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0028 LITTLE RIVER ROAD
� �t-� �� rev�� z� �� -- _ _ � . 1, �� Y_ .�� �� .��w... ��w..r .a.. i RICHARD A.GARGIULO GARGIULO/RUDNICK, LLP BOSTON OFFICE EDWARD R.GARGIULO ATTORNEYS AT LAW MARIELISE KELLY* 766 FALMOUTH ROAD(RT.28) 66 LONG WHARF CONSTANCE L.RUDNICK BOSTON,MA 02110 PATRICIA NOYES-CORRIGAN MADAKET PLACE,SUITE A-6 TELEPHONE(617)742-3833 JOHN H.BEE MASHPEE,MASSACHUSETTS 02649 TELECOPIER(617)523-7834 JOSEPH F.CAVANAUGH,M GRIDLEY M.LOSEE,JR. ALICE M.FORBES ROBERT A.GRIFFITH TELEPHONE(508)477-6400 OF COUNSEL TELECOPIER(508)477-0455 JOSEPH F.STRUMSKI,JR. MATTHEW J.MURPHY •ALSO ADMn-rM W NY&NH July 12,2005 Thomas Perry, Building Commissioner Town of Barnstable Building Division 200 Main Street Hyannis,MA 02601 RE: Plaintiffs: Arthur Perry,Jr. &Judith Kozlowski Defendants: Thomas Perry,et al Civil Action No: 2005-00365 Barnstable Superior Court) Dear Mr. Perry: With respect to the Cotuit Oyster Co., Inc.'s pier located at 28 Little River Road, it has come to my attention that Attorney Michael Ford has represented to the Barnstable Superior Court both orally and in writing that you are prepared, on behalf of the Town of Barnstable, to issue a permit to the Perry/Kozlowskis to repair the dock at 28 Little River Road. By way of example only, Mr. Ford's filings include the following commentary: "Further, the Plaintiff is prepared to make the Pier safe and the Barnstable Building Commission has indicated that he is prepared to issue a permit for that work." See excerpt of Mr. Ford's filing with the court (page 14 attached hereto). To the extent that Mr. Ford's representation to the court is accurate, I am concerned that the Town of Barnstable would be prepared to issue a permit to Mr. Ford's clients while simultaneously refusing to grant any similar permits to the Cotuit Oyster Co., Inc. with respect to the removal of the dock. In order to clarify the matter: 1. To the extent the Perry/Kozlowski's or anyone else has filed an application for permit to conduct "repair" work or other similar work on the dock at 28 Little River Road, kindly provide me with copies of all such filings. I will gladly reimburse the Town for any associated copying expense. To the extent that the Town is unwilling or unable to provide such copies, please let me know when I can send a representative to review and copy records on file with the Town. P:\COTUIT OYSTER BLDG APPEAL 28 LrFILE RP✓ER\M.IB Thomas Perry Itr re pier 050707.doc i GARGIULO/RUDNICK,LLP Tuesday,July 12,2005 Page 2 of 2 2. To the extent that you have entered into an agreement with Mr. Ford to issue a permit to effectuate repair on the pier at 28 Little River Road, please make all documents reflecting the agreement available to me as well. As I believe you know, the Cotuit Oyster Co., Inc. asserts its ownership of the dock and contends that it is the holder of all licenses that permitted the existence of the dock subject to certain conditions. I have enclosed for your review a Memorandum in support of The Cotuit Oyster Co., Inc.'s position filed with the Barnstable Superior Court. It is the Cotuit Oyster Co.,Inc.'s position that no permits should issue to any party during the pendency of the litigation except by order of the court. Further, for the reasons set forth in the brief, it is the Cotuit Oyster Co., Inc.'s position that the Town of Barnstable Building Department does not have unilateral jurisdiction over whether or not a building permit should issue to the Perry / Kozlowskis. The Town Conservation Commission, the Zoning Board of Appeals and the Massachusetts Department of Environmental Protection, as well as the general public, are all parties who have a right to participate in the permitting process related to the proposed substantial structural alteration of the existing pier, as well as the Perry Kozlowskis desire to convert the commercial pier to a private, recreational pier. It may well be that the Perry / Kozlowskis are ultimately denied the necessary permits for their proposed private,recreational dock. That being the case, it is the Cotuit Oyster Co., Inc.'s position that it is premature for the Building Department to take any action, or to make any commitments to Mr. Ford relative to the repair of the dock. Thank you for your continuing cooperation. Very truly yours, Edward R. Gargiulo ERG/mlk Enclosures cc: Michael Ford,Esq. Robert Smith,Town Counsel P:\COTUrF OYSTER BLDG APPEAL 28 LITTLE RNERWIM Thomas Perty Itr re pia 050707.doc Uf f ri0f GCJclJ 1J. 04 1JG t'+J YJ 77 f7 tenants were notified to vacate 28 Little River Road, and as they had established that the Waterways I..icen.se ran with their land, the Plaintiffs reasonably believed that they had taken all steps necessary to ensure that the Pier was their property. If the Defendant Cotuit Oyster is allowed to demolish.the Pier, an essential property interest of the Plaintiffs will be lost. Further, the Plaintiff is prepared to make the Pier safe and the Barnstable Building Commissioner has indicated that he is prepared to issue a permit for that work. Demolition of the Pier would .result in the loss of enjoyment of the Pier by the Plaintiffs. C. Balance of Hann Weighs in the Plaintiffs' Favor The balance of harms weighs in favor of Plaintiffs as the Pier which the Plaintiffs desire to repair is unsafe, and the Plaintiffs risk potentially losing an essential interest in their real property at 28 Little River Road.if the Defendarit Cotuit Oyster is allowed to demolish the Pier.. The Plaintiffs would lose the use and enjoyment of the Pier during the period of its reconstruction if Defendaiat Cotuit Oyster were to demolish the Pier. The public safety can be maintained without requiring that the removal of the Pier. The Plaintiffs are in fact ready, willing and able to repair the Pier, though they understandably would have preferred to resolve the ownership issues prior to repair. on account of their own invests-rent-backed expectations, and the monetary costs involved in such repair. (See ,affidavit of Plaintiffs .A.RTHUR PERRY, Jr. and JUDITH KOZLOWSKI) Allowing the Defendant Cotuit Oyster to demolish the Pier effectively and inappropriately determines the ownership dispute, and deprives the parties of their rights to a genuine determination of ownership. Such a determination was admitted by the 14 MICHAEL D. FORD, ESQUIRE ATTORNEY AT LAW 72 MAIN STREET, P. 0. BOX 665 WEST HARWICH, MA. 02671 TEL. (508)430-1900 FAX(508)430-9979 EMAIL: mdfesql@verizon.net . June 28, 2005 VIA FACSIMILE: (617)227-1754 and First Class Mail State Building Code Appeals Board Board of Building Regulations and Standards 1 Ashburton Place, Room 1301 Boston, MA 02108 Attn: Clerk Jeffrey D. Putnam �(o� Re: Docket No. 04-148 Dear Clerk Putnam: This office represents appellees, Arthur Perry, Jr. and4udith Kozlowski, in the above-referenced matter. Please find the attached Request for Stay of Enforcement, or alternatively, Request for Modification of Order relative to the ruling issued by the Board June 23, 2005. Appeals from adjudicatory decisions of state agencies are provided for in MGL 30A s. 14. Part 3 of Section 14 further permits an issuing board like the State Building Code Appeals Board to stay its own enforcement order. We therefore appeal to the.Board from this section of the General Laws, the State Administrative Procedures Act. As the specific procedure for a Building Code Appeals Board stay is not provided for in the General Laws or Code of Massachusetts Regulations, and as the Order will work irreparable and irreversible harm on the appellees, we would respectfully request an expedited, emergency action on this request by the Board. In support-thereof,,please find a Appellees' Request that the Board Stay Enforcement of Its Ruling, Or In the Alternative, Modify Its Order Contained In the Ruling,.with appellees' affidavit. Counsel for all parties.to this action will be served this -fequesfbotll in facsimile and hard copy by first-class mail, postage pre-paid.;.. Jeffrey D. Putnam, Clerk State Building Code Appeals Board June 28, 2005 Page t Thank you for your swift attention to this matter: Very truly yours, Michael D. Ford MDF/sfm Enclosure Cc: Edward Gargiulo, Esq. Robert Smith, Esq. ✓Thomas Perry, Building Commissioner Arthur Perry, Jr. and Judith Kozlowski COMMONWEALTH OF MASSACHUSETTS Suffolk,.ss Department of Public Safety State Building Code Appeals Board, Cotuit Oyster Co., Inc. ) Appellant, ) V. ) DOCKET NO. 04-148 Town of Hyannis, Arthur Perry and ) Judith Kozlowski, ) Appellees. ) BOARD'S RULING ON APPEAL Procedural History This matter comes before the State Building Code Appeals Board("the Board")on the Appellant's motion filed pursuant to 780 CMR 122.1. In accordance with 780 CMR 122.3 Appellant asks the Board to review the action of Mr. Thomas pp o as Perry;Building Commissioner, Town of Barnstable in regard to Appellant's request to demolisl�a'pier_"'' appurtenant to,28 Little River Road. In accordance with MGL c. 30A, §§10 and 11; MGL c. 143, §100; 801 CMR 1.02 et. seq.; and 780 CMR 122.3.4,the State Building Code Appeals Board convened a public hearing on December 2, 2004 where all interested parties were provided with an opportunity to testify and present evidence to the Board. Present and presiding as the Board were Mr. Stanley Shuman, Mr. Tim Rodrique; Mr. Sean MacDonald, and Mr. Jeffrey Putnam, acting as clerk. Present and representing Appellant was Attorney Edward Gargiulo. Present and representing Appellees was Attorney Michael Ford. Exhibitsl ...The following exhibits 1-I I were entered into'evidence: . f Exhibit,1:._ , Photograph of dock bearing sign that reads"Danger Keep Away", reportedly located appurtenant to 28 Little River`Road;Cotuit,MA, -.undated•._ ' The Board takes administrative notice of its own records. 801 CMR 1.01(10)(h)(administrative notice)',." M.G.L.30A, §11(5). Exhibit 2: Copy of Property Assessment for 28 Little River Road from Town of Barnstable Website, dated 12/02/2004. Exhibit 3. Copy of Property Assessment for 26 Little River Road from Town of Barnstable Website, dated 12/02/2004. Exhibit 4: Copy of Fiduciary Deed for 28 Little River Road, Cotuit, MA, dated 08/09/2002. Exhibit 5: Land Survey bearing seal and signature of Richard R. Lheureaux, Registered Land Surveyor#34312, Commonwealth of MA, dated 04/23/2003. Exhibit 6: Copy of Lease between Philip Brackett, Trustee, and Cotuit Oyster Co. obtained from Barnstable Registry of Deeds, Bk 15181,p. 137. Exhibit 7: Copy of Letter to Joyce Moore from Mitch Ziercina, Massachusetts DEP, dated 06/19/2002. Exhibit 8: Package from Attorney Ford including letter to David E. Hill, MA DEP; Fiduciary Deed (see above); Joyce Moore letter(see above); Copy of waterways license#8385 issued to Cotuit Oyster Co. and recorded at the Barnstable Registry of Deeds, Book 12782,p.4. Exhibit 9: Letter to David E. Hill, MA DEP from Arlene M. Wilson, dated 07/06/2004. Exhibit 10: Letter to Joyce Moore from Jason P. Silva, Building Inspector,Town of Barnstable, dated 05/02/2003 and letter to Jason Silva from Arthur Perry, Jr., date 05/27/2003. Exhibit 11: Letter to Attorney Gargiulo from Attorney Ford, dated 04/18/2003. Findings of Fact 1. From March 1, 1983 until prior to 2002,Appellant leased land from a trust operating under the will of Sarah Russell Gifford "for the furtherance of shellfish and oyster business.only.". (Exhibit 6). 2. On December 29, 1999, Appellant was granted a waterway license pursuant to MGL c. 91 by the Massachusetts Department of Environmental Protection, license No. 8385, which was duly recorded at the Barnstable Registry of Deeds. (Exhibit 8). 3. On August 9, 2002 a Fiduciary Deed was granted by Joyce B. Moore, Trustee under the will of Sara Russell Gifford to Arthur Perry Jr. and Judith Kozlowski to 2 property at 28 Little River Road, Cotuit, Massachusetts. (Exhibits 4 and 8). 4. On or about April 18, 2003, Appellees' attorney notified Appellant's attorney of Appellee's presumption that Appellants had vacated said property at 28 Little River Road and were "no longer utilizing the pier or pier building." (Exhibit 11). 5. On or about April 30, 2003, the Town of Barnstable was notified by a concerned boater that the dock located on or about 28 Little River Road was in"unsafe condition." The local building inspector inspected the dock and placed a warning at the structure. (Exhibit 10). 6. On or about May 2, 2003,the Town of Barnstable notified Joyce Moore, trustee of the will of Sara Russell Gifford, of the unsafe status of the pier. (Exhibit 10). 7. On or about May 24, 2004, Thomas Perry, Building Commissioner for the Town of Barnstable wrote to Appellant's attorney that the "pier should be removed due to the damage it sustained last winter"and that"[i]n order to remove this present pier a building permit must be applied for so that there can be a written record of its removal." (Board Record, submitted prior to hearing). 8. On or about June 10, 2004, a permit to demolish the pier on or about 28 Little River Road in Cotuit was filed by George Gillmore d/b/a Gillmore Marine Construction with the Town of Barnstable. (Board Record, submitted prior to hearing). 9. On or about June 11, 2004,Appellees asserted in a letter to DEP their belief, based on past communications with that agency,that the waterways license ran with the land located at 28 Little River Road rather than with the pier structure. (Exhibit 8). 10. On or about June 18,2004 Appellant's attorney requested that the permit to demolish the pier be issued by the Town of Barnstable. On or about June 30,2004, Appellant's attorney was notified that"permission...from the property owner"was required pursuant to the Board's regulations at 780 CMR 110.5. (Board Records, submitted prior to hearing). 11. On or about August 17,.2004, Appellant filed an appeal with the State Building Code Appeals Board. 12. On or about November 18, 2004,parties were notified of a hearing scheduled on December 2, 2004. Conclusions of Law 1. Pursuant to Findings of Fact 5 and 6 and supported by Exhibit 1,the pier located on or about 28 Little River Road is an unsafe structure, and is therefore in violation 3 of 780 CMR 121. 2. Pursuant to Finding of Fact 5 and 6, the local building inspector took reasonable steps to notify the party he believed to be the owner of the property as well as the public of the unsafe status of the pier in accordance with MGL c. 143, §6 and 780 CMR 121.1. 3. Pursuant to Finding of Fact 9, the dock was not demolished in violation of MGL c. 143, §§7, 8, and 9 and 780 CMR 1.21.4 and 121.5. Discussion The underlying issue at hand in this matter is clearly an ownership dispute over which this Board has no jurisdiction and for which resolution in a different, more appropriate forum is necessary. Yet, being as the Board has definite jurisdiction and, indeed, a mission to ensure the safety of structures within the Commonwealth, it falls to the Board to make a decision regarding the dock located appurtenant to 28 Little River Road in Cotuit/Barnstable, Massachusetts. Therefore, it is without hesitation that the Board opines that the aforementioned dock must be removed with all due speed. The photographs entered as Exhibit 1 and reviewed during the hearing on this matter show that the dock is clearly an unsafe structure, as Barnstable Building Inspector Silva stated in his letter dated May 2, 2003 and about which Building Commissioner Perry concurred in his letter dated May 24, 2004. In its current condition, the dock poses a hazard to public safety and may be considered an attractive nuisance. Issues of liability in the event of an accident, again far outside the jurisdiction of this Board, no doubt abound. The confusion of the Building Commissioner in this instance is justified and,as he testified during the hearing, he correctly sought the advice of town counsel. Yet, confusion does not excuse the duty of the Building Commissioner to ensure that a structure deemed unsafe is removed expeditiously. Therefore, as Building Commissioner Perry was hesitant to do so,this Board now concludes that the dock in question shall be demolished by the Appellant. According to the lease initially signed by Mr. Brackett as trustee and Mr.Nelson as. President of Cotuit Oyster Co., the lessee, and recorded in the Barnstable Registry of Deeds,the"[p]arties hereto hereby acknowledge that the pier or dock on said property is the property of the lessee. In the event it is destroyed by storm or otherwise, the lessee 4 may, but shall not be obligated to, replace the same." (Exhibit 6, Article IX). As such, it is the finding of the Board that the duties regarding the structure of the pier, including the maintenance of its safe condition, are the Appellant's. Therefore,the Board hereby orders the Appellant to remove the structure which has been deemed unsafe by the local building inspector, the local building commissioner, and now this Board. Conclusion Based on the testimony and exhibits,the Board finds that the pier located on or about 28 Little River Road is an unsafe structure. As stated previously,the determination of ownership of the property is ultimately outside the jurisdiction of this Board,but what is within the jurisdiction of this Board is ensuring the safety of structures within the Commonwealth. The continued existence of the structure in question poses a risk to public safety and as such this Board may act to remove it in accordance with MGL c. .143, §§6, 7, 8, and 9 and 780 CMR 121.1-121.5. In furtherance of the goal of preserving public safety, the Board has issued this ruling. The above findings and orders were voted unanimously. Right to Appeal Appellees are hereby notified of the right to appeal this Ruling within thirty (30) days,pursuant to M.G.L. c. 30A, §§14 and 15. SO ORDERED, STATE-BUILDING (CODE APPEALS BOARD Y&V Timothee Rodrique Sean McDonald Stanley Shum Date Issued: June 23, 2005 5 i I The Commonwealth of Massachusetts 4 W M Department of ft6lic Safety ' o;' .,2. z d (Board of B% uifi ing guCations andStandards One Ashburton Mace, 1gom 1301 �] Thomas G.Gatzunis, Mitt Romney Boston, WassaeFiusetts 02108-1618 commissioner Governor; t Phone`(i 1 T� T2T-7532 1 Stanley Shuman Kerry Healey• (� ,/ Chairman Lieutenant Governor 1"aa�(617)227-1 TS`I Gary Moccia Edward A.Flynn Vice Chairman Secretary Thomas L.Rogers Administrator 18-Nov-04 Mr./Mrs. Perry Building Commissioner Town of Barnstable,200 Main Street Hyannis, MA. 02601 Docket Number 04-148 Property Address 28 Little River Road Cotuit,MA. Hearing Location National Guard Armory"14 Minuteman Lane, Wellesley,MA Hearing Date and Time 12-02-04 "1'1 00 a.m it L ' 'Dear Mr./Mrs. Perry . i' i The appeal for the subject property has been scheduled to be heard on the hearing date and time and location indicated above. A map is enclosed for your convenience. The State Building Code Appeals Board requires your presence or that of your representative at its hearing relative to the above case. Please bring with you a copy of the record, including any plans, sketches, drawings, etc,that will help to give the Appeals Board grounds to adjudicate this appeal. The State Building Code Appeals Board hearings are held pursuant to 801 CMR 1.02 Informal Fair Hearing Rules. NO POSTPONEMENTS OR REFUNDS WILL BE GRANTED. In order to reschedule an appeal case,you must first withdraw the original case and file a new application. A new application fee will be required. Very truly yours, THE STATE BUILDING CODE APPEALS BOARD Patricia A. Barry . Coordinator T o F � � o - Brook J F I 95 .ARK10RY _... . . . .. �..._ ...-.. 9t ' .S. 1 i Q ` 1 ' S i 1 CAvrA 2nd tS.. s j 'Mi i Id 1993. Del-orme Mapping} :GEND Scale 1:10,937(at center) Population Center o Interstate Highway ' --i Mag 16.00 1000 Feet..: State Route Railroad Wed Jun 11 11:38:34 1997 =� Interstate, Turnpike _. . _- River 200 Meters County Boundary Open Water — Street; Road Directions to the National Guard Armory in Wellesley, Ma. — Hwy Ramps Traveling toward the West on Route 9, Minuteman Lane is 1800' feet Major.Street/Road from Route 128 (95) on the right. Traveling East, make a "U" turn at the State Route 'lights 800' feet before Route 128. Minuteman Lane is 1200' toward the on the right. The conference room.is inside the door on the right as you enter the property. (See map) 1 RICHARD A-GARGIULO GARGIULO/RUDNICK, LLP BOSTON OFFICE EDWARD R.GARGIULO ATTORNEYS AT LAW MARIELISE KELLY* 766 FALMOUTH ROAD(RT.28) 66 LONG WHARF CONSTANCE L.RUDNICK BOSTON,MA 02110 PA'IRICIANOYES-CORRIGAN MADAKET PLACE, SUITE A-6 TELEPHONE(617)742-3833 JOHNH.BEE MASHPEE,MASSACHUSETTS 02649 TELECOPIER(617)523-7834 JOSEPH F.CAVANAUGH,III GRIDLEY M.LOSEE,JR. ROBERT R.WALDO ALICE M.FORBES TELEPHONE(508)477-6400 OF COUNSEL TELECOPIER(508)477-0455 JOSEPH F.STRUMSKI,JR. E-MAIL: grg@grglaw.com ALSO ADNME)IN NY&NH August 16,2004 CERTIFIED MAIL RETURN RECEIPT REQUESTED Thomas Perry,Building Commissioner Town.of Barnstable Building Division 200 Main Street Hyannis,MA 02601 RE: •-28 Little•Ri-ver Road, Cotuit,Massachusetts Dear Mr. Perry: Enclosed please find the following documents: 1. Original Service Notice 2. Copy of the Appeal Application Very truly yours, Edward R. Gargiul E.R.G/mb Enclosures P:\COTl1Cr OYSS[ERNELSONUM Thomas Perry Itr w Appeal 040816.doc 780 CMR: STATE BOARD OF,BUILDING REGULATIONS AND STANDARDS APPENDIX B gal KENTARO TSUTSUMI WILLIAM F.WELD � Z �p�` ��`f�8 Chairman Gavemor THOMAS L.ROGERS KAT11LEMN 21.1.O'rOOLE Adminid-tor Secretary TEL:(617)727-3200 FAX:(617)227-1754 STATE BUILDING CODE APPEALS BOARD-SERVICE NOTICE I Edward R. Gargiulo , as attorney for the Appellant/Petitioner Cotuit.-.Oyster Co. , Inc. in an appeal filed with the. State Building Code Appeals Board on August 17 2004 HEREBY SWEAR UNDER THE PAINS AND PENALTIES OF PERJURY THAT IN ACCORDANCE WITH THE PROCEDURES ADOPTED BY THE STATE BOARD OF BUILDING REGULATIONS AND STANDARDS AND SECTION 122.3.1 OF THE STATE BUILDING CODE,I SERVED OR CAUSED TO BE SERVED, A COPY OF THIS APPEAL APPLICATION ON THE FOLLOWING PERSON(S)IN THE FOLLOWING MANNER: NAME AND ADDRESS OF PERSON/AGENCY SERVED METHOD OF SERVICE DATE OF SERVICE 1 ) Thomas Perry Building Commi ssi oner ' Town of Barnstable 200 Main Street Certified Mail 17, 2004 Hyannis, MA 02601 Return Receipt Requested 2), Michael D. Ford, Esq. Stinson & Ford P.O. Box 665 West Harwich, MA 02671 Certified MAil August 17, 2004 Return Receipt Requested f Signature:APPELLANT/PETITIO 11/27/98 780 CMR- Sixth Edition 687 780 CMR: STATE BOARD OF BUILDING REGULATIONS AND STANDARDS THE MASSACHUSETTS STATE BUILDING CODE On the 1 7 th Day of August 2 0 0 4 PERSONALLY APPEARED Cotuit Oyster Co. , Inc. BEFORE ME THE ABOVE NAMED (Type or Print the Name of the Appellant) AND ACKNOWLEDGED AND SWORE THE ABOVE STATEMENTS TO BE TR4646d&" KATHLEEN A.THIBEAULT Notary Public CommonweaUh of Ihssachuset W CanwAWm E*=Feb l 1,200: NOTARY PUBLIC MY COMMISSION EXPIRES 688 780 CMR- Sixth Edition 1/19/01 RICHARD A.GARGIULO GARGIULO/RUDNICK,LLP BOSTON OFFICE EDWARDR.GARGIULO ATTORNEYS AT LAW =T TE MA SE LLY* 766 FALMOUTH ROAD(RT.28) 66 LONG WHARF . CONSTANCE L.RUDNICK BOSTON,MA 02110 PATRICIA NOYES-CORRIGAN MADAKET PLACE, SUITE A-6 TELEPHONE(617)742-3833 JOHN H.BEE MASHPEE,MASSACHUSETTS 02649 TELECOPIER(617)523-7834 JOSEPH F.CAVANAUGH III GRIDLEY M.LOSEE,JR. ROBERT R.WALDO ADCE M.FORBES TELEPHONE(508)477-6400 OF COUNSEL TELECOPIER(508)477-0455 JOSEPH F.STRUMSKI,JR. E-MAIL: grg@grglaw.com •ALSO ADW=INNY&NH . August 16,2004 State Building Code Appeals Board. board of Building and Standards 1 Ashburton Place Boston,M A 02108 RE: 28 Little River Road, Cotuit,Massachusetts Dear Sir or Madam: Enclosed please find the following: 1. Letter dated August 5,2004 from Thomas Perry,Building Commissioner, Town of Barnstable failing to Act on Permit Application(four copies) 2. Appeal Application Form(2 pages)(one original and 3 copies) 3. Service Notice(four copies) 4. Filing fee in the amount of$150.00 Thank you for your assistance. Very truly yo , d Edward R:Gargiul LRGfmb Enclosures cc: Thomas Perry,Building Commissioner Michael Ford,Esq. P:\COTUfr OYSTERNELSON MJB State Building Code Appeals Board letter 040813.doc - - �pF1HE fn Town of Barnstable Regulatory Services + BARNSTABLE, MASS. � Thomas F. Geiler, Director �A 1639. ♦� rFnMnra Building Division Thomas Perry,Building Commissioner 200 Main Street, Hyannis, MA 02601 www.town.barnstable.ma.us Office: 508-862-4038 Fax: 508-790-6230 August 5, 2004 Gargiulo/Rudnick, LLP Attn: Edward R. Gargiulo 766 Falmouth Rd., Suite A-6 Mashpee, MA 02649 RE: Pier, 28 Little River Rd., Cotuit, MA Dear Atty. Gargiulo: Thank you for your letter of July 15, 2004 on the above referenced property. Our position has not changed and this department will not issue a permit for the pier. The actual owner of the pier still remains unclear and it appears this is an issue that the courts must decide. You may appeal this decision, as is your right,to either the zoning board of appeals or the state board of building regulations and standards. Sincerel , Thomas Perry Building Commissioner �C' TP/AW 4t l RUDNIck L` 780 CMR: STATE BOARD OF BUILDING REGULATIONS AND STANDARDS APPENDIX B ezeea 6f8ce,olguw,90* Sir 90ald13 11111_qul"�g Ay �and So WILLIAM F.WELD V/��( /- _ //,I KENTARO TSUTSUMI Cavenar �/ vi s.�LC��e �.2'I�� Chairman KATHLEEN M.OTOOLE THOMAS L.ROGERS Secretary TEL:(617)7273200 FAX:(617)227-1754 Administrator STATE USE ONLY Fee Received: Check No.: STATE BUILDING CODE APPEALS BOARD Received By: APPEAL APPLICATION FORM DOCKET NUMBER: DATE: 8/17/0 4 (State Use Only) The undersigned hereby appeals to the State Board of Building Regulations and Standards from the decision of the: Building Official from the City/Town of Barnstable Board of Appeals from the City/Town of: Other Municipal Agency/Official entitled: State Agency/Official entitled: OTHER: Dated: 8/5 19�2 0 0 shaving been aggrieved by such(check as appropriate) Interpretation 0-"' Order o Requirement o Direction o Failure to Act g/ Other o Explain All appropriate cede sections must be identified: All written supporting documentation must be submitted with this application.. 780 CMR 110 5, 780 CMR 122 1 , 780 CMR 121 State desired relief- Building permit to demolish pier 11/27/98 780 CMR- Sixth Edition 683 780 CMR: STATE BOARD OF BUILDING REGULATIONS AND STANDARDS THE MASSACHUSETTS STATE BUILDING CODE r APPELLANT: Cotuit Oyster Co. , Inc. n r,n ET 766 Falmouth Road, Unit A-6, Mashpee, MA 02649 ADD�.ESS I'�1.SERVICE: 5 Telephone No. 08-477-6400 ADDRESS OF SUBJECT PROPERTY: 2'8--Little,,River Road, Cotuit, Massachusetts APPELLANT'S C CTION TO SUBJECT PROPERTY: owner of pier Edward R. Gargiulo,. Esq SIGNATURE OF APPELLANT RESENTATIVE (NAME-PLEASE PRINT) n it 684 - 780 CMR-Sixth Edition k 1/19/O1 • ;i 780 CMR: STATE BOARD OF BUILDING REGULATIONS AND STANDARDS APPENDIX B DESCRIPTION OF BUILDING OR STRUCTURE RELATIVE TO THE MASSACHUSETTS STATE BUILDING CODE (780 CMR 6th EDITION): (Check as appropriate) Check Here if Building is a One or Two Family Dwelling z Proceed to section entitled "Description of the Proposed World' - Do not complete the tables below DES.CRIPTIONOF PROPOSED WORK(check all applicable) New Construction es Existing Building es Repair(s) es Alteration(s) es Addition es Accessory Bldg. es Demolition Other Specify: Pier Description of Proposed Work: Demolition of damaged timber pier -- I U.SE GROUP AND CONSTRUCTION TYPE USE GROUP(Check as applicable) CONSTRUCTION TYPE A Assembly es A-1 es A-2 es A-3 eC 1A � A-4 es A-5 Z 113 B Business Z 2A Z E Educational es 213 F Factory es F-1 e<. F-2 2C H High Hazard es 3A I Institutional Z I-1 et 1-2 es 1-3 es 36 es M Mercantile 4 R Residential R-1 Z R-2 Z R-3 Z 5A S Storage es S-1 es S-2 es 5B U Utility es Specify: M Mixed Use Specify: 11/27/98 780 CMR- Sixth Edition 685 780 CMR: STATE BOARD OF BUILDING REGULATIONS AND STANDARDS THE MASSACHUSETTS STATE BUILDING CODE S Special Use zs Specify: — -- — -- -- COMPLETE.THIS SECTION IF EXISTING BUILDING UNDERGOING RENOVATIONS,ADDITIONS AND/OR '- CHANGE IN USE Existing Use Group: abandoned _ Proposed Use Group: Existing Hazard Index(780 CMR 34): Proposed Hazard Index(780 CMR 34): BUILDING HEIGHTAND AREA BUILDING AREA Existing (if applicable) Proposed Number of Floors or stories include basement levels Pier PfAr Area per Floor(sf) + 352 0 . e Total Area(sf) Total Height(it) Description t'nn of the Proposed Work: Demolition of damaged timber pier F 686 780 CMR- Sixth Edition 1/19/01 EXHIBITS . j e �c1IARD A GARGIULO GARGIULO/RUDNICK, LLP BosTON oFFlca DWARDR.GARGIULO ATTORNEYS AT LAW 4ARIE ISEKELLY* 766 FALMOUTH ROAD(RT.29) 66 LONG WHARF IONSTANCEL.RUDNICK BOSTON,MA 02110 ATRICIA NOYES-CORRIGAN MADAKET PLACE, SUITE A-6 TELEPHONE(617)742-3833 )HHH.BEE MASHPEE,MASSACHUSETTS 02649 TELECOPIER(617)523-7834 )SEPHF.CAVANAUGH,III RIDLEY M.LOSEE,J R. OBEItT R.WALDO LICE M.FDRBES TELEPHONE(508)477-6400 F COUNSEL TELECOPIER(508)477-0455 )SEPH F.STRUMSKI,JR. E-MAIL: grg@grglaw.com July 15,2004 Tom Perry,Building Commissioner Town of Barnstable Building Division 200 Main Street Hyannis,MA 02601 RE: Pier,28 Little River Road, Cotuit,Massachusetts Dear Commissioner Perry: Thank you for your letter dated June 30,2004,postmarked July 14,2004,and received by my office today. 780 CMR 110.5 states: "Application for a permit shall be made by the owner or lessee of the building or structure,or agent of either,"not the real property owner. I have attached a copy of 780 CMR 110.5 for your review. Previously,you had been provided with proof of ownership of the pier. Furthermore, Mr.Nelson,owner of the pier,signed the application for the.permit. Therefore,having complied with the Statute,kindly issue a permit at your earliest opportunity. Very truly yours, Edward R. Gargi ERG/mb Enclosure cc: Mr.Richard Nelson,Cotuit Oyster Company Arlene Wilson,A.M.Wilson&Associates RICO=DYSTEIZNQ.SONMB Tom Perry lener5repiuO40715.doc 780 CMR: STATE BOARD OF BUILDING REGULATIONS AND STANDARDS THE MASSACHUSETTS STATE BUILDING CODE requirements of 780 CMR as necessary to insure 3. Retaining walls which, in the opinion of the the public health, safety and general welfare. building official, are not a threat to the public safety health or welfare and which retain less than 110.2.3 Termination of approval:The building four feet of unbalanced fill. official may terminate such special approval and 4. Ordinary repairs as defined in 790 CMR 2. order the demolition of any such construction at Ordinary repairs shall not include the cutting the discretion of the building official. away of any wall,partition or portion thereof,the removal or cutting of any structural beam,column 110.3 Exemptions: A building permit is not or other loadbearing support, or the removal or required for the following activities, such exemp- change of any required means of egress, or tion,however,shall not exempt the activity from any rearrangement of parts of a structure affecting the review or permit which may be required pursuant to egress requirements; nor shall ordinary repairs other laws, by-laws, rules and regulations of other include addition to, alteration of, replacement or iurisdictions (e.g. zoning, conservation, etc.). relocation of any standpipe, water supply, 1. One story detached accessory buildings used mechanical system,fire protection system, energy as tool or storage sheds, playhouses and similar conservation system or other work affecting uses,provided the floor area does not exceed 120 public health or general safety. square feet. 2. Fences six feet in height or less. Note: Also see 780 CMR 903.1 (Exceptions 1. and 2.). the application. Such written authorization shall be 5. Greenhouses: A building permit or notice to signed by the owner and shall include a statement of the building official is not required for the con- ownership and shall identify the owner's authorized struction of greenhouses covered exclusively with agent,or shall grant permission to the lessee to apply plastic film(in accordance with St. 1983, c. 671). for the permit. The full names and addresses of the (This exemption does not apply if the greenhouse owner,lessee,applicant and the responsible officers, is to be used for large assemblies of people or us- if the owner or lessee is a corporate body, shall be es other than normally expected for this purpose.) stated in the application. 10.4 Form of application: The application for a Note:It shall be the responsibility ofthe registered ermit shall be submitted in such form.as determined contractor to obtain all permits neces-sary for y the building official but in all cases shall contain, work covered by the Home Improvement s a minimum, the information required on the Contractor Registration Law, M.G.L. c. 142A. ppropriat.- sample uniform building permit An owner who secures his or her own permits for pplication forms inAppendix B. The application for such shall be excluded from the guaranty fund permit shall be accompanied by the required fee as provisions as defined in M.G.L. c. 142A. Refer to rescribed in 780 CMR 114.0 and the construction 780 CMR R6 and M.G.L. c. 142A for additional ocuments as required in 780 CMR 110.7 and 110.8, information regarding the Home Improvement here applicable and as required by other sections of Contractor Registration Program. 80 CMR. 110.6 ` The securing of a building permit by the 10.5 By whom application is made: Application owner,or the owner's authorized agent,to construct, it a permit shall be made by the owner or lessee of reconstruct, alter, repair, demolish, remove, install ie building or structure, or agent of either. If equipment or change the use or occupancy of a )plication is made other than by the owner, the building or structure, shall not be construed to -ritten authorization of the owner shall accompany relieve or otherwise limit the duties and responsibil- 780 CMR- Sixth Edition 11/27/98 780 CMR: STATE BOARD OF BUILDING REGULATIONS AND STANDARDS ADMINISTRATION ities of the licensed,registered or certified individual registered architect responsible for the design,except rn firm under the rules and regulations governing the as provided in M.G.L. c. 143, § 54A and any issuance of such license registration or certification. profession or trade as provided in M.G.L. c. 112, § 60L and M.G.L. c. 112, § 81R. 110.7 Construction documents:The application for When such application for permit must comply permit shall be accompanied by not less than three with the provisions of 780 CMR 4 or 780 CMR 9 or sets ofconstruction documents.The building official 780 CMR 34,the building official shall cause one set is permitted to waive,or modify the requirements for of construction documents filed pursuant to filing construction documents when the building 780 CMR 110.7 to be transmitted simultaneously to official determines that the scope of the work is of a the head of the .local fire department for his file, minor nature_ When.the quality of the materials is review and approval of the items specified in essential for conformity to 780 CMR, specific 780 CMR 903.0 as they relate to the applicable information shall be given to establish such quality, sections of 780 CMR 4, 780 CMR 9 or 780 CMR and 780 CMR shall not be cited, or the term"legal' 34. The head of the local fire department shall within or its equivalent used as a substitute for specific ten working days from the date of receipt by.him, information. approve or disapprove such construction documents. If the head of the local fire department disapproves 110.8 Engineering Details,Reports,Calculations, such construction documents,he or she shall do so, Plans and Specifications: In the application for a in writing citing the relevant sections of permit for buildings and structures subject to con- noncompliance with 780 CMR or the sections of the struction control in 780 CMR 116.0, the construc- referenced standards of Appendix A. Upon the tion documents shall contain sufficient plans and de request of the head of the local fire department, the iaiis to full describe the work intended, including, building official may grant one or more extensions of but not limited to all details sufficient to describe the time for such review provided, however, that the structural,fire protection, fire alarm, mechanical, total review by said head of the local fire department light and ventilation, energy conservation, architec- shall not exceed 30 Calendar days. If such approval, tural access and egress systems.The building official disapproval or request for extension of time is not may require such calculations, descriptions narra- received by the building official within said ten rives and reports deemed necessary to fully describe working days, the building official may deem the he basis of design for each system regulated by construction documents to be in full compliance with 180 CMR. In accordance with the provisions of the applicable sections of 780 CMR 4,780 CMR 9 or vI.G.L. c.143, § 54A all plans and specifications 780 CMR 34 and,therefore approved by the head of ;hall bear the original seal and original signature of a the local fire department. dassa.chusetts registered professional engineer or 110.9 Existing Buildings: The application for a proposed finished grades; and it shall be .drawn in. wilding permit to reconstruct, alter or change the accordance with an accurate boundary line survey.In ise or occupancy of existing buildings or structures the case of demolition, the site plan shall show all vhich are subject to construction control pursuant to construction to be demolished and the location and `80 CMR 116.0,shall be accompanied by a building size of all existing structures and construction that urvey where required by. 780 CMR 34 and are to remain on the site or plot. Ippendix F. 110.11 Independent Structural Engineering 10.10 Site plan:A site plan shall be filed showing, Review: scale,the size and location of all new construction ad all existing structures.on the site,distances from 110.11.1 As a condition for the issuance of-a )t lines, the established street grades and the building permit, the structural design of the ' 1/27/98 780 CMR- Sixth Edition 21 780 CMR: STATE BOARD OF BUILDING REGULATIONS AND STANDARDS ADMINISTRATION provisions of 780 CMR in case of any false statement All debris shall be disposed of in accordance with or misrepresentation of fact in the application or on 780 CMR 111.5. the plans on which the permit or approval was based. 112.2 Notice to adjoining owners: Only when written notice has been given by the applicant to the 111.13 Approval in part: The building official may owners of adjoining lots and to the owners of wired issue a perni t for the construction of foundations or or other facilities,of which the temporary removal is any other part of a building or structure before the necessitated by the proposed work, shall a permit be . construction documents for the whole building or granted for the removal of a building or structure. structure have been submitted, provided that adequate information and detailed statements have 112.3 Lot regulation: Whenever a building or been filed complying with all of the pertinent structure is demolished or removed, the premises requirements of 780 CMR. Work shall be limited to shall be maintained free from all unsafe or hazardous that work approved by the partial approval and conditions by the _proper regulation of the lot, further work shall proceed only when the building restoration of established grades and the erection of permit is amended in accordance with 780 CMR the necessary retaining walls and fences in 110.13. The holder of such permit for the accordance with the provisions of 780 CMR 33. foundation or other parts of a building or structure shall proceed at the holder's own risk with the 780 CMR 113.0 CO"MITIONS OF PERMIT building operation and without assurance that a permit for the entire building or structure will be 113.1 Payment of fees:i A permit shall not be issued granted. until the fees prescribed in 780 CMR 114.0 have been paid. 111.14 Posting of permit: A true copy of the building permit shall be kept on the site of 113.2 Compliance with code: The permit shall be a operations, open to public inspection during the license to proceed with the work and shall not be entire time of prosecution of the work and until the construed as authority to violate, cancel or set aside completion of the same. any of the.provisions of 780 CMR or any other law or regulation, except as specifically stipulated by 111.15 Notice of start: At least 24-hour notice of modification or legally granted variation as described start of work under a building permit shall be given in the application. to the building official. 113.3 Compliance with permit: All work shall 780 CMR 112.0 DEMOLITION OF conform to the approved application and the STRUCTURES approved construction documents for which the permit has been issued and any approved 112.1 Service connections: Before a building or amendments to the approved application or the structure is demolished or removed, the owner or approved construction documents. agent shall notify all utilities having service connections within the structure such as water, 113.4 Compliance with site plan: All new work electric,gas,sewer and other connections. A permit shall be located strictly-in accordance with the to demolish or remove a building or structure shall approved site plan. not be issued until a release is obtained from the utilities, stating that. their respective service 780 CMR 114.0 FEES connections and appurtenant equipment, such as meters and regulators,have been removed or sealed 114.1 .General: A permit to begin work for new and plugged in a safe manner. construction,alteration,removal,demolition or other 11/27/98 780.CMR- Sixth Edition 25 pFIHE l� Town of Barnstable Regulatory Services 9 MASS. Thomas F. Geiler, Director �A 1639. tF0 Mega Building Division Thomas Perry,Building Commissioner 200 Main Street, Hyannis, MA 02601 www.town.barnstable.ma.us Office: 508-862-4038 Fax: 508-790-6230 June 30, 2004 Gargiulo/Rudnick, LLP Attn: Edward R. Gargiulo 766 Falmouth Rd., Suite A-6 Mashpee,MA 026-t RE: 28 Little River Road, Cotuit,MA Dear Mr. Gargiulo: As with all of the building permits this department processes,we require, as part of the application package, a signed permission form from the property owner that work may be conducted on their property. The authority to require this is in section 110.5 of 780 CMR,the state building code. This should be a sufficient answer to both of your letters, one dated June 18, 2004 and the other dated June 24, 2004. If you should secure permission from the property owner we will process-the permit regarding the pier. Sincerel Thomas Perry Building Commissioner TP/AW RECEIVE JUL 15 2004 GARGIULO I R UDNICK,LLP GARGIULO/RUDNICK, LLP BOSTON OFFICE RICHARD A GARGIULO EDWARD R.GARGIULO ATTORNEYS AT LAW IVIARIELISEKELLY' 766 FALMOUTHROAD(RT.28) 66LONGWHARF CONSTANCE L.RUDNICK BOSTON,MA 02110 PATRICIANOYES-CORRIGAN MADAKET PLACE, SUITE A-6 TELEPHONE(617)742-3833 JOHNH.BEE MASHPEE,MASSACHUSETTS 02649 TELECOPIER(617)523-7834 JOSEPH F.CAVANAUGH,III GRIDLEY M.LOSEE,JR. ROBERTR WALDO ALICE M.FORBES TELEPHONE(508)477.6400 TELECOPIER(508)477-0455 OF COUNSEL E-MAIL: grg@g&W.com JOSEPH F.STRUMSKI,JR. •AL.SOADMMED N NY&NH June 18,2004 Tom Perry,Building Commissioner Town of Barnstable Building Division 200 Main Street Hyannis,MA 02601 RE: 28 Little River Road,Cotuit,Massachusetts Dear Commissioner Perry: It is my understanding that you spoken with George Gilmore of Gilmore Marine Contracting yesterday regarding the Cotuit Oyster Company's application for a building permit for the removal of its old pier at 28 Little River Road. As you know,the pier has been in a dangerous condition for a substantial period of time,you yourself have stated on two occasions that this was the case. In fact,you inquired of me at Site Plan Review whether or not the Company would at some point be willing to remove the old pier to which I responded we would. It is further my understanding that you have told Mr. Gilmore that you will not issue a permit without the written permission of the property owners of 28 Little River Road. As Mr. Gilmore informed you,the pier is to be removed seaward thereby not resulting in any trespass on the real estate. Also,as you can see from page 8,paragraph X in the lease attached hereto between the Brackett Trust and the Cotuit Oyster Company and the Chapter 91 License, which should be contained in our filings,the pier was clearly intended to be the property of the Cotuit Oyster Company. Therefore,please issue the permit or cite what authority you are relying upon to refuse to do so. P,X0TUIT OYSTE&.NEMONIMIB Tom Perry letter 3 re 28 Pier 040618.doc OFIHElpk, Town of Barnstable Regulatory Services w BARNSTABLE, + v Mnss, g Thomas F. Geiler,Director 039. rfD Mai" Building Division Thomas Perry,Building Commissioner 200 Main Street, Hyannis, MA 02601 www.town.barnstable.ma.us Office: 508-862-4038 Fax: 508-790-6230 May 24, 2004 Edward R. Gargiulo Gargiulo/Rudnick,L L P 766 Falmouth Rd. Madaket Place, Suite A-6 Mashpee, MA 02649 Re: 28 Little River Rd., Cotuit,MA Dear Atty. Gargiulo: This letter is in response to your letter of April 7, 2004. I agree with what has been said in the past and feel that this pier should be removed due to the damage it sustained last winter. In order to remove this present pier a building permit must be applied for so that there can be a written record of its removal. a , erry Building Commissioner RECEIVED AW/TP MAY 27 2004 GARGIUL6/RUDNICK,LLP TOWN OF BARNSTABLE BUILDING PERMIT APPLICATION Map S3 Parcel Iq Permit r Health Division Date Issued Conservation Division !✓ 110 IDS( 12k Application Fee J � I Tax Collector r� Permit Fee Treasurer I V Planning Dept. Date Definitive Plan A ved by Planning Board Historic- ( eservation/Hyannis Project Street Address0'-2 8 U VTU5 P-k✓ 2�b wt b 3 t�T 1 Village. 00T1-t-t Owner* Co,w"-C a 6TL�2 arvL POV�-1 rUCAddress TO 3 C0_u,r, A, 1,- r�ZG3� \ LiIE1L OL14�1 - - Telephone T�8�1 `/z g -��`/� JJ Permit Request o F �a-�K a� G rvwc T3 Ft&=�-7 K Square feet:1 st fleer:existing t3Sa proposed 0 2nd floor:existing D proposed O Total new O Zoning District trt= Flood Plain t/-/y c1-Is�roundwaterOverlay A F 60sr TO 4&MO z-aao Project Valuation -0 Construction Type -?i&-V — Lot Size O, 19 Grandfathered: ❑Yes . ❑No If yes,attach supporting documentation. �A \' Dwelling Type: Single Family- ❑ Two Family ❑ Multi-Family(#units) Age of Existing Structure f zo rz5 Historic House: ❑Yes gNo On Old King's Highway: ❑Yes XNo \ Basement Type: 0 Full ❑Crawl ❑Walkout ❑Other Basement Finished Area(sq.ft.) Basement Unfinished Area(sq.ft) �\ Number of Baths: Full:existing new Half:existing new Number of Bedrooms: existing - new Total Room Count(not including baths):existing new First Floor Room Count 1h Heat Type and Fuel: ❑Gas ❑Oil ❑Electric 0 Other Central Air: 0 Yes ❑No Fireplaces:Existing New Existing wood/coal stove: 0 Yes ❑No Detached garage:❑existing ❑new size Pool:❑existing ❑new size Barn:0 existing ❑new size Aftached garage:0 existing ❑new size Shed:0 existing ❑new size Other: �tc� �o BE i�a�rs�l/4 Zoning Board of Appeals Authorization ❑ Appeal if Recorded❑ Commercial ❑Yes MNo If yes,site plan review If I� Current Use k0�'i m.l Proposed Use Of&�C Pe�,c L c c r -��'V.T— �� � spa.-C� oaonlS �3orr[�- CoTu.l-r o�-src-2 oWtiiS "Mz: �cc�.T�C.RC" P�oPo.s-z� T�v-� r`-c�''�v'-rlir�-� 06 e-ic "71 c ACaT BUILDER INFORMATION l Name GI u_u r.o-2C emu i'ZrACT7 a(G Telephone Number _ Address 34 30t7�o+�4 R1 License# ZSSz z wl.�x5�1QcZ, VA 14 006 V Home Improvement Contractor# l Z3 9 SZ Worker's Compensation# C.Ku_ 9*3X 23 1 ALL CONSTRUCTION DEBRIS RESULTING FROM THIS PROJECT WILL BE TAKEN TO 3 Fj SIGNATURE I v DATE ��J Q The Conatnnnwealth of Massachusetts Department of Indust7ird Accidents �� — • . ��eef�'tslt�tl�s' . 600 Washington Street v � Boston,Mass. 02111 Workers'CQMP ensation.Insurance Affidavit-General Bus inesses� .. � �'' � • .� state: , Zi • � _. .. ... .. - - - -... . — 'p: rork site IOMEo7l frill address ] le proprietor and have no one Business Type: E3 Retail❑RestaurantlBar/Batin'g T am'a so Establishment ' working le any capacity. ❑ Office❑ sales (mcluding'Real Estate, Autos etc.)' ] I am an em to er with employees(full& art time. ❑ Other �/////�///%///• %' %%/%%��n%/ em1Q%ye%s worlQng on this job.. • . I am employer provid?ng v�orkers comp :, Y employees om an .name. .. , •. - •' ':.. . d"dress: ;= :r': , . ' Lam" f•���`•• �• ,.H_ /. �G:-l.�'" one.#:".':..�r.��: ' •r v. .. ::.'•.•'• .cos •..l✓. ';'\:.'. _ :� �,.�,:.:i:•., ��f risurance I am a sole proprietor and have hired the indepen de nt contractors listed below who havr the following workers' ;ompensation polices: zom 12 �an address:. •.4.+. =j... • iri'suranzZZ - III rtr JH .i a ddTCSS: ]IISllt"8T10E`-0:'" FIIIIII117111117111117111171111 lead io the imposition of•y� - to S4500.00 Failure to�secnre cvv antes well asictvilpenaltirs In the foY m of a STOP WORK ORDER and a fine of criminal1 m 0 D4 a day againstme.p r I understand that g oae years imprisonm copy of tors statement maybe for-watded to the Offi �f vestigatiens of the DIA for coverage verification. . j'do hereby. erti r the par an p� ` ids perjury that the inform ation provided above is true o Date Signature ' Phone# print.name r do not write in this area to be completed by city or town official use only e permittlicense# ❑Building Department city ortowa: ❑Licensing Board — ❑Selectmen's Office ' ❑•checkif immediate response is required ❑Realth Department phone-#; ❑Other contact person: (Tailed Sept 203) 1/411 U4 11. Et) rhA OUO4//U4DO UARU1ULU RUDNICh LLP 16001 �j Town of Barnstable Regulatory Services 1VOINSTAS e. Thomas F. Geiler,Director �.e� Building Division �n M►Y Thomas Perry,Building Commissioner 200 Main Street, Hyannis,MA 02601 www.town.ba rnstable.ma.us Fax: 508-790-6230 Office: 508-862-4038 May 24,2004 Edward R. Gargiulo Gargiulo/Rudnick,LLP 766 Falmouth Rd. Madaket Place, Suite A-6 Mashpee,MA 02649 Re: 28 Little River Rd., Cotuit,MA Dear Atty. Gargiulo: This letter is in response too your letter of April 7,2004. 1 agree with what ih s been said T in the past and feel that this pier should be removed due to the damage its winter. In order to remove this present pier a building permit must be applied for so that there can be a written record oll its removal Sincerely, . Thomas Perry RECEIVED Building Commissioner MAY 2 7 2004 AwiTP G:kRGIULO/RUDNICK,LLP LO n K G i v f + NN LOCdt!/M5: co✓e 10 iaocv �p1� r a a, �r G L0097'10/Y M,4P ��••\ o? i�c�"�y 5 O /O 2J 30 Ite rAfr c,vG ID �•� S ' 'CM O / INCH m Y cr.Oas I k/fDa 0,, AMW.0.0 � f� •2.2 CROSS SECT/ON 4-,9 I/e%I a" y� ''/ /xec'W.aoo10ael o. 2 f (. b Tlfr 0� O(Ulf 16T.aT%-WoeJ/LAlFOdM SHOP / /NCH C tot) 11PA6 r' 7 •sr.0r/ONN.ry JLOT/ONARj' fL.' - s/a'r/NA.ry _ .. f..2 SX/o MTd!•1.G /Y/POJTS (Sxc) �r/2' rrr/1 011N M/LArf P.L S. o r s c s "AFT OglE� J-L2-4b ® avcy ,4L! C.4Pf ENGINEERING - - - 49 lw q.1 BOR /CO/O - HY�NA//S, M,4SS. pATUM- ✓.6.✓.O, PLOY.gCCOMPpNy//t/G Pfr///ON OF Lk,, F e;z 3 /tiGN,O/So c/vELSON D.e,,v. ,,�or COT(//T OYSTCR c0.,/NC. TO M/JYNT/J/N EXIST/A/O 4 X/Z',Ye00 ' /LATFO�V4f. W000 006,r k IG X/d'W000 r ����'^7,.2r�'•1 / `/�l l r'•n 10- y • PL9TfGLfM(ALL SrAT/O�/•4RYf/.VgNQ OYlR i _ - NZ WATERS OF(GOTU/T dAyJ GV 60/UIT,0,766, 15"z4F:Ri IVOTPO ✓LILY/G, /ffd ' �• O/.`!O RCi. 367//tcf t SSSQ/Z //-/r-- ✓fze 19am✓rrw�uueaz o�✓�aaaac�acraed�a BOARD OF BUILDING REGULATIONS License: GQNSTRUCTION SUPERVISOR NumbersiGS:- 068433 - U Bi 95.5 , it s`O-mg-006 Tr.no: 25522 Restretesl;i:QD> GEORGE R GILLM.bff :;= PO-BOX 940 COTUIT, MA 02635 Commissioner oo-35,000 cf enclosed space (MGL CA 12 S.60L) 1 A-Masonry only 1 G-1&2 Family Homes Failure to possess a current edition of the i Massachusetts State Building Code i is cause for revocation of this license. DIG SAFE CALL CENTER: (888)344-7233 �:.\ ✓fze lianvnaaru�sedCC/ a��/�aaaac•�ivaeC�a �, I Board of Building Regulations and Standards HOME IMPROVEMENT CONTRACTOR License or registration valid for individul use only before the expiration date. If found return to: 43 Registration: 123494 Board of Building Regulations and Standards Expiration: 2/26/2005 One Ashburton Place Rm 1301 Type: Private Corporation Boston,Ma.02108 G.irimore Marine Contracting,Inc. t G8-rge Gillmore 31 1wdoin Rd Alashpee,MA 02649 — Administrator t vali: ithout signature -Wtnlil-V•L-U -mUVjk-'IVh -;irLr L[L]_UUL AIS AR June 4, 2004 Edward Gargiulo 766 Falmouth Road Unit A6 Mashpee,MA 02649 Re:28 Little-River Road, Cotutt Dear Mr. Gargiulo: The purpose of this letter is to confirm that our records indicate that NSTAR Electric does not have an electric service or meta-supplying power to the pier at 28 Little-River Road, Cotuit. Please contact erne at 781-441-3365 if you have any questions, or if you require any additional information. Sincerely, qzm� Nancy Allen len � Mid-Account Executive 05J20/20;04 13:33 V 150H4 87537. w1u, WATER .DEPT RAGE oa :j -77 a roo F'ALMOUTH R040, P.O. BOX 451 COTUIT, MASS. 02626 PHONE (506) 428-2687 FAX (508) 426-7517 FAX MESSAGE TOSUPRT Mrr TNTI n 1='koM: DATE: SVB`TECT PIER DEMOLITION NUMBER OY PAGES FAX3;?.D• 1 (TNCLUDTNG COVER) MESSAGE: WATER GIVES IT'S PERMISSION TO NEWL.ISE THE PIER AT ZR LITTL_ E RTSTER RD COTUIT _ ........... -- JUN-09 2004 VED 10 :39 AM KEYSPA) EWERGY DEL:IVERY'_ A N0; 1?8 '89048`9:8 P. 02/Q �pj ® 127Whn Energy belivery � q1 Y�C,ra 127 Whiles Patti South Yarmouth,Massarhimits 02664 June 9, 2004 Re: 28 Little River Rd, Coot Gargiulo, Rudnick and Gargiulo Route��20V Mashpee, MA 02649 To Whom It May Concern: This letter is to confirm that there is no natural gas service to the above referenced property, If you have any questions:,, please call 508-760 7530. Sincerely, Steve Jacobson Field Supervisor BK 12782 PGl=101 . 20-6 - 01- 14--2000 e 02 O 1 iyl t (,ammant rpalth of llttlao-t*Ottto No. 8385 ' o Richard C.Nelson,d.b.a.Cotuit Oyster Co.,Inc. of-- Barnstable -- in the County of-- Barnstable -- and Commonwealth aforesaid, has applied to the Department of Environmental Protection for license to-maintain a dock&platform------ ---------- V-) 0 and has submitted plans of the same;and whereas due notice of said application, d �'h time aDd"' "Q fixed f.. ^ healing thcrcoa, has been given, as required by law, to the -- Board of Selectmen -- of the Townof- Barnstable.-------------------------------------------- -- ------------------------------------------------ �,• NOW, said Department, having heard all parties desiring to be heard, and having fully considered said �-] application,hereby,subject to the approval of the Governor,authorizes and licenses the said--•-------------- Richard C.Nelson,d.b.a. Cotuit Oyster Co.,Inc. --, subject to the provisions of the ninety-first chapter of ti the General Laws,and of all laws which are or may be in force applicable thereto,to-maintain a dock& platform---_--------------------------------------------------------------------------------------------------------------- in and over the waters of-Cotuit Bay--in the -- Town -- of- Barnstable and in accordance vnth the locations shown and details indicated on the accompanying DEP Plan No.8385 (1 Sheet). . - - PR*MD ON RfDVCUD PAPER - a �1 BI! 12782 P'OOO 2C-6{4 License No. 8385 Page 2 The structures hereby authorized shall be limited to the following use:commercial docking and boating access to navigable waters. This license will expire ninety-nine(99)years from the date of the license issuance,.------------------------- The,project authorized herein has been completed in conformance with the accompanying License Plans, The issuance of this License, therefore, fulfills the Licensee's obligation to obtain a Certificate of Compliance pursuant to 310 CMR 9.19------—-------------------------------------------------------------------- ecial Waterways Conditions: In accordance with any license condition,easement,or other public right of lateral passage that exists in the area of the subject property lying between the high and low water marks, the Licensee shall allow the public in the exercise of such rights to pass freely around all structures within such intertidal area, Accordingly, the Licensee shall place and maintain, in good repair, a public access sign on both the northerly and southerly sides of il:e dock, authorized herein, adjacent to the mean high water shoreline. i Said signs, provided by the Department, shall be posted immediately upon receipt. Nothing in this condition shall be construed as preventing the Licensee from excluding the public from portions of said structure(s)or property not intended for lateral passage-------------_---------------------------------------------: Please see page 3 for additional conditions to this license. ---------------------------------------------------------- 1 V Duplicate of said plan,number 8385 is on file in the office of said Department, and original of said plan accompanies this License,and is to be referred to as a part hereof. 8K 12762 PGOIDIS 2 864 License No.8385 Page 3 STANDARD WATERWAYS LICENSE CONDITIONS 1. Acceptance or this Waterways License shall constitute an agreement by the Licensee to conrorrn with all terms and conditions stated herein. 2. This License is granted upon the express condition that any and all other applicable authorizations necessitated due to the provisions hereof shall be secured by the Licensee rigor to the commencement of any aeilvity or use authorized pursuant to this License, 3. Any change In use or any substantial structural alteration of any structure or fill authorized herein shall require the issuance by the Department of a new Waterways License in accordance with the provisions and procedures established in Chapter 91 or the Massachusetts General Laws, Any unauthorized substantial change in use or unauthorized substantial structural alteration of any structure or fill authorized herein shall render this Waterways License void. 4. This Waterways License shall be revocable by the Department for noncompliance with the terms and conditions set forth herein. This license may be revoked after the Department has given written notice of the alleged noncompliance to the Licensee and those persons who have filed a written request for such notice with the Department and afforded them a reasonable opportunity to correct said noncompliance. Failure to correct said noncompliance alter the issuance or a written notice by the Department shall render this Waterways License void and the Commonwealth may proceed to remove or cause removal of any structure or fill authorized herein at the expense of the Licensee, its successors and assigns as an unauthorized and unlawful structure and/or fill, 5. The structures and/or fill authorized herein shall be maintained in good repair and in accordance with the terms and conditions stated herein and the details indicated on the accompanying license plans. 6. Nothing in this Waterways License shall be construed as authorizing encroachment in,on or over property not owned or controlled by the Licensee,accept with the written consent of the owner or owners thereof. 7. This Waterways License is granted subject to all applicable Federal, State,County,and Municipal laws, ordinances and regulations including but not limited to it valid final Order of Conditions issued pursuant to the Wetlands Protection Act,G.L.Chapter 131,s.40. 8. This Waterways License is granted upon the express condition that the use of the structures and/or_fill authorized hereby shall be in strict conformance with all applicable requirements and authorizations of the DEP,Division of Water Pollution Control. 9. This License authorizes structure(s)and/or fill on: x Private Tidelands.-In accordance with the public easement that exists by law on private tidelands,the licensee shall allow the public to use and to pass freely upon the area of the subject property lying between the high and low water marks,for the purposes of fishing, fowling,navigation,and the natural derivatives thereof, x Commonwealth Tidelands, The Licensee shall not restrict the public's right to use and to pass freely,for any lawful purpose,upon lands lying seaward,of the low watermark. Said lands arc held in trust by the Commonwealth for the benefit of the public. _a{treat Pond of the Commonwealth. The Licensee shall not restrict the public's right to use and.to.pass freely upon lands lying seaward of the high water mark for any lawful purpose, No restriction on the exercise of these public rights shall be imposed unless otherwise expressly provided in this license. 10.Unless otherwise expressly provided by this license,the licensee shall not limit the hours of availability of any areas of the subject property designated for public passage,nor place any gates,fences, or other structures on such arras in a manner that would impede or discourage the free flow of pedestrian movement thereon. License No,8385 Page 4 The amount of tide-water displaced. by the work hereby authorized has been ascertained by said Department, and compensation thereof has been made by the said -- Richard C. Nelson, d.b.a. Cotuit Oyster Co.,Inc.--by paying into the treasury of the Commonwealth--two dollars and zero cents($2.00) -- for each cubic yard so displaced,being the amount hereby assessed by said Department (0.0 cu.yds. = $0.00). ------------------------------------------------------------------------------------------------------------------ Nothing in this License shall be so construed as to impair the legal rights of any person.-------------------- This License shall.be void unless the same and the accompanying plan are recorded within 60 days from the date hereof,in the Registry of Deeds for the County of Barnstable. ------------------------------------------- IN WITNESS WHEREAS, said Department of Environmental Protection have hereunto set their hands this C 7 �% day oC in the year nineteen hundred and .• �, , iryti� Commissioner �!5< Department of Program Chief nrnental Protection THE COMMONWEALTH OF MASSACHUSETTS This license is approved in consideration of the payment into the treasury of the Commonwealth by the said Richard C.Nelson, d.b.a. Cotuit Oyster Co., Inc. --------------------------------------------------------- of the further sum of—two hundred,fifty-six dollars and zero cents($256.00)------------------------------ the amount determined by the Governor as a just and equitable charge for rights and privileges hereby granted in the land of the Commonwealth. BOSTON, Approved by the Governor. BARNSTABLE REGISTRY OF DEW Governor n. a O � 6 c� �evoy C.010 a.c•a� MAP oT _ �` *'o " SCpt t: /"•saga a � PLAN /0 V 30 IJa fffr ~ 0 /NG4 o �� Sc's•c. � i 4'k/,47J �T P , pl U/ rr, C4055 SECT/O/V AA /e,/ e" �' a'Sr /./ 7t2 O r f L b F!!T I f aT+�/,ONaf y f -CAIFoACb/ .. 0 , /NCN ,, SNOP r�s Ear 110P -r,z -Jr,OI/ONN.�r JJpJ/ONAR� - fl.' 3rNr/NA.Cy - n.+62 Ml�i r.4 - (rxi) iris' lrrf! O,VN AWN.- P.L S. o r r s«r AL! CAPE fNG/NEfR/NG . f9 N4PBOR ,�oAO P,(Wv aCCOmOg11P11vG -trlr/ON of AW SON D:e,a. ., D cDrUJr DYsrrR co.,/,vc. a r M/J/NT/J/N ews T/.VO 6xlz,Wa00 .y /CA/FOrrM. WO 0.0 004, •� /4C/8'9/040 is PL9TfafM(PL!5L9T/O"Rr//A oA0 Or" •4 TNL WATERS pf(COTU/TdAYJ/,V GO!!/J/, SGOIE: pS,VO/CO ✓I&r/6, /Tr-A OrED Iss4/r 05--21---2002 LEASE I, PHILIP BRACKETT, Trustee under the Will of Sarah Russell Gifford, by decree of the Barnstable Probate Court in Case No. 27288 dated March 3, 1978, LESSOR, do hereby lease, demise and let unto COTUIT OYSTER CO. , INC. , a corporation duly organized under .the laws of the Commonwealth of Massachusetts and having an usual place of business in Barnstable (Cotuit) , Barnstable County, Massachusetts, LESSEE, a certain parcel of land in Barnstable (Cotuit) , Barnstable County, Massachusetts, with buildings thereon bounded and described as .follows: EASTERLY by Cotuit Harbor; SOUTHERLY by land now awned by Cotuit Oyster `J Co. , Inc. WESTERLY by Little River Road; and NORTHERLY by land now or formerly of Samuel Bumpus. To have and to hold the same unto the LESSEE for the R.C,.0. period March 1, 1983 to May 31, Said premises are to be used by the LESSEE for the furtherance of shellfish .and .oyster business .only, and .s.ubject to the right of the owner and all of the beneficiaries of said Trustee to pass and repass over said premises for access to Cotuit Harbor, and the further right of said Trustee and said beneficiaries to store and keep small boats on portions of the above-described -land and in a manner which will not unreasonably . interfere with the use of said premises by the LESSEE. During ALGER & -SCHILLING ' ATTORNLYS AT LAW 6a6 MAIN STREET P.O.6OX 449 y_•. 081•EIIVILLE,MA68.02655 jr - y _..... 50 the initial term of the lease hereof and any extensions entered into pursuant to paragraph. VZII herein, LESSEE shall pay to LESSOR rent as follows: For the period of March '1, .1983 to May 31, 1983 , the rent shall be paid in equal monthly installments of TWO HUNDRED SEVENTY-FIVE ($275. 00) DOLLARS per month or THREE THOUSAND THREE HUNDRED ($3,300.00) DOLLARS per year, in advance on the first of each month. Commencing on June 1, 1983 and each year thereafter, the rent shall be either THREE THOUSAND THREE HUNDRED ($3,300.Q0) DOLLARS or said sum multiplied by a fraction, the denominator of which shall be the Consumer Price index Published by the U.S. Department of Labor, Bureau of Labor Statistics for the City of Boston, Massachusetts, 'All Items" (Index) for the month of 2 June, 1981 and ie numerator of which shall. be the' Index for the 443ust past month of May, , whichever is greater, in ad va ce, in equal -4 . month monthly installments on the first day. of each • Should such index be discontinued or become unavailable to the general public, the parties hereto agree to submit to arbitration for the purposes of determining a substitute index which shall i henceforth thereafter be binding on the parties . I. Surrender 'of* Premises At the expiration of the tenancy hereby created, LESSEE shall surrender the leased premises in the same condition as the leased premises were in upon delivery of possession thereto 2 a : under this lease, reasonable. wear and tear excepted, and damage by unavoidable casualty excepted, and shall surrender all keys for the leased premises to LESSOR at the place then fixed for the payment of rent and. shall inform LESSOR of all combinations on locks, safes and vaults, if any, in the leased premises. LESSEE shall remove all its trade fixtures, and any alterations or improvements before surrendering the premises as aforesaid and shall repair any damage to the leased premises caused thereby. LESSEE'S obligation to observe or perform, this covenant shall survive the expiration or other termination of the term of this lease, II . Right 'o'f First "Refusal Should the LESSOR, during the term of this lease or any options exercised thereunder, or until the termination of the Trust, whichever occurs later, decide to sell the property which is the subject matter of this lease, the LESSEES shall have the right of First Refusal, so-called said right to be exercised by offering the property upon the same terms and conditions as the LESSOR shall sell to a third person in writing: Said LESSEE shall have forty-five (45) days from date of receipt of 'the offer to comply- with its terms. At which time, failure of the LESSEE to so- comply shall be considered a refusal to purchase. III Utility charges, taxes and insurance LESSEE shall be solely responsible for and promptly pay -- 3 all charges for heat, water, gas, electricity or any other utility used or consumed in the leased premises. Additionally, the LESSEE shall be. solely respons.-ible for paying promptly all charges for* real estate taxes, personal property taxes and liability and property insurance. However, LESSEE shall not be required to pay for liability insurance in excess of $500 ,000.0 or property insurance in excess of $20,000 . 00. IV. Assigning and Subletting LESSEE will not assign this lease in whole or in part, nor sublet all or any part of the leased premises, without the prior Div- en consent of LESMSOP in e- — ire tLL ce The consent ns �.� �� �,�.�..��, a..a. ��.s n,.�. �h. by LESSOR to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting by operation of law. If this lease be assigned, or if the leased premises or any part thereof be underlet or occupied by anybody other than LESSEE, LESSOR may collect rent from the assignee, undertenant or occupant, and apply the het amount collected to the rent herein reserved, but no such assignment, underletting, occupancy or collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, undertenant or occupancy as tenant, or a release of LESSEE from the further performance by LESSEE of covenants on the part of LESSEE from the further performance by LESSEE of covenants on the part of LESSEE herein contained. Notwithstanding any assignment or sublease, LESSEE shall remain fully liable on 4 i , this lease and shall not be released from performing any of the terms, covenants and conditions 'of this lease. V- Right' to Re�eriterr,- Re-let and T;ega'1 Expehse In the event of any failure of LESSEE to pay any rental due hereunder within ten (10) days after the same shall be due, or any failure to perform any other of the terms, conditions or covenants� of' this lease to be observed or performed by LESSEE for more than thirty (30) days after written notice of such default shall have been given to LESSEE, or if LESSEE or any guarantor of this lease shall become bankrupt or insolvent, or file any debtor proceedings or take or have taken against 'LESSEE or any guarantor of this lease in any court pursuant to any statute either of the United States or any state a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiveror trustee of all or a portion of LES'SEVS or any such. guarantor's property, or if LESSEE or any such guarantor makes an assignment for the benefit of creditors, or petitions for or enters into an arrangement, or if LESSEE shall abandon said premises, or suffer this lease to be taken under any writ or execution, the LESSOR besides other rights or remedies it may have, shall have the immediate right of re-entry and may remove 'all. persons and property from the demised premises all without service or notice or resort to legal process and without being deemed guilty of' trespass, or becoming liable for 5 - Bk Pa 131 �'_45350 any loss or damage which may be occasioned thereby. Should LESSOR elect to re-enter-, as herein provided, or should it take possession pursuant to legal proceedings or, pursuant to any notice provided for by law, it may either terminate this lease or it may from time to time without terminating this lease, make. such alterations and repairs as may be necessary in order to re-let the premises, and re-let said premises or -any part thereof for such 'term or terms (which may be for a term extending beyond the term of this lease) and at such.:--renta1 or rentals and upon' such other terms and conditions Calls LESSOR in its sole discretion may deem advisable; upon each. such re-letting, all rentals received by the LESSOR from such re- letting shall be applied, first, to. the payment of any indebted- ness other than rent due hereunder, from LESSEE to LESSOR; second, to the payment of any .costs and expenses of such re-letting, including brokerage fees and attorneys' fees and of costs of such alterations and repairs; third, to the payment of rent due and unpaid hereunder, and the residue, if any, shall be .held by LESSOR and app]:ied in payment of future rent as the same may become due and payable hereunder. If such rentals received from such re-letting during any month be less than that to be paid during that month by LESSEE hereunder, LESSEE shall pay any such deficienty to LESSOR. Such deficiency shall be calculated and paid monthly., No such. *re-entry or taking possess.ion of said premises by LESSOR shall be construed as an election on its part . 6 - to' terminate this -lease unles.'s -a written notice of such in- terition be given to LESSEE or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such re-letting without termination, LESSOR may at any time . thereafter elect -to terminate this lease for such predious breach.' Should LESSOR at any time terminate this lease for any breach',' in addition to any other remedies it may have, it may recover from LESSEE all damages it may incur by reason of such breach,' including the cost of recovering the leased premises, reasonable attorneys` fees, and including the worth. at the time Of such 'termination' of the excess, if any, of the amount of rent and charges equivalent to rent reserved in this lease for the remainder of the stated term over the then reasonable rental value of* the 'leased premises -for the remainder of the stated term, all of which amounts shall be immediately due and payable from LESSEE to LESSOR. In determining the rent which 'would be payable by LESSEE hereunder, subsequent to default, the annual rent for each year of' the unexpired term shall be equal to the average annual minimum and percentage rents paid by LESSEE from the commencement of' the term to the time of default, or during the proceeding three .(3) full calendar years, whichever period is shorter. In case suit shall- be' brought for recovery of possession of the leased premises, for the recovery af. rent or any other 7 1 - Big � 51 P:91:33 '_453'0 amount due under th,e provisions of this lease,' or because of the breach b any other covenant herein contained on the part of LESSEE to be kept or performed, and a breach shall be estab- lished, LESSEE shall pay to the LESSOR all expenses incurred therefor, including a reasonable attorneys' fee. Vh. Waiver The waiver by LESSOR of' any breach 'of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition Herein contained, The sub- sequent acceptance of rent hereunder by LESSOR shall not be deemed to be a 'waiver of any preceding breach by LESSEE of any term, covenant or condition of this lease, other than the failure of LESSOR'S knowledge of such preceding breach at the time of acceptance of.' such rent. No covenant, term or conditions of this lease shall be deemed to have been Waived by LESSOR, unless_ such waiver be in waiting by LESSOR. No payment by LESSEE or receipt by LESSOR of a lesser amount than the monthly rent herein stipulated shall be deemed to be other than on account of the earliest stipulated rent, nor shall any endorsement or statement on any check or any letter accompany any check or payment as rent be deemed an accord and satisfaction, and LESSOR may accept such check or payment without prejudice to LESS'OR'S right to recover the balance of such rent or pursue any other remedy in this lease provided. 8 - VII. Noti:c-es Written notice from the: LESSOR to the LESSEE shall be deemed to have been properly given if mailed by registered or .certified mail, postage pre-paid, return receipt requested, to the LESSEE at the. address -of the leased premises, or if delivered or left, that 'such 'notice has been delivered to or left with, th.e LESSEE. or anyone expressly or impliedly authorized to receive messages for the LESSEE, or by any adult who resides with the LESSEE in the leased premises. Written notice from the LESSEE to the LESSOR shall be deeined to have been properly given if mailed by regi ste-r.aa or certified mail Postage pre-paid, return receipt requested, to the LESSOR at his address set forth in the first paragraph *of this lease, unless the LESSOR shall have notified the LESSEE of the change of the LESSOR'S address, in which case such Notice shall be so sent to such changed address of the LESSOR, provided that the receipt has been signed by the LESSOR or anyone expressly or impliedly authorized to receive messages for the LESSOR. NOtwith.standing the foregoing, notice by either party to the other shall be deemed adequate .if given in any other manner authorized by law. VIII. Option and Cost of Living Increase If LESSEE shall , during the original term hereof keep and perform each .and every covenant; agreement, term, provision and condition herein contained to be performed or observed by 9 - LESSEE and if LESSEE shall throughout the original term hereof actually use and occupy the demised premises exclusively for the conduct of LESSEE'S hiisines:s, then LESSEE may, at LESSEE 'S option, extend the term of this lease for' three .(3) additional periods of five '(5) years. each 'and each such option to be exer- cised' by the 'LESSEE giving LESSOR written notice of its intention to 'extend this lease ninety (:90). days prior to- the expiration of the original term or first -option period upon the giving by LESSEE to LESSOR such written notice and the compliance by LESSEE with the fo.re.going provisions of this -section, this lease shall be. automatically extended upon the same terms and conditions as -h.erein provided, except as to this option provisions and the minimum annual rent payable during the reneviable period or periods shall be adjusted in accordance with the basic rent all as provided herein. IX. Repairs The LESSEE agrees with the LESSOR that, during this lease 'and for such further time as the, 'LESSEE shall hold the leased premises or any part thereof, the LESSEE will at all times keep and maintain the: whole of the leased premises, in- terior and exterior of' the 's:tructure and all equipment and fixtures therein or used therewith repaired, whole and of the same kind, quality and description and in such, good repair, order and condition as the same are at the beginning of, or may 10 - I be put in during the term or any extension or renewal thereof, reasonable wear and tear and damage by unavoidable casualty only excepted. The LESSOR and the 'LESSEE agree to comply with any responsibility which either may have under applicable law to perform repairs. upon th:e leased premises. If LESSEE fails within a reasonable time,' or improperly makes such 'repairs or maintenance, then and in any such event or events, the LESSOR may (but shall- not be obligated to) make such repairs or main- tenance, and th:e LESSEE .s1ia11 reimburse the LESSOR for the reasonable costs -of such repairs or maintenance in full, upon dew==•d. parties h6r'eto hereiby acknowledge that the g pier or dock on said property is- the 'property of the LES:SEE.. In the, event;. it is. destroyed by storm or otherwise.;. the LESSEE. may, but sha11- :no:t be obligated to, replace the same.. In the event .the septic system on the premises needs to be replaced, neither party shall be obligated to replace the same but either may, and all parties will, attempt to work out a: mutually satisfactory arrangement. X. Trustee The Trustees under the Will of Sarah Russell Gifford act in a fiduciary capacity and shall not be personally liable with 'respect to the obligations of-LESSOR under this lease. XT. Applicable Law and Construction This lease shall be governed by and construed in actor.- dance with the laws of the 'Commonwealth 'of Massachusetts, and if - 11 - wit 15IF-IL F•:9137 any provisions of this lease sha11 to any extent be 'invalid, the remainder of this lease shall not be affecte.d thereby. There are no oral or written agreements_ between .LESSOR and LESSEE affecting this lease. This lease may be amended only by instru- ments 'in writing executed by LESSOR and LESSEE. The titles of the several articles and sections contained herein are for con- venience only and shall not be considered in construing this lease-. Unless. repugnant to the context, the words "LESSOR" and "LESSEE" appearing in this lease shall be construed to mean those named above and their respective heirs , executors, administrators, successors and assigns. and those c;ail«lrjg through or under them respectively. IN WITNESS W'HBREOF, the parties hereto have set their hands as of the day and year first above written. P lip Brackett, Trustee COTUIT OYSTER Co. , INC. I B President BARN87ABLE REGISTRY OF DEEDS {HE Tp�o Town of Barnstable P�0 Regulatory Services .�- 1 Thomas F.Geiler,Director 9 06 9- Building Division �prFD '� Tom Perry, Building Commissioner 200 Main Street, Hyannis,MA 02601 www.town.b arnstable.ma.us Fax: 508-790-6230 ]ffice: 508-862-4038 Property owner Must Complete and Sign This Section If Using ABunder I, o as Owner of the subject-prs -'; u �-i c:�Z� z hereby authorize ` °�� to act on my behalf, in all matters relative to work authorized by this building permit application for: o�f e�� g Ll i i C_4 (�—) i (Address of Job) Date Signature of Owner . print Name DEMOLITION PERMIT IF THE LOT IS-LESS:T_H_ANT 87,- 2p SQ FT. (2 ACRES) AN YOU WOULD LIKE TO REBUILD,YOU MUST FILE FOR A SPECIAL PERMIT WITII THE ZBA NOTE: ❑ OK.H District approval required prior to issuance of permit for property located in the Historic District (north of the Mid Cape Highway) ❑ In Hyannis - Check to see if it's included in the Hyannis Historic Waterfront District,if so, it needs approval from the Historic District. ❑ Obtain a field card showing date of construction. Take this to Historic Preservation Sign-Off from Historic Preservation (this is required no matter where house is located) / Sign-off from Treasurer Sign-off from Tax Collector Sign-off from Conservation Commission Specify on pPl'T111t W}1P1'P deluoliticn debris is to be disposed of. - Certifi ation that the following utilities are shut off. Gas Electric Water EA If on town sewer- sign off from Engineering that sewer has been capped ❑ If septic system-no certification required orker's Comp form must be submitted if more than one person will be involved in the work. Copy of Insurance Compliance Certificate must be on file. Fee - (Minimum) Property Owner must sign Property Owner.Letter of Permission. VOTE REGARDING DUMPSTERS: (527-CMR-34) TELL APPLICANT THAT A DUMPSTER )F 6 YARDS CAPACITY OR LARGER REQUIRES A PERMIT FROM THE APPROPRIATE {IRE DEPT. forms:permits l v. 12/12/03 f °pTHET Town of Barnstable Regulatory Services • aaxivsrna�. v MASS Thomas F. Geiler,Director �p .s639 �0 �E1639 s Building Division Thomas Perry,Building Commissioner 200 Main Street, Hyannis, MA 02601 www.town.barnstable.ma.us Office: 5087862-4038 Fax: 508-790-6230 August 5, 2004 Gargiulo/Rudnick, LLP Attn: Edward R. Gargiulo 766 Falmouth Rd., Suite A-6 Mashpee, MA 02649 RE: . Pier, 28 Little River Rd.;Cotuit;MA Dear Atty. Gargiulo: Thank you for your letter of July 15,,2004 on the above referenced property. Our position has not changed and this department will not issue a permit for the pier. The actual owner of the pier still remains unclear and it appears this is an issue that the courts must decide. You may appeal this decision, as is your right,to either the zoning board of appeals or the state board of building regulations and standards. ere , Thomas Perry Building Commissioner TP/AW Y OFIME r Town of Barnstable Regulatory Services w aAMSrABLE. Mass. Thomas F. Geiler,Director 9• s63 �0 9. Building Division Thomas Perry, Building Commissioner 200 Main Street, Hyannis, MA 02601 www.town.barnstable.ma.us Office: 508-862-4038 Fax: 508-790-6230 June 30, 2004 Gargiulo/Rudnick, LLP Attn: Edward R. Gargiulo 766 Falmouth Rd., Suite A-6 Mashpee, MA 02649 RE: 28 Little River Road, Cotuit, MA Dear Mr. Gargiulo: As with all of the building permits this department processes, we require, as part of the application package, a signed permission form from the property owner that work may be conducted on their property. The authority to require this is in section 110.5 of 780 CMR, the state building code. This should be a sufficient answer to both of your letters, one dated June 18, 2004 and the other dated June 24, 2004. If you should secure permission from the property owner we will process the permit regarding the pier. Sincerel n , Thomas Perry Building Commissioner TP/AW r. RICHARD A.GARGIULO GARGIULO/RUDNICK, LLP BOSTON OFFICE EDWARD R.GARGIULO ATTORNEYS AT LAW MARIELISE KELLY* 766 FALMOUTH ROAD(RT.28) 66 LONG WHARF CONSTANCE L.RUDNICK BOSTON,MA 02110 PATRICIA NOYES-CORRIGAN MADAKET PLACE, SUITE A-6 TELEPHONE(617)742-3833 JOHN H.BEE MASHPEE,MASSACHUSETTS 02649 TELECOPIER(617)523-7834 JOSEPH F.CAVANAUGH III GRIDLEY M.LOSEE,JR. ROBERT R.WALDO ALICE M.FORBES TELEPHONE(508)477-6400 OF COUNSEL TELECOPIER(508)477-0455 JOSEPH F.STRUMSKI,JR. E-MAIL: grg@grglaw.com •ALSO ADWrrED IN NY&NH June 24,2004 VIA FACSIMILE 508-790-6230 AND REGULAR MAIL Thomas Perry,Building Commissioner Town of Barnstable Building Division 200 Main Street Hyannis,MA 02601 RE: 28 Little River Road,Cotuit,Massachusetts Dear Commissioner Perry: In response to Attorney Ford's letter dated June 18,2004,in which he asserts his clients,Arthur Perry and Judith Kozlowski,are the owners of the property and the pier as well as the holders of the Chapter 91 license,please be advised that the Cotuit Oyster Company's position with respect to these issues is as follows: The Chapter 91 license in question is clearly issued to"Richard C.Nelson,d.b.a. Cotuit Oyster Co.,Inc." See Exhibit A. It was granted for the limited use of "commercial docking and boating."See Exhibit A. It is noteworthy,and not by error or omission,that the license was not issued in the name of the Perry/Kozlowski's or any of their predecessors in title at 28 Little River Road. Because the license was issued in the name of the Cotuit Oyster Company,Inc.,this license does not run with the land,rather it is personal to the corporation, the Cotuit Oyster Co.,Inc. The Code of Massachusetts Regulations is clear on this point: "Unless otherwise provided in the license,a valid license shall run with the land and shall automatically be transferred upon a change of ownership of the affected property within the chain of title of which the license has been recorded." 310 C.M.R. 9.23 (1) In the case of the Cotuit Oyster Company,the express terms of the license dictate that the license does not run with the land at 28 Little River Road where the Commonwealth of Massachusetts has provided that the Cotuit Oyster Company,and not the landowner,is the licensee on the face of this commercial chapter 91 license. ^"ti0 L^T OYSTER GARMLOIMLK Thomas Petry Letter(Revised)040624.doc I r I GARGIULO/RUDNICK,LLP Thursday,June 24,2004 Page 2 of 2 The fact that the Chapter 91 license runs to the Oyster Company and not with the landowner of 28 Little River Road is consistent with the history between the Oyster Company and it's former landlord. The pier located at 28 Little River Road is,and always has been,the property of the Cotuit Oyster Company. It was acknowledged as the Company's property in the lease existing between the Perry/Kozlowski's predecessor in title,the Brackett Trust and the Cotuit Oyster Company. See Exhibit B(lease excerpt). The lease states,in pertinent part: "Parties hereto hereby acknowledge that the pier or dock on said property is the property of the lessee [The Cotuit Oyster Co., Inc]." In 2002,the Brackett Trust's attorney,Peter O'Keeffe,recognized the pier to be the property of the Cotuit Oyster Company. In fact,Mr. O'Keeffe caused its value to be estimated by AGM Contractors who valued it at$19,500.00,offering the Cotuit Oyster Company,Inc. $15,000.00 for the existing pier structure. See Exhibit C. Mr. Ford was on notice of this fact as of June 21,2002 because he was copied on the cover letter from Mr. O'Keeffe and the estimate from AGM Contractors. The Cotuit Oyster Company's pier was never sold to the Brackett Trust or to anyone else. The closing on the property at 28 Little River Road transferring title to the Perry/Kozlowski's occurred on August 9,2002. See Exhibit D. Therefore,Mr. Ford and his clients took title with notice and full knowledge that the pier belonged to the Cotuit Oyster Company. Even assuming arguendo that the Chapter 91 license issued to the Cotuit Oyster Company ran with the land at 28 Little River Road(which it clearly does not),the Perry/ Kozlowki's claim of ownership of the pier and/or chapter 91 license is wholly without merit on entirely independent grounds. Pursuant to 310 C.M.R. 9.23 (1)only a"a valid license shall run with the land and shall automatically be transferred upon a change of ownership of the affected property." The Chapter 91 license at issue is no longer valid. The Chapter 91 license,License No. 8385, specifically states the sole permissible use for the pier is for"commercial docking and boating access to navigable waters." See Exhibit A. The Perry/Kozlowski's stated desire to use the property as a single-family residence with boat storage renders the Chapter 91 license void. It is clear from the Perry/Kozlowski's Town of Barnstable Assessor's Department filing dated December 13,2002,that their intended use for the property as a"single-family home and boat storage"is wholly _ inconsistent with the formerly licensed use of"commercial docking and boating." See Exhibit E. Their attempts to usurp the Chapter 91 license from the Cotuit Oyster Co.,Inc. is merely a thinly veiled attempt to obtain a private dock for their personal,recreational use. The Cotuit Oyster Company vacated 28 Little River Road and the pier attached thereto,more than two(2)years ago,as of May 31,2002. 28 Little River Road and the pier have not been used for any commercial purpose(or for any other use) since that date. Because there has been no commercial use of the structure for more than two(2)years,the license is void. 310 C.M.R. 9.26(2)(b)(2)provides that all licenses issued after January 1, 1984,are void if "there has been an unauthorized substantial change in use." It is indisputable since the Cotuit Oyster Company's operations ceased on 28 Little River Road on or about May 31,2002 that there has been a substantial change in use,i.e. an abandonment. P:\COTUIT OYSTERGARGRILO\b S Thomas Perry Letter(Revised)040624.doc GARGIULO/RUDNICK,LLP Thursday,June 24,2004 Page 3 of 3 Accordingly,the Chapter 91 license is void. Ironically,it was the Perry/Kozlowski's conduct that caused the abandonment of the pier and the resultant voiding of the Chapter 91 license they now seek to claim as their own. The Perry/Kozlowski's denied the Cotuit Oyster Company,Inc. land-access to the pier at 28 Little River Road and,in writing, threatened the company's principals with criminal prosecution for trespass if such should occur. See Exhibit F. Accordingly,the Cotuit Oyster Co.,Inc. could no longer effectively use the pier for commercial purposes as specified in the license,nor could the company effectively maintain the structure without land access to the pier. Since the Cotuit Oyster Co.,Inc.'s abandonment of its use of the structure,it has not been maintained by any party for any purpose. 310 C.M.R. 9.22(1)provides in part that the "structure must be maintained in good working order for the uses authorized in the license." In this case,the pier was required to be maintained for"commercial docking and boating" purposes. The structure was, in fact,not maintained and has become a dangerous structure. C.M.R. 9.22 governs the maintenance and repair of piers. The structure may not now be repaired by any party unless it is done for the purposes of restoring it to a commercial docking and boating because the CMR permits restoration of a structure only if "no change in use occurs." 310 C.M.R. 9.22(1)(c). Since there has been a marked change in use, i.e.the Cotuit Oyster Company's abandonment of the pier and/or the Perry/Kozlowski's apparent desire for converting the pier to a private,recreational use,the chapter 91 license is void and the pier cannot now be restored. In light of the foregoing,any action by the Perry/Kozlowski's to repair,remove or otherwise impact the pier is in violation of law. Furthermore, should anyone not authorized by the Cotuit Oyster Company repair,remove or otherwise impact the pier,the Cotuit Oyster Co.,Inc.will view this as a conversion of private property,as well as a criminal trespass and theft,and will avail itself of whatever remedies,both civilly and criminally,the law permits. As you know,Massachusetts General Laws,Chapter 91, Section 49B directs that the Department"shall remove or cause to be removed any wharf or pier located in the tide waters or tide lands of the Commonwealth,which in the opinion of the Department is dilapidated, unsafe,a menace to navigation or is a source of floating debris that is,or is liable to become,a menace to navigation." See Exhibit F. Therefore, I renew my request for permission to remove this dangerous structure, which is clearly the property of the Cotuit Oyster Company. Very truly yo , Edward R. Gargiulo ERG/mlk Enclosures PACOTUIT OYSTER.GARGIULOWLK Thomas Perry Letter(Revised)040624.doe GARGIULO/RUDNICK,LLP Thursday,June 24,2004 Page 4 of 4 cc: Jason P. Silva,Building Inspector Ruth Weil,Esq. Robert Gatewood David Hill,DEP Michael Ford,Esq. Mr. Richard Nelson,Cotuit Oyster Company Arlene Wilson,A. M. Wilson&Associates P:\COTUIT OYSTERGARGIULMILK Thomas Perry Letter(Revised)040624.doc r EXHIBIT A RICHARD a GARGIULO GARGIULO/RUDNICK,LLP BOSTON OFFICE EDWARD R.GARGIULO ATTORNEYS AT LAW MARIELISE KELLY= 766 FALMOUTH ROAD(RT.28) 66 LONG WHARF . CONSTANCE L.RUDNICK BOSTON,MA 02110 PATRICIA NOYES-CORRIGAN MADAKET PLACE,SUITE A-6 TELEPHONE(617)742-3833 JOHN H.BEE MASHPEE,MASSAC14USETTS 02649 TELECOPIER(617)523-7834 JOSEPH F.CAVANAUGH,III ' GRIDLEY M.LOSEE,JR. ROBERT R.WALDO ALICE M.FORBES TELEPHONE(508)477-6400 OF COUNSEL TELECOPIER(508)477-0455 JOSEPH F.STRUMSKI,JR. E-MAIL: grg@grglaw.com •ALSO ADn- =w NY&.NH June 18,2004 Tom Perry,Building Commissioner Town of Barnstable Building Division 200 Main Street Hyannis,MA 02601 RE: 28 Little River Road,Cotuit,Massachusetts Dear Commissioner Perry: It is my understanding that you spoken with George Gilmore of Gilmore Marine Contracting yesterday regarding the Cotuit Oyster Company's application for a building permit for the removal of its old pier at 28 Little River Road. As you know,the pier has been in a dangerous condition for a substantial period of time,you yourself have stated on two occasions that this was the case. In fact,you inquired of me at Site Plan Review whether or not the Company would at some point be willing to remove the old pier to which I responded we would. It is further my understanding that you have told Mr. Gilmore that you will not issue a permit without the written permission of the property owners of 28 Little River Road. As Mr. Gilmore informed you,the pier is to be removed seaward thereby not resulting in any trespass on the real estate. Also,as you can see from page 8,paragraph X in the lease attached hereto between the Brackett Trust and the Cotuit Oyster Company and the Chapter 91 License, which should be contained in our filings,the pier was clearly intended to be the property of the Cotuit Oyster Company. Therefore,please issue the permit or cite what authority you are relying upon to refuse t0 do so. PX0TUIT OYSTER NELSON\MJB Tom Perry letter 3 re 28 Pier 040618.doc i GARGIULO/RUDNICK,LLP Friday,June 18,2004 Page 2 of 2 In any event,I would expect you and the Town to indemnify the Cotuit Oyster Company for any injuries or other damage claimed against the Company as a result of its failure to remove same. Very truly yours, Edward R. Gargiulo ERG/mb Enclosure cc: Jason P. Silva,Building Inspector Mr. Richard Nelson,Cotuit Oyster Company Arlene Wilson,A. M. Wilson&Associates PACOTUIT OYSTEILNELSON MIB Tom Perry letter 3 re 28 Pia 040618.doc BK 12782 PGO04 28364 81--14--2000 e 02 = 81 �l�t {�ttnunIInwettl� ttf �itt��ttr�>lttt>ett� S No. 8385 . ° Memo. Richard C.Nelson,d.b.a.Cotuit Oyster Co.,Inc. Barnstable -- in the County of-- Barnstable -- and Commonwealth aforesaid, has applied to the Department of Environmental Protection for license to—maintain a dock&plat onn------ --------- ------- T IJ._1 and has submitted plans of the same;and whereas due notice of said application, � a r has been given, as required by law, to the -- Board of Selectmen -- of the y t, .t,e.a� Ch" Town of—Barnstable.-----—----------------------------------------------------------------------------------------- �,. NOW, said Department, having heard all parties desiring to be heard, and having fully considered said �- application,hereby,subject to the approval of the Governor,authorizes and licenses the said--------------- C� . [1;3 7 J Richard C.Nelson,d.b.a. Cotuit Oyster Co., Inc. --, subject to the provisions of the ninety-first chapter o "a the General Laws,and of all laws which are or may be in force applicable thereto,to—maintain a dock& v' platform - -- --------------- - --------------—- ---------------------------------------------- -------------.._.�------- in and over the waters of—Cotuit Bay--in the--Town-- of- Barnstable mid in accordance with the locations shown and details indicated on the accompanying DEP Plan No.8385(1 Sheet). PPJNTED ON R£CYCIED PAVER .. r BI! 12?B2 PGOOS 21D64 License No. 8385 Page 2 The structures hereby authorized shall be limited to the following use:commercial docking and boating accessto navigable waters. -------------------------------------------------------------------------------------------- This license will expire ninety-nine(99)years from the date of the license issuance.------------------------- The project authorized herein has been completed in conformance with the accompanying License Plans. The issuance of this License, therefore, fulfills the Licensee's obligation to obtain a Certificate of Compliance pursuant to 310 CMR 9.19.------------------------------------------------------------------------ Special Waterways Conditions: In accordance with any license condition,easement,or other public right of lateral passage that exists in the area of the subject property lying between the high and low water marks, the Licensee shall allow the public in the exercise of such rights to pass freely around all structures within such intertidal area. Accordingly, the Licensee shall place and maintain, in good repair, a public access sign on both the northerly and southerly sides of the dock, authorized herein, adjacent to the mean high water shoreline. Said signs, provided by the Department, shall be posted immediately upon receipt. Nothing in this condition shall be construed as preventing the Licensee from excluding the public from portions of said structure(s)or property not intended for lateral passage.---------------------------------------_--_---------------- Please see page 3 for additional conditions to this license.-----------------------------------I----------------------- Duplicate of said plan,number 8385 is on file in the office of said Department, and original of said plan accompanies this License,and is to be referred to as a part hereof. I _ License No.8395 Page 3 STANDARD WATERWAYS LICENSE CONDITIONS 1. Acceptance of this Waterways License shall constitute an agreement by the Licensee to conform with all terms and conditions stated herein. 2. This License is granted upon the express condition that any and all other applicable authorizations necessitated due to the provisions hereof shall be secured by the Licensee prior to the commencement of any activity or use authorized pursuant to this License. ,3. Any change in use or any substantial structural alteration of any structure or fill authorized herein shall require the issuance by the Department of a new Waterways License in accordance with the provisions and procedures established in Chapter 91 of the Massachusetts General Laws, Any unauthorized substantial change in use or unauthorized substantial structural alteration of any structure or fill authorized herein shall render this Waterways License void, 4. This Waterways License shall be revocable by,the Department for noncompliance with the terms and conditions set forth herein. This license maybe revoked after the Department has given written notice of the alleged noncompliance to the Licensee and those persons who have filed a written request for such notice with the Department and afforded them a reasonable opportunity to correct said noncompliance: Failure to correct said noncompliance after the issuance of a written notice by the Department shall render this Waterways License void and the Commonwealth may proceed to remove or cause removal of any structure or fill authorized herein at the expense of the Licensee,its successors and assigns as an unauthorized and unlawful structure and/or fill S. The structures and/or fill authorized herein shall be maintained in good repair and in accordance with the terms and conditions stated herein and the details Indicated on the accompanying license plans. 6. Nothing in this Waterways License shall be construed as authorizing encroachment in,on or over property not owned or controlled.by the Licensee,except with the written consent of the owner or owners thereof. 7. This Waterways License is granted subjed to all applicable Federal,State,County, and Municipal laws,ordinances and regulations Including but not limited to a valid final Order of Conditions issued pursuant to the Wetlands Protection Act,G.L.Chapter 131,s.40. 8. This Waterways License is granted upon the express condition that the use of the structures and/or fill authorized hereby shall be in strict conformance with all applicable requirements and authorizations of the DEP,Division of Water Pollution Control. 9. This License authorizes structure(s)and/or fill on: x Private Tidelands. In accordance with the public easement that exists by law on private tidelands,the licensee shall allow the public to use and to pass freely upon the area of the subject property lying between the high and low water marks,for the purposes of fishing, fowling,navigation,and the natural derivatives thereof. x Commonwealth Tidelands. The Licensee shall not restrict the public's right to use and to pass freely,for any lawful purpose,upon lands lying seaward of the low water mart. Said lands are held in trust by the Commonwealth for the benefit of the public. _a(kw Pond of the Commonwealth. The Licensee shall not restrict the public's right to use and to pass.freely upon lands lying seaward of the high water mark for any lawful purpose. No restriction on the exercise of these public rights shall be imposed unless otherwise expressly provided in this license. 10.Unless otherwise expressly provided by this license,the licensee shall not limit the hours of availability of any areas of the subject property designated for public passage,nor place any gates,fences,or other structures on such areas in a manner that would impede or discourage the five flow of pedestrian movement thereon. I r 81~` Y2762 PGO137 2864 LicenseNo, 8385 Page 4 The amount of tide-water displaced by the work hereby authorized has been ascertained by said Department, and compensation thereof has been made by the said -- Richard C. Nelson, d.b.a. Cotuit Oyster Co.,Inc.--by-paying into the treasury of the Commonwealth--two dollars and zero cents($2.00) -- for each cubic yard so displaced,being the amount hereby assessed by said Department (0.0 cu.yds._ $0.00).--.__--_--_------------------------------_------------------------------------------------------------------- e Nothing in this License shall be so construed as to impair the legal rights of any person.-------------------- _ This License shall.be void unless the same and the accompanying plan are recorded within 60 days from the date hereof,in the Registry of Deeds for the County of Barnstable----------------------------_--_--_----- IN WITNESS WHEREAS, said Department of Environmental Protection have hereunto set their hands this �Z day o� -c�,,.6�r' in the year nineteen hundred and — •in-t a� Commissioner Department of Program Chief nmental Protection J THE COMMONWEALTH OF MASSACHUSETTS This license is approved in consideration of the payment into the treasury of the Commonwealth by the f1 said—Richard C. d.b.a:Cotuit Oyster Co., Inc.. —----------- ---------------------------------- - ---- of the further sum of—two hundred,fifty-six dollars and zero cents($256.00)------------------------------ the amount determined by the Governor as a just and equitable charge for rights and privileges hereby granted in the land of the Commonwealth. I: BOSTON, 11 Approved by the Governor. QQ 7� Governor BARNSTABLE REGISTRY OF DEN i EXHIBIT B L'k 15181 PS 136 �4535t� be put in during the term or any extension or renewal thereof, reasonable wear and tear and damage by unavoidable casualty only excepted. The LESSOR and the LESSEE agree to Comply with p any responsibility which either may have under applicable law to perform repairs upon the leased premises. If LESSEE fails within a reasonable time,' or -Improperly makes such repairs or maintenance, then and in any- such event- or events, the LESSOR may (but sh-all- not be obligated to) make such repairs or main- tenance, and the LESSEE. -shall reimburse the LESSOR for the reasonable costs of such repairs or maintenance in full, upon demand. Parties •hereto hereby acknowledge that the pier or dock } Pill SO ..on said property is- the property of the LESSEE-._ In the event it is. destroyed by storin or otherwise.,. the LESSEE- may, but shall,• not be obligated to, replace the same.. In the event -the septic system on the premises needs to be replaced, neither party shall - 0 be obligated to replace the same but either may, and all parties will, attempt -to workout a.- mutually satisfactory arrangement. X. Trustee i The Trustees under the Will of Sarah Russell Gifford act in a fiduciary capacity and shall not be personally liable I with respect to the obligations of-LESSOR under this lease. II XT. ' Appli`cable Law and Construction !I This lease shall be governed by and construed in accor- �� dance with the laws of the Commonwealth -of Massachusetts, and if i i EXHIBIT C fII P RBL LAW PAGE 02 f 06171� 2002 11:28 5087786866 C6ftIzr2zy at—Caw q07 4JVoa'9 JtLF�E rzW2E c.T�arz/zr5, d�l(asuo26m a 6966 (SaE) 7%"- E (508) -1-75-'7339 June 21, 2002 VLA FACSIMME (508)477-4055 Edward R.Gargiulo,Esq. Gargiulo,Rudnick&Gargiulo 766 Falmouth Road,Route 28 Madaket Place, Suite A.-6 Mashpee,MA 02649 Re: 28 Little River Road,Cotult,Massachusetts Dear Ed: I am attaching an estimate prepared by AGM Marine Contractors, Inc. for the co.nstraction of a new pier at 28 Little River Road with the same configuration as the existithat if your ng pier. As you know from our previous conversations, it is my opinfrom the language� e Lease. client has any rights at A lin hess than a bPand new piernlconstructedw new materials. The existing pier is worth far d. the Cotuit Nevertheless, in order to settle az�y and all claims of W.f mison clie is the um of Oyster Company in the dock,I am authorized to offer on behalf y $15,000. This offer is made without prejudice, is an offer of settlement, not to be admissible in any future proceedings. I look forward to your response. Ve truly yours, Peter L. O' eeffe PLOK/sh Attachment cc: Joyce Moore Michael Ford,Esq. 3 ' TUN-19-2002 10:44 COTTON RERL ESTATE 506 420 3161 P.03 MARINE CONTRACTORS. INC. FACSXMME 30 Echo Ad., Mashpoo, MA 02649 TRANSMISSION 508-477-8801 FAX 609-477.8604 TO, -�1�C,�z. /I.!1.�7� DATE: , d � Z U!t4� COMPANY: �A �C• ' PHONE NO., �" FAX NO.: Z' —fJ► FROM: JOHN MIKUTOV nQZ NO. of pages including this page: � Hard Copy will be mailed?: TES NO e— JOB REFERENCE: _ �� �-�'�'!'�t. �'u�.�.�'C ��.�r-NQ ' - ---' rMrfr �i /40 ,►r�7 GM _ �..�.�,..-��- •� :alp ��.....�..,: mal opportunity arnployor '1WT CWU"i t IHN I J n l 11 C1 u I, h--d-.�n 'fn W.. 70TAL P.03 i EXHIBIT D Bk 15461 P0183 067570 Bk 15461 P2y184 069590 08-12-2002 8 09227a FIDUCIARYDEED COMMONWEALTH OF MASSACHUSETTS Barnstable,SS August 9,2002 I, JOYCE B. MOORE, Trustee under the Will of SARA RUSSELL GIFFORD, Barnstable Probate No.27288,of Osterville,Massachusetts Then personally appeared the above-named Joyce B. Moore, as Trustee aforesaid and acknowledged the foregoing to be her free act and deed before me, for consideration paid of Six Hundred Sixty Seven Thousand, Two Hundred ($667,200.00) Dollars grant to Peter L.O'Keeffe, ryPublic ARTHUR PERRY, JR. and JUDITH KOZLOWSKI, husband and wife, as tenants by the My Commission Wpires: 3/14/08 entirety of 5310 Portsmouth Road,Bethesda,Maryland 20816 A certain parcel of land situate at"Little River"in said Cotuit, bounded by a line beginning at the NW comer of the granted premises at the Road leading Southerly to the former Homestead of the late Nathan Coleman and at the SW Comer of land conveyed to Cora L. Dottridge and Samuel C. Crosby and running Easterly by the latter,straight,to the Bay,measuring from said Road to High-water mark about two hundred and fourteen(214)feet; thence Southerly by said _ Bay about thirty-four(34) feet to land conveyed to said Rosa J.Hobson; thence Westerly in a -"------- straight line,parallel with the first described or North line of lot to said Road,measuring from BARNSTABLE COUNTY DEEDS P 01 High-water mark to Road about one hundred and ninety-four (194) feet and by said Road, ��� REGISTRY OF DEEDS BA BLE Northerly,about thirty-four(34)feet to the point of beginning with an address of 28 Little River UNTY EXCISE TAX Road. ----- ----- 08/13/fYL 915BRt1 PROPERTY ADDRESS: 28 Little River Road,Cotuit,Massachusetts 000000 06191 For title see Deed from Rosa J. Hobson, et al to Sarah R. Gifford dated September 15, 1899 DATE HAN% TUE FEE $22a2.e5 � recorded with Barnstable County Registry of Deeds at Book 240,Page 460 and see License for TAX $1521.90 CAM 82282-BS the Sale of Trust Estate issued by the Barnstable Probate and Family Court,Docket No.27288 TOTAL $1521.90 recorded herewith. CASH $1521.90 Witness my hand and sea[this 9th day of August,2002. CLERK I N0.032315TIflE 09:40 1111 Jo a core,Trustee ' BARNSTABLE REGISTRY OF DEEDS EXHIBIT E y ,trt r r.n nuAU MAP ID: 0531 008/ ID:3438 - thherID.- Bldg#: I Card 1 of I Prim(Date:09103/2 0 0' ,1:12 IN — — Below Street blic Wale eved aterlront Descri tion Code l.4 raised Value Assesse�Value .OR'SK1,JUDI.1.1180.1 1 as OM LAND 3150 556 200 556,200 ORT5�10LITIi RD � it (ESDA,MD 20816 epkc AMIERC. 3150 24,000 24,000 J MMERC. 3150 100,000 100,000 Barwslable 2904,MA Q I-anal Owners: !Account# 30674 Plan Ref. - - " O �iax Dist. 200 Land Ct# ` er.Prnp. PS.R Life 0state VISION #DL 1 Elates: DL 2 6 GiS1D:3438 Total 680,2001 680,200 - ---" r '- R ,JOYCiR.Tlt& 1546U 183 08/i2l21102 U I 667,200 10 1r Code Assessed Value Yr. Code Assessed Value Yr. Code i Assessed Value RE,IOYCE B TR P27288 07JO411994 U 1 0 lA 2003 3150 132,700 002 3154 132,7(l0 001 3i50 247,700 :l M,EVELYN C P23542 Q 0 2003 3150 17,300 002 3150 I7,300 D01 3150 1.7,300 Total: 150.00 Total: 150,00-0 Total: 265,00[ ` This signature acknowledges a visit by a Data Collector orAssessor rr Tv e/Descrrafion AmotrnJ Code Description _ Number Arnotrn! Carnm lnl Appraised Bldg.Value(Card) 24,000 Appraised XF(B)Value(Bldg) 0 Total: Appraised OB(L)Value(Bldg) 100,000 :FAMILY Appraised Land Value(Bldg) 556,200 BE USED AS -4���� - Special Land Value F10111E&BOATSALES Total Appraised Card Value 680,20( F,12113M Total Appraised Parcel Value 680,20( Valuation Method: CostlMarket Valuatiot et Total Appraised Parcel Value 680,20( mil ID Issue Date Type Description Amount Imp.Date %Cam _ Date Comp. Comments Date ID I Cd Pu ase./Resril! 3/14/2003 PT 01 feat/Est 5/5/1999 FS 01) fear/Listed Jae Code Descriprioit Zorta D rants e Depth Units Unit Price IFactor 5.1. C.Factor Nbad .! Notes-AdjlSpecla l Pricing Adj. linil Price Latu1 Yolrtet 3150 O- KVARDS ftl? 2 0.19 AC 100,000.00 3.33 5 1.60 C125 5.50 556,20f Total Card Land Units 0,191 AC Parcel Tolall and Area: 0.19 AC TofalLand fraiu 556,20i __._... - ...... .__............. J I EXHIBIT F MICHAEL D. FORD, ESQUIRE ATTORNEY AT LAW 72 MAIN STREET,P. O. BOX 665 WEST HARWICH, MA. 02671 TEL. (508) 430-1900 FAX(508) 430-8662 EMAIL: mdfesq@capecod.net April 18, 2003 Edward R. Gargiulo, Esq. Gargiulo/Rudnick, LLP 766 Falmouth Road Madaket Place, Suite A-6 Mashpee, MA 02649 Re: Notice of Trespass Dear Attorney Garguilo: Please be advised that it is my clients understanding that Cotuit Oyster Company, Inc. has completely vacated my clients property at 28 Little River Road iin Cotuit and is no longer utilizing the pier or the pier building. The purpose in this letter is to put you on notice that any future use of the pier,building or the premises itself, without my clients permission,will be deemed to be a trespass and would be dealt with accordingly. Notwithstanding this notice,please be advised that my clienl[s continue to be willing to discuss with your clients the possibility of continued use of the premises,by Cotuit Oyster Company, in the nature of a leasehold agreement, and I remain opera to discussions regarding that issue. Very tn:ly ours, Michael D. Ford MDF/mbf cc: Arthur Perry,Jr. and Judith Kozlowski z t MICHAEL D. FORD, ESQUIRE ATTORNEY AT LAW 72 MAIN STREET, P. 0. BOX 665 WEST HARWICH, MA. 02671 TEL. (508)430-1900 FAX (508) 430-8662 EMAIL: mdfesq@capecod.net Via fax:508-947-6557and First Class Mail June 11, 2004 David E. Hill, Environmental Engineer DEP Waterways Regulation Program 20 Riverside Drive Lakeville, MA 02347 Re: Waterways License Application Transmittal Number W04-1017/TMWO45892 Cotuit Oyster Co., Inc. Dear Mr. Hill: Please be advised that this office represents Arthur Perry, Jr. and Judith Kozlowski, the owners of property located at 28 Little River Road, the property located directly to the north of the Cotuit Oyster Co, Inc. property, which property currently has the benefit of Waterways License No. 8385. My clients interest derives under a deed to them dated August 9, 2002 and recorded at the Barnstable County Registry of Deeds in Book 15461, Page 183, a copy of which is attached hereto as Exhibit A. Prior to the conveyance to my clients, the previous owner(Joyce Moore, as Trustee) inquired of the Waterways program as to whether or not License No.8385, would follow the chain of title to the property upon their conveyance to my clients. Under a letter dated June 19, 2002 from Mitch Ziencina, Environmental Analyst with the Wetlands and Waterways program. Ms. Moore was informed that the license would indeed follow the chain of title and be so transferred(a copy of said letter is attached hereto as Exhibit B and a copy of License 8385 is attached as Exhibit C). Mr. Ziencina's letter is supported by the provisions of 310 C.M.R. 9.18 and 9.23 which specifically provides that, unless otherwise provided in the license, a valid license shall run with the land and shall automatically be transferred upon change of ownership of the effected property within the chain of title of which the license has been recorded. All rights, privileges, obligations and responsibilities specified in the license shall be transferred to the new land owner upon the recording of the changed ownership. There is no provision in License 8385 to'the contrary. Accordingly, my clients are now the holders of all rights and privileges which flow from License No. 8385 and have no intention of abandoning the license or the pier to which the 1 } David Hill June 11, 2004 Page 2 license refers. Ms. Arlene Wilson who submitted the proposal on behalf of Cotuit Oyster Co., Inc., also has no authority to act on behalf of my clients with respect to any matters regarding License No. 8385 including, without limitation, any right of abandonment. My clients also object to and challenge the validity of Licenses 3509, 3506 and 3507, as they are shown on the application with respect to any rights to fill tidelands on my clients property. My clients also object to the length of the proposed pier. The harbor in this area is home to many small boats and the length of this pier would create navigational hazards for small sailboats, kayaks and row boats that utilize the nearby public boat ramp for access. The pier should be reduced in length by at least 40 fee to address the small boat navigation issues. Therefore,my clients would request that your Department reject the application for Chapter 91 license as proposed: Finally, I would request that you send me a full copy of the Application which has been filed, together with all attachments. I would be happy to pay any costs associated with making any such copies. Upon receipt of the full application, my clients reserve the right to provide further comments to your Department regarding this Waterways License Application. Thank you for the opportunity to comment on this matter. Very truly yours, Michael D. Ford MDF/mbf Enclosures cc: Arthur Perry, Jr. and Judith Kozlowski Edward R. Gargiulo, Esq. Arlene M. Wilson u � ]( Bk 15461 PS183 *69590 08-12-2002 & 09 = 27m FIDUCIARY DEED I, JOYCE B. MOORE, Trustee under the Will of SARA RUSSELL GIFFORD, Barnstable Probate No. 27288, of Osterville, Massachusetts for consideration paid of Six Hundred Sixty Seven Thousand, Two Hundred ($667,200.00) Dollars grant to ARTHUR PERRY, JR. and JUDITH KOZLOWSKI, husband and wife, as tenants by the entirety of 5310 Portsmouth Road, Bethesda, Maryland 20816 U A certain parcel of land situate at "Little River" in said Cotuit, bounded by a line beginning at the NW corner of the granted premises at the Road leading Southerly to the former Homestead of b the late Nathan Coleman and at the SW Corner of land conveyed to Cora L. Dottridge and rx Samuel C. Crosby and running Easterly by the latter, straight, to the Bay, measuring from said Road to High-water mark about two hundred and fourteen (214) feet; thence Southerly by said v Bay about thirty-four (34) feet to land conveyed to said Rosa J. Hobson; thence Westerly in a astraight line, parallel with the first described or North line of lot to said Road, measuring from High-water mark to Road about one hundred and ninety-four (194) feet and by said Road, ri Northerly, about thirty-four(34) feet to the point of beginning with an address of 28 Little River 4J Road. a 0o PROPERTY ADDRESS: 28 Little River Road, Cotuit, Massachusetts N For title see Deed from Rosa J. Hobson, et al to Sarah R. Gifford dated September 15, 1899 a recorded with Barnstable County Registry of Deeds at Book 240, Page 460 and see License for U the Sale of Trust Estate issued by the Barnstable Probate and Family Court, Docket No. 27288 0 a recorded 'r. .ewitl ; Witness my hand and seal this 9th day of August; 2002. 4 . >l� 4� Joyce IVMoore, Trustee -ETER L.O'KEEFFE,P.C. ATTORNEY AT LAW 407 NORTH STREET HYANNIS,MASS.02601 -- r 'ELEPHONE(508)775-7339 Bk 15461 P9184 =69590 COMMONWEALTH OF MASSACHUSETTS Barnstable, SS August 9, 2002 Then personally appeared the above-named Joyce B. Moore, as Trustee aforesaid and acknowledged the foregoing to be her free act and deed before me, Peter L. O'Keeffe, N6tary Public My Commission FR/xpires: 3/14/08 --------------------- BARNSTABLE COUNTY F DEEDS Q REGISTRY OF DEEDS O 1 UNTY EXCISE TAX Sp Et_E ------------- 0g/14/02 000000 #6191 DATE 08.13. TILE �� s�ze1.85 TAX $1521.90 CASH. F22 82-85 TOTAL $1521.90 CASH $1521.90 CLERK 1 N0.032315 TIME 09:40 1111 ETER L.O'KEEFFE,P.C. ATTORNEY AT LAW 40T NORTH STREET HYANNIS.MASS.02601 iLEPHONE 1508>775.7339 - _BARNSTABLE REGISTRY OF DEEDS EX - B !C�x C0mMommALTH OF MAssncrws>r-1'Ts EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTmmisu OF ENVIRONMENTAL PROTECTION SOUTHEAST ItEGrIONAL OFFICE Zvi au RIVERSIDE DRTvr, LAKEVILLE. MA 02347 ZANE SWIFT IS GB DVRANn Gawraat 5eerearr LAU/R.�EN A.TISS W IIlfit�aSOlfaY June 19,2002 Joyce Moore C/o Cotton heal Estate 851 Main Street Osterville,MA 0202655 PW': Waterways License No. 9385 Dear Ms. Moore: Per our conversation yesterday and your request for infbTmation resarding the weferenced license. The license was issued to Richard C.Nelson,d.b.a. Cotuit oyster Co.,Inc. on December 29, 1999 and recorded at the Barnstable County Registry of Deeds on Jaltuary 14,2000. Pursuant to Chaptar 91 regulations 310 CNfR,9.19 Recordings(enclosed)the license follows the chain of title of The property. If you have rmy questions please do not hesitate to contact me in(508)946-2734. Sincerely, //!Viitc Z/cncina Ervironrecntal Analyst Wetlands and Waterways Propurn Enclosure Cc: File Copy tllif iwhrwaran it�gilllbk ip N�r.�rr Lruar b!whine our.WA Cwr��dtthr.I 1p S7J.YSTl DED anlR!WD�IE Wieo Wlp: �fipJwMw.R►fLt.paiaee Lj Rr4"ad en F wtwd paper BIC 12?ti�2 PGl�U4 2864 01- 14-2000 a 02 : 01 Mbt Tommonwtaltb of Massubusletts No. 8385 �httt�e. Richard C.Nelson,d.b.a.Cotuit Oyster Co.,Inc. l ' of-- Barnstable -- in the County of-- Bantstable -- and Commonwealth aforesaid, lies applied to the Department of Environmental Protection for license to—maintain a dock&platform-------•------------------ T l.1_l and has submitted plans of the same;and whereas due notice of said application,and of the time and placa. has been given, as required by law, to the Board of Selectmen - of the Townof--Barnstable.---------------------------------------—---------------------------------------------------------- NOW, said Department, having heard all parties desiring to be heard, and having fully considered said (4) application,hereby,subject to the approval of the Governor,authorizes and licenses the said--------------- l� z J p' Richard C.Nelson,d.b.a. Cotuit Oyster Co., Inc. --, subject to the provisions of the ninety-first chapter of the General Laws,and of all laws which are or may be in force applicable thereto,to—maintain a dock& platform-- -------------- ---------------------------------........................-----....................... in and over the waters of—Cotuit Bay-- in the --Town -- of Barnstable-- and in accordance with the locations shown and details indicated on the accompanying DEP Plan No. 8385 (1 Sheet). 4 P REO ON WECTMO PAKA BY 12?62 PIL OOS 2GG4 License No.8385 Page 2 The structures hereby authorized shall be limited to the following use:commercial docking and boating accessto navigable waters.--------------------------------------------------------------------------------------------- This license will expire ninety-nine(99)years from the date of the license issuance. ------------------------ The project authorized herein has been completed in conformance with the accompanying License Plans. The issuslice of this License, therefore, fulfills the Licensee's obligation to obtain a Certificate of Compliance pursuant to 310 CM 9.19.-----------------------------_---------------------------------------- Special Waterways Conditions: In accordance with any license condition,casement,or other public right of lateral passage that exists in the area of the subject property lying between the high and low water marks, the Licensee shall allow the public in the exercise of such rights to pass freely around all structures within such intertidal area. Accordingly, the Licensee shall place and maintain, in good repair, a public access sign on both the northerly and southerly sides of the dock, authorized herein, adjacent to the mean high water shoreline. Said signs, provided by the Department, shall be posted immediately upon receipt. Nothing in this condition shall be construed as preventing the Licensee from excluding the public from portions of said structure(s)or property not intended for lateral passage.-----------------------------------------------__---------- Please see page 3 for additional conditions to this license.---=------------------------------------------------------ Duplicate of said plan,number 8385 is on file in the office of said Department,and original of said plan accompanies this License,and is to be referred to as a part hereof. 8K 12762 Pl 006 21364 License No.9385 Page 3 STANDARD WATERWAYS LICENSE CONDITIONS I. Acceptance of this Waterways License shall constitute an agreement by the Licensee to conform with all tens and conditions stated herein. 2. This License is granted upon the express condition that any and all other applicable authorizations necessitated due to the provisions hereof shall be secured by the Licensee prior to the commencement of any activity or use authorized pursuant to this License. . 3. Any change In use or any substantial structural Ateration of any structure or fill authorized herein shall require the issuance by the Department of a new Waterways License in accordance with the provisions and procedures established in Chapter 91 of the Massachusetts General Laws. Any unauthorized substantial change in use or unauthorized substantial structural alteration of any structure or fill authorized herein shall render this Waterways License void. 4. This Waterways License shall be revocable by the Department for noncompliance with the terms and conditions set forth herein. This license may be revoked after the Department has given written notice of the alleged noncompliance to the Licensee and those persons who have filed it written request for such notice with the Department and afforded than a reasonable opportunity to connat said noncompliance. Failure to correct said noncompliance after the issuance of a written notice by the Department shall render this Waterways License void and the Commonwealth may proceed to remove or cause removal of any structure or fill authorized herein at the expense of the Licensee,its successors and assigns as an unauthorized and unlawful structure and/or fill. S. The structures and/or fill authorized herein shall be maintained in good repair and in accordance with the terms and conditions stated herein and the dcWls Indicated on the accompanying license plans. 6. Nothing In this Waterways License shall be construed as authorizing encroachment in,on or over property not owned or controlled by the Licensee,except with the written consent of the owner or owners thereof. 7. This Waterways License is granted subject to all applicable Federal,State, County, and Municipal laws,ordinances and regulations including but not limited to a valid final Order of Conditions issued pursuant to the Wetlands Protection Act,G.L.Chapter 131,s.40. 8. This Waterways License is granted upon the express condition that the use of the structures and/or fill authorized hereby shall be in strict conformance with all applicable requirements and authorizations of the DEP.Division of Water Pollution Control. 9. This License authorizes structures)and/or fill on: x Privale Tidelands. In accordance with the public easement that exists by law on private tidelands,the licensee shall allow the public to use and to pass freely upon the area of the subject property lying between the high and low water marks,for the purposes of fishing, fowling,navigation,and the natural derivatives thereof. x Commonwealth Tidelands. The Licensee shall not restrict the public's right to use and to pass freely,for any lawful purpose,upon lands lying seaward of the low water mark. Said lands are held in taut by the Commonwealth for the benefit of the public. _a Oreat Pond of the Commonwealth. The Licensee shall not restrict the public's right to use and to pass freely upon lands lying seaward, of the high water mark for any lawful purpose. No restriction on the exercise of these public rights shall be imposed unless otherwise expressly provided in this license. 10.Unless otherwise expressly provided by this license,the licensee shall not limit the hours of availability of any areas of the subject property designated for public passage,nor place any gates,fences,or other structures on such areas in a manner that would impede or discourage the free flow of pedestrian movement thereon. Bll% 127P2 PGOt37 2064 License No.8385 Page 4 The amount of tide-water displaced by the work hereby authorized has been ascertained by said Department, and compensation thereof has been made by the said -- Richard C. Nelson, d.b.a. Cotuit Oyster Co.,Inc.--by paying into the treasury of the Commonwealth--two dollars and zero cents($2.00) -- for each cubic yard so displaced,being the amount hereby assessed by said Department (0.0 cu.yds._ $0.00).-------------------------------------------_ Nothing in this License shall be so construed as to impair the legal rights of any person.____------- This License shall be void unless the same and the accompanying plan are recorded within 60 days from the date hereof,in the Registry of Deeds for the County of Barnstable.-------------------_---_-----.-..-----. IN WITNESS WHEREAS,said Department of Environmental Protection have hereunto set their hands this a day of 1�� in the year nineteen hundred and - Cornrnissioner Department of Program Chief /'V�onmental Protection THE COMMONWEALTH OF MASSACHUSETTS This license is approved in consideration of the payment into the treasury of the Commonwealth by the said--Richard C.Nelson,d.b.a.Cotuit Oyster Co.,Inc.--------—------------—-----------------—----—. of the further sum of—two hundred,fifty-six dollars and zero cents($256.00)-------------- the amount determined by the Governor as a just and equitable charge for rights and privileges hereby granted in the land of the Commonwealth. BOSTON, Approved by the Governor. Q BARNSTABLE REGISTRY OF DEEDS Governor LL 07 C7' cow 46 CC . ✓c GT 10 �r J / �► O / INC* _ vet,.w • i�/ \\ • !�?•+ \ - Z \ 4T• w `\ IX/OaMCAI \ • �,,� .0.7 I�o/bJ fr7T! 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' P1�ribs4r,noclt A :.MAItLOTTL C-9RIC►IAPO C.WHIM i1.tk-2 NLWrolwrvTo&s" ' COTU I'T T%AIY � 4 �•0 4 9 —I,� � O r MSRpDC RT W. 6r rFo RD SIT AL PLA.N -3 4 ti IL 61ZA.vCItiT T I•• 40 box 30% coTv► ,b Lwssal� Mo��y s►ns- t17 ♦.S,o FIXED DOGK Z "TMP FLOA Ob,YS V K G.C.• _«-.i- �QoF►t`.E .2A vtAK_ (mo ,r x►R-DCCK .. X4•r IL • SEGT 1ON ELEV&T1QN5 N PEFT C wo SGAL_TL) $&SreD OQ SbaVE b(LW PLAN TO ACCOMPANY PETITION uwm mm ma O OF CHARLOTTL Cv RICHARDC.WHITE. �"M f+n;11�1�Mlllllr to 60M TO CONSTRUCT•MAINTAIN DOC1� RAMP,FL OAT,*PILES.IN COTU I t fitooMYNIIO w DAY. aw 1""m COTUIT. MASS NOVEMBER 3. 1980 LEASE I, .'EVELYN-G. . BRACKETT, Trustee under the Will of Sarah Russell Gifford, Owner, do hereby lease, demise and let unto COTUIT OYSTER CO. , INC. , a corporation duly organized under the Laws of the Commonwealth of Massachusetts and having a usual place of business in Barnstable (Cotuit) , Barnstable County, Massachusetts, Tenant, a certain parcel of land in Barnstable (Cotuit) , Barnstable County, Massachusetts, with buildings thereon bounded and described as follows: Easterly by Cotuit Harbor; Southerly by land now or formerly of Wellman; Westerly by Shell Road; and Northerly by land now or formerly of Samuel Bumpus. TO HAVE AND TO HOLD the same unto the Lessee for the period of June 1, 1977 to May 31, 1979 . Said premises are to be used by the Tenant for the furtherance of shellfish and oyster business only, and subject to the right of the owner and of all the beneficiaries of said Trus- tee to pass and repass over said premises for access to Cotuit Harbor, and the further right of said Trustee and said benefic- iaries to store and keep small boats on portions of the above-. described land and in a manner which will not unreasonably inter- fere with the use of said premises by the Lessee; yielding and paying therefore the rent of Two Hundred and 00/100 ($200 .00) , Dollars for each month of the term, said rent to be paid in in- stallments of Two Hundred and 00/100 ($200 .00) Dollars every month payable i.n advance; the first installment to be paid upon execu- tion of this Lease. MYCOCK; NEWELL. & MORSE ATTORNEYS AT UAW. I, Surrender of Premises WINTER STREET - YANNIS•MASS. 02601 At the expiration of the tenancy hereby created, Tenant _E7HONE (617) 771.404D - shall .surrender the leased premises in the same condition as the I leased premises were- in upon delivery of possession thereto under this Lease, reasonable wear and tear excepted, and damage by un- avoidable casualty excepted, and shall surrender all keys for the leased premises to Owner at the place -then fixed for the payment of rent and shall inform Owner of all combinations on locks, safes and vaults, if any, in the leased premises. Tenant shall remove all its trade fixtures, and any alterations or improvement before surrendering the premises as aforesaid and shall repair any damage to the leased premises caused thereby. Tenant' s ob- ligation to observe or perform this covenant shall survive the expiration or other termination of the term of this Lease. II. Right of First Refusal. Should the Owner, during the term of this Lease or any options exercised thereunder, decide to sell the property which is the subject matter of this Lease, the Tenant shall have the right of First Refusal, so-called said right to be exercised by offering the property upon the same terms and conditions as they Owner will sell to Third Person in writing. Said Tenant shall have forty-five (45) days from date of receipt of the offer to comply with its terms . At which time, failure of the Tenant to so comply shall be considered a refusal to purchase. III. Utility Charges . Tenant shall be solely responsible for and promptly pay all charges for heat, water, gas, electricity or any other. utility used or consumed in the leased premises. In no event shall Owner . be liable -for an interruption or, failure in the supply of any such utilities to the leased premises . MYCOCK. NEWELL & MORSE IV. Assigning and Subletting. ATTORNEYS AT LAW WINTER STkEET HYANNIS. N.ASS. 02601 . Tenant will not assign this lease in whole or in mart, ELEPHONE (617) 771-4040 .nor sublet all or any part of the leased premises, without the p (2) written consent of Owner in each instance. The consent by Owner to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting by operation of Law. If this Lease be assigned, or if the leased premises or any part thereof be underlet or occupied by anybody other than Tenant, Owner may collect rent from the assignee, undertenant or occupant, and apply the net amount col- lected to the rent herein reserved, but no such assignment, under letting, occupancy or collection shall be deemed a waiver of this covenant, or the acceptance of the assignee,. under-tenant or occu- pant as tenant, or a release of Tenant from the further perform- ance by Tenant of covenants on the part of Tenant herein contained. Notwithstanding any assignment or sublease, Tenant shall remain fully liable on -this lease and shall not be released from perform- ing any .of the terms, covenants and conditions of this Lease. The Owner hereby consents that the property may be sub- let to HERBERT WESSON GIFFORD for the purposes of operating .his Clambakes on terms . and conditions to be agreed upon between said HERBERT WESSON GIFFORD and the Tenant. V. Right to Re-enter, Relet and Legal Expense. In the event of any failure of Tenant to pay any rental due hereunder within ten (10) days after the same shall be due, or any failure to perform any other of the terms, conditions or cov- enants of this Lease to be observed or performed by Tenant for more than thirty (30) days after written notice of such default shall have been given to Tenant, or if Tenant or any, guarantor of this Lease shall become bankrupt or insolvent, or file any debtor proceedings or take or have taken against Tenant or any guarantor - of this Lease in any Court pursuant to any statute either o- the !YCOCK, NEWELL United States or any State a petition in bankruptcy or insolvency & MORSE 1Ti0RNEYSATLAW or for reorganization or for the appointment of .a receiver or WINTER STREET Trustee of all, or a portion of Tenant' s or any such guarantor' s 'ANNIS. MASS. C2S01 _ property, or if Tenant or any such guarantor makes an assignment -PHONE (617) 771-4040 (3) 1 for the benefit of creditors, or petitions for or enters into an arrangement, or if Tenant shall abandon said. premises, or suffer 1 this Lease to be taken under any writ of execution, the Owner besides other rights or remedies it may have, .shall have the immediate right of re-entry and may remove all persons and property from the Court of Tenant, .all without service of notice or resort to legal process and without being deemed .guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. Should Owner elect to re-enter, as herein provided, or should it take possession pursuant to legal proceedings or pur- suant to any notice provided for by Law,. it may either terminate this Lease or it may from time to time without terminating this Lease, make such alterations and repairs as may be necessary in order to relet the premises, and relet said premises or any part thereof for such term or terms (which may be for a term extending beyond the term of this Lease) and at such rental or rentals and upon such other terms and conditions as Owner in its sole dis- cretion may deem advisable; upon each such reletting all rentals received by the Owner from such reletting shall be applied, first, to the payment of any indebtedness other than rent due hereunder from Tenant to Owner; second,' to 'the payment of any costs and expenses of such reletting, including brokerage fees and attorney' fees and of costs of such alterations and repairs; third, to the payment of rent due- and unpaid hereunder, and the residue, if any shall be held by Owner and applied in payment of future rent as th same may become due' and payable hereunder. If such rentals re- ceived from such reletting during any month be less than that . to be .paid during that month by Tenant hereunder, Tenant shall pay any such deficiency to Owner. Such deficiency shall be calculated and paid monthly. No such re-entry or taking possession of said YCOM NEWELL premises by Owner shall be construed as an election on its part & MORSE TTORNEYS AT LAY.' to terminate this Lease unless a written notice of such intention WINTER STREET be given to Tenant or unless the termination thereof be decreed >NHIS..MASS. 02601 - PHONE (617) 771-4040 (4) IL t r ! r by a Court of competent jurisdiction. Notwithstanding any such reletting without termination, Owner may at any time thereafter elect to terminate this Lease for such .previous breach. Should Owner at any time terminate this Lease for any breach, in addit- ion to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the leased premises, reasonable attorney' s fees,' and including the worth at the time of such termination of the excess, if any, of the amount of rent and charges equivalent to rent reserved in this Lease for the remainder of the stated term over the then reasonable rental value of the leased premises for the remainder of the stated term, all of which amounts shall be immediately due and payable from Tenant to Owner. In deter- mining the rent which would be payable by Tenant hereunder, subse- quent to default, .the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. In case suit shall be brought for recovery of possess- ion of the leased premises, for the recovery of rent or any other amount due under the provisions of this Lease, or because of the breach of any .other covenant herein contained on the part of Ten- ant to be kept or performed, and a breach shall be established, Tenant shall pay to Owner all expenses incurred therefor, including a reasonable attorney' s fee. VI. Waiver. The waiver by Owner- of any breach of any term, covenant COCK, NEWELL or condition herein contained shall not be deemed to be a waiver & MORSE of such term, covenant or condition herein contained. The sub- -fORNEYS AT LAW - WINTER STREET , sequent acceptance of rent hereunder by Owner shall not be deemed VNIS. MASS. O2601 to be a waiver of any preceding breach by Tenant of any term, HONE 1617)771.4040 - - - - 1 covenant or condition of this Lease, other than the failure of Tenant to pay the particular rental so accepted regardless of Owner' s knowledge of such preceding breach at the time of accept- ance of such rent. No covenant, term or conditions of this Lease shall -be deemed to have been waived by Owner, unless such waiver be in writing by Owner. No payment by Tenant or receipt by Owner of a lesser amount than the monthly rent herein stipulated shall be deemed to be other than on account of the earliest stipulated rent, nor shall any endorsement , or statement on any check or any letter accompany any check or payment as rent be deemed an accord and satisfaction, and Owner may accept such check or payment without prejudice to Owner's. right to recover the balance of such rent or pursue any other remedy in this Lease provided. VII. Notices . Written notice from the Owner to the Tenant shall be . deemed to have been property given if mailed by registered or certified mail, postage prepaid, return receipt requested to the Tenant at the address of the leased premises , or if delivered or left, that such notice has been delivered to or left with, the Tenant or anyone expressly or impliedly authorized to receive messages for -the Tenant, or by any adult who resides with the Tenant in the leased premises . Written notice from the Tenant to the Owner shall be deemed to have been properly given if mailed by registered or certified mail, postage prepaid return receipt requested, to. the Owner at his address set forth in the first paragraph of this Lease., unless the Owner, shall have notified the Tenant of the change of the Owner's address, in which case such NYCOM NEWELL notice shall be so sent to such. changed address of the ,Owner, & MORSE provided that the receipt has been signed by the Owner or anyone ATTORNEYS AT LAW expressly or implied authorized to receive messages for. the ,Owner. WINTER STREET YANNIS. MASS. 02601 Notwithstanding the foregoing, notice by . either party to the othe EPHONE 4617) 771-40..0 shall be deemed adequate if given in any other manner. authorized by Law. VIM. ' Taxes. The Tenant does hereby covenant and agree with .the said Owner, her successors and assignees that it will pay any increase in real estate taxes which occur from fiscal year 1978 to the end of this Lease, including all options exercised thereunder. IX. Option and Cost of Living Increase. If Tenant shall during the original term hereof keep. and perform each and every covenant, agreement, term, provision an condition herein contained to be performed or observed by Tenant and if Tenant shall throughout the original term hereof actually use and occupy the demised premises exclusively for the conduct of Tenant' s business, then Tenant may, at Tenant' s option, extend the term of this Lease for five (5) additional periods of two (2) years each and each such option to be exercised by the Tenant giving Owner written notice of its intention to ex'tend. this Lease ninety (90) days prior to the expiration of the original term or first option period upon the giving by Tenant to Owner such writ- ten notice and the compliance by Tenant with the foregoing pro- visions of this Section, this Lease shall be automatically extend- ed upon the same terms and conditions as herein provided, except as to this option provision and that the Minimum Annual Rent pay- able during the renewal period shall be adjusted to take account of, and in exact proportion to, the change in .the national average figure of the Consumer Price Index published by the United States Bureau of Labor Statistics for the end of the year of the term hereby granted as compared to such national average figure for the commencement of . the term hereby granted (using the figure for the YCOCK. NEWELL. N closest prior dates if no such national average figure is publishEd MO TTORNEYS AT LAIW for the dates above specified) and the Tenant shall 'pay , a Minimum WINTER STREET Annual Rent so computed, provided however, that in no event shall ANNIS. MASS. 02601 the Minimum Annual Rent be less than two hundred and 00/100 ($200 . 0) .PHONE (617) 771-6040 Dollars per month.' Should the. function of the Department of Labor (7) • 1 respecting said Consumer Price "Index be transferred to any other agency or department of the Federal Government, the Index of such other agency or department shall be utilized as a controlling index. Should such index be discontinued or become unavailable to the general public the parties hereto agree to submit to ar- bitration for the purposes of determining a substitute index which shall henceforth thereafter be binding on the parties. X. Repairs. The Tenant agrees with the Owner that, during this Lease and for such further time as the Tenant shall hold the leased pre- mises or any art thereof, . the Tenant will at all times keep and in error of the maintain the/Teased premises and all equipment and fixtures there- in or used therewith repaired, whole and of the same kind, quality and description and in such good repair, order and condition as the same are at the beginning of, or may be put in during the term or any extension or renewal thereof, reasonable wear and tear and damage by unavoidable casualty only excepted. ' The Owner and the Tenant agree to comply with any responsibility which either may have under applicable Law to perform repairs upon the leased premises . If Tenant fails within a reasonable time, or interior or maintenance " improperly makes such/repairs ,/then and in any such event of interio events, the Owner may (but shall not be obligated to) make such / or maintenance repairs/and the Tenant shall reimburse the Owner for the reason- interior or "maintenance able cost of such/repairs/in full, upon demand. Should the prem ises -o-r dock- be substantially damaged by fire or casualty, includ- ing but not" limited to hurricane, it is understood that the Owner repairin or replacing is responsible for maintaining/he building and that the Tenant, if, he wants the dock, must maintain it, including rebuilding it, ~but he is under no obligation to maintain or rebuild it D MYCOCK. NEWELL & MORSE ATTORNEYS AT LAW XI. Trustee. _ WINTER STREET - YANNIS, MASS. 02601 The Trustees under the Will of Sarah Russell Gifford act .EPHONE 1617) 771-4040 in a fiduciary capacity and shall not be personally liable with (8) I respect to the obligations of landlord (Owner) under this Lease. XII. Applicable Law and Construction. This Lease shall be governed by and construed in accord- ance with the Laws of the Commonwealth of Massachusetts and, if any provisions of this Lease shall to any extent be invalid, the remainder of this Lease shall not be affected thereby. There are no oral or written agreements between Landlord and Tenant affec- ing this Lease. This 'Lease may be amended only by instruments in writing executed by Landlord and Tenant. The titles of the sever- al Articles and Sections contained herein are for convenience only and shall not be considered in construing this Lease. Unless repugnant to the context, the words "Landlord (Owner) " and "Ten- ant" appearing in -this Lease shall be construed to mean those named above and their respective heirs, executors, administrators, successors and assigns and those claiming through or under them respectively. IN WITNESS WHEREOF, the parties hereto have set their hands as of tha day and year first above written. tZ Evel G. Brackett, Trustee Cotuit Oyster, Co. , Inc. , President MYCOCK, NEWELL & MORSE ATTORNEYS AT LAW WINTER STREET _ 4YANNIS. MASS.02601 LEPHONE (617) 771-4040 - i LEASE I, PHILIP BRA,CKETT, Trustee under the Will of Sarah Russell Gifford, by decree. of the Barnstable Probate Court in . Case No. 27288 dated March 3 , 1978 , LESSOR, do hereby lease, demise and let unto COTUIT OYSTER CO. , INC. , a corporation duly organized under the laws of, the Commonwealth of Massachusetts and having an usual .place of business in Barnstable (Cotui.t) , +� Barnstable. County, Massachusetts , LESSEE, a certain parcel of land in Barnstable .(Cotuit) , Barnstable County, Massachusetts , with buildings thereon bounded and described as follows : EASTERLY by Cotuit Harbor; SOUTHERLY by land now owned by Cotuit Oyster Co. , Inc. v WESTERLY by Little River Road; and NORTHERLY by land now or formerly of . Samuel Bumpus. To have and to hold the same unto the LESSEE for the period March 1 , 1983 to May 31, - :►�5�6 Said premises are- to be used 'by the LESSEE for the furth.erance. of shellfish and oyster business only, and subject to the right of the owner and all of the beneficiaries of said Trustee to pass and repass over said premises for access to Cotuit Harbor, and the further right of said Trustee and said beneficiaries to store and keep small boats on portions of the above-described land and in. a manner which. will not unreasonably interfere with the use of said premises by the .LESSEE. During ALGER & SCHILLING ATTORNEYS AT LAW 886 MAIN STREET . P. O. BOX 449 _ OSTERVILLE, MASS.02555 -p 1518 P:o 'fl _2 7 5--3 5 0 the initial term of the lease hereof and any extensions entered into pursuant to paragraph VII:I herein, LESSEE shall pay to LESSOR rent as follows; .For the period of March 1 , 1983 to Play 31, 1983 , the rent shall be paid in equal monthly installments of TWO HUNDRED SEVENTY-FIVE. (.$275. 00) DOLLARS per month or THREE THOUSAND THREE HUNDRED (,$3,300. 00) DOLLARS per year, in advance on the first of each month. Commencing on June 1, 1983 and each year thereafter, the rent shall be either THREE THOUSAND THREE HUNDRED ($3 , 300 . 00) DOLLARS or said sum multiplied by a fraction, the denominator of which. shall be the Consumer Price Index published by the U.S. Department of Labor, Bureau of Labor Statistics for the City of Boston, Massachusetts , "All Items" (Index) for the. month of 2 June, 198X and e numerator of which. shall be the Index for the 1-63� just past month of May, ��4, whichever is greater, in adva ce, in equal �1amonth monthly installments on the: first day of eachaeela =fie . Should such index. be discontinued or become unavailable to the general public, the parties hereto agree to submit to arbitration for the purposes of 'determining a substitute index which shall henceforth thereafter be binding on the parties. I. Surrender of Premises At the expiration of the tenancy hereby created., LESSEE shall surrender the leased premises in the same condition as the- leased premi.ses were in upon delivery of possession thereto 2 - under this lease, reasonable. wear and. tear excepted, and damage by unavoidable casualty excepted, and shall surrender all keys for the leased premises to LES'S'OR at the place then fixed for the payment of rent and. shall inform LESSOR of all combinations on locks , safes and vaults , if any, in the leased premises . LESSEE shall remove all its trade fixtures, and any alterations or improvements before surrendering the premises as aforesaid and shall repair any damage to the leased premises caused thereby. LESSEE 'S obligation to observe or perform this covenant shall survive the expiration or other termination of the term of this lease. II Right of First Refusal Should the LESSOR., during the term of this lease or any options exerci.se.d thereunder, or until the termination of the Trust, whichever occurs later, decide to sell the property which is .the subject matter of this lease, the LESSEES shall have the right of First Refusal, so-called said right. to be exerc.is.ed by offering the property upon the same terms and conditions as. the LESSOR shall sell to a third person in writing. Said LESSEE shall have. forty-five (45). days. from date of receipt of the offer to comply, with its' terms:. At which time, failure of the LESSEE to so. comply shall be considered a refusal to purchase. III . Utility charges, taxes and insurance LESSEE shall be solely responsible for and promptly pay -- 3 - i all charges for heat, water, gas , electricity or any other , utility used or consumed in the leased premises . Additionally, the LESSEE shall be solely responsible for paying promptly all charges for real estate. taxes,. personal property taxes and liability and property insurance. However, LESSEE shall not be required to pay for liability insurance n , exce.ss; of $500 , 000 . 0 or property insurance in excess of $20, 000. 00 . IV. Assigning and Subletting; LESSEE will not assign this lease in whole or in part,. nor sublet all or any part of the leased premises , without the prior written consent of LESSOR in each instance. The consent by LESS"OR to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting by operation of law. If . this lease be as:signed, or if the. leased premises or any part thereof be undexlet or occupied by anybody other. than LESSEE, LESSOR may collect rent from the assignee, undertenant or occupant, and apply the net amount collected to the rent herein reserved, " but no such assignment, underletting, occupancy or collection shall be deemed, a waiver of this covenant, or the acceptance of the assignee, undertenant or occupancy as. tenant, or . a release of LESSEE from the further performance by LESSEE of covenants on the .part of LESSEE - from the further performance by LESSEE of covenants on the part of. LESSEE herein contained. Notwithstanding any assignment or sublease; LESSEE shall remain fully liable on 4 - this lease and shall not be released from performing any .of the terms , covenants and conditions of this lease. .. .... ... .... V. Right' :to Re-enter, Re-let and Legal Expense In the event of any failure of LESSEE to pay any rental due hereunder within ten (10) days. after the same shall be due, or any failure. to perform any other of the terms, conditions or covenants of this lease to be observed or performed by LESSEE for more than thirty (30) days: after written notice of such default shall have. been given to LESSEE, or if LESSEE or any guarantor of this lease. shall become bankrupt or insolvent, or file any debtor proceedings. or take or have taken against LESSEE or any guarantor of this lease in any court pursuant to any statute either of the United States or any state a petition in bankruptcy or insolvency or for reorganization or for the appointment of a rec:eiveror trustee of all or a portion of LESSEE'S or any such. guarantor's property, or if LESSEE or any such guarantor makes an. assignment for the benefit of creditors , or petitions for or enters into an arrangement, or if LESSEE shall abandon said premises:, or suffer this lease to be taken under any writ or execution, the LESSOR besides other rights or remedies. it -may have, shall have the immediate right of re-entry and may remove all per sons: and property from the demised premises all without service or notice or .re.sort to legal process and without being deemed guilty of trespass , or becoming liable for 5 any loss or damage which may be occasioned thereby. Should LES'SOR. elect to re.-e,ntex, as herein provided, or should it take possession pursuant to legal proceedings or pursuant to any notice, provided for by law, it may either terminate this lease or . it may from time to time without terminating this lease, make such alterations and repairs as may be. neces:sary in order to re-let the premises , and re-let said premises or any part thereof for such. term or terms (which may be for a term extending beyond the term of this. lease) and at such-- rental or rentals and upon such other terms and conditions as LESSOR in its sole discretion may deem advisable; upon each. such. re-letting, all rentals received by the LESSOR from, such. re- letting shall be applied, first, to the payment of any indebted- ness other than rent due hereunder from LESSEE to LESSOR; second, to the payment of any costs and expenses of such re-letting, including brokerage fees and .attorneys ' fees. and of costs of such alterations and repairs;; third, to the payment of rent due and unpaid hereunder, and the residue, if any, shall be held by LESSOR and applied in payment .of future rent as the same may become due and payable. hereunder. I:f such rentals received from such re-letting during any month be less than that to be paid during that month by LESSEE hereunder, LESSEE shall pay any such deficienty to LESSOR. Such. deficiency shall be calculated and paid monthly. No such. re-entry or taking possession of said premises by LESSOR shall be construed as an ele.ction on its part 6 I to terminate this lease unless a written notice of such in- tention be given to LESSEE or unle.ss the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such re-letting without termination, LESSOR may at any time thereafter elect to terminate: this lease for such. previous breach.. Should LESSOR at .any time terminate this lease for any breach, in addition to any other remedies it may have, it may recover from LESSEE all damages it may incur by reason of such breach, including the cost of recovering the leased premises , reasonable attorneys ' fees , and including the worth. at the time. of such termination of the excess, if any, of the amount of rent and charges equivalent to rent reserved in this .lease for the remainder of the stated term over the then reasonable rental . value of the leased premises for the remainder of the stated term, all of which amounts shall be immediately due and payable from LESSEE to LESSOR. In determining the rent which would be payable by LESSEE heretindex, subsequent to default, the annual rent for each. year of the unexpired term shall be equal to the average annual minimum and percentage rents paid. by LESSEE from the commencement of the term to the time of_ default, or during`th:e proceeding three. .(3) full calendar years , whichever period is shorter. In case suit shall be brought .for recovery of possession of the leased premises,. for the recovery of rent or any other 7 - amount due under the provisions of this lease, or because of the breach of .any other covenant herein contained on the part of LESSEE to be kept or performed, and a breach shall be estab- lished, LESSEE shall pay to the'. LESSOR all expenses incurred th.ere.for, including a. reasonable attorneys ' fee. VI . Waiver The waiver by LESSOR of any breach °of any term; covenant or condition herein contained shall not be deemed to `be a waiver of such. term, covenant .or' condition herein contained. The sub- sequent acceptance of rent Hereunder by LESSOR shall not be deemed to be a waiver of any preceding breach by LESSEE of any term, covenant or condition of this lease, other than the failure of LESSOR'S knowledge of such preceding breach at the time of acceptance of such rent. No covenant, term or -conditions of this lease shall be deemed to have been waived by LESSOR., unless such .waiver be in writing by LESSOR. No payment by LESSEE or receipt by LESSOR of a lesser amount than the monthly rent herein stipulated shall be deemed to be other than on account of the earliest stipulated rent, nor shall any endorsement or' statement on any check or any letter accompany any check. or payment as rent be deemed an. accord and satisfaction,. and .LESSOR may accept such check or payment without prejudice to LESSOR'S right to recover the balance of such rent or pursue- any other . remedy in this lease provided,. VII . Notices Written notice from the LESSOR to the LESSEE shall be deemed to have been properly given if mailed by registered or , certified mail, postage pre-paid., return receipt requested, to the LESSEE at the addre.s:s of the leased premises , or if delivered or left, that such notice has. been delivered to or left with, the LESSEE or anyone expressly or impliedly authorized to receive. messages: for the LESSEE, or by any adult who resides with the LESSEE in the leased premises. Written notice from the LESSEE to the LESSOR shall be deemed to have been properly given if mailed by registered or certified mail, postage pre-paid, return receipt requested, to the LESSOR at his address set forth in the first paragraph. .of this lease, unless the LESSOR shall have noti,fied the LESSEE of the, change of the LESSOR'S address ; in which case such notice .shall be so sent to such changed address of the. LESSOR, provided that the receipt has been signed by the LESSOR or anyone expressly or impliedly authorized to receive messages for the LESSOR, Notwithstanding the foregoing, notice by either party to the other shall be deemed adequate. if given in any other manner authorized by law. VII'I . Option and Cost of Living Increase If LESSEE shall; during the original term hereof keep and perform .each .and every covenant, agreement, term, provision. and condition herein contained to be performed or observed by _ 9 _ LESSEE and if LESSEE shall throughout the original term hereof actually use and occupy the de.mi.sed premises :exclusively for the conduct of LESSEE 'S b.usinesa., then LESSEE may, at LESSEE 'S option, extend th-e term of this lease for three (3.) additional periods of five (5) years each and each, such option to be *exer- cis-ed by the LESSEE giving LESSOR written notice of its intention to extend this lease ninety ('50) days prior to the expiration of the original term or first option period upon the giving by LESSEE to LESSOR such written notice and the compliance by LESSEE with the foregoing provisions of this se.cti.on, this, lease. shall be automatically extended upon the same terms and conditions as herein provided, except as to this option provisions and the minimum annual rent .payablue during the renewable period or, periods shall be adjusted in accordance with the basic rent all asi provided herein. IX. Repairs The LESSEE agrees with the 'LESSOR that, during this lease and for such further time as the LESSEE shall hold the. leased premises or any part thereof, the LESSEE will at all, times keep and maintain the. whole of the leased premises, in-' terior and exterior of the structure and all equipment and fixtures therein or used therewith repaired, whole and of the same kirid, quality and description and in such-good repair, order and condition' as the same are. at the beginning of, or may - 10 - any provisions of this lease shall to any extent be invalid, the remainder of this le.a.se shall not be affected thereby. There. are no oral or written agreements between LESSOR and LESSEE affecting this lease. This lease may be amended only by instru- merits in writing executed by LESSOR and LESSEE. The titles of the .several articles and sections contained herein are for con- venien.ce. only and shall not be considered in construing this lease. Unless• repugnant to. the context, the words "LESSOR" and "LESSEE" appearing in thi.s. lease shall be construed to mean those named above and th:eir .respecti:ve heirs , executors , administrators , successors and assigns. and those claiming through `or under them respectively. I.N WITNESS WHEREOF, the parties hereto have set their hands as of the day and year first above wr `tten. P 4iip Brackett, Trustee COTUIT OYSTER CO. , . INC. By: Cf �. President 12 - ARNSTABLE REGISTRY OF DEEDS be. put in during the term or any extension or renewal thereof, reasonable .wear and tear and damage by unavoidable casualty only excepted. The LESSOR and the LESSEE agree to comply with any responsibility which—either may have under applicable law to perform repairs upon the leased premises . If LESSEE fails within a reasonable time., or improperly makes such repairs or maintenance, then and in any such event or .events , the. LESSOR may (,but shall not be .obligated to) make such repairs or main- tenance., and the LESSEE. shall reimburse the LESSOR for the, reasonable costs of such repairs or maintenance in full , upon .demand. • Parties hereto hereby acknowledge that the pier or dock on said property is the property of the LESSEE.. In the event it is destroyed by storm or otherwise, the LESSEE may, but shall not be obligated to, replace th.e. same. In the event the septic system on the premises needs to be replaced, neither party shall be obligated to replace the same but either may, and all parties will , attempt to work .out a; . mutually satisfactory arrangement. X. Trustee The. Trustees under the Will of Sarah Russ:ell Gifford act .in a fiduciary capacity and shall not be personally liable with respect to the obligations of LESSOR under this .lease.. XI. Applicable Law and Construct"i.on This lease shall be governed by and construed in. accor dance with, the laws of .th.e Commonwealth of Massachusetts , and if - 11 - 06/21/2004 09:57 5084308662 STINSONANDFORD PAGE 01 . , MICHAEL D. FORD, E5QUIRE ATTORNEY AT LAW 72 MAIN STREET,P.O. BOX 665 WEST HARWICH,MA 02671 PHONE(508)430-1900 FAX(508)430-8662 EMAIL: mJrc5gr capccod,nct DATE: � � cjq TELEC'0,11,11 UA,'ICATION IN,FOR3111 TION SHEET PLEASE DELIVER THE FOLLOWING PAGE(S)TO: Rccipien:'s Name `----' Company Telephone Number d( v T c7o Z.3C Telefax Number It, THIS MATERIAL IS FROM. Michael D. Ford Esquire Sender's Name (508) 43071 900 Telephone Number (548) 430-8662 Telefax Number TOTAL PAGES(NOT INCLUDING COVER). IF YOU DO NOT RECEIVE ALL THE PAGES'S PLEASE CALL SENDER'S TELEPHONE NUMBER AS SOON AS POSSIBLE. REMARKS: •Nnhrt nr rMFIM NTIAmV•, JpIS TRAN9MIFT.AT.MArrOy[.\INIWALMATION THAT 19 FAf\1LET:ROANn VnNFInFN OA!,ANDI91NTENDEPONLV KH T!It IRKw vIF loonivoptiALOR EbTITYNAMaD AWIVE It 114F.RRAW.ROF TIIIS TAANRMI I?AL 15 NOT TI1L IN?ENbRO%Fvirl!NT OR TIIE FMRI.OYLF nR Tnl!AGiN T R[ARONCIPLE FOR PFI WF twr.T0 THf.INTFNHRn WINIENT,VMI ARE NFRFAY NOTIFIF.p THAT AM MSSYMINATMN. nISTROUTIUNnR COFVIwtI<N tInS CQMMLINTAT10k 1,%tRICTLY M0111RITE0.If VOID NAvCRh•T9VT0 tN1%CTIRAMUNICATION IN ERROR,fLRASC NOTItY OE IMMF.IIIATELY ST TELRFNnNE MO V"NnE FOR IN;T5kLICTI1N19AN0An\I('F 06/21/2004 09:57 5084308662 STINSON.ANDFORD PAGE 02 MICHAEL D.FORD, ESQUIRE ATTORNEY AT LAW 72 MAIN STREET,P. 0. BOX 665 WEST HARWICH,MA. 02671 TEL. (508)430-1900 FAX (508)430-8662 E-MAIL: mdfesq@capccod.nct Via Fax: (508;)790-6230 First.Class Mail June. 1.8,2004 Tom.Perry,Building Cami-Dissioner Building Department 200 Main Street Hyannis,MA 02 00 1. Re: 28 Little River Road Dear Mr. Perry: Please be advised this office represents Arthur Perry and Judith Kozlowski,the owners of the property at 28 Little River Road. I write with respect to your letter to Attorney Gargiulo dated May 24,2004 with.,respect to the pier located on this property. As you know,I sent you.,under separate cover,information,previously forwarded by me to the Massachusetts Waterways Conurission which clearly supports the position that my clients are the holders of the license for the pier by virtue of tbei.r ownership of this property. Neither Attorney Gargiulo,.nor any other agent of Cotuit Oyster Co.,Inc, has any authority to act on behalf of.my clients. Accordingly,I would request that you take no action regarding this matter without notice to me and my clients, as my clients are not only the owners of the property and the pier, but the holders of the Cbapter 91 License. Also,be advised that my clients are currently in.the process of retaining a contractor to bring the pier into a safe condition as a result of the damage that was sustained last winter. If you have any questions regarding this matter,please do not hesitate to contact me. Very truly yours, Michael D. Ford MDFIs:fm cc: Ruth Weil,Esq. Robert Gatewood Edward.Gargiulo, Esq. A 5 c� . cLrvvUU UL 4022 LISTER LIAM 4089 WIRE INSPECTOR S 4039, TEMPORARY'CLERK .ti HARD 4040 PLUMBING/GAS INSPECTi HUR 4025 DEPUTY P/T WIRE INSPE( ISTINA 4024 P/T CLERK N 4035 BUILDING INSPECTOR 4028 PLUMBING/GAS INSPECT( H 4029 ON -CALL DEPUTY INSPEI CY 4026 SENIOR CLERK 'r I THE COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS Department of Agricultural Resources e 251 Causeway Street, Suite 500, Boston, NIA 02114 617-626-1700 fax 617-626-1850 www.Mass.gov/AGR MITT ROMNEY PI.1 N ROY HERZFELDER Governor secretary KERRY HEALEY. DOUGLAS P.GILLESPIE Lieutenant Governor Commissioner July]4,2004 Mr. Gary Brown,President and Members Barnstable Town Council " Barnstable Town Hall 367 Main St. Hyannis,MA 02601 - /1 Re: Cotuit Oyster Company,Cotuit Village,Barnstable Dear Mr.Brown and Members: Recently, it has been brought to my attention that the Cotuit Oyster Company;one of the oldest companies of its kind in the Commonwealth, is involved in an ongoing permitting process. According to my staff, Cotuit Oyster is - implementing modifications and improvements to its oyster and hard shell clam cultivation operation in and about Cotuit Bay. The Town of Barnstable has granted Cotuit Oyster the right to cultivate in approximately 33 acres in the waters of Cotuit Bay. The Department of Agricultural Resources recognizes Cotuit Oyster's aquacultural pursuits in Cotuit,as agriculture within the General Laws of the Commonwealth,and requests that every consideration be afforded Cotuit Oyster that is granted to agriculture;especially the statutory protections and exemptions that foster and encourage our long standing agricultural industry. Cultivation of shellfish and all handling related to shellfish cultivation is aquaculture that is well recognized as farming by Massachusetts General Laws,Chapter'128,'Section IA. That statute defines"farming"or"agriculture" as inclusive of farming in all of its branches,the production,cultivation,growing and harvesting of any agricultural, aquacultural,floricultural or horticultural commodity,,the growing and harvesting of forest products upon forest land,the raising of livestock including horses,the keeping of horses as a commercial enterprise,thc1ceping and raising of poultry,swine,cattle and other domesticated animals used for food purposes, bees,fur-bearing animals, and any forestry or,lumbering operations,performed by a farmer,who is hereby defined as one engaged in agriculture or farming as herein defined, or on a farm as an incident to or in conjunction with such farming operations,including preparations for market,delivery to storage or to market or to carriers for transportation to 1 Mr.G.Brown and Members,Barnstable Town Council July 14,2004 Page 2 of 2 market. Staff members of my Department have visited the site of Cotuit Oyster's aquacultural operation and have reported back that its activities and those proposed clearly fit this definition of agriculture. Please be aware that the Commonwealth of Massachusetts,through its Department of Agricultural Resources, expends considerable resources in both time and money to encourage the growth and development of our aquacultural industry. My staff reports that they have observed firsthand the efforts of Cotuit Oyster to enhance and improve business opportunities for aquaculture(agriculture)in the Town of Barnstable. Massachusetts must support these types of operations to maintain and improve our agricultural industry to foster both economic strength and environmental soundness. It is small agricultural companies like Cotuit Oyster that add economic strength, while allowing the best utilization of our rich.natural resources. The Massachusetts Legislature has historically recognized the importance of a vibrant agricultural industry to our economy and to our environment. Over the years it has consistently provided agriculture the laws that protect and exempt its activities,so that it will flourish. This is especially important in today's world where the pressure on agriculture is often particularly weighted against farming pursuits.,. It is my understanding that Cotuit Oyster seeks to establish a new facility to service its cultivation grants. Such activity is acknowledged as incidental to agriculture and is required in order to harvest and market its products. Accordingly,I urge the Town of Barnstable to find that Cotuit Oyster should enjoy the same privileges and responsibilities that have been afforded farming operations for decades in Massachusetts,and allow the proposed improvements to its land in Cotuit. Please do not hesitate to contact me or my staff for any further information or input in.this matter. - Thank you for your courtesy and cooperation,in this most important matter. Very y yours, Doug as ill ie Connmiss er DPG/Im Copy: Daniel M.Creeden.111, Chairman Zoning Board of Ap s oFWE Town of Barnstable Regulatory Services . 9'"M AM Thomas F. Geiler, Director �ArFo;orA�� Building Division Thomas Perry,Building Commissioner 200 Main Street, Hyannis,MA 02601 www.town.barnstable.ma.us Office: 508-862-4038 Fax: 508-790-6230 May 24, 2004 Edward R. Gargiulo Gargiulo/Rudnick, LLP 766 Falmouth Rd. Madaket Place, Suite A-6 Mashpee, MA 02649 Re: 28 Little River Rd., Cotuit,MA Po Dear Atty. Gargiulo: This letter is in response to your letter of April 7, 2004. I agree with what has been said in the past and feel that this pier should be removed due to the damage it sustained last winter. In order to remove this present pier a building permit must be applied for so that there can be a written record of its removal. Sincerely, Thomas Perry Building Commissioner AW/TP 4 RICHARD A GARGIULO GARGIULO/RUDNICK,LLP BOSTON OFFICE EDWARD R.GARGIULO ATTORNEYS AT LAW MARIELISE KELLY* 766 FALMOUTH ROAD(RT.28) 66 LONG WHAR CONSTANCE L.RUDNICK BOSTON,MA 02110 PATRICIA NOYES-CORRIGAN MADAKET PLACE, SUITE A-6 TELEPHONE(617)742-3833 JOHN H.BEE MASHPEE,MASSACHUSETTS 02649 TELECOPIER(617)523-7834 JOSEPH F.CAVANAUGH,III GRIDLEY M.LOSEE,JR. ROBERT R.WALDO ALICE M.FORBES TELEPHONE(508).477-6400 OF COUNSEL TELECOPIER(508)477-0455 JOSEPH F.STRUMSKI,JR. E-MAIL: grg@grglaw.com •ALSO ADNff=RJ NY&NH April 7,2004 Tom Perry,Building Commissioner Town of Barnstable Building Division 200 Main Street Hyannis,MA 02601 RE: 28 Little River Road,Cotuit,Massachusetts. Dear Commissioner Perry: The pier'located at 28-Little River Road is iii a dangerous state of disrepair due to the winter icing. consistent-'with your request during Site Plan Review,the Cotuit Oyster Company,Inc.,is prepared to remove this structure forthwith. Please issue a letter of condemnation for same consistent with Mass. General Laws Chapter 91, Section 49B,which requires any"structure in waterways,which in the opinion of the Department(DEP)is dilapidated,unsafe,a menace to navigation or is a source of floating debris that is,or is liable to become a menace to navigation." This is not to be construed as a waiver of any interest Cotuit Oyster Company,Inc.,may have in an applied easement in the 28 Little River Road for dock access. Tllank you in advance for your atteriuo to this matter. Very truly yo , Edward R. Gargiulo ERG/mb cc. Jasonfp.'S Iva;Building Inspector Mr` Richard Nelson;•.Cotuit Oyster Company - Arlene Wilson,A. M. Wilson&Associates I PAP:\COTUIT OYSTER T,2LSON\MJB Thomas Perry letter 040401.doc o��/ MICHAEL D. FORD, ESQUIRE ATTORNEY AT LAW 72 MAIN STREET, P. O. BOX 665 WEST HARWICH, MA. 02671 TEL. (508) 430-1900 FAX(508) 430-8662 EMAIL: mdfesq@capecod.net Via Fax: (508)790-6230 First Class Mail June 18, 2004 Tom Perry, Building Commissioner Building Department 200 Main Street Hyannis, MA 02601 Re: 28 Little River Road Dear Mr. Perry: 20 Please be advised this office represents Arthur Perry and Judith Kozlowski, the owners of the property at 28 Little River Road. I write with respect to your letter to Attorney Gargiulo dated May 24, 2004 with.respect to the pier located on this property. As you know,�I sent you,under separate cover,information previously forwarded by me to the Massachusetts Waterways Commission which clearly supports the position that my clients are the holders of the license for the pier by virtue of their ownership of this property. Neither Attorney Gargiulo, nor any other agent of Cotuit Oyster Co., Inc. has any authority to act on behalf of my clients. Accordingly, I would request that you take no action regarding this matter without notice to me and my clients, as my clients are not only the owners of the property and the pier, but the holders of the Chapter 91 License. Also,be advised that my clients are currently in the process of retaining a contractor to bring the pier into a safe condition as a result of the damage that was sustained last winter. If you have any questions regarding this matter,please do not hesitate to contact me. Very truly yours, Michael D. Ford MDF/sfm p i IC ... ti •� . ,t�,; cc: Ruth Weil,Esq. �{ Robert Gatewood Edward Gargiulo, Esq. RICHARD A.GARGIULO GARGIULO/RUDNICK,LLP sOSTON OFFICE EDWARD R.GARGIULO ATTORNEYS AT LAW MARIELISE KELLY* 766 FALMOUTH ROAD(RT.28) 66 LONG WHARF CONSTANCE L.RUDNICK OSTON,MA 02110 PATRICIA NOYES-CORRIGAN MADAKET PLACE SUITE A-6 3833 - � - TELEPHONE(617)742-3833 JOHN H.BEE MASHPEE,MASSACHUSETTS 02649 ( ) - JOSEPH F.CAVANAUGH,III TELECOPIER 617 5�3 7834 GRIDLEY M.LOSEE,JR. ROBER T R.W ALDO ALICE M.FORBES TELEPHONE(508)477-6400 OF COUNSEL TELECOPIER(508)477-0455 JOSEPH F.STRUMSKI,JR. E-MAIL @S@grglaw.com ,t •AL-10 ADM=N NY B NH April 7,2004 Tom Perry,Building Commissioner Town of Barnstable Building Division 200 Main Street Hyannis,MA 02601 RE: 28 Little River Road, Cotuit,Massachusetts Dear Commissioner Perry: The pier located at 28 Little River Road is in a dangerous state of disrepair due to the winter icing. Consistent with your request during Site Plan Review,the Cotuit Oyster Company,Inc.,is prepared to remove this structure forthwith. Please issue a letter of condemnation for same consistent with Mass. General Laws Chapter 91, Section 49B,which requires any"structure in waterways,which in the opinion of the Department(DEP)is dilapidated, unsafe, a menace to navigation or is a source of floating debris that is, or is liable to become a menace to navigation." This is not to be construed as a waiver of any interest Cotuit Oyster Company,Inc.,may have in an applied easement in the 28 Little River Road for dock access. Thank you in advance for your attention to this matter. Very truly yours, Edward R. Gargiulo ERG/mb cc: Jason P. Silva,Building Inspector Mr.Richard Nelson,Cotuit Oyster Company Q Arlene Wilson,A. M. Wilson&Associates P:\COTUIT OYSTERNELSONIMJB Thonnu Perry letter 04040 Ldoc RICHARD A-GARGIULO GARGIULO/RUDNICK,LLP BOSTON OFFICE EDWARD R.GARGIULO ATTORNEYS AT LAW MARIELISE KELLY* 766 FALMOUTH ROAD(RT.28) 66 LONG WHARF' CONSTANCE L.RUDNICK BOSTON,MA 02110 PATRICIA NOYES-CORRIGAN MADAKET PLACE,SUITE A-6 TELEPHONE(617)742-3833 JOHN H.BEE' MASHPEE,MASSACHUSETTS 02649 TELECOPIER(617)523-7834 JOSEPH F.CAVANAUGH,III GRIDLEY M.LOSEE,JR ROBERT R WALDO ALICE M.FORBES TELEPHONE(508)477-64W OF COUNSEL TELECOPIER(508)477-0455 JOSEPH F.STRUMSKI,JR E-MAIL: grg@grglaw.com •ALSO ADW=INNY&NH May 13,2004 CERTIFIED MAIL RETURN RECEIPT REQUESTED Tom Perry,Building Commissioner Town of Barnstable Building Division 200 Main Street Hyannis,MA 02601 RE: 28 Little River Road,Cotuit,Massachusetts Dear Commissioner Perry: To date,I have'not had a response to my correspondence to you dated April 7,2004, a copy of which is attached. Please,advise at your earliest opportunity. Very truly yours Edward R. Gargiulo ERG/mb Enclosure cc: Jason P. Silva,Building Inspector Mr. Richard Nelson,,Cotuit Oyster Company Arlene Wilson,.A.M. Wilson&Associates PX0TUIT OYSTER NELSONMB Thomas Peny letter 2 040513.doc -T:Wk4 rOF BAt NSTI BLE 5310 Portsmouth Road Bethesda, Maryland 2081110V 30 PM 56 May 27, 2003 i Mr. Jason P. Silva, Building Inspector Regulatory Services, Building Division Town of Barnstable 200 Main Street Hyannis, Massachusetts 02601 . Re: Pier at 28 Little River Road Cotuit, Massachusetts 02635 Your Letter to Joyce Moore, dtd`May 2, 2003 Dear Mr. Silva: This letter is to confirm in writing the message my wife, Judith Kozlowski, left with you on May 7, 2003 upon receipt of a copy of your May 2°a letter to Joyce Moore, trustee for the previous owner of 28 Little River Road. Judith left the message that, first we appreciate your notification that the pier was found in unsafe condition, and second we were in the process of having repairs made to the pier. After detection of the problem by ourselves and several inspections by third parties,'it appeared that the damage sustained by the pier was primarily damage to the posts supporting the decking (as opposed to the decking itself) and that some of the posts required replacing. My wife joins me in thanking you for bringing the condition of the pier to our attention. Sincerely, Arthur Perry, J n c Y { j^ak .irk ?;G f srr• } "`i <° C ;'t �( T x r,:f`d „.. �F1HE Tph, Town of Barnstable Regulatory Services BAmsrAB �'MASS. ` Thomas F.Geiler,Director 1639. y nss. �AIFn +6. Building Division Tom Perry, Building Commissioner 200 Main Street, Hyannis,MA 02601 Office: 508-862-4038 Fax: 508-790-6230 May 2,2003 Joyce Moore PO Box 296 Osterville,MA 02655 RE: Oyster Company,28 Little River Road Dock condition Dear Joyce Moore: On April 30,2003 I received a call from a concerned boater that a dock located at 28 Little River Road is in an unsafe condition. I inspected the dock that same morning and came to the conclusion that the dock is unsafe. I placed a notice at the location that warns anyone as to the docks safety and orders all persons to keep off the dock. I don't mean to alarm you but the dock is in serious need of repair. I suggest you decide to either repair or remove the dock in the interest of public and private safety. When you decide to take action please contact the building department and the conservation department for review of the repair or demolition of the dock. Building: (508) 862-4025 Conservati6n: (508) 862-4046 Thank you in advance for your cooperation in resolving this matter. Sincerely Jason P.Silva Building Inspector COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, S.S. SUPERIOR COURT DE C.A. NO.: 2005-00365 ARTHUR PERRY and JUDITH KOZLOWSKI, Husband and Wife, I PLAINTIFFS V. THOMAS PERRY, in his capacity as the Building Commissioner for the TOWN OF BARNSTABLE, and TIMOTHY RODRIQUE, SEAN MACDONALD and STANLEY SHUMAN, acting in their capacity as members of the MASSACHUSETTS BUILDING CODE APPEALS BOARD, and COTUIT OYSTER CO., INC., DEFENDANTS COTUIT OYSTER CO., INC.'S OPPOSITION TO PLAINTIFFS' MOTION FOR STAY AND PRELIMINARY INJUNCTIVE RELIEF AND MEMORANDUM OF LAW IN SUPPORT NOW COMES the Defendant Cotuit Oyster Co., Inc. and moves this Honorable Court to deny Plaintiffs' Motion for Stay and Preliminary Injunction which seeks to enjoin the Cotuit Oyster Co., Inc. from following an order of the Massachusetts Building Code of Appeals Board requiring the Cotuit Oyster Co., Inc. to demolish a dilapidated which pier which the Cotuit Oyster Co., Inc. owns that constitutes a serious, imminent public safety hazard. See ExlubitA (photographs taken July, 2005): As further reason for this opposition, the Cotuit Oyster Co., Inc. states as follows: I. Plaintiffs cannot demonstrate any likelihood of success on the merits because, as a matter of law, under 310 C.M.R. 9.23, the Chapter 91 Waterways permit governing the placement of the pier does not tun with the land pursuant to the express provisions of 310 C.M.R. 9.23 (1), but rather fits within a statutory exception that prevents a license from running with the 1 land when the license is issued to a person or entity other than the real property owner. II. Plaintiffs cannot demonstrate a likelihood of success on the merits because of a contract recorded at the Registry of Deeds between the Cotuit Oyster Co., Inc. and the Plaintiffs' predecessors in title in which it is agreed that the pier is the property of the Cotuit Oyster Co., Inc. III. The Chapter 91 Waterways license at issue is Invalid and Void and, therefore, as a matter of law, no repair or reconstruction can take place a. The Existing Commercial Chapter 91 License at issue is Invalid and Void and,therefore, as a matter of law no repair or reconstruction can take place because the Plaintiffs seek to make a change in use from"commercial"use to a private residential use; b. The Chapter 91 License at issue is Invalid and Void and,therefore, as a matter of law no repair or reconstruction can take place because the plaintiffs seek to make"substantial structural alteration"of the existing pier; c. The Chapter 91 License at issue is Invalid and Void and,therefore, as a matter of law no repair or reconstruction can take place the structure authorized by the license has not been maintained in"good repair in accordance with the terms and conditions of the license." IV. There is a compelling public interest in permitting the immediate demolition of the dock because there is an imminent danger to public safety posed by the present structure. V. There is a compelling public interest which will suffer if this Court permits Plaintiffs to immediately construct or reconstruct a private, recreational pier in place of the existing, abandoned commercial.pier because the public will be denied a right of due process, and an opportunity for comment at public hearing, on whether any such private, residential pier should be permitted and, if so, with what restrictions. VI. The Cotuit Oyster Co, Inc. will suffer irreparable, economic harm to its business if Plaintiff is permitted to effect, substantial alteration of the existing commercial dock and is permitted to convert the existing commercial dock to a private,recreational dock because of its proximity to the Cotuit Oyster Co., Inc.'s oyster grants immediately.adjacent to the existing pier and the potential for harm to its 2 aquacultural operations by recreational boating activity in that location. VII. The Board's decision was neither arbitrary, capricious or contrary to law. VIII. The decision of this court in the Declaratory Judgment counterclaim as to who owns the dock and/or holds the dock permit, will moot the issue of whether the Board's decision was arbitrary, capricious or contrary to law. Procedural History Plaintiffs' appeal arises out of a decision of the Massachusetts Building Code Appeals Board ordering the demolition of a dangerous and dilapidated pier at 28 Little River Road, Cotuit, Massachusetts. Plaintiffs have filed a single count complaint under the State Administrative Procedures Act, M.G.L.c. 30A §14 alleging that the decision is arbitrary and capricious and in excess of the Board's statutory authority. The Cotuit Oyster Co., Inc., a named Defendant in the above- captioned action, has filed a counter-claim,pursuant to the Massachusetts Declaratory Judgment Act, seeking a declaration by this court that: 1) The Cotuit Oyster Co., Inc. is the holder of the Chapter 91 Waterways permit which permitted placement of the pier at 28 Little River Road; 2) The Cotuit Oyster Co., Inc. is, and remains, the owner of the physical structure which constitutes the pier as a result of an signed agreement with the Plaintiffs' predecessors in title which is recorded with the registry of deeds; 3) Title to the permits and/or pier did not revert to the landowner upon the expiration of the tenancy between the landowner and the Cotuit Oyster Co., Inc. 4) The Cotuit Oyster Co., Inc., as a result of its ownership of the permit and pier, has right to remove the structure; 5) As a result of the recorded instrument vesting title to the pier in the Cotuit Oyster Co., Inc.,the Cotuit Oyster Co., Inc. has an implied easement to access the structure; 3 6) That Plaintiffs are estopped to deny either the ownership of the structure in the Cotuit Oyster Co., Inc. or the easement to access the structure as a result of the recordings on file with the registry of deeds; 7) The existing Chapter 91 license permitting the existence of the pier is void or will become void in the event Plaintiffs seek to alter the permitted commercial use to a private, residential use; 8) The existing Chapter 91 license permitting the existence of the pier is void or will become void in the event Plaintiffs seek t commence a"repair"which would constitute a substantial, structural alteration of the existing pier; 9) The decision of the Massachusetts Building Board of Appeals was neither arbitrary, nor capricious nor in violation of law. Standard for Issuance of Preliminary Injunction It is well established that the moving party bears the burden of establishing the elements necessary for the issuance of an injunction. Packaging Industries Group, Inc. v. Cheney, 380 Mass. 609, 616, 618 (1980). "The judge initially evaluates in combination the moving party's claim of injury and chance of success on the merits. If the judge is convinced that failure to issue the injunction would subject the moving party to a substantial risk of irreparable harm,the judge must then balance this risk against any similar risk of irreparable harm which granting the injunction would create for the opposing party. What matters as to each party is not the E raw amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm in,light of the party's chance of success on the merits. Only where the balance between these risks cuts in favor of the moving party may a preliminary injunction properly issue."Packaging Industries Group, Inc. v. Cheney, 380 Mass. 609, 616, 618 (1980) (citations 4 omitted). Additionally, when the party seeks to enjoin governmental action, as it does here, i.e. the decision of the Massachusetts Board of Building Appeals, a judge is also "required to determine that the requested order promotes the public interest, or, alternatively, that the equitable relief will not adversely affect the public." Commonwealth v. Mass. CRINC, 392 Mass. 79, 89, 466 N.E.2d 792 (1984); Siemens Building Technologies, Inc. vs. Division Of Capital Asset Management, 439 Mass. 759 (2003).' An injunction should protect only against "harm that final relief cannot redress," by creating or preserving, in so far as possible, a state of affairs such that after the full trial, a meaningful decision may be rendered for either party." Note, Developments in the Law, Injunctions, 78 Harv. L. Rev. 994, 1056 (1965). The only rights which may be irreparably lost are those not capable of vindication by a final judgment, rendered either at law or in equity. See Radio Hanover, Inc. v. United Utils., Inc., 273 F. Supp. 709, 713 (M.D. Pa. 1967) (preliminary injunction denied in light of equitable relief available after trial on the merits). Irreparable harm is absent if trial on the merits can be conducted before the injury occurs. See generally 11 C.A. Wright&A.R. Miller,supra § 2948, at 431-441. Packaging Industries Group, Inc. v. Cheney, 380 Mass. 609, 618, n.I 1 (1980). On appeal, a reviewing court "decide[es] whether the judge applied proper legal standards and whether there was reasonable support for his evaluation of the factual questions." Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 399 Mass. 640, 642, 506 N.E.2d 140 (1987), citing Packaging Idus. Group, Inc. v. Cheney,supra at 615. Where there is no dispute regarding the facts of the case and no credibility determinations on which an Appeals Court would defer to the judge, the Appellate Court draws its own conclusions from the evidence in the record. Siemens Building Technologies Inc.vs. Division Of Capital Asset Management,439 Mass. 759(2003). 5 Argument I. Plaintiffs cannot demonstrate any likelihood of success on the merits because, as a matter of law, under 310 C.M.R. 9.23, the Chapter 91 Waterways permit governing the placement of the pier does not run with the land pursuant to the express provisions of 310 C.M.R. 9.23 (1), but rather fits within a statutory exception that prevents a license from running with the land when the license is issued to a person or entity other than a real property owner. The Chapter 91 license in question is clearly issued to "Richard C. Nelson, d.b.a. Cotuit Oyster Co., Inc."Z See Exhibit B. It was granted for the limited use of "commercial docking and boating." See Exhibit B. It is noteworthy, and not by error or omission, that the Chapter license was not issued in the name of the Perry/Kozlowski's or any of their predecessors in title at 28 Little River Road. A Chapter 91 Waterways application requires the applicant to identify 1) the owner of the land and 2) the name of the pier applicant. Thus, it is implicit in the application, as well as in 310 C.M.R. 9.23 that the landowner is not always the Chapter 91 permit applicant or permit holder. See Exhibit`C (sample-Chapter 91 Application). In the case at bar, because the license was issued in the name of the Cotuit Oyster Company, Inc., and does not reference the present or prior owner of the real estate at 28 Little River Road, this license does not run with the land, rather it is personal to the corporation,the Cotuit Oyster Co., Inc. The Code of Massachusetts Regulations is clear on this point: "Unless otherwise provided in the license, a valid license shall run with the land and shall automatically be transferred upon a change of ownership of the affected property within the chain of title of which the license has been recorded." 310 C.M.R. 9.23 (1). See Ekhibit-D (copy of 310 C.M.R 9.23 (1). In the case of the Cotuit Oyster 2 It is important to note that the Cotuit Oyster Co.,Inc. is a business of historic significance in the Town of Barnstable and has been in continuous existence at Little River Road since at least 1894. See Exhibit N (Excerpt of history of Cotuit Oyster Co.,Inc. as published by the.Town of Barnstable.) 6 Company, the express terms of the license dictate that the license does not run with the land at 28 Little River Road where the Commonwealth of Massachusetts has provided in the license that the Cotuit Oyster Company, and not the landowner, is the licensee on the face of this commercial chapter 91 license. By contrast, Chapter 91 permits which run with the land specifically reference the real property owner on the face of the Chapter 91 license. Plaintiffs' argument ignores the plain meaning of the language in the C.M.R. regarding "Unless otherwise provided in the license, a valid license shall run with the land and shall automatically be transferred-upon a change of ownership of the affected property within the chain of title of which the license has been recorded." 310 C.M.R. 9.23 (1). This court,employing well established principles of statutory construction, should impart meaning to the phrase "unless otherwise provided in the license" and, rule that this license on its face provides that it is issued to someone other than the landowner and,therefore, does not run with the landowner's title. III. Plaintiffs cannot demonstrate a likelihood of success on the merits because of a contract recorded with the registry of deeds between the Cotuit Oyster Co., Inc. and the Plaintiffs predecessors in title, in which it is agreed that the pier is the property of the Cotuit Oyster Co.,Inc. The fact that the Chapter 91 license runs to the Oyster Company and not with the land at 28 Little River Road is consistent with the history between the Oyster Company and it's former landlord, as well as the express terms of the recorded contract between the Cotuit Oyster Co.,Inc. and its predecessors in title which is recorded with the registry of deeds. See Exhibit E(recorded lease);: The pier located at 28 Little River Road is,and always has been, the property of the Cotuit Oyster Company. It was acknowledged as the Company's property in the lease existing between the Perry/Kozlowski's predecessor in title,the Brackett Trust and the Cotuit Oyster Company. See Exhibit E(recorded lease). The lease states, in pertinent 7 part: "Parties hereto hereby acknowledge that the pier or dock on said property is the p opeM of the lessee Me Cotuit Oyster Co.,Inc]." See,Exhibit,E(recorded lease). Contrary to the Plaintiffs' assertions, there is nothing in the lease which states that upon termination of the lease the property rights in the pier would revert to the landowner, although the parties could have elected to add such a provision to the contract had that been their intention. Similarly,there is no legal authority for the proposition that the ownership of the pier reverts automatically to the landowners upon termination of lease. Consistent with this principle is the holding in Salem v. Batchelder, a case with salient factual similarities to the case at bar. In Batchelder, the court enforced the terms of a written real estate lease between the parties that provided that upon the termination of the lease title to certain removable piers and docks would vest in the landlord, the City of Salem. Id. _at 382-3.83. The Supreme Judicial Court upheld the express terms of the lease and held that the agreement was enforceable to vest title to the float and runway in the City upon expiration of the lease. Salem v. Batchelder, 267 Mass. 381, 384 (1929). It is further noteworthy that Plaintiffs have not identified any case where there is a highly regulated activity such as placement of a pier which is subject to legal permitting requirements, where ownership of the physical structure and holding of the permit to construct that structure exist in separate persons or entities. Contrary to Plaintiffs' assertion, the pier does not constitute a"trade fixture" under the terms of the lease. Plaintiffs argue that the pier is a trade fixture under the terms of the lease which the Cotuit Oyster Co., Inc. was required to remove at the end of the lease under-Section, I of the Lease relating to Surrender of the premises. This is inconsistent with the terms of the lease, as well as established principles for contract 8 interpretation where the terms"trade fixture" or"fixture" are not defined in the lease and the drafter of the lease clearly differentiated between"trade fixture" "fixture" and the "pier." By way of example only, Section IX of the lease governing repairs states that the Cotuit Oyster Co., Inc. was required to maintain the leasehold premises,including fixtures, in good repair. See Exhibit E,p.10. By contrast, the same provision governing repairs provides that: "Parties hereto hereby acknowledge that the pier or dock on said property is the property of the lessee [The Cotuit Oyster Co Inc In the event it is destroyed by storm or otherwise the Lessee may, but shall not be obligated to replace the same. " See Exhibit E..(recorded lease,p 11). The Cotuit Oyster Co., Inc. further challenges whether the pier constitutes a "fixture" or"trade fixture"under Massachusetts law. As a physical structure which is capable of placement only after proper permitting and compliance with the conditions of the permit, a pier is a structure which is materially different in type and quality than traditional "fixtures"within the meaning of Massachusetts law. In any event, whether an item is a fixture or a removable chattel is a question of fact. First, Plaintiffs incorrectly claim that M.G.L.c. 106 §2A et seq. mandates that fixtures not timely removed upon the termination of a leasehold constitute fixtures owned by the real estate owner. Contrary to this assertion, M.G.L.c. 106 §2A et seq. does not relate to fixtures, but rather is the Commonwealth's codification of the Uniform Commercial Code which is wholly inapplicable to the facts and circumstances in case at bar. See Teitlebaum v.-Hallmark Cards, Inc., 25 Mass. App. Ct. 555, 559 (1998)(M.G.L.c. 106-§2 governs "transactions in goods"); Drauleau v. Center Capital Corp., 49 Mass. App. Ct. 783,.786 (2000)(discussing leases of goods under the Uniform Commercial Code). 9 Next, the series of cases cited by Plaintiffs in support of the proposition that the pier is a fixture, which if not timely removed, becomes the property of the landowner are distinguishable. At the outset, none of those cases relate to permitted piers or docks and address the question of whether they constitute fixtures,personalty or somethingelse. Even assuming arguendo that a pier was a fixture, Massachusetts common law will recognize an agreement between the parties about who holds title to the fixture. The Supreme Judicial Court stated: "The rule is well settled that fixtures annexed to real estate by a tenant become a part of it. They may be removed by the tenant during the term, but if, without having done so, he voluntarily quits the premises at the expiration of his term without any agreement with his landlord,he cannot afterward claim them as against the owner of the land. Noyes v. Gagnon, 225 Mass. 580, 585 (1917)(emphasis added) citing Wall v. Hinds, 4 gray, 256, 64 am. Dec. 64; Bliss v. Whitney, 9Allen, 114, 85 Am. Dec. 745; Watriss v. NationalBank of Cambridge 124 mass. 571, 26 Am. Rep. 694. In the case at bar, there was an express agreement with the landlord as reflected in the recorded lease that the Cotuit Oyster Co., Inc. was the owner of the pier. Accordingly, the Cotuit Oyster Co., Inc. may continue to claim ownership of the pier notwithstanding the expiration of the lease. IV. The Chapter 91 License at issue is Invalid and Void and, therefore, as a matter of law no repair or reconstruction can take place Everi assuming arguendo that the Chapter 91 license issued to the Cotuit Oyster Company ran with the land at 28 Little River Road(which it clearly does not),the Perry/ Kozlowki's claim of ownership of the pier and/or chapter 91 license is wholly without merit on entirely independent grounds. Pursuant to 310 C.M.R. 9.23 (1) only a" . . . a valid license 10 shall run with the land and shall automatically be transferred upon a change of ownership of the affected property." The Chapter 91 license at issue is void and no longer valid. a. The Existing Commercial Chanter 91 License at issue is Invalid and Void and,therefore, as a matter of law no repair or reconstruction can take place because the Plaintiffs seek to make a change in use from "commercial" use to a private residential use; The Chapter 91 license,License No. 8385, specifically states the sole permissible use for the pier is for"commercial docking and boating access to navigable waters." See Exhibit B. The Chapter 91 license issued to the Cotuit Oyster Co.,Inc. included "Standard Waterways License Conditions." See Exhibit B. Condition 43 states as follows: "Any change in use or any structural alteration of any structure or fill authorized herein shall require the issuance by the Department of a new Waterways license in accordance with the provisions and procedures established in Chapter 91 of the Massachusetts General Laws. Any unauthorized substantial change in use or unauthorized substantial structural alteration of any structure or fill authorized herein shall render this Waterways license void." See Exhibit B. See also 310 C.M.R. 9.26(2)(b)(2) (Chapter 91 licenses are void if "there has been an unauthorized substantial change in use"). See also Broude v. Mass Bay Lines Inc., Lawyer's Weekly No. 14-059-05, (Suffolk Land Court,Trombly, J.)(June 27, 2005) (28- page decision enjoining conversion of use for recreational pleasure craft to new use involving commercial use of marina and piers). The Perry/Kozlowski's stated desire to use the property at 28 Little River Road as a single-family residence with boat storage renders the Chapter 91 license void. It is clear from the Perry/Kozlowski's Town of Barnstable Assessor's Department filing dated December 13, 2002, that their intended use for the property as a"single-family home and boat storage" is wholly inconsistent with the formerly licensed use of "coininercial docking and boating." See Exhibit F. Their attempts to usurp the Chapter 11 91 license from the Cotuit Oyster Co., Inc. is merely a thinly veiled attempt to obtain a private dock for their personal, recreational use. The Cotuit Oyster Company vacated 28 Little River Road and the pier attached thereto, more than three (3) years ago, as of May 31, 2002. 28 Little River Road and the pier have not been-used for any commercial purpose (or for any other use) since that date. Because there has been no commercial use of the structure for more than two (2) years,. the license is void. It is indisputable since the Cotuit Oyster Company's operations ceased on 28 Little River Road on or about May 31, 2002 that there has been a substantial change in use, i.e. an abandonment. Accordingly, the Chapter 91 license is void. Ironically, it was the Perry/Kozlowski's conduct that caused the abandonment of the pier and the resultant voiding of the Chapter 91 license they now seek to claim as their own. The Perry/ Kozlowski's denied the Cotuit Oyster Company, Inc. land-access to the pier at 28 Little River Road and, in writing, threatened the company's principals with criminal. prosecution for trespass if such should occur. See.Exhibit G. Accordingly, the Cotuit Oyster Co., Inc. could no longer effectively use the pier for commercial purposes as specified in the license, nor could the company effectively maintain the structure without land access to the pier. Since the Cotuit Oyster Co., Inc.'s abandonment of its use of the structure, it has not been maintained by any party for any purpose. 310 C.M.R. 9.22 (1)provides in part that the "structure.must be maintained in good working order for the uses authorized in the license." In this case,the pier was required to be maintained for"commercial docking and boating"purposes. The structure was, in fact, not maintained and has 12 become a dangerous structure. C.M.R. 9.22 governs the maintenance and repair of piers. The structure may not now be repaired, in any event, by any party unless it is done for the purposes of restoring it to a commercial docking and boating because the CMR permits restoration of a structure only if"no change in use occurs." 310 C.M.R. 9.22 (1) (c). Since there has been a marked change in use, i.e.the Cotuit Oyster Company's abandonment of the pier and/or the Perry/Kozlowski's apparent desire for converting the pier to a private, recreational use,the chapter 91 license is void and the pier cannot now be restored. b. The Chapter 91 License at issue is Invalid and Void and,therefore, as a matter of law no repair or reconstruction can take place because the plaintiffs seek to make"substantial structural alteration" of the existing pier; The Chapter 91 license issued to the Cotuit Oyster Co.,Inc. included "Standard Waterways License Conditions." See Exhibit B. Condition 43 states as follows: "Any change in use or any structural alteration of any structure or fill authorized herein shall require the issuance by the Department of a new Waterways license in accordance with the provisions and procedures established in Chapter 91 of the Massachusetts General Laws. Any unauthorized substantial change in use or unauthorized substantial structural alteration of any structure or fill authorized herein shall render this Waterways license void." See Exhibit B. The Cotuit Oyster Co.,Inc. has appended an affidavit of George Gilmore,a licensed contractor, specializing in marine construction that is familiar with the existing pier at 28 Little River Road. See ExhibitH. Mr. Gilmore has expressed the opinion that the existing pier is in such a state of decay,that it is incapable of being repaired. Any attempt at repair would necessarily involve a substantial structural alteration which would void the existing license and require the Perry/Kozlowskis to seek a new license for their proposed new construction. Mr. Gilmore's opinion is buttressed by May 27,2003 correspondence from Plaintiff Arthur Perry to the Building Inspector where he admitted that some of the support posts were in need 13 of replacing. See Exhibit-1. Since more than 2 years have elapsed since that admission significant additional deterioration and damage has occurred rendering the pier incapable of use without major structural alteration. c. The Chapter 91 License at issue is Invalid and Void and,therefore, as a matter of law no repair or reconstruction can take place the structure authorized by the license has not been maintained in"good repair in accordance with the terms and conditions of the license." The Chapter 91 license issued to the Cotuit Oyster Co.,Inc. included "Standard Waterways License Conditions." See Exhibit B. Condition#5 states as follows: "The structures and or fill authorized herein shall be maintained in good repair and in accordance with the terms and conditions stated herein and the details indicated on the accompanying license plans." Likewise,Massachusetts General Laws, Chapter 91, Section 49B directs that the Department"shall remove or cause to be removed any wharf or pier located in the tide waters or tide lands of the Commonwealth,which in the opinion of the Department is dilapidated,unsafe, a menace to navigation or is a source of floating debris that is,or is liable to become, a menace to navigation." THE PLAINTIFFS HAVE FAILED TO ALLEGE ANY LEGALLY, COGNIZABLE IRREPARABLE HARM. a. To the extent that Plaintiffs' allege they would be deprived of the use and enjoyment of the pier if it is demolished,this argument is factually absurd., Presently,no party is able to enjoy the use or the enjoyment of the pier due to its dangerous,dilapidated condition. Plaintiffs have offered no evidence that the pier is capable of repair without substantial structural alteration. Although Plaintiffs may have a desire to structurally alter the pier and convert the pier to a private,residential use from a commercial use,no such change may occur without proper permits. Plaintiffs may or may not ever 14. obtain the appropriate permits. Plaintiffs' mere desire or expectancy does not give rise to any irreparable harm. b. To the extent that Plaintiffs allege that their expectation at the time of purchase of the real estate was that they owned the pier,this does not state a claim of irreparable harm The undisputed facts in this case establish that the Perry/Kozlowskis took title to this property with the actual knowledge of Cotuit Oyster Co.,Inc.'s claim of ownership of the pier and the pier permit. As previously stated,both the lease and the Chapter 91 permit are recorded with the registry of deeds thereby putting the public at large on notice of the Cotuit Oyster Co.,Inc.'s claim of ownership of the pier, as well as its claim to hold title to the Waterways permit as opposed to the real estate owner. In 2002,the Brackett Trust's attorney,Peter O'Keeffe,recognized the pier to be the property of the Cotuit Oyster Company. In fact,Mr. O'Keeffe caused its value to be estimated by AGM Contractors who valued it at$19,500.00,offering the Cotuit Oyster Company,Inc. $15,000.00 for the existing pier structure. See Exhibit E. Plaintiffs Perry-Kozlowski were on actual notice of this fact of attempted settlement as of June 21,2002 because their counsel was copied on the cover letter from Mr. O'Keeffe and the estimate from AGM Contractors. The Cotuit Oyster Company's pier was never sold to the Brackett Trust or to anyone else and no settlement occurred. The closing on the property at 28 Little River Road transferring title to the Perry/Kozlowski's occurred on August 9,2002. See Exhibit J. Therefore,the Plaintiffs took title with actual notice and full knowledge that the pier belonged to the Cotuit Oyster Company. To the extent that Plaintiffs relied on a letter dated June 19,2002,from Mitch Ziencina,a clerk with unknown credentials with the Wetlands and Waterways Program,to Joyce Moore,.real estate broker and former part owner of 28 Little River Road,purporting to state an opinion that the 15 Chapter 91 permit ran with the land,this likewise does not state a claim for irreparable harm. See Exhibit K. Had Plaintiffs wanted a definitive determination of the ownership rights in the dock and/or in the dock permits,they could have chosen to commence an appropriate declaratory judgment proceeding in this court prior to taking title. The fact that the Plaintiffs chose to run the risk that their ownership opinion was wrong does not state a claim for irreparable harm in the context of this action. Likewise,the fact that a real estate broker involved in the transaction may have misrepresented and/or provided the Perry/Kozlowskis with incorrect information about the status of ownership of the dock and its permits,may give rise to a cause of action against the broker,but,again,does not give rise to legally cognizable irreparable harm in this case. C. To the extent that Plaintiffs allege that the demolition of the pier would cause the loss of an essential.property right,this argument runs directly contrary to their own argument that a Chapter 91 permit does not create any property right in any party. The Cotuit Oyster Co.,Inc. contends,as set forth above,that the Plaintiffs do not have any property interest in the dock or in the permits. Plaintiffs' argument that a demolition of the useless dock would deprive them of property interest is paradoxical where it argues that the Chapter 91 permit could not create a property right in the Cotuit Oyster Co.,but apparently could create an essential property right in Plaintiffs. The Cotuit Oyster Co.,Inc. contends that the Chapter 91 license creates a property right in no one,but does create a right of commercial use in the Cotuit Oyster Co.,Inc. In any event,to the extent the Plaintiffs are deemed to hold a property interest after trial or summary judgment in this case,their rights can be vindicated at that time so no injunctive relief is appropriate. 16 V. There is a compelling public interest in permitting the immediate demolition of the dock because there is an imminent danger to public safety posed by the present structure. As is self-evident from the photographs of the pier, the decision of the Building Board of Appeals, as well as the position of the Town of Barnstable, there is no dispute that the existing dock is a public danger and hazard. The on-going effort by the Perry/Kozlowski's to obstruct the removal of this dangerous structure is inconsistent with the public interest. The private pecuniary interests of the Perry/Kozlowskis must yield to the compelling public interest in effectuating public safety. VI. There is a compelling public interest which will suffer if this Court permits Plaintiffs to immediately construct or reconstruct a private, recreational pier in place of the existing, abandoned commercial pier because the public will be denied a right of due process, and an opportunity for comment at public hearing, on whether any such private, residential pier should be permitted and, if so,with what restrictions. The Perry/Kozlowski's request to effectuate a so-called "repair" of the structure is a thinly-veiled attempt by the Appellees to build a new pier and use the power of this Court to attempt to by-pass the requirements of the local Conservation Commission, the State Department of Environmental Protection, the pier permitting process defined by M.G.L.c 91 and the myriad of other administrative and legal procedures required prior to installation of a new pier3. Plaintiffs will not suffer any irreparable harm by denial of a s The Perry/Kozlowskis are well acquainted with these procedural processes,and well established right of public participation, as they have vigorously used them to oppose the continued existence and operations of the Cotuit Oyster Co.,Inc. The Perry/Kozlowskis have.objected to the Cotuit Oyster Co.,Inc.'s activities and proposed.activities including a proposal to build a small work building and pier on 26 Little River Road before the Conservation Commission,the Board of Health,the Zoning Board of Appeals,the Waterways Commission,the State Department of Environmental Affairs,the Massachusetts Superior Court appealing the decision of the Conservation Commission in favor of the Cotuit Oyster Co., Inc. There is 17 preliminary injunction because, they can seek to construct a recreational pier anew assuming Plaintiffs obtain the proper permits and approvals from the appropriate governmental entities. Although the Plaintiffs allege that they have a commitment from the Town of Barnstable Building Inspector to issue a building permit to repair the structure, this permit, standing alone, is wholly inadequate to permit reconstruction of the pier and/or substantial alteration of the existing pier. Other entities which must be involved in the approval or permitting process include, but not limited to: a. the Barnstable Conservation Commission, b. the Commonwealth of Massachusetts Wetlands Protection Division, c. the Barnstable Zoning Board of Appeals, d. the Commonwealth of Massachusetts for issuance of a Chapter 91 waterways license; and e. The Army Corps of Engirieers. As part and parcel of the administrative approval process, there is a right, by members of the general public,to participate in hearings related to the pier approval. This a compelling public interest will suffer.if this Court permits Plaintiffs to immediately construct or reconstruct a private, recreational pier in place of the existing, abandoned commercial pier because the public will be denied a right of due process, and an opportunity for comment at public hearing, on whether any such private, residential pier should be permitted and, if so, with what restrictions. also an appeal by the Cotuit Oyster Company pending before this court based on a denial of certain permits by the Zoning Board of Appeals. By way of background,the Cotuit Oyster Co., Inc.contends that the purpose in the Perry/Kozlowski's vigorous attempts to litigate against the Cotuit Oyster Co.,Inc. is to cause the company financial distress and/or put it out of business so that the Perry/Kozlowski's may exercise a deeded right of first refusal on the Cotuit Oyster Property as 26 Little River Road,thereby enlarging and enhancing the value and potential uses of their own parcel at 28 Little River Road. See Exhibit L(deeded right of::first refusal iri Perry/.Kozlowskis' chain of fide). 18 This court should not permit the Perry/Kozlowskis to use this court to deny the public a right to be heard on the issue of the reconstruction of the pier, nor should this court permit the Perry/Kozlowskis to circumvent well established administrative channels required of all applicants for construction or reconstruction of piers. To do so would be to undermine the integrity of the existing administrative scheme and to give the Perry/Kozlowskis an advantage not available to other similarly situated applicants. Further, any such grant of authority would constitute reversible error by this Court. Additionally, the permitting process will take a substantial.period of time and such delay is inconsistent with the public interest of immediate removal of a safety hazard. VII. The Cotuit Oyster Co, Inc.will suffer irreparable, economic harm to its business if Plaintiff is permitted to effect substantial alteration of the existing commercial dock and is permitted to convert the existing commercial dock to a private, recreational pier. The Cotuit Oyster Co., Inc.'s oyster grants are located immediately adjacent to the existing pier. The Cotuit Oyster Co., Inc. has attached an affidavit of the President of the Cotuit Oyster Co., Inc. which avers that if the dock is not torn down,the company will suffer irreparable damage to shellfish seed stock and hatchery equipment. See Exhibit M Likewise, if the Perry/Kozlowskis are permitted to "repair"the pier and convert it to a recreational pier, the aquacultural operations of the Cotuit Oyster Co., Inc. will also suffer irreparable damage to its crop, equipment and economic 19 viability flowing directly from increased recreational boating activity in that location. VII. The Board's decision was neither arbitrary, capricious or contrary to law. In the case at bar,the Town of Barnstable Building Inspector refused _ to issue a building permit for the removal of the dock by the Cotuit Oyster Co., Inc. Although the Inspector conceded the pier was dangerous, he declined to take any action on the request for building permit or to otherwise take action to protect the public interest. This was a failure to act by the building commissioner. Any person who is aggrieved by a building commissioner's failure to act by non-issuance of a building permit, may seek relief from the Building Board. Contrary to Perry/Kozlowski's assertion, this case is not governed by M.G.L.c. 143 §6— 10. Those sections govern demolition permits and the right of a party aggrieved by the issuance of a demolition permit to appeal to a court of competent jurisdiction (as opposed to an appeal to the Building Board of Appeals). These sections, however, apply only where a building inspector has taken some action. When, as in this case, the Building Inspector fails or refuses to act (i.e. refuses to issue a building permit to demolish the pier), the sole right of relief to an aggrieved party such as the Cotuit Oyster Co., Inc. is to appeal to the Building Board of Appeals. See M.G.L.c. 143 §100 ("Whoever is aggrieved,by . . . a failure to act . . ."may appeal to the Building Board of Appeals. Thereafter, an aggrieved party dissatisfied by the relief afforded by that administrative body; may appeal to 20 the Superior Court pursuant to the administrative procedures act which has occurred in this case. Accordingly, this case was properly before the Board. . VIII. The decision of this court in the Declaratory Judgment counterclaim as to who owns the dock and/or holds the dock permit, will moot the issue of whether the Board's decision was arbitrary, capricious or contrary to law. To the extent that this Court issues a Declaration that one party or the other holds title to the dock and the dock license, the dispute before the Board will essentially be mooted and.either the Cotuit Oyster can demolish the dock or the Plaintiffs can seek to repair and convert the-dock to private use before the appropriate boards. Conclusion WHEREFORE, the Cotuit Oyster Co., Inc. respectfully requests that 1) this Honorable Court deny the Plaintiffs' requests for relief and 2) to the extent that this Honorable Court is inclined to permit Plaintiffs to repair the dock, that this Court stay its order pending an interlocutory appeal by the Cotuit Oyster Co., Inc. Respectfully submitted, The Cotuit Oyster Co., Inc. By its attorneys, f � f Ed a1VIf. argiulo B.B.O185720 Mariel se Kelly, Esq. B.B.O. #559595 GARGIULO /RUDNICK, LLP 66 Long Wharf Boston, MA 02110 21 (617) 523-7834 (tel.) 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MD 7i vr�p�r r � f a i .�- .� - l '�ca `� .-�.- ``rT aS�, sap _ RM '^`+ CIN 1 xnt 3 ..� k" tk ,€fi . ar- t � °�, ,'A��j�k,� 'YA 5�,k6{pr�i, �'.Sf � a x4:Ayr£�i��*4'`e� �c�' `k�.. 1 r' r. ,� � 1.i s "" x r x a t t 9! m `F e a r x i '� B 1;2 s� B BBC 12782 E'GOCIA 2864 01-- 1 4•—2 Cl O 0 2 02 = 01 Mtf T atm an>l> ralth Jaf assu c�Uor No. ' 8385 1 Richard C.Nelson,d.b.a.Cotuit Oyster Co., Inc. 9 f of-- Barnstable -- in the County of -- Barnstable -- and Commonwealth aforesaid, has applied to the Department of Environmental Protection for license to—maintain a dock&platform------ ---------------- T 0 and has submitted plans of the same;and whereas due notice of said application,and eic!he,time an d pla6p, f;vea f9F - hoagng thercoa, has been given, as required by law, to the -- Board of Selectmen -- of the Townof—Barnstable.---------------------------------------------------------—---------------------------------------- �,• NOVA, said Department, having heard all parties desiring to be heard, and having fully considered said C-) application,hereby,subject to the approval of the Governor,authorizes and licenses the said--•--------------- J Richard C.Nelson, d.b.a. Cotuit Oyster Co., Inc. --, subject to the provisions of the ninety-first chapter of ti the General Laws,and of all laws which are or may be in force applicable thereto, to-maintain a dock&, V) platform--------------------------------------- in and over the waters of—Cotuit Bay-- in the-- Town -- of- Barnstable - and in accordance with the locations shown and details indicated on the accompanying DEP Plan No.8385 (1 Sheet). PRWED ON RECYCLE PAPER . B1-: 12762 P1GOOS 2t-364 License No. 8385 Page 2 The structures hereby authorized shall be limited to the following use:commercial docking and boating j access to navigable waters. ------- _-_--___-_------------------------- This license will expire ninety-nine(99)years from the date of the license issuance. ------------------------- The project authorized herein has been completed in conformance with the accompanying License Plans, ' The issuance of this License th erefore, fulfills the Licensee's obligation to obtain a Certificate of Compliance pursuant to 310 CMR 9.19.------------- - ST=Jal Waterways Conditions• In accordance with any license condition,easement,or other public right of lateral passage that exists in the _ area of the subject property lying between the high and low water marks, the Licensee shall allow the public in the exercise of such rights to pass freely around all structures within such intertidal area. Accordingly, the Licensee shall place and maintain, in good repair, a public access sign on both the northerly and southerly sides of the dock, authorized herein, adjacent to the mean high water shoreline. Said signs, provided by the Department, shall be posted immediately upon receipt. Nothing in this condition shall be construed as preventing the Licensee from excluding structures property �e public from portions of said ( )or p perty not intended for lateral passage,----____-_____ ---_ ---------------------------------------- Please see page 3 for additional conditions to this license- ------------- i j 1 Duplicate of said plan,number 8385 is on.file in the office of said De accompanies this License,and is to be referred to as a part hereof, Department, and original of said plan License No.8385 Page 3 STANDARD WATERWAYS LICENSE CONDITIONS 1. Acceptance of this Waterways License shall constitute an agreement by the Licensee to conform with all terms and conditions stated herein. 2. This License is granted upon the express condition that any and all other applicable authorizations necessitated due to the provisions hereof shall be secured by the Licensee prior to the commencement of any activity or use authorized pursuant to this License. 3. Any change in use or any substantial structural alteration of any structure or fill authorized herein shall require the.issuance by the Department of a new Waterways License in accordance with the provisions and procedures established in Chapter 91 of the Massachusetts General Laws. Any unauthorized substantial change in use or unauthorized substantial structural alteration of any structure or fill authorized herein.shall render this Waterways License void. 4. This Waterways License shall be revocable by the Department for noncompliance with the terms and conditions set forth herein. This license may be revoked after the Department has given written notice of the alleged noncompliance to the Licensee and those persons who have filed a written request for such notice with the Department and afforded them a reasonable opportunity to correct said noncompliance. Failure to correct said noncompliance after the issuance of a written notice by the Department shall render this Waterways License void and the Commonwealth.may proceed to remove or cause removal of any structure or fill authorized herein at the expense of the Licensee, its successors and assigns as an unauthorized and unlawful structure and/or fill. 5. The structures and/or fiWauthorized herein shall be maintained in good repair and in accordance with the terms and conditions stated 'herein and the details indicated on the accompanying license plans. 6. Nothing in this Waterways License shall be construed as authorizing encroachment in,on or over property not owned or controlled by the Licensee,except with the written consent of the owner or owners thereof. 7. This Waterways License is granted subject to all applicable Federal, State, County, and Municipal laws, ordinances and regulations including but not limited to a valid final Order of Conditions issued pursuant to the Wetlands Protection Act,G.L.Chapter 131,s.40. 8. This Waterways License is granted upon the express condition that the use of the structures and/or fill authorized hereby shall be in strict conformance with all applicable requirements and authorizations of the DEP,Division of Water Pollution Control. 9. This License authorizes structure(s)and/or fill on: x Private Tidelands. In accordance with the public easement that exists by law on private tidelands,the licensee shall allow the public to use and to pass freely upon the area of the subject property lying between the high and low water marks,for the purposes of fishing, fowling,navigation,and the natural derivatives thereof. x Commonwealth Tidelands. The Licensee shall not restrict the public's right to use and to pass freely,for any lawful purpose,upon lands lying seaward of the low water mark. Said lands are held in trust by the Commonwealth for the benefit of the public. a Great Pond of the Commonwealth. The Licensee.shall not restrict the public's right to use and to pass freely upon lands lying seaward of the high water mark for any lawful purpose. No restriction on the exercise of these public rights shall be imposed unless otherwise expressly provided in this license. 10. Unless otherwise expressly provided by this license, the licensee shall not limit the hours of availability of any areas of the subject property designated'for public passage, nor place any gates, fences, or other structures on such areas in a manner that would impede or discourage the free flow of pedestrian movement thereon. BK 12762 PGOID r 2064 I License No, 8385 Page 4 The amount of tide-water displaced by the work hereby authorized has been ascertained by said Department,.and compensation thereof has been made by the said -- Richard C. Nelson, d.b.a. Cotuit Oyster Co.,Inc.--by paying into the treasury of the Commonwealth--two dollars and zero cents($2.00) -- for each cubic yard so displaced,being the amount hereby assessed by said Department (0.0 cu.yds. = $0.00).---------------------------------------------- Nothing in this License shall be so construed as to impair the legal rights of any person. --------------------- This License shall.be void unless the same and the accompanying plan are recorded within 60 days from the date hereof,in the Registry of Deeds for the County of Barnstable. ------------------------------------------- IN WITNESS WHEREAS, said Department of Environmental Protection have hereunto set their hands P e this g 7 A day of 2,-� in the year nineteen hundred and Commissioner Department of afJ4 Program Chief �U,� nrnental Protection THE COMMONWEALTH OF MASSACHUSETTS This license is approved in consideration of the payment into the-treasury of the Commonwealth by the said--Richard C.Nelson, d.b.a. Cotuit Oyster Co., Inc. -------------------------------------------------------- of the further sum of—two hundred,fifty-six dollars and zero cents($256.00)-------------------------------- the.amount determined by the Governor as a just and equitable charge for rights and privileges hereby granted in the land of the Commonwealth. BOSTON, Approved by the Governor. BARNSTABLE REGISTRY Of DEM Governor C J UL—!'JO'CU'NJJ 14•Gil H.I'I.W 1 LJIJIV 1-i�JUl.l ti I CJ J!'JZ=i4G'U�r'=D r.✓JG Massachusetts Depan t—nortt of Envi4ron.mental protection Bureau of Resource Protection -Waterways Regulation Program ----•-------- Transmittal No. Chapter 91 Waterways License Application -3•10 cmfi 9.©o Simplified,Water-Doperiden't, Nonwater-Depelideclt, Arnendincrit B. Applicant i'ntormation Proposed Project/Use Infor atior't -.....,.._- 1. Applicant; Name W E-mail Address Mailing Address - Note;Please refer rr� tV,'v to the"Instructions, --_ _... _� _ .. . _.�_ .: _ ... �.. _��...._...._ -. City/Town State zip code :a r Telephone Number Fax Numbar 2, Authorized Agent(if any): J ...._ �...._. _._.r. _ ..� ._.. ....... ._._.—..—_. Nama _ E-mail Ad.Ii s Mailing Address _. ._._ _ ... .........._.__�.... .—._._..... City/Town - - State; Lip Cade a�,�h7;�a`F raephone Number Fax Number C. Propvw�d v`v4+Us+. le9eVY :..et a 1. Property ln'I0rr,atioll (all ir)1'on nation must be provided); Gwnlsr Name(if diiierent i1or;;applicant) r ax Assessor's Ngp and'ar Latitude i_orlyit�sde rf n NO Met Street Address anti Cilyj i own State ?ip Code `. Registered Land ;_; `!es iJ No 3. Name of the water boGiy where the project site is located: 4. Des—cription c) ti•le,wal.er bGd in Vi 1"lii it ti!e li!...... iilC iS iGCcliciu tLt1cL ri a{i ii"liji c�J�llj/j. Type Natal '�'cSFCliiclild3?'3 [=J Nontidal river/sirean� _i.'�aturai r ;Area ofLl;:i:a: tivtrortfrlc nLai C01"Icern r l=iii2f cuiiiurfirliL:1 7 Des!"nal.ad Flo tAr@2 L_! Flowed tdelaric�s IJ � I� a-- ❑ i i vi'iuertc{ Ocean ti�ej=�o"tl ar i°illed tide! WS _j i" jJ Great Pond L_I LiriCLl'ta10 Jncertairi Cfi3•IApP,doe,Rev. tGiQc e 2 of 1` JUL-Lib-200b 14;26 H.M.W1LSUN HSSUL1'HItS �IOt4GVJy'f7J r.e�� Massachusetts Department ofiEnvirontrientai Prote-Ob r. Bureau of resource Protection - Waterways Regulation Program --•----•--- -' Trai�srnittal No- Chapte'r 91 Waterways License Application - 310 cmf--•� 9.00 Simplified,Water--Dependent, Nonwater-Dependent, Amendment C. Proposed PrgjLcVUse information (COI-It-) ...�.�•�. selact use(s)from Project Type fable 5. Proposed Use/Activity description on pg.2 of the ,Instructions" __.. _.,..... . 6- is tale project a pre-'!9E4 existing structure AND less than GOO Square feet? L] Yes ❑ No 7. is the project a post-t984 existing or,rlr-v, st;uctura, ,ess than 300 sql as,e ;eet AivU wafer deperlden?t.' Yes u l o 8. What is the:estimated tour, Cost of propo-`�-d �,!,.1rk (inciuC{liilg. naatiuria!5 & iu!bor) 9. List the :iaa)&&complete rnailirlg a diess of e?Gh abuttei a ditionai Si i�c't t'i i1F C«Sclf'y'�• r_r abutter is dafiiied as the U' ne! Oi l2nd that shares 3 Confil-?oil boundary With the prOjcut site, aS wall as the owner'of iand ti?at.i!es within 5U ai ;Dos a water bcjdy'front tit!' project. Name Atsc;ress Name Address Name Address D, Project Pia;s 1. i have attached piarls for!•F?� i'Ujei+t tit avcoidarice!-vltli tf?e I iSii'UCtlf2!'tS CUE'taliieG lri (C h(n G!� Ur`- r Li Append A;inG2i se pi lil� ;� Appendix iS (Sit plified License piari j � Appendix C ;i"'crn';ili i7iail) 2- Of[?er Otate and Local���ip!�VG?!C1C$r�Iil�auJr'IS j 401 vVator Quality "� n �crtifcutc Date of Issuance � `>�atic1i'iCaS ' Fiia Nun,iber 71 Jurnclirtional - File Number V MEPA -- -- Mile Number i,=1 Se G ' � LC%iai-'y' 2'1E Waste mite RTN Number CI15iKpp•d�c-RdV. 'i0/02 Pau;e i ci i J UL—Ub-2UUS 14;2b H.I'I.W i LSUN H55UU i H I E5 5UU42dtfYtl5 r U 4 Massacl'ausetts Department of Envia-DYz;anfal Protection Bureau of Resource Protection - Waterways Regulation Program --- - 77ansrnit.Inl No. Chapter 91 Waterways License Application - ' 10 CM• 9.00 Simplified,Water-Dependent, Nonwater-Dependent,Amendment E. Certification All applicants, property owners and authorized.agents rt+ust sign this page. All future Application- correspondlvrice may be signed by the authorized agent alone. "I hereby make application for a peri nit or iicense to authorize the activities I have described hLerein, Upon my signature, I agree to allow the duly authorized representatives of the M2SS@ChUSetLa Department of Llivlroni7lental Proiection and the iillaSsaCllU5oLL5 vl:�dSic':Zone 1Managerricni i'iClsrcri'; ertt�i LIPO(I lilt -' plei711SeS Of the (JI'(JJe.:i site at reasonable Linn[_ lol =he purpose of in-.-;lec.tioil:'-_.__ "I hereby cr-Mify that L'ie infornnatlon Submitted ill ibis appliccltioii i s irUe cE_d 2Cc::U-BLe LI) Lhe bC) St of I-rly' knowledge." Applicant's signature Jute ?;op*fl.y owner's signature(if diif+rtwit than >ppiicant) Late Agent's sigilalu1c,(i` - — APPLICANTS FILING A SUVIPLIFFIED APPWicA- lord ST OP HERE CK� ',IAPp.00c•kev.'iu/02 r'a5�4 of i J UL-Ub-200t) 14'-2y H.f 1.W 1 LSUN H55UC 1 H I L5 5084209755 P.05 MassaChuseti5 Department of Envi!"oriimeen'Lalt Protection Bureau of Resource Protection -Waterways Regulation -Program ......................... Transmittal No. Chapter 91 Waterways License Application -310 cn,IR 9.00 Simplified, Water-Dependent, Nonwater-Dependent,Amendment. F. Waterways Dredging Addendum 1. Provide a description of the dredging project [; Maintenance Dredging (include last dredge trite &permit no_) D ifnproveir,erit L)r,edgiing Purpose of bledyins 2. What is the vo!unne (cubic yards)of materiai to be dredged? 3. What methad will be used to dredge r-i , Other [] HydraulicL, ,Uechal�irai �I 4. Describe disposal rriethod and provide disposal iocatiun lincilude separalte disposed "siie locatloi, maP) J. Provide copy of tg.nain size analysis. If grain size is cumpaC!bie for bcach nourlshimeni iJUi poSes, the DC.pr73'trileTllreC01'�lnl2nos Et.d:the dredgCt] icLeiaai be uSi:d as e:iEei:i'1 IIOUfISI"ili'iet1i iOr pL1UIIC beaches. Note: in the event beach riourishrient i.,,;f):'LpUSirG C;I- prlVi�lte j:property, pul'SUai��iU 1 v C.MR 9,40AA-1, public ojccess easen'1cnts below the eximing high bvater lilili'{ shaali be secured by applicant and si!brnittad t.D Illc Department, C:H9IAUP•uv�;-Re:v. iu102 1'�yu Uf i 7 J UL—Ob-21Jb5 14: H.M.bJ 1 LSUN HSSUC 1 H I ES 5004209'r j5 h'.tab Massachusetts Deparzmer.i of EnviroiTli ei➢an-tio"al Proi.ectioi e Bureau of Resource Protection - Waterways Regulation Program --- -- "- - - - Chapter 91 Waterways License Application .,io cmR g.00 Transmittal No. Simplified,Water-Dependenf, Nonwater-Dependent,Amendment G. Municipal Zoning Certificate Name of Applicant Project street address Waterway C;tyfrown Description of use or change in use: To be completed by municipal clerk or appropriate i urkipal otficiai., "I hereby certify that the project described above afid. 11r;nre hilly delalled in the appliGant's waterways license applica6an and plan.4: i5 "iot in uiJia ion ot;Oca! zoning OrdlllanGes and byi&ws," Printed Name of Municipal U(it r il. ��tc Signature of t0uniripel D .ciai Title City/Town Crt�'iRPP.d�c ticv. 'IU/U2 Page G Pi'i 7 0 zrs u. u�€ um � _ p 310 CMR:. DEPARTMENT OF EWIRONIVENTAL PROTECTION 9.22., continued (4) Nothing in 310 CMR 9.22(1)through(3)provisions shall be be construed to exempt the work in question from obtaining other applicable approvals, including but not limited to an order of conditions under M.G_L. c. I3 I, §40 and 310 CMR 10.00. 9.23' Trancf.r of 1.i ense LQQn Chang, of wn e i . I.V:I (1) Unless otherwise provided in the license amid Iicense sh l run with the land a hall _automatically be transferred upon a change of ownership of i e affected property within chain of title of which the license has been recorded. All rights, privileges, obligations, and responsibilities specified in the license shall be transferred to the new landowner,4pon record of the changed ownership. (2) For transferability of permits issued by the harbormaster for the temporary placement of moorings,floats,and rafts,see 330 CMR 9.07(2)(d). 9.24, Amendm.n c (1) Upon written request by the licensee accompanied by appropriate plans, the Department may amend a license and associated written determination to authorize a structural alteration or change in use not defined as substantial in accordance with 310 CMR 9.02, or to delineate a reconfiguration zone within a marina in accordance with 310 CMR 9.39{1)(b), or to renew a term ofiioense in accordance with 310 CN-a 9.25(2). A written request may also be made to amend a permit, No license or permit shall be amended unless the project,as modified, complies with the applicable provisions of310 CMR 9.00 wherever feasible. (2) The Department shall review the request for amendment and determine whether the proposed changes are so significant as to require a new license or permit application or are appropriate for consideration of an amendment to the existing license or permit- (3) If the Department deterrnines that the proposed changes are appropriate to allow consideration of an amendment,notice shall be provided in accordance with the requirements of 310 CMR 9.13(I),and to any intervenor on the original license application to the maximum reasonable extent- (4) The Department may, at.its discretion, conduct a public hearing on the request for amendment. Any such hearing shall be conducted in accordance with the requirements of 310 CMR 9.13(3). (5) Any person who would otherwise have the right to an adjudicatory hearing pursuant to 310 CMR 9,17 may appeal the issuance of any amendment within 21 days of the date of its issuance,in accordance with the procedures set forth at 310 CMR 9.17. (6) The amended license and accompanying plan shall be recorded within 60 days of the date of issuance in accordance with the procedures set forth in 310 CMR 9.1 S. - (7) Notwithstanding the procedures for amendment described above, the Department may issue in writing,at the request of the licensee, clarification and corrections regarding any license or permit previously issued. 9•�5• (1) EX12ir3tion. (a) Any license, permit, or legislative authorization shall expire as, to all work licensed, permitted,or authorized which'is not completed within five years of the date thereof, or such other period of time specified therein: provided, however, that for good cause shown the Department May extend, without public hearing or notice, the construction period of the license, permit, or legislative authorization for one or more one year periods upon written request ofthe licensee or permittee. 4/19/96 4 310 C1 -294 + E �� t� >�, za �. -. .�. >3 E 'v= LEASE I, PHILIP BRACKETT, Trustee under the Will of Sarah Russell Gifford, by decree of the Barnstable Probate Court in Case No. 27288 dated March 3, 1978 , LESSOR, do hereby lease, demise and let unto COTUIT OYSTER CO. , IiVC. , a corporation duly organized under .the laws of the Commonwealth of Massachusetts and having an usual place of business in Barnstable (Cotuit) , C Barnstable County, Massachusetts , LESSEE, a certain parcel of land in Barnstable (Cotuit) , Barnstable County, Massachusetts, with buildings thereon bounded and described as .follows: EASTERLY by Cotuit Harbor; SOUTHERLY by land now awned by Cotuit Oyster Co. , Inc. WESTERLY by Little River Road; and (�. NORTHERLY by land now or formerly of Samuel l Bumpus. To have and to hold the same unto the LESSEE for the period March 1, 1983 to May 31, -1-9�.1 Said premises are to be used by the LESSEE for .the furtherance of shellfish and oyster business only, and subject to the right of the owner and all of the beneficiaries of said Trustee to pass and repass over said premises for access to Cotuit Harbor, and the further right of said Trustee and said beneficiaries to store and keep small boats on portions of the above-described -land and in a manner which will not unreasonably interfere with the use of said premises by the LESSEE. During ALGER & SCHILLING ATTORNCYB AT LAW 806 MAIN STREET - OSTERVILLE,MA69.02656 {r l i :: .. -2 sg j the initial term of the lease hereof and any extensions entered into pursuant to paragraph. VZTI herein, LESSEE shall pay to LESSOR rent as follows: For the period of March 'l, 1983 to May 31, 1983 , -the rent shall be paid in equal monthly installments of TWO HUNDRED SEVENTY-FIVE ($275. 00) DOLLARS per month or THREE THOUSAND THREE HUNDRED ($3 ,300.00) DOLLARS per year, in advance on the first of each month. Commencing on June 1, 1983 and each year thereafter, the rent shall be either THREE THOUSAND THREE HUNDRED ($3, 300. Q0) DOLLARS or said sum multiplied by a fraction, the denominator of which shall be the Consumer Price Index published by the U.S. Department of Labor, Bureau of Labor Statistics for the City of Boston, Massachusetts, "All Items" (Index) for the month of 2 June, 1981 and ie numerator of which shall. be the Index for the just past month of May, 14", whichever is greater, in advaiLcer in equal month monthly installments on the first day of each Should such index be discontinued or become unavailable to the general public, the parties hereto agree to submit to arbitration for the purposes of determining a substitute index which shall henceforth thereafter be binding on the parties.. I. Surrender 'of' Premises At the expiration of the tenancy hereby created, LESSEE shall surrender the leased premises in the same condition as the leased premises were 'in upon delivery of possession thereto ` 2 IL under this lease, reasonable. wear and tear exceptedr 5 and damage by unavoidable casualty excepted, and shall surrender all keys for the leased s to LESSOR premise at the place then fixed . d for the payment of rent and. shall in LESSOR of all combinations on locks, safes and vaults if any, in the leased premises. LESSEE shall remove all its trade fixtures, and any alterations or irn rov m P e ents before surrendering the premises as aforesaid and .. shall repair any damage to the leased premises caused thereby. LESSEE'S obligation to observe. or perform this covenant shall j. survive the expiration or other termination of the term of this lease. II . 'Right 'of First 'Refusal Should the LESSOR, during the term of this lease or any options exercised thereunder, or until the termination of +'. the Trust, whichever occurs later, decide to sell the property which is the subject matter of this lease, the LESSEES shall have ,. . the right of First Refusal, so-called said right to be exercised by offering the property upon the same terms and .conditions as the LESSOR .shall sell to a third person in writing. Said LESSEE shall have forty-five (45) days from date of receipt of the offer to comply with its terms. At which 'time, failure of the LESSEE to so- comply shall be considered a refusal to purchase. III. Utility charges, taxes and insurance LESSEE shall be solely .responsible for and promptly pay 3 ` 1 all charges for heat, water, gas, electricity or any other utility used or consumed in the leased premises. Additionally,. the LESSEE shall be. solely responsible for paying promptly all _ charges for' real estate taxes, personal property taxes and liability and property insurance. However, LESSEE shall not be required to pay for liability insurance in excess of $500 ,000 .0 or property insurance in excess of $20,000 . 00. TV. As5i'gnirig and 'S'Utd:ett'ing LESSEE will not assign this lease in whole or in part, nor sublet all or any part pf the leased premises, without the prior written consent of LESSOR in each instance. The consent by LESSOR to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting by operation of law. If this lease be assigned, or if the leased premises or any part thereof be underlet or occupied by anybody other than LESSEE, LESSOR may collect rent from the assignee, undertenant or occupant, and apply. the 'net amount collected to the rent herein reserved, but no such assignment, underletting, occupancy or collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, undertenant or occupancy as tenant, or a release of LESSEE from the further performance by LESSEE of covenants on the part of LESSEE from the further performance by LESSEE of covenants on the part of LESSEE herein contained. Notwithstanding any assignment or sublease, LESSEE shall remain fully liable on 4 _ - - - - _ ! . this lease and shall not be re.l'eased from performing any of the terms, covenants and conditions -of this lease. V- Right 'to Re�eriter,' Re :let and 'Le al 'Ex rise - In the event of any failure of LESSEE to pay any rental due hereunder within ten (10) days after the same shall be due, or any failure to perform any other of the terms, conditions or covenants' of' this lease to be observed or performed by LESSEE for more than thirty (30) days after written notice of such default shall have beer given to LESSEE, or if LESSEE or any guarantor of this lease shall become bankrupt or insolvent, or file any debtor proceedings or take or have taken against 'LESSEE or any guarantor of this lease in any court pursuant to any statute either of the United States or any state a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiveror trustee of all or a portion of LESSEE T s or any such. guarantor's property, or if LESSEE or any such guarantor makes an assignment for the benefit of creditors, or petitions for or enters into an arrangement, or if LESSEE shall abandon said premises, or suffer this lease to be taken under any writ or execution, the LESSOR besides other rights or remedies it may have, shall have the immediate right of re-entry and may remove all persons and property from the demised premises all without service or notice or resort to legal process and without be deemed guilty of trespass, or becoming liable for - 5 - Bk 151S1 Ate- :5F:31 $-5 5.-,. I any loss or damage which may be occasioned thereby. Should LESSOR elect to reenter, as herein provided, or i should it take possession pursuant to legal proceedings or pursuant to an noticeby- law--- it - -- -- - Y provided for may "either terminate this lease or it may from time to time without terminating this lease, make. such alterations and repairs as may be necessary in order to re-let the premises, and re-let said Premises or any part thereof for such term or terms (which may be for a term -extending beyond the term of this lease) and at such--rental or rentals and upon' such other terms and conditions as LESSOR in its sole discretion may deem advisable; upon each. such re-letting, all rentals received by the LESSOR -from such re- letting shall be applied, first, to the payment of any indebted- ness other than rent due hereunder from LESSEE to LESSOR; second, to the payment of any costs and expenses of such re-letting, including brokerage fees and attorneys' fees and of costs of such alterations and repairs; third, to the payment of rent due and unpaid hereunder, and the, residue, if any, shall be held by LESSOR and applied in payment of future rent as th'e same may become due and payable hereunder. If such rentals received from such re-letting during any month be less than that to be paid during that month by LESSEE hereunder, LESSEE shall pay any such deficienty to LESSOR. Such deficiency shall be calculated and paid monthly. No such. 're* entry or taking possession of said premises by LESSOR shall be construed as an election on its part } I to terminate this -lease unles.'s •a written notice of such in- tention be given to Y,ESS-EE or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding _ any such re--letting without termiination, LESSOR may at any time thereafter elect to terminate this lease for such previous breach.' Should LESSOR at any time terminate this lease for any breach,' in addition to any other remedies it may have, it may recover from LESSEE all damages it may incur by reason of such breach,' including the cost of recovering th.e leased premises, reasonable attorneys' fees, and including the worth. at the time Of such •termination' of the excess, if any, of the amount of rent and charges equivalent to rent reserved in this lease for the remainder of the stated term over the then reasonable rental value of' the leased premises -for the remainder of the stated term, all of which amounts shall be immediately due and payable from LESSEE to LESSOR. In determining the rent which *would be payable.by LESSEE hereunder, subsequent to default, the annual rent for each year of' the unexpired term shall be equal to the average annual minimum and percentage rents paid by LESSEE from the commencement of the term to the time of default, or during the proceeding three .(3) full calendar years, whichever period is shorter. In case suit shall be brought for recovery of possession of the leased premises, for the recovery ,of rent or any other - 7 r amount due under the provisions of this lease,' or because of the breach '.of .any other covenant herein contained on the part Of LESSEE to be kept or performed, and a breach shall be estab- lished, LESSEE shall pay to the LESSOR all expenses incurred therefor, including a reasonable- attorneys' fee. VI'. wa:iv'er The waiver by LESSOR of any breach 'ot any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition herein contained. The sub- sequent acceptance of rent hereunder by LESSOR shall not be deemed to be a waiver of any preceding breach by LESSEE of any term, covenant or condition of this lease, other than the failure of LESSOR'S knowledge of such preceding breach .at the time of acceptance of' such rent. No covenant, term or conditions of this lease shall be deemed to have been waived by LESSOR, unless . such waiver be in writing by LESSOR. No payment by LESSEE or receipt by LESSOR of a lesser amount than the monthly rent herein stipulated shall be deemed to be other than on account of the earliest stipulated rent, nor shall any endorsement or statement on any check or any letter accompany any check or payment as rent be deemed an accord and satisfaction, and LESSOR may accept such check or payment without prejudice to LESSOR'S right to recover the balance of such rent or pursue any other remedy in this lease provided. - 8 - ff i VIZ._ . ..N'otice - Written notice from the. LESSOR to the LESSEE shall be i deemed to have been properly given if mailed by registered or certified mail, postage pre-paid, return receipt requested, to the LESSEE at the. address -of the leased premises, or if delivered or left, that such notice has been delivered to or left with, the LESSEE or anyone expressly or impliedly authorized to receive messages for the LESSEE, Or' by. any adult who resides with the LESSEE in the leased premises*. Written notice from the LESSEE to the LESSOR shall be deemed to have been properly given if mailed by registered or certified mail, postage pre-paid, return receipt requested, to the LESSOR. at his address set forth. in the first paragraph 'of this lease, unless the LESSOR shall have notified the LESSEE of the change of the LESSORS address-, in which case such 'notice shall be so sent to such changed address of the LESSOR, provided that the receipt has been signed by the LESSOR or anyone expressly or impliedly authorized to receive messages for the LESSOR. Notwitlistanding the foregoing, notice by either party to the other shall be deemed adequate .if given in any other manner authorized by law, VIM: Option'and CC'Zt of Livizig Increase If LESSEE shall , during the original term hereof keep and perform each .and every covenant, agreement, term, provision and condition herein contained to be performed or observed by LESSEE and if LESSEE shall throughout the 'original term hereof actually use and occupy the demised premises exclusively for the conduct of LESSEE'S btisine.s:s, then LESSEE may, at LESSEE ' S option, extend the term bf this. lease for three .(3) additional periods of' five '(5). years. each 'and each such option to be exer- cised by the 'LESSEE giving LESSOR written notice of its intention to 'extend this. lease ninety (50). days prior to- the expiration of the original term or first -option period upon the giving by LESSEE to LESSOR such 'writteri notice and the compliance by LESSEE with the fo.reagoing provisions of this section, this lease shall be automatically extended upon the same terms and conditions as -herein provided, except as to this option provisions and the minimum annual rent payable during the renewable period or periods shall be adjusted in accordance with the basic rent all as provided herein. IX. Repairs The LESSEE. agrees with the LESSOR that, during this lease 'and for' such further time as the LESSEE shall hold the leased premises or any part thereof, the LESSEE will at all times keep and maintain the whole of the leased premises, in- terior and exterior of" the 's.tructure and all equipment and fixtures therein or. used therewith. repaired, whole ,and of the same kind, quality and description and in such, good repair, order and condition as the same are at the beginning of, or may 10 - 4 be put in during the term or any extension or renewal thereof, reasonable wear and tear and damage by unavoidable casualty only excepted. The 'LESSOR and the 'LESSEE agree to comply with any responsibility which either may have under applicable law to perform repairs upon thy: 'leased premises. If LESSEE fails within a reasonable time,' or 'improperly makes such 'repairs or maintenance, then and in any such event or events, the LESSOR may (but shall not be obligated to) make such repairs or main- tenance, and the LESSEE shall reimburse the LESSOR for the reasonable costs -of such repairs or maintenance in full, upon demand. Parties hereto hereby acknowledge that the pier or dock ..On said property is- the "property of the LESSEE.. In the event. .it is. destroyed by storm or otherwise-;. the LESSEE. may, but shall not be obligated to, replace the same:. In the event .the septic system on the premises needs to be replaced, neither party shall be obligated to replace the same but either may, and all parties will, attempt 'to work 'out a: mutually satisfactory arrangement. X. Trustee The Trustees under the Will of Sarah Russell Gifford act in a fiduciary capacity and. shall not be personally liable with respect to the. obligations of. LESSOR under this lease. X1. ' Applicable Law and Construction This le-ase 'shall be governed by and construed in accor- dance with the laws of the 'Commonwealth 'of Massachusetts , and if - 11 - `I E�I-C 3-5-181 Psl_37 a453_50 any provisions of this lease shall to any extent be invalid, the remainder of this lease shall not be affected thereby. There are no oral or written agreements between LESSOR and LESSEE affecting this lease. This lease may be amended only by instru- ments -in writing executed by LESSOR and LESSEE. The titles of the several articles and sections contained herein are for con- venience only and shall not be considered in construing this lease. Unless repugnant to the context, the words "LESSOR" and "LESSEE" appearing in this lease shall be construed to mean those named above and their respective heirs , executors, administrators, successors and assigns. and those claiming through or under them respectively. IN WITNESS WHEREOF, the parties hereto have set their hands as of the day and year first above written. P. lip Brackett, .Trustee COTUIT OYSTER CO. , INC. By President 12 - BARN87ABLE REGISTRY OF.DEEDS r 1 F I I § . . � . � � 2 � � . i . z . § � � : � - � . � § . . � . i � 2 � . � § � � . a . � . § ��� 7 . . � � . ■ � � � loo 1D:3438 pfRer lD: Bldg#: 1 Card 1 of 1 Pfint Dore:(1910312003 11:12 _ N 'RRY,ARTHUR JR it I petavy Street blic Wale eyed aleNroat 71V1DrFR ion Cade A railed lra&—z Assessed Value m ry�ZLOWSKI,JUUM1 ae 3151) 556,200 556,206 Sol a- m.10 FORTSMOU—M RD 3150 2A,d00 Z4,00D m PTHESDA,MD 20816 3150 100,000 1D0,0D0 Barnstable 2004,.AfA -CE J Idltlona[Owners: kwounifi 30674 Plan Ref t] H 1D an Mt_ 100 Lard cto M er.Prap_ We Estate m DL 1 Notes_ VISION ISION C, DL2 'GISID: 3438 Tole 68u,-Zgul 6M,2M m IN m - _ in;WRY,ARTHUR.1R& 15461/183 08/i2/2002 U 1 667,M0 10 Yr. Cods Assessed Value Pr. Code Assessed Value Yr. i Cmk Assessed Valve [ OORE,JOYCE B TR P21288 02f04I1994 U 1 0 1A 2003 3150 13Z,7if0 002 3t50 132,780 00 3150 247,700 1.4CKE1T,EVELYN C P25542 Q 0 2003 3150 17,300 WD2 3150 17,300 M01 3150 t7,3M r TMk 150 00D Torah 150,000, Total: 265 01 T/rEssrgnahtre acA pro wledges a visit by a Dala Celfeetor orAssessv► Year Ty eloes ' [ion Amount Code Dexcr tiort Number Amount COMM lnL a a 4 a Appraised Bldg.Value(Gard) 24,400 Appraised XF(B)Value(Bldg) D Appraised OR(L)Value(Bldg) 100,000 a Total: Appraised Land Value(Bldg) 556,100 " PROPERTY TO DE USED AS Special Land Value SINGLE FAMILY RODI$&BOAT STORAGE PER SALES Total Appraised Cana Value 680,20[ p QDE3TIONNAM i2/E3/02 Total Appraised Parcel Value 690,20[ m VatuatianMethad: Cust/Market Valuallm J 3 et Tobl.Appraised Parcel Value 680,20( MEEBWEM 3 t2 Permit ID Issae Date Five Description Amount !us .Dote %C DafzCwW. Comments Date 1D Cd PwrosdReindt r 3f14/Z0(13 Pr 01 eealFat 5/5/1999 FS Oa lfemlisfed r cIn In �: . v Use Coda Dean flan Zane DFrontage Dimik Unita Unit Price L Factor SI- C Factor MuL A Na&.vo-Ac&Spedq1Fric1njz A '.(Tact Price Land Value 3150, OCKYARDS RF 2 0.19 AC 300,000.0D 3.33 5 1.69 C115 550 556,201 im fU � l J W n U) Parcl7otalasdre : 556,201Tonal Card Land Un 0 G \ � . \ . ) � � � , . ( . � � . . / � � }� � \ . � . . f � ± � \ � � . . a � � � �/ � � � . / � � . # � . � MICHAEL D. FORD, ESQUIRE ATTORNEY AT LAW 72 MAIN STREET, P. 0. BOX 665 WEST HARWICH, MA. 02671 TEL. (508) 430-1900 FAX (508) 430-8662 EMAIL: mdfesq@capecod.net April 18, 2003 Edward R. Gargiulo,Esq. Gargiulo/Rudnick, LLP 766 Falmouth Road Madaket Place, Suite A-6 Mashpee,MA 02649 Re: .Notice of Trespass Dear Attorney Garguilo: Please be advised that it is my clients understanding that Cotuit Oyster Company, Inc. has completely vacated my clients property at 28 Little River Road in Cotuit and is no longer utilizing the pier or the pier building. The purpose in this letter is to put you on notice that any future use of the pier,building or the premises itself, without my clients permission, will be deemed to be a trespass and would be dealt with accordingly. Notwithstanding this notice, please be advised that my clients continue to be willing to discuss with your clients the possibility of continued use of the premises, by Cotuit Oyster Company, in the nature of a leasehold agreement, and I remain open to discussions regarding that issue. Very truly ours, l� Michael D. Ford MDF/mbf cc: Arthur Perry, Jr. and Judith Kozlowski ' H COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, S.S. SUPERIOR COURT DEPT. C.A. NO.: 2005-00365 ARTHUR PERRY and JUDITH KOZLOWSKI, Husband and Wife, PLAINTIFFS V. THOMAS PERRY, in his capacity as the Building Commissioner for the TOWN OF BARNSTABLE, and TIMOTHY RODRIQUE, SEAN MACDONALD and STANLEY SHUMAN, acting in their capacity as members of the MASSACHUSETTS BUILDING CODE APPEALS BOARD, and COTUIT OYSTER CO., INC., DEFENDANTS AFFIDAVIT OF GEORGE GILLMORE 1, George Gillmore, being duly sworn hereby depose and state as follows: 1. My name is George Gillmore. 2. I am a licensed construction supervisor, Mass License#CS068433. 3. My line of work involves construction, reconstruction and removal of piers and docks. 4. I am familiar with the post-supported pier which is connected to the premises known as 28 Little River Road. 5. 1 have inspected the pier and am familiar with its condition. 6. The pier at 28 Little River Road is in a dangerous, dilapidated condition. 7. It is my opinion, as a licensed marine contractor, that because of the advanced state of the decay of the building materials, and the deterioration of the structure, that the pier cannot be repaired. 8. It is my opinion, as a licensed marine contractor, that to make the pier usable and- safe, it would be necessary to remove the existing pier and replace it with a newly constructed pier. Such work would clearly constitute a"substantial structural alteration" of the existing pier as precluded in the Chapter 91 Waterways License. 9. Additionally, the existing pier contains at least one creosote treated support post. The use of which is contraindicated in post-supported pier structures and, it is my understanding that their use is not permitted or recommended by the Barnstable Conservation Commission.for new construction or reconstruction of post- supported piers. SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS DAY OF JULY, 2005 G rg i lm e i JOi,'i% 'OF B4O1wSTABLE 5310 Portsmouth Road Bethesda, Maryland 20'9110" 30 P May 27, 2003 - Mr. Jason P. Silva, Building Inspector Regulatory Services, Building Division Town of Barnstable 200 Main Street Hyannis, Massachusetts 02601 Re: Pier at 28 Little River Road Cotuit,Massachusetts 02635 Your Letter to Joyce Moore, dtd May 2,2003 Dear Mr. Silva: This letter is to confirm in writing the message my wife, Judith Kozlowski, left with you on May 7, 2003 upon receipt of a copy of your May 2n6 letter to Joyce Moore, trustee for the previous owner of 28 Little River Road. Judith left the message that, first we appreciate your notification that the pier was found in unsafe condition, and second we were in the process of having repairs made to the pier. After detection of the problem by ourselves and several inspections by third parties, it appeared that the damage sustained by the pier was primarily damage to the posts - supporting the decking (as opposed to the decking itself) and that some of the posts . required replacing. _ My wife joins me in thanking you for bringing the condition of the pier to our attention. Sincerely, Arthur Perry, J . J J Bk 15461 P9183 08-12--2002 & 09 2 27m FIDUCL4RYDEED I, JOYCE B. MOORE, Trustee under the Will of SARA RUSSELL GIFFORD, Barnstable Probate No. 27288, of Osterville,Massachusetts for consideration paid of Six Hundred Sixty Seven Thousand, Two Hundred ($667,200.00) Dollars grant to ARTHUR PERRY, JR. and JUDITH KOZLOWSKI, husband and wife, as tenants by the entirety 4 of 5310 Portsmouth Road, Bethesda,Maryland 20816 43 U A certain parcel of land situate at "Little River" in said Cotuit, bounded by a line beginning at the NW corner of the granted premises at the Road leading Southerly to the former Homestead of the late Nathan Coleman and at the SW Corner of land conveyed to Cora L. Dottridge and 0 Samuel C. Crosby and running Easterly by the latter, straight, to the Bay, measuring from said �4 Road to High-water mark about two hundred and fourteen (214) feet; thence Southerly by said o Bay about thirty-four (34) feet to land conveyed to said Rosa J. Hobson; thence Westerly in a straight line, parallel with the first described or North line of lot to said Road, measuring from High-water mark to Road about one hundred and ninety-four (194) feet and by said Road, Northerly, about thirty-four(34) feet to the point of beginning with an address of 28 Little River •'w Road. ' a m PROPERTY ADDRESS: 28 Little River Road,Cotuit,Massachusetts N For title see Deed from Rosa J. Hobson, et al to Sarah R. Gifford dated September 15, 1899 recorded with Barnstable County Registry of Deeds at Book 240, Page 460 and see'License for u the Sale of Trust Estate issued by the Barnstable Probate and Family Court, Docket No. 27288 0 a recorded herewith. Witness my hand and seal this 9th day of August,2002. Jo a oore, Trustee PETER L.O-KEEFFE.P.C. ATTORNEY AT LAW - 40T NORTH STREET HYANNIS.MASS.02601 TELEPHONE(508)775-7339 Bk 154461 P'9184 061751?0 COMMONWEALTH OF MASSACHUSETTS Barnstable,SS August 9,2002 Then personally appeared the above-named Joyce B. Moore, as Trustee aforesaid and acknowledged the foregoing to be her free act and deed before me, Peter L. O'Keeffe, Public My Commission pires: 3/14/08 rAARNSTABLE+COl1NTY r DEF-0s 01 REGISTRY OF DEEDS BA Et_E 1 11TY�£KCISE TAX__ L�l13/D2 9:58RH �� Q� OUO[100 #6171 DATE 08.13. TUE FE s�^ze2.es TAX $1521.90 Cat S2292.85 TOTAL $1521.90 Cp5H 51521.90 CLERK 1 90.032315 TIME 09:40 1111 PETER L.O'KEEFFE,P.C. ATTORNEY AT LAW 407 NORTH STREET HYANMS.MASS.MGM TELEPHONE(508)775-7339 BARNSTABLE REGISTRY OF QEE03 K e z K s� &B K t`x L,3 �k�'sf FX 5 CoMMONwEAI.TH OF iAA-gsACHusi ivrs aECUTTvE OFFICE OF ENviRoNTviENTAL AFFAIRS DEPARTME2sT OF EN=ONM- FNTAL PROTECTION SOUTHEAST REGIONAL OFFICE no ItIVERSID:: DRTVr, LAKEYILLE. MA 02347 :AIM EWST bob DL*RANn Ge�wraat 5c�enry LhUR£N A.LISS Cammi�efaner lone 14,2UO2 ]oycc Moore Cia Cotton Rtal Estate 851 Main sheet Osterville,MA 0202655 Rl:;: Waterways Liceme No. 9385 Dear Ms. Moore: Pcr our conversation yesterday and your request for information mgarding the referenced licrnst. The license was issued to Richard C.Nelson, d.b.a. Cotuit Oyster Co., Inc. on Dc:ember?9, 1999 and recorded at the Barnstable County Registry of Dends on Jmtt 7 14, 2000. Pursuant to ChupLer 41 regulations 310 CMR, 9.18 Recordings (enclosed) the license follows the chain of title of trc property. If you haK a-'ly questions please do not hesitate to contact me at(508) 946-2734. sincerely, Iitc Vcncina Ervironmcnral Analyst Wetlands and Waterways Progxam Enclosure Cc: Fite Copy Tnq inf—ai;taa avoiLWC 41 tvr.ut b,aljinC our,W-A C4er4l.u1ar■1(ij pS��-YrZ DEDcnmaW,11d WOO Wt Pjlp9wuN..m7L:.0a14�9 L� Frirned en Aitc tl d Paper L /r L �, �. <3 ���� "3..%� i i _ „LL 11.VV r2%A V1IUGd1004 - UAKUILILU, xuliN1CA CAPE OFFICE L0002 . • In y G�j'�P/t•r L,/ ,^f-'i`v rn i�v CJP��'- (� - �t� �T�, , �r• (M 03 ~� I, ROBCRT J. SMITH, JR. of Barnstable (Cotult), Barn- stable County, Massachusetts, for consideration paid and in con- . ■idoration of TWCHTY-TW0 TIIOUSJWD PIVC 11UNORCO ($22,500.00) DOLLARS, grant to COTuIT-oY5TLR-00., INC., a Massachusetts d , -` corporation having an usual place of business at Little River [toad, Darnstable (Cotuit), Barnstable County# ?tassachusctts, 1 with QUITCLAIM COVENANTS, a certain parcel of land situated at Ta 'Little River• in Barnstable ICotuit); Barnstable County, Massa-chusetts, bounded and described as followst Bcginniha at the Northwest corner of the granted WC>t y ! premises at the Road leading Southerly to the former ! Homeatead of the late Nathan Coleman and at the Southwest corner of land conveyed to Sarah R. Gifford and running Easterly by the latter, straight to the Day, measuring from .said Road to high-water mark a 9 bout one hundred and ninety-Four (194) feet: - 1 Thence Southerly by said Bay*about thirty-five (35) feet to land conveyed to Samuel H. Childs= �" �=• !�� Thence Westerly in a straight line, parallel with •� C:A the first described or north line of lot to said Road, measuring from high-water mark to Road about one hundred " p p�ppp � and seventy-four (1741 `eet: and AV 5 3 �f By said Road, Northerly, about thirty-Five (35) feet :;�T�z.�• to the point of beginning. ~' Fos my title see deed of June W. Childs at al to ale =• dated December 29, 1966 recorded in Barnstable Registry of Deeds in Book 1355. Page 646. Tho pren.isea herein conveyed are conveyed subject to the following restriction and resale agreement for the benefit of the Grantor herein whic)i, unless modified. amended or waived, � t shall remain in force for a period of thirty (30) years from the 1 ' �lGL7S 1 1CHILf.111� a".-know 10 Mn, NOR Whim 611MEW ' wnwili MASS."too 1 . r . 'l. „may -L-L-UU rAA D1104010J4 GARGiULO, RUDNICK i->+ CAPE OFFICE 1j00a I P date hereof. The Grantor hereby reserves the right to release, .'.�t modify, amend and waive said restriction and resale agreement At an time ;z ' y provided nevertheless that no amendment shall be------ � ="--- more restrictive. Said restriction and resale agreement is is- posed for the benefit of the remaining land of the Grantor i situated on said Little River Road in the Village of Cotuit, �Kassachusetts. I j i Restriction and Resale Agreement 1. No mechanical, manufacturing or mercantile trade 1 � ot business and no other businosa, trade or profession shall' be conducted on said premises at any time e%cept that the Grantee, Its successors and assigns, may use said premises for the further- _ i,anon of their oyster business or ■hellfishing business or for 7 ;.aquaculture including the hauling, building, repairing and jistoring of boats and the construction of a pier, boathouse, oyster i 14hop, shellfish hatchery and/or storage shed. 2. The Grantee, its successors and assigns shall not sell the above-descr_15� premises or any er — .II I ' ' i f rat o erinu g t-he GrarrC'br the r g a to repurc e e same a � ila� r c o c fered�by a bona fide proapcc Yv� 11purchaser. In the event -ham c�Cran ee oa res to ins a sue a j1sa eT—Re shall give written notice sent by registered mail to the i !I Grantor, wherein shall be stated the name and address of the Prospective purchaser and all the details of the offer made by 1 him to purchase. The Grantor shall, not later than twenty (20) days from receipt of said written notice, notify the Grantee ae ! to whether or nc•t he desires to repurchase the above-described 1,ipremfses upon the terms stated in said written notice, and in the levent he so elects to repurchase, he nhai1 have ninety (90) days !I from the receipt of said written notice to complete the repurehase.� • 'The Grantor may waive said right to repurchase the said premises provided the same is in writing. 1 WITNESS my hand and seal this 97,� day of 1983. 2 j r�. i_ PAA of r ocJ r Of$4 GARGIULU, RUDNICK CAPE OFFICE Ca)004 9a3671 27j. COMMONWLALTH Or MASSACHUSVITS } 1983 Then personally appeared tho above-named RO✓BERT J. 'SMITH and acknowledged the foregoing instrument to he his Ores -act and deed• before we ! N tary :! my cam lfi*ion expiress.1411.. { tat • 1 he I ' he j also. u — 3 • �� 1s�G;1�;LFQ FEB �83 � _ i �w M ��: .� Y,a �b Zaw� ia9 €it �� Z� 'a I ' �� �. �.?�as `� 42 ��� COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, S.S. SUPERIOR COURT DEPT. C.A. NO.: 2005-00365 ARTHUR PERRY and JUDITH KOZLOWSKI, Husband and Wife, PLAINTIFFS V. THOMAS PERRY, in his capacity as the Building Commissioner for the TOWN OF BARNSTABLE, and TIMOTHY RODRIQUE, SEAN MACDONALD and STANLEY SHUMAN, acting in their capacity as members of the MASSACHUSETTS BUILDING CODE APPEALS BOARD, and COTUIT OYSTER CO., INC., DEFENDANTS AFFIDAVIT OF RICHARD C. NELSON I, Richard C.Nelson,being duly sworn hereby depose and state as follows: 1. My name is Richard C. Nelson and I am President of the Cotuit Oyster Co., Inc. located at 26 Little River Road, Cotuit, Massachusetts. 2. The Cotuit Oyster Co., Inc. permitted, constructed, and utilized the pier at 28 Little River Road, Cotuit, Massachusetts. .The Cotuit Oyster Co., Inc. also paid for all expenses attendant to the permitting and construction process. The landowner did not finance any portion of the permitting or construction process. 3. On or about May 2002, the Cotuit Oyster Co., Inc.'s lease of the 28 Little River Road real estate and building terminated and Cotuit Oyster Co., Inc. vacated the premises. 4. No maintenance or repair has occurred on the pier structure since prior to May, 2002. Prior to May, 2002, all maintenance of the dock was done at the sole expense of the Cotuit Oyster Co.,Inc. The landowner never financed maintenance or repair of the pier. 5. On June 23, 2005,the Massachusetts Building Code Appeals Board issued an order directing the Cotuit Oyster Co., Inc. to remove its pier located at 28 Little River Road, Cotuit, Massachusetts as a danger to public safety. PXOTUIT OYSTER BLDG APPEAL 28 LITTLE RIVERVA3B Affdiavit of Richard Nelson 050706.doc 6. The Cotuit Oyster Co., Inc. is a historic shellfish and aquaculture business which has existed on little River Road in Cotuit, Massachusetts since at least 1894. 7. The Cotuit Oyster Co., Inc. holds shellfish grants in and around Cotuit Bay including the area near the existing pier. 8. The pier at 28 Little River Road is approximately 6 to 8 feet from shellfish grant number 3, a leasehold interest of the Cotuit Oyster Co., Inc. 9. Grant number 3 is essential to the economic well-being of the Cotuit Oyster Co., Inc. Grant Number 3 is utilized as a hatchery of shellfish seed stock. The seed stock is contained in floating bags, submersible bags, and a floating upweller system hatchery. All of these are located in close proximity to the dock of 28 Little River Road. 10. Should the existing dock continue to deteriorate and break apart, the Cotuit Oyster Co., Inc. will suffer irreparable economic harm. Specifically, the timber and lumber contained in the pier would almost certainly drift into this aquaculture equipment causing significant financial damage to the equipment and to the seed stock. 11. Damage to the Cotuit Oyster Co., Inc.'s seed stock would cause irreparable, economic harm to the Cotuit Oyster Co., Inc. inasmuch as the Company would lose an 18 month to 3 year growing cycle with respect to every individual seed destroyed and/or damaged. This type of loss would imperil the ability of the business to be a viable,economic enterprise. 12. If the dock were repaired or reconstructed as now requested by the Perry/Kozlowski's, it would likewise cause irreparable, economic harm to the Cotuit Oyster Co., Inc. Specifically,recreational boating in immediate proximity to the hatchery and equipment is inconsistent with the needs of a shellfish hatchery. Excessive prop wash and disturbance of the existing fine sand sedimentation is caused by recreational boating. This disturbed sediment is ingested by the shellfish seed stocks which are filter feeders, smothering their gills, and hence destroying the hatchery. Recreational boating also is known to cause damage to the aquacultural equipment essential to the operations of the hatchery. SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS,6-DAY OF JULY, 2005 Richard C Nelson 2 N r 3 ,. N :� �, `�� a� i �� ��i ��������� \' 1 4'1 A `{. 54��rv:. � �� i u� ' ` ___ �, .�� , +, r � 'ta -�; e� - � �, R � ar .�:. ��� �s� �.Q � ',: n €s Villages eve I1 of Barnstable �pF THE r0 w y�P yin a BABNSTABLE, a° y MASS. p� ppA 1639. `�Q> rFD AWAY Written by its people on the occasion of the 200th birthday of the United States of America Published by the Town of Barnstable Barnstable, Massachusetts 1976 {' :ages of Barnstable I: } now left high and dry for ready cash. Trade stops, the .. stores are hard up, and all feel the hard times.' L. ,I jCa ; oysters Oysters have also played a part in the history of Cotuit, and Cotuit oysters. can be found on the menus of the best hotels and restaurants. What makes the Cotuit oyster so spe- cial? Apparently the conditions in Cotuit Bay are just right to I { ; give the oysters their special flavor, and the right food is avail - aI able for them, washed down from the shores of Cotuit Bay. Ousters also require some fresh water, and there are many Er fresh-water springs in Cotuit Bay. However, oysters do not propagate readily in Cotuit 11D Bay, probably because the bottom is too sandy and smooth V p and the spawn must have something to cling to. For that l!I reason, seed oyster is brought from Long Island Sound and .' . allowed to remain undisturbed for five or six months, acquir- "' ing the distinctive Cotuit flavor. According to Henry C. Kittredge, in Cape Cod: Its Peo- '' ale and. �'hei� History, a certain Jonathan Hatch and Nicholas I ', Davis in 1655 and Benjamin Bearse in the 1700s sold oysters. Ipj Sometime after 1857 Captain William Childs bought the Bethuel Handy house and went into the oyster business. His son Samuel and his two sons-in-law, Ezra Gifford and Ezra KM Hobson, joined him. The oysters were packed in barrels and shipped, first by wagon to West Barnstable, then by train to ii ?I i Boston, New York, and other cities. i Many other men started in the oyster business. 'Captain �l it Carleton Nickerson, his brother Benjamin, and Captain Joseph Hallett formed a company called the Bluff Point Oyster Com- !�" pany in the 1870s. In 1894 Samuel Childs, Ezra Gifford, and Ezra Hobson each went into business on their own at Little River. Hanle Gifford had a small grant on Popponessett Bay before 1900, and Irving Phinney had grants near Bluff Point. �! I Around 1912 Harry Height of the Eastman Kodak Com- '' pany bought out a number of separate oystermen.and formed the Cotuit Oyster Company- About 1920 he sold it to Charles a ! I. Gifford. Royce Baker was made manager until the business hI i r ' II, The Village of Cotuit 199 was moved to Little River, when Henry Robbins was ap- pointed manager. About 1923 the Seacoast Oyster Company I bought the business and the name from Mr. Gifford, retaining Henry Robbins as manager. Andy Post became manager in 1951. During this time Ezra Gifford had been doing business at Little River on his own. Up to the time of his death in �. 1940, Ezra had supplied hotels. as far away as Cleveland and Chicago. On his death, his son Herbert carried on. During World War II, Camp-Can-Do-It was established in this area j! to train men in the use of landing craft. The landing craft dis- turbed the oyster beds. Then the 1944 hurricane wrecked the oyster shanties. Herbert Gifford rebuilt them and continued oystering until the 1954 hurricane wrecked the shanties again. p . He then decided to give up the oyster business and concen- trate on setting up clambakes, which he still does today. In 1960 William A. Walsh of Ohio, who owned the Sea- Coast Oyster Company of New Haven, of which the Cotuit ;i Oyster Company was a subsidiary, decided to dissolve his in- terests. He turned the Cotuit operation over to his manager, Mr. Andrew Post. d. Post carried on the business for a year. Then he needed financial backing. In July, 1962, the Cotuit Oyster Company was incorporated and reestablished by Robert Smith, Miss Helen MacLellan, and Kenneth Bell. Post was retained as manager. The property and name of the Cotuit Oyster Com- pany, Inc., were leased fi•om Walsh for an indefinite period. S The trademark, Cotuits-R-Superior is copyrighted: no one, therefore, can call Cotuit oysters Cotuits unless they are pur- chased from this company. ' On October 1, 1973, Richard Nelson purchased the en- tire stock of the Cotuit Oyster Company and became sole I! owner. He is also the sole town grantee practicing agriculture in the ocean bed. As he says, "I am the owner-operator of the Cotuit Oyster Company." Nelson says his largest market is ! the Boston area; he now ships to other parts of the country as j well. His operation is still small, but he hopes to restore the Cotuit Oyster Company to its former state. I 'I� I l 200 e even. Villages of Barnstable An interesting side light on the oyster industry is found y in Morse's diary: f, April 3rd, 1899. At dinner at the Handy's and a guest sat at table with us. "Come is Mrs. Handy's way of calling us to meals. No waste of fi-inge words and we leave the cat and dog, who being fellow boarders, share the sitting ' room with us and are friendly. A cheerful "Come" and y we come at once. Eddy Handy takes the head of the table and the lead in the conversation, which turned `! chiefly on fishermen's rights against oystermen's en- croachments. A quarrel has sprung up between these I;: ! two sets of Bay-toilers and is to be settled in court this month. . . Those who rake scallops and quahogs from the harbor bottom are met by the oyster planters with a !! '! claim to the ground under their grant of oyster privi- ;;j leges. They reach to mid-channel, they say, leaving no !" room for dredgers. The quahaug [sic] men will deny the right of the town to grant such exclusive privileges. . j At supper Eddie appeared from his oyster and scal- �i lop claims and with his rubber boots on sat down to ` table. The talk fell on oyster culture and the trade. He j f used last year 500 bushels of scallop shells, scattering j " ji them along the channel in Popponessett Bay, and found l!I that the drifting oyster caught onto the shells, sixty to seventy to a shell, growing up thus as an attachment, I like a barnacle until big enough to crowd each other off or break up the shell on which they rest and become in- dependent factors in shellfish life. In three seasons, the It I young oyster is ready for market. From his 500 bushels of scallop shells have grown already as many bushels of oysters in a single year. The yield is highly remunera- tive, although many of the spawn perish in over crowd- �(;' ing. From his oyster beds he sends up to the Crawford House in Boston, he says, twenty five to thin} barrels F. every week in winter. �'�i 'I Scallop dredging, as he calls the wort: of getting live scallops from the bay, is also very remunerative. N''i Women are employed to open the shells, reducing two bushels in shells to about a gallon of the marketable thing. For their labor they get thirty cents a gallon. Mrs. Handy seems to be the champion opener, and she lilies I it, she declares, better than housework. Scalloping brought him last year December $325. He raked in six or seven tubs a day or 40 gallons a week. ! , I 201 - The Village of Cotuit , I Oystering also, his winter employment, he says is profit- I� able. No account of Cotuit as a resort village would be com Inns plete without some information about its took in lodgers at his �J I' As early as 1830 Braddock Coleman g house on Main Street overlooking the beach at Hooper he. Landing. In 1860, with the financial help of his son, James, III built a two-story building adjoining his house. In 1861 he opened the Santuit House. He advertised in the Patriot for I,II1 August 8, 18 71: "Popular Summer Resort is now open for I� s transients or permanent boarders. The dining room is re- cently enlarged and other improvements made into increased facilities for cooking. Mr. Coleman is now prepared to enter- tain fishing, sailing, and pleasure parties.' In 1873, in a short article on the Cape in The Boston. Globe, appeared this sentence, "For a pleasant and attractive combination of sea shore and country no more charming place III can be found than at the Santuit House in Cotuit Port." After the deaths of Braddock Coleman in 1873 and Jaines Coleman in 1874, the Santuit House, on the main street in Cotuit Port, changed hands, and in 1880 Abbie A. Webb purchased it. The Webbs enlarged it and bought the Alpheus Adams house. . James Webb then advertised he could accommodate 100 guests. When James Webb died around d nd Santuit Hous his e; she Mrs. Abbie. Webb Bodfish, inherited f died in 1918. In 1923 Frederick Lindell of Providence pur- chased the hotel and was planning renovations in 1925 when II the old building caught fire and burned to the ground. The Pines was in Highground. The original building was the small cottage built by David and Abigail Nickerson on hased from Abigail's father .for land on Ocean Avenue purc twenty dollars. Their daughter Ann married John Morse of. I Maine and Framingham. After the death of her parents, Ann and her husband returned to Cotuit with plans for making the ll family homestead into a summer hotel. They were influenced in their decision because the climate and seawater had been I r M CERTIFICATE OF SERVICE I, Marielise Kelly, Esquire hereby certify that I have served a copy of the following documents in hand and/or by fax: (1) Cotuit Oyster Co., Inc.'s Opposition to Plaintiffs' Motion for Stay and Preliminary Injunctive Relief and Memorandum of Law in Support On: In Hand and fax: Michael D. Ford, Esquire 72 Main Street P.O. Box 665 West Harwich, MA 02671 In Hand: Ruth J. Weil, Esquire Town of Barnstable Office of Town Attorney 367 Main Street Hyannis, MA 02601-3907 Office of the Attorney General One Ashburton Place Boston,MA 02108 By fax: Beth McLaughlin, Esq. 617-248-0813 SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS DATE OF July 2005. I� e ise Kelly PXOTUIT OYSTER BLDG APPEAL 28 LITTLE RIVER\MJB COS CO Opposition to Plaintiff Motion to Stay and Preliminary Injunctive 050707.doc COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. Department of Public Safety State Building Code Appeals Board Docket NO. 04-148 COTUIT OYSTER CO., INC. ) Appellant ) V. ) ARTHUR PERRY,Jr. and JUDITH KOZLOWSKI, ) And THOMAS PERRY, in his capacity as the ) Building Commissioner for the ) TOWN OF BARNSTABLE ) Appellees ) Appellees' Request that the Board Stay Enforcement of Its Ruling, Or In the Alternative, Modify Its Order Contained In the Ruling. Introduction The appellees request that this Board stay enforcement of the Order issued in its ruling of June 23, 2005 requiring the appellant to remove the pier at 28 Little River Road in Cotuit, MA. In the alternative, the appellees request that the Board modify its order contained in the ruling, requiring instead that the appellees repair the pier appurtenant to their property at 28 Little River Road, and if they fail to do so in the period and manner prescribed by the Board, that they then be required to demolish the pier. Argument 1. The Board Should Stay Enforcement of Its June 23, 2005 Ruling Pursuant to MGL Ch. 30A, § 14(3) MGL ch. 30A, § 14 gives an appellee the right to appeal a ruling of the Board by way of a civil action in a superior court of competent jurisdiction. Further, though the . i fitl commencement of such action does not operate to stay enforcement of the ruling, § 14(3) provides that the Board itself may stay enforcement. The appellees hereby request that this Board stay enforcement of its ruling issued June 23, 2005. In support,of its Order, and as a Conclusion of Law, the Board's Ruling stated that the pier was an unsafe structure in violation of MGL c. 143 and 780 CMR 121,and required demolition. The Board has subsequently ordered its,demolition. ' A. MGL C. 143 And 780 CMR 121 Provide That An Unsafe Structure May Be Removed OR Made Safe By Its Owner, Mortgagee Or Lessee. The Board of Building Regulations and Standards provide that an unsafe structure. may be removed OR made safe. Moreover, the statute and regulations state that, ' remediation or demolition is to be undertaken by the-owner, mortgagee or lessee of the property. The Ruling also states, inter alia, thafthe issue'in the matter"is clearly an ownership dispute over.which this Board has no jurisdiction and fore which resolution in a different, more appropriate forum is necessary."At appears that the statute and regulations require that the owner of the pierbe determined before it is repaired or ' demolished. Allowing-the appellants to enter,the appellee's property and remove the dock is tantamount to the grant of.a private license by the Board. Clearly, the Board does: , not have the authority to grant such powers-in this case. B. As'Owership Of The Unsafe Structure Is Actively In Dispute:So Is The N Obligation Of Its Repair Or Removal Ownership'of the pier is in active dispute,•and the Board admittedly has no jurisdiction to determine ownership of the pier: Therefore, the order requiring,the appellant, rather than the appellees, to demolish or repair',the pier'is premature and v r 1 improper. By allowing the appellants to remove the pier, the Board would effectively and inappropriately be resolving the ownership dispute. Such a determination is admittedly outside of the Board's jurisdiction. As the sole issue in dispute as to ownership is the pier, the Board would usurp the appellees right to seek a judicial declaration of its ownership in the pier. The Board's determination would then be irreversible and irreparable if the appellant demolishes the pier. C. Public Safety Can Adequately Be Served Without Enforcement Of The Ruling The Board's interest in the primacy of public safety is understandable. However, the public safety can be maintained without requiring that the appellant remove the pier. The appellees are in fact ready, willing and able to repair the pier, though they understandably would have preferred to resolve the ownership issues prior to repair of the dock on account of their own investment-backed expectations, and the monetary costs involved in such repair.. Such a solution is more reasonable considering that the appellees own the underlying realty,and any interest that the appellarits had in the pier disappeared` upon termination of the lease, on which the appellants solely and admittedly premise their interest in the pier. In support of the appellees readiness, willingness and ability to repair the pier, please find attached the Affidavit of Appellees ARTHUR PERRY, Jr. and JUDITH KOZLOWSKI. CONCLUSION/REQUEST FOR RELIEF 1) As it is within the discretion of the Board,the appellees would request that the Board stay enforcement of its Order requiring the appellant to demolish the pier pending resolution of an appeal of the Board's Ruling, or,in the alternative; 2) Since the appellees are ready, willing and able to repair the pier on its property at 28 Little River Road, that the Order be modified to require the appellees to make the pier safe. Accordingly, the appellees request that the Order be stayed to permit them to make the pier safe, or revisit the Order in the ruling so as to direct the appellees to make the pier safe within a period of time and manner prescribed by the Board, and if they fail to do so as prescribed,that they then be required to demolish the pier. Respectfully Submitted, Appellees by their Attorney, Michael D. Ford, Esq. BBO#174440 Jonathan Idman, Esq. BBO# Pending P.O. Box 665, 72 Main Street West Harwich, MA 02671 (508) 430-1900 CERTIFICATE OF SERVICE I, Michael D. Ford, Esquire, do hereby certify that I have, this date, served, via first class mail, postage pre-paid and by facsimile, the attached Appellees' Request that the Board Stay Enforcement of Its Ruling, Or In the Alternative, Modify Its Order Contained In the Ruling, on the attorney for the appellant as follows: Edward R. Gargiulo,Esq., Gargiulo/Rudnick, LLP, 766 Falmouth Road, Madaket Place, Suite A-6, Mashpee, MA 02649, and t . On the remaining appellee and,his attorney as follows: Thomas Perry, Building Commissioner, Town of Barnstable, 200 Main Street, Hyannis, MA 02601; Robert Smith, Esq., Barnstable Town Attorney, Town of Barnstable, 200 Main Street, Hyannis, MA 02601 Michael D. Ford Date: June 28,2005 . _ 12/29/2016 03:29 FAX 001 j i • i AFFIDAVIT OF APPELLEES A.RTMTP PLRR'Y Jr. and NDTTH k-- OWSKI We, being first duly sworn, depose and say as follows. 1. We are the owners of the realty at 28 Little River Road in Comit, MA; 2• As such,we assert exclusive rights and ownership in the pier located thereon;3. We are ready,willing and able to repair the pier located thereon; 4• In support of this contention,we have prepared plans, and consulted Migineers' and contractors to estimate and bid the job of repairing the pie ' Ou penalty and pains of perjury,we are , L —AI- ERRS'',J , Dated:,tune 28, 2005 ITH KOZL S L i . RICHARDA.GARGIULO GARGIULO/RUDNICK, LLP BOSTON OFFICE EDWARD R.GARGIULO ATTORNEYS AT LAW MARIELISE KELLY' 766 FALMOUTH ROAD(RT.28) 66 LONG WHARF . CONSTANCE L.RUDNICK BOSTON,MA 02110 PATRICIA NOYES-CORRIGAN MADAKET PLACE, SUITE A-6 TELEPHONE(617)742-3833 JOHN H.BEE MASHPEE,MASSACHUSETTS 02649 TELECOPIER(617)523-7834 JOSEPH F.CAVANAUGH,III GRIDLEY M.LOSEE,JR. ROBERT R.WALDO f ALICE M.FORBES TELEPHONE(508)477-6400 OF COUNSEL TELECOPIER(508)477-0455 JOSEPH F.STRUMSKI,JR. E-MAIL: grg@grglaw.com •ALSO ADMMM IN NY&NH July 15,2004 Tom Perry,Building Commissioner Town of Barnstable Building Division 200 Main Street Hyannis,MA 02601 RE: Pier,28 Little River Road, Cotuit,Massachusetts Dear Commissioner Perry: Thank you for your letter dated June 30,2004,postmarked July 14,2004,and received by my office today. 780 CMR 110.5 states: "Application for a permit shall be made by the owner or lessee of the building or structure,or agent of either,"not the real property owner. I have attached a copy of 780 CMR 110.5 for your review. Previously,you had been provided with proof of ownership of the pier. Furthermore, Mr.Nelson,owner of the pier, signed the application for the permit. Therefore,having complied with the Statute,kindly issue a permit at your earliest opportunity. Very'truly yours, Edward R. Gargi ERG/mb Enclosure cc: Mr. Richard Nelson, Cotuit Oyster Company Arlene Wilson,A. M.Wilson&Associates PXOTUIT OYSTERNELSOMMJB Tom Perry letter 5 re pier 040715.doc 780 CMR: STATE BOARD OF BUILDING REGULATIONS AND STANDARDS THE MASSACHUSETTS STATE BUILDING CODE requirements of 780 CMR as necessary to insure 3. Retaining walls which, in the opinion of the the public health, safety and general welfare. building official, are not a threat to the public safety health or welfare and which retain less than 110.2.3 Termination of approval: The building four feet of unbalanced fill. official may terminate such special approval and 4. Ordinary repairs as defined in 780 CMR 2. order the demolition of any such construction at Ordinary repairs shall not include the cutting the discretion of the building official. away of any wall,partition or portion thereof,the removal or cutting of any structural beam,column 110.3 Exemptions: A building permit is not or other loadbearing support, or the removal or required for the following activities, such exemp- change of any required means of egress, or tion,however,shall not exempt the activity from any rearrangement of parts of a structure affecting the review or permit which may be required pursuant to egress requirements; nor shall ordinary repairs other laws, by-laws, rules and regulations of other include addition to, alteration of, replacement or jurisdictions (e.g. zoning, conservation, etc.). relocation of any standpipe, water supply, 1. One story detached accessory buildings used mechanical system,fire protection system,energy as tool or storage sheds, playhouses and similar conservation system or other work affecting uses,provided the floor area does not exceed 120 public health or general safety. square feet. 2. Fences six feet in height or less. Note: Also see 780 CMR 903.1 (Exceptions 1. and 2.). the application. Such written authorization shall'bel 5. Greenhouses: A building permit or notice to signed�by the=o_wneriandshallririclude a statement of the building official is not required for the con- ownership-and-shall-identify-the-owner'-s authorized struction of greenhouses covered exclusively with agent,or'shall grant p_ermssiomto-the-lessee-to-apply plastic film(in accordance with St. 1983,c. 671). for the permit. The full names and address s`es of-the (This exemption does not apply if the greenhouse owner;lessee;applicant and.the_resporisible-ofEcers, is to be used for large assemblies of people or us- if-the-owner`orFlesseeis d=eorporate-bodysall-beA es other than normally expected for this purpose.) �stated-in-the application. 110.4 Form of application: The application for a Note:It shall be the responsibility of the registered permit shall be submitted in such form as determined contractor to obtain all permits neces-sary for by the building official but in all cases shall contain, work covered by the Home Improvement as a minimum, the information required on the Contractor Registration Law, M.G.L. c. 142A. appropriate sample uniform building permit An owner who secures his or her own permits for application forms inAppendix B. The application for such shall be excluded from the guaranty fund a permit shall be accompanied by the required fee as provisions as defined in M.G.L.c. 142A. Refer to prescribed in 780 CMR 114.0 and the construction 780 CMR R6 and M.G.L. c. 142A for additional documents as required in 780 CMR 110.7 and 110.8, information regarding the Home Improvement where applicable and as required by other sections of Contractor Registration Program. 780 CMR. 110.6 The securing of a building permit by the 110.5 By whom application is made: Application owner,or the owner's authorized agent,to construct, for a permit shall be made by the owner or lessee of reconstruct, alter, repair, demolish, remove, install the building or structure, or agent of either. If equipment or change the use or occupancy of a application is made other than by'the owner;the building or structure, shall not be construed to written authorization of the owner shall accompany relieve or otherwise limit the duties and responsibil- 20 780 CMR- Sixth Edition 11/27/98 780 CMR: STATE BOARD OF BUILDING REGULATIONS AND STANDARDS ADMINISTRATION ities of the licensed,registered or certified individual registered architect responsible for the design,except nr firm under the rules and regulations governing the as provided in M.G.L. c. 143, § 54A and any issuance of such license registration or certification. profession or trade as provided in M.G.L. c. 112, § 60L and M.G.L. c. 112, § 81R. 110.7 Construction documents:The application for When such application for permit must comply permit shall be accompanied by not less than three with the provisions of 780 CMR 4 or 780 CMR 9 or sets of construction documents. The building official 780 CMR 34,the building official shall cause one set is permitted to waive,or modify the requirements for of construction documents filed pursuant to filing construction documents when the building 780 CMR 110.7 to be transmitted simultaneously to official determines that the scope of the work is of a the head of the local fire department for his file, minor nature. When the quality of the materials.is review and approval of the items specified in essential for conformity to 780 CMR,. specific 780 CMR 903.0 as they relate to the applicable information shall be given to establish such quality, sections of 780 CMR 4, 780 CMR 9 or 780 CMR and 780 CMR shall not be cited, or the term"legal' 34. The head of the local fire department shall within or its equivalent used as a substitute for specific ten working days from the date of receipt by him, information. approve or disapprove such construction documents. If the head of the local fire department disapproves 110.8 Engineering Details,Reports,Calculations, such construction documents, he or she shall do so, Plans and Specifications: In the application for a in writing citing the relevant sections of permit for buildings and structures subject to con- noncompliance with 780 CMR or the sections of the struction control in 780 CMR 116.0, the construc- referenced standards of Appendix A. Upon the tion documents shall contain sufficient plans and de- request of the head of the local fire department, the iaiis to fully describe the work intended, including, building official may grant one or more extensions of but not limited to all details sufficient to describe the time for such review provided, however, that the structural,fire protection, fire alarm, mechanical, total review by said head of the local fire department light and ventilation, energy conservation, architec- shall not exceed 30 Calendar days. If such approval, tural access and egress systems.The building official disapproval or request for extension of time is not may require such calculations, descriptions narra- received by the building official within said ten tives and reports deemed necessary to fully describe working days, the building official may deem the the basis of design for each system regulated by. construction documents to be in full compliance with 780 CMR. In accordance with the provisions of the applicable sections of 780 CMR 4,780 CMR 9 or M.G.L. c. 143, § 54A all plans and specifications 780 CMR 34 and,therefore approved by the head of shall bear the original seal and original signature of a the local fire department. Massachusetts registered professional engineer or 110.9 Existing Buildings: The application for a proposed finished grades; and it shall be drawn in building permit to reconstruct, alter or change the accordance with an accurate boundary line survey.In use or occupancy of existing buildings or structures the case of demolition, the site plan shall show all which are subject to construction control pursuant to construction to be demolished and the location and 780 CMR 116.0, shall be accompanied by a building size of all existing structures and construction that survey where required by 780 CMR 34 and are to remain on the site or plot. Appendix F. 110.11 Independent Structural Engineering 110.10 Site plan: A site plan shall be filed showing, Review: to scale,the size and location of all new construction r and all existing structures on the site,distances from 110.11.1 As a condition for the issuance of a lot lines, the established street grades and the building permit, the structural design of the 11/27/98 780 CMR- Sixth Edition 21 GARGIULO/RUDNICK,LLP BOSTON OFFICE RICHARD A.GARGIULO ATTORNEYS AT LAW EDWARD R.GARGIULO 66 LONG WHARF ) sosr MARIELISEKELLY* 766 FALMOUTH ROAD(RT.28oN,MA o3833 CONSTANCE L.RUDNICK,P.C. MADARET PLACE,SUITE A-6 TELEPHONE(617)742- 833 PATRICIA NOYES-CORRIGAN TELECOPIER(617)523-7834 JOHN H.BEE MASHPEE,MASSACHUSETTS 02649 JOSEPH F.CAVANAUGK M GR1Dur r M.LOSEE,JR. ROBERT R.WALDO 'TELEPHONE(508)477-6400 ALICE M.FORBES TELECOPIER(508)477-0455 •ALSO AD rrED N NY&NH E-MAIL: grg@grglaw.com August 26,2004 VIA: FIRST CLASS MAIL and i CERTIFIED MAIL#7003 2260 0006 9619 5431 IFIE Michael D.Ford,Esquire 72 Main Street P.O.Box 665 West Harwich,MA 02671 A,� RE: Cotuit Oyster Company Pier Off 28 Little River Road,Cotuit' Assessors Map 53,Lot 8 Dear Attorney Ford: t . As you are aware,our office represents the Cotuit Oyster Company,Inc.,owners of the pier This pier is shown on Mass.Division of Waterways License located off 28 Little River Road,Cotuit. 48385,and Order of Conditions SE3-1719. citing It has come to our attention that your clients,Judith KosloC s uit Oyster and Company,Inc..ur Perry are has not bids to do work on our pier as cited above. Please be advised that granted permission for your clients,their contractors or representatives or any other party to do any work whatsoever on the pier. Nor has the Company granted permission for you to seek wetlands or building permits to undertake work on the structure on its behalf. Please be advised that should your clients attempt any work on the structure without necessary permits and permissions,we will take whatever legal steps may be necessary to preserve our property and rights thereto. Very truly yours, Edward R.Gargiulo ERG/gew cc: .;Barnstable Building-Inspection RTIFIED MAIL#7003.2260-.0006.9619 54243 Barnstable Conservation Commission CERTIFIED MAIL#700 0006 9600 9619 5417 400 Judith Kozlowski/Arthur Perry CERTIFIED MAIL#70 03 P:\COTUrr 0YSTERGARGNL0\GEW Lff to Any Ford 040826.DOC