/0S/2006 09:33 FAX 508 862 4724 TOWN OF BARNSTABLE LEGAL ` 001/005
'down of Barnstable 367 Main Street,Hyannis,MA 02601
Legal Department 508-8624620; 508-862-4724 Fax
Date: 1.0-601200
FAX -SeNHEET Number of pages including cover
sheet:
To: From:
Robert D. Smith,'down Attorney
T.David Houghton,
i First Asst. Town Attorney
has. S.McLaughlin,Asst.Town Atty.
Phone: Claire Griffen,Paralegal/Legal Asst.
Fax Phone: Pam Gordon,]Legal Clerk
CC: -- ,
RE: Q
Subject:
Phone: (508).862.4620
Pax hone: 548)-862-4724
REMARKS: [] urgent ® For your review .. Reply ASAP
❑ Pleas ommon t
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= 1 08/2006 09:34 FAX 508 862 4724 TOWN OF BARNSTABLE LEGAL 2 002/005
Town of Barnstable
Legal Division -Town Attorneys' Office
367 Main Street, Hyannis MA 02601-3907
Inter-Office Memorandum
Robert D. Smith, Town Attorney Office: 508-862-4620
T. David Houghton, Vt Assistant Town Attorney Fax: 508-862-4724
Charles S. McLaughlin, Jr., Assistant Town Attorney
Claire Griffen, Paralegal/Legal Assistant
Pamela Gordon, Legal Clerk
Date: December 7, 2006
To: TOM PERRY, Building Commissioner
To: ART TRACZYK, Principal Planner, Planning Division
S
From: CHARLES S. McLAUGHLIN, Asst. Town Attorney
Subject: Maciolek v TOB— Request for Production of Documents—
Land Court, C.A. No. 06-Misc-325766 (J. Sands)
Legal Ref. #2006-0074
Gentlemen:
Attached is a communication from Attorney John R. Maciolek regarding his
action in the Land Court together with its attachment, the "Plaintiff's Request for
Production of Documents,".
Where the applicable question applies to your department, would each of you
kindly put together the necessary documents at your earliest convenience in order to
respond to said demand. We will be diarying this matter for your reply within 7 days
(December 14, 2006) and following receipt of those documents, we can fcirward the
same to Attorney Maciolek, a copy of our transmittal letter being sent to you
accordingly.
Thanks:
CSM:cg
Atchmt.
[2006-00741nemobldg&zba1 j
1`/08/2006 09:34 FAX 508 862 4724 TOWN OF BARNSTABLE LEGAL [�j003/005
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ohli O�� C
AT NE , AT.' L.Aw
250 Commercialtb*ef'I Sufi 210,0 1 Ol Qster,MA 01608
347554466.+ :s08A5_'�59
December 4,2006
Charles McLaughlin,.Esq.
Assistant Town Counsel
..• •`fowi�l-lµll
Town of Barnstable
Hyannis, MA 02601
Re: Maciolek v.Town of Barnstable
Dear Charlie:
Please find enclosed the Plaintiff's Request for Production of Documents.
Very Truly Yo /
Jo R. Maciolek, 1~sq.
am
DEC - 6 2006
Map SARNSTABLE
12/08/2006 09:34 FAX 508 862 4724 TOWN OF BARNSTABLE LEGAL 2004/005
COMMONWEALTH OF MASSACHUSETTS '
BARNSTABLE,SS. LAND COURT DEPARTMENT OF THE TRIAL
COURT,C.A.:06-MISC-325766
JUDGE SANDS
JOHN R.MACIOLEK, )
}
Plaintiff. )
VS. )
TOWN OF BARNSTABLE ET AL, }
}
Defendant )
PLAINTIFFS REQUEST FOR PRODUCTION OF DOCUMENTS
The Plaintiff, John R. Maniolek,pursuant to the provisions of Massachusetts rules of civil
procedure rule 34 (a), request that the Town of Barnstable produce the following
documents for inspection and copying at the office of Jolm R. Maciolek,Eq. 25Q
Commercial St, suite 210, Worcester,MA 01608 within the time prescribed by the
applicable rules of procedure.
1. A true and accurate copy of the Town of Barnstable zoning bylaw.
2. Any and all correspondence or memorandum between the zoning board of appeals
and any other board,committee,commission,or authority within the Town of
i
12;'08/2006 09:34 FAX 508 862 4724 TOWN OF BARNSTABLE LEGAL 1Z. 005!005
Barnstable relating to the application of the Plaintiff for the Zoning Certification
required by chapter 91 of the Massachusetts General Laws.
3. Any and all correspondence or memorandum in the custody or control of the
Town of Barnstable zoning board of appeals relating to the any applications by
any resident of the'Town of Barnstable for Zoning Certification required by
chapter 91 of the Massachusetts General Laws.
4. Any and all documents reflecting or relating to applications made for zoning
- - certification through the building; inspector or the Zoning board of appeals'.'
pursuant to chapter 91 of the Massachusetts general laws.
John R.Macial
B John R. Maciolek,.Esq.
250 Commercial Street, Suite 210
Worcester,MA 01608
(508) 755-4460
FAX(508) 755-4459 ,
_._ . CERTIFICATE OF SERVICE _ -- — -- -.
This is to certify that on December 4, 2006 a copy of the Plaintiffs request for production
of documents was mailed,postage prepaid,to council of record for the defendant Charlie
McLaughlin, Town Hall,Town of Barnstable. 367 Mayan St.,Hyannis, MA.02601
I
Town of Barnstable
Legal Division - Town Attorneys' Office .
367 Main Street,.Hyannis MA 02601-3907
Inter-Office Memorandum
Robert D. Smith, Town Attorney Office: 508-862-4620
T. David Houghton, 1st Assistant Town Attorney Fax: 508-862-4724
Charles S. McLaughlin, Jr., Assistant Town Attorney
Claire Griffen, Paralegal/Legal Assistant
Pamela Gordon, Legal Clerk
Date: December 7, 2006
To: /M PERRY, Building Commissioner
To: ART TRACZYK, Principal Planner, Planning Division
From: CHARLES S. McLAUGHLIN, Asst. Town Attorney L `
Subject: Maciolek v TOB — Request for Production of Documents —
Land Court, C.A. No. 06-Misc-325766 (J. Sands)
Legal Ref. #2006-0074
----------------------------------------------------------------------------------------------------------
Gentlemen:
Attached is a communication from Attorney John R. Maciolek regarding his
action in the Land Court together with its attachment, the "Plaintiff's Request for
Production of Documents".
Where the applicable question applies to your department, would each of you
kindly put together the necessary documents at your earliest convenience in order to
respond to said demand. We will be diarying this matter for your reply within 7 days
(December 14, 2006) and following receipt of those documents, we can forward the
same to Attorney Maciolek, a copy of our transmittal letter being sent to you
accordingly.
Thanks.
CSM:cg
Atchmt.
[2006-00741memobldgkba1]
John R: l�/Iaa.olek
ATTORNEY' AT IL
250 Commercial street+,Siute.21Q, Worcester,MA 01608
508.755;446Q•Fax 508 755 4459
Em�tl 01 k'Ifterfzon net
December 4, 2006
Charles McLaughlin, Esq.
Assistant Town Counsel
Town Hall
Town of Barnstable
Hyannis, MA 02601
Re: Maciolek v. Town of Barnstable
Dear Charlie:
Please find enclosed the Plaintiff's Request for Production of Documents.
Very Truly You
--
Jo,VR. Maciolek, Esq.
E EIVE
D
DEC - 6 2006
TOWN ATTORNEY
TOWN OF BARNSTABLE
COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, SS. LAND COURT DEPARTMENT OF THE TRIAL
COURT, C.A.: 06-MISC-325766
JUDGE SANDS
HN R. MACIOLEK JO )
Plaintiff, )
VS. )
TOWN OF BARNSTABLE ET AL, )
Defendant )
PLAINTIFFS REQUEST FOR PRODUCTION OF DOCUMENTS
The Plaintiff, John R. Maciolek, pursuant to the provisions of Massachusetts rules of civil
procedure rule 34 (a), request that the Town of Barnstable produce the following
documents for inspection and copying at the office of John R. Maciolek, Eq. 250
Commercial St, suite 210, Worcester, MA 01608 within the time prescribed by the
applicable rules of procedure.
1. A true and accurate copy of the Town of Barnstable zoning bylaw.
2. Any and all correspondence or memorandum between the zoning board of appeals
and any other board, committee, commission, or authority within the Town of
Barnstable relating to the application of the Plaintiff for the Zoning Certification
required by chapter 91 of the Massachusetts General Laws.
3. Any and all correspondence or memorandum in the custody or control of the
Town of Barnstable zoning board of appeals relating to the any applications by
any resident of the Town of Barnstable for Zoning Certification required by
chapter 91 of the Massachusetts General Laws.
4. Any and all documents reflecting or relating to applications made for zoning
certification through the building inspector or the zoning board of appeals
pursuant to chapter 91 of the Massachusetts general laws.
John R. Maciol
BI John R. Maciolek, Esq.
250 Commercial Street, Suite 210
Worcester, MA 01608
(508) 755-4460
FAX(508) 755-4459
CERTIFICATE OF SERVICE
This is to certify that on December 4, 2006 a copy of the Plaintiffs request for production
of documents was mailed, postage prepaid, to council of record for the defendant Charlie
McLaughlin, Town Hall, Town of Barnstable, 367 Main St., Hyannis, MA 02601
f
� INE.4 Massachusetts Department of Environmental Protection
o Bureau of Resource Protection - Wetlands DEP File Number:
WPA Form 5 - Order of Conditions SE3-4317
��
s Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP
and Town of Barnstable Ordinances Article XXVII
A. General Inforrrnation
mportant:
Nhen filling From:
)ut forms on Barnstable
he computer, Conservation Commission
Ise only the
ab key to This issuance if for(check one):
nove your
:ursor-do Order of Conditions
lot use the
sturn key. ❑ Amended Order of Conditions
To: Applicant: Property p y Owner(If different from applicant)..
Damian Dupuy
Name
Name
35 Powers Drive
Mailing Address Mailing Address
Centerville MA 02632
City/Town State Zip Code City/I own
State Zip Code
1. Project Location:
end of Powers Drive Centerville
Street Address 'City/Town
167
Assessors Map/Plat Number Parcel/Lot Number
2. Property recorded at the Registry of Deeds for:
Barnstable
County
Book Page
Certificate(if registered land)
3. Dates:
August 11, 2004 October 12, 2004 OCT "� 200
Date Notice of Intent Filed Date Public Hearing Closed Date of Issuance
4. Final Approved Plans and Other Documents (attach additional plan references as needed):
Site Plan
Title Dec. 23, 2003
Date
Title
Date
Title
Date
5. Final Plans and Documents Signed and Stamped by:
Peter Sullivan, PE
Name
6. Total Fee:
$316.00
(from Appendix B:Wetland Fee Transmittal Form)
paform&doc•rev.10/15/04
Page 1 of 7
OFT,1E, Massachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands DEP File Number:
•..w,4CL, _ : WPA Form 5 - Order of Conditions SE3-4317
e
�p �� :�0
rEp� Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP
and Town of Barnstable Ordinances Article XXVII
B. Findings
Findings pursuant to the Massachusetts Wetlands Protection Act:
Following the review of the above-referenced Notice of Intent and based on the information provided in
this application and presented at the public hearing, this Commission finds that the areas in which work is
proposed is significant to the following interests of the Wetlands Protection Act. Check all that apply:
❑ Public Water Supply ❑ Land Containing Shellfish
® Prevention of Pollution
❑ Private Water Supply ® Fisheries
® Protection of Wildlife Habitat
Groundwater Supply ® Storm Damage Prevention ® Flood Control
Furthermore,this Commission hereby finds the project,as proposed, is: (check one of the following boxes).
Approved subject to:
® the following conditions which are necessary, in accordance with the performance standards set forth
in the wetlands regulations, to protect those interests checked above.This Commission orders that all
work shall be performed in accordance with the Notice of Intent referenced above, the following
General Conditions, and any other special conditions attached to this Order. To the extent that the
following conditions modify or differ from the plans, specifications, or other proposals submitted with
the Notice of Intent, these conditions shall control.
Denied because: .
❑ the proposed work cannot be conditioned to meet the performance standards set forth in the wetland
regulations to protect those interests checked above.Therefore, work on this project may not go
forward unless and until a new Notice of Intent is submitted which provides measures which are
adequate to protect these interests, and a final Order of Conditions is issued.
❑ the information submitted by the applicant is not sufficient to describe the site,the work, or the effect
of the work on the interests identified in the Wetlands Protection Act.Therefore, work on this project
may not go forward unless and until a revised Notice of Intent is submitted which provides sufficient
information and includes measures which are adequate to protect the Act's interests, and a final
Order of Conditions is issued. A description of the specific information which is lacking and why it is
necessary is attached to this Order as per 310 CMR 10.05(6)(c).
General Conditions (only applicable to approved projects)
1. Failure to comply with all conditions stated herein, and with all related statutes and other regulatory
measures, shall be deemed cause to revoke or modify this Order.
2. The Order does not grant any property rights or any exclusive privileges; it does not authorize any
injury to private property or invasion of private rights.
3. This Order does not relieve the permittee or any other person of the necessity of complying with all
other applicable federal, state, or local statutes, ordinances, bylaws,or regulations.
)aform5.doc•rev.10/15/04
Page 2 of 7
Massachusetts Department of Environmental Protection
, ` off Bureau of Resource Protection - Wetlands DEP File Number:
AB ABA = WPA Form 5 - Order of Conditions SE3-4317
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP
and Town of Barnstable Ordinances Article XXVII
B. Findings (Cont.)
4. The work authorized hereunder shall be completed within three years from the date of this Order
unless either of the following apply:
a. the work is a maintenance dredging project as provided for in the Act; or
b. the time for completion has been extended to a specified date more than three years, but less
than five years, from the date of issuance. If this Order is intended to be valid for more than three
years,the extension date and the special circumstances warranting the extended time period are
set forth as a special condition in this Order.
5. This Order may be extended by the issuing authority for one or more periods of up to three years each
upon application to the issuing authority at least 30 days prior to the expiration date of the Order.
6. Any fill used in connection with this project shall be clean fill. Any fill shall contain no trash, refuse,
rubbish, or debris, including but not limited to lumber, bricks, plaster, wire, lath, paper, cardboard,
pipe, tires, ashes, refrigerators, motor vehicles, or parts of any of the foregoing.
7. This Order is not final until all administrative appeal periods from this Order have elapsed, or if such
an appeal has been taken, until all proceedings before the Department have been completed.
8. No work shall be undertaken until the Order has become final and then has been recorded in the
Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title
of the affected property. In the case of recorded land, the Final Order shall also be noted in the
Registry's Grantor Index under the name of the owner of the land upon which the proposed work is to
be done. In the case of the registered land, the Final Order shall also be noted on the Land Court
Certificate of Title of the owner of the land upon which the proposed work is done. The recording
information shall be submitted to this Conservation Commission on the format the end of this Order,
which form must be stamped by the Registry of Deeds, prior to the commencement of work.
9. A sign shall be displayed at the site not less then two square feet or more than three square feet in
size bearing the words,
"Massachusetts Department of Environmental Protection"[or, "MA DEP"]
File Number SE3-4317 is
10. Where the Department of Environmental Protection is requested to issue a Superseding Order, the
Conservation Commission shall be a party to all agency proceedings and hearings before DEP.
11. Upon completion of the work described herein,the applicant shall submit a Request for Certificate of
Compliance (WPA Form 8A)to the Conservation Commission.
12. The work shall conform to the plans and special conditions referenced in this order.
13. Any change to the plans identified in Condition #12 above shall require the applicant to inquire of the
Conservation Commission in writing whether the change is significant enough to require the filing of a
new Notice of Intent.
14. The Agent or members of the Conservation Commission and the Department of Environmental
Protection shall have the right to enter and inspect the area subject to this Order at reasonable hours
to evaluate compliance with the conditions stated in this Order, and may require the submittal of any
data deemed necessary by the Conservation Commission or Department for that evaluation.
i
4aform5.doc•rev.10/15/04
Page 3 of 7
Massachusetts Department of Environmental Protection
, '; Bureau of Resource Protection - Wetlands DEP File Number:
RAMSTABM WPA Form 5 - Order of Conditions SE3-4317
.�.Mp<. �`� Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP
' a
and Town of Barnstable Ordinances Article XXVII
B. Findings (cont.)
15. This Order of Conditions shall apply to any successor in interest or successor in control of the
property subject to this Order and to any contractor or other person performing work conditioned by
this Order.
16. Prior to the start of work, and if the project involves work adjacent to a Bordering Vegetated Wetland,
the boundary of the wetland in the vicinity of the proposed work area shall be marked by wooden
stakes or flagging. Once in place, the wetland boundary markers shall be maintained until a
Certificate of Compliance has been issued by the Conservation Commission.
17. All sedimentation barriers shall be maintained in good repair until all disturbed areas have been fully
stabilized with vegetation or other means.At no time shall sediments be deposited in a wetland or
water body. During construction, the applicant or his/her designee shall inspect the erosion controls
on a daily basis and shall remove accumulated sediments as needed. The applicant shall immediately
control any erosion problems that occur at the site and shall also immediately notify the Conservation
Commission, which reserves the right to require additional erosion and/or damage prevention controls
it may deem necessary. Sedimentation barriers shall serve as the limit of work unless another limit of
work line has been approved by this Order.
see attached
Findings as to municipal bylaw or ordinance
Furthermore, the Barnstable hereby finds (check one that applies):
Conservation Commission
❑ that the proposed work cannot be conditioned to meet the standards set forth in a municipal
ordinance or bylaw specifically:
Municipal Ordinance or Bylaw Citation
Therefore, work on this project may not go-forward unless and until a revised Notice of Intent is
submitted which provides measures which are adequate to meet these standards, and a.final Order of
Conditions is issued.
® that the following additional conditions are necessary to comply with a municipal ordinance or bylaw,
specifically:
Article 27 of Town Ordinances
Municipal Ordinance or Bylaw Citation
The Commission orders that all work shall be performed in accordance with the said additional
conditions and with the Notice of Intent referenced above. To the extent that the following conditions j
modify or differ from the plans, specifications, or other proposals submitted with the Notice of Intent,
the conditions shall control.
i
i
i
VPWOM15.doc•rev.10/1 s/04
Page 4 of 7
SE3-4317 Dupuy
Approved Plan=December 23,2003 Site Plan by Peter Sullivan,PE
Special Conditions of Approval
I. Preface
Caution:Failure to comply with all Conditions of this Order of Conditions can have serious consequences.
The consequence may include issuance of a stop work order,fines,requirement to remove unpermitted
structures,requirement to re-landscape to original condition,inability to obtain a certificate of compliance,
and more.
The General Conditions of this Order begin on page 2 and continue on pages 3 and 4. The Special
Conditions are contained on pages 4.1,4.2 and 4.3 if necessary.All conditions require your compliance.
11. Prior to the start of work,the following conditions shall be satisfied:
1- Within one month of receipt of this Order of Conditions and prior to the.commencement of any work
approved herein,General Condition number 8 (recording requirement)on page 3 shall be complied with.
2. It is the responsibility of the applicant,the owner and/or successor(s)and the project contractors to ensure
that all conditions of this Order are complied with. The applicant shall provide copies of the Order of
Conditions and approved plans(anti any approved revisions thereof)to project contractors prior to the start
of work. Barnstable Conservation Commission Forms A and B shall be completed and returned to the
Commission prior to the start of work
3. General Condition 9 on page 3(sign requirement) shall be complied with.
4. The Conservation Commission shall receive written notice 1 week in advance of the start of work.
III. The following additional conditions shall govern the project once work begins.
5. General conditions No. 12 and No. 13(changes in plan)on page 3 shall be complied with.
6. The Conservation Commission,its employees, and its agents shall have a right of entry to inspect for
compliance with the provisions of this Order of Conditions.
7. There shall be no disturbance of the existing salt marsh.
8. No CCA-treated or creosote-treated materials shall be used.
9. The proposed stairs shall be constructed a minimum of one foot above grade without solid risers.
10. Deck plank spacing shall be at least one half inch. The proposed grated decking shall be installed.
Page 4.1
The following special conditions in italics shall govern boat use at the approved pier. These
conditions shall continue over time. Note: For purposes of this Order of Conditions,the term"pier"
shall refer not only to the linear pile-supported structure,but also to any of its components or
appendages such as the float(s),ell,tee,ramp,outhaul piling,etc.
11. No motorized craft shall be used or berthed at the approved pier,given the conditions of insufficient depth
and mucky substrate.
12. Boats berthed at the pier shall not ground at low tide.
13. Boats shall only be berthed at the ell.
14. A small sign shall be displayed at the end of the seasonal the pier. It shall read
SE3-4317 Limitations:
• No motorcraft allowed
15. Any desired pier lighting shall receive prior approval of the Conservation Commission or Department.
16. Lead piling caps shall not be used.
17. Work on the pier shall ensue mid-tide rising to mid-tide falling or as otherwise necessary to prevent the
grounding of the work barge on the substrate.
IV. After all work is completed,the following condition shall be promptly met:
18. At the completion of work,or by the.expiration of this Order,the applicant shall request in writing a
Certificate of Compliance for the work herein permitted. Barnstable Conservation Commission Form C
shall be completed and returned with the request for a Certificate of Compliance Where a project has been
completed in accordance with plans stamped by a registered professional engineer,architect,landscape
architect or land surveyor,a written statement by such a professional person certifying substantial
compliance with the plans and setting forth what deviation,if any,exists with the record plans approved in
the Order shall accompany the request for a Certificate of Compliance.At the time of the request for a
Certificate of Compliance an updated sequence of color photographs of the undisturbed buffer zone shall
be also submitted.
Page 4.2
NOoFa Massachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands DEP File Number:
iMAS&. WPA Form 5 - Order of Conditions SE3-4317
v �
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP
and Town of Barnstable Ordinances Article XXVII
B. Findings (cont.)
Additional conditions relating to municipal ordinance or bylaw:
see attached
This Order is valid for three years, unless otherwise specified as,a special condition pursuant to General
Conditions#4, from the date of issuance.
Date
This Order must be signed by a majority of the Conservation Commission. The Order must be mailed by
certified mail (return receipt requested) or hand delivered to the applicant. A copy also must be mailed or
hand delivered at the same time to the appropriate Department of Environmental Protection Regional
Office ee pendix A and the roperty owner (if different from applicant).
Sign tur
l
On
Day Of
Month and Year
before me personally appeared
J ,�-mes L ANe_
to me known to be the person described in and who executed the foregoing instrument and
acknowledged that he/she exe exam s his/her free act and deed.
Nbterfy Public
My Commission Expires
This Order is issued to the applicant as follows:
❑ by hand delivery on by certified mail, return receipt requested,on
Date OCT 2 7 2004
Date
VpaformS.doc•rev.10/12/04
Page 5 of 7
Massachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands DEP File Number:
11VPA Form 5 - Order of Conditions SE3-4317
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP
and Town of Barnstable Ordinances Article XXVII
C. Appeals
The applicant, the owner, any person aggrieved by this Order, any owner of land abutting the land subject
to this Order, or any ten residents of the city or town in which such land is located, are hereby notified of
their right to request the appropriate DEP Regional Office to issue a Superseding Order of Conditions.
The request must be made by certified mail or hand delivery to the Department, with the appropriate filing
fee and a completed Appendix E: Request of Departmental Action Fee Transmittal Form, as provided in
310 CMR 10.03(7) within ten business days from the date of issuance of this Order. A copy of the request
shall at the same time be sent by certified mail or hand delivery to the Conservation Commission and to
the applicant, if he/she is not the appellant.
The request shall state clearly and concisely the objections to the Order which is being appealed and how
the Order does not contribute to the protection of the interests identified in the Massachusetts Wetlands
Protection Act, (M.G.L. c. 131, §40) and is inconsistent with the wetlands regulations (310 CMR 10.00).
To the extent that the Order is based on a municipal ordinance or bylaw, and not on the Massachusetts
Wetlands Protection Act or regulations,the Department has no appellate jurisdiction.
D. RecordingInformation anon
This Order of Conditions must be recorded in the Registry of Deeds or the Land Court for the district in
which the land is located, within the chain of title of the affected property. In the.case of recorded land,the
Final Order shall also be noted in the Registry's Grantor Index under the name of the owner of the land
subject to the Order. In the case of registered land, this Order shall also be noted on the Land Court
Certificate of Title of the owner of the land subject to the Order of Conditions.The recording information
on Page 7 of Form 5 shall be submitted to the Conservation Commission listed below.
Barnstable
Conservation Commission
Wpafomu.doc-rev.10(15104
Page 6 of 7
i
Massachusetts Department of Environmental Protection
'►' DEP File Number:
Bureau of Resource Protection - Wetlands
snRxsrnse
WPA Form 5 - Order of Conditions SE3-4317
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP
and Town of Barnstable Ordinances Article XXVII
D. Recording Information (cont.) .
Detach on dotted line, have stamped by the Registry of Deeds and submit to the Conservation Commission.
- - --- --------- - - - - -
--------------------------------------------
To:
Barnstable
Conservation Commission
Please be advised that the Order of Conditions for the Project at:
end of Powers Drive, Centerville SE3-4317
Project Location DEP File Number
Has been recorded at the Registry of Deeds of:
County Book
Page
for:
Property Owner
and has be .been noted In the chain of title of the affected property in.
Book Page
In accordance with the Order of Conditions issued on:
Date
If recorded land, the instrument number identifying this transaction is:
Instrument Number
If registered land, the document number identifying this transaction is:
Document Number
Signature of Applicant
i
i
Wpaform5.doc•rev.10/15/04
Page 7 of 7
0U/U0 ZUUU lb:JJ rAA bU6 6bZ UZ4 lUWN UY BAKNb1'Ab" LhUAL WJUuz
9
TOWN OF BARNSTABLE
"" MAS& � ' OFFICE OF TOWN ATTORNEY
AS4
367 MAIN STREET
HYANNIS, MASSACHUSETTS 02601-3907
ROBERT D.SMITH,Town Attorney robert.smith@town.bamstable.ma.us
T.DAVID HOUGHTON, 1 st Assistant Town Attorney david.houghton@town.bamstable.ma.us
CHARLES S. McLAUGHLIN,JR.,Assistant Town Attomey charles.melaughlin@town.bamstable.ma.us
CLAIRE R.GRIFFEN,Paralegal/Legal Assistant June 6, 2006 TEL.508-862.4620
PAMELA D. GORDON, Legal Clerk FAX.508-862.4724
Please Reply our File No. #2005-0291
i
By Facsimile: 508-862-4626 f-I '
Gail Nightingale, Chairman l
Zoning Board of Appeals -
Town of Barnstable
200 Main Street
Hyannis, MA 02601
Re: John R. Maciolek, Request to Town Attorney for Review of
ZBA Application (unnumbered) for[42] Powers Drive, Centerville, MA
Our File: #2005-0291
Dear Mrs. Nightingale:
This is in response to a letter I received dated May 19, 2006 from John R.
Marciolek, the owner of 42 Powers Drive in Centerville, with respect to his purported
appeal of an administrative official's decision. He informs me that your Board has
scheduled a hearing for tomorrow evening, June 7th, on this application.
I have reviewed his memorandum and would, at the outset, observe that it is
extremely doubtful that you have jurisdiction over this matter. This appears to relate to
a certification under section 18 of chapter 91 of the General Laws relating to
certifications by local officials with respect to the compliance with zoning of proposed
structures to be licensed by the Commonwealth below the high water mark in the
intertidal zone. Please note that your jurisdiction, while it does extend to hearing
appeals under section 8 of chapter 40A of the general laws "...by any person ...
aggrieved by ... [a) decision of the inspector of buildings...", that grant of jurisdiction is
limited to such decisions as are "... in violation of any provision of this chapter ...." I
gather that the building commissioner has declined to give Mr. Maciolek the certification
he has requested, and he doubtless disagrees with the building commissioner's
position, but I hesitate to conclude that that decision is under chapter 40A, since the
certification sought is called for in chapter 91.
[2005-0291\opin-2-repowersdrvtozba]
f ' AIS/UU/LUUU 10:JJ tAA OUO OUZ 41Z4 IUWN U!` BAMNJ'lAbLh LhkxAL l£/JUUJ
Gail Nightingale, Chairman
Zoning Board of Appeals
Request for Opinion re Maciolek Application
June 6, 2006
Our File: #2005-0291
Notwithstandingthe foregoing,
g g, I would recommend that you,make a
determination as to the merits of this case in the interest of efficiency and economy of
process.
Mr. Maciolek seems to take two pasitions in his memorandum: first, that his
proposed dock would not be an accessory use, and second, that zoning does not
control uses within the layout of Powers Orive.
The first proposition is laid to rest, contrary to Mr. Maciolek's position, by the
Town's own case of Crawford v. Building Inspector of Barnstable, 356 Mass. 174 (1969)
in which (at pp. 179-180), the use of a dock is repeatedly referred to as an accessory
use-to residences, and subject to the control of zoning.
The second proposition that zoning does not extend to uses within the public way
is contrary to the holding in Building Inspector of Dennis_v. Harney, 2 Mass. App. Ct.
584 (1974), which dealt explicitly with a way other than a public way, as is Powers
Drive.
I trust that the foregoing will enable you to act on the matter before you on June
7", 2006.
Sincerely yours, \
RDS:cg Robert D. Smith, Town Attorney
Town of Barnstable
cc: John R. Maciolek
[2005-029 Mopin-2-repowersdrvtozba]
TOWN OF BARNSTABLE
OFFICE OF TOWN ATTORNEY
MASS.
+679• .� 367 MAIN STREET
rEc►u�+'' HYANNIS, MASSACHUSETTS 02601-3907
ROBERT D.SMITH, Town Attorney TEL.(508)862-4620
RUTH J.WEIL, 1st Assistant Town Attorney FAX#(508)862-4724
T.DAVID HOUGHTON,Assistant Town Attorney
CLAIRE R.GRIFFEN, Legal Assistant October 28, 2005
CLAUDETTE BOOKBINDER,Legal Clerk
Gail Nightingale, Chairman
Zoning Board of Appeals
Town of Barnstable
200 Main Street
Hyannis, MA 02601
Re: Request for Opinion re Powers Drive Association
Petitioner: Damian Dupuy, as.Representative of PDA
Property: (End of) Powers Drive, Centerville, MA
ZBA Appeal Nos. 2005-077 and 2005-078
(Special Permit Sec. 240-44.A, Accessory Uses)
Our File: #2005-0291 l
Dear Mrs. Nightingale:
You have requested an opinion whether: (1)the neighborhood association has standing
to apply for a special permit pursuant to section 240-44(A), Zoning Ordinance, of the Code of
the Town of Barnstable to construct a pier at the end of Powers Drive; (2) whether Powers Drive
can constitute an accessory lot to the principal lots on the street for purposes of section 240-
44(A); and, (3) whether a dock can be constructed consistent with rights in Powers Drive and
�> adjacent waters. This request for opinion.arises out•of an application by Damian Dupuy, as '_
representative of the'Powers Drive Association for a special permit to construct a dock at the end
of Powers Drive for use by the members of the Association.
In my opinion, the questions posed are not ripe for response because even if Powers
Drive can be considered to adjoin a principal lot, the applicant has not established that it is in
identical ownership with respect to fee interests as required by section 204-44(A). Based on a
recent telephone conference with Attorney Matthew J. Dupuy and our discussion of the contents
of this opinion, he has scheduled an office conference with us for Monday,October 31 st which
may result in a deferral of the permit application currently before you.
t
[2005-029 Mopinion l tozba]
Gail Nightingale, Chairman s
Zoning Board of Appeals
Request for Opinion re Powers Drive Association
Petitioner: Damian Dupuy,as Representative
ZBA Appeal Nos. 2005-077 and 2005-078
Our File: #2005-0291
The only reference to title to Powers Drive in the materials you submitted with your
request is contained in a letter signed by Matthew J. Dupuy, dated May 31, 2005 in which he
states in the last sentence of the first paragraph"[A]11 of the owners of Powers Drive own to the
`middle' of the road." If by that statement the author intends to say that title is governed by the
third clause of the derelict fee statute, G. L. c. 183 § 58(a)(ii), then fee ownership of Powers
Drive is.divided among the lot owners on either side and thus cannot be identical along its entire
length for purposes of section 240-44(A) so as to constitute a principal lot or adjoining lot in
identical fee simple title. Either one of the owners of lots bordering the water or a unity of title
in Powers Drive would be required to meet the title standard required under section 240-44(A). "
If such an application is forthcoming, in addition to the questions of standing by the Association
if they are the applicant and the ability to construct a dock in the wayextending into the water,
the board may wish to consider whether any public rights would exist in the dock if public
services such as plowing and maintenance are performed"by the Town-on Powers Drive.
A copy of a letter from yourself to Building Commissioner Tom Perry dated October 6,
2005 was included with the materials submitted with the above opinion request seeking his input.
I note that there is a companion pending appeal numbered 2005-078 seeking review of Mr.
Perry's refusal to sign the chapter 91 waterways application by Damian Dupuy individually, but
your request did not include any questions to this office about it.
I hope that the above is of assistance to the Board in processing the application, but if not,
or ifPyou have additional questions or need additional information, please contact me. Thank
you. ,
Sincerely yours,
TDH:cg T. David Houghton, Assistant Town Attorney
Atchmts.
cc: Tom Perry, Building Commissioner
• E
[2005-0291\opinion l tozba]
�I
Town of Barnstable
"B`gg Zoning Board of Appeals Gail Nightingale,Chairman
%6 9. .o
Planning Division - 200 Main Street, Hyannis, Massachusetts 02601
Thomas A.Broadrick,Director
Planning,Zoning&Historic Preservation
Phone(508)862-4785 Fax(508)862-4725
October 6, 2005
D
Robert D. Smith,Town Attorney 2 2005
OCT .
Town of Barnstable,Town Attorney's Office
367 Main Street
Hyannis,MA 02601 TOWN
0 ATTORNEY
TOWN OF BARNSTABLE
Reference: Request for legal guidance on Powers Drive Association/Damian Dupuy, ZBA Appeal
2005-077 -Appeal of the Building Commissioner&Appeal 2005-078 -Special Permit
Section 240-44.A—Accessory Uses, seeking to construct an association dock within the
right-of-way of Powers Drive.
Dear Mr. Smith:
The above-referenced Appeals were opened September 14,2005, at which time the Board determined to
seek your Office's review and guidance on the issues presented.
• First question posed is that of The Powers Drive Association standing to be before the Board. It
appears this group is an informal.association of neighbors, some with granted rights in Powers Drive;
and others with prescriptive rights. No formal (recorded)organization exists and no formal meeting
vote submitted. Does The Powers Drive Association have the rights to seek permits to build an
association dock?
• Second,does the private way constitute under zoning an accessory lotto the principal lot(s) it serves?.
• Third, the private way,leading to water, implies rights to access the water. Would that imply the
rights to construct a stairway and dock within the way and emendate waters? If so, who would have
that right to make those improvements? Would that use require Planning Board recognition and
r approval via subdivision control to be within the way, or would that require a separate common lot?
In addition'iyou should note certain Board Members expressed that it was more environmentally fit to
access the waters via a constructed stairway and dock than to walk over the vegetated slope.
Attorney Matthew J. Dupuy represents the applicants. He is aware of this request and has offered to
provide you with any additional information you may need. Please feel free to discuss the issues with
Attorney Dupuy. The Appeals were continued to November 2, 2005. Any advice and guidance in
resolving the issue would be greatly appreciated.
On behalf of all the Board Members,thank you and your Office for its continuous assistance to the
Board.
Respectfully,
Gail Nightingale,Chairman
Copy: ZBA Files2005-077&078 Powers Drive
Matthew J.Dupuy,Esq.,Ardito,Sweeney,Stusse,Robertson&Dupuy,P.C.25 Mid-Tech Drive,Suite C,West
Yarmouth,MA 02673
Thomas A.Broadrick,Director Planning,Zoning&Historic Preservation
Tom Perry,Building Commissioner
Attach: Copy of ZBA Files2005-077&078 Powers Drive
Town of Barnstable
o*
:
Zoning Board of Appeals Gail'Nightingale,Chairman
.AJRN
039.
� � Planning Division - 200 Main Street, Hyannis, Massachusetts 02601
Thomas A.Broadrick,Director
Planning,Zoning&Historic Preservation
Phone(508)862-4785 Fax(508)862-4725
October 6,2005
Tom Perry;Building Commissioner
Town of Barnstable,Building Division
200 Main Street
Hyannis,MA 02601
Reference: Request for input on Powers Drive Association/Damian Dupuy,ZBA Appeal 2005-077 -
Appeal of the Building Commissioner&Appeal 2005-078 -Special Permit Section 240-
44.A—Accessory Uses, seeking to construct an association.dock within the right-of-way
of Powers Drive.
Dear Commissioner Perry:
The above-referenced Appeals were opened September 14,2005, at which time the Board determined to
seek your input and assistance in fully understanding the issues before.the-Board. - Attorney Matthew I
Dupuy represented the applicants and'.presented a compelling argument that the dock should be permitted
as-of-right as it is an association dock to be located on a private-right-of way owned by the association.
The dock and stairway providing access to water would be a normal extension of the way.
In review, the proposal does not clearly fit within that envisioned for perrirtting pursuant to Section 240-
44.A-Accessory Uses by Special Permit.
The appeals were continued to November 2,2005. On behalf of all the Board Members, thank you and
your Office for.its continuous assistance to the Board. 'z
Respectfully,
Gail Nightingale,Chairman
Copy: ZBA Files2005-077&078 Powers Drive
Matthew I Dupuy,Esq.,Ardito,Sweeney,Stusse,Robertson&Du_puy,P.C.25 Mid-Tech Drive,Suite C,West
Yarmouth,MA 02673
Thomas A.Broadrick,Director Planning,Zoning&Historic Preservation
Robert Smith,Town Attorney
Attach: Copy of ZBA Files2005-077&078 Powers Drive
s
TOWN OF BARNSTABLE
ZONING BOARD OF APPEALS
MEMORANDUM
APPEAL NO: 2005—77 &78
HEARING DATE: September 14, 2005
PETITIONER: Damian Dupuy, Representative of The Powers Drive Association
REPRESENTATIVE: Matthew J. Dupuy,Ardito, Sweeney, Stusse, Robertson & Dupuy
25 Mid Tech Drive, Suite C, W. Yarmouth, MA 02673
OWNERS: 15 Powers Drive, Centerville, MA Map 167 Parcel 023
35 Powers Drive, Centerville, MA Map 167 Parcel 022
61 Powers Drive, Centerville, MA Map 167 Parcel 021
60 Powers Drive, Centerville, MA Map 167 Parcel 018
42 Powers Drive, Centerville, MA Map 167 Parcel 038
34 Powers Drive, Centerville, MA Map 167 Parcel 033
871 Bumps River Road, Centerville, MA Map 167 Parcel 032
PROPERTY: End of Powers Drive (Private 40 feet wide)Centerville, MA—Tidal Area of
Skunknet River/Bumps River shown on Assessors Map 167.
A. PLANS SUBMITTED WITH APPLICATION:
1. Site Plan of Land in Barnstable (Centerville)MA Prepared for the Petitioner by Sullivan
Engineering, P.O. Box 659, Osterville, MA&CapeSurv, 7 Parker Road, Osterville, MA
02655, one page.
B. RELIEF REQUESTED:
1. Overturn the decision of the Building Inspector.
2. The Petitioner seeks by Special Permit pursuant to Zoning By-Law, Sections 240-44.A,to
construct a dock, pier and walkway which will serve seven (7) Principal Lots on the private road right of
way.
C. FACTS&PROCEDURES:
In the Appeals before the Board,the applicants are seeking to construct a community dock at the end of a
private road right of way.
i
With respect to this Appeal of the Building Commissioner, on May 16, 2005, an application was submitted
for a Chapter 91 Waterways License Application to the Building Commissioner and the Planning Board.
The Planning Board signed off on the application however,the Building Commissioner did not.
The Building Commissioner cited his reason for refusing the"waterway license is for a structure that is not
on the same lot as the principal lot it serves."
D. CRITERIA FOR GRANT OF RELIEF/ARGUMENT:
1. Overturning the Decision of the Building Inspector.
The Building Inspector believes the Board of Appeals needs to grant a Special Permit because the dock is
not on the same lot as the principal lot. However, the instant case is distinguishable from the situation
envisioned under the By-Law,section 240-44 for the following reasons:
a. The stairway and a small portion of the dock are within the right of way and not on a separate
lot.
b. The vast majority of the dock is beyond the right of way.
c. The by-law does not address a "community" dock (seven (7)lots have rights in said dock.)
2. Granting of Special Permit.
a. 240-44 States:
The following accessory uses are permitted, provided that a special permit is first obtained
from the Board of Appeals:
In residential zoning districts, accessory uses and structures on a lot adjoining or immediately
opposite and across a road from the lot on which the principal use it serves is located, provided that both
lots are retained in identical ownership with respect to both fee and nonfee interests."
Uses accessory to permitted scientific research or scientific development or related production
only if the Board finds that such accessory use does not substantially derogate from the public good.
Such assessory use need not be located on the same lot as the principal use it serves.
b. The Board could grant a special permit pursuant to section 24044 for the following reasons:
1. In the instant case the private way abuts all of the principal lots,which is a closer connection than
"across the street".
2. Because it is a community dock within and past the right of way, the rights of the seven (7) lots within
the private road are equal in the road portion,the stairway portion, and the dock(most of which is beyond
the right of way).
3. Obviously a community dock does not derogate at all from the public good thus section b is met.
4. The small portion of the dock,which is in the right of way, is not on the principal lots.
E. CONCLUSION AND DESIRED RELIEF:
The Petitioner believes that he has met all of the criteria.necessary for the desired relief to be granted.
In order for the Petitioner to go forward with the proposal, it is necessary that the Board of Appeals grant
the relief requested.
Respectfully miffed,
Modew J. Dupuy
Attorney for the Petitioner
Ardito,Sweeney, Stusse, Robertson & Dupuy, P.C.
25 Mid Tech Drive, Suite C
West Yarmouth, MA 02673
508 775 3433
1:1BazarewskylTara\Swanson\ZONINGIdupuy final memo.doc
'town of Barnstable
Planning Division
Staff Report
omas A.Broadrick,Director .
Planning.Zoning&Historic Preservation
The Powers Drive Association/Damian Dupuy
Ap
PP eal 2005-�-Appeal of the Building Commissioner
A eal 2005-0�� Special Permit Section 240-44.A—Accessory Uses Special Permit.
These appeals seek to construct an association dock within the right-of-way of Powers Drive.
Date: September 09,2005
To: Z Wing Board of Appeals
Art Traczyk,Principal Planner
Petitioner: Powers Drive Association/Damian Dupuy
Accessory Address: Powers Drive Right-of-Way
Zoning: Residence D-1 Zoning District
Principal Addresses: Florence R.Vicario . 15 Powers Drive Centerville,MA-Map 167 Parcel 023
Damian Dupuy 35 Powers Drive Centerville,MA-Map 167 Parcel 022
John C.Doriss,Tr. 61 Powers Drive Centerville,MA Map 167 Parcel 021
Helen M.Power 60 Powers Drive Centerville,MA-Map 167 Parcel 018
John&Elizabeth Maciolek 42 Powers Drive Centerville,MA-Map 167 Parcel 038
Paula Sullivan 34 Powers Drive Centerville,MA-Map 167 Parcel 033
William Nelson 871 Bumps River Rd.Centerville,MA-Map 167 Parcel 032
Filed:August 17,2005 No Extension Hearing:September 14,2005 Decision Due:
Copy of Public Notices:
Appeal 2005-078-Appeal of the Building Commissioner-The Powers Drive Association/Damian Dupuy
has appealed the July 6,2005 decision of the Building Commissioner that denied a waterway license
application for the construction of a dock within the right-of-way of Powers Drive. The applicant is
requesting that the Board overturn the decision of the Building Commissioner. The locus is that of a private
road right-of-way created by a 1953 subdivision plan as that roadway abuts Bump's River. The locus is in a
Residence D-1 Zoning District.
Appeal 2005-077-Special Permit Accessory Uses-The Powers Drive Association/Damian Dupuy has
applied for a Special Permit in accordance with Section 240-44.A—Accessory Uses Permitted with Special
Permit. The applicant is seeking to..construct a dock,pier and walkway located within the right-of-way of
Powers Drive. The use is proposed as an accessory use to a principal permitted use. The principal lots it is
to be accessory to are shown on Assessor's Map 167 as parcel 022 addressed 35 Powers Drive, Centerville,
MA;Map 167,Parcel 023, addressed 15 Powers Drive, Centerville,MA; Map 167,Parcel 021, addressed
61 Powers Drive, Centerville,MA; Map 167,Parcel 018, addressed 60 Powers Drive,Centerville,MA;
Map 167,Parcel 038, addressed 42 Powers Drive,Centerville,MA; Map 167,Parcel 033,addressed 34
Powers Drive, Centerville,MA; Map 167,Parcel 032, addressed 871 Bumps River Road, Centerville,MA,
all are in a Residence D-1 Zoning District.
a.
u
Planning Division-Staff Report
Background:
In the appeals before the Board, the applicants are seeking to construct an association dock within a private
road right-of-way.
On or about July 27,2005, a special permit application was received at the Office of the Zoning Board of
Appeals. In early August, Staff reviewed the application to compose the legal notice and it was observed
that within the special permit application a note cited"or alternatively a decision overturning building
inspector's decision."
On August 05,2005 Staff responded to the applicant's representative with concerns for the application as
submitted. On August 12,2005, an emendation to the application citing the appropriate code section and
including a list of principal lots to which the accessory use is intended to serve.
Appeal 2005-078-Appeal of the Building Commissioner:
The Board should consider this appeal first as its outcome may,or may not,negate the need for a special
permit. In this appeal,the Board is being asked to determine if the Building Commissioner's decision is in
error and the Chapter.91 Waterways License Application should have been signed as-of-right.
For background, Chapter 91 Waterways License Applications are required for all construction within tidal
lands and waters of the Commonwealth. They are usually sent to Planning Boards,Zoning Boards and the
Town for approval and si off.l In the case of Barnstable,the Building
Building Commissioner within the To pp gn
B g
Commissioner's signature on the Municipal Zoning Certificate signifies compliance with all Town
regulations. In that instance, the application become a Chapter 91 Waterways..License and Permit to proceed
with construction.
With respect to this Appeal of the Building Commissioner, on May 16, 2005,an application under the name
of Damian Dupuy was submitted for a Chapter 91 Waterways License Application to the Building
Commissioner and the Planning Board. Apparently the Planning Board signed off on the application
however,the Building Commissioner did not. On June 22,2005,the applicant requested the Building
Commissioner reconsider his decision on the Chapter 91 License Application in light of the Superior Court
case of Leventhal(Bonnybrook) vs.the Barnstable Zoning Board of Appeals. That case found that
mechanical systems were not"buildings" as defined by the Barnstable Zoning Ordinance. Apparently the
applicant was attempting to substantiate that the dock did not constitute a building under zoning and
therefore not regulated under zoning.
1 Note: Chapter 91 Waterway License Applications submitted to the Zoning Board of Appeals Office are processed
administratively. If staff review reveals any issue,it is brought to the Building Commissioner's attention for further
review and determination.
2 Note: An Order of Conditions for the proposed pier was issued by the Conservation Commission on October 27,2004
and is recorded at the Barnstable Registry of Deeds in Book 19818,page 176.
2
I
Planning Division-Staff Report
On July 6,2005,the Building Commissioner responded,citing that the issue in Leventhal dealt with
accessory structures on the same lot not on a separate lot as is this issue. He again cited his reason for
refusing the "waterway license is for a structure that is not on the same lot[as the principal use it serves]."
As noted, a special permit application was received at the Office of the Zoning Board with a notation that
the applicant was also appealing the July 06,2005 decision of the Building Commissioner. The appeal was
received within the 30 days required by MGL Chapter 40A, Section 13. That application however was not
clocked in at the Clerk's Office by Staff until August 17,2005.
With respect to the Building Commissioner's denial,Section 240-44-Accessory uses permitted with special
permit—states that:
"The following accessory uses are permitted,provided that a special permit is first obtained from the
Board of Appeals:
"A. In residential zoning districts,accessory uses and structures on a lot adjoining or
immediately opposite and across a road from the lot on which the principal use it serves is
located,provided that both lots are retained in identical ownership with respect to both fee
and nonfee interests."
The section requires a special permit for accessory uses not located on the principal lot. In addition,it gives
rise to several issues:
1. The area on which the dock is to be located is not a lot. It is part of the private road right-of-way.
2. The Chapter 91 Waterways License Application was made under the name of Damian Dupuy, who's
address is 35 Powers Drive, (Map 167;'Parcel 22). That lot does not adjoin nor is it immediately
opposite from that area on Powers Drive where the dock is to be located.
3. The applicant Damian Dupuy, who although may have rights in the right-of-way,may not have
ownership of it in it entirety. In that instance,both properties are not held in common ownership as
required. It should be noted that a case was made to the Building Commissioner that the applicant
owns to the middle of the roadway. However,that only supports that the applicant does not own the
specific area of the way upon which the pier is to be located. Which gives rise to another issue with
respect to the right to apply for any permit at the subject locus?
Appeal 2005-077 - Special Permit Accessory Uses
With respect to the special permit application,the Board should keep in mind that Section 240-44 A
requires:
"accessory uses and structures on a lot adjoining or immediately opposite and across a road from
the lot on which the principal use it serves is located,provided that both lots are retained in identical
ownership with respect to both fee and nonfee interests."
The special permit application was emended to include a total of seven property owners, apparently each
being a member in the Powers Drive Association. Staff had attempted to secure information on the
3
f
Planning Division-Staff Report
association assuming it was created as a part of the subdivision. We were unable to find.any information
recorded on the Association. The applicant should be prepared to submit that information showing when the
Association was created,its ownership interest in the way, its organization, and the Association's vote
endorsing this endeavor before the Board for proper standing.
The subdivision that created Powers Drive was approved in 1953 as a Board of Survey endorsed plan
recorded in the Barnstable Registry of Deeds in Plan Book 111,page 7. In the plan that created the
roadway,the area that fronts onto Bumps River is identified as being"road drainage into river".
That division created six(6)lots that over time developed into three(3)housing lots due to merger. An
adjacent 3.35-acre lot was divided into two housing lots that also took access from Powers Drive. Two of
the lots cited in the application(34 Powers Drive&871 Bumps River Rd.) as part of the Association, were
created by a neighboring land division fronting on Bumps River Road.
If the applicant can substantiate standing, a.number of issues still need to be addressed.
• Will the Association have to create a separate lot for the dock? The need for the separate lot goes
not only to the issue of the zoning requirements but also to assessing and taxing of real
improvements.
• The applicant should address how this Association lot,if created,will satisfy the requirement that
"both[the principal lots] and[accessory lot] are retained in identical ownership with respect to both
fee and nonfee interests."
• The applicant should also address how this As lot,if created, would satisfy the requirement
that"the accessory uses and structures [would be] on a lot adjoining or immediately opposite and
across a road from the lot on which the principal use it serves is located"for all seven principal lots.
Plan Review:
The plan for the pier has been submitted with the application. That plan shows a 20-foot long 3-foot wide
stairway descending the slope and leading to a 28-foot long 3-foot wide pier extending into the waters of
Bumps River. At that point,the pier makes an 8-foot long"L"turn to the west. At the terminus, a ladder
descends into the water. The elevation of the pier is 5 feet above mean low water level,2.5 feet below mean
high water level. The pier extends approximately 22 feet into the water at mean high water.
The location of the pier is to the east side of the right-of-way and appears to extend over the property line
when the easterly side is extended into the waters of Bumps River. Staff has always contended and the
Board has supported that piers and docks must conform to the required setbacks from the property lines as
extended into the waterways. The side yard setbacks for this district are 10 feet. However,the lot width at
the water is only 25 feet. Meeting the required setback would result in the loss of the 8-foot"U.
4
Planning Division-Staff Report
Staff Comment:
From a Staff perspective, one pier serving seven lots would be more beneficial that seven individual piers
each serving a separate principal lot. In this particular case,however, it appears that only two of the seven
principal lots could construct piers as-of-right under the Zoning Ordinance.
In addition, the ordinance, as crafted for accessory uses,appears to not address the issue of shared accessory
uses and structures. If the issues cannot be resolved to satisfy all of the requirements of Section 240-44 A,a
variance may be necessary to provide for the pier in this instance.
Special Permit Findings:
In addition to meeting all of the provisions of Section 240-44A,as cited above,the granting of a Special
Permit requires the following finding of facts to be made by the Board:
• that the application falls within a category specifically excepted in the ordinance for a grant of a Special
Permit;
• that after evaluation of all the evidence presented,the proposal fulfills the spirit and intent of the Zoning
Ordinance and would not represent a substantial detriment to the public good or the neighborhood
affected; -
• that a site plan has been reviewed by the Site Plan Review Committee and found approvable.
Suggested Conditions:
If the Board should find to grant a permit,it may wish to consider the following conditions:
1. Development of the pier shall be built as proposed in a plan submitted entitled"Proposed Pier
Powers Drive Centerville,Mass."drawn by Sullivan Engineering,Inc., and CapeSurv, as prepared
for The Power Drive Association,dated December 23,2003. Except that the location of the stairs,
walkway,pier, and the pier's'L"shall be altered so that it maintains a 10-foot side yard setback
from the property lines as extended into the waters of Bumps River. o fu� '"Ad
A5 M0
2. The stairway descending the slope shall not exceed - oot in length. The pier shall not extend
more than 22 feet into the waters of Bumps Rive . The pier shall not be elevated beyond 5 feet
above mean low water level. Width of the structure shall not exceed 3-feet.
3. The pier shall only be built on a dedicated and defined accessory lot to be created from the end of
Powers Drive as it meets Bumps River. The ownership of which lot shall be retained in the name of
the Association"The Powers Drive Association".
4. An Approval Not Required Plan shall be prepared segmenting the accessory lot from the road right-
of-way and submitted for approval of the Planning Board. That plan shall note that the lot is
5
Planning Division-Staff Report
accessory to the seven principal lots and that its ownership shall remain in perpetuity in the name of
the association. If the association is dissolved all improvement
s on the lot shall be
removed at the
expense of the Association members and the lot shall be deeded only to an organization whose
purpose is conservation.
5. The pier shall be accessory only to the seven principal lots identified as
15 Powers Drive Centerville,MA-Map 167 Parcel 023
35 Powers Drive Centerville,MA-Map 167 Parcel 022
61 Powers Drive Centerville,MA-Map 167 Parcel 021
60 Powers Drive Centerville,MA-Map 167 Parcel 018
42 Powers Drive Centerville,MA-Map 167 Parcel 038
34 Powers Drive Centerville,MA-Map 167 Parcel 033
871 Bumps River Rd. Centerville,MA-Map 167 Parcel 032
6. The two Principle Lots, 61 Powers Drive(Map 167 Parcel 021) and 60 Powers Drive(Map 167
Parcel 018) shall not now,nor in the future construct a pier or dock on their property as this dock
shall service all of the Association members. A restriction to that effect shall be prepared and
signed by the respective owners of those lots and recorded in the Barnstable Registry of deeds
against the two parcels, a copy of which shall be submitted to the Boards files prior to any
application for Chapter 91 Waterways License Application.
7. If needed, the Association shall amend its bylaws to reflect the commitment of the Association and
each of its members to a fee that shall assure taxes are paid and the accessory lot and pier are
properly maintained.
8. Construction shall comply with the Order of Condition issued by the Conservation Commission and
all applicable Building codes.
9. Only non motorized craft shall be permitted at the pier.
10. There shall be no parking incorporated in the plan for the pier,nor shall lighting be installed along
the pier or along the stairway.
Copies: Petitioner/Applicant
Attachments:
6
ARDITO, SWEENEY, STUSSE, ROBERTSON & DU.PUY, P.C.
ATTORNEYS AT LAW
.25 MID-TECH DRIVE, SUITE C
WEST YARMOUTH, MA 02673
(508) 775-3433 Telephone
(508) 790-4778 Facsimile •
Edward J.SWeeney,Jr. Richard P.Morse,Jr.
Michael B.Stusse Betsy Newell
Donna M. Robertson Thomas P.Carpenter.
Matthew J.Dupuy Kelly S.Jason
Charles M.Sabatt Herbert F.loch,Jr.
Tracey L Taylor
Charles J.Ardito P.C. Girard C.Brisbois
PLEASE REFER TO
FILE NO. . G2127D
July 25, 2005
Mr, Art Traczyk
Town-of Barnstable
Zoning Board of Appeals
200 Main Street
Hyannis, MA 02601
Re: Application for.Special Permit -
Dupuy/End of Powers Drive, Centerville
Dear Mr, Traczyk:
Please find enclosed the following:
1. Application for Special Permit (3),
.2. Proposed Pier Plans (3)•& 1 reduced.copy.
9.. Copy-of a letter from Thomas Perry, Building Commissioner dated-
copy
6, 2005.
4, Check in the amount of $100.00.
We-are seeking relief alternatively: (1) overturning decision of building inspector; d
(2) issuance of a Special Permit.
Should you have any questions, please do not hesitate to contact me,
Thank you for your assistance in this matter.
Sincere) ,
M t ew upuy
JD,.eah
Enc.
w
BARNSTABLIL
.e7A
TOWN OF BARNSTABLE
Zoning PP Board of Appeals ` cr,
Application for a Special Permit
Date Received For office us.only
Town Clerk's Office: Appeal#--
Hearing Date-_---�—_--
Decision Due
The undersigned hereby applies to the Zoning Board of Appeals for a Special Permit,n the manner and for the `
reasons set forth below: *or alternatively a.decision overturning building inspector'P ::
decision.
Applicant Name: The Power Drive Association/sociati°n/ D Phone:508-775-3433
Applicant Address: c/o Matthew J. Dupuy, 25 Mid Tech Drive, W. Yarmouth, MA 026
73 -�-
Property Location: End of Powers Drive (Private 40 feet wide) Centerville
tidal tidal area
Property Owner: .Damian DuAuV, et al -- — j Set
_ Phone: verPS
Address of Owner:%Matthew J. Dupuy, 25 Mid Tech Drive, W. Yarmouth_,_MA o2673River
If applicant differs from owner,state nature of interest:'
Assessor's Map/Parcel Number: Map 167 Zoning District: —
Number of Years Owned: N/A Groundwater Overlay District: AP
Special Permit Requested: Section 4- 4-1.2 Special Permit_Required/Certain accessory uses
Cite Section&Title of the Zoning Ordinance —
Description of Activity/Reasori for Request: To .construct-a dock,pier and walk-way.
Attach additional sheet if necessary
Does the property have any existing Variance or Special Permit issued to it? No
Permit No.: N/A
If the applicant differs from owner,the applicant will be required to submit one original notarized letter,copy of a
proposed purchase&sales agreement or lease,or other documents with the application to prove standing and
interest in the parcel or structure.
Application for a Special Permit -Page 2
Existing Level of Development of the Property -Number of Buildings:_A
Present use(s): Access & Egress
Gross Floor Area:_ NZA sq. ft.
Proposed Gross Floor Area to be Added: NAP. sq. ft., Altered:_NSA s .ft.
q
Description of Construction Activity(if applicable): TO construct a dock, pier and walkway
Attach additional sheet and plans if necessary
Site Plan Review(required to be completed prior to applying to the Zoning Board of Appeals):
Site Plan Review Number: _ Date Approved: _
[X] -Not Required -Single or.Two Family use
Is the property located in a designated Historic District?.................................................... Yes [ ] No[ X
l
if yes [ ]-Old King's Highway Regional Historic District
Date Approved (if applicable)_
Hyannis Main Street Waterfront Historic District
Date Approved (if applicable)____
Is.the building a designated Historic Landmark?.......................: Yes [ ] No[X
Have you applied for a building permit?.....................................................:......................... Yes [X] No [
]
Have you been refused a building permit?...................: Yes [X] No [
The following information must be submitted with the application at the time of filing, failure to do so may result in a
denial of your request.
? Three (3) copies of the completed application form,each with original signatures.
? Three (3)copies of a certified property survey(plot plan) and one(1) reduced copy(8 1/2"x 11"or 11"x 17")
showing the dimensions of the land, all wetlands, water bodies, surrounding roadways and the location of the
existing improvements on the land.
? Three (3)copies of a proposed site improvement plan and one(1) reduced copy(8 1/2"x 11"or 11"x 17"),
drawn by a certified professional and found approvable by the Site Plan Review Committee (if applicable). This
plan must show.the exact location of all proposed improvements and alterations on the land and to structures.
See"Contents of Site Plan",'Section 4-7.5 of the Zoning Ordinance, for detailed requirements.
? The applicant may submit any additional supporting documents to assist the Board in making its
determination.
Signature: _ Date: C;l.� O
lApIcants _tive's �
Signature ?
Representative's _,�I�9Tjl w �.��®LJ �/ Phone: s5 �� �;L �+�73_5
a
Town of Barnstable
Zoning Board of Appeals
, Mn„aple
.: �► . Daniel M.Creedon III,Chairman
..... ED:M{K'�.. .
Planning Division - 200 Main Street, Hyannis,Massachusetts 02601
Thomas A.Broadrick,Director- Planning,Zoning&Historic Preservation
Phone(508)862-4785 Fax(508)862-4725
August 05,2005
Matthew J.Dupuy,Attorney
Ardito,Sweeney, Stusse,Robertson&Dupuy,P.C.
25 Mid-Tech Drive, Suite C
West Yarmouth,MA 02673
Dear Mr.Dupuy;
The Office of the Zoning Board of Appeals is in receipt of your application for a special permit to allow
for an accessory dock to be located within the right-of-way of Powers Drive, or in the alternative your
request of the Board to overrule the Building Commissioner's denial of your waterway license
application.
Please be aware that on January 20,2005,Town Council adopted a re-codification of the regulations of
the Town of Barnstable into the Code of the Town of Barnstable. Access to the new code is provided for
in-the-'€ovvnr web-site.-Under this new Code,the Zoning Ordinance is now referred to as Chapter 240.
The specific special permit you appear to be seeking would be referenced to as Section 240-44.A—
Accessory Uses Permitted with special permit(copy attached). As you can see that section requires: .
• The accessory use and structure to be on a lot as defined in the ordinance as"a single area of .
land in one ownership defined by metes and bounds or boundary lines ...'.
And that the accessory lot and principal lot it serves are retained in identical ownership.
Could you please submit an emendation to the application identifying that section of the new Code—
Section 240-44.A,and provide the Assessor's Map and parcel number and address of the accessory lot as
well as the Map,parcel and address of the principal lot or lots it is intended to serve. (I have assumed the
principal lot to be 35 Powers Drive, Centerville,Assessor's Map 167;,parcdI-022).
In addition, since May of 1988,the Zoning Board has had a separate application form for Appeals of
Administrative Officials (copy attached). The reasoning for the different application is due to the timing
and requirements for process.
spectfully,
Art ur P.Traczyk,Principal Planner
File letters—2005—L-000105-Dupuy accessory dock.doc
C: ZBA File
Tom Perry,Building Commissioner
ARDITO, SWEENEY, STUSSE, ROBERTSON & DUPUY, P.C.
ATTORNEYS AT LAW
25 MID TECH DRIVE, SUITE C
WEST YARMOUTH, MASSACHUSETTS 02673
(508)775-3433 Telephone
(508)790-4778 Facsimile
Edward J.Sweeney,Jr. Richard P.Morse,Jr.
Michael B.Stusse Betsy Newell
-donna M.Robertson Kelly S.Jason
Matthew J.Dupuy Herbert Lach
Charles J.Ardito,P.C. Thomas P.Carpenter
Charles M.Sabatt Tracey L.Taylor
Girard C.Brisbois
Please refer to file no: G2127
August 12, 2005
Town of Barnstable
Zoning Board of Appeals
Attn: Arthur P. Traczyk, Principal Planner
200 Main Street
Hyannis, MA 02601
Re: Dupuy/End of Powers Drive, Centerville, MA
-Dear-Mr. Traczyk,
-- In response to your letter dated August 5, 2005 (.copy attached) ,_..-
please accept this as an emendation to my recent Application for
a Special Permit to identify the new Code-Section 240-44 .A,
Accessory uses Permitted. with Special Permit......
Please be aware that the accessory lot is shown at the end of
Powers Drive shown on Assessor' s Map 167 . The principal lots
and addresses that the accessory lot is to service are attached
to this letter.
Thank you for your cooperation in the handling of this matter.
Very tr yours,
j
Ma w Dupuy
b/enc cal -
Ln
J
L
-)
%.0 M
rx
Florence R. Vicario
15 Powers . Drive
Centerville, MA 02632
Assessor' s Map 167 Parcel 23
Damian Dupuy
35 Powers Drive
Centerville, MA 02632
Assessor' s Map 167 Parcel 22
John C. Doriss, Tr.
61 Powers Drive
Centerville, MA 02632
Assessor' s Map 167 Parcel 21
Helen M: Power
60 Powers Drive
Centerville, MA 02632
Assessor' s Map 167 Parcel 18
John & Elizabeth Maciolek
42 Powers Drive
Centerville, MA 02632
Assessor' s Map 167 Parcel 38
Paula Sullivan
34 Powers Drive
Centerville,, MA 02632
Assessor' s Map 167 Parcel 34 33
William Nelson
871 Bumps River Road
Centerville, MA 02632
Assessor' s Map 167 Parcel 32
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WIG
Subject Parcel(s) ABUTTER LIST TYPE-Zoning Board of Appeals (ZBA)-. "
CD300'Buffer Around subject Parcel(s) Abutters=Parties of Interest-those directly opposite subject lot on any e
public/private street/way and abutters to abutters. Notification of
a Abutters all properties within 300'ring of the subject lot.
SG4I.E: 1°=250'
*NOTE,Flan6+x2114a• $*N= The parcel lines we deli graphic tepeserwdoms DATA SOURCES.•P{anuneh+a(nwt-made Feataan)wee Interpreted h m 1995 mcfel photographs M The kmes
ve�tatlm wee mapped m meet Nadottat of pvopaty baaldatles.They are rot hue bcatlons,and W.Sewal Cmn �pary.Topography and vetloo were 1IMMIP tee(tern 1989 aerial photographs by GEOD
Map Arpnary Stat6datds at a sale of do not repmeot actual rdattmwllps to physical oblexi:s Corporallon.Plantrltehlcs,topography.and ve ambidw were mapped to meet National Map Acanaey Standards
1•=100' o n die map. at a scale of V-l00•.Parcel Ines were dgdzed fmn MM Town of Banzb"e Ame"m•s tax maps
TOWN OF WWA9(E 125 mar
i
SULLIVANENGRVEER17VG INC.
7 PARKER ROAD/P O BOX 659
OSTERVILLE, MA 02655
Peter Sullivan P. E. Mass Registration No. 29733
psullpe@gol.com
phone 508-428.-3344 fax 508-428-3115
May 16, 2005
Building Commissioner
Town of Barnstable
200 Main Street
Hyannis, MA 02601
RE: Waterways License Permit Application
Dupuy/end of Powers Drive, Centerville
Dear Building Commissioner,
Please find enclosed a Municipal Zoning Certificate along with the
Department of Environmental Protection Waterways License application
and plan. We have received an Order of Conditions from the Conservation
Commission.and-a Superseding Order of Conditions from DEP, file number
SE3-4317, both have which have been recorded at the Registry of Deeds.
.Would you please review and sign the Municipal Zoning Certificate and
return it tome in the enclosed self addressed stamped envelope.
Thank you for your assistance in this matter. If you have any
questions, please contact the office.
V ry truly yours,
Peter Sullivan, P. E.
Sullivan Engineering Inc.
Cc: Damian Dupuy
Matthew Dupuy, Esq.
Enclosures
Members of
American Society of Civil Engineers, Boston Society of Civil Engineers
Massachusetts Department of Environmental Protection
Bureau of Resource Protection -Waterways Regulation Program W 062690
Chapter 91 Waterways License Application -310 CMR 9.00 Transmittal No.
Simplified,Water-Dependent,Nonwater-Dependent,Amendment
G. Municipal Zoning Certificate
Damian Dupuy
Name of Applicant
end of Powers Drive Bump's River Centerville
Project street address Waterway Cityrrown
Description of use or change in use:
Construct and Maintain a 28'x 3'timber pier with an 8'x 3' L on the end for use by several families on
the street to access navigable waters for recreational boating.
To be completed by municipal clerk or appropriate municipal official:
°I hereby certify that the project described above and more fully detailed in the applicant's waterways
license application and plans is not in violation of local zoning ordinances and bylaws."
Printed Name of Municipal Official Date
Signature of Municipal Official Title City/Town
CH91App.doc•Rev.10102 Page 6 of 17
f
Massachusetts Department of Environmental Protection
Bureau of Resource Protection Transmittal Waterways Regulation Program 062690
No.
Chapter 91 Waterways License Application -310 CMR 9.00.
Simplified,Water-Dependent,Nonwater-Dependent,Amendment
IL 111�__Jll
B. Applicant Information Proposed Project/Use Information
1. Applicant:
Damian Dupuy
Name E-mail Address
35 Powers Drive
Mailing Address
Note:Please refer Centerville MA 02632
to the"Instructions" City/Town State Zip Code
508-428-1295
Telephone Number Fax Number
2. Authorized Agent(if any):
Peter Sullivan P. E./Sullivan Engineering Inc. psullpe@aol.com
Name E-mail Address
7 Paker Road/P O box 659 `
Mailing Address
Osterville MA 02655
City/Town. State Zip Code
508-428-3344 508-428-3115
Telephone Number Fax Number
C. Proposed Project/Use- Information
1. Property Information (all information must be provided):
private road
Owner Name(if different from applicant)
167 41 38'40" 70 22' 00"
Tax Assessor's Map and Parcel Numbers Latitude
end of Powers Drive, Centerville MA 02632
Street Address and City/Town State Zip Code
2. Registered Land ®Yes ❑ No
3. Name of the water body where the project site is located:
Bump's River
4. Description.of the water body in which the project site is located (check all that apply):
Type Nature Designation
❑ Nontidal river/stream ® Natural ❑ Area of Critical Environmental Concern ,
® Flowed tidelands ❑ Enlarged/dammed ❑ Designated Port Area
❑ Filled tidelands ❑ Uncertain ❑ Ocean Sanctuary
❑ Great Pond ❑ Uncertain
❑ Uncertain
CH91App.doc-Rev. 10/02 Page 2 of 17
Massachusetts Department of Environmental Protection
Bureau of Resource Protection - Waterways Regulation Program TWnsmit062 a90
Chapter 91 Waterways License Application -310 CMR 9.00
Simplified,Water-Dependent,Nonwater-Dependent,Amendment
C. Proposed Project/Use Information (cont.)
Select use(s)from
Project Type Table 5. Proposed Use/Activity description
on Ins rructions"e Proposed construction of a 3'x 28' timber pier with access ladders on both sides and an 8' x 3'L on
the end of the pier and a ladder on the river side end of the pier. The pier is 4 x 4 construction and no
creosote will be used in the construction. The pier is for use by several families on the road to access
navigable waters for recreational boating.
6. Is the project a pre-1984 existing structure AND less than 600 square feet?
❑ Yes ® No
7: Is the project a post-1984 existing or new structure, less than 300 square feet AND water dependent?
®Yes ❑ No
8. What is the estimated total cost of proposed work (including materials & labor)?
$8000.00
9. List the name&complete mailing address of each abutter(attach additional sheets, if necessary). An
abutter is defined as the owner of land that shares a common boundary with the project site, as well
as the owner of land that lies within 50' across a waterbody from the project.
Helena M. Power 60 Powers Drive, Centerville, mA 02632
Name
John C. Doriss,Tr. 34 Amy Lane, W Yarmouth, MA 02673
Mary C,. Nye Realty Trust Address
Name Address
D. Project Plans
1. 1 have attached plans for my project in accordance with the instructions contained in (check one):
® Appendix A(License plan) ❑ Appendix B(Simplified License plan) ❑ Appendix C (Permit plan)
2. Other State and Local Approvals/Certifications
❑ 401 Water Quality Certificate
Date of Issuance
® Wetlands SE3-4317 &SOC as well
File Number
❑ Jurisdictional Determination JD-
File Number
❑ MEPA
File Number
❑ EOEA Secretary Certificate
Date
❑ 21 E Waste Site Cleanup
RTN Number
CH91App.doc•Rev.10/02 Page 3 of 17
Massachusetts Department of.Environmental Protection
Bureau of Resource Protection -Waterways Regulation Program W 062690
Transmittal No.
Chapter 91' Waterways License Application -310 CMR 9.00
Simplified,Water-Dependent, Nonwater-Dependent,Amendment
E. Certification
All applicants, property owners and authorized agents must sign this page.All future application
correspondence may be signed by the authorized agent alone.
"I hereby make application for a permit or license to authorize the activities I have described herein. Upon
my signature, I agree to allow the duly authorized representatives of the Massachusetts Department of
Environmental Protection and the Massachusetts Coastal Zone Management Program to enter upon the
premises of the project site t reasonable times for the purpose of inspection."
"I hereby certify that the rmation submitted in this application is true and accurate to the best of my
knowledge."
116S
Applicant's sioftre Date
Prope Ownees signature(if different than applicant) Date
c SY (:c f�S
Agent's signature(if applicable) Date
APPLICANTS FILING A SIMPLIFIED APPLICATION STOP HERE
CH91App.doc•Rev.10/02 Page 4 of 17
ARDITO, SWEENEY, STUSSE, ROBERTSON & DUPUY, P.C.
-ATTORNEYS AT LAW
25 MID-TECH DRIVE,•SUITE C
WEST YARMOUTH, MA 02673
(508) 775-3433 Telephone
(508) 790-4778 Facsimile
Edward J.Sweeney,Jr. Richard P.Morse,Jr.
'Michael B.Stusse Betsy Newell
Donna M.Robertson Thomas P.Carpenter
Matthew J.Dupuy Kelly S.Jason
Charles M.Sabatt Herbert F.Lach,Jr.
Tracey L.•Taylor
Charles J:Ardito P.C. Girard C.Brisbois
PLEASE REFER TO
FILE No. G2127D
May 31, 2005
Mr. Thomas Perry
Building Commissioner
Town of Barnstable
200 Main Street i
Hyannis, MA 02601
Re: . Waterways License Permit Application -
Dupuy/end of Powers Drive, Centervil-le C'
Dear Mr. Perry:
t=- r
�- rn
Pursuant to Peter.Sullivan's request,.I have reviewed the pertinent se tions of the
Zoning Bylaw regarding-the construction of a pier at the end of Powers Drive, Centerville.
It is my opinion that said construction is allowed under the bylaw, as a matter of right. All
of the owners of Powers Drive own to the "middle" of the road.
Recently, the water department had to obtain "sign-offs" to bring in a new water.
line to the new house, just south of Peter Sullivan's house.
Please contact me if.you have any questions.
Sincerely,
he upuy
JD.�eah
ARDITO, SWEENEY, STUSSE, ROBERTSON & DUPUY, P.C. .
ATTORNEYS AT LAW
25 MID-TECH DRIVE, SUITE C
WEST YARMOUTH, MA 02673
(508) 775-3433 Telephone
(508) 790-4778 Facsimile
Edward J.Sweeney,Jr. Richard P.Morse,Jr.
Michael B.Stusse Betsy Newell
Donna M.Robertson Thomas P.Carpenter
Matthew J.Dupuy Kelly S.Jason
Charles M.Sabatt Herbert F.t_ach,Jr.
Tracey L.Taylor
Charles J.Ardito P.C. Girard C.Brisbois
PLEASE REFER TO
FILE No. G21271)
June 22, 2005.
Mr. Thomas Perry
Building Commissioner
Town of Barnstable
.200 Main Street
Hyannis;MA 02601•.
Re: Waterways License-Permit Application
Dupuy/end,of Power's Drive, Centerville-
Dear Mr. Perry:
Please find enclosed a copy of a 2004 Superior Court Decision which describes and
defines"buildings''•within the context of the Town of Barnstable Zoning Bylaw.
In light of this decision, I am asking you to reconsider your decision regarding the
above captioned matter.
Please contact me at your earliest convenience.
Sincerely,
Matt . J. Dupuy
MJD:eah
Enc.
C.C. Peter Sullivan
06/20/2005 12:18 5084283115 SULLIVAN LNU INU rwa� uc
COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, ss. SUPERIOR COURT
BACV No. 01-737
J. ROBERT CASEY AND ALAN
M. LEVENTHA.L, TRUSTEES OF THE
. BONNYBROOK REALTY TRUST,.
Plaintiffs
vs.
RON JANSSON,.CHAIRMAN,
GAIL NI.GHTINGA-1E, RALPH.CO.PELAND
DANIEL M. CREEDON,THOMAS A. DERIEMER,
RIC L. BOY, GILMORE and
HARD L JEREMY
. Y, ,
RANDOLPH C L S AS THEY ARE THE
� D ,
BARNSTABLE ZONING BOARD OF APPEALS ,
and PETER M. DiMATTEO, as he is'the BUILDING
COMMISSIONER OF THE TOWN OF BARNSTABLE,
Defendants
MEMORANDUM OF DECISION AND ORDFR FOR JUDGMENT
This action was filed by J. Robert Casey and Alan M. Leventhal as Trustees of
Bonnybrook Realty Trust (Plaintiffs) challenging a decision issued by the Barnstable Zoning
Board of Appeals (the Board) upholding a ruling of Mitchell'A. Trott,.the Building Inspector for
the Town of Barnstable. Trott had issued a cease and desist order to Plaintiffs on July 1 Oth,
2001, requiring that the Plaintiffs cease and desist from violating Section 3-1.4 (5) of the Zoning
Bylaws of the Torvri which pertains to setbacks. The order required that the Plaintiffs move all
mechanical systems to comply with zoning setbacks. The Plaintiffs filed an appeal to Trott's
order to the Barnstable Zoning Board of.Appeals pursuant to G.L. c.40A, §8 and 15, and a
hearing was held in relation thereto. - The Board affirmed the decision of the Building
Commissioner by decision dated October 29th, 2001, which was filed with the Office of the
a
f
06/20/2005 12:.18 5084283115 5ULL1vAN LNa 1NU rrau� u�
Town Clerk on said date. The Plaintiff filed the within appeal pursuant to G.L...c.40A §17.in a
timely fashion. The case was tried before this court on February 12th, 2004.
FTNDINGS OF FACT
The Plaintiffs are the owners of the property.which is the subject of this action which is
located at 185 Ocean View,Drive, Cotuit, Massachusetts, which consists of approximately 1.56
acres and is located in the RF Residential Zoning District, and in the Dock and Pier Overlay
District. J
In 2001, the Plaintiffs caused a single family dwelling to be ezected on the premises
pursuant to a building permit issued by the Building Con'unissioner. Incidental to the.
construction of the home, the Plaintiffs caused to be installed three air conditioning units located
on the southerly side of the structure, which are within the side yard area setback.' Each of the
compressors is-approximately two and.one-half feet square and two and one-half feet high. The
compressors are vented on both the. sides and the top, with the unit closest to the side lot line
being 6.2 feet from the same. The generator is located in the southwesterly comer of the front
yard and is approximately 12 %feet at its closest point to the front lot line. The generator is
also within the 15 foot side yard setback area. The generator sits on a concrete pad arid is
encased by a metal cabinet with an enclosed muffler and sound panels. The Plaintiffs have also
installed a soundproof fence around the generator. The generator cabinet is approximately 38
1/8th inches wide by 95 1/8th inches long. The height of the generator is approximately 55
3/8ths inches. In addition to the soundproof fence,the Plaintiffs-have-installed extensive
vegetation around the area of the generator to shield it from view from the street. The generator
' Setbacks in RF Zone-are 30 feet from front and 15 feet from side and rear yards.
06/20/2005 12:18 5084283115 SULLIVAN ENG 1NU r+aut nµ
essentially is comprised of an engine,which is powered by natural gas which is piped
underground. The cabinet is vented on its top. The generator.was installed only for use in
emergency situations and, since its installation in early 2001,has logged*approximately 40•.hours
of operation. On July l Oth, 2001, the Building Commissioner issued the subject cease and desist
order, asserting that the generator and air conditioning compressors violated the Barnstable
Zoning ordinance, and in particular Section 34.4 (5)Bulk Regulations: set-backs in RF Zone are
30 feet from front and 15 feet from sides and rear. The Plaintiff was ordered to move
mechanical systems to comply with the aforesaid setbacks.
The court finds that the generator is essentially encased in the protective cabinet with
several.side panels to provide access in order to make repairs when necessary. The cabinet, in
addition to helping to protect the generator from the elements, also is a necessary safety feature to
protect persons from the generator's moving parts. Likewise, the cabinets for the air
conditioners provide some limited protection from the elements while also constituting a
necessary safety feature in light of the moving parts for the air conditioner compressor. The
compressors and the generator were intentionally placed as far away from the dwelling as
possible in order to avoid the deflection of noise off.of the dwelling.
The decision of the Board referenced Section 2-3.2 of the Zoning Ordinance, which
states: "No building shall be erected or altered.to exceed the height or bulk, or to have narrower
or smaller yards or other open spaces than therein required, or in any manner contrary to the.
provisions of this ordinance." The decision noted that the Barnstable Zoning Ordinance does not
define the term "building". The Board concluded that the combination of mechanical system
cabinets that are the subject of the appeal are a"building" within the meaning of M.G.L. c.143,
and therefore are regulated by and fall within Section 2-3.2 of the Barnstable Zoning Ordinance.
56/1b/1bb5 1'L:1tJ 7bC4Ydyl1� mu"Ivkirl 11YV: nun
RULINGS OF LAW
Standard of Review
The provisions of G.L. c.40A, §17 require that this court.hear the evidence and make
factual.findings independent of the local board, however, the court cannot substitute its judgment
of the local board. .The decision of the board cannot be disturbed unless it is based upon legally
untenable grounds, is unreasonable, whimsical, capricious or arbitrary.. Roberts v. Southwestern
Bell Mobile Systems, Inc., 429 Mass. 478 (1999). Deference must be afforded the local board in
its interpretation of its own bylaw. Livoli, et al v. Zoning Board of Appeals of Southborough, 32
Mass. App. Ct. 921, 923 (1997): Deference to a local.board is not without limit and an
erroneous interpretation of a bylaw provision by a local board or building inspector is not
controlling. "... A blind deference to the.building inspector would be tantamount to ...
abdicating the judicial function.'' Hebb v.Lamport. 4 Mass. App. Ct., 202, 209 (1976).
It is for the court to determine whether or not the Board's'decision-that.the subject
compressors and generator are "buildings" is based upon legally untenable ground and is in
excess of the Board's authority. As reflected in the Board's decision, the bylaw does not define
the term"building". A zoning bylaw should be read in its complete context and given a sensible
meaning within that context. Selectmen of Hatfield v. Garvey, 362 Mass, 821; 826 (1973). If
the language of the bylaw is clear and unambiguous, it should be followed. Massachusetts
Mutual Life Insurance Co. v Commissioner of Corps. and Taxation, 363'Mass. 685, 690 (1973).
The court concludes that neither the air conditioning compressors nor the generator are
buildings within the meaning of the subject bylaw.' The Board's reliance on the State Building .
Code and in particular G.L. c.143, §I.is misplaced. Such statute defines a building as "a
combination of materials, whether portable or fixed, having a roof, to form a structure for the
06/20/2005 12: 18 5084283115 5ULLIVAN UNO IM,
shelter of persons, animals or property." None of the mechanical cabinetry for the units in
question fits within such definition, since while they are encased they do not.have roofs, and such
cabinetry is used primarily to safeguard the public from the machinery contained therein'.
Plaintiffs aptly rely upon the case of Small et al, v Parkway Auto Supplies, 253 Mass. 30 (1926).
In such action, the court concluded that gasoline pumps were not buildings within the meaning
of a deed restriction. As in the case at bar, the pumps were located on a concrete pad and were
circular and approximately eight feet in height. . Essentially, the pump was enclosed by a metal ,
cabinet, as with the case of the subject generator and compressors. The court further notes that
both the Plaintiffs and the Defendants rely upon the case of Attorney Genezal v Gardiner. 117
Mass. 492, 500 (1875), where a brick structure extending from the wall of a house to the line of
the street with a turf roof was used to accommodate coal bins and was construed to be a building
within the terms of a deed restriction. In the case at bar, none of the cabinetry is attached to the
residence nor does any of the cabinetry have a roof. Rather, each of the cabinets has a single
dedicated purpose of containing the machinery therein.
For the foregoing reasons, this court concludes..that the decision of the Board.concluding
that the subject mechanical systems were "buildings" was based upon legally untenable ground
and that the Board exceeded its authority by refusing to overturn the decision of the Building
Commissioner dated July 1 Oth, 2001, which decision had asserted a violation of the Zoning
Bylaws by the Plaintiffs and issued a cease and desist order to them.
r
20/2005 12: 18 5084283115 SULLIVAN LNla INL rHt2c u r
ORDER
Judgment is to enter for the Plaintiffs J. Robert Case and Alan M. Leventhal, Trustees of
!� Y
the Bonnybrook Realty Trust against the Barnstable Zoning Board of Appeals and-Peter M.
DiMatteo as he is the Building Commissioner for the Town of Barnstable, annulling the decision
of the Zoning Board of Appeals issued in Appeal No. 2001-115, and vacating the cease and
desist order issued by the Building Commissioner on July:lOth, 2001:
. l� pry
chard T. Moses
Justice of the Superior Court
DATED: February 26, 2004
A tru® copy, Attest.
f
oFZHET , Town of Barnstable
Regulatory Services
9BARNSrABLE.� Thomas F. Geiler,Director
MAM
Fp p.,p�� Building Division
Thomas Perry, CBO, Building Commissioner
200 Main Street, Hyannis, MA 02601
www.town.barnstable.ma.us
Office: 508-862-4038 Fax: 508-790-6230
July 6,2005
Ardito, Sweeney,Stusse, Robertson &Dupuy, P.C.
Attn: Matthew J. Dupuy
25 Mid-Tech Dr., Suite C
West Yarmouth,MA 02673
RE:Dupuy/end of Powers Drive, Centerville
Dear Atty. Dupuy:
Thank you for your letter of June 22, 2005 in regards to.the above referenced waterway Iicense
application. In your correspondence you have presented the Leventhal case to try and persuade
me to reconsider your application. I am very familiar with this case and I fail to see where this
has any bearing on what your client has applied for.
In Leventhal,the issue was whether the generator constituted a building under our local ordinance
and was therefore subject to set backs. There was.no argument that the generator was on the
same lot and that is where the difference lies. Your waterways Iicense is for a structure that is not
on the same lot and that is the reason for my denial. It is not a question of whether the set backs
are being adhered to.
If you have any further questions please call my office at 508-862-4038.
Sincerely,
Thomas Perry
Building Commissioner
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Massachusetts Department of Environmental Protection
�dE gyti DEP File Number.
Bureau of Resource Protection - Wetlands
> ��. • VVPA Form 5 Order of Conditions
SE3-4317
M"S $ Provided by DEP
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
and Town of Barnstable Ordinances Article XXVII
A. General Information
Important:
When filling From: ADS-12-21Dr_in ' 1133 = 331:f,
out forms on Barnstable
the computer, Conservation Commission
use only the
tab key to This issuance if for(check one):
move your
cursor-do ® Order of Conditions not use the
return key. ❑ Amended.Order of Conditions
To: Applicant: Property Owner (if different from applicant):
Damian Dupuy
Name - Name
35 Powers Drive
Mailing Address Mailing Address
Centerville MA 02632
City/Town State Zip Code City/Town State Zip Code
1. Project Location:
end of Powers Drive Centerville
Street Address City/Town
167
Assessors Map/Plat Number Parcel/Lot Number
2. Property recorded at the Registry of Deeds for:
Barnstable
County Book Page
Certificate(if registered land)
3.. Dates:
OCT n
August 11, 2004 October 12, 2004
Date Notice of Intent Filed Date Public Hearing Closed Date of Issuance
4. Final Approved Plans and Other Documents (attach additional plan references as needed):
Site Plan Dec. 23, 2003
Tide.: Date
Title Date
Title Date
5. Final Plans and Documents Signed and Stamped by:
Peter Sullivan, PE
Name ' '�.�
6. Total Fee: j� U
f�
$316.00 _
(from Appendix B:wetland Fee Transmittal Form)
wpejorm5.dor.rev.10/15/04 Page 1 of 7
'THE Massachusetts Department of Environmental Protection DEP File Number:
Bureau of Resource Protection - Wetlands
. a XAS& WPA Form 5 - Order .of Conditions Poi;edibyDEP
PrED►uya, Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
and Town of Barnstable Ordinances Article XXVII
B. Findings
'Findings pursuant to the Massachusetts Wetlands Protection Act:
Following the review of the above-referenced Notice of Intent and based on the information provided in
this application and presented at the public hearing,this Commission finds that the areas in which work is
proposed is significant to the following interests of the Wetlands Protection Act. Check all that apply:
❑ Public Water Supply ❑ Land Containing Shellfish ® Prevention of Pollution
❑ Private Water Supply ® Fisheries ® Protection of Wildlife Habitat
❑ Groundwater Supply ® Storm Damage Prevention ® Flood Control
Furthermore,this Commission hereby finds the project,as proposed, is: (check one of the following boxes)
Approved subject to:
® the following conditions which are necessary, in accordance with the performance standards set forth
in the wetlands regulations,to protect those interests checked above.This Commission orders that all
work shall be performed in accordance with the Notice of Intent referenced above,the following
General Conditions, and any other special conditions attached to this Order.To the extent that the
following conditions modify or differ from the plans; specifications, or other proposals's ubm itted with
the Notice of Intent, these conditions shall control.
Denied because:
❑ the proposed work cannot be conditioned to meet the performance standards set forth in the wetland
regulations to protect those interests checked above.Therefore,'work on this project may not go
forward unless and until a new,Notice of Intent is submitted which provides measures which are
adequate to protect these interests, and a final Order of Conditions is issued.
❑ the information submitted by the applicant is not sufficient to describe the site,the work, or the effect
of the work on the interests identified in the Wetlands Protection Act.Therefore,work on this project
may not go forward unless and until a revised Notice of Intent is submitted which provides sufficient
information and includes measures which are adequate to protect the Act's interests, and a final
Order of Conditions is issued. A description of the specific information which is lacking and why it is
necessary is attached to this Order as per 310 CMR 10.05(6)(c).
General Conditions (only applicable to approved projects)
1. Failure to comply with all conditions stated herein, and with all related statutes and other regulatory
measures, shall be deemed cause to revoke.or modify this Order.
2. The Order does not grant any property rights or any exclusive privileges; it does not authorize any
injury to private property or invasion of private rights.
3. This Order does not relieve the permittee or any other person of the necessity of complying with all
other applicable federal, state, or local statutes, ordinances, bylaws, or regulations.
Wpalorm5.doc•rev.10/15/04 Page 2 of 7
r
Massachusetts Department of Environmental Protection
DEP File Number.
Bureau of Resource Protection - Wetlands
WPA Fora 5 - Order of. Conditions SE3-4317
v XAM $ Provided by DEP
61g6 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
and Town of Barnstable Ordinances Article XXVII
B. Findings cont.
9 (cont.)
4. The work authorized hereunder shall be completed within three years from the date of this Order
unless either of the following apply:
a. the work is a maintenance dredging project as provided for in the Act; or
b. the time for completion has been extended to a specified date more than three years, but less
than five years, from the date of issuance. If this Order is intended to be valid for more than three
years,the extension date and the special circumstances warranting the extended time period are
set forth as a special condition in this Order.
5. This Order may be extended by the issuing authority for one or more periods of up to three years each
upon application to the issuing authority at least 30 days prior to the expiration date of the Order.
6. Any fill used in connection with this project shall be clean fill. Ar y fill shall contain no trash, refuse,
rubbish, or debris, including but not limited to lumber, bricks, plaster, wire, lath, paper, cardboard,
pipe, tires, ashes, refrigerators, motor vehicles, or parts of any of the foregoing.
7. This Order is not final until all administrative appeal periods from this Order have elapsed, or if such
an appeal has been taken, until all proceedings before the Department have been completed.
8. No work shall be undertaken until the Order has become final and then has been recorded in the
Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title
of-the-affected property. In the case of recorded land, the Final Order shall also be noted in the
Registry's Grantor Index under the name of the owner of the land upon which the proposed work is to
be done. In the case of--the registered land, the Final Order shall also be noted on the Land Court
Certificate of Title of the owner of.the land upon which the proposed work is done. The recording
information shall be submitted to'this Conservation Commission on the form at the end of this Order,
which form must be stamped by.the Registry of Deeds, prior to the commencement of work.
9. A sign shall be displayed at the site not less then two square feet or more than three square.feet in
size bearing the words,
"Massachusetts Department of Environmental Protection"[or,"MA DEP"J
"File Number SE3-4317 "
10. Where the Department of Environmental Protection is requested to issue a Superseding Order, the
Conservation Commission shall be a party to all agency proceedings and hearings before DEP.
11. Upon completion of the work described herein,the applicant shall submit a Request for Certificate of
Compliance (WPA Form 8A)to the Conservation Commission.
12. The work shall conform to the plans and special conditions referenced in this order:
13. Any.charrgeto the plans identified in Condition #12 above shall require the applicant to inquire of the
Conservation Commission in writing whether the change is significant enough to require the filing of a
new Notice of Intent.
14. The Agent or members-of the Conservation Commission and the Department of Environmental
Protection shall have the right to enter and inspect the area subject to'this Order at reasonable hours
to evaluate compliance with the conditions stated in this Order, and may require the submittal of any
data deemed necessary by the Conservation Commission or Department for that evaluation.
WDefomS.doc•rev.10/15/04 Pepe 3 of 7
Massachusetts Department of Environmental Protection
DEP File Number:
Bureau of Resource Protection - Wetlands
�,�� WPA Form 5 - Order of'Conditions sE3-4317
r ST $ Provided by DEP
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
and Town of Barnstable Ordinances Article XXVII
B. Findings (cont.)
15. This Order of Conditions shall apply to any successor in interest or successor in,control of the
property subject to this Order and to any contractor or other person performing work conditioned by
this Order.
16. Prior to the start of work, and if the project involves work.adjacent to a Bordering Vegetated Wetland,
the boundary of the wetland in the vicinity of the proposed work area shall be marked by wooden
stakes or flagging. Once in place, the wetland boundary markers shall be maintained until a
Certificate of Compliance has been issued by the Conservation Commission.
17. All sedimentation barriers shall be maintained in good repair until all disturbed areas have been fully
stabilized with vegetation or other means.At no time shall sediments be deposited in a wetland or
water body. During construction,the applicant or his/her designee shall inspect the erosion controls
on a daily basis and shall remove accumulated sediments as needed.The applicant shall immediately
control any erosion problems that occur at the site and shall also immediately notify the Conservation
Commission, which reserves the right to require additional erosion and/or damage prevention controls
it may deem necessary. Sedimentation barriers shall serve as the limit of work unless another limit of
work line has been approved by this Order.
see attached
Findings as to municipal bylaw or ordinance
Furthermore,the Barnstable hereby finds (check one that applies):
Conservation Commission
❑ that the proposed.work cannot be conditioned to meet the standards set forth in a municipal
ordinance or bylaw specifically:
Municipal Ordinance or Bylaw Citation
Therefore,work on this project may not go forward unless and until a revised Notice of Intent is
submitted which provides measures which are adequate to meet these standards, and a final Order of
Conditions is issued.
® that the following additional conditions are necessary to comply with a municipal ordinance or bylaw,
specifically:
Article 27 of Town Ordinances
Municipal Ordinance or Bylaw Citation
The Commission orders that all work shall be performed in accordance with the said additional
conditions and with the Notice of Intent referenced above.To the extent that the following conditions
modify or differ from the plans, specifications, or other proposals submitted with the Notice of Intent,
the conditions shall control.
wpaforrrn5.doe•rev.10/16/04 Pape 4 of 7
SE3-4317 Dupuy
Approved Plan=December 23,2003 Site Plan by Peter Sullivan,PE
Special Conditions of Approval
I. Preface
Caution:Failure to comply with all Conditions of this Order of Conditions can have serious consequences.
The consequence may include issuance of a stop work order,fines,requirement to remove unpermitted
structures,requirement to re-landscape to original condition,inability to obtain a certificate of compliance,
and more.
The General Conditions of this Order begin on page 2 and continue on pages 3 and 4. The Special
Conditions are contained on pages 4.1,4.2 and 4.3 if necessary.All conditions require your compliance.
IT. Prior to the start of work,the following conditions shall be satisfied:
1. Within one month of receipt of this Order of Conditions and prior to the commencement of any work
approved herein,General Condition number 8 (recording requirement)on page 3 shall be complied with.
2. It.is the responsibility of the applicant,the owner and/or,successor(s) and the project contractors to ensure
that all conditions of this Order are complied with. The applicant shall provide.copies of the Order of
Conditions and approved plans(and any approved revisions thereof)to project contractors prior to the start
- of work. Barnstable Conservation Commission Forms A and B shall be completed and returned to the
Commission prior to the start of work.
3. General Condition 9 on page 3(sign requirement)shall be complied with.
4. The Conservation Commission shall receive written notice 1 week in advance of the start of work.
III. The following additional conditions shall govern the project once work begins.
5. General conditions No. 12 and No: 13 (changes in plan)on page 3 shall be complied with.
6. The Conservation Commission,its employees,and its agents shall have a right of entry to inspect for
compliance with the provisions of this Order-of Conditions.
7. There shall be no disturbance of the existing salt marsh.
8. No CCA-treated or creosote-treated materials shall be used.
9. The proposed stairs shall be constructed a minimum of one foot above grade without solid risers.
I0. Deck plank spacing shall be at least one half inch. The proposed grated decking shall be installed.
Page 4.1
The following special conditions in italics shall govern boat use at the approved pier. These
conditions shall continue over time. Note: For purposes of this Order of Conditions,the term"pier"
shall refer not'only to.the linear pile-supported structure,but.also to any of its components or
appendages such as the float(s),ell,tee, ramp,outhaul piling,etc.
11. No motorized craft shall be used or berthed at the approved pier, given the conditions of insufficient depth
and mucky substrate.
12. Boats berthed at the pier shall not ground at low tide.
13. Boats shall only be berthed at the ell.
14. A small sign shall be displayed at the end of the seasonal the pier. It shall read
SE3-4317 Limitations:
• No motorcraft allowed
15. Any desired pier lighting shall receive prior approval of the Conservation Commission or Department.
16. Lead piling caps shall not be used.
17. Work on the pier shall ensue mid-tide rising to mid-tide falling or as otherwise necessary to prevent the
grounding of the work barge on the substrate.
IV. After all work is completed,the following condition shall be promptly met:
18. At the completion of work,or by the expiration of this Order,the applicant shall request in writing a
Certificate of Compliance for the work herein permitted. Barnstable Conservation Commission Form C
shall be comT)Ieted and returned with the request for a Certificate of Compliance Where a project has been
completed in accordance with plans stamped by a registered professional engineer,architect,landscape
architect or land surveyor,a written statement by such a professional person certifying substantial
compliance with the plans and setting forth what deviation,if any,exists with the record plans approved in
the Order shall accompany the request for a Certificate of Compliance.At the time of the request for a
Certificate of Compliance, an undated sequence of color photographs of the undisturbed buffer zone shall
be also submitted.
Page 4 2
Massachusetts Department of Environmental Protection DEP File Number:
Bureau.of Resource Protection - Wetlands
WPA Form 5 - Order. of Conditions sE3-4317
'Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP
jfD Mph�
and Town of Barnstable Ordinances Article XXVII
B. Findings (cont.)
Additional conditions relating to municipal ordinance or bylaw:
see attached
This Order is valid for three years, unless otherwise specified as a special condition pursuant to General
Conditions#4,from the date of issuance.
Date
This Order must be signed by a majority of the Conservation Commission.The Order must be mailed by
certified mail (return receipt requested) or hand delivered to the applicant. A copy also must be mailed or
hand delivered at the same time to the appropriate Department of Environmental Protection Regional
Office ee endix A and the roperty owner (if different from applicant).
Sign tur
On . � ` Of vG I
Day Month and Year
before me personally appeared
V nA �S 7�o e—
�►Vl
to me known to be the person described in and who executed the foregoing instrument and
acknowledged that he/she ex the sam s his/her free act and deed.
-Ndtary Public My Commission Expires
This Order is issued to the applicant as follows:
❑ by hand delivery on by certified mail, return receipt requested,on
OCT 2 7 2004
Date Date -
WRiortn5.doc•rev.10/12J04 Page 5 of 7
i
Massachusetts Department of Environmental Protection DEP 3 Number.
'• �"�' "' p SE 3-4317
Bureau of Resource Protection —Wetlands
ter.
m WPA Form 5-Superseding Order of Conditions - Affirmation
{` Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
�..
A. General Information
From: 1:15-12—?1:3rD.5 a C-13 33sa
Department of Environmental Protection
issuing Authority
This issuance is for:
® Superseding Order of Conditions — Affirmation
To: Applicant: Property Owner (if different from applicant):
Damian Dupuy
Name Name
35 Powers Dr.
Mailing Address Mailing Address
Centeville MA 02632
CThrro-_ __'_" State Zip Code City/Town State Zip Code
1. Project Location:
End of Powers Drive Centerville
Street Address Cily/Town
167
Assessors Map/Plat Number Parcel/Lot Number
2. General Description of Approved Project:
Proposed construction and maintenance of a Tx28"shared pier with associated 4 foot natural path,Tx 20'section of timber stairs,and
Proposed boat rack.
3. Final Approved Plans and Other Documents (if different from those listed in Order of Co ion
.p�
Proposed Pier Powers Dr. Centerville Mass. 12/23/03
Title Date
Peter Sullivan, Sullivan Engineering, Inc.
Signed and Stamped by
4. Date of Issuance:
2 9 MAR
Page 1 of 4
Massachusetts Department of Environmental Protection DEP File"umber.
SE 3-4317
Bureau of Resource Protection —Wetlands
a WPA Form 5-Superseding Order of Conditions - Affirmation
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
r°
B. Findings
The Department hereby finds that the project as proposed is.approved subject to the following conditions:
In accordance with 310 CMR 10.05(7)(1), this Superseding Order of Conditions affirms the Order of Conditions
issued by the Barnstable Conservation Commission on October 27, 2004. The Order of Conditions is attached
and is incorporated by reference.
1. All work shall comply with the conditions contained in the attached Order of Conditions, subject to the
following modifications:
a. The work shall comply with the plans referenced in this Superseding Order, if different from those listed in the
Order of Conditions.
b. The work authorized hereunder shall be completed within three years from the date of this Superseding Order
unless otherwise specified below by the Department.
c. Requests for extensions in accordance with General Condition#5 shall be submitted to the Department.
d. Proof of recording in accordance with General Condition#8 shall be submitted to the Department.
e. Requests for a Certificates of Compliance in accordance with General Condition#11 shall be submitted to the
Department,and wetland boundary flags shall remain in place pursuant to General Condition#16 until a
Certificate of Compliance has been issued b the
p y Department.
f. The Department makes no flndings,and imposes no co nditions.pursuant.to a municipal b.ylaw:or ordinance.
g. Other: See DEP Special Conditions 1 through 3.
C. Issuance
Issued by the Department of Environmental Protection
Signature
Eliza eth A. Kouloheras, Bureau of Resource Protection
On this�� 'day of_ 1h6�1 2005 before me,the undersigned Notary Public, personally appeared
Elizabeth A. Kouloheras known tome based on personal knowledge of his/her identity,and known to be the
person whose name is signed on the preceding or attached_ document, and acknowledged to me that he/she
signed it voluntarily for its stated purpose.
SP,ENDA J. HARPER
* Notary public
]`i LL -A- Cam=�w ealth of Massachusetts
March 17 fires
Not Public My commission expires ,2oli
EAK/bh
Page 2 of 4
DEP—Affirmation SE 3-4317
_. Special Conditions
1. The proposed footpath to the pier shall be no wider than 4.0 feet. Vegetation within the footpath
may be cut at grade but not stumped. Future maintenance of the footpath in compliance with this
condition is permitted.
2. Prior to commencement of pier construction,receipt of a License pursuant to the Public Waterfront
Act, M:G.L., Chapter 91 is required.
3. Future maintenance of the approved pier, in strict compliance with the plan of record and conditions
of this Order, is permissible.
Page 4 of 4
07--26-'2005 &
DEPARTMENT OF THE ARMY
NEW ENGLAND DISTRICT, CORPS OF ENGINEERS
@ATTENTION
696 VIRGINIA ROADCONCORD, MASSACHUSETTS 01742-2751
REPLY T0:
OF:
July 7,2005
Regulatory.Division
CENAE-R-PEA
Permit Number: NAE-2005-1670
Damian Dupuy
35 Powers Drive 4,0 G 05
Centerville, MA 02632
Dear Mr. Dupuy:
We have reviewed your application to construct and maintain a 3-foot x 28-foot pile
supported timber pier, and a 3-foot x 8-foot end"L"in the Bump's River at the end of Powers
Drive in Centerville,Massachusetts. The work is described on the enclosed plans entitled
"DAMIAN DUPUY 35 POWERS DRIVE CENTERVILLE,MASS.FOR CONSTRUCTION&
MAINTAINING A TIMBER PIER IN BUMPS RIVER"on 3 sheets and dated"NOVEMBER
17,2004".
Based on the information you have provided,we have determined that the proposed activity
will have-only minimal individual or cumulative impacts on wetlands and waters of the United
States. This activity is therefore authorized as a Category II activity under the Department of the
Army permit,the Massachusetts Programmatic General Permit(PGP)provided you comply with
the following special conditions:
1. Adequate sedimentation and erosion control management measures,practices and
devices, such as phased construction,vegetated filter strips, geotextile silt fences,hay bales or
other devices shall be installed and properly maintained to reduce erosion and retain sediment
on-site during and after construction. They shall be capable of preventing erosion,of collecting
sediment, suspended, and floating materials, and of filtering fine sediment. These devices shall
be removed upon completion of work and the disturbed areas shall be stabilized. The sediment
\ collected by these devices shall be removed and placed at an upland location, in a manner that
will prevent its later erosion into a waterway or wetland. All exposed soil and other fills shall be
permanently stabilized at the earliest practicable date.
2. There shall be no unreasonable interference with navigation by the existence or use of the
activity authorized herein,and no attempt shall be made by the permittee to prevent the full and
free use by the public of all navigable waters at or adjacent to the activity authorized herein. The
permittee understands and agrees that,if future operations by the United States require the
removal,relocation, or other alteration of the structure or work herein authorized,or if,in the
opinion of the Secretary of the Army or his authorized representative, said structure or work shall .
cause unreasonable obstruction to the free navigation of the navigable waters,the permittee will
be required,upon due notice from the Corps of Engineers,to remove,relocate, or alter the
structural work or obstructions caused.thereby,without expense to the United States. No claim
shall be made against the United States on account of any such removal or alteration.
Bk 20084 Pg 183 #51142
-2-
You must perform the activity authorized herein in compliance with the special condition
provided above and all the terms and conditions of the PGP. Please review the enclosed PGP
carefully, including the PGP conditions beginning on page 9,to familiarize yourself with its
contents. You are responsible for complying with all of the PGP requirements;therefore,you
should be certain that whoever does the work fully understands all of the conditions. You may
wish to discuss the conditions of this authorization with your contractor to ensure the contractor
can accomplish the work in a manner that conforms to all requirements.
The Corps of Engineers has consulted with the National Marine Fisheries Service(NMFS)
regarding the effects of your project on Essential Fish Habitat(EFH)designated under the
Magnuson-Stevens Fishery Conservation and Management Act, The NMFS did not provide
EFH conservation recommendations.
Your project is located within,or may affect resources within the coastal zone. Therefore,
in order for the above determination of eligibility to become the Federal authorization,a Federal
consistency concurrence from the Massachusetts Office of Coastal Zone Management(MCZM)
is required. However,MCZM has already determined that no further Federal Consistency
Review is required.
If you change the plans or construction methods for work within our jurisdiction,please
contact us immediately to discuss modification of this authorization. This office must approve
- any changes before you undertake them.
You must commence or have under contract to commence the work authorized herein by
January 20,2010, and complete the work by January 20,2011,unless the Massachusetts PGP is
modified,suspended,or revoked,such that the activity would no longer comply with the terms
and conditions of the Massachusetts PGP.
This authorization requires you to notify us before beginning work and,allow us to inspect
the project. Therefore,you must complete and return the enclosed Work Start Notification Form
to this office no later than two weeks before the anticipated starting date.
Please note that this determination does not constitute an authorization to proceed until all
other applicable Federal, state and local permits are obtained. Performing work not specifically
authorized by this permit, starting work without obtaining other Federal, state and local
approvals,or failing to comply with the permit conditions may subject you to the enforcement
provisions of our regulations.
Bk 20084 Pg 184 #51142
-3-
If you have any questions,please contact John Sargent of my staff at(978) 318-8026,
800 343-4789,or(800) 362-4367 within Massachusetts.
r y,
Tho as L.Koning
Colo el,Corps of Engineers
Distri t Engineer
Enclosures
Copies Furnished:
Ed Reiner,U.S.EPA,Region 1, 1 Congress Street, Suite 1100-Mail Code CWP,
Boston,Massachusetts 02114-2023
Christopher Boelke,National Marine Fisheries Service, One Blackburn Drive,Gloucester,
Massachusetts 01930-2298
Maria Tur,U.S.Fish and Wildlife Service, 70 Commercial Street, Suite 300,
Concord,New Hampshire 03301-5087
Elizabeth F.Kouloheras,;DEP Southeast Regional Office, Wetlands and Waterways,
20 Riverside Drive, Lakeville,Massachusetts 02347
Alexander Strysky, Coastal Zone Management,251 Causeway Street, Suite 900,Boston,
Massachusetts 02114
Vincent Malkoski,Massachusetts Division of Marine Fisheries, 100 Cambridge Street,Boston,
Massachusetts 02202
Matthew Dupuy,Ardito, Sweeney, Stusse, Robertson and Dupuy, P.C.,25 Mid Tech Drive, Suite .
C,W Yarmouth,Massachusetts 02673
r• A 'f iJ
7-1
'(L.l�►�rS�!'�
�4.3�1 �' �Zri� -�3'It•i.�: r�uvt+. r r� •z� �• .bf �
BI-
SO ~'►\{ �� +ems = � r .1[/xbtr%:
MEL
r
1'
dw•�f
Directions: •1 •1/ Follow ' . is Ili
Centerville;28 towards i onto
h�
Lumb Mill ertRoad, ... • •• •the :ill • ' 1 r 1 ;
(at second stop sign).Take a rigbt onto
Bumps River.koad,Take a left onto
Powers s marker • :•1.1
post),and project site is located on the
/ 1
right.
1 .' 1
-
•
r
Bk 20084 Pg 186 #51142
DATUM
RELATIONSHIP
/ MHW
,ly I.6
2.5' NOVO
0.9,
el MLW
PER I.I.S.ARMY CORPS of
ENGINEERS TIDAL FLOOD
wv 4� �. /� PROFILE No.9,1988,
Q / yh
• �Qa� t q, Q�•���v.
a �
�� \�
Q QP Q 410\ �Q4} EXIS ��•�l FE'Mq 20
ti NF
� TRAILING
���'$74" T OOP E. PLAN VIEW
STAIRS --/O SCALE: I"= 20'
0 IQ 20 40ft.
\�ti iNHW 2. N\ d
1 \ ACCESS " 3 BENT
. . .� LADDER. 8, S
�24 (7° �' �� •�.
aNy - .I, AILW a.0 • ' ' . . . . .8. . . . . . :"��-s+,4trM4RSk
P OF
LADDER
evMps RIVER r--
~.1 PL000 EB8/ SHEET ,2 of 3
{ 35 POWERS DRIVE
• �, CENnRVILLE MASS.
NOTES, FOR CONSTRUCTI�N 9 'MA N AIN[ G A
SOUNDINGS SHOWN ARETOHARDBOTTOM AND ARE BASED ON MLW DATUM. TIMBER PIER IN sum g3IVEK
SOFT FLWOMUD EXISTS RANGING IN DEPTH FROM 2EROAT MLW TO 2.5 FEET SULUVAN ENGINEERING INC.
AT THE MIDDLE OF THE RIVER. OSTERVILLE,MASS.
FOR PROPOSED PIER SEE SE3.4317. NOVEMBER 17, 2004
Bk 20084 Pg 187 #51142
PROPOSED
STAIRS
28'-0" TOTAL
A'-0" 3 BENTS Cad . 8�-0� 24`-0"
ADD I STEP DOWN IF 2!'x 4"HANDRAIL
FIELD CONDITIONS ONE SIDE ONLY
DICTATE
E7E 1__1: -1
ELEV. &0
_NTL_—
5.5
~ MLW 0.0
5' SALT ��
TOP OF SI LT
MARSH
ACCESS LADDER LADDER
BOTH SIDES 10.4' _ "--
SECTION A-A 12.d FROM MLW
SCALE 1 = 5' LAND UNDERWATER
._0 6 loft.
2"x 4"
HANDRAIL
0 2"x 6It DECKING,1/240
1 SPACING M IN.
ih FIBERGLASS GRATING
TO BE INSTALLED OVER
SALT MARSH,
2� x 5"s
w SA LT POSTS
in v MARSH
SECTION B-B
SCALE I"= 4
SHEET 3 of 3'
DAMIAN DUPUY
0 2 4 Btt. 35 POWERS DRIVE
CENTERVI�LLE , MASS.
FG TIIMBER PIER INNBUM S RAVERG A
SULLIVAN ENGINEERING INC.
OSTERVILLE,MASS.
NOVEMBER 17, 2004
BARNSTABLE REGISTRY OF DEEDS
OVERLAY DISTRICT: 11
�c
Y-bulb-mbkl
- A°SMa a Pkn[nFad F•`
! AP.a lri] �• 9L .
FLOOD ZONE:
N n� ma
b iau A a f Ala(µ•111 �.
Cuwa•Jli Patl ae
/1laaal Bala a
fu)2 11ai °5.
• . ZONE:
Si
FD-1
LOCATION MAP: A p tw•>en,m sr pwml W
smw 1-.[Dort r'eq(.trnf1 -
wm aml 1
S eo.�e r
ara to- w
°•'"` k"a "o is a
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STAIR SECTION . �114
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F , /F-iao!
SECTION A-A .•.. \ �� ,� /' �.
Pwal [!pool aDlm ' i 11111°•\�, .`f._�f�i;(li�'�'
*� r..•ap�w"In• _ i i ' ' i; / i�.III I
I
SECTION a I 1 i I I :1 `` ♦♦♦� .
pw a. b - 1 1 1�. 1 I 1 ♦ 1 1° ..
SULLWAN
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9nBr a-----^-`A- -A.`--`-?
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dbonncPa toth SFr.
tl uwab I aaa 0 mank
\-` hWua6 TW°ba W ImNF aID
j Pap nM boar b m.e Itl uu°ua
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//l • • I m b bW.a®m Ib�r PM•
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nmlmarba pabmea.wl.a.wmawmaa°w.t°mwPlwmb°maP�+m
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�1 - VMagom.rPa�[auaPwmolmyra aa.aPbll�wl°ean
1 4aP aP[PA a,, aamwm m Nolu/11ubM
Sullivan Engineering,Inc CapeSury The Power Drive Association Ina Paowia.bwmawa ra..a i.
Proposed 6'ter ro m,ess l�w PPaa Jo Attorney Matthew Dapuy
Wun[b W oMi! blw.°I,W ooasS
Powers®rive 25 Mid Tech Drive,Suite C zlanaa°°°n''a LMavlbn.a°ybaa
Centerville Mass. W.Yarmouth,MA 02tTi v alaa i[/xgo!as roi'm/at
o.fb we I:.N urNjnq m o x)a.M,.albn N°n•e...a•an ba°tl a
° Unembvx7,lop! "O" Al sown Csnu,PMn.:Ys .Cwq:9roa Wa a.•°Ir.(aG°a'to+Ca'a°r
-4u 6r.v/ 9.Y+I USAK 0°I°)
��� OV
k
� 0(.7FIE i
Town of Barnstable
BAPNWABM Zoning Board of Appeals . Gail Nightingale,Chairman
Planning Division - 200 Main Street, Hyannis, Massachusetts 02601
Thomas A.Broadrick,Director
Planning,Zoning&Historic Preservadon
Phone(508)862-4785 Fax(508)862-4725
October 6, 2005 i
Robert D. Smith,Town Attorney E n
mr
:.
Town of Barnstable,Town Attorney's Office
367 Main Street r'
Hyannis,MA 02601 cz�
i
Reference: Request for legal guidance on Powers Drive Association/Damian Dupuy,ZBA Appeal
2005-077 -Appeal of the Building Commissioner&Appeal 2005-078 -Special Permit
Section 240-44.A—Accessory Uses, seeking to construct an association dock within the
right-of-way of Powers Drive.
Dear Mr. Smith:
The above-referenced Appeals were opened September 14, 2005,at which time the Board determined to
seek your Office's review and guidance on the issues presented.
• First question posed is that of The Powers Drive Association standing to be before the Board. It
appears this group is an informal,association of neighbors,some with granted rights in Powers Drive,
and others with prescriptive rights. No formal(recorded)organization exists and no formal meeting
vote submitted. Does The Powers Drive Association have the rights to seek permits to build an
association dock?
• Second, does the private way constitute under zoning an accessory lot to the principal lot(s)it serves?
• Third,the private way,leading to water, implies rights to access the water. Would that imply the
rights to construct a stairway and dock within the way and emendate waters? If so,who would have
that right to make those improvements? Would that use require Planning Board recognition and
approval via subdivision control to be within the way, or would that require a separate common lot?
In addition,you should note certain Board Members expressed that it was more environmentally fit to
access the waters via a constructed stairway and dock than to walk over the vegetated slope.
Attorney Matthew J. Dupuy represents the applicants. He is aware of this request and has offered to
provide you with any additional information you may need. Please feel free to discuss the issues with
Attorney Dupuy. The Appeals were continued to November 2,2005. Any advice and guidance in
resolving the issue would be greatly appreciated.
On behalf of all the Board Members,thank you and your Office for its continuous assistance to the
Board.
Respectfully,
,
Gail Nightingale, Chairman
Copy: ZBA Files2005-077&078 Powers Drive
Matthew J.Dupuy,Esq.,Ardito,Sweeney,Stusse,Robertson&Dupuy,P.C.25 Mid-Tech Drive,Suite C,West
Yarmouth,MA 02673
Thomas A.Broadrick,Director Planning,Zoning&Historic Preservation
Tom Perry,Building C5Emi" `ssi __�'
Attach: Copy of ZBA Files2005-077&078 Powers Drive
Sullivan Engineering Inc.
- 7 Parker Road,P.O. Box 659
Osterville,MA 02655
Peter Sullivan P.E.Mass Registration.No.29733
phone 508428-3344 fax 508428-3115
peter@sullivanen m�com_ -
December 17,2008
Thomas Perry, Director
Building Division
Town of Barnstable
200 Main Street
Hyannis MA 02601 E
Re: Powers Drive Common Dock
Dear Tom
c 3
Please find attached an original sealed plot plan showing the as-built 1 cationjf w
the stairs and dock. o�
As can be seen from the as-built,the stairs and dock have been constructed in
accordance with the approved plans.
I trust that this meets your present needs,please feel free to call if you have any
comments. -
Very troy you
Peter Sullivan PE
Sullivan Engineering, Inc.
cc: John Maciolek Esq.
Conservation Commission(SE3-4317) `
Members of
American Society of Civil Engineers and Boston Society of Civil Engineers Section
L=18.5
: FLOOD ZONE: R=20.0
Zone C, B & A10(el.=11) ID
Community Panel No. i
#250001 0016 D
July 2, 1992 z o o I
ZONE: CD
RD-1
Area (min.) 87,120 SF (RPOD) J
Frontage (min) 20'
Width (min) 125' �0
Setbacks:
Front 30' ` 4'
Side 10' // A�
Rear 10'
OVERLAY DISTRICT: Lot 6A
AP — Aquifer Protection District j
18
C
111z; 0'"
yy.,�o Qj Lot 2
o pC
3
°c1z
o o M q
A �a�
p�Q Zan FF
e 6
� q
P 7�
�Qoo
70
Annual MHW EI=2.3' (NGVD)
(also flagged as river bank) Q poF Bordering Vegetated Wetland
As Flagged By ENSR
& Donald Scholl
\ yy
V
o. .
1 �
3.3' �1
FO9e Of
So/%O�Sh
e New Wood Pier
s
oo`O6
tH OF'1►{q�_
C
RICHARD
R.
IHEUREUX v
836312
.10
w PLOT PLAN
E ��@ At Powers Drive
11AIZIe29 BARNSTABLE
Professional Land Survey r D to
(Centerville)_
NOTES: MASS,
DATE: 171OCT108 SCALE: 1"--20'
1.) The wood pier shown was located on the ground 0 5 10 15 20 30 40 FEET
by conventional survey methods on 20/OCT/08.
2.) The property line information shown hereon was PREPARED FOR: Powers Drive Association
compiled Dupuy
compiled from available record information. 148 Orchard Street
3.) This plan is not for recording and is not to be Millis, MA 02054
used for construction layout or deed description PREPARED BY: CapeSury
purposes.
7 Parker Road
Osterville MA 02655
DWG #. C443_1gl FIELD BY. MLL/RRL (508) 420-3994 / 420-3995fox