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Town of Barnstable
Growth Management Department
Jo Anne Miller Buntich, Director
Staff Report ,yes
Comprehensive Permit No. 2005-100- Cotuit Center Residences by Bay Point LLC
Minor Modification -One-Year Extensio
Request to extend comprehensive permit t ugust 30, 14
Date: October 17, 2013 G/dd�1L�'
To: Zoning Board of Appeals
From: Elizabeth S. Jenkins, AICP, Principal Planner
Applicant: Bay Point,_LLC
Property Address: C67_1_Maln_street, Cotuit_
Assessor's Map/Parcel: 036/015
Zoning Districts: Residence F; Wellhead Protection Overlay
Background
Comprehensive Permit No. 2005-100 was issued to Bay Point, LLC for the development of the "Cotuit
Center Residences" on August 30, 2007. The permit authorizes the construction of five units of multi-
family housing, including two units perpetually affordable for low- and moderate-income households
at 65-70% of the area median income. One of the units will be located in a renovated historic
dwelling. Related site improvements include an on-site wastewater treatment system, parking,
utilities and landscaping. The rear acre of the lot will be reserved as open space and is subject to a
conservation restriction.
The Applicant appealed the�Comprehensive Permit to the Housing Appeals Committee, claiming the
decision rendered the project uneconomic and the reduction in number of dwelling units represented
a de facto denial of the application. After protracted litigation and extensive mediated negotiation, a
Settlement Agreement was produced and approved by the Housing Appeals Committee on August
27, 2010 and signed by the Town Clerk on March 22, 2011. Subsequently, two Memoranda of
Understanding were signed and recorded to address implementation of the Settlement Agreement
and "limitations encountered in the negation and execution of the Agreement".
Thus, the proposed development is governed by the approved Comprehensive Permit, the Endorsed
Disposition and Settlement Agreement, and two Memoranda of Understanding. Under 760 CMR
Section 56.05 (referenced below), a comprehensive permit must be exercised within three years on
the date which the permit becomes final.
The Memoranda establish other performance deadlines for the project. In reflection of ongoing
concerns regarding the appearance and condition of the property and the historic dwelling, the
Memoranda outlines detailed obligations for the developer regarding maintenance of the property
until construction has been completed. Additionally the Memoranda establish an interim deadline of
June 30, 2014 for completion of construction on the existing historic residence. The Memoranda
establish December 31, 2016 as the deadline for completion of the project.
Applicant's Request
On August 26, 2013, a letter was received from Stuart Bornstein, Manager of Bay Point, LLC
requesting the Board address the validity Comprehensive Permit No. 2005-100. The time limit for
consideration of the request was extended by the Applicant to October 30, 2013. The request was
submitted as an insubstantial change not requiring a public hearing.
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Town of Barnstable,Growth Management Department-Staff Report
Comprehensive Permit No.2005-100—Bay Point/Cotuit Center Residences—Dec 31,2016 Completion Date
The Applicant has submitted the following language for the Board's consideration:
"The Board received a request from Bay Point, LLC to extend the time within Bay Point is
required to commence construction under Comprehensive Permit 2005-100 regarding
Cotuit Center Residences. In order to avoid uncertainty as a result of intervening appeals
and potential tolling and to confirm the time within which Bay Point is required to
commence construction under 760 CMR 56.05(12)(c), the Board does hereby vote to
formally extend the deadline for Bay Point to commence construction to August 30, 2014.
This modification does not constitute a substantial change under 760 CMR 56.00 et seq.
The remaining terms of the Comprehensive Permit shall remain in full force and effect as
modified by a certain Endorsed Disposition Agreement and certain Memoranda of
Understanding regarding Bay Point's obligations under the Comprehensive Permit."
This request allows for additional time to exercise the Comprehensive Permit. In staff's opinion, the
permit must be exercised by March 22, 2014. The Applicant is requesting an extension to August 30,
2014. This request does not appear to impact Bay Point's obligation under the second MOU to
complete construction on the historic residence by June 30, 2014 or complete the entire project by
December 31, 2016.
Code of Massachusetts Regulations -Comprehensive Permits
760 CMR Section 56.05 Local Hearings: Paragraph (12)(c) reads:
"(c) Lapse of Permits. If construction authorized by a Comprehensive Permit has not begun
within three years of the date on which the permit becomes final except for good cause, the
permit shall lapse. This time period shall be tolled for the time required to pursue or await the
determination on any appeal on any other state or federal permit or approval required for the
Project. The Board or the Committee may set a later date for lapse of the permit, and it may
extend any such date. An extension may not be unreasonably denied or denied due to other
Projects built or approved in the interim. Extension of a permit shall not, by itself, constitute a
substantial change pursuant to 760 CMR 56.07(4)."
This section:
1. Authorizes the ZoningBoard to rant extensions of Comprehensive Permits upon request.
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2. Instructs the Board that a request for an extension may not be unreasonably denied.
3. States that a request for an extension shall not "constitute a substantial change", which signifies
that the request, in itself, shall not require a public hearing and the Board cannot find that one is
required.
Further, Section 56.07(4) supplies "Commentary and Examples" of changes that are generally not
considered substantial changes and those that could be considered as substantial changes. The
content of that section is attached.
As this is a comprehensive permit, a simple majority of three members of the Board is needed to
grant the requested modification.
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Town of Barnstable,Growth Management Department-Staff Report
Comprehensive Permit No.2005-100—Bay Point/Cotuit Center Residences—Dec 31,2016 Completion Date
56.07 Criteria for Housing Appeals Committee Decisions
(4)Substantial Changes to Project
(a) Substantial Changes. If an Applicant involved in an appeal to the Committee desires to change
aspects of its proposal from its content at the time it made application to the Board, it shall notify
the Committee in writing of such changes,and the presiding officer shall determine whether such
changes are substantial. If the presiding officer finds that the changes are substantial, he or she
shall remand the proposal to the Board for a public hearing to be held within 3o days and a
decision to be issued within 4o days of termination of the hearing as provided in M.G.L.c.4oB, §
21. only the changes in the proposal or aspects of the proposal affected thereby shall be at issue
in such hearing. If the presiding officer finds that the changes are not substantial and that the
Applicant has good cause for not originally presenting such details to the Board,the changes shall
be permitted if the proposal as so changed meets the requirements of M.G.L. c.4oB, §§20
through 23 and 76o CMR 56.00.
(b) Commentary and Examples. The statute requires that an Applicant present its application first to
a Board before appealing to the Committee. If on appeal to.the Committee the Applicant wishes
to make changes in its proposal from its content as originally presented to the Board,the Board
should have an opportunity to review changes that are substantial. Following are some examples
of what circumstances ordinarily will and will not constitute a substantial change of the kind
described in76o CMR 56.07(4)(a).
(c) The following matters generally will be substantial'changes:
1. An increase of more than io%in the height of the building(s);
2. An increase of more than lo%in the number of housing units proposed;
3. A reduction in the size of the site of more than io%in excess of any decrease in the
number of housing units proposed;
4. A change in building type(e.g.,garden apartments,townhouses, high-rises); or
5. A change from one form of housing tenure to another.
(d) The following matters generally will not be substantial changes:
1. A reduction in the number of housing units proposed;
2. A decrease of less than io%in the floor area of individual units;
3. A change in the number of bedrooms within individual units, if such changes do not alter
the overall bedroom count of the proposed housing by more than to%;
4.. A change in the color or style of materials used; or
5. A change in the financing program under which the Applicant plans to receive a Subsidy,
ifthe-c-ha nge-affects-no-ot-her-aspect-o-f-the-pr-opo-sal.
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Town of Barnstable
Zoning Board of Appeals .
M.G.L., Chapter 40B Comprehensive Permit Decision and Notice
Bay Point LLC
Comprehensive Permit 2005-100—Cotuit Center Residence
Applicant: Bay Point, LLC
Property Address: 671 Main Street,Cotuit,MA
Assessor's Map/Parcel: . Map 036,Parcel 015
Zoning: Residence F Zoning District
Groundwater Overlay: Wellhead Protection Overlay District
Permit Granted: Five(5).units of multi-family housing on•2.38 acres. Two of the dwellings are to be
affordable units marketed to qualified low and moderate-income households at 65%and
70%of the median income. 'Three units are to be one-bedroom new construction
townhouse units. A fourth unit is to be a one-bedroom created by either renovation of an
existing cottage or demolition of that cottage and construction of a new townhouse. The fifth
unit is to be created by preservation and restoration of the existing historic home as a three-
bedroom dwelling. Related site improvements include on-site septic,parking,utilities and
landscaping.
Background Information:
The Applicant:
The applicant is Bay Point, Limited Liability Company (LLC),Stuart A. Bornstein-Manager. The
address of the company is 297 North Street, Hyannis, MA 02601 Copies of the Commonwealth of
Massachusetts Certificate of Organization creating Bay Point, LLC and a copy of the proposed
Operating Agreement for Bay Point, LLC have been submitted.
Relief Requested:
On September 16,2005,the applicant, Bay Point, LLC, submitted a Comprehensive Permit
application to the office of the Zoning Board of Appeals for the development of"Cotuit Center
Residence". The application requested the development of 11 multi=family units on an existing
developed lot consisting of 2.38-acres fronting on Main Street in Cotuit. The application was made
with the intent that the development would be restricted to age 55 and over.
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The plans proposed retaining the front half of the main structure located on the property as a three-
bedroom dwelling and the expansion of the existing"cottage"structure-Q-a_two-�.edroom-uni-t
Three new multi_famlly ures-Wem—to-b-e4aW4t$flt-h s-,Mth-each-stracture—containing
three,two-bedroom townhouse type dwelling units. Three,three-car garage structures were also
` : proposed. The development was to be serviced by public water and a proposed private on-site
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Bk 27606 Pg4 #46177
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Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
septic disposal system. Plans included re-grading of the property,a center driveway, accessory
parking, utility services and landscaping.
Three of the dwellings were to be dedicated as affordable units marketed to qualified low and
moderate-income households. The development was to be funded through the Housing Starts
Program of Massachusetts Housing Finance Agency and/or the New England Fund Program of the
Federal Home Loan Bank of Boston.
The Locus:
The 2.38-acre parcel is a developed lot consisting of two dwellings. The principal dwelling is a
2,369 sq.ft.,two-story,three-bedroom, single-family structure. A second one-story "cottage"
dwelling consisting of 550 sq.ft. is situated to the rear of the principal dwelling. The property was
purchased in the name of Bay Point, LLC on February 17, 2005 for$700,001.00.
The locus is zoned Residence F. That district permits only one single-family dwelling and its
accessory buildings and uses. It is within the Resource Protection Overlay District and a Wellhead
Protection Overlay District. The property is approximately 1,200 feet from Cotuit Bay, a south
coastal embayment and one of the three bays situated between Cotuit and Osterville., Nitrogen
loading to those bays has been of concern as fin and shell fishing resources have deteriorated and
public beaches have experienced high levels of nitrogen and high bacteria counts.
The property is within the Town's designated Wellhead Protection Overlay District and is subject to
the local Board of Health regulations,Section 232 of the Code of the Town of Bamstable,.
Wastewater Discharge. That Section is commonly referred to as the"330 Rule"which limits on-site
wastewater discharge to 330 gallons per day per acre within designated groundwater protection
districts. Approximately 1/3 of the lot is within a Massachusetts'Department of Environmental
Protection (DEP)'Zone I'which,for public water system well with approved yields of 100,000
gallons per day, the protective radius is 400 feet. The remaining property is in a DEP designated
Zone 11.
The undisturbed portion of the property which is the bulk of the lot is identified in the Natural
Heritage& Endangered Species Program Priority Habitats of Rare Species and Estuary Habitats of
Rare Wildlife. According to that program,the area constitutes a habitat for the Eastern Box Turtle.
The principal structure dates to the 1900's and is listed in the National Registry of Historic Places as
a contributing building to the Cotuit Main Street Historic District. The abutting uses are all single-
family with the exception of the land to the rear of the site that is owned by the Cotuit Water
District and is used as a public supply well site.
Main Street in Cotuit is mostly single-family as it has been zoned only for single-family use since
the Town enacted zoning in 1929. The commercial uses are all nonconforming or exempt uses
that are relatively benign, low im a uses conslsttrg of a neighborh6od-convenyience-store-that
includes package goods,take-out pizza and sandwich service. Further southward is the village's
library and a small landscaped green. Further on is "Freedom Hall",the village's recreation and
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Bk 27606 Pg5 #46177
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Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
social gathering hall. Along School Street there is a professional real estate and an architect's office,
a neighborhood eatery with a bar, the Cotuit Post Office and a religious institution. A way-to-water
with a small public beach is located off Main Street. Also, northward and off Main Street,there is a
public soft ball field which hosts the Cape Cod Baseball League.
Procedural History:
On September 16,2005,the applicant,Bay Point LLC, submitted a Comprehensive Permit
application to the Town Clerk and to the Office of the Zoning Board of Appeals accompanied with
a signed Extension of Time Limits for holding the public hearing. On the same day,a
memorandum from the Board,transmitting copies of the application and requesting review and
comment was sent from the Board's office to select agencies, boards and commissions in
accordance MG Chapter 40B and the Board's Comprehensive Permit Rules and Regulations.
A public hearing was duly scheduled before the Board for November 02,2005 and public notice of
thathearing was posted in Town Hall,mailed to interested parties and published in the Barnstable
Patriot on October 14 and 21, 2005. The public'hearing on this permit application opened on
November 2, 2005,continued to December 14, 2005, February 15, 2006, April 12;2006,:May 24,
2006,August 23,2006; November 15, 2006,January l 7, 2007, February 28, 2007,Apri'I.11, 2007,
May 9, 2007, and to July 25,2007. At the July 25th hearing, public comment was closed and the
Board continued the hearing to August 8, 2007,for the purposes of rendering a decision. Board
Members hearing the Comprehensive Permit application and rendering this decision were:Sheila
- Geiler, Randolph Childs,James R. Hatfield; Daniel M. Creedon, and Chairman-Gail C:;-
Night'ingale.
Mr. Stuart A. Bornstein was present throughout the-hearing. Attorney Edwin E.Taipal&-initially
represented the applicant at the hearing,after which,Mr. Boi=nstein presented the application.
They were assisted by the project engineer Daniel A. Ojala. During the course of the public
hearings, plans for the development were modified several times. The applicant eliminated the
proposed age restriction, relocated the development out of the DEP designated Zone I area of the
site, eliminated the garage structures, increased the number of units to 12, reduced the total
number of designated bedrooms to 14 and added open loft areas to the second floors. To assist the
Board in addressing concerns for the on-site septic system and nitrogen loading to the public supply
well and the costal embayment,the applicant agreed to and funded a peer review of that issue and
the plans.
The last rendering of the plan proposed a 12 unit development consisting of 5 new duplex
buildings totaling 10,one-bedroom dwellings with second floor loft areas,a one-bedroom unit
created from the existing cottage building and a three-bedroom unit from the existing main
dwelling. That plan also proposed anon-site septic system that included a biological filter
treatment and nitrogen removal, outdoor parking for 24 vehicles and related landscaping and utility
service--s.
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Bk 27606 Pg6 #46177 V
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Town of Barnstable-zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
List of Materials Submitted:
The following is a list of materials submitted to the file on this application.
1. A transmittal letter dated September 14, 2005,to the Zoning Board of Appeals from Stuart A.
Bornstein accompanied by the Comprehensive Permit Application,
2. Application for a Comprehensive Permit as submitted by Bay Point, LLC, with Town Clerk's
{ Office date stamped September 16, 2005, and consisting of several attachments as itemized:
• Attachment A—Applicant's status including a copy of the Commonwealth of
Massachusetts Certificate of Organization creating Bay Point Limited liability Company
(LLC) identifying Stuart A. Bornstein as Manager.
• Attachment B —Agency Commitment Letter dated August 2, 2005, Site Approval Letter to
Stuart A. Bornstein-Manager, Bay Point LLC from Thomas R. Gleason -Executive Director,
Department of Housing and Community Development. .
• 'Attachment C— Document of applicant's ownership of the property containing copies of
two deeds transferring the property from Kristine E Nielsen and Karen Grammaticas,and
Eloise G. Nielsen to Bay Point, LLC,as recorded at.the Barnstable Registry of Deeds on
February 17, 2005, in Book 19541, page 310 and page 317.
• Attachment F-Project description and narrative explaining existing conditions and
• description of the proposed development as initially presented.
• Attachment G —Project site plan and architectural plans
• Attachment H -Pro-Forma analysis projecting costs of the originally proposed development
at $3,724,670. Total income from sale of the units estimated at$4,084,200 resulting in
total profits of$359,530 or 9.65%.
• Attachment I —List of public agencies for review and approval:
• Attachment J — List of requested exceptions
• Attachment 1 — Developer's' Profile
3. Copies of the September 16, 2005,Transmittal Memorandum from Daniel M. Creedon III-
Chairman,Zoning Board of Appeals to various agencies, boards, commissions and departments,
transmitting copies of the application and requesting a review of the proposed Comprehensive
Permit application. The memorandum was sent to: Gary C. Brown — President-Town Council;
John Klimm-Town Manager; Robert D.Smith, Ruth Weil-Town Attorney's Office; Laura F.
Shufelt—Chairman.- Barnstable Housing Committee,and Elizabeth Dillen-Office of
Community Economic Development;Thomas-K—Lynch=Director---Barnstable-H1.ousing
Authority; David Munsell —Chairman- Barnstable Planning Board;John J.Finnegan —Chief-
ar
Barnstable Police Department;
Mark S. Ells— Director- Department of Public Works; Maureen
p ment•,
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Bk 27606 Pg7 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
McPhee-Tax Collector; Robert Gatewood-Conservation Administrator;Thomas McKean-
Health Agent; Tom Perry- Building Commissioner;Margo L. Fenn-Executive Director-Cape
Cod Commission;Chief Paul A. Frazier.-Cotuit Fire Department;Thomas F. Gei_ler- Director of
Health Safety and Environmental Services; Ken Ventura-Superintendent-Cotuit Water
Company; and Thomas F. McDonald-Interim Superintendent-Barnstable School Department
and Nancy Clark-Chairman-, Barnstable Historic Commission.
4. Agencies, Boards and Commissions reviews received:.
• Cotuit Fire Department e-mail correspondence dated September 28, 2005,from Paul A.
Frazier-Fire Chief-Cotuit Fire Department.
• Board of Health/Health Division e-mail correspondence dated October 18, 2005, from
Thomas McKean -Health Agent noting that the Bay Point Chapter 40B proposal had been
reviewed by the Board of Health on October 11, 2005,and that the proposal does not
comply with State Environmental Code,Title 5 or the Section 232 of the Code of the Town
of Barnstable-Wastewater Discharge.
• Cape Cod Commission correspondence.of October 21, 2005, noting that for the purposes
Of Comprehensive Permits,the Commission is a local review board. The Commission's:
review stated, among other things,that age 55 and over affordability is not a priority need
in Barnstable County and that wastewater treatment system exceeded 6.00 ppm nitrogen
loading in an area of concern for nitrogen loading to Cotuit Bay.
• Town of Barnstable-Pol ice Department review of October 24,2005,from Sgt. Andrew P.:
McKenna,cites that the proposal does not appear to adversely affect traffic conditions:
• Letter dated October 17, 2005, from Theresa A. Egan-President of the Historic Society of
Santuit & Cotuit, Inc., citing that a higher density of development within the village center,:-
of Cotuit is an inappropriate development of an historic building and site.
5. Age Restricted Active Adult Housing in Massachusetts, a June 2005 report of the Citizen's
Housing and Planning Association
6. A citizen's petition signed by 127 persons in opposition to Bay Point's Comprehensive Permit
application was received October 19, 2005. Public correspondence in opposition was received
from: Edward L. Peirson, 621 Main Street, Cotuit, Phyllis J.Miller, 688 Main Street, Cotuit,
Gloria Y. Myers, 923 Main Street, Cotuit, Barbara A. Kern, 701 Main Street,Cotuit, Richard
Buell & Phyllis H. Buell, 689 Main Street,Cotuit, Raymond E.Smith 719 Main-Street,Cotuit,
and Anne &Jim Adams, 759 Main Street, Cotuit.
7. Town of Barnstable-Planning Division Staff Report dated October 24, 2005,as submitted to
the Board and inclusive of attachments to that date.
8—A-Dec-em-ber 8, 200"tter-f-rom-Aftfney-Edwin--1`T-aipale-transmitti-ng-copi es ofthe proposed
Operating Agreement of Bay Point, LLC.
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Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit center Residence
9. An April 25, 2006,e-mail correspondence from the Barnstable Housing Committee requesting
that staff secure additional information.
10. Barnstable Public School's letter dated May 03,2006,from William F. Butler-School Attorney
citing that the School Committee had no concerns.
11.A May 10, 2006, e-mail form Thomas McKean-Health Director noting that the Town's
Wastewater Discharge Ordinances(330 rule) would limit the number of bedrooms permitted
on the property and that the Chairman of the Board.of Health has requested a review of the
Amphidrome I/A system.
12. A letter dated May 17, 2006, from Frederick Kiely—Chairman -Board of Water
Commissioners,Cotuit Fire District,and the Water Department, stressing concern for the
increased density within Zones II to the public supply wells and potential threat to the quality
of the drinking water supply.
13. A letter dated May 16,2006,from Chief Paul A Frazier-Cotuit Fire Department reviewing the.
revised plans and citing plan needs.
14.A May 22, 2006, letter from Thomas K. Lynch-Executive Director-Barnstable Housing
Authority expressing support of the revised proposals as it is no longer age restricted and will be
a mix of rental units and ownership units and that three affordable units would be rental units
priced to be affordable to the 65% income level.
15. Correspondence dated May 30,2006, from Daniel A. Ojala-Project Engineer responding to
Mr. McKean's request and noting that a waiver was being requested from the Zoning Board to
the local 330 rule.
16.A copy of the June 13, 2006, Board of Health meeting results as it relates to Bay Point.
17.A June 20, 2006, Memorandum from Robert A. Burgmann-Town Engineer,expressing concern
for the revised plans.
18.An August 16, 2006, Town of Barnstable-Growth Management Department Staff Report as
submitted to the Board and inclusive of attachments to that date.
19.A copy of the Consulting Services Request for Proposed dated August 30, 2006, as mailed to
five consulting firms regarding the peer review.
20.Public correspondence from Frances S. Parks dated August 31, 2006, citing the need for a back-
up electric generator.
21.Copies of the three responses to the Request for Proposals regarding the peer review as
received at the Zoning Board of Appeals Offir-e and a September 21, 2006,distribution
memorandum requesting review of proposals.
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Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
22.An October 06,2006,staff notification to Mr. Bornstein regarding the Board's October 04,
2006, selection of the proposal submitted by the Horsley Witten Group, Inc and requesting the
funds for the study.
23.A landscape plan for the development submitted to the file on October 11,2006.
24.An October 20,2006, letter in opposition along with a copy of a letter sent to the Barnstable
Housing Committee from Thomas Knight Burgess and Ann Elizabeth Burgess-Berbee,abutters
to the development.
25.A second request from staff dated October,23,2006,to Mr. Bornstein to fund payment account
for the selected consultant.
26, Copy of an October 26,2006, correspondence to Town Treasurer for deposit of funds received
from Mr. Bornstein for the peer review.
27.Copy of an October 27, 2006, letter sent to Mark Nelson-Horsley Witten Group notifying
them as the selected consultant.
28.A copy of a letter dated November 20, 2006, sent to Ken Ventura-Cotuit Water Company and
Frederick Kiely-Cotuit Board of Water Commissioners notifying them of the consultant
selection and activities.
29.An invoice dated November 30, 2006,from Horsley Witten Group and letter dated December
6, 2006,to Gareth MarkWell-Assistant Treasurer requesting payment of invoice.
30.A December 7, 2006, letter from Mark Nelson-Horsley Witten Group notifying staff that,the
site of the development is in a designated rare species habitat and a letter dated December 12,
2006,to Stuart Bornstein regarding that information.
31. Drainage Calculation and Utility Plan dated May 6, 2006,from Daniel Ojala—Project
Engineer, submitted December 26,2006. -
32.Copy of second peer review invoice from Horsley Witten Group received January 4,2007
33.Copy of the applicant's MESA (Mass. Endanger Species Act) Information Request Form as
submitted to Natural Heritage & Endangered Species Program-January 9, 2007.
34.The Horsley Witten Group Wastewater& Stormwater Peer Review as submitted to Zoning
Board of Appeals office on January 9, 2007.
35.Copy of Town of Barnstable Growth Management Staff report dated January 10, 2007, revised_
January 17, 2007.
36.Zevlsed-Site ans; aced 2-2-8=07 as submitted at-the P—ub7ic Fearing of-February 28;2OD7,and
a memorandum from Daniel A. Ojala summarizing changes made and Nitrogen loading
Calculations.
7
Bk 27606 Pg10 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100-Cotuit Center Residence
37.Copy of a March 2, 2007, letter to Gareth Markwell -Assistant Treasurer transmitting additional
funds to that office for processing of the peer review.
38. Letters in objection to the grant of the Comprehensive Permit from L. Odence, PO Box 503,
Cotuit MA dated March 10, 2007,from Anna&Jim Adams, 756 Main Street, Cotuit, MA dated
March 13, 2007,from Herbert and Barbara Jackson, PO Box 501,Cotuit,MA dated April 5,
2007, and from Phyllis Miller, 688 Main Street,Cotuit,MA dated April 4, 2007.
39. Copy of a letter dated March 28, 2007, to Gareth Markwell-Assistant Treasurer requesting and
authorizing payment of Horsley Witten Group invoice dated February 28, 2007.
40.An April 5, 2007, memorandum from Attorney Michael D. Ford to the Board on denial of
Comprehensive Permits. The memorandum was submitted at the request of the Board.
41. Revised plans incorporating Nitrix filter and SeptiTech processor submitted April 5, 2007, and
an April 6, 2007, e-mail from Daniel A. Ojala including Revised Site Plan dated 4-5-07, Revised
Nitrogen Loading Calculations dated 4-6-07, NHESP Approval Letter and related documents.
42. Budget Amendment Request from Horsley Witten Group dated April 5, 2007. Copy of an April
9, 2007, letter to Gareth Markwell -Assistant Treasurer transmitting additional funds to that
office for processing in the peer review.
43. Letters in opposition from Warren &Sandra Nickerson, 24 Hannah Circle, Cotuit, MA dated
April 6; 2007,from Cotuit-Santuit Civic Association, signed by Thomas K. Burgess for the
Executive Committee dated April 9,2007,from Anne &Jim Adams, 759 Main Street, Cotuit,
MA dated May 14, 2007,from Alfred N.Wohlwend, 923 Main Street, Cotuit, MA dated May
18, 2007,and copy of correspondence to Health Division/Board of Health from Kenneth H.
Molloy, 225 Oxford Drive,Cotuit,MA dated May 16, 2007.
44. E-mail correspondence dated April 11, 2007,to Daniel Ojala from staff requesting that copies
of plans be provided to Health, Fire, and Engineering for review and correspondence from Paul
A. Frazier-Chief, Cotuit Fire Department including a copy of the prior May 16, 2007,
correspondence
45.An April 18, 2007, letter from Wayne Miller, M.D., Barnstable Board of Health to the Zoning
Board of Appeals citing the need for review of the revised septic design.
46. Horsley Witten Group Peer Review Update dated April 30, 2007, based upon revised plans.
47. Correspondence dated May 3, 2007, from Stuart Bornstein requesting continuance of the May
9"'hearing.
48.Copy of a May 16, 2007, letter to Gareth Markwell -Assistant Treasurer requesting payment of
an invoice dated April 30, 2007, from Horsley Witten Group.
s
Bk 27606 Pg11 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100-Cotuit Center Residence
49.A May 30, 2007,e-mail Transmittal Sheet from Down Cape Engineering with attachments sent
to Thomas McKean- Director Health Division. A June 4, 2007,e-mail copy of Board of Health
filing dated May 31, 2007, made by Daniel Ojala with attachments.
50. Letter from the Board of Health dated June 13,2007,citing concerns for design of the units
with lofts being"de facto two-bedrooms"and that the proposed septic system is a provisional
system-a pilot installation.
51.A July 17,2007,e-mail correspondence from Daniel Ojala with an attached document from Dr.
Jennifer Rivers Cole (The Rivers Consulting Report)dated July 12, 2007.
52. Copy of a July 18, 2007,Growth Management Department Staff Report to the Board.
53.A July 25, 2007 letter from Attorney Mark H. Boudreau citing the Cotuit Water Department's
opposition.
54.A July 30, 2007,fax correspondence from Stuart Bornstein with a January 20,2006, letter from
MassHousing attached.
55. Copies of a draft regarding possible findings on Bay Point dated July 23, 2007,to deny and
August 1,2007,to grant. The drafts were generated at the request of the Board.
Findings with Respect to Standing-Review of jurisdictional Requirements:
Motion: At the hearing on August 8, 2007,a motion was duly made and seconded to find the
following findings of fact on standing,the jurisdictional Requirements of the applicant to apply for a
Comprehensive Permit under MGL Chapter 40B as identified in CMR 760 Sections 30-31: -
1. With respect to the limited dividend organization, the applicant is Bay Point LLC., a Limited
Liability Company, Mr.Stuart A. Bornstein -Manager. A copy of the Commonwealth of
Massachusetts Certificate of Organization was submitted with the application for a
Comprehensive Permit on September 16,2005.
A copy of the proposed Operating Agreement of Bay Point, LLC. was submitted to the file on
August 28,2006. It includes language that restricts the company to low or moderate income
housing developments as defined in Chapter 4013, Sections 20-23,and as that term is used by
the Commonwealth of Massachusetts Housing Appeals Committee. It cites that the
organization would restrict its operation pursuant to the requirements of the CMR Chapter 760,
Section 30.02 to that of a limited dividend organization. At this time, the document has not
been signed nor recorded. Mr.Stuart Bornstein has testified that it would be signed and
recorded upon the granting of the Comprehensive Permit.
2. As to the funkablliry;tlils is-ad ifficult aspect as to staing as the proposed pro}ec has change
during the course of this hearing. A copy of a Site Approval letter dated August 2, 2005,to
Stuart A. Bornstein -Manager of Bay Point LLG.,from Thomas R. Gleason -Executive Director
9
1: I
Bk 27606 Pg12 #46177
f �
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
of the Department of Housing and Community Development,was submitted with the
application for a Comprehensive Permit on September 16, 2005. That letter was issued based
upon the initial plan for the development that proposed a total of 11 two-bedroom units of
housing on 2.38 acres. The plans upon which the site approval letter was issued proposed the
retaining of the front half of an historic three-bedroom dwelling as one unit,expansion of the
existing 'cottage structure'to a two-bedroom dwelling,and the construction of three new multi-
family structures each consisting of three,two-bedroom townhouse type dwelling units. Nine
indoor garages in three new structures were also proposed as was accessory outdoor parking.
Of the 11 units,three of the dwellings were to be dedicated as affordable units. The
development was intended to be restricted to age 55 and over and all units were intended to be
for sale with the affordable units restricted to the 80% income Iimitation.
Over the course of this hearing,development plans have changed a number of times including
the total number of units,type of units, pricing of the affordable units reduced to the 65%
and/or 70% income group and includes that option of a mixture of for sale and rental units.
The Board has requested an updated Project Eiigibility—Site Approval Letter-and the applicant
had testified that the August 2, 2005,Site Approval letter is still valid regardless of the change
in the complexion of the project. No written confirmation on extending the Project Eligibility
letter from MassHousing was received. On July 30, 2007,after the close of the public hearing
and the record for this application,a January 2-0,2006, letter from MassHousing was faxed to
the Board. That letter stated that MassHousing policy is to review changes made to a
development plan only upon a request for Final Funding Approval. That letter reiterated that
the Project Eligibility Approval letter dated August 2,2005, is valid for two(2)years and stated
"if an extension is required,a formal request must be made". No extension has been
submitted to the file. As the August 2,2005,Site Approval letter has expired;the Board will
condition any approval upon receipt of an extension of the Project Eligibility Approval letter
and receipt of a Final Approval letter based upon the final plans as conditioned herein if
granted.
3. The third statutory regards site control. The applicant owns the property as documented by
copies of two deeds transferring it from Kristine E. Nielsen & Karen Grammaticas, and from
Eloise G. Nielsen to Bay Point LLC. The deeds were recorded at the Barnstable Registry of
Deeds on February 17, 2005, in Book 19541, page 310 and page 317. Copies have been
submitted to the file with the application.
The Vote on the findings for standing was as follows:
Aye:Sheila Geiler, Randolph Childs,James R. Hatfield, Daniel M.Creedon, Gail C. Nightingale.
Nay: None
10
Bk 27606 Pg13 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit center Residence
Decision on Standing:
Motion: Based upon the findings cited above a motion was duly made and seconded to find that
the applicant has standing to apply for a Comprehensive Permit subject to an updated project site
eligibility letter from MassHousing.
The Vote with respect to standing was as follows:
Aye:Sheila Geiler, Randolph Childs,James R. Hatfield, Daniel M. Creedon,Gail C. Nightingale.
Nay: None
Findings of Fact Regarding Consistency with Local Needs:
Motion: The Board, having found that the applicant has satisfied the requirements as to standing,
proceeded to make a motion and second that motion that the following findings be made with
respect to the proposed development consistency with local needs:
1. Bay Point, LLC, has applied for a Comprehensive Permit under the General Laws of the
Commonwealth, Chapter 40B "Affordable Housing". The applicant submitted a
Comprehensive Permit application to the Zoning Board of Appeals (the Board)on September
16,2005, seeking to develop 11 units of multi-housing on the 2.38 acres,addressed as 671
Main Street, Cotuit,MA. The plans were to:
• Retain the existing historic dwelling and restore it to a three-bedroom,free-standing
dwelling unit;
• Expand and renovate the existing cottage to a two-bedroom,free-standing dwelling unit;
• Construct nine, new,two-bedroom townhouse dwelling units in three, multi-family
structures each with three units. Nine garages were also proposed in three accessory
buildings.
2. Initially,the total number of bedrooms was 23,well in excess of the number permitted under
local Board of Health regulations and in excess of that permitted under state Title 5 regulations
for family housing. The original proposal was that all units were to be for sale and restricted to
age 55 and over. Three of the units were to be dedicated as affordable and sold only to those
households with an age 55 or older member and with an income level not to exceed 80% of
the median income for the Barnstable Metropolitan Statistical Area(MSA). The development
was to be funded through the Housing Starts Program of Massachusetts Housing Finance
Agency and/or the New England Fund Program of the Federal Home Loan Bank of Boston.
3. 1 e 2:38 acres iot is currently noncomfor-ming-in u-se-as-the Resid-enre-F—Zoning-District-in
which it is located only permits one single-family dwelling only. The locus is also within the
Resource Protection Overlay District which requires two acres of upland to meet the minimum
I
Bk 27606 Pg14 #46177
a
Town of Barnstable-zoning Board of Appeals
Comprehensive Permit 2005-100--Cotuit Center Residence
lot area to which the lot does conform. All of the property is within the Town's designated
Wellhead Protection Overlay District and subject to the Board of Health "330 Rule".
Approximately 1/3 of the lot is within a Massachusetts Department of Environmental Protection
(DEP) 'Zone I'to a public supply well. The remaining area of the site is within DEP 'Zone II'.
The site is also identified in the Natural Heritage & Endangered Species Program Priority
Habitats of Rare Species and Estuaries Habitats of Rare Wildlife. The property is within the
designated Cotuit Historic District, a National Historic District. The locus is approximately
1,200 feet from the waters of Cotuit Bay in an area identified as being of concern for nitrogen
loading to coastal waters.
4. The locus is currently developed with two existing dwellings. The principal structure is a three-
bedroom dwelling that dates to the early 1900's and is designated as a contributing feature to
the Cotuit Historic District. The other is a one-story, one-bedroom cottage structure situated to
the rear of the principal dwelling. The development and use of the property predates the
adoption of single-family zoning in the area. The property fronts on Main Street and is serviced
by public water. There is.no public sewer in this area of Barnstable and use of the property
requires a private on-site wastewater disposal system. The rear of the property abuts property
owned by the Cotuit Fire District and used for public water supply.
5. With respect to the Natural Heritage & Endangered Species Program, application was made
under that program and on March 30,2007,a letter was issued identifying that the site is
located within the habitat of the Eastern Box Turtle. It cites that development would be subject
to a deed restriction that preserved the back area of the property in a natural habitat as per a
January 12, 2007,.plan entitled "Conservation Restriction Plan in Cotuit(Barnstable), MA#671
Main Street". The review also required a 20-foot perimeter temporary construction area and the
restoration and delineation of the restricted area with a split rail fence.
6. The locus is in an area of concern for nitrogen loading to Cotuit Bay.The Resource Protection
Overlay District was adopted in 2000 to specifically address recharge to the south coastal area
that includes the'Three Bays'area of Cotuit. It was enacted to reduce nitrogen contamination
to the south coastal marine embayment in order to protect water quality, preserve fin and
shellfish habitat, and preserve the beach and swimming areas of the south coastal area. In fact,
a recent study of the'Three Bays'area has concluded that a zero nitrogen loading guideline
should be adopted which Massachusetts Department of Environmental Protection (DEP) has
accepted. Those guidelines were seen in a recently issued Comprehensive Permit to Cotuit
Equitable Housing for a 124 single-family dwelling development. In that development, DEP
imposed the zero nitrogen loading requirement after the permit was issued by this Board when
the Board had only imposed a 5 parts per million (ppm) overall nitrogen loading to the
development.
7. The rear,third portion of the lot is within 400 feet of the Cotuit Water District's public supply
well CT-E3,that yields in excess of 100,000 gallons per day. This is one of five public supply
wells of_th-e-Cotuit Water District. This particular public super y well has a full-rate pumping
capacity of 350 gallons per minute. At that capacity,the well would pump in excess of
500,000 gallons per day, sufficient water for over 2,300 average households.
12
I
Bk 27606 Pg15 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
8. Given the concerns for on-site wastewater disposal and proximity of the site to a public supply
well and to the south coastal embayment,the applicant,at the request of the Board,funded an
independent peer review of the plans and issues regarding nitrogen loading and wastewater
disposal. The consultant firm selected was the Horsley Witten Group which has been before
the Board in a number of passed Comprehensive Permits with regards to nitrogen loading from
on-site wastewater disposal and site drainage. From the peer review comments and
recommendations,the plans were modified several times and the final plan presented to the
Board proposed a total of 12 dwelling units. That proposal had removed the age restriction on
the development and revised plans dated May 30, 2007,called for:
• Retaining the existing historic dwelling and restoring it to a three-bedroom free-standing
dwelling unit,
• Renovating the existing cottage to a one-bedroom free-standing dwelling unit;
• Construction of ten, new,one-bedroom townhouse dwelling units with a second floor
loft in five duplex structures. Each new unit having 1,540 sq.ft. of living area and a full
basement.
That plan has a total of 14 bedrooms still in excess of the number of bedrooms permitted under
local Board of Health "330 Rule" but included a nitrogen reduction on-site septic system.The
plans eliminated garage parking and sited 23 open air parking spaces. After discussion with the
Barnstable Housing Committee, the applicant committed the three affordable units to be
dedicated in perpetuity as affordable to the 65% and 70% median income household level for
the Barnstable Metropolitan Statistical Area(MSA). The option for having both for sale and/or
rental was also presented to the Board.
9. The latest plan purports a 3.98 ppm overall site.nitrogen loading to meet the Cape Cod
Commission's standard of 5 ppm nitrogen loading. That plan also attempts to address nitrogen
loading to groundwater caused by the septic disposal in close proximity to a public supply well
and concerns cited in the peer review for possible contamination of the public supply well by
pathogens,active viruses,volatile organic compounds(VOC's)and other contaminants. In
attempting to meet the standards and address those concerns,the applicant has proposed a
SeptiTech" system which is an aerobic enhanced re-circulating biological filter treatment
system followed with a Nitrex T' nitrogen removal wastewater treatment system to filtration
through the soil absorption system,a leach field. The leach field is outside of the DEP 400-foot
Zone I,but still only 568 feet from the public supply well and within the Town's designated
Wellhead Protection Overlay District and DEP Zone 11 to the public supply well.
10. Both the SeptiTech TM and Nitrex systems are"provisional systems"by Massachusetts
Department of Environmental Protection. Fifty(50)of each type are being allowed statewide
on a provisional basis in order to further evaluate the capabilities and performance of the
systems. The Town of Barnstable's Board of Health noted in its June 13, 2007, letter that"this
means hatirLp lot_installations ithas�refQrmed-ada4uaWAy e�oo�.tgb-tQ�mand er
evaluation [and] ... further experience in some cases has not supported the nitrogen removal
claims."
13
Bk 27606 Pg16 #46177
a
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotu it center Residence
11.The proposed on-site septic system is at a design flow of 1,540 gpd. That reflects a total Title 5
capacity of 14 bedrooms maximum. According to the last development plans,the total number
of bedrooms is 14.
12.The '330 Rule"-Section 232-5 of the Code of the Town of Barnstable-Wastewater Discharge, ,
Maximum Allowable Wastewater Discharge in a Groundwater Protection Overlay District—
was adopted in 1985 to protect the aquifers that supply public drinking water. Barnstable's
Board of Health regulation requires all developments, subsidized and unsubsidized housing as
well as commercial developments, be limited to an on-site wastewater discharge to 330 gallons
per day, per acre within designated overlay protection districts. There is no variance or waiver
provisions provided in the Code to this requirement and it has been equally applied in the
overlay protection districts since its adoption, over 20 years ago. Under the 330 rule,this 2.38-
acre lot would be limited to on-site disposal of 785 gallons per day of wastewater. The
proposed development exceeds this standard by doubling the daily flow of wastewater being
discharged on-site. The submitted application requests that the Zoning Board of Appeals grant
a waiver from the '330 Rule'-Maximum Allowable Wastewater Discharge in a Groundwater
Protection Overlay District.
13.The last plan submitted proposed a total of 11 units of housing. Ten (10)are one-bedroom
units and the 1 ikunit is the existing three-bedroom.dwelling located on the property. The one
bedroom units are not family housing. Family housing is the most pressing need in Barnstable
and;as virtually all of the units are only one-bedroom,the development does not satisfy this
local and regional need.
14.The Horsley Witten Group's January 4, 2007, review has concluded that the travel time from
the proposed leach field to the public supply well is only 87.3 days at the full rate pumping
capacity of the well and 180.5 days at half the full rate pumping capacity. This means that the
effects of any increased nitrogen loading by the development to the groundwater could be
realized at the wellhead and in the public water supply in as little as 3-months, as could any
pathogens,active viruses,volatile organic compounds (VOC's) and other contaminants. It was
also pointed out to the Board that the increase in the number of households residing on the
property proportionally increases the chances that pathogens, active viruses, volatile organic
compounds (VOC's) might be introduced into the septic system.
15. It should be noted for the record that, unlike most of Massachusetts,the Cape is a sole source
aquifer. Simply put, we draw our drinking water from that single aquifer and what we put into
the ground around us will eventually show up in our drinking water. The wastewater treatment
systems being proposed for this site are allowed only as provisional systems state-wide and in
most of those other areas of the state,options exist to secure potable water from other aquifers
and sources. That is not the case for the Cape. Once a well is contaminated•that aquifer is also
contaminated and there is no other viable alternative to secure potable water.
16.The applicant has provided the Board with a July 12, 2007, review of groundwater issues by
Dr.Jennifer Rivers Cole (The Rivers Consulting ReportFi-n that review, De.Rivers Cole states
"the proposed Bay Point Townhouses pose virtually no risk of contaminating groundwater in
Cotuit. Nitrogen has been more than adequately addressed, pathogens will be attenuated in the
14
Bk 27606 Pg17 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—cotuit Center Residence
very thick vadose zone,and there is virtually no risk of VOC contamination from septic
effluent." She states that her opinion is based on her experience and her review of the materials
in this case. Her report, however, leaves the Board with more apprehension than comfort. The
report states that this particular well, CT-E3, is drawing water from a"high risk condition",that
being,a shallow surface aquifer and, therefore, is susceptible to contamination by the very
nature of its geological composition and proximity to the land surface. The report cites certain
Title 5 regulations that are the same regulations that a single-family Title 5 system must abide
by. It seems to ignore that this proposal is that of a multi-family development in close proximity
to a public supply well dealing with soil conditions of Cape Cod. Many of the references used
may not be applicable to the Cape. As, in one instance, it states that"commonly used
guidelines in many soil conditions keep.......at least 15 meters[about 45 feet]from any well
used for drinking purposes. The Board of Health in Barnstable requires 150 feet of separation
and that is for a well serving a single-family dwelling, not a public supply well.'The report
states the"current targets are 5.00 ppm"for nitrogen loading. As a prior finding has stated,the
current policy and adopted guidelines by DEP is now zero nitrogen loading in this area.
17.The applicant has been very cooperative in assisting the Board by agreeing to and funding the
peer review on the issues of the groundwater.The study has.strived to address the best possible
practices that can be employed to attempt to protect the public well. However,given all of
that, nitrogen from the development will migrate to the public supply well and over time add to
the overall loading to the public supply well and the embayment. The conclusion reached in
January of 2007 by the Horsely Witten Group study which was also reiterated at the last public
hearing of July 25,2007,was that the project will pose a threat to the Town's drinking water
supply in terms of nitrogen loading,transport of pathogens,VOC's and other contaminates.
Further, escalating this threat to the public's health is the fact that water sampling from
monitoring wells does not regularly test for many pathogens,viruses and some contaminants.
18.The Massachusetts Housing Partnership guidelines for review of Chapter 40B recommends that
local zoning boards not review development pro formas unless a condition imposed is cited by
the applicant to make the project uneconomical. Barnstable's Zoning Board of Appeals has
regularly requested a copy of that pro forma be submitted to the file. The last pro forma
submitted to the file'for this application was on January 9, 2007. That pro forma was generated
based upon development plans that have since been revised three times. The accompanying
fax cover page with the pro forma states that it was submitted to MassHousing on December
12, 2006. No updated pro forma has been submitted based upon the last revised plan and as
noted in the findings on standing, no extension of the Project Eligibility letter has been
submitted to the file nor any letter acknowledging that the project,as revised, remains
economically viable to MassHousing.
19.-In early 2005,the Barnstable Housing Committee cited that the maximum sale price of the one-
bedroom affordable units should not exceed $104,879. That estimate was based upon a
monthly cost of$56.00 for taxes, insurance,and association dues. That estimate was made
prioi--toAh.e-refinement-of_thQ ori.site seplic_sy_stem and the realization that its_peratin
enses-would-be�ubs-tanti-ai---T�e-pr�fiot a st�brrtit eel an Jant rq 9�fl0 eited h-
projected sale price of the one-bedroom units as $145,000. Some $40,000 more that the
calculated figure of the Housing Committee. In addition,'it should be noted that the Barnstable
15
Bk 27606 Pg18 #46177
A
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
Housing Committee figures were based upon pricing of the units at 30% of the 80% income
level for the Barnstable Metropolitan Statistical Area(MSA). Since that calculation,the
applicant has testified that the units would now be priced at the 30% of the 65% and 70%
income levels of the MSA. No pro forma has been submitted to the file showing that updated
commitment.
20.The Board has received reviews and comments from town agencies, numerous letters and
heard testimony from the applicant, public officials, abutters and concerned citizens. The
comments generally objected to the affordable housing development with the overwhelming
concern expressed for protection of the public water supply. A petition opposing the grant of
this Comprehensive Permit containing 127 signatures has been submitted to the file.
21.According to the Department of Housing and Community Development Chapter 40B
Subsidized Housing Inventory of July 9, 2007,the Town of Barnstable has a total of 1,343
affordable housing units. This represents 6.6% of the total housing stock as being affordable
units within the Town.The goal of MGL Chapter 40B,the Local Comprehensive Plan and the
Regional Policy Plan is to provide 10% of the housing stock as affordable. The Town has a
certified affordable housing plan that it has been working under and making strives to
implement. When this project was issued,a Project Eligibility letter dated in late 2005 was
noted that the Town had met its annual requirement of providing 0.75% of its year-round
housing stock as affordable and,therefore, met its annual compliance. That annual compliance
certification has since expired
22. 760 CMR, Section 31.07(2) required that the Board review the evidence submitted and balance
regional housing needs with local concerns. In this case local concern is for the health and
safety of the public drinking water and for nitrogen loading to the nearby coastal embayment.
The housing need is that of three, one-bedroom,for sale and/or rental units. In summary:
• The three units would only represent an increase in the Town's overall affordable housing
stock of 1/5'of 1% (or.2%) and the nature of the one-bedroom units does not fulfill the
Town's and region's pressing need for family housing. The Accessory Affordable Housing
Program of the Town has been very successful in providing affordable one-bedroom
housing units and as that program requires conformance with the 330 rule,those units do
not pose a threat to public supply wells.
• The local Wellhead Protection Overlay District in which the property is fully located and
the application of the local '330 Rule'are the Town's regulations specifically designed to
address the local needs to protect public water supply wells. The two in combination were
enacted 22 years ago to directly protect that critical groundwater resource,the sole source
aquifer that feeds the public supply wells,the importance of which is recognized in the
local Codes of the Town in that no waver or variance provision is provided to the 330 Rule.
The Rule limits the amount of wastewater discharge to 330 gallons per day per acre in
designated areas thereby assuring nitrogen loading is kept to a safe level and the number of
households that could contribute various pathogens,active viruses, VOC's and 0 er
contaminates up-gradient and within that area that directly contribute to a public supply
well is reduced. In this particular instance,the 330 rule would limit the property to 785
16
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r 1
Bk 27606 Pg19 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
gallons per day that translates to a maximum of 7 bedrooms total in any housing
development on this lot. The applicant, in the latest plan, has requested a total of 14
bedrooms,double that allowed by local regulations. Given the [mown threat to the public
water supply, the grant of a waiver to this 330 Rule will contribute to the degradation of the
public drinking water and imperil public health. The Zoning Board does not find the
benefit of providing these three units of affordable housing commensurate with the degree
to which the Town's resident's public health and safety would be put at risk. The
implications of losing this public supply well would also damage perspective residential
housing,the tourist and vacation economy, the shell fishing industries and the public's
perception of the natural environment in this area of the Town and region.
• The Town has been striving towards its goal of providing affordable housing and in fact a
recently approved 124 unit affordable housing development is in its early stages of being
implemented. That housing is situated approximately one mile from this site and is to be
served by a ful I wastewater package treatment plant in ful I conformity to zero nitrogen
loading. Since this application was filed, the Board has issued a total of five
Comprehensive Permits totaling 188 units. In addition,other affordable units have been
added to the Town's inventory over that same period by the Private Initiated Affordable
Housing Development (PIAHD),Special Permits issued by the Planning
Board,Comprehensive Permits issued under the Accessory Affordable Housing Program,
units created by Regulatory Agreements (Chapter 148 of the Code),and those required by
Chapter 9, Article 1of the Code- Inclusionary Affordable Housing Requirements.
The Vote with respect to findings on consistency with local needs was as follows:
Aye:Sheila Geiler, Randolph Childs,James R. Hatfield, Daniel M. Creedon,Gail C. Nightingale.
Nay: None
Decision on Consistency with Local Needs:
Motion: Based upon the findings on consistency with local needs a motion was duly made and
seconded to find that the proposed development of affordable Chapter 40B housing by Bay Point
LLC at this location,would be consistent with local needs provided development complies with the
330 Rule and certain other safeguard conditions are imposed.
The Vote with respect to consistency with local needs was as follows:
Aye:Sheila Geiler, Randolph Childs,James R. Hatfield, Daniel M. Creedon,Gail C. Nightingale.
Nay: None
17
Bk 27606 Pg20 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
Decision and Conditions:
Motion: Based upon the findings and the balancing of local and regional needs for affordable
housing with local concern for protection of the public supply well and the coastal embayment, a
motion was duly made and seconded to grant a Comprehensive Permit in accordance with MGL
Chapter 40B to Bay Point LLC for the 2.38-acre property addressed as 671 Main Street, Cotuit, MA
subject to all of the following restrictions and conditions:
1. The total number of housing units permitted shall not exceed five(5) units and the total number
of bedrooms shall conform to the 330 Rule and not exceed seven (7). The units shall be
created by:
a. Preservation and restoration of the existing historic home as a three-bedroom free-standing
single-family dwelling,
b. Renovation and expansion of the existing cottage as a free-standing one-bedroom unit, and
c. Construction of three new one-bedroom townhouse type units in one or two structures.
In lieu of renovating the existing cottage(b),and the construction of three new townhouses (c),
the applicant has the option to demolish the cottage and construct four, new, one-bedroom,
attached townhouse dwelling units in two new structures.
2. The area of the existing historic home to be retained and renovated shall be that area shown in
the last May 30,2007 plans submitted to the Board. It shall not include the back garage area.
That section of the building shall be demolished. The one-bedroom units shall not exceed
1,320 sq.ft.each and shall be limited to one-story only. They shall not include lofts or walkout .
basements as no living area shall be permitted in the basements.
3. The on-site septic system shall include the biological filter treatment and a nitrogen removal
wastewater treatment appropriately sized for the seven (7) bedrooms permitted by this permit.
The soil absorption system and the leach field shall remain located where shown on the May
30, 2007, plan and as far from the public supply well as possible. The system shall include a
backup generator.
4.. All development of the lot shall occur to the eastern half of the site within 240 feet of Main
Street. No new structures shall be located westerly of the existing cottage structure. All
construction shall conform to the*district setback requirements. In addition,that part of the lot
that lies within 460 feet of the Wellhead shall not be disturbed by any development activity
including grading and/or tree removal. That 460-foot area shall be delineated by fencing prior
to any construction and remain in an undisturbed natural state during and after construction.
5. The development shall conform to applicable site plan review standards. Auto access shall be
from-one-curb-c-ut onl-y-onto-Mai-n Street:-O-n site-paxki.n.gshall_provide_at-leasLtwo spaces-per
unit plus a minimum of 3 visitor parking spaces (total 13). All parking shall be appropriately
screened. An emergency vehicle turn around shall be created and a fire hydrant provided. The
turn-around and hydrant location and installation shall be to the satisfaction and specification of
1B
Bk 27606 Pg21 #46177
Town of Bamstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
the Cotuit Fire Department. Interior drives and parking areas shall be paved and all site run-off
shall be drained into grassed lined biorention area(s) "rain garden(s)"before overflowing to
catch basins and subsurface leaching. Rain Gardens shall be sized to contain the first 1 inch of
rainfall. All drainage shall be contained on-site and shall not be permitted to flow into
adjoining property or the public right-of-way. The development site shall be attractively
landscaped consisting of street,shade and specimen trees,deciduous and evergreen shrubs,
grasses,groundcovers and lawn areas. All shall be installed prior to the issuance of the third
occupancy permit and shall be properly nurtured and maintained. Exterior lighting consistent
with residential use shall be provided. Sodium or mercury vapor exterior lighting shall not be
permitted. All site lighting shall be contained on-site and shall not be permitted to shine into
abutting properties.
r f h rant of this permit, the applicant shall cause an engineered site plan,
6. Within one year o the g pe pp g
grading & utility plan,septic&engineering detail plan,a detailed landscaping plan, revised
architectural elevations and floor plans,a monitoring and maintenance plan for the on-site
septic system, and a projected condominium association budget to be prepared in accordance
with applicable Town requirements and to professional standards that reflects the prior
conditions and other conditions herein as applicable. Those plans shall be submitted to the
Board's staff for distribution and review by appropriated town departments,agencies and
boards and the Cotuit Fire Department. That plan shall be reviewed and transmitted along with
all comments within 5 weeks after submission to the Zoning Board for the Board's review and
approval. No construction activities,including site clearing and grading, shall.be initiated until
the Board has approved the development plans as consistent with this decision and all
applicable Town standards.
7. Of the five dwelling units, two (2) of the newly constructed one-bedroom townhouses shall be
dedicated in perpetuity to be affordable for sale units.The units shall be committed in
perpetuity to affordability at 65% and 70%of the-median income level to households in the
Barnstable Metropolitan Statistical Area (MSA). Sale price of the affordable units, including
principal, interest,taxes, insurance and association fees, shall not exceed 30% of the 65/70%
income figure as applicable and adjusted for household size in perpetuity. All units shall be
made available to qualified households on a fair and open basis. A Regulatory Agreement
reflecting the above restrictions shall be prepared by the applicant, approved by the Town
Attorney's Office,and recorded at the Barnstable Registry of Deeds by the applicant prior to
any building permits being issued. Such restrictions shall take priority over all financing
documents relating to this project. The affordable units shall not be rented unless those units
are owned by an agency with the purpose of providing affordable housing. In that case they
shall only be rented as affordable units to qualified tenants at the 65% and 70% income level,
with a minimum--lease of one year, pursuant to the official pricing guidelines established by the
Commonwealth's Department of Housing and Community Development.
8. Also, within the one year period of the grant of this permit,the applicant shall cause the
-_ fol-lowing-to-be-completed-and-copies-submitted-to-the-Board`s-file:—
• A revised/updated Project Eligibility-Site Approval letter issued from MassHousing,or in
the alternative,final funding approval,from the Department of Housing and Community
19
Bk 27606 Pg22 #46177 i
Town of Barnstable-zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
Development issued based upon development plans as changed in this decision, including
the total number of units,type of units, pricing of the affordable units to the 65% and 70%
income group.
• A copy of the signed Operating Agreement of Bay Point, LLC. This agreement shall reflect
th
at this document was submitted to the file and reviewed and approved by the Town
Attorney's Office.
9. This Comprehensive Permit is granted with the condition that the proposed development is to
be funded under the Housing Starts Program of the Massachusetts Housing Finance Agency
and/or the New England Fund Program of the Federal Home Loan Bank of Boston. If the
funding source changes,the applicant shall be required to notify the Board for a modification of
this Comprehensive Permit. No building permits shall be issued for the development until the
applicant receives its final funding approval from the Department of Housing and Community
Development and a copy of that letter is submitted to the Board's file.
10.The on-site wastewater disposal system shall be sized for the five units of housing with a total of
7 bedrooms in full conformity to Title 5 methodology and the '330 Rule'of the Town of
Barnstable. The system shall be designed and maintained so as to reduce nitrogen and remove
pathogens,viruses,VOC's and other contaminates as required. The final design of the system
including a maintenance schedule and a monitoring program shall be submitted for final
approval by the Board of Health prior to the issuance of a building permit. A copy of that
maintenance schedule and the monitoring program as well as the Board of Health's approval
shall also be submitted to the Board's file. Final overall nitrogen loading for the property shall
be kept below 3.98 ppm with the goal of achieving zero nitrogen loading.
11. Prior to the issuance of any building permit,a Regulatory Agreement and Monitoring
Agreement reflecting the restrictions and consistency with this Comprehensive Permit,shall be
executed by the applicant, DHCD, and the Town of Barnstable. The applicant shall prepare the
agreements and submit them for approval by the Town Attorney's Office. Upon being signed,
they shall be recorded at the Barnstable Registry of Deeds by the applicant against the property
and the individual units. Such restrictions shall take priority over all financing documents
relating to this project and shall survive foreclosure. All costs associated with monitoring for
consistency with the Regulatory Agreement shall be the responsibility of the applicant.
12. In issuing building permits and occupancy permits,the first of any four permits shall be for an
affordable unit.
13.The Condominium Master Deed, Declaration of Trust, and Bylaws (herein after "the
Condominium Documents"),shall be as submitted to the Board's Office prior to any
application for a building permit. The condominium documents shall include a restriction that
limits the unit's number of bedrooms as per this decision and restricts the basement area, attic
area or any room from being divided for sleeping purposes or converted into a bedroom area.
That restriction shall be included within each unitss`_ eed an_ within the condominium
documents. Association dues shall be based upon the unit's value and not the percent of unit
area. Upon transfer of a unit, a fee equal to three months of the unit dues shall be collected
20
I
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Bk 27606 Pg23 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
and placed in an escrow account for the condominium association. That escrow account shall
only be accessed by the association after the trusteeship is transferred from the applicant to the
individual unit owners. The trusteeship of the condominium association shall be transferred to
the unit owners within one month after the issuance of the fourth occupancy permit. The -
condominium documents shall be reviewed by the Town Attorney's Office for consistency with
this decision and shall be duly recorded in the Barnstable County Registry of Deeds at or before
any issuance of the first occupancy permit. A confirmed copy of such recorded documentation
shall be forthwith provided to the Board. None of the condominium documents shall be
modified or amended in any way or manner so as to negate the terms and conditions of this
decision.
14. None of the five units (market rate and affordable rate units)may be rented for less than a one-
year term. This condition shall be included within the Master Deed,the unit deeds and
association bylaws.Sub-leasing of any such unit shall, if otherwise permitted,not be less than
one year.
15, Prior to the issuance of a Certificate of Occupancy for any unit;the applicant shall have the
development and the units connected to the public water supply system and to the on-site
wastewater treatment system. The applicant shall be responsible for obtaining all necessary.
permits including those of the Department of Environmental Protection (DEP), if necessary, and
the Town of Barnstable Health Division.
16.To the extent permissible by law, preference for the sale of the affordable units shall be given to
households who are Barnstable residents or that have one of the persons within the household
employed by businesses located within the town of Barnstable. The affordable units are to be
sold as affordable units and are not to be subsidized units.
17.The applicant shall utilize the Housing Assistance Corporation's Cape Home Ownership Center
(CHOC) in the selection of eligible buyers for the affordable units. The Cape Home Ownership
Center is to verify first time homebuyers, income and asset limitations,affirmative marketing,
and appropriate lottery procedures for buyer selection consistent with the terms of this decision.
18.A copy of this Comprehensive Permit shall be recorded at the Barnstable County Registry of
Deeds. Proof of that recording shall be submitted to the Board's file and the Building Division
prior to the issuance of any,building permits for the development.
19.All construction shall comply with all applicable state building codes,state fire protection
requirements,and Board of Health regulations. In addition,the development shall conform to
all pertinent requirements of the Americans with Disabilities Act. All newly constructed units
shall provide visitability. Both market rate and affordable homes shall have wider door frames
on one exterior entranceway and on all interior door frames including bathroom and walk-in
closet door frames. The top of the exterior wood decks and platforms shall be placed directly
under and abutting the bottom of the exterior door threshold.
20.The units are to contain low flow toilets and showers,energy efficient appliances,heating and
air,thermal windows and doors. The exterior finishing of the affordable units, including walls,
21
Bk 27606 Pg24 #46177
Town of Barnstable-zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
windows and doors,shall be identical in all respects to the exterior of the market rate units.
The interior finishing for the affordable units shall have color-matched appliances inclusive of
microwaves, coordinated bathroom and kitchen fixtures,finished painted walls and woodwork,
finished floors, exterior lighting,and front doorbells. Any amenity (cable television,alarm
system, exterior lighting,etc.)that is paid from association funds shall equally be included
within the affordable units.
21. Exterior restoration and preservation of the existing historic dwelling shall comply with The
Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating
Historic Buildings. The interior of both the historic structure and the cottage, if that building is
to be rehabilitated, shall be improved as necessary to meet all applicable building codes. All
appliances, utility services,fixtures, heating and air systems and structural systems including
roofs,windows,floors,walls,etc, shall be of equal quality as that of the new construction and
equal in regards to unit amenities and finishing as those new units to be constructed.
Rehabilitation of the historic structure shall be completed and an occupancy permit issued prior
to the issuance of occupancy permits for the last three units authorized in this decision.
22. During all stages of development and construction of the dwellings, all construction equipment,
materials,and all parking of vehicles shall be kept on the locus and no vehicles or materials
shall be permitted within the right-of-way of Main Street nor within that 460-foot protective
zone from the public supply well or within 10 feet of the property lines of the locus except as
may be needed for utilities or landscaping and then only on a temporary basis. No audible
construction shall be permitted prior to 7:30 AM or after 5:30 P.M on weekdays, prior to 7:30
AM or after 12:00 noon on Saturdays and at no time on Sundays.
23.This Comprehensive Permit shall not be transferable to another entity other than the applicant
without prior written approval of this Board. This condition, however,shall not apply to the
use of the permit in securing financing for the development.
24.Transfer of each unit shall include the transfer or assignment of two on-site parking spaces.
Three of the spaces shall remain unassigned and not transferred to individual owners. Those
spaces shall be labeled visitor parking and shall remain that way.
25.The property shall be addressed and each unit shall be posted in accordance with the Code of
the Town of Barnstable General Ordinances, Chapter 51. All signage shall conform to the
Town of Barnstable Zoning Ordinances without variance.
26. No certificate of occupancy for any building or unit shall be issued until the improvements
specified in this decision and set forth on the plans of record are constructed and installed so as
to adequately serve said building, or adequate security has been provided, reasonably
acceptable to the Town Engineer and approved by the Town Attorney's Office to ensure such
completion. Any such performance guarantees shall be governed by the subdivision rules and
regulations of the Planning Board and shall be approved by the Town Attorney's Office.
27. Upon completion of all work and prior to certification of total development costs,a letter of
certification, made upon knowledge and belief according to professional standards, shall be
22
tl1
Bk 27606 Pg25 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
submitted to the Building Commissioner with a copy to the Board's file by a registered engineer
that all work has been done substantially in compliance with the approved plan.
28.The applicant or a management company shall be responsible for the installation,operation,
and maintenance of all aspects of the common facilities and utilities including,but not limited
to, septic and drainage systems,common electrical power,snow plowing, landscape
maintenance, and garbage removal as well as a periodic reporting requirement as may be
imposed by the Board of Health. The applicant or a management company shall be responsible
to maintain that the emergency turn around remain clear and passable for emergency vehicles
at all times.
29.The Board shall require a full compilation and certification of total development costs (net of
related-party expenses)and total revenues, on a federal income tax basis, prepared and certified
by a certified public accountant acceptable to the monitoring agent or the Town to show that
the profit made is within the 20% Limitation imposed. Any profit in excess of the 20%
limitation rule shall be governed by the terms of the regulatory agreement. To assure
compliance with this requirement upon the sale and transfer of the last two units in the
development,the gross proceeds from the sale of both units shall be placed in an escrow
account as security for compliance.
30.The Building Commissioner or his designee shall have the right in perpetuity with proper prior
notification and arrangement with the owner to enter and inspect any of the premises
authorized in this permit to assure full compliance with the Comprehensive Permit.
31.The conditions contained herein are in addition to,and independent of, any requirements of
any funding source for the project. All of the conditions of this decision as set forth herein shall
have independent legal significance and effect. "
The Vote on the conditions was as follows:
Aye:Sheila Geiler, Randolph Childs,James R. Hatfield, Daniel M. Creedon, Gail C. Nightingale.
Nay: None
Relief/Waivers Granted:
Motion: With respect to the applicant's request for relief from local rules and regulations
Attachment J of the application,a motion was made and seconded to grant only the following
waivers and variances to Bay Point LLC.,for the development as conditioned herein and based
upon that balance'test of local and regional housing need with that of local concern for protection
of the public water supply well.
- Variances-are granted-to-the foifowi-ng-zoning-requirements:
• Section 240-7.F.1 that limits development within residential districts to one principal
permitted building per lot to allow a maximum of 4 principal buildings on this lot.
23
Bk 27606 Pg26 #46177
Town of Barnstable-zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
• Section 240-14.A that limits the principal permitted use in this district to one single-family
dwelling to allow multi family dwellings on this lot.
Section 240-21.A.9 the provisions for developing multi-family is waived to allow
development at this site as per plans to be submitted consistent with this decision.
• Sections 240-98 through 240-105 site plan review process is waved only to that extent that
formal submission and public meeting shall not be required as it shall be processed through
staff and then to the Zoning Board. All other plan requirements and development standards
shall be complied with
Section 240-115.13.2 Growth Management Provision are waved only to the extent that all
building permits may issue at one time provided that the permits are available in that
calendar year.The permits are subject to all other requirements of the Building Division for
the issuance of building permits and the applicant shall comply with any and all
requirements of this Comprehensive Permit decision,which must be fulfilled and
completed before any building permits may be issued.
With respect to the other Ordinances of the.Code of the Town,the Zoning Board acting under
Mass. General Laws, Chapter 40B grants waivers to only the following:
• Chapter 112 Article I - Protection of Historic Properties and Article 11- Historic Landmarks is
waved as the project is conditioned herein. This shall included authorization to demolish
the garage structure connected to the back of the historic home and the cottage structure
should that option be exercised by the Applicant.
• Chapter 360-38A waiver from the local Board of Health regulations only to the extent that
this Board is permitting an Innovative/Alternative on-site septic system. All other
requirements including approval of the monitoring and maintenance plans by the Board of
Health shall be complied with.
The Board is not granting the zoning variances requested by the applicant from Section 240-35.G-
Well Protection Overlay District Regulations, and Section 240-53 Landscaping Requirements for
Parking Lots.
No waiver is granted to the General Ordinances;Chapter 232-Wastewater Discharge, Chapter
360-On-site Sewage Disposal Systems with the exception of Section 38A of that Chapter to
provide for the use of Innovative/Alternative septic system,and Chapter 9-Affordable Housing as
that section is not applicable to Chapter 40B development.
No waiver is granted to the Town's application and permit fees.
T 1e-Vote-on the-waiver-s-and-fee—s-was-as fo.l.lows:
Aye: Sheila Geiler, Randolph Childs,James R. Hatfield, Daniel M. Creedon,Gail C. Nightingale
Nay: None
24
i
Bk 27606 Pg27 #46177
►• v
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
Ordered:
Comprehensive Permit 2005-100 has been granted with conditions.This decision must be recorded
at the Barnstable Registry of Deeds for it to be in effect. The relief authorized by this decision must
be exercised within three years. Appeals of this decision, if any, shall be made to the Barnstable
Superior Court pursuant to M.G.L.Chapter 40A, Section 17,within twenty days after the date of the
filing of this decision in the office of the Town Clerk. The applicant has the right to appeal this
decision as outlined in M.G.L.Chapter 40B,Section 22.
GILda
C. Nightingal -Chairm Date Signed
I, Hutchenrider, Clerk of the Town of Barnstable, Barnstable County,Massachusetts, hereby
certify that twenty (20)days have elapsed since the Zoning Board of Appeals filed this decision and
that no appeal of the decision has been filed in the office of the Town Clerk.
Signed and sealed this day of under the pains and penalties of
perjury.
Linda Hutchenrider-Town Clerk
25
low Bk 27606 Pg28 #46177
I, Linda Hutchenrider, Town Clerk of the Town of Barnstable, Barnstable County,
Massachusetts, hereby certify that this Comprehensive permit was appealed by
the Petitioner to the Housing Appeals Committee in the case No. 07-14, entitled
"Bay Point, LLC, v. Barnstable Zoning Board of Appeals". All issues in that
appeal were settled by compromise and approved August 27, 2010 by the
Housing Appeals Committee in an "Endorsed Disposition and Settlement
Agreement"filed with the Barnstable Town Clerk on January 14, 2011. 1 further
certify that twenty (20) days have elapsed since such filing and that no appeal of
the Comprehensive Permit or the Endorsed Disposition and Settlement
Agreement has been filed in the office of the Town Clerk. This Comprehensive
Permit, as modified by the said Endorsed Disposition and Settlement Agreement,
are to be filed simultaneously with the Barnstable County Registry of Deeds and
are to be cross-referenced to one another by appropriate marginal notations.
Signed and sealed this 22"d day of March, �011 �.. ` �• 0�• ::.GQ
Linda Hutchenri er, Town Cler` ��e,; d� a •�
Town of Barnstable
.,'�',K.r .. ��jt�n�►ttt
a
COMMONWEALTH OYMASSACHUSETTS
HOUSING APPEALS COMMITTEE
BAY POINT,LLC, )
Appellant, )
)
V. ) No.07-14
BARNSTABLE ZONING )
BOARD OF APPEALS, }
\ Appellee. )
ENDORSED DISPOSITION AND SETTLEMENT AGREEMENT
Whereas,the parties to this dispute have been involved in protracted litigation before the
Housing Appeals Committee of the Commonwealth in the captioned case,and
Whereas,the parties to this Agreement have resolved their differences as reflected in this
Settlement Agreement and they now seek the approval and endorsement of the Housing Appeals
Committee,
NOW,THEREFORE,the Appellant("Bay Point") and Appellee(`Board")hereby agree to the
is
following terms and conditions as a mutually-acceptable disposition of Bay Poi;QS'S Cal to the
Housing Appeals Committee: •`^ ..'•. 'v
"1s>
• '.�a '�' 1�t.ALE>� ��
• .r
Bk 27606 Pg33 #46178
.w For the limited purpose of joining in this settlement agreement,and no other,the
parties agree that the Cotuit Fire District("Cotuif)may enter its appearance in this
action through counsel as an intervenor and may thereby join in this Agreement as a
party thereto.'
2. Subject to the express terms and conditions described herein,Bay Point and the
Board agree that the Comprehensive Permit is hereby amended to allow for the
construction of 8 age-restricted units with 13 total bedrooms consisting of the
renovation of the existing house with 2 bedrooms,4 townhouse units with 2
bedrooms each in two duplex buildings, and three one-bedroom units,two of which
shall be in a duplex structure and one of.which shall be free-standing.One of the two-
bedroom units will be affordable,and one of the one-bedroom units in the duplex
building will be affordable, all consistent with the Comprehensive Permit and this.
Endorsed Disposition and Settlement Agreement(the"Project'
3. The Board acknowledges and agrees that it has reviewed Bay Point's revised plans
with its engineering consultant and the changes described herein and in such plans do
not constitute a substantial change pursuant to 760 C.M.R. §56.05(l 1). The revised
plans shall be consistent with the plan circulated by the parties for settlement
purposes,which is titled"Bay Point Townhouses Layout&Landscape Site
Plan of land in Cotuit(Barnstable),MA.,Revised May 8,2009" an4
4. The Town and Cotuit will purchase a perpetual Easement on the westerly portion of
locus for$275,000.The Easement is shown on Exhibit B attached hereto.Each will
bear one-half the cost of the Easement. Both Cotuit and Barnstable will require
appropriate votes and appropriation of funds for this purpose,which have now.
Unless a contrary intent plainly appears,the term"party"as used in this agreement shall include Bay Point,the Board,
and Cotuit. The"Town"and`Barnstable"shall refer to the Appellee and the Town of Barnstable as appropriate.
2
i a
Bk 27606 Pg34 #46178
occurred.If either funding source fails for any reason,the settlement agreement may
be declared void.
5. Subject to the Town's approval,the exact description of the Easement boundaries
will be defined on a plan and will be bounded on the ground at Bay Point's expense.
6. Subject to the Town's approval,the Appellant will erect a physical barrier and install
landscaping internally to limit physical access to the Easement property.
7. There will be an architectural review and required approval of the units by the
Barnstable Growth Management Department that shall include building design,site
plan,and landscaping.There will be no structural,architectural, aesthetic,
landscaping,septic,or site changes made to the locus by Bay Point or its successors
in interest without the prior written approval of the Town and Cotuit.
8: No dry.wells will be required or permitted. Bay Point and its successors in interest
will cause all storm drains and the rain garden as shown on said plan to be cleaned
out at least once per calendar year. Bay Point and its successors in interest will notify
the Town and Cotuit in writing at least seven business days in advance of such
activity and shall allow representatives of the Town and Cotuit to enter on the
property to contemporaneously observe such work or to view the results within seven
business days thereafter.
9. Consideration and remedies for failure of consideration:
Notwithstanding anything to the contrary contained herein,the parties agree that a
material consideration and inducement to the Town and Cotuit to enter into this
agreement and to-pay the sum of$275,000 to Bay Point is to procure both the
easement described above and to have the affordable housing project discussed
herein completed within three(3)years of the date hereof.Therefore,in the event
at the atfordable housmg project is not completed in suc ime ff-a—me for any
3
Bk 27606 Pg35 #46178
reason,the Town and Cotuit each shall have,in addition to any other rights and
remedies available at law or in equity,the right to receive a return of their.
respective share of the consideration paid herewith,that is,$137,500 each,in
accordance with the procedures and terms set out immediately below.
A. Within 30 days of the date of approval and endorsement of this settlement
agreement by the Housing Appeals Committee,or on the first business day
thereafter,Bay Point will deliver and record a fully executed easement instrument
for the property described herein,satisfactory in form for recording and to counsel
for both Barnstable and Cotuit.The instrument shall deliver title that is good,
clear,record, and marketable and free from all encumbrances.In return,the Town
and Cotuit shall deliver payment of$137,500 each,payable to Bay Point, LLC.
B. Bay Point shall undertake construction of the contemplated affordable housing
project in sufficient time to complete the project within three years of the date of
approval and endorsement of this settlement agreement by the Housing Appeals
Committee{"HA.C").The parties agree thabcompletion of the project within the
meaning of this agreement shall be evidenced in one of two ways only,that is,
either by the issuance of an occupancy certificate from the Building
Commissioner of the Town of Barnstable for the last of the units contemplated
herein or a letter from the Building Commissioner that all.of the units are
substantially complete except for installation of carpet and kitchen appliances
only.
C. Ln the event that the affordable housing project is not completed within the
meaning of this agreement within three years as contemplated immediately above,
Bamstab-le and Cotuit shall each-have the-ight-to rescind so-much-of this
agreement as calls for consideration to be paid by each for such conveyance. If
4
Bk 27606 Pg36 #46178
_ . either wishes to do so,they shall notify Bay Point of their intent in writing at the
address of their attorney by certified mail,return receipt requested,within 90 days
after the three-year anniversary of HAC's approval as discussed above.Notice
shall be effective upon posting.
D. If such notice is given,Bay Point shall pay to Barnstable and/or Cotuit, as the
case may be,the sum of$137,500 each in.certified or bank funds not later than
12:00 Noon on the 21"day following posting of such notice,or the first business
day thereafter if the same falls on a weekend or holiday.
E. Notwithstanding such payment,all other aspects of this agreement shall remain in.-
fall force and effect.
F. The performance of this agreement shall be secured by a first mortgage of the
locus as expressly described in said mortgage, a copy of which is attached hereto
as Exhibit C and which Bay Point agrees to execute and deliver at the time and
place of the'closing contemplated herein.In addition to any other remedies
available to Barnstable and Cotuit,a breach of the conditions set forth in this
section 9 of this agreement shall be considered a material default of this
agreement and shall entitle either or both Barnstable and Cotuit to institute
foreclosure proceedings upon such mortgage and premises described therein.
G. In the event of a default by Bay Point of the provisions of this section 9 of this
agreement,both the Town and Cotuit shall be entitled to recover all costs,
expenses, and attorney's fees,together with statutory interest thereon,incurred by
them to enforce their rights created herein.
H. To induce Cotuit and Barnstable to enter into this agreement and to make the
paymentconternpate-d-herein, e pr�n pale Barmy 'o iva� stein or
good and valuable consideration,the receipt thereof being hereby acknowledged-
5
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Bk 27606 Fg37 #46178
agrees to personally guarantee repayment of such consideration as is
contemplated by this section 9 of this agreement and does so by executing this
agreement personally.
I. It is the express intent of the parties that all rights and remedies available to the
Town and Cotuit shall be specifically enforceable in any court of competent
jurisdiction and that,by electing to pursue a particular remedy,they shall not,
because of that election,be barred from pursuing any other remedy available in
law or equity to each.
10. The developer shall install at its own cost a ground water quality monitoring well
within the area of the Easement as directed by the Town and Cotuit in accordance
with their specifications.
11. Condominium Association, Septic Maintenance,Maintenance Reserve, and
Monitoring Well Testing:
a. The Appellant will establish a Condominium Association to oversee the
maintenance of the shared septic system and the other common areas of the
Subdivision. The content of the Condominium Association documents shall be
subject to the approval of the Town Attorney.
b. The Appellant will prepare a pro-forma operating and maintenance budget that
will clearly identify the estimated cost of septic system maintenance and
operation for the first five years of full operation. As part of this settlement,the
Town will have the right,but not the obligation,to review and approve the pro-
forma budget. If the Town in its reasonable discretion does not approve the
budget,the settlement may be voided.
c. The Appellant shall warrant as part of this settlement that the operating and
maintenance budget as prepared will not be exceeded during the fast five years of
6
Bk 27606 Pg38 #46178
condominium operation.To the extent that such budget is inaccurate and extra
expenses are assessed to the two affordable units,the Appellant will absorb and
pay to each affordable unit owner any amounts assessed which exceed the pro
forma budget estimate.
d. The Appellant shall establish a capital improvement account that shall be
transferred to the Condominium Association upon the sale of the last unit.The
amount set aside shall equal one-half of the initial capital cost of the septic
system components,excluding,however,the cost of septic site work,the leaching
fields,piping,concrete tanks,and all other non-mechanical and non-electrical
parts. The Appellant's septic installer shall provide directly to the Town a
verified copy under oath of the invoice for work performed and one-half that
amount shall be set aside in accordance with the intent of this paragraph. There
shall be added to such amount the sum of$25 per month for each month that each
unit is occupied by a home owner. The Barnstable Board of Health shall have the
authority to cap the amount of such set aside temporarily or permanently in its
discretion in order to reflect the cost of a full replacement of the entire system,
excluding the items described above, as indicated by then-current cost estimates.
e. The Appellant shall establish an annual septic system operating and maintenance
account that shall be transferred to the Condominium Association upon the sale
of the last unit that shall be equal to the one year value of the projected operating
and maintenance costs of the septic system.
f. The Appellant shall establish a Ground Water Monitoring Well Maintenance and
Testing Account that shall be transferred to the Condominium Association upon
the sale of the last unit that shall be equal to the one year value of the projected
=ate quu t�rl3i test grnsts-"and-one-year of�uel-1-: ainienance�o��l Ao
be installed.Actual maintenance of the monitoring well and water quality testing
7
Bk 27606 Pg39 #46178
shall be accomplished and initially paid for by the Cotuit Fire District.The
Condominium Association shall be responsible to reimburse the Cotuit Fire
District for the cost of such maintenance and periodic testing; such
reimbursement shall be made within thirty days of receipt of a bill for such
maintenance and testing. -The Cotuit Fire District shall prepare an estimate of the
annual cost for such testing and maintenance for Bay Point's reasonable review
and approval,consistent with the.initial testing agreed upon by the parties. . .
Specifically,the parties have agreed to have the testing sent to the Barnstable
County Lab,which is a fully certified testing facility. The agreed testing
includes: a)Volatile Organic Compounds("VOC")(oil,gas,etc.)testing for 57
compounds,currently at$100 per test,b)nitrate/nitrite/total nitrogen,currently at
$75 per test and c)coliform,currently at$20 per test,with the total testing budget
estimated at$470 per year. Upon the transfer of Ground Water Monitoring Well
Maintenance and Testing Account to the Condominium Association,the Cotuit
Fire District shall prepare said estimate and submit same to the Condominium
Association for reimbursement.
12. Septic system design,installation,maintenance,and monitoring:
a: Subject to the prior approval of the Barnstable Board of Health,a summary of the .
design basis for all elements of the wastewater collection,treatment and disposal
system shall be according to specifications of the Amphidrome system by Aqua
Point of New Bedford,MA,or equivalent,prepared and stamped by an engineer
and designed substantially incompliance with the specifications reviewed by the
comprehensive permit.The system shall include sufficient,easily accessible
electrical hookups such that backup power to allow operation of the system can
e connect -in the event of a general power failure—and the owner-of-th"ystem
shall provide such emergency power in the event that power is lost.for a period of
8
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Bk 27606 Pg40 #46178
twenty-four hours.The system shall be certified to treat to a level of 19
parts/million maximum nitrogen loading,or better,and that it is appropriate for
anticipated and permitted age-restricted use and occupancy.
b. A letter shall be submitted from the manufacturer of the wastewater treatment
system certifying that the proposed system design is consistent with generally
accepted practice in the industry and,if properly constructed and operated,will.
meet the design goal for effluent quality.
c. Once the wastewater treatment system is installed,the design engineer and
equipment vendor shall review the completed project and certify that it was built
in accordance with the approved design and that nothing in the installation should
preclude the effluent goal from being met. As-built drawings of the installed
system shall be prepared and filed-with the Barnstable Board of Health..
d. The costs for maintenance of the system shall be the responsibility of the
Condominium Association. An operations and maintenance contract with a
Grade 4 Wastewater Treatment Operator certified by the Massachusetts DEP
{"Licensed Operator")shall be executed and in force at all times that the units are
occupied. A copy of the contract shall be provided to the Barnstable Board of
Health OBOH")no later than 30 days prior to the start-up of the system and
thereafter copies then-current contracts shall be deposited with the BOH.
e. The Licensed Operator of the system shall participate in the final construction
inspection for the system. The name and contact information of the operator shall
be provided to the BOH.
f The Licensed Operator shall be responsible for oversight of the system,including
at least monthly maintenance visits,making adjustments as needed and
' _ „max g r�ut�e-ma�:tei�anse;and��#s=of=the-same-shaft=be-.�ro�ifled
9
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Bk 27606 Pg41 #46178
monthly to the Barnstable County Health Department's database,the Barnstable
Health Department,and the Cotuit Fire District.
g. The Amphidrome system will be inspected monthly and cleaned if necessary. A
report will be provided monthly to.the Barnstable Board of Health and Cotuit.
Measurements shall be made of the influent and effluent for flow,nitrogen,ph,
TSS,sledge height and BOD,as well as any other data that the Board of Health in
its discretion may additionally require from time to time.
h. In order to promote awareness of the proper operation and maintenance of the
system,the Condominium Association,through its Licensed Operator,shall
annually submit a report to the Barnstable'Board of Health and Cotuit: 1)
transmitting effluent quality data for Total Nitrogen and Nitrate-Nitrogen;2)
documenting when the septic tank.has been pumped and the disposition.of the
contents; 3)documenting any significant maintenance activities that have
occurred to the system during the past year or that are planned for the upcoming
year,and 4)reporting on any operational problems that occurred and how they
will be avoided in the future.
i. In addition to all other remedies available to the.Board of Health,it may impose a
fine of$100 per day on the Condominium Association if after a 30-day cure
period,pursuant to written notice to the Appellant arid thereafter the
Condominium Association,problems with the Amphidrome system are not
corrected.
13. Access and Use of the Easement by the Parties:
a. Neither Bay Point nor any of its successors in title shall be en+=tled to any
physical access to or use of the easement locus,except for the purpose of using it
as part o the calculation of total-lo area for relevant computational purposes
including,for instance,zoning and Title V purposes.
10
Bk 27606 Pg42 #46178
b. The Town and Cotuit may enter upon and use the easement in accordance with
the terms and conditions of the Easement attached hereto as Exhibit B.
14. If the Town commences litigation to enforcc any part of this settlement agreement,
'including,without limitation,the on-going obligations regarding the installed septic
system,and is successful,the Town shall be entitled to recover all attorney's fees and
costs incurred in connection therewith.
15. The parties shall each bear their own costs associated with engineering and the
employment of outside consultants in connection with this Endorsed Disposition
Agreement.
16. The parties agree that the MassHousing shall serve as the project administrator for the
Project. Bay Point shall execute MassHousing's standard form regulatory agreement
to the extent permitted by MassHousing.
17. "Decision and Conditions," Section 13 of the Comprehensive Permit shall be
amended so as to require that all condominium documents shall be reviewed by the
Town Attorney's Office for consistency with the Comprehensive Permit and shall be
duly recorded in the Barnstable County Registry of Deeds at or before the issuance of
any occupancy permits and not as a pre-condition to the issuance of building permits
as originally written in the Comprehensive Permit.
18. "Decision and Conditions,"Section 29 of the Comprehensive Permit shall be
amended in its entirety as follows: "Bay Point shall provide the Board with a
courtesy copy of all materials submitted to MassHousing and any of its agents in
connection with MassHousing's role as project administrator. Any profit in excess of
the 20%limitation rule shall be governed by the terms of the regulatory agreement."
19. In the event of conflict between this Agreement and the Comprehensive Permit,the
-of-t-bi-A.gr�meat-shah-con#ol—lf gr on#lict between-the
Comprehensive Permit and the affordability and limited dividend provisions of the
- 11
Bk 27606 Pg43 #46178
- regulatory agreement;the pertinent provisions'of the Regulatory Agreement shalt
control.
20. Notwithstanding anything to the contrary herein contained,this Settlement
Agreement shall have independent legal significance as a contract between the parties
and it shall be enforceable as such at law and in equity in any court of competent
jurisdiction.
21. This agreement and the easement instrument shall be recorded at the Barnstable
County Registry of Deeds and shall constitute both an amendment to the
Comprehensive Permit issued by the Board and as a notice of contract between the
parties. Both this agreement and the easement instrument shall be marginally not
on the recorded Comprehensive.Permit. Additionally.the parties agree that this
contract shall be binding in perpetuity upon the respective parties,their successors
and assigns.
22. The Committee hereby retains jurisdiction over this matter.
Witness our hands and seats this day of `—� ,2010.
TOWN OF BARNSTABLE BAY POINT, LLC
John G. K1i 1vlanager uart Bornstein, Duly Authorized
Charles, Jr kBBO 36880) Paul N. Barbado((o Esq. (BBO#028850)
367 Main Street Christopher Agostino,Esq. (BBO#664521)
Hyannis, MA 02601 Baker, Braverman& Barbadoro. P.C.'
508-862-4620 50 Braintree Hill Office Park, Suite 109
Braintree,MA 02184
(781) 848-9610
Stu rt Bornstei
n,Individually
12
Bk 27606 Pg44 #46178
Cotuit Fire District
By: .cucI
Bruce W. Kelly,Ch irman
ENDORSED:
Werner Lohe, Housing Appeals ommittee oft Commonwealth
13
Bk 27606 Pg45 #46178
Exhibit B
Easement
F
15
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Bk 27606 Pg46 #46178
PERPETUAL EASEMENT
Bay Point LLC,"Grantor", for and in consideration of Two Hundred Seventy-Five
Thousand and 00/100 Dollars($275,000.00), grants to the Town of Barnstable(hereinafter,the
"Town"), a Massachusetts municipal corporation,with a principal place of business at Town Hall,
367 Main Street,Hyannis,Barnstable County,Massachusetts;02601, its successors and permitted
assigns,and to the Cotuit Fire District(hereinafter,the"District"),a Massachusetts municipal
corporation with a principal place of business at 64 High Street,Cotuit, Massachusetts,02635,its
successors and permitted assigns,as tenants in common, herein"Grantees",to be held by
Grantees as.tenants in common, IN PERPETUITY,the following described easement on so
much of that certain parcel of unregistered land, comprising approximately 1.05 acres of
undeveloped land, as more particularly depicted on a plan of land entitled""Easement Plan in
Cotuit(Barnstable)",MA#671 Main Street prepared for Bay Point Townhouses,Date: June 28, .
2010, Scale 1"=20"'to be recorded in the Barnstable County Registry of Deeds herewith. For
Grantor's title,see Deed recorded in the Barnstable County Registry of Deeds in Book 19541,
Page 310; see also Book 19541, Page 317.
Reference is also made to a document entitled"Endorsed Disposition and Settlement
Agreement"dated August/0,2010,to be recorded herewrith,and which is incorporated herein
by reference and also to a certain"Comprehensive Permit"also recorded herewith.
The purposes of this Easement are (1)to assure that any prohibitions and limitations of use
created by this document and/or by the Endorsed Disposition and Settlement Agreement shall be
adhered to;(2)to assure that the Premises is retained in perpetuity substantially in its natural, scenic,
and open condition;(3)to prevent any use of the Premises that will significantly impair or interfere
with the water resource values of the District's abutting well field and its water resources;(5)to
provide and promote exclusive and perpetual protection of soil, and other natural resources
under,upon and within the Premises,and(6)to assure that both the District and the Town shall
have unrestricted access to the Premises at all times to perform tests on surface and sub-surface
water quality via test wells and any other reasonable methods from time to time in use in the
discretion of the Grantees, and without limiting the generality of the foregoing,(7)to assure the
protection of water in accordance with best management practices and available technology,the
assemblage,maintenance and protection of watershed land,water supply land in order to-provide
adequate and safe water in all parts of the Cotuit Fire District.
Permitted Acts and Uses.
Notwithstanding anything contained elsewhere in this agreement,the Grantees may engage in
the following activities:
1. Construction,operation,maintenance;use and repair of facilities,gated access ways and
appurtenances for the installation and maintenance of test holes and test wells,for use in
monitoring and testing groundwater quality,collecting surface water,and/or transporting
said water for analysis off the Premises;
- 1
Bk 27606 Pg47 #46178
2. The right to take active measures (including the construction of gates,fences and barriers)
in order to prevent unauthorized vehicle and pedestrian entry and dumping, and security
measures required by law pertaining to a public water supply;
3. The right to install temporary or permanent boundary monuments delineating the
Premises;
c
4. The right to erect and maintain small signs so long as such signage is consistent with the
purposes of this easement, subject, however, to the prior written approval of the Grantor
and its successors and assigns,which approval shall not be unreasonably withheld.
5. The right to enter onto the remainder of grantor's premises not conveyed herewith for the
limited purpose of collecting test samples from drains, sewers, and water collection areas.
6. In accordance with best forestry management practices;the right to remove invasive non-
indigenous plant species; the right to control poison ivy and other potentially hurtful plant
life and other plant life that threatens indigenous species anywhere within the Premises so
long as surrounding vegetation is not unnecessarily and substantially disturbed and water
quality is not materially impaired;
7. The clean-up of trees felled by storms across existing or future authorized trails including
the shallow dispersal of wood chips generated on-site and the orderly stacking of logs
resulting from said clean-up;
8. Live timber may be cut only for disease control, storm cleanup, removal of non-native
invasive plant species, construction and maintenance of test wells and for safety reasons
to prevent injury to persons or damage to property lawfully upon the Premises;
The Grantor shall retain the right to convey the Premises in its entirety, subject to the terms of
this perpetual easement and subject to the terms of the Endorsed Disposition and Settlement
Agreement above referenced.
Subsequent Transfers. The Grantor agrees to incorporate by reference the terms of this
Easement in any deed or other legal instrument by which Grantor conveys or assigns any interest
in all or a portion of the Premises, including,without limitation,a leasehold interest.
Termination of Rights and Obligations. Notwithstanding anything to the contrary contained
herein,the rights and obligations under this Easement of any party holding an interest in the
Premises terminate upon transfer of that party's interest,except that liability for acts or omissions
occurring prior to the transfer, and liability for the transfer itself if the transfer is a violation of
this Easement,shall survive the transfer.. Any new owner shall cooperate in the restoration of the
Premises or removal of violations caused by prior owner(s)to the same extent as would such
prior owner had there been no transfer or assignment, and may be held responsible for any
continuing violations.
Estoppel Certificates. Upon request by the Grantor, the Grantees shall,upon twenty(20)days
2
Bk 2.7606 Pg48 #46178
notice,execute and deliver to the Grantor any document, including an estoppel certificate,which
certifies the Grantor's compliance with any obligation of the Grantor contained in this Easement,
and which otherwise evidences the status of this Easement as may be requested by the Grantor.
Non-Merger. The parties intend that the doctrine of merger shall not apply to this conveyance,
and that no transfer of Grantor's or either Grantee's interest in the Premises and no acquisition of
any additional interest in the Premises by Grantor or either Grantee shall cause this Easement to
merge with the fee or have the effect of causing any of the terms hereof to be rendered
unenforceable by reason of the so-called doctrine of merger. If it is determined that a transfer or
assignment of any interest will result in a merger,no deed shall be effective until this Easement
has been assigned or other action taken to avoid a merger and preserve the terms and
enforceability of this Easement. It is the intent of the parties that the Premises will be subject to
the terms of this Easement in.perpetuity,notwithstanding any merger.
Miscellaneous Provisions
1. Controlling Law.The interpretation and performance of this perpetual Easement shall be
governed by the laws of the Commonwealth of Massachusetts.
2... Construction.Any general rule of construction-to the contrary.notwithstanding,this
Easement shall be liberally construed in favor of the grant to effect the purposes of this
Easement and the terms and conditions of the Endorsed Disposition an&Settlement
Agreement.
3. Severability. If any provision of this Easement shall to any extent be held invalid,the
remainder shall not be affected.
4. Entire Agreement.This instrument together with the Endorsed Disposition and
Settlement Agreement set forth the entire agreement of the parties with respect to the
Easement and supersede all prior discussions, negotiations,understandings,or
agreements relating to the Easement, all of which are merged herein.
5. Captions. The captions in this instrument have been inserted solely for convenience of
reference and are not a part of this instrument and shall have no effect upon construction
or interpretation.
Effective Date. This Easement shall be timely recorded.Grantor and Grantees intend that this
Easement shall take effect on the day and year this Easement is recorded in the official records of
the Barnstable County Registry of Deeds, after being executed by the Grantor and Grantees and
approved by the Massachusetts Housing Appeals Committee.
3
Bk 27606 Pg49 #46178
Executed under seal this day of .2010•
BAY POINT, LLC
By: Stuart A. Bornstein
Its:
COMMONWEALTH OF MASSACHUSETTS
ss.
On this day of ,2010,before me, the undersigned notary public,
personally appeared Stuart A. Bornstein, in his capacity as Duly Authorized Person of Bay Point,
LLC, who proved to me through satisfactory evidence of identification, which was: {_}
license; (__) or personally known to me,to be the persons whose names are signed on the
preceding document in my presence,and acknowledged to me that he signed the document
voluntarily for its stated purpose.
Notary Public
My commission expires:
4
Bk 27606 Pg50 #46178
Exhibit C
Mortgage
16
Bk 27606 Pg51 #46178
V
MORTGAGE
Bay Point, LLC,"Mortgagor",for valuable consideration,the receipt and sufficiency
whereof is hereby acknowledged, hereby grants to the Town of Barnstable (hereinafter,the
"Town"), a Massachusetts municipal corporation,with a principal place of business at Town Hall,
367 Main-Street,Hyannis,Barnstable County,Massachusetts,02601, its successors and permitted
assigns,and to the Cotuit Fire District(hereinafter,the"District"),a Massachusetts municipal
corporation with a principal place of business at 64 High Street, Cotuit,Massachusetts, 02635, its
successors and permitted assigns,as tenants in common,herein"Mortgagees",with Mortgage
Covenants, to secure the performance of all covenants and agreements of the Mortgagor
contained in a contract between and among the parties hereto entitled,"Endorsed Disposition and
Settlement Agreement"dated August 11, 2010 to or for the benefit of the Mortgagees herein
(hereinafter, "the Contract"), the land and buildings in Barnstable (Cotuit), Barnstable County,
Massachusetts,all as described below,together with any and all improvements now or hereafter
situated thereon.
The land and improvements are referred to as the "Premises"and are described as
follows:
that certain parcel of unregistered land, comprising approximately 2.38 acres of land with
buildings thereon, as more particularly depicted on a plan of land entitled"Easement Plan in
Cotuit(Barnstable)", MA 4671 Main Street prepared for Bay Point Townhouses, Date: June 28,
2010, Scale 1"=20"'to be recorded in the Barnstable County Registry of Deeds herewith.For
Mortgagor's title,see Deed recorded in the Barnstable County Registry of Deeds in Book 19541,
Page 310; see also Book 19541, Page 317. .
The Mortgagor covenants-and agrees with Mortgagee:
(1) to perform all of the covenants and agreements contained in the said contract and in all other
documents or instruments executed by Mortgagor in connection herewith;
(2)to carry with respect to the Premises and its use such insurance as Mortgagee may from time
to time reasonably require and.as may from time to time be reasonably required by an.applicable
Federal, State or local law or regulation,including,without limitation,the following:
(a)Casualty Insurance against loss or damage to the Premises on a comprehensive all risk
basis which shall not exclude fire, extended coverage, vandalism and flood, in an amount not
less than the full replacement value of the improvements to the property;
(b)Comprehensive General Liability Insurance for claims arising from bodily injury,
personal injury and property damage occurring upon, in or about the Premises on an
occurrence basis with combined single limit coverage of not less than One Million Dollars
per person,Two Million Dollars per incident;
(c-)-Flood Insurance-if-he-P-r-emises-or-an-y-portion-thereof is-located-in-a-feder-all-y-desi-gnated—
flood hazard area as established by the National Flood Insurance Act of 19.68, as amended by
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Bk 27606 Pg52 #46178
the Flood Disaster Protection Act of 1973,in an amount equal to the lesser of(i) all amounts
outstanding pursuant to the Contract and(ii)the maximum amount of such insurance as is
available. Said flood insurance policy shall name Mortgagee as loss payee'thereunder.
And evidence of all such insurance(with evidence of payment of premiums thereon satisfactory
to Mortgagee) so required to be maintained,together with any other insurance with respect
to the Premises maintained by Mortgagor, shall be deposited with,and,except for public liability
coverage and any other coverage Mortgagee may determine shall not be payable to it in case of
loss, shall be first payable in case of loss to Mortgagee; all renewals or replacements of such
insurance from time to time in force together with evidence of payment of premiums thereon
satisfactory to Mortgagee shall be delivered to Mortgagee at least twenty(20) days before the
expiration date of then current insurance;all insurance required as aforesaid to be maintained
with respect to the Premises shall be written by such companies,on such terms,in such form and
for such periods and amounts as Mortgagee shall from time to time approve and shall provide
that coverage may not be canceled without twenty(20) days prior written notice to Mortgagee;
Mortgagor shall pay to Mortgagee on each day that payments are required by the terms.of the
Contract,a sum determined by Mortgagee to be sufficient to provide, in the aggregate, the
premium for such insurance; such sums shall not bear interest and may be commingled with the
general assets of Mortgagee;Mortgagee shall not be required to account for any profits from its
use thereof; and such sums may be applied by Mortgagee to.the payment of such insurance
premiums or any other obligation or debt of Mortgagor hereunder;
(3)to maintain the Premises at all times in as good repair and condition as the same now are or
hereafter may be put,damage from casualty expressly not excepted,permitting no waste or strip
of ordinance,restriction,regulation, order or code affecting the Premises or the use thereof; and
not to remove or alter any of the improvements,equipment,appliances, furnishings and fixtures
constituting part of the Premises without the prior written consent of Mortgagee;and to.permit
Mortgagee,its agents and employees reasonable opportunity to enter upon the Premises for the
purpose of inspecting the condition of the Premises and determining Mortgagor's compliance
with the covenants contained herein. Mortgagor covenants to cure any violation of law,by-law,
ordinance,restriction,regulation,order or code affecting the Premises or any use thereof
disclosed by Mortgagee's inspection or otherwise, within a reasonable period of time,but in no
event longer than sixty(60)days;
(4)that Mortgagor shall not lease the Premises or any part thereof,or consent to any sublease or
assignment, without first having obtained the written consent of Mortgagee; and Mortgagor shall,
promptly upon the execution of any lease or consent to any sublease or assignment, furnish
Mortgagee with an original counterpart of such lease or consent;
(5) if the Premises or any part thereof shall be damaged or destroyed by fire or other hazard
insured against, or if the Premises or any portion thereof shall be taken by eminent domain,ho
settlement on account of any loss, damage or taking shall be made without the consent of
Mortgagee,provided, however, in the event of a default hereunder,Mortgagee may, at its option,
settle any claims with the insurers or taking.authority, and provided further that any proceeds
from-insurance-or-da�nagg�ft�l su_eh takings fheas�mav-he-shall-he-ria;cl-tn-Tvlgag �-mod
Mortgagor hereby irrevocably assigns the same to Mortgagee, and Mortgagor hereby grants to
Bk 27606 Pg53 #46178
Mortgagee full power and authority as attorney irrevocable of Mortgagor to settle such claims
and to collect and endorse any checks issued in the name of Mortgagor. Mortgagee, in its
discretion,may either apply any insurance proceeds or eminent domain award against any of the
debt or obligations secured hereby (in which.case Mortgagor's obligations hereunder to restore
such damage to the Premises as may have been caused by such fire, other hazard or taking, shall
terminate), or release such portion of the proceeds to Mortgagor as is necessary to restore the
Premises to their prior condition insofar as is practicable upon such terms and .conditions as
Mortgagee deems appropriate, and apply the balance thereof, if any, to the debt secured hereby; .
provided, however, that if any insurer of the Premises denies liability, Mortgagor shall not.be
relieved of its obligation to restore the Premises;
( ) Mortgagee an 6 if a ee shall become involved in action or course.of conduct with respect to the
Y
Contract this mortgage,the Premises 'or an other security for the debt or obligations secured
gb Y Y g
hereby, in order to protect its interest therein, including without limitation: Mortgagee's
commencement and prosecution of foreclosure proceedings;the payment of real-estate taxes,
insurance premiums,prior or subsequent mortgages or security interests; involvement in
bankruptcy proceedings concerning Mortgagor; entering the Premises,for the care and
management thereof;or defending or participating as a party in any action at law or in equity
brought by Mortgagor or any other person or organization with respect to the Premises (or other
security for the debt secured hereby), Mortgagor shall promptly reimburse Mortgagee for all
charges, costs and expenses incurred by Mortgagee in connection therewith, including without
limitation attorneys'fees and'an additional reasonable fee to compensate Mortgagee for overhead
and personnel salaries and wages attributable to undertaking such actions or conduct;
(7)that at any foreclosure sale of the Premises,the Premises or any portion thereof may be
offered for sale for one total price or separately, and the proceeds of such sale or sales may be
accounted for in one account without distinction between the items of security or without
assigning to them any proportion of such proceeds,Mortgagor hereby waiving the application of
any doctrine of marshalling of assets. Mortgagee may, in the exercise of the power of sale herein
given, sell the Premises and said other security in parts or parcels,said sales may
be held from time to time,by public or private sale, and the powers shall not be fully executed
until all of the Premises and said other security not previously sold shall have been sold; if
surplus proceeds are realized from a foreclosure sale, Mortgagee shall not be liable for any
interest thereon pending distribution of such proceeds by Mortgagee; in the case of a foreclosure
sale, Mortgagee shall be entitled to retain one(I%)percent of the purchase money(exclusive of
prior liens)in addition to the costs, charges and expenses permitted by the Statutory Power of
Sale;
(9)to notify Mortgagee promptly of the existence of and the exact details of any other lien or
security interest affecting any portion of the Premises, now existing or hereafter arising and to
make all payments that become due to any secured party having such security interests.
Mortgagor represents that no lien or security interest presently exists in the Premises except as
has heretofore been disclosed in writing to Mortgagee;
(1-0)-in-the-event-the-legal-or-beneficial_.ownership._of-the_P_remises,-ox-any_portionxhereof_or
interest therein,becomes vested in anyone other than Mortgagor(and for the purposes of the..
Bk 27606 Pg54 #46178
foregoing, a sale or transfer of any portion of the beneficial interest of a trust or stock of a
corporation, or a change in the identity of the general partner of a limited partnership or a partner
in a general partnership, or the trustee of a trust, shall be deemed such a vesting),the entire
mortgage debt shall,at the option of Mortgagee,become.due and payable on demand together
with all prepayment charges to which Mortgagee would be entitled under the Contract or by law
if the Contract were paid in full at the time of demand,provided, however that Mortgagee may, .
without notice to Mortgagor, deal with Mortgagor's successor or successors in interest with .
reference to the Mortgage and the debt secured hereby in the same manner as with Mortgagor
without in any way releasing,discharging or modifying Mortgagor's liability or obligations with
respect to this Mortgage or the debt secured hereby. No sale of the Premises hereby mortgaged
and no forbearance on the part of Mortgagee or extension of the time for the payment of the debt
secured hereby or any other indulgence given by Mortgagee shall operate to release, discharge,
modify,change or affect the original liability of Mortgagor,nor the priority of this Mortgage
either in whole or in part,notice of such forbearance,extension or other indulgence being hereby
expressly waived;
(11)that Mortgagor shall not:
(a)create,permit to be created or suffer any lien or encumbrance on the Premises(except for
the lien-for-unpaid real estate taxes and betterment assessments prior.to.the commencement .. . .
of interest and penalties thereon);
(b)if Mortgagor is other than a natural person or persons, liquidate,terminate its existence,
merge or consolidate with any other entity or dissolve;
(c)file a petition under any chapter of the federal Bankruptcy Code or institute any other
proceeding under any law relating to bankruptcy,bankruptcy reorganization;insolvency or
relief of debtors,or consent to an assignment, composition or similar arrangement for the
benefit of Mortgagor's creditors, or consent to appointment of a receiver for any of
Mortgagor's property.
(12)if this Mortgage is at any time subject or subordinate to another mortgage,Mortgagor shall
not modify,amend,or extend such prior mortgage,or the debt or any obligation secured thereby,
without the consent of Mortgagee. Any default under such prior mortgage or any obligations
secured thereby shall be a default hereunder, and Mortgagee shall be entitled but not obligated to
cure said default,as provided herein;
(13)any notice,demand or other communication from Mortgagee to Mortgagor shall be deemed
satisfactorily given upon depositing the same in writing in the United States mail,postage
prepaid by registered or certified mail, addressed to Mortgagor at the address set forth herein or
the business address of Mortgagor last known to Mortgagee;and any such notice,demand or
other communication shall be treated as having been given two days after such deposit in the
United States mails; and a notice so addressed shall always be a sufficient notice,
notwithstanding a change of ownership of the equity of redemption of the Premises without or
mot=c=onsen-nt�d�o=b3�=Mortgage-� arid=whererari=en�r�on�ei�st��tes=the=l�ortgagor�rie
Bk 27606 Pg55 #46178 r
e to the address or the last known business address of Mortgagor shall constitute
notice sent
sufficient notice to all.
(15) In the event bf any breach in the covenants, conditions or agreements in any instrument
given in connection with the contract secured hereby,or in any other mortgage,debt or
obligation of or from Mortgagor to Mortgagee.remaining uncured after the expiration of any
applicable grace periods;or if any involuntary proceedings shall be commenced against
Mortgagor or any general partner or trustee of Mortgagor, if any,under any chapter of the federal
Bankruptcy Code or other law relating to bankruptcy, bankruptcy reorganization,insolvency or
relief of debtors; and such petition or proceeding is not dismissed within thirty(30)days from
the date on which it is filed or instituted; or if Mortgagor becomes insolvent or is unable to pay
its debts as they become due,then, at the option of Mortgagee,the entire obligation secured
hereby,together with all prepayment charges to which Mortgagee would be entitled under the
contract shall be due and payable,and Mortgagee shall have the Statutory Power of Sale as
hereinafter provided. The failure at any time of Mortgagee to exercise this option shall not
constitute a waiver of the right to exercise the right at any other time.
(16) Whether or not for additional interest or other consideration paid or payable to Mortgagee,
no forbearance on the part of Mortgagee or-extension of the time for the payment of the whole or
any part of the obligations secured hereby,.whether oral or in writing,or any other indulgence
given by Mortgagee to Mortgagor or to any other party claiming any interest in or to the
Premises, shall operate to release or in any manner affect the original liability of Mortgagor,or
the priority of this Mortgage or to limit,prejudice or impair any right of Mortgagee,'including
without limitation,the right to realize upon the security,or any part thereof, for the obligations
secured hereby or any of them, notice of any such extension, forbearance or indulgence being
hereby waived by Mortgagor and all those claiming by, through or under Mortgagor; and no
consent or waiver,express or implied,by Mortgagee to or of any default by Mortgagor shall be
construed as a consent or waiver to or of any further default in the same or any other term,
condition, covenant or provision of this Mortgage or of the obligations secured hereby; in case
redemption is had by the Mortgagor after foreclosure proceedings have begun,the holder shall
be entitled to collect all costs, charges and expenses incurred up to the time of redemption.
(17)In case any provision of the contract, this Mortgage,or any instrument executed by any
person or organization.in connection therewith shall be found unenforceable or invalid for any
reason, the.enforcement of any other provision shalt be deemed modified to the extent necessary
to be enforceable or if such modification is not practicable, such provision shall be deemed
deleted from this Mortgage.
(18)This Mortgage is upon the STATUTORY CONDITION and upon the further condition that
all covenants and agreements of Mortgagor in the contract, this Mortgage,all other instruments
executed in connection therewith and in all other mortgages, debts and obligations of or from.
Mortgagor to or for the benefit of Mortgagee shall be kept and fully performed,and upon any
breach of the same Mortgagee shall have the STATUTORY POWER OF SALE and any other
powers given by statute.
Bk 27606 Pg56 #46178
(19)The word "Mortgagor" as used herein means Mortgagors named herein,whether one or
several,and also means any subsequent owner or owners of the equity of redemption of the
Premises, and all of the covenants and agreement of Mortgagor herein contained shall be binding
upon Mortgagor, its heirs,executors,administrators,successors and assigns and shall be joint
and several if more than one person constitutes Mortgagor. The word "Mortgagee"as used
herein means Mortgagee named herein and any subsequent holder or holders of this Mortgage.
This Mortgage is executed under seal this day of , 2010.
Bay Point,L.L.C.,
By:
-COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss.
On this day of ,2010, before me,the undersigned notary '
public,personally appeared ,proved to me
through satisfactory evidence of identification, ,to be the
person whose name is signed above, and acknowledged to me that they signed the foregoing
w instrument voluntarily of their on free act and deed.
Notary Public
My commission expires:
Bk 27606 Pg57 #46178 r . we
1, Linda Hutchenrider,Town Clerk of the Town of Barnstable, Barnstable County,
Massachusetts, hereby certify that this Comprehensive permit was appealed by
the Petitioner to the Housing Appeals Committee in the case No. 07-14, entitled
;`Bay Point, LLC, v. Barnstable Zoning Board of Appeals". All issues in that
appeal were settled by compromise and approved August 27, 2010 by the
Housing Appeals Committee in an "Endorsed Disposition and Settlement
Agreement"filed with the Barnstable Town Clerk on January 14, 2011. 1 further
certify that twenty (20) days have elapsed since such filing and that no appeal of
the Comprehensive Permit or the Endorsed Disposition and Settlement
Agreement has been filed in the office of the Town Clerk, This Comprehensive
Permit, as modified by the said Endorsed Disposition and Settlement Agreement,
are to be filed simultaneously with the Barnstable County Registry of Deeds and
are to be cross-referenced to one another by appropriate marginal notations.
Id s� :s'a�`� ,Irttrrra
Signed and sealed this 22 day of March,
o. . ,, 6"P ,
rn .is
Linda Hutchenrider, Town Clerk =Lu:
Town of Barnstable •Z""
i� ,� e e e.•Qa .`�
'r
BARNSTABLE REGISTRY OF DEEDS
B 27606 Ps58 �4r6179
.:. -�� 08—:r37�2�€1�.3. of U44.3='"�..' 3� - :•
-MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding is executed in connection with a certain Endorsed
Disposition and Settlement Agreement by and between Bay Point, LLC(`Bay Point')'and the
Town of Barnstable and the Cotuit Fire District(collectively the"Town"),dated as of
6 ("the Agreement").
Whereas the parties negotiated and executed the Agreement in good faith in order to
amicably settle pending litigation before the Housing.Appeals Committee;
Whereas the parties intend to clarify certain mechanical and logistical elements of their
Agreement that could not be addressed within the Agreement because of limitations.encountered
in the negotiation and execution of the Agreement;
'Whereas this Memorandum of Understanding is not intended to change the benefit of the
bargain reached between the parties,but.rather is intended to address issues that have been
encountered in implementing the Agreement in order to effectuate the intent of the parties;
The parties therefore have the following additional agreements and understandings with
respect..tol the Agreement:
-� 1) The three year time limit imposed on Bay Point to complete construction pursuant to
Paragraph 9 of the Agreement shall be deemed to run from'the date the mortgage referenced
in Paragraph 9 is recorded in the Barnstable County Registry of Deeds, or in lieu thereof,the
date the Letter of Credit described in Paragraph 3(a).hereof is issued, and Bay Point receives
the consideration set forth in Paragraph 9. This paragraph is intended to provide Bay Point
an equitable extension of time in which to complete construction on account of unexpected
circumstances and delays. Bay Point remains committed to completing construction as soon
as practicable.
2) The parties understand and agree that the mortgage(if used rather than the Letter of Credit
described in Paragraph 3(a)hereof,referenced in Paragraph 9(F)is intended to secure.
repayment of the consideration paid to Bay Point in the event Bay Point does not complete
construction as provided in the Agreement within the three year time period described herein.
The mortgage shall be discharged forthwith upon Bay Point's completion of construction
pursuant to Paragraph 9(B).•The mortgage is not intended to secure Bay Point's performance .
of other obligations under the Agreement;rather it is solely intended to secure performance
of.the obligations in Paragraph 9(B)and the repayment of money in the event such
obligations'are not fulfilled.
3) The parties fully understand and acknowledge that the mortgage is intended to serve as a
"super lien"relative to repayment of$137,500 in the event of a default of the construction
time limit obligations described in Paragraph.9(B);however,the parties further.acknowledge
that such mortgage may inhibit Bay Point's-ability to borrow construction financing or sell
units with such an encumbrance in place.,For instance, although Bay Point intends to
cons ct e ef-6p nt.a .once;tli�re tray e—lagtim�betwee p-1Etion ofsome
Bk 27606 Pg59 #46179 P _,
units and the completion of all units necessary to discharge the mortgage as provided herein
and in the Agreement;therefore,the parties agree to make reasonable accommodations so as
to allow financing and the sale of units before the completion of construction,while ensuring
the Town is adequately protected in the event of a default.in Bay Point's construction
timeline obligations as follows:
a) In lieu of the recorded mortgage called for under the Agreement,Bay
Point may establish a Letter of Credit in favor of the Town of Barnstable in the amount of
$137,500 in order to secure.Bay Point's performance under the Agreement. Such Letter
of Credit shall be in form and substance reasonably satisfactory to Town Counsel and
payable to the Town of Barnstable in the event Bay Point defaults in its obligations under. .
Paragraph 9(B). .Cotuit Fire District has determined that it is more concerned with the
recording of the easement;therefore,it need not be named as a beneficiary under such
Letter of Credit.
4) Nothing herein shall be deemed to alter the benefit of the bargain between the parties set
forth in the Agreement,rather this Memorandum of Understanding is intended to reasonably
allow Bay Point to complete construction and proceed with the sale of units in the ordinary
course,in light of the Town's mortgage or Letter of Credit if Bay.Point chooses to establish a
Letter.of Credit instead of a mortgage for security as provided in Paragraph 3(a),while at the
same time protecting the Town's interest in maintaining security to ensure repayment of the
$137,500.00 in the event Bay Point does not complete construction pursuant to the timeline
contemplated in Paragraph 9 of the Agreement.
5) In the event that the letter of credit contemplated herein shall expire or become unenforceable
for any reason which is not the fault of the Town,including without limitation the conditions
expressed in Article 36 of the Uniform Customs and Practices for Documentary Credits,
International Chamber of Commerce Publication No. 600 as amended from time to time
hereafter,Bay Point shall be in material default of its obligations under the Agreement and
the Town shall immediately have all remedies available to it under the Agreement after
providing Bay Point with five(5)business days advance notice and opportunity to cure.
Executed under seal this day of AIV C� 2012.
BAYTOINT,LLC TOWN OF BARN8TABLE
By: Thomas K. Lynch
Its: Acting Town Manager
COTUiT FIRE DIST
By.: Fne itc�c � Y.
Its: w -
• Bk 27606 Pg60 #46179
COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE,ss.
On this 9—)day of 2012,before me,the undersigned notary public,
personally appeared the a ove-named Stuart Bornstein, and proved to me through
satisfactory evidence of identification,which was personal knowledge,to be the person
whose name is signed on the preceding document,and acknowledged to me that he
signed it voluntarily as President of Holly Management and Supply Corporation,the
Manager of Bay Point, LLC,for its stated purpose.
Notary Public C,t t �b
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13ARNSTABLE REGISTRY OF DEEDS
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Vk l P'9'61_ T"t�iY:I
SECOND MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding is executed in connection with a certain Endorsed
Disposition and Settlement Agreement by and between Bay Point, LLC("Bay Point")and the
Town of Barnstable and the Cotuit Fire District(collectively the"Town"), dated as of August 16,
2010("the Agreement") and in connection with a certain Memorandum of Understanding("first
MOU")dated March 28,2012.
Whereas the parties negotiated and executed both the Agreement and the first MOU in
good faith in order to amicably settle pending litigation before the Housing Appeals Committee;
Whereas the parties intend to clarify certain mechanical and logistical elements of their
Agreement and MOU in order to facilitate securing Barnstable's interests further;
Whereas this Memorandum of Understanding("MOU#2") is not intended to change the
k� benefit of the bargain reached between the parties,but rather is intended to address issues that
have been encountered in implementing the Agreement and the first MOU in order to effectuate
�J the intent of the parties;
The parties therefore have the following additional agreements and understandings with
respect to the Agreement and the first MOU,which the parties hereby reaffirm,except to the
extent of any conflict between the content of this second MOU and either of the earlier
documents in which event the terms of this second MOU shall control.
1) The three year time limit imposed on Bay Point to complete construction pursuant to
• Paragraph 9 of the Agreement shall be deemed to run to December 31, 2016 notwithstanding
any agreement to the contrary. Bay Point remains committed to completing construction as
soon as practicable prior to such time limit.
2) As additional consideration for the further extension of time to complete the affordable
housing project contemplated in the Agreement as extended by this MOU,Bay Point agrees
to the following:
A. Not later than June 30,2014,Bay Point will undertake and complete all
construction on the existing residence shown as"Existing D.U."as shown on a plan
partially entitled"Bay Point Townhouses Layout and Landscape Site Plan" dated and
revised 5/8/09.
1
1
3
I
Bk 27606 Pg62 #46180
B. Provided that the renovations to the Existing D.U. are substantially complete(as
that term is defined in section 9(B)of the Agreement)not later than June 30,2014,then
one third (1/3)of the amount then held in the Escrow Account described below shall be
released to Bay Point. If the residence is not substantially complete by that date, no
monies shall be released and shall remain in escrow per the terms of the Escrow
Agreement and the Agreement.
C. Bay Point will immediately undertake a comprehensive cleanup of the entire
property which is the subject of the Agreement, and will diligently perform all acts
necessary to keep the property and its landscaping in order. To this end,Bay Point will
maintain the landscape in an acceptable and aesthetically pleasing presentation at least
twice per month between April 1 and October 31 and as necessary for the balance of the
year until the proposed landscaping for the project is substantially completed.
Additionally,Bay Point will take all steps necessary to make the existing home
more aesthetically pleasing. Without limiting the actions reasonably necessary to
accomplish this,Bay Point will remove boarding over windows and doors,adequately
secure the structure from unauthorized entry,and perform any other tasks deemed
reasonably necessary to secure the property.
To accomplish and provide guidance to achieve these ends,the building
commissioner of the Town of Barnstable,will monitor the condition of the property and
may provide direction to Bay Point to remedy conditions which do not meet the
aspirational standards of this MOU. Bay Point will, in turn,implement instructions of the
building commissioner at the next scheduled maintenance session,but not later than two
weeks from such notice. The judgment of the building commissioner with respect to
aesthetics shall be absolute.
The obligations imposed by this section 3(C)shall be a material condition of this
MOU for breach of which Bay Point may be declared in default of its collective
obligations of the Agreement and both MOU's.To the extent not inconsistent with this
second MOU, the parties reaffirm the Agreement and the First MOU.
3) The parties acknowledge that one of the primary inducements for Barnstable to enter into the
Agreement,to secure funding from the Barnstable Community Preservation Committee, and
to pay over the same to Bay Point is to ensure that the construction of two affordable housing
units will take place as contemplated in the Agreement. In order to assure that this purpose is
accomplished,the parties have agreed to establish an escrow fund in which the proceeds to
be paid by Barnstable per the Agreement will be held. The funds shall be held in the Escrow
Agreement and released from the Escrow Agreement according to its terms.
4) The parties understand and agree that the fiends paid into the Escrow Agreement are intended
to secure repayment of the consideration paid to Bay Point in the event Bay Point does not
complete-construction-as-provided-in the-Agreement-before-December 31-2016-The escrow
funds are not intended to secure Bay Point's performance of other obligations under the
Bk 27606 Pg63 #46180
Agreement;rather,it is solely intended to secure performance of the obligations in Paragraph
9(B)and the repayment of money in the event such obligations are not fulfilled.
Executed under seal thig_�' Of 2013.
BAY POINT, LLC TOW�XOF�B ����
By: �� �`t1 K By: Thomas K. Lynch
Its: Town Manager
COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, ss.
On thisbq3 day of b 2013,before me, the undersigned notary public,
personally appeared the above-named Stuart Bornstein,and proved to me through
satisfactory evidence of identification,which was personal knowledge,to be the person
whose name is signed on the preceding document, and acknowledged to me that he
signed it voluntarily as President of Holly Management and Supply Corporation,the
Manager of Bay Point,LLC,for its stated purpose.
Notary Public CjA 1I ry, rn(nP-1 5
My Commission Expires:
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BARNSTABLE REGISTRY 01 DEEDS
Bk 27606 P03 �446177
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BARNSTABLE
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Town of Barnstable
Zoning Board of Appeals
M.G.L., Chapter 40B Comprehensive Permit Decision-and Notice
Bay Point LLC•
Comprehensive Permit 2005-100—'Cotuit Center Residence
Applicant: Bay Point, LLC
Property Address: 671 Main Street,Cotuit,MA
Assessor's Map/Parcel: Map 036,Parcel 015
Zoning: Residence F Zoning District
Groundwater Overlay: Wellhead Protection Overlay District
Permit Granted: Five(5).units of multi-family housing on•2.38 acres. Two of the dwellings are to be
affordable units marketed to qualified low and moderate-income households at 65%and
70% of the median income. Three units are to be one-bedroom new construction
townhouse units. A fourth unit is to be a one-bedroom created by either renovation of an.
existing cottage or demolition of that cottage and construction of a new townhouse. The fifth
unit is to be created by preservation and restoration of the existing historic home as a three-
bedroom dwelling. Related site,.improvements include on-site septic,parking,utilities and
landscaping. ,
Background Information:
The Applicant:
The applicant is Bay Point, Limited Liability Company (LLC), Stuart A. Bornstein -Manager. The
address of the company is 297 North Street, Hyannis, MA 02601. Copies of the Commonwealth of
Massachusetts Certificate of Organization creating Bay,Point, LLC and a copy of the proposed
Operating Agreement for Bay Point, LLC have been submitted.
Relief Requested: „
On September 16, 2005, the applicant, Bay.Point, LLC, submitted a Comprehensive Permit
application to the office of the Zoning Board of Appeals for the development of"Cotuit Center
Residence". The application requested the development of 11 multi-family units on an existing
developed lot consisting of 2.38-acres fronting on Main Street in Cotuit. The application was made
with the intent that the development would be restricted to age 55 and over.
The plans proposed retaining the front half of the main structure located on the property as_a three-
bedroom dwelling and the expansion of the existing "cottage" structure to a two-bedroom unit.
Three new multi-family structures were to be built on the premises with each structure containing
three,two-bedroom townhouse type dwelling units. Three, three-car garage structures were also
proposed. The development was to be serviced by public water and a proposed private on-site
l
Bk 27606 Pg4 ' #46177
t !
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
septic disposal system. Plans included re-grading of the property, a center driveway,,accessory
parking, utility services and landscaping.
Three of the dwellings were to be dedicated as affordable units marketed to qualified low and
moderate-income households. The development was to be funded through the Housing Starts
Program of Massachusetts Housing Finance Agency and/or the New England Fund Program of the
Federal Home Loan Bank of Boston.
The Locus:
The 2.38-acre parcel is a developed lot consisting of two dwellings. The principal dwelling is a
2,369 sq.ft., two-story,three-bedroom, single-family structure. A second one-story "cottage"
dwelling consisting of 550 sq.ft. is situated to the rear of the principal dwelling. The property was;
purchased in the name of Bay Point, LLC on February 17, 2005 for $700,001.00.
The locus is zoned Residence F. That district permits only one single-family dwelling and its
accessory buildings and uses. It is within the Resource Protection Overlay District and a Wellhead
Protection Overlay District. The.property is.approximately 1,200 feet from Cotuit Bay, a,south
coastal embayment and one of the three bays situated between Cotuit and Osterville. Nitrogen
loading to those bays has been of concern as fin and shell fishing resources have deteriorated and
public beaches have experienced high levels of nitrogen and high bacteria.counts.
The property is within the Town's designated Wellhead Protection Overlay District_and is.subject to,
the local Board of Health regulations, Section 232 of the Code of the Town of Barnstable,.
Wastewater Discharge. That Section.is commonly referred to as the "330 Rule" which limits on-site
wastewater discharge to 330 gallons per day per acre within designated groundwater protection
districts. Approximately 1/3 of the lot is within a Massachusetts'Department of Environmental
Protection (DEP) 'Zone l'which;for public water system well with approved yields of 100,000
gallons per day, the protective radius is 400 feet. The remain ing.property is in a DEP designated
Zone 11.
The undisturbed portion of the property which is the bulk of the lot is identified in the Natural
Heritage & Endangered Species Program Priority Habitats of Rare Species and Estuary Habitats of
Rare Wildlife. According to that program,the area constitutes a habitat for the Eastern Box Turtle.
The principal structure dates to the 1900's and is listed in the National Registry of Historic Places as
a contributing building to the Cotuit Main Street Historic District. The,abutting uses are all single-
family with the`exception of the land to the rear of the site that is owned by the Cotuit Water
District and is used as a public supply well site. .
'Main Street in Cotuit is mostly single-family as it has been zoned only for single-family use since
the Town enacted zoning in 1929. The commercial uses are all nonconforming or exempt uses
that.are relatively benign, low impact uses consisting of a neighborhood convenience store that
includes package goods,take-out pizza and sandwich service. Further southward is the village's
library and a small landscaped green. Further on is 'Freedom Hall",the village's recreation and
2
= Bk 27606 Pg5 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
social gathering hall. Along School Street there is a professional real estate and an architect's office,
a neighborhood eatery with a bar,the Cotuit Post Office and a religious institution. A way-to-water
with a small public beach is located off Main'Stree. t. Also, northward and off Main Street,there is a
public soft ball field which hosts the Cape Cod Baseball League..
Procedural History:
On September 16, 2005,the applicant, Bay Point LLC, submitted a Comprehensive Permit
application to the Town Clerk and to the Office of the Zoning Board of.Appeals accompanied with
a signed Extension of Time Limits for holding the public hearing. On,the same day, a
memorandum from the Board, transmitting copies of the application and requesting review and
comment was.sent from the Board's office to select agencies, boards and commissions in
accordance MGL Chapter 40B and the Board's Comprehensive Permit Rules and Regulations.
A public hearing was duly scheduled before the Board for November 02, 2005 and public notice of
that hearing was posted in Town Hall, mailed to interested parties and published in the Barnstable
Patriot on October 14 and 21' 2005. The public hearing on this permit application opened on
November 2, 2005, continued to December.14, 2005, February 15, 2006, April 12,2006,:May 24,
AprilNovember 15, 2006,January 17, 2007, February 28, 2007, .11, 2007,
May 9, 2007, and to July 25, 2007. At the July 25th hearing, public comment was closed and the
Board continued the hearing to August 8, 2007, for the purposes of rendering a decision. Board
Members hearing the Comprehensive Permit application and rendering this decision were:Sheila
Geiler, Randolph Childs,James.R. Hatfield, Daniel M. Creedon, and Chairman -Gail C.
Nightingale,
Mr. Stuart A. Bornstein was present throughout the hearing: Attorney Edwin E.Taipale initially`
represented the applicant atthe hearing;after,which,'Mr. Bornstein'presented,the application.
They were assisted by the project engineer Daniel A. Ojala. During the course of the public
hearings, plans for the development were modified several times The applicant eliminated the
proposed age restriction, relocated the development out of the DEP designated Zone I area of the
site, eliminated the garage structures, increased the number of units to 12, reduced the total c
number of designated bedrooms to 14 and added open loft areas to the second floors. To assist the
Board in addressing concerns for the on-site septic system and nitrogen loading to the public supply
well and the costal embayment,the applicant agreed to and funded a peer review of that issue and
the plans.
The last rendering of the plan proposed a 12 unit development consisting of 5 new duplex
buildings totaling 10, one-bedroom dwellings with second floor loft areas,a one-bedroom unit
created from the existing cottage building and a three-bedroom unit from the existing main
dwelling. That plan also proposed an on-site septic system that included a biological.filter
treatment and nitrogen removal, outdoor parking for 24 vehicles and related landscaping and utility
services.
3
i
` Bk 27606 Pg6 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
List of Materials Submitted:
The following is a list of materials submitted to the file on this application.
1. A transmittal letter dated September 14, 2005,to the Zoning Board of Appeals from Stuart A.
Bornstein accompanied by the Comprehensive Permit Application.
2. Application for a Comprehensive Permit as submitted by Bay Point,,LLC, with Town Clerk's
Office date stamped September 16, 2005,.and consisting of several attachments as itemized:
• Attachment A—Applicant's status including a copy of the Commonwealth of - - -
Massachusetts Certificate of Organization creating Bay Point Limited Liability Company
(LLC) identifying Stuart A. Bornstein as Manager.
• Attachment B —Agency Commitment Letter dated August 2, 2005, Site Approval Letter to -
Stuart A. Bornstein-Manager, Bay Point LLC from Thomas R. Gleason -Executive Director,
Department of Housing and Community Development.
• "Attachment C— Document of applicant's ownership of the property containing copies of
two deeds transferring the property from Kristine E Nielsen and'Karen Grammaticas, and
Eloise G. Nielsen to Bay Point, LLC, as recorded at.the Barnstable Registry of Deeds on
February 17, 2005, in Book 19541,page 310 and page 317.
• Attachment F-Project description and narrative explaining existing conditions and
description of the proposed development as initially presented.
• .Attachment G - Project site plan and architectural plans
• Attachment H -Pro-Forma analysis projecting costs of the originally proposed development
at $3,724,670. Total income from sale of f the units estimated at $4,084,200 resulting.in
total profits of$359,530 or 9.65%.
• Attachment I — List-..of public agencies for review and approval:
• ,`Attachment.) — List of requested exceptions
• Attachment 1 — Developer's' Profile
3. Copies-of the September 16, 2005, Transmittal Memorandum from Daniel M. Creedon III-
Chairman,Zoning Board of Appeals to various agencies, boards, commissions and departments,
transmitting copies of the application and requesting a review of the proposed Comprehensive
Permit application. The memorandum was sent to: Gary C. Brown — President-Town Council;
John Klimm-Town Manager; Robert D. Smith, Ruth Weil-Town Attorney's Office; Laura F.
Shufelt-Chairman Barnstable Housing Committee,and Elizabeth Dillen-Office of
Community and Economic Development;Thomas K. Lynch — Director- Barnstable,Housing
Authority; David Munsell -- Chairman - Barnstable Planning Board;John J. Finnegan —Chief-
Barnstable Police Department; Mark S. Ells— Director- Department of Public Works; Maureen
4
Bk 27606 Pg7 #46177
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Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
McPhee-Tax Collector; Robert Gatewood_Conservation Administrator;Thomas McKean-
Health Agent; Tom Perry- Building Commissioner; Margo L. Fenn-Executive Director-Cape
Cod Commission; Chief Paul A. Frazier-Cotuit Fire Department;Thomas F. Geiler- Director of
Health Safety and Environmental Services; Ken Ventura--Superintendent-Cotuit Water
Company; and Thomas F. McDonald-Interim Superintendent- Barnstable School Department
and Nancy Clark--Chairman-, Barnstable Historic Commission.
4. Agencies, Boards and Commissions reviews received::
• Cotuit Fire Department e-mail correspondence dated September:28, 2005,from Paul A.
Frazier- Fire Chief-Cotuit Fire Department.
• Board of Health/Health Division e-mail correspondence dated October 18, 2005, from
Thomas McKean -Health Agent noting that the Bay Point Chapter 40B proposal had been
reviewed by the Board of Health on October 11, 2005, and that the proposal does not
comply with State Environmental Code,Title 5 or the Section 232 of the Code of the Town
of Barnstable-Wastewater Discharge.
• Cape Cod Commission correspondence of October 21,,2005, noting that for the purposes
of Comprehensive Permits, the Commission is a local review board. The Commission's
review stated, among other things,that age 55 and over affordability is not a priority need
in Barnstable County and that wastewater treatment system exceeded 6.00 ppm nitrogen
loading in an area-of concern for nitrogen loading to Cotuit Bay.
• Town of Barnstable- Police Department review of October 24, 2005, from Sgt. Andrew P.
McKenna, cites that the proposal does not appear to adversely affect traffic conditions,'
• Letter dated October 17, 2005, from Theresa A. Egan.— President of the Historic Society of
Santuit & Cotuit, Inc., citing that a higher density of development within the village center
of Cotuit is an inappropriate,development of an historic building and site.
5. Age Restricted Active Adult Housing in Massachusetts, a June 2005 report of the Citizen's
Housing and Planning Association
6. A citizen's petition signed by 127 persons in opposition to Bay Point's Comprehensive Permit .
application was received October 19, 2005. Public correspondence in opposition was received
from: Edward L. Peirson, 621 Main Street, Cotuit, Phyllis J. Miller, 688 Main Street, Cotuit;
Gloria Y. Myers, 923 Main Street, Cotuit, Barbara A. Kern, 701 Main Street, Cotuit, Richard
8.uell & Phyllis H. Buell, 689 Main Street, Cotuit, Raymond E. Smith 719 Main Street, Cotuit,
and Anne &Jim Adams, 759 Main Street, Cotuit.
7. Town of Barnstable- Planning Division Staff Report dated October 24, 2005, as submitted to
the Board and inclusive of attachments to that date.
8. A December 8, 2005', letter from Attorney Edwin E.Taipale transmitting copies of the proposed
Operating Agreement of Bay Point, LLC.
5
Bk 27606 Pg8 #46177
r y
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence ;
9. An April 25, 2006, e-mail correspondence from the Barnstable.Housing Committee requesting
that staff secure additional information.
10. Barnstable Public School's letter dated'May 03, 2006,from William F. Butler-School Attorney
citing that the School Committee had no concerns.
11.A May 10, 2006, e-mail form Thomas McKean -Health Director noting that the Town's
Wastewater Discharge Ordinances (330 rule) would limit the number of bedrooms permitted
on the property and that the Chairman of the Board of Health has requested a review of the
Amphidrome I/A system.
12.A letter dated May 17, 2006' from Frederick Kiely—Chairman - Board of Water
Commissioners, Cotuit Fire District, and the Water Department, stressing concern for the
increased density within Zones 11 to the public supply wells and potential threat•to the quality
of the drinking water supply.
13.A letter dated May 16,2006,from Chief Paul A Frazier=Cotuit Fire Department reviewing the
revised plans and citing plan needs..
14.A May 22, 2006, letter from Thomas'K. Lynch-Executive Director- Barnstable Housing
Authority expressing support of the revised proposals as it is no longer age restricted and will be
a mix of rental units and ownership units and that three affordable units would be rental units
priced to be affordable to the 65% income level.
15. Correspondence dated May 30, 2006, from Daniel A. Ojala-Project Engineer responding to
Mr. McKean's request and noting that a waiver was being requested from the Zoning Board to
the local 330 rule,
16.A copy of the June 13, 2006, Board of Health meeting results as it relates to Bay Point.'
17.A June 20, 2006, Me.morandum from Robert A. Burgmann,-Town Engineer, expressing concern
for the revised plans.
18.An August 16, 2006, Town of Barnstable-Growth Management Department Staff Report as
submitted to the Board and inclusive of attachments to that date.
19.A copy of the Consulting Service's Request for Proposed dated August 30, 2606, as rrnai led to
five consulting firms regarding the peer review.
20. Public correspondence from Frances S. Parks dated August 31, 2006, citing the need for a back-
up electric generator.
21. Copies of the three responses to the:Request for Proposals regarding the peer review as
received at the Zoning Board of Appeals Office and a September 21, 2006,ndistribution,
memorandum requesting review of proposals.
6
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Bk 27606 Pg9 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100-Cotuit Center Residence `
22. An October 06, 2006, staff notification to Mr. Bornstein regarding the Board's October 04,
2006, selection of the proposal submitted by the'Horsley Witten Group, Inc and requesting the
funds for the study.
23. A landscape plan for the development submitted to the file on October 11, 2006'.
24.An October 20, 2006, letter in opposition along with a copy of a letter sent to the Barnstable
Housing Committee from Thomas Knight Burgess and Ann Elizabeth Burgess-Berbee, abutters
to the development.
25. A second request from staff dated October 23, 2006,to Mr. Bornstein to fund payment account
for the selected consultant.
26. Copy of an October 26, 2006, correspondence to Town Treasurer for deposit of funds received,
from Mr. Bornstein for the peer review.
27. Copy of an October 27, 2006, letter sent to Mark Nelson- Horsley Witten Group notifying
them as the selected consultant.
28.A copy of a letter dated November 20, 2006, sent to Ken Ventura-Cotuit Water Company and
Frederick Kiely-Cotuit Board of Water Commissioners notifying them of the consultant
selection and activities. .
29.An invoice dated November 30, 2006, from Horsley Witten Group and letter dated December
6; 2006,to Gareth Markwell -Assistant Treasurer requesting payment of invoice.
30.A December 7, 2006, letter from Mark Nelson -Horsley Witten Group notifying staff thatthe
site of the development is in a designated rare species habitat and a letter dated December 12,
2006, to Stuart Bornstein regarding that information.
31. Drainage Calculation and Utility Plan dated May 6, 2006, from Daniel Ojala — Project
Engineer, submitted"December 26,2006.
32. Copy of second peer Feview invoice from Horsley Witten Group received January 4, 2007
33. Copy of the applicant's MESA (Mass. Endanger Species Act) Information Request Form as
submitted to Natural Heritage& Endangered Species Program-January 9, 2007. '
34.The Horsley Witten Group Wastewater & Stormwater Peer Review as submitted to Zoning
Board of Appeals office on January.9, 2007.
35.Copy of Town of Barnstable Growth Management Staff report dated January 10, 2007, revised
January 17, 2007. '
36. Revised Site Plans dated 2-28-07 as submitted at the Public Hearing of February 28, 2007,and
a memorandum from Daniel A. Ojala summarizing changes made and Nitrogen loading
Calculations.
i
I 7
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Bk 27606 Pg10 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100-Cotuit Center Residence
37. Copy of a March 2, 2007, letter to Gareth Markwell Assistant Treasurer transmitting additional
funds to that office for processing of the peer review.
38. Letters in objection to the grant of the Comprehensive Permit from L. Odence, PO Box 503,
Cotuit, MA dated March 10, 2007,from Anna &Jim Adams, 756 Main Street, Cotuit, MA dated
March 13, 2007,from Herbert and Barbara Jackson, PO Box 501, Cotuit, MA dated Apri 15,
2007, and from Phyllis Miller, 688 Main Street, Cotuit, MA dated April 4, 2007.
39. Copy of a letter dated March 28, 2007,to Gareth Markwell -Assistant Treasurer requesting and
authorizing payment of Horsley Witten Group invoice dated February 28, 2007.
40. An April 5, 2007, memorandum from Attorney Michael D. Ford to the Board on denial of,,
Comprehensive Permits. The memorandum was submitted at the request of the Board.
41. Revised plans incorporating Nitrix filter'and SeptiTech processor submitted April 5, 2007, and
an April 6, 2007, e-mail from Daniel A. Ojala including Revised Site Plan dated.4-5-07, Revised
Nitrogen Loading Calculations dated 4-6-07, NHESP Approval Letter and related documents.
42. Budget Amendment Request from Horsley Witten Group dated April 5, 2007, Copy of an April
9, 2007, letter to Gareth Markwell -Assistant Treasurer transmitting additional funds to that
office for processing in the peer review.
43. Letters in opposition from Warren & Sandra Nickerson, 24 Hannah Circle, Cotuit, MA dated
April 6, 2007, from Cotuit-Santuit Civic Association, signed by Thomas K. Burgess for the
Executive Committee dated April 9, 2007, from Anne &Jim Adams, 759 Main Street, Cotuit,'
MA dated May 14, 2007, from Alfred N. Wohlwend, 923 Main Street, Cotuit, MA dated May
18, 2007,and copy of correspondence to Health Division/Board of Health from Kenneth H.
Molloy, 225 Oxford Drive, Cotuit,.MA dated,May 16, 2007.
44. E-mail correspondence dated April 11, 2007, to Daniel Ojala from staff requesting that copies
of plans be provided to Health, Fire, and Engineering for review and correspondence from Paul
A. Frazier-Chief, Cotuit Fire Department including a copy of the prior May 16, 2007,
correspondence
45.An April 18, 2007, letter from Wayne Miller, M.D., Barnstable Board of Health to the Zoning
Board of Appeals citing the need for review of the revised septic design.
46. Horsley Witten Group Peer Review Update dated April 30, 2007, based upon revised plans.
47. Correspondence_ dated May 3,2007, from Stuart Bornstein requesting continuance of the May
9`h hearing.
48.Copy of a May 16, 2007, Ietter,.to Gareth Markwell -Assistant Treasurer requesting payment of
an invoice dated April 30, 2007, from Horsley Witten Group.
8
Bk 27606 Pg11 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100-Cotuit Center Residence
49.A May 30, 2007, e-mail Transmittal Sheet from Down Cape Engineering with attachments sent
to Thomas McKean - Director Health Division. A June 4, 2007, e-mail copy of Board of Health
filing dated May 31, 2007, made by Daniel Ojala with attachments.
50. Letter from the Board of Health dated June 13, 2007, citing concerns for design of the units
with lofts being "de facto two-bedrooms" and that the proposed septic system is a provisional
system-a pilot installation.-
5 1.A July 17, 2007, e-mail correspondence from Daniel Ojala with an attached document from Dr.
Jennifer Rivers Cole (The Rivers Consulting Report) dated July 12, 2007.
52. Copy of a July 18, 2007, Growth Management Department IStaff Report to the Board.,
53. A July 25, 2007 letter from Attorney Mark H. Boudreau citing the Cotuit Water Department's
opposition.
54.A July 30, 2007, fax correspondence from Stuart Bornstein with a January'20, 2006, letter from
MassHousing attached.
55. Copies of a draft regarding possible findings on Bay Point dated July 23, 2007,to deny and l
August 1, 2007, to grant. The drafts were generated at the request of the Board.
Findings with Respect to Standing- Review of Jurisdictional Requirements:
Motion: At the hearing on August 8, 2007,a motion was duly made and seconded to find the
following.findings of fact on standing, the Jurisdictional Requirements of the-applicant to apply for a
Comprehensive Permit under MGL Chapter 40B as identified in CMR 760Sections 30-31:
1. With respect to the limited dividend organization,the applicant is Bay Point LLC., a Limited
Liability Company,Mr.Stuart A.'Bornstein- Manager. A copy of the Commonwealth of
Massachusetts Certificate of Organization was submitted with the application for a
Comprehensive Permit on September 16, 2005.
A copy of the proposed Operating Agreement of Bay Point, LLC. was submitted to the file on
August 28, 2006. It includes,rlanguage that restricts the company to low or moderate income
housing developments as defined in Chapter 40B, Sections 20-23, and as that term is used by
the Commonwealth of Massachusetts Housing Appeals Committee. It cites that the
organization would restrict its operation pursuant to the requirements of the CMR Chapter 760,
Section 30.02 to that of a limited dividend organization. At this time, the document has not
been signed nor recorded.. Mr. Stuart Bornstein has testified that it would be signed and
recorded upon the granting of the Comprehensive Permit.
2. As to the fundability;this is a difficult aspect as to standing as the proposed project has changed
during the course of this hearing. A copy of a Site Approval letter dated August 2, 2005, to
Stuart A. Bornstein -Manager of Bay Point LLC.,from Thomas R. Gleason -Executive Director.
9
Bk 27606 Pg12 #46177
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Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
of the Department of Housing and Community Development, was submitted with the
application for a Comprehensive Permit on September 16, 2005. That letter was issued based
upon the initial plan for the development that'proposed a total of 11 two-bedroom units of
housing on 2.38 acres. The plans upon which the site approval letter was issued proposed the
retaining of the front half of an historic three-bedroom dwelling as one unit,expansion of the
existing 'cottage structure'to a two-bedroom dwelling, and the construction of three new multi-
family structures each consisting of three, two-bedroom townhouse type dwelling units. Nine
indoor garages in three new structures were also proposed as was accessory outdoor parking.
Of the 11 units,three of the dwellings were to be dedicated as affordable units. The
development was intended to be restricted to age 55 and over and all units were intended to be
for sale with the affordable units restricted to the 80% income limitation.
Over the course of this hearing,development plans have changed a number of times including
the total number of units, type of units;pricing of the affordable units reduced to the 65%
and/or 70% income group and includes that option of a mixture of for sale and rental units.
The Board has requested an updated Project Eligibility—Site Approval Letter-and the applicant
had testified that the August 2, 2005, Site Approval letter is still valid regardless of the change
in the complexion of the project.. No written confirmation on extending the Project Eligibility
letter from MassHousing was received. On July 30, 2007, after the close of the public hearing
and the record for this application, a January 20, 2006, letter from MassHousing was faxed to
the Board: That letter stated.that MassHousing policy is to review changes made to a
development plan only upon a request for Final Funding Approval. That letter reiterated that
the Project Eligibility Approval letter dated August 2, 2005, is valid for two (2) years and stated
"if an extension is required, a formal request must be made". No extension has been
submitted to the file. As the August 2, 2005, Site Approval letter has expired;the Board will
condition any approval upon receipt of an extension of the Project Eligibility Approval letter
and receipt of a Final ApprovalJetter based upon the final plans as conditioned herein if
granted.
3. The third statutory regards site control. The applicant owns the property as documented by
copies of two deeds transferring it from Kristine E. Nielsen & Karen Grammaticas,`and from
Eloise G. Nielsen to Bay Point LLC. The deeds were recorded at the Barnstable Registry of
Deeds on February 17, 2005, in Book 19541, page 310 and page 317. Copies have been
submitted to the fiW with the application.
The Vote on the findings for standing was as follows:
Aye: Sheila Geiler, Randolph Childs,James R. Hatfield, Daniel M. Creedon, Gail C. Nightingale.
Nay: None
1.0
Bk 27606 Pg13 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
Decision on Standing:
Motion: Based upon the findings cited above a motion was duly made and seconded to find that
the applicant has standing to apply for a Comprehensive Permit subject to an updated project site
eligibility letter from MassHousing.
The Vote with respect to standing was as follows:
Aye: Sheila Geiler, Randolph Childs,James R. Hatfield, Daniel M. Creedon, Gail C. Nightingale.
Nay: None
Findings of Fact Regarding Consistency with Local Needs:
Motion: The Board, having found that the applicant has satisfied the requirements as to standing,
proceeded to make a motion and second that motion that the following findings be made with
respect to the proposed development consistency with local needs:
1. Bay Point, LLC, has applied for a Comprehensive Permit under the General Laws of,the
Commonwealth, Chapter 40B "Affordable Housing The applicant submitted a
Comprehensive Permit application to the Zoning Board of Appeals (the Board) on September
16, 2005, seeking to develop 11 units of multi-housing on the 2.38 acres, addressed as 671
Main Street, Cotuit, MA. The plans were to:
Retain the existing historic dwelling and restore it to a three-bedroom,free-standing
dwelling unit;
• Expand and renovate the existing cottage to a two-bedroom,free-standing dwelling unit;
• Construct nine, new, two-bedroom townhouse dwelling units in three, multi-family
structures each with three units. Nine garages were also proposed in three accessory
buildings.
2. Initially, the total number of bedrooms was 23, well in excess of the number permitted under
local Board of Health regulations and in.excess of that permitted under state Title 5 regulations
for family housing. The original proposal was that all units were to be for sale and restricted to
age 55 and over. Three of the units were to be dedicated as affordable and sold only to those
households with an age 55 or older member and with an income level not to exceed 80% of
the median income for the Barnstable Metropolitan Statistical Area (MSA). The development
was to be funded through the Housing Starts Program of Massachusetts Housing Finance
Agency and/or the New England Fund Program of the Federal Home Loan Bank of Boston.
3. The 2.38 acres lot is currently nonconforming in use as the Residence F Zoning District in
which it is located only permits one single-family dwelling only. The locus is also within the
Resource Protection Overlay District which requires two acres of upland to meet the minimum
I
Bk 27606 Pg14 #46177,
Town of Barnstable-Zoning Board of Appeals «
Comprehensive Permit 2005-100—Cotuit Center Residence
lot area to which the lot does conform. All of-the property is within the Town's designated
Wellhead Protection Overlay District and subject to.the Board of Health "330 Rule".
Approximately 1/3 of the lot is within a Massachusetts Department of Environmental Protection
(DEP) 'Zone I'to a public supply well. The remaining area of the site is.within DEP 'Zone II'.
The site is also identified in the Natural Heritage & Endangered Species Program Priority
Habitats of Rare Species and Estuaries Habitats of Rare Wildlife. The property is within the
designated Cotuit Historic District, a National Historic District. The locus is approximately
1,200 feet from the waters of Cotuit Bay in an area identified as being of concern for nitrogen
loading to coastal waters.
4. The locus is currently developed with two existing dwellings. The principal structure is a three-
bedroom dwelling that dates to the early 1900's and is designated as a contributing feature to
the Cotuit Historic District. The other is a one-story, one-bedroom cottage structure situated to
the rear of the principal dwelling: The development and use of the property predates the
adoption of single-family zoning in the area.'The property fronts on Main Street and is serviced
by public water. There is.no public sewer in this area of Barnstable and use of the property
requires a private on-site wastewater disposal system. The rear of the property abuts property
owned by the Cotuit Fire District and used for public water supply.
5. With respect to the Natural Heritage & Endangered Species Program, application was made
under that program and on March 30, 2007, a letter was issued identifying that the site is
located within the habitat of the Eastern Box Turtle. It cites that development would be subject
to a deed restriction that preserved the back area of the property in a natural habitat as per a
January 12, 2007,.plan entitled "Conservation Restriction Plan in Cotuit (Barnstable), MA#671
Main Street". The review also required a 20-foot perimeter temporary construction area and the
restoration and delineation of the-restricted area with a split rail fence.
6. The locus is in an area of concern for nitrogen loading to Cotuit Bay. The Resource Protection
Overlay District was adopted in 2000 to specifically address recharge to the south coastal area
that includes the 'Three Bays'area of Cotuit. It was enacted to reduce nitrogen contamination
to the south coastal marine embayment in order to protect water quality, preserve fin and
shellfish habitat, and preserve the beach and swimming areas of the south coasta[area.' In fact,
a recentstudy of the 'Three Bays'area has concluded that a zero nitrogen loading guideline
should be adopted which Massachusetts Department of Environmental Protection (DEP) has
accepted: Those guidelines were seen in a recently issued Comprehensive Permit to Cotuit
Equitable Housing for a 124 single-family dwelling development. In that development, DEP
imposed the zero nitrogen loading requirement after the permit was issued by this Board when
the Board had only imposed a 5'parts per million (ppm)overall nitrogen loading to the
development.
7. The rear,third portion of the lot is within 400 feet of the Cotuit Water`District's public supply
well CT-E3,that yields in excess-of 100,000 gallons per day. This is one of five public supply
wells of the Cotuit Water District. This particular public supply-well has a full-rate pumping
capacity of 350 gallons per minute. -At that capacity,the well would pump in excess of
500,000 gallons per day, sufficient water for over 2,300 average households.
12
Bk 27606 Pg15 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
8. Given the concerns for on-site wastewater disposal and proximity of the site to a public supply
well and to the south coastal embayment,the applicant, at the request of the Board, funded an
independent peer review of the plans and issues regarding nitrogen loading and wastewater
disposal. The consultant firm selected was the Horsley Witten Group which has been before
the Board in a number of passed Comprehensive Permits with regards to nitrogen loading from
on-site wastewater disposal and site drainage. From the peer review comments and
recommendations, the plans were modified several times and the final plan presented to the
Board proposed a total of 12 dwelling units. That proposal had removed the age restriction on
the development and revised plans dated May 30, 2007, called for:
• Retaining the existing historic dwelling and restoring it to a three-bedroom free-standing
dwelling unit;
• Renovating the existing cottage to a one-bedroom free-standing dwelling unit;
• Construction of ten, new, one-bedroom townhouse dwelling units with a second floor
loft in five duplex structures. Each new unit having 1,540 sq.ft. of living area and a full
basement.
That plan has,a total of 14 bedrooms still in excess of the number of bedrooms permitted under
local Board of Health "330 Rule" but included a nitrogen reduction on-site septic system.The
plans eliminated garage parking and sited 23 open air parking spaces. After discussion with the
Barnstable Housing Committee, the applicant committed the three affordable units to be
dedicated in perpetuity as affordable to the 65% and 70% median income household level for
the Barnstable Metropolitan Statistical Area (MSA). The option for having both for sale and/or
rental was also presented to the.Board.
9. The latest plan purports a 3.98 ppm overall site.nitrogen loading to meet the Cape Cod
Commission's standard of.5 ppm nitrogen loading. That plan also attempts to address nitrogen
loading to groundwater caused by the septic disposal in close proximity to a public supply well
and concerns cited in the peer review for possible contamination of the public supply well by
pathogens,active viruses;volatile organic compounds (VOC's)and other contaminants. In
attempting to meet the standards'and address those concerns,the applicant has proposed a
SeptiTechTm system which is an aerobic enhanced re-circulating biological filter treatment
system followed with a Nitrex TM nitrogen removal wastewater treatment system to filtration
through the soil absorption system, a'leach field. The leach field is outside of the DEP 400-foot
Zone I, but still only 568 feet from the public supply well and within the Town's designated
Wellhead Protection Overlay District and DEP Zone 11 to the public supply well.
10. Both the SeptiTech'and Nitrex TM systems are "provisional systems" by Massachusetts
Department of Environmental Protection. Fifty (50) of each type are being allowed statewide
on a provisional basis in order to further evaluate the capabilities and performance of the
systems. The Town of Barnstable's Board of Health noted in its June 13, 2007, letter that"this
means that in pilot installations it has preformed adequately enough to warrant further.
evaluation [and] ... further experience in some cases has not supported the nitrogen removal
claims."
13
• Bk 27606 Pg16 #46177
a
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
11.The proposed on-site septic system is at a design flow of 1,540 gpd. That reflects a total Title 5
capacity of 14 bedrooms maximum. According to the last development plans, the total number
of bedrooms is 14.
12.The '330 Rule" -Section 232-5 of the Code of the Town of Barnstable-Wastewater Discharge,
Maximum Allowable Wastewater Discharge in a Groundwater Protection Overlay District
was adopted in 1985 to protect the aquifers that supply public drinking water. Barnstable's
Board of Health regulation requires all developments, subsidized and unsubsidized housing as
well as commercial developments, be limited to an on-site wastewater discharge to 330 gallons
per day, per acre within designated overlay protection districts. There is no variance or waiver
provisions provided in the Code to this requirement and it has been equally applied in the
overlay protection districts since its adoption, over 20 years ago. Under the 330 rule,this 2.38-
acre lot would be limited to on-site disposal of 785 gallons per day of wastewater. The
proposed development exceeds this standard by doubling'the daily flow of wastewater being
.discharged on-site. The submitted application requests that the Zoning Board of Appeals grant
a waiver from the '330 Rule'-Maximum Allowable Wastewater Discharge in a Groundwater
Protection Overlay District.
13.The last plan submitted proposed a total of 11 units of housing. Ten (10)are one-bedroom -
units and the 11"-unit is the existing three-bedroom.dwelling located on the property. The one
bedroom units are not family housing. Family housing is the most pressing need in Barnstable
and, as virtually all of the units are only one-bedroom,the development does not satisfy this
local and regional need.
14.The Horsley Witten Group's January 4, 2007, review has concluded that the travel time from
the proposed leach field to the public supply well is only 87.3 days at the full rate pumping
capacity of the well and 180.5 days at half the full rate pumping capacity. This means that the ,
effects of any increased nitrogen loading by the development to the groundwater could be
realized at the wellhead and in the public water supply in as little as 3-months, as could any
pathogens,active viruses,volatile organic compounds (VOC's) and other contaminants. It was
also pointed out to the Board that the increase in the number of households residing on the
property proportionally increases the chances that pathogens, active viruses, volatile organic
compounds (VOC's) might be introduced'into the septic system.
15. It should be noted for the record that, unlike most of Massachusetts,the Cape is a sole source
aquifer. Simply put, we draw-,our drinking water from that single aquifer and what we put into.
the ground around us will eventually show up in our drinking water. The wastewater treatment
systems being proposed for this site are allowed only as provisional systems state-wide and in
most of those other areas of the state, options exist to secure potable water from other aquifers
and sources. That is not the case for the Cape. Once a well is contaminated that aquifer is also
contaminated and there is-no other viable alternative to secure potable water.
16.The applicant has provided the Board with a July 12, 2007, review of groundwater issues by
Dr.Jennifer Rivers Cole (The Rivers Consulting Report). In that review, Dr. Rivers Cole states,
"the proposed Bay Point Townhouses pose virtually no risk of contaminating groundwater in
Cotuit. Nitrogen has been more than adequately addressed, pathogens will be attenuated in the
14
Bk 27606 Pg17 #46177
Town of Barnstable-Zoning Board of Appeals I
Comprehensive Permit 2005-100—Cotuit Center Residence
very thick vadose zone,and there is virtually-no risk of VQC-contamination from septic
effluent." She states that her opinion is based on her experience and her review of the materials
in this case. Her report, however, leaves the Board with more apprehension than comfort. The
report states that this particular well, CT-E3, is drawing water from a "high risk condition",that
being, a shallow surface aquifer and,therefore, is susceptible'to contamination by the very ,
nature of its geological composition and proximity to the land surface. The report cites certain
Title 5 regulations that are the same regulations that a single-family Title 5 system must abide'
by. It seems to ignore that this proposal is that of a multi-family development in close proximity
to a public supply well dealing with soil conditions of Cape Cod. Many of the references used
may not be applicable to the Cape. As, in one instance,,it states that"commonly used
guidelines in many,soil conditions keep .......at least 15 meters[about 45 feet]from any well
used for drinking purposes. The Board of Health in.Barnstable requires 150 feet of separation
and that is for a well serving a single-family dwelling, not a public supply well. The report A
states the "current targets are 5.00 ppm" for nitrogen loading'. As a prior finding has stated,the
current policy and adopted guidelines by DEP is now zero nitrogen Lloading in this area.
17.The applicant has been very cooperative in assisting the Board by agreeing to and funding the
peer review on the issues of the groundwater. The study has strived to address the best possible
practices that can be employed to attempt to protect the-public well. However, given all of
that, nitrogen from the development will migrate to the public supply well and over time add to
the overall loading to the public supply well and the embayment. The conclusion reached in
January of 2007 by the Horsely Witten Group study.which was also reiterated at the last public
hearing of July 25, 2007,was that the project will pose a-threat to the Town's drinking water
supply in terms of nitrogen loading,transport of pathogens,VOC's and other contaminates:
Further, escalating this threat to the public's health is the fact that water sampling from ,
monitoring wells does not regularly test for many pathogens, viruses and some contaminants.
18.The Massachusetts Housing Partnership guidelines for review of Chapter 40B recommends that
local zoning boards not review development pro formas unless a condition imposed is cited by
the applicant to make the project uneconor'nical. Barnstable's Zoning Board of Appeals has
regularly requested a copy of that pro forma be submitted to the file. The last pro forma
submitted to the file for this application was on January 9, 2007. That pro forma was generated
based upon development plans that have since been revised three times. The accompanying
fax cover page with the pro forma states that it was submitted to MassHousing on.December
12, 2006. No updated.pro forrna has been submitted based upon the last revised plan and as
noted in the findings on standing, no extension of the Project Eligibility letter has been
submitted to the file nor any letter acknowledging that the project, as revised, remains
economically viable to MassHousing.
ti .
19. In early 2005,the Barnstable Housing Committee cited that the maximum sale price of the one-
bedroom affordable units should not exceed $104,879. That estimate was based upon a
monthly cost of $56.00 for taxes, insurance, and association dues. That estimate was made
prior to the refinement of the on-site septic system and the realization that its operating
expenses would be substantial. The pro forma submitted on January 9, 2007, cited the
projected sale price of the one-bedroom units as $145,000. Some $40,000 more that the
calculated figure of the Housing Committee.. In addition, it should be noted that the Barnstable
15
Bk 27606 Pg18 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cutuit Center Residence
Housing Committee figures.were based upon pricing of the units at 30%'of the 80% income
level for the Barnstable Metropolitan Statistical Area (MSA). Since that calculation, the
applicant has testified that the units would now be priced at the 30% of the 65% and 70%
income levels of the MSA. No pro forma has been submitted to the file showing that updated
commitment.
20.The Board has received reviews and comments from town agencies, numerous letters and
heard testimony from the applicant, public officials, abutters and concerned citizens. The
comments generally objected to the affordable housing development with the overwhelming
concern expressed for protection of the public water supply. A petition opposing the grant of
this Comprehensive Permit containing 127 signatures has been submitted to the file.
21.According to the Department of Housing and Community Development Chapter 40B
Subsidized Housing Inventory of July 9, 2007, the Town of Barnstable has a total of 1,343
affordable housing units. This represents 6.6% of the total housing stock as being affordable
units within the Town.The goal of MGL Chapter 40B, the Local Comprehensive Plan and the
Regional Policy Plan is to provide 10% of the housing stock as affordable. The Town has a
certified affordable housing plan that it has been working under and making strives to
implement. When this project was issued; a Project Eligibility letter dated in late 2005 was
noted that the Town had met its annual requirement of providing 0.75% of its.year-round
housing stock as affordable and, therefore, met its.annual compliance. That annual compliance
certification has since expired
22. 760 CMR, Section 31.07(2) required that the Board review the evidence submitted and balance
regional housing needs with local concerns. In this case local concern is for the health and
safety of the public drinking water and for nitrogen loading to the nearby coastal embayment.
The housing need is that of three, one-bedroom,for sale and/or rental units. In summary:
• The three units would only represent an increase in the Town's overall affordable housing
stock of 1/5"of 1% (or.A) and the nature of the one-bedroom units does not fulfill the
Town's and region's pressing need for family housing. The Accessory Affordable Housing
Program of the Town has been very successful in providing affordable one-bedroom
housing units and as that program requires conformance with the 330 rule,those units*do
not pose a threat to public supply wells.
• The local Wellhead Protection Overlay District in which the property is fully located and
the application of the local '330 Rule'are the Town's regulations specifically designed to
address the local needs to protect public water supply wells. The two in combination were
enacted 22 years ago to directly protect that critical groundwater resource, the sole source
aquifer that feeds the public supply wells,the importance of which is recognized in the
local Codes of the Town in that no waver or variance provision is provided to the 330 Rule.
The Rule limits the amount of wastewater'discharge to 330 gallons per day per acre in
designated areas thereby assuring nitrogen loading is kept.to a safe level and the number of
households that could contribute various pathogens, active viruses, VOC's and other
contaminates up-gradient and within that area that directly contribute to a public supply
well is reduced. In this particular instance,the 330 rule would limit the property to 785
16
Bk 27606 Pg19 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
gallons per day that translates to a maximum of 7 bedrooms total in any housing
development on this lot. The applicant, in the latest plan, has requested a total of 14
bedrooms, double that allowed by local regulations. Given the known threat to the public
water supply, the grant of a waiver to this 330 Rule will contribute to the degradation of the
-
public drinking water and imperil public health. The Zoning Board does not find the
benefit of providing these three units of affordable housing commensurate with the degree
to which the Town's resident's public health and safety would be put at risk. The
implications of losing this public supply well would also damage perspective residential
housing, the tourist and vacation economy, the shell fishing industries and the public's
perception of the natural environment in this area of the Town and region.
• The Town has been striving towards its goal of providing affordable housing and in fact a
recently approved 124 unit affordable,housing development is in its early stages of being
implemented. That housing is situated approximately one mile from this site and is to be
served by a full wastewater package treatment plant in full conformity to zero nitrogen
loading. Since this application was filed, the Board has issued a total of five
Comprehensive Permits totaling 1.88 units. In addition,other affordable units have been
added to the Town's inventory over that same period by the Private Initiated`Affordable
Housing Development(PIAHD), Special Permits issued.by the Planning
Board, Comprehensive Permits issued under the Accessory Affordable Housing Program,
units created by Regulatory Agreements (Chapter 148 of the Code),and those required by
Chapter 9, Article 1 of the Code- Inclusionary Affordable Housing Requirements.
The Vote with respect to findings on consistencywith local needs was as follows:
Aye: Sheila Geiler, Randolph Childs,James R. Hatfield, Daniel M.-Creedon, Gail C. Nightingale.
Nay: None
Decision on Consistency with Local Needs:
Motion: Based upon the findings on consistency with local needs a motion was duly made and
seconded to find that the proposed development of affordable Chapter 40B housing by Bay Point
LLC at this location,would be consistent with local needs provided development complies with the
330 Rule and certain other safeguard conditions are imposed.
The Vote with respect to consistency with local needs was as follows:
Aye: Sheila Geiler, Randolph Childs,James R. Hatfield, Daniel M. Creedon, Gail C. Nightingale. ,
Nay: None
17
I
Bk 27606 Pg20 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100 Cotuit Center Residence
Decision and Conditions: "
Motion: Based upon the findings and the balancing of local and regional needs for affordable
housing with local concern for protection of the public supply well and the coastal embayment, a
motion was duly made and seconded to grant a Comprehensive Permit in accordance with MG
Chapter 40B to Bay Point LLC for the 2.38-acre property addressed as 671 Main,Street,Cotuit, MA
subject to all of the following restrictions and conditions:
1. The total number of housing units permitted shall not exceed five (5) units and the total number
of bedrooms shall conform to the 330 Rule and not exceed seven (7). The units shall be
created by:
a. Preservation and restoration of the existing historic home as a three-bedroom free-standing
single-family dwelling,
b. Renovation and expansion of the existing cottage as a free-standing one-bedroom unit, and .
c. Construction of three new one-bedroom townhouse type units in one or two structures.
In lieu of renovating the existing cottage (b), and the construction of three new townhouses (c),
the applicant has the option to demolish the cottage and construct four, new, one-bedroom, `
attached townhouse dwelling units in two new structures. `
2. The area of the existing historic home to be retained and renovated shall be that area shown in
the last May 30, 2007 plans submitted to the Board. It shall not include the back garage area.
That section of the building shall be demolished. The one-bedroom units shall not exceed
1,320 sq.ft. each and shall be limited to one-story only. They shall not include lofts or walkout r
basements as no-living area shall be permitted in the basements.
3. The on-site septic system shall include the biological filter treatment and a nitrogen removal
wastewater treatment appropriately sized for the seven (7) bedrooms permitted by this permit.
The soil absorption system and the leach field shall remain located where shown on the May
30, 2007, plan and as far from the public supply well as possible. The system shall include a
backup generator:
4.. All development of the lot shall occur to the eastern half of the site within 240 feet of Main
Street. No new structures shall be located westerly of the existing cottage structure. All
construction shall conform to the,district setback requirements. In addition,that part of the lot
that lies within 460 feet of the Wellhead shall not be disturbed by any development activity
including grading and/or tree removal. That 460-foot area shall be delineated by fencing prior
to any construction and remain in an undisturbed natural state during and after construction.
5. The development shall conform to applicable site plan 3review standards. Auto access shall be
from one curb-cut only onto Main Street. On-site parking shall provide at least two spaces per
unit plus a minimum of 3 visitor parking spaces (total 13). All parking shall be appropriately
screened. An emergency vehicle turn around shall be created and a fire hydrant provided. The
turn-around and hydrant location and installation shall be to the satisfaction and specification of
1B
ti Bk 27606 Pg21 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
the Cotuit Fire Department. Interior drives and parking areas shal l be paved and all site run-off
shall be drained into grassed lined biorention area(s) "rain garden(s)" before overflowing to
catch basins and subsurface leaching. Rain Gardens shall be sized to contain the first 1 inch of
rainfall. All drainage shall be contained on-site and shall not be permitted to flow into.
adjoining property or the_public right-of-way. The development site shall be attractively-
landscaped consisting of street, shade and specimen trees, deciduous and.evergreen shrubs,
grasses, groundcovers and lawn areas. All shall be installed-prior to the issuance of the third
occupancy permit and shall be properly nurtured and maintained. Exterior lighting consistent
with residential use,.shall be provided. Sodium or mercury vapor exterior lighting shall not be
permitted. All site lighting shall be contained on-site and shall not be permitted to shine into
abutting properties.
6. Within one year of the grant of this permit, the applicant shall cause an engineered site plan,
grading & utility plan, septic & engineering detail plan, a detailed landscaping plan, revised
architectural elevations and floor plans, a monitoring and maintenance plan for the on-site
septic system, and a projected condominium association budget to be prepared to accordance
with applicable Town requirements and to professional standards that reflects the prior
conditions and other conditions herein as applicable. Those plans shall be submitted to the
Board's staff for distribution and review by appropriated town departments, agencies and
boards and the Cotuit Fire Department. That plan shall be reviewed and transmitted along with
all comments within 5 weeks after submission to the Zoning Board for the Board's review and
approval. No construction activities, including site clearing a'nd'grading, shall be initiated until
the Board has approved the development plans as consistent with this decision and all
applicable Town standards.
7. Of the five dwelling units, two (2) of the newly constructed one-bedroom townhouses shall be
dedicated in perpetuity to be affordable for sale units.The units shall be committed in
perpetuity to affordability at 65% and 70% of the median income level to households in the
Barnstable Metropolitan Statistical Area (MSA). Sale price of the affordable units, including
principal, interest, taxes, insurance and association fees, shall not exceed 30% of the 65/70%
income figure as applicable and adjusted for household size in perpetuity. All units shall be
made available to qualified households on a fair and open basis. A Regulatory Agreement
reflecting the above restrictions shall be prepared by the applicant, approved by the Town
Attorney's Office, and recorde&at the Barnstable Registry of Deeds by the applicant prior to
any building permits being issued. Such restrictions shall take priority over all financing
documents relating to this project. the affordable units shall not be rented unless those units
are owned by an agency with the purpose of providing affordable housing. In that case they
shall only be rented as affordable units to qualified tenants at the 65% and 70% income level,
with a minimum lease of one year, pursuant to the official pricing guidelines established by the
Commonwealth's Department of Housing and Community Development.
8. Also, within the one year period of the grant of this permit, the applicant shall cause the
following to be completed and copies submitted to the Board's file:
• A revised/updated Project Eligibility-Site Approval letter issued from MassHousing, or in t
the alternative,final funding approval from the Department of Housing and Community
a 19 v
r
Bk 27606 Pg22 #46177 I
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
Development issued based upon development plans as changed in this decision, including
the total number of units, type of units, pricing of the affordable units to the 65% and 70%
income group.
• A copy of the signed Operating Agreement of Bay Point, LLC. This agreement shall reflect
that this document was submitted to the file and reviewed and approved by the Town
Attorney's Office.
9. This Comprehensive Permit is granted with the condition that the proposed development is to
be funded under the Housing Starts Program of the Massachusetts Housing Finance Agency
and/or the New England Fund Program of the Federal Home Loan Bank of.Boston. If the
funding source changes,the applicant shall be required to notify the Board for a modification of
this Comprehensive Permit. No building permits shall be issued for the development until the
applicant receives its final funding approval from the Department of Housing and Community
Development and a copy of that letter is submitted to the Board's file.
10.The on-site wastewater disposal system shall be sized for the five units of housing with a total of
7 bedrooms in full conformity to Title 5 methodology and the '330 Rule' of the Town of
Barnstable. The system shall be designed and maintained so as to reduce nitrogen and remove'
pathogens,viruses;VOC's and other contaminates.as required. The final design of the system
including a maintenance schedule and a,monitoring program shall be submitted for final
approval by the Board of Health prior,to the issuance of a building permit. A copy of that
maintenance schedule and the monitoring program as well as the Board of Health's approval
shall also be submitted to the Board's file. Final overall nitrogen loading for the property shall
be kept below 3.98 ppm with the goal of achieving zero nitrogen loading.
11. Prior to the issuance of any building permit,a Regulatory Agreement and Monitoring
Agreement reflecting the restriction's and consistency with this Comprehensive Permit, shall be
executed by the applicant, DHCD, and the Town of Barnstable. The applicant shall prepare the
agreements and submit them for approval.by the Town Attorney's Office. Upon being signed,
they shall be recorded at the Barnstable Registry of Deeds by the applicant against the property
and the individual units. Such restrictions shall take priority over all financing documents
relating to this'project and shall survive foreclosure. Al I costs associated with monitoring for
consistency with the Regulatory Agreement shall be the responsibility of the applicant.
12. In issuing building permits and occupancy permits;the first of any four permits shall be for an
affordable unit. }
13.The,Condominium Master Deed, Declaration of Trust, and Bylaws (herein after ;the
Condominium Documents"), shall,be as submitted to the Board's Office prior to any
application for a building permit. The condominium documents shall include a restriction that
limits the unit's number of bedrooms as per this decision and restricts the basement area, attic
area or any room from being divided for sleeping purposes or converted into a bedroom area.
That restriction shall be included within each unit's deed and within the condominium
documents. Association dues shall be based`upon the unit's value and not the percent of unit
area. Upon transfer of a unit,.a fee equal to three months of the unit dues shall be collected
b 20
Y. Bk 27606 Pg23 #46177
> e °
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
and placed in an escrow account for'the condominium association. That escrow account shall
only be accessed by the association after the trusteeship is transferred from the applicant to the
individual unit owners. The trusteeship of the condominium association shall be transferred to
the unit owners within one month after the issuance of the fourth occupancy permit. The'
condominium documents shall be reviewed by the Town Attorney's Office for,consistency with
this decision and shall be duly recorded in the.Barnstable County Registry of Deeds at or before.
any issuance of the first occupancy permit..,A confirmed copy of such recorded documentation
shall be forthwith provided to the Board. None of the condominium documents shall be
modified or amended in any way or manner so alto negate the terms and conditions of this
decision.
14. None of the five units (market rate and affordable rate units) may be rented for less than a one-
year term. This condition shall be included within the Master Deed, the unit deeds and
association bylaws. Sub-leasing of any such unit shall, if otherwise permitted, not be less than
one year. -,.#
15. Prior to the issuance,of a Certificate of Occupancy for any unit,the applicant shall have the
development and the units connected to the public water supply system and to the on-site
wastewater treatment system. The applicant shall be responsible for obtaining all necessary.
permits including those of the Department of Environmental Protection (DER), if necessary, and
the Town of Barnstable Health Division.
16.To the extent permissible by law, preference for the sale of the affordable units shall be given to
households who are Barnstable residents or that have one of the persons within the household
employed by businesses located within the town of Barnstable. The affordable units are to be
sold as affordable units and are not to be subsidized units.
17.The applicant shall utilize the Housing Assistance Corporation's Cape Home Ownership Center
(CHOC) in the selection of eligible buyers for the affordable units. The Cape Home Ownership
Center is to verify first time homebuyers, income and asset limitations,affirmative marketing,
and appropriate lottery procedures for buyer selection consistent with the terms of this decision.
18.A copy of this Comprehensive Permit shall be recorded at the Barnstable County Registry of
Deeds. Proof of that recording shall be submitted to the Board's file and the Building.Division
prior to the issuance.of any building permits for the development.
19.All construction shall comply with all applicable state building codes, state fire protection
requirements, and Board of Health regulations. In addition, the development shall.conform to•
all pertinent requirements of the Americans with Disabilities Act.. All newly constructed units
shall provide visitability. Both market rate and affordable homes shall have wider door frames
on one exterior entranceway and on all interior door frames including bathroom and walk-in
closet door frames, The top of the exterior wood decks and platforms shall be placed directly
under and abutting the bottom of the exterior door threshold.,
20.The units are to contain low flow toilets and showers, energy efficient appliances, heating and
air,thermal windows,and doors.The.exterior finishing of,the affordable units, including walls,
21
Bk 27606 Pg24 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
windows and doors, shall be identical in all respects to the exterior of the market rate units.
The interior finishing for the affordable units shall have color-matched appliances inclusive of
microwaves, coordinated bathroom and kitchen fixtures, finished painted walls and woodwork,
finished floors, exterior lighting, and front doorbells. Any'amenity (cable television,alarm,
system, exterior lighting, etc.) that is paid from association funds shall equally be included
within the affordable units.
21. Exterior restoration and preservation of the existing historic dwelling shall comply with The
Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating ,
Historic Buildings. The interior of both the historic structure and the cottage, if that building is
to be rehabilitated, shall be improved as necessary to meet all applicable building codes. 'All
appliances, utility services; fixtures, heating and air systems and structural systems including
roofs, windows, floors,walls, etc, shall be of equal quality as that of the new construction and
equal in regards to unit amenities and finishing as those new units to be constructed.
Rehabilitation of the historic structure shall be completed and an occupancy permit issued prior .
to the issuance of occupancy permits for the Fast three units authorized in this,decision.
22. During all stages of development and construction of the dwellings, all construction equipment,
materials, and all parking of vehicles shall be kept on the locus and no vehicles or materials
shall be permitted within the right-of-way of Main Street nor within that 460-foot protective
zone from the public supply well or within 10.feet of the°property lines of the locus except as
maybe needed for utilities or landscaping and then only,on a temporary basis. No audible
construction shall be permitted prior to 7:30 AM or after 5:30 P.M on weekdays,,prior to 7:30.
AM or after 12:00 noon on Saturdays and at no time on Sundays.
23.This Comprehensive Permit shall not be transferable to an entity other than the applicant
without prior written approval of this Board. This condition, however, shall not apply to the
use of the permit in securing financing for the development. ;
24.Transfer of each unit shall include the transfer or assignment of two on-site parking spaces.
Three of the spaces shall remain unassigned and not transferred to individual owners. Those
spaces shall be labeled visitor parking and shall remain that way. '
25.The property shall be addressed'and each unit shall be posted in accordance with the Code,of
the Town of Barnstable General Ordinances, Chapter 51. All signage shall conform to the
Town of Barnstable Zoning.Ordinances without variance. r
26. No certificate of occupancy for any building or unit shall be issued until the improvements
specified in this decision and set forth on the plans of record are constructed and installed so as
to adequately serve said building, or adequate security has been provided, reasonably
acceptable to the Town Engineer and approved by the Town Attorney's Office to ensure such
completion. Any'such,performance guarantees shall be governed by the subdivision rules and
regulations of the Planning Board and shall be approved by the Town Attorney's Office.
27:.Upon completionof-all`work,and prior to certification of total,development.costs,a`letter-of'
certification, made upon knowledge and belief according to professional standards, shall be_a
22
i
Bk 27606 Pg25 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
`submitted to the Building CorrimisslonerwitKa copy.to the Board's file by a registered engineer
that all work has been.done substantially,in compliance with the approved plan. r
28.The applicant or a management company shall be responsible for the installation, operation,
and maintenance of all aspects of the common facilities and utilities including,but not limited
to, septic and drainage systems, common electrical power, snow plowing, landscape
maintenance, and garbage removal as well as a periodic reporting requirement as may be
imposed by the Board of Health. The applicant or a management company shall be responsible
to maintain that the emergency turn around remain clear and passable for emergency vehicles
at all times.
29.The Board shall require a full compilation and certification of total development costs (net of
related-party expenses)and total revenues, on a federal income tax basis, prepared and certified .
by a certified public accountant acceptable to the monitoring agent or the Town to show that
the profit made is within the 20% limitation imposed. Any profit in excess of the 20%
limitation rule shall be governed by the terms of the regulatory agreement..To assure
compliance with this requirement upon the sale and transfer of the last two units in the
development,the gross proceeds from the sale of both units shall be placed in an escrow
account as security for compliance.
30.The Building Commissioner or his designee shall have.the right in perpetuity with proper prior
notification and arrangement with the owner to enter and inspect any of the premises
authorized in this permit to assure full compliance with the Comprehensive Permit.
31.The conditions contained herein are in addition to, and independent of, any requirements of
any funding source for the project. All'of the conditions of this decision as set forth herein shall ,
have independent legal sign ificance.and effect.
The Vote on the conditions was as follows:
Aye: Sheila Geiler, Randolph Childs,James R. Hatfield, Daniel M. Creedon, Gail C. Nightingale.
Nay: None
Relief/Waivers Granted:
Motion: With respect.to the applicant's request for relief from local rules and regulations
Attachment) of the application, a motion was made and seconded to grant only the following
waivers and variances to Bay Point LLC.;for the development as conditioned herein and based
upon that balance test of local and regional housing,need with that of local concern for protection
of the public water supply well.
Variances are granted to the following zoning requirements:
Section 240-7.FJ that limits development within residential districts to one principal
permitted building per lot to allow a maximum of 4 principal buildings on this lot.
23
i
Bk 27606 Pg26 #46177
Town of Barnstable-Zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
• Section 240-14.A that limits the principal permitted use in this district to one single-family
dwelling to allow multi family dwellings on this lot.
• Section 240-21.A.9 the provisions for developing multi-family is waived to allow
development at this site as per.plans to be-submitted consistent with this,decision.
• Sections 240-98 through 240-105 site plan review process is waved only to that extent that
formal submission and public meeting shall not be required as it shall be processed through
staff and then to the Zoning Board. All other plan requirements and development standards
shall be complied with
• Section 240-115.B.2 Growth Management Provision are waved only to the extent that all
building permits may issue at one time provided that the permits are available in that
calendar year.The permits are subject to all other requirements of the Building,Division for
the issuance of building permits and the applicant shall comply with any and all
requirements of this Comprehensive Permit decision, which must be fulfilled and
completed before any building permits may be issued. ,
With respect to the other Ordinances of the Code of the Town,the Zoning Board acting under.
Mass. General Laws, Chapter 40B grants waivers to only the following:
• Chapter 112 Article I - Protection of Historic Properties and Article 11 - Historic Landmarks is
waved as the project is conditioned herein. This shall included authorization to demolish
the garage structure connected to the back of the historic home and the cottage structure
should that option be exercised by the Applicant.
• Chapter.360-38A waiver from the local Board of Health regulations only to the extent that
this Board is permitting an Innovative/Alternative on-site septic system. All other
requirements including approval of the monitoring and maintenance plans by the Board of
Health shall be complied with.
'The Board is not granting the zoning variances requested by the applicant from Section 240-35.G-
Well Protection Overlay District Regulations, and Section 240-53 Landscaping Requirements for
Parking Lots.
No waiver is granted to the General Ordinances; Chapter 232 -Wastewater.Discharge, Chapter
360-On-site Sewage Disposal Systems with the exception of Section 38A of that Chapter to
provide for the use of Innovative/Aiternative.septic system,and Chapter 9-Affordable Housing as
that section is not applicable to Chapter 40B development.
No waiver is granted to the Town's application and permit fees.
The Vote on the waivers and fees was as'follows:
Aye: Sheila Geiler, Randolph Childs,James R. Hatfield, Daniel M. Creedon, Gail C. Nightingale
Nay: None
24
Bk 27606' Pg27 #46177
y
Town of Barnstable-zoning Board of Appeals
Comprehensive Permit 2005-100—Cotuit Center Residence
Ordered:
Comprehensive Permit 2005-100 has been granted with conditions.This decision must be recorded
at the Barnstable Registry of Deeds for it to be in effect. The relief authorized by this decision must
be exercised within three years. Appeals of this decision, if any, shall be made to the Barnstable
Superior Court pursuant to M.G.L. Chapter 40A, Section 17,within.twenty days after the date of the
filing of this decision in the office of the Town Clerk. The applicant has the right to appeal this
decision as outlined in M.G.L. Chapter 40B, Section 22.
g 3�
G C. Nightingal -Chairm Date Signed
I,ida-Hutchenr'ider, Clerk of the Town of Barnstable, Barnstable County, Massachusetts, hereby
certify that twent (20)days have elapsed since the Zoning Board of Appeals filed this decision and
that no appeal of the decision has been filed in the office of the Town Clerk.
Signed and sealed this day of under the pains and penalties of
perjury.
Linda H utchenrider-Town Clerk
25
f
,. Bk 27606 Pg28 #46177
1, Linda Hutchenrider, Town Clerk of the Town of Barnstable, Barnstable County,
Massachusetts, hereby certify that this Comprehensive permit.was appealed by
the Petitioner to the Housing Appeals Committee in the case No. 07-14, entitled
"Bay Point, LLC, v. Barnstable Zoning Board of Appeals". All issues in that
appeal were settled by compromise and approved August 27, 2010 by'the
Housing Appeals Committee in an "Endorsed Disposition and Settlement
Agreement" filed with the Barnstable Town Clerk on January 14, 2011. 1 further
certify that twenty (20) days have elapsed since such filing and that no appeal of
the Comprehensive Permit or the Endorsed Disposition and Settlement
Agreement has been filed in the office of the Town Clerk. This Comprehensive,,
Permit, as modified by the said Endorsed Disposition and Settlement Agreement,
are to be filed simultaneously with the Barnstable County Registry of Deeds and
are to be cross-referenced to one another by appropriate marginal notations.
Signed and sealed this 22"d day of March,L011I..
Linda Hutchenri er, Town Cler` : ,; = dy a •�:
Town of Barnstable ''
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Bk 27606 Pg29 #46177
LEGAL NOTICES
Town of Barnstable Zoning Board_of Appeals
Notice of Public Hearing Under The'Zoning.Ordinance
November,2,2005
To all persons interested in,or affected by the Zoning Board of Appeats under Section 11;of .
Chapter 40A of the General Laws of the Commonwealth of Massachusetts;and all,amendments
thereto you are hereby
notified that:
7:00 P.M. Sherman Appeal 2005.095
Moses H.Sherman and Claire L.Sherman have applied for a Variance to.Section 240.141E)
Bulk Regulations Minimum,Lot Area and Section 240.36 Resource Protection Overlay District.'.;
Minimum Lot Area. The relief from the minimum lot area requirements is for a 0.46!acre lot that.
has merged with an adjoining tot in common ownership.,The applicants seek to un. rge
the lot so that it would be.a separate buildable under zoning. The subject property is.located!as
shown on Assessor's Map 077 as Parcel 046,•addressed 19.Hilltop Drive,Marstons Mills,MA'.
02648 in a Residence F and Resource Protection Overlay Zoning Districts.
7:15 P.M. Gold Appeal 2005.10.1
Randolph R.Gold has applied fora Variance from Chapter 240.14(E)RF-1 Residential District
Bulk Regulations side setback requirements of 15 feet,to allow fora swimming pool to infringe 5 '
feet Into the setback. The subject property is as shown on Map;334 as Parcel 005,addressed
1360 Mary Dunn Road,Barnstable,MA 02630 in a Residence F-1 Zoning District. '
7:25 PM JDJ Housing,Development-The Village Green Comp.Permit 2003.90 -
JDJ Housing Development,LLC has requested a tnodification in Comprehensive Permit 2003-90
issued for the development of the Village Green,a 135 unit rental apartment development with
44 units committed to affordable housing on 14:32 acres. The Applicant..seeks.to change the
total'numberof units from 135`tos 148 units end to.change:.the number of affordable units frgm-.
44 units committed to low and moderate-Income households td 37 units committed to low and
moderate-income households and 14 unh.committed to workforce housing,those households
gaming between 81%and 120%of.the area median income, The Property is addressed.:770'
Independence Drive,.f3arnstable MA,as shown on Assessors Map33'2 as Parcel 01.0.4.looated
In an Industrial Zoning.Dstrict
7.30 P,M. Bay Point: Appeal 2005.100 ;
Bay Point,LLC,Stuart A.Bomstein,Manager,.has applledfor a Comprehensive Permit under
the General-Laws of the Commonwealth of Massachusetts;Chapter 406"Affordable Housing
to allow the construction of 11',mulii•farpilyunits to be located on 2:38 acres. Three of the units
are.to be dedicated as affordable and solit to low and moderate income housing..The property,
is shown on Assessors Map 006.as parcel 0i5,addressed 671 Main Street,Cotult,..MA,:in.a.
Residence F Zoning District.*'
These Public Hearings will be held the`Barnstable Town Hall,367 Main Street;Hyannis, ...
MA, Hearing Room,2nd Floor,.Wednesday,November 2,2005. Plans and applications may;•:.
be reviewed at the Planning Division;Zoning,Board of Appeals Office,Town Offices,200 Main
Street,Hyannis:MA.
Gail Nightingale,Chairman'
Zoning Board'of Appeais
The Bamstable Patriot
October,l4'and October.21,2005
Zoning Board of Appeals (ZBA) Abutter List for Map 036 Parcel 015 t
Abutters=Parties of Interest-those directly opposite subject lot on any public/private street/way and abutters to abutters. Notification of all properties within 300'
i ring of the subject lot.
I This list by itself does NOT constitute a certified list of abutters and is provided only as an aid to the determination of abutters. The requestor of this list is responsible ,
for ensuring the correct notification of abutters. Owner and address data taken from the Town of Barnstable Assessor's database on10/13/2005
Mappar Ownerl Owner2 Address 1 Address 2 City State Zip Country
]---021009 COTUIT FIRE DISTRICT- P.O.BOX 1475 COTUIT MA 02635 USA
021114 PEIRSON,ELIZABETH LAWRENCE 975 MAIN ST COTUIT MA 02635 JUSA.
036002 COTUIT FIRE DISTRICT P.O.BOX 1475 COTUIT MA 02635 USA
036009 JACKSON,GUY L&CHRISTOPHER JACKSON,GARDNER III&GORDON 58 EAST END BOLTON MA. �01740
&. FISKE RD
036009001 SMITH,DEBORAH J C/O SMITH,RAYMOND E 719 MAIN ST COTUIT MA 02635 USA j
036010 KERN,BARBARA&KERN,JILL %KERN,BAR13ARA&JILL P O BOX 1996 ' COTUIT IMA 102635 USA
PHELPS
036011 RIVES,JOHN&SHAUNA 36 GREENWIGH BOSTON MA, 02178 USA
PARK-#3
f
036012 CHASE,KEVIN P& MCCAREY,CAROLE A 699 MAIN ST COTUIT MA' �02635 USA
036013 BUEL,PHYLLIS H - 4 CIRCUIT ST NORWELL MA 01061 USA
036014 COTUIT FIRE DISTRICT P.O.BOX 1475 COTUIT ' MA 02635 USA �:
036015 NIELSEN,KRISTINE E& %BAY POINT,LLC 297 NORTH ST HYANNIS MA 02601 USA
1036016 TURNER,MARILYN 661 MAIN ST COTUIT MA`02635 USA N
J
1 -1 i
036017 ACKSON,HERBERT B& : JACKSON,BARBARA D PO BOX 501' COTUIT MA 02635 USA O
Is
036030 BURGESS,THOMAS K&ANNA E 658 MAIN ST COTUIT MA 02635 USA h�
. - W
/r 036031 INORTHEY,ANTHONY& C/O ANTHONY NORTHEY 111649 WOLFVILLE, CANADA • . B4P2R1 O
POSCHINGER,I HIGHWAY 1 RR NOVA SCOTIA
#1
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36032 MILLER,PHYLLIS J P O BOX 2082 COTUIT MA 02635 USA
Page 1 of 2
Friday,October.14,2005
Mappar Ownerl Owner2 Address 1 Address 2 City State Zip Country
t d ,
036033 EDELSON,JILL& RAREFY,MARGOT ETALS 136 UNADILLA RIDGEWOOD NJ 1074iT---ff—�
RD
036036 MARY BARTON LAND CONS %DIETZGEN,JOSEPH TRS ETAI PUTNAM AVE COTUIT MA 02635 USA
TRUST j1�
i
036038 BARNSTABLE,TOWN OF(REC) 367 MAIN HYANNIS MA 02601 JUSA
STREET
036039 BARZUN,ROGER M ET AL 77 1 P O BOX 767 CONCORD MA 01742 USA
036049 KILLALEA,JAMES A 700 MAIN ST COTUIT MA 02635 USA
036051 GROVER,PAUL E&TRACIE E 6 ALLEN ST MARION MA 02738 USA
036052 ZAIS,CAROL D TR T 136 OLD COACH SUDBURY IMA 101776 JUSA
5 RD
036061 PElRSON,NICHOLAS DALAND PEIRSON,SUSAN ANDREA LOCKS 110629 NW 49TH- CORAL SPRINGS FL 33076
036062. PEIRSON,SUSAN R,TRUSTEE P O BOX 1487 MARACO ISLAND FL 33969 USA
036063 PEIRSON,ELIZABETH L& ri6GINS,JEFFREY R 95 MAIN ST COTUIT MA 02635
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(Friday,October 14,2005 Page 2 of 2
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1 �
*11 dhl 14 P
�`LP
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COMMONWEALTH OF MASSA.CHUSETN
HOUSING APPEALS COMMITTEE
)
SAY POINT,LLC, )
Appellant )
V. ) No,07-14
EARNSTABLE ZONING )
BOARD OF APPEALS,, )
Appellee. )
ENDORSED DI$POSMON AND SET TLENIEN'I`AGREEMENT
Whereas,the parties to this dispute have been involved pr traded won=•: ore the
Housing Appeals Committee of the Commonwealth in the captioned case,and
Whereas,the panties to this Agreement have resolved their differences as reflected in this
Settlement Agreement and they now seek the approval and endorsement of the Housing Appeals
Committee,
NOW,TBEREFOU,the Appellant(`Bay Point") and Appellee("Board")hereby agree to the
following terms and conditions as a mutually acceptable disposition of Day Point's appeal to the
Housing Appeals Committee: .
'A TRUE C(SFsY i4"f.TESf
I R
1. For the fiffxt: utpo g of jarring in this settleinenk agreer�nent,a�zd na othex,the
parties agree that the may enter its appear=ce,in this
action through counsel as an intervenor And may thereby join im this A.EPreemcnt as a
patty thereto.,
2. Subject to the express terms and conditions described Herein,Hay Point and the
Board agree that the gomprehensive Peo t xs hereby=art ertded'=to allow f Ifi l
ttt(b obi onsisting of the
CO�)StrttGtlOe-res
�k S _
renovation of the cxisting house with 2 bedrooms,4 townhouse units with 2
bedrooms each in two duplex buildings,and lffiffi MS,two of whiob,
shall be in a duplex stnrctue and din•one of the two-
bedroom units will be affordable,and vne of the one-bedroom units in the duplex
building will be affordable,all consistent with the Comprehensive permit and this
Endorsed Disposition and Setdemnent Agreement(the`Trojecf').
3. The Hoard acknowledges and agrees that it has reviewed Bay Point's revised plans
with its engineering consultant and the changes described herein and in such plans do
not cmtitaW a substantial change pursuant to 760 CUR§56,05(11).The revised
plans shall be consistent with the plan circulated by the parties for settlement
Purposes,which is titled a. !n!tvnlEnusi _ votttattapet
l e and which is
attached hereto as Exhibit A.
IWd
4, °" � W E;, Wetual Easement on the westerly portion of
locus folooMement is shown on Exhibit B attacbed hereto.Each will
�7 bear one-half the cost of the Eas=ent.
` MEW riatioil of funds th
for is purpose,which have now.
MOMONE
C rd=a contrary intent plainly spp m,the tam'pat ty�"as used in fats areemmt shall include Bay Point,ae Board,
and Cohut. The' 'awn"xnd'2ar MAble"shall refer to the Appellx and the Town of BamsWk as appropriate,
2
r
occu`tx If either funding source fails for any reason,the settlement agreement may
be declared void
5 Subject to the Town's approval,the exact description of the Easement boundaries
will be defined on a plan and will be bourtded on the ground at Bay Point's expeose.
L 6. Subject-to the Town's approval,the Appellantgim'i�ercct apbysiolrner cl 1'1
aridsca n y�ta linrtt uSiysicalraccess tothe Easeaoaeut property:
7. a �tnll�e an architecr<uat1review ari aired.apprayal ofthe units bythe
ent that shall include building desi
o: ag rn � epartan g gt►site
Phu,and landscaping.Them wilt be no structural,arehiteatural,aesthetic,
landscaping,septic,or site changes made to the locus by Bay Point or its successors
in interest without the prior written approval oftbe Tom and Cotuit.
8. - No dry welts will be required or permitted. Bay Point and its successors in interest
will ea all storm drains and the rain en as shown on sai to, clean.,
�. use garden tl'u1an� � ed
at rxgf nstr�nPr rsTan'►is�r P Bay Point and its successors in interest will notify
the Town and Cotuit in writing at least sev ess&days 64d . ce of`suc
activity and shall allow representatives of the Town and Cotuit to eater on the
property to contemporaneously observe such work or to view the results within seven
business days thereafter.
�C. 9. Consideration and remedies for failure of consideration:
Notwithstanding anything to the contrary contained herein,the parties agree that a
material consideration and inducerueut to UJI�qzp. , o enter into this
agt+eezuent and to pay the swm of$275,000 to Bay Point is to proewe both the
easozne t described above and to have the affordable housiur
. gpmject discussed
herein 1 than :C3'$ f the Ce:;hes+eo . fare,in the event
that the affordable housing project is not completed in such time fram µ
3
£seaso ttaa 'i`own and Cotuit each shall knave,in addition to any other rights a"d SN4
1
• air'
remedies available at law or in eq�y,the right to receive a return of th
Mpertive sbare of the cousidex atiton paid berewith,that isL1 Ur—"'0
accordance with the procedures and tc=s set out immediately below.
A. Within 30 days of the date of approval and endorsement of this settlement
.y agreement by the Housing APPeab Commit,or on the first business day
ve thereafter,Bay Point will deliver and recor a lly-cxeeuted Mftet t nns t
for the property described herein,satisfactoty in form for recording and to counsel
for both Barnstable and Cotuit~The instri mmt shall deliver title that is good,
clear,record,and marketable and free:from all encumbrances.In return,the Town
and Cotuit shall deliver payment $137;5 ae payable to Bay Point,LLC.
B. Bay Point shall undertake construction of the contemplated affordable housing
project in sufficient time to complete the project within three years of the date of
approval and endorsement of this settlerneut agreement by the Housing Appeals
Committee MC").The parties agree that completion of the project within the
meaning of this agreement shaA be evidenced in one of two�va.3 n y ttb!at s�
e �f o - Tie�sntemp ed
herein or a letter from the Building Conw issioner that all of the units are
substaotially cmpletr except for installation of carpet and kitchen appliances
only.
C. In the event that the affordable housing project is not completed within the
meaning of this ageb t ., templet i; eiy above,
Barnstable and Cotnit"MMOSAts�ri&MIc n 3 innuch o A Us
agreement as ells for cot;sideration to be paid by each for such conveyance.if
4
either wishes to do so,they shall notify Bay Point of their intent in writing at the
address of their attorney by certified mail,return receipt requested,within 90 days
alter the three-year anniversary of HAC's approval as discussed above.Notice
shall be effective'upon posting.
B. If such notice is given,Bay Point shall pay to Barnstable and/or Cotuit,as the
case maybe,the 3 ; cINVII- ttif ed or bank funds not latex than
12.00 Noon on the 21'day following posting of such notice,or the first business
day thereafter if the same falls on a weekend or holiday.
B. Notwithstanding such payment,all other aspects of this agreement shall remain in
full force and effect.
F. The perfomnance of this agreement shall be,secured bmrfustxnortgage of`th'_
loons as expressly described in said mortgage,a copy of which is atfached bereto
=E ant; d which Bay T'oi�at agrees to execute and deliver at the time and
Place of the closing Contemplated herein.In addition to any other remedies
available to Barnstable and Cotuit,a breach of the conditions set forth in this
section 9 of this agreement shall be considered.a material default of this
agreement and sball entitle either or both Barnstable and Cotait to institute
foreclosure proceedings upon such zmortgage and premises descn'bed therein.
0. In the event fad t;l ay Point of the provisions of tkris section 9 of this
agreement, dptuit _ 'tl recover all costs,
expenses,g M', r1Pth y eta terry interest thereon,incurred by,
them to enforce their rights created herein.
H. To induce CoUt and Barnstable to enter into this agreement and to make the
payment contemplated herein,the principal of Bay Point,Stuart Bornstein,for
good and valuable consideration,the receipt thereof being hereby Adknowledged,
• 5
agrees to personally guarantee repayment of such consideration as is
contemplated by this section 9 of this agreement and does so by executing this
agreement personally.
I. It is the express intent of the parties that all rights and remedies available to the
Town and Cotuit shall be specifically enforceable in any court of competent
Jurisdiction and that;by electing to pursue a particular remedy,they shall not,
because of that election,be barred from pursuing any other remedy available in
taw or equity to each.
10. The developer shall iusta[I at its own cast gro.Mw-ate offih 'ME'T
within the arm of the Basement as directed by the Town and Cotuit in accordance
with their speoMeations.
•11. Condominiumu Association,Septic Mainte�ance,Main tenance Reserve,and
Monitoring Well Testing:
1y a. The Appellant will establish to oversee the
te" maWenanee of the shared septic system and the other common,areas of the
VOV Subdivision. The content of the Coiadominium Association documents shall be
subject to the approval of the Town Attorney.
b. The Appellant will prepare a pro forma operating and maintenance budget that
will clearly identify the estimated cost of septic system maintenance and
operation for the fast five years of full operation. As part of this settlement,the.
Town will have the right,but not the obligation,to review and approve the pro.
formabudget.
--fie,.,. ..
c. The Appelk t shall warrant as part of this settlem z at a opeerating:
as ed t be exceeded during the fast five years of
6
condominium operation.To the extent that such budget is inaccurate and extra
expenses are assessed to the two affor&ble units, `e.��'pella�at�will absarU ands# "'
X �
.to ea lewd ertty�atnouts'as9 ch ' ceed the pro
rma �tmafe.
I The Appellant shall establish a capital improvement account that shall be
trans"totCMZ== MM O upon: e:s e7o Vie` The
amount set aside sbail erne=halfbf the iitiai.ca ` of the septic
system components,exalvding,however,the cost of septic site work,the leaching
Q conercte tanks,and all other non mechanical and nonelectrical Melds,Piping,
parts. x ., .I tw"S
ed-e _ tlerattr ohFi+o�`ice or wo pe:ortri os -1�alf Ilia
.; �.
k ount - _ se m¢acco ` rithtreet no �s" ragrap here
shall be added to such amount the sum of$ZS per month for each month that each
unit is occupied by a home owner. The Barnstable Board of Health shall have the
authority to cap the amount of such set aside temporarily or permanently in its
discretion in order to reheat the cost of full replacement of the entire system,
excluding the items described above,as indicated by then-current cost estimates.
a
a a 3 - c red hem ni m r1' §Uc-MopDM the We
r.. {
f --- —oonear : ue _ a projected operating
and maui#ena�ce�= �systeata •
f. eAPpe.'Y shall estali, cnitoxim ; Vel111d: enauce
IP
ID
the sale of the last unit that shah be equal to the one year value of the projected
w atcr quarterly testing costs and one year of well maintenance for the test well to
be installed.Actual mainflmance of the monitoring well and water quality testing
7
shall be accomplished and initially paid for by the Cotuit Fire District.
Gondum!,sso a b$'responsible to reimburse the Cotuit Faze
District for the cost of such maintenance and periodic testing;such
reimbursement shall be made within tbirtY days of receipt of a bill for such
maintenance and testing. The Cotuit Fite District shalt prepare an estimate of the
annual cost for such testing and maintenance or ayaPeint's reasonable ev=evi
and approval nsistent with the initial tc s ft agreed upon by the parties.
A
Specifically,the parties have agreed to have the testing sent to the Barnstable
County Lab,which is a fully certified testing facility. The agreed testing \
includes:a)Volatile Organic Compoamds C VOC'j(oil,gas,etc.)testing for 57
p compo=ds,currently at$l00 per test,b)nitratehaitrlteltotal nitrogen,currently at
.S
$75 per test and c.)eoliform,carrendy at$20 per test,with the total testing budget
estinuded -$47 . Upon the transfer of Ground Water Monitoring Well
Maintwmce and Testing Account to the Condominium Association,the Cotuit
Pure District shall prepare said estimate and submit same to the,Condomimum
.Association for reimbursement.
12. Septic system design,installation,maintenance,and monitoring:
a. ubje of the a , nny
design basis for all el=eats of the wastewater collection,treatment and disposal
system skya]l be according to WeciScations of e�: htdromeis m b' .aua
l' equivalent,prepared and stamped by an onsineer
and deigned substantially in compliamce with the specifications reviewed by the t
comprehensive pemdt.The system shall include sufficient,.easily accessible
electrioal booleups such that backup power to allow operation of the,system can
be connected in tho event of a general power failure,and the owner of the system
shall provide such emergency power in 4ae event that power is lost for a period of
8
y
i
twenty-four houxs.The system steal be t certified to treat to a level y
.
, � ax�mum- oexrloadi r better,and that it is appropriate for
anticipated and permitted age-restricted use and occupancy.
b. A letter shall be submitted from the manufacturer of the wastewater treatment
systeEn or that the proposed system design is consistent with generally
accepted practice in industry and,if properly constnrcted and operated,will
meet the design goal for eMuent quality.
c. Once the wastewater treatment system is installed,the design engineer and
equipment vendor shall review the eozupletcd project and certify that it was built
in accordance with the approved design and that nothing in the installation should
preclude the effluent goal from being met. As-built drawings of the installed
--------------
system shall be prepared and filed with the Barnstable Board of Ifealth.
d. The costs for maintenance of the system shall be the responsibility of the
jjjjsociatio& operations and maintenance contract with a
�j Grade 4 Wastewater Treatlr=t Operator certij5ed by the Massachusetts Dfip
CUoevxed Operator")shall be executed and in farce at all times that the units are
vccuped Dopy
i . A of the contract shall be provided to the Barnstable Board of
Health(WIT)no later than 30 days prior to the start-up of the system and
thereafter copies then-ca=t contracts shall ba deposited with the BOR.
ytecn` `'; e pane and contact information of the operator shall
be provided to the BOH.
f. c. cens ,. a ai oversrght5 0 sY '� lls
at least mmitbly maintenance visits,making adjustments as needed and
conducting routine maintenance,and the results of the same shall be provided.
9
monthly to the Barnstable County Health Department's database,the Barnstable
Health Department,and the Cotuit Fire District.
g e lidrome system�wll#be{�asp" tednantly:. dltaacd essary. A
report will be provided monthly to the Barnstable Board of Health and Cotdt
Measurements sball be made of the influent and effluent for flow,nitrogen,ph,
TSS,sledge belght and DOD,as well as any other data that ie Board of Health iu
its discretion may additionally require from time to time.
h. In order to promote awar.mess of the proper operation and maintenancc of the
system,the Condominium Association,through its Licensed Operator,shall .
� .=su. t.a�report=to t�%e.Barnstable.Baard cif Health and Cotuit� i)
transmitting effluent quality data for Tofial Nitrogen and Nitrate-Nitrogen;2}
documenting when the septic tank has been pumped and the disposition.of the
contents;3)documenting any significant maintenance activities that have
occurred to the system duff the past year or that are planned for the upcoming
year,and 4)reporting on any operational problems that occurred and how they
Will be avoided in the future.
i. In addition to all other remedies available to the.Board of Health,it may impose a
i'v�ue o (lner day Wum Association if after a 30-day cure
period,pursuant to written notice to the Appellant and thereafter the
Condominium Association,problems with.the Ampbidrome.system are not
con eted.
U. Access'mud Use of the Easemcat by the Parties:
a. Neither Bay Point nor any of its successors in title sball be entitled to any
physical access to or use of the Easement locus,except for the purpose of using it
as part of the calculation of total lot area for relevant computational purposes
including,for instance,zoning and Title V purposes.
10
-
b. The Town and Cotuit rosy enter upon and use the easement"'accordance with
the terms and conditions of the Easement attached h=to as Exhibit 8.
14. nth Tovc xnens: tigatiau-i., ez�foree any part of this Settlement agreement;
inclu ft,without limitation,the on-going obligations regarding the installed septic
system,and is successful,dre Towne-entitiv�reovrls' es and
osts*in�ctte �ininconne 'oiutliertr
is. The panties shaII each bear their own costs associated with engineering and the
employment of outside consultants in connection with this Endonred Disposition
Asmement.
16. The parties.agree that the MassHousing sball serve as the project administrator for the
Project. Bay Point shall execute MassHousiW s standard form;regulatory agreement
to the extent permitted by MassHousing.
17. "Decision and Conditions on 13 0 the prdhe�tsiye '�nit�shall be
amended so as to require that cnndonvnium^dae�tmnts shall a xevierby" `e
TatGffice t cons". ency with the Comprehensive Permit and shall be
duly recorded in the Barnstable County Registry of Deeds at or i�suan_� a
ermit"s n2ttcs a reOnrttion p :exk 'c: Qtbutldttlgpzmits
' Y P
as`argiueli��ifteit,,, �the,`� �reheris. e`��
19. "Decision and Conditions,"Section 29 of the Comprehensive Permit shall be
amended in its entirety as follows: "Baomt s uravide ewitlr a
• .. �uat�trls�• i�ted.�a�7assHocm�'ti a
eocmection with MassHousing's role as project administrator. Any profit in excess of
the 20%limitation rule shall be governed by the terms of the regulatory agreement"
Y 19. In the event of conflict between this Agre=ent and the Comprehensive Permit,the
terms of this Agtreaaeat shall control. If diets is a conflict between the
Comprehensive Permit and the affordability and limited dividend provisions of the
lI
regulatory agreerne]1i:the p;rtinent provisions of the Regulatory Agreement:shall
control.
20, Notwithstanding anything to the conirary herein contained,this Settlement
Agreement shall have independent legal significance as a contract between the patties
and it shall be enforceable as such at law and in equity in any court of competent
jurisdiction.
21. This agreement and the easement instrument shall be recorded at the Barnstable
County Registry of Deeds and shall constitute both 0601 the
Condprehensve Perrrtttitssted by th'e Board and as a notice of contract between the
parties.Both this agreement and the easement Instrument shall be marginally noted
on the recorded Corrprehejlsive Permit.Additionally,the parties agree that this
contract shall be biWing in perpetuity upon the respective parties,their successors
and assigns.
21 The Committee hereby retains jurisdiction over Ihis matter.
Witness our hands and seals this day of 2010• .
TOWN OF BARNSTABLE BAY POINT, LLC
By. By.
John C.K1i uj„Manager cart Bornstein,Duly Authorized
4CharlescLaughlin,J (BBO 36880) Paul N. Barbad 'a Esq.(B130#028850)
367 Main Street Christopher Agosuno,Esq.(BBO#664521)
H)amnis,MA 02601 Baker,Braverman&Berbadofe,P.C.
508-8624620 50 Braintree Hill Office Park,Suite iOR
Braintree,MA 02194
(7811 848-96.10
'Stu lit Bomstcln,Individually
• 12
i
Cotuit Fire D' trio
By:
Bruce W.Kelly,C}t irman
ENDORSED:
Werner l ohe.Housing Appmis rrmittee of tk Commonwcalth
13
4
• DOOM A
Copy of Plan of Land
14
Exhibit B
Easement
i
L '
PERPETYJAL EASEMENT
Bay Point LLC,"Grantor", for and in consideration of Two Hundred Seventy-Five
Thousand and 00/100 Dollars($275,000.00),grants to the Town of Barnstable(hereinafter,the
"Town'''),a Massachusetts municipal corporation,with a principal place of business at Town Hail,
367 Main Stred,Hyannis,Barnstable County,Massachusetts,02601,its successors and permitted
assigns,and to the Cotuit Fire District(hereinafter,the'T)istrief),a Massachusetts municipal
corporation with a principal place of business at 64 High Street,Cotuit,Massachusetts,02635,its
successors and permitted assigns,as tenants in common,herein"Grantees",to be held by
Crrantees as tenants in common,IN PERPBTUrN,the following described easement on so
much of that certain parcel of unregistered land,comprising approximately 1.05 acres of
undeveloped land,as more particularly depicted on a plan of land entitled`"`Easement Plan in
Cotuit(Barnstable}",MA#671 Main Street prepared for Bay Point Townhouses,Date:June 28,
2010,Scale 1"=20"'to be recorded in the Barnstable County Registry of Deeds herewith. For
Grantor's title,see Deed recorded in the Barnstable County Registry of Deeds in Book 19541,
Page 310;see also Book 19541,Page 317.
Reference is also made to a document entitled'Endorsed Disposition and Settlement
Agreement"dated August/p,2010,to be recorded herewith,and which is incorporated herein
by reference and also to a certain"Comprehensive Permit"also recorded herewith.
The purposes of this Easement are(1)to assure that any prohibitions and limitations of use
created by this document and/or by the Endorsed Disposition and Settlement Agreement shall be
adhered to;(2)to assure that the Pr miser is retained in perpetuity substantially in its natural,scenic,
and open condition;(3)to prevent any use of the Premises that will significantly impair or interfere
with the water resource values of the Districfs abutting well field and its water resources;(5)to
provide and promote exclusive and perpetual protection of soil,and other natural resources
under,upon and within the Premises,and(6)to assure that both the District and the Town shall
have unrestricted access to the Premises at all tunes to perform tests on surface and sub-surface .
water quality via test wells and any other reasonable methods from time to time in use in the
discretion of the Grantees,and without limiting the generality of the foregoing,(7)to assure the
protection of water in accordance with best manageruent practices and available technology,the
assemblage,maintenance and protection of watershed land,water supply land in order to provide
adequate and safe water in all parts of the Cotuit Fire District.
Permitted Acts ant, d Uses.
Notwithstanding anything containcd elsewhere in this agreement,the Grantees may engage in
the following activities:
I. Construction, opm-4on,maintenaneei use and repair of facilities,gated access ways and
appurtenances for the installation and maintenance of test holes and test wells,for use in
monitoring and testing groundwater quality,collecting surface water,and/or transporting
said water for analysis off the Prenuses;
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2. The right to take active measures(including the construction of gates,fences and barriers)
in order to prevent unauthorized vehicle and pedestrian entry and dumping,and security
measures required by law pertaining to a public water supply;
3. The right to install temporary or permanent boundary monuments delineating the
Premises;
4. The right to erect and maintain small signs so long as such pignage is consistent with the
purposes of this easement, subject,however,to the prior written approval of the Grantor
and its successors and assigns,which approval shall not be unreasonably withheld.
5. The right to enter onto the remainder of grantor's premises not conveyed herewith for the
limited purpose of collecting test samples From drains,sewers,and water collection areas.
6. In accordance with best forestry management-practices, the-right to remove invasive non-
indigenous plant species;the right to control poison ivy and other potentially hurtful plant
life and other plant life that threatens indigenous species anywhere within the Premises so
long as surrounding vegetation is not unnecessarily and substantially disturbed and water
quality is not materially impaired;
7. The clean-up of trees felled by storms across existing or future authorized trails including
the shallow dispersal of w-aod chips generated on-site and the orderly stacking of logs
resulting from said clean-up;
S. Live timber may be cut only for disease control, storm cleanup, removal of non-native
invasive plant species,construction and maintenance of test wells and for safety reasons
to prevent injury to persons or damage to property lawfully upon the Premises;
The Grantor shall retain the tight to convey the I'remises in its entirety, subject to the terms of
this perpetual easement and subject to the teens of the Endorsed Disposition and Settlement
Agre6went above referenced,
ubs u n r; t ers: gh 3rantor agrees to incorporate by reference the terns of this
�en �n �d ore legal insttument by'which Grantor conveys or assigns any interest
in all or a portion of the Premises,including,without lirnitation;a leasehold interest.
Te MInation of Rights and Obligations. Notwithstanding anythingto the contrary contained
herein,the rights and obligations muter this Easement of any party holding x IWOst
thef fathi��: tort ,except that liability missions -
- 'abilyi er itself if the transfer is a violation of
this Easement,shall survive the transfer. Any new owner shall cooperate in the restoration of the
1 Premises or removal of violations caused by prior owner(s)to the same extent as would such
prior owner had there been no transfer or assignment,and may be held responsible for any
continuing violations-
Estoppel Certificates. Upon►request by the Grantor,the Grantees shall,upon twenty(20)days
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notice,execute and deliver to the Grantor any document,including an estoppel certificate,which
certifies the Grantor's compliance with any obligation of the Grantor contained in this Easement,
and which otherwise evidences the status of this Easement as may be requested by the Grantor.
Non-Merger. The parties intend that the doctrine of merger shall not apply to this conveyance,
and that no transfer of Grantor's or either Grantee's interest in the Premises and no acquisition of
any additional interest in the Premises by Grantor or either Grantee shall cause this Easement to
merge with the fee or have the effect of causing any of the terms hereof to be rendered
unenforceable by reason of the so-called doctrine of merger. If it is determined that a transfer or
assignment of any interest will result in a merger,no deed shall be effective until this Easement
has been assigned or other action taken to avoid a merger and preserve the terms.and
enforceability of this Easement.It is the intent of the parties that the Premises will be subject to
the terms of this Easement in perpetuity,notwithstanding any merger.
Miscellaneous Provisions
I. Controlling Law:The interpretation and performance of this perpetual Easement shall be
governed by the laws of the Commonwealth of Massachusetts.
z. Construction.Any general rule of construction to the conuM.notwithstanding,this
Easement shall be liberally construed in favor of the grant to effect the purposes of this
Basement and the terms and conditions of the Endorsed Disposition and Settlement
Agreement.
3. Severability. If any provision of this Easement shall to any extent be held invalid,the
remainder shall not be affected.
4. Entire Agreement.Thus instrument together with the Endorsed Disposition and
Settlement Agreement set forth the entire agreement of the parties with respect to the
Easement and supersede all prior discussions,negotiations,understandings,or
agreements relating to the Easement,all of which are merged herein.
5. Ca borne.The captions in this instrument have been inserted solely for conveaenee of
reference and are not a part of this instrument and shall have no effect upon construction
or interpretation.
Effective Rafe. This Basement shall be tirrteiy recorded.Grantor and Grantees intend tltat this
Easement shall take effect on the day and year this Easement is recorded in the official records of
the Barnstable County Regi.�try of Doeds,after being executed by the Grantor and.Grantees and
approved by the Massachusetts Housing Appeals Committee.
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Executed under seal this day of 2010.
BAY POINT, LLC
By: Stuart A.Bornstein
Its:
COMMU 'WEALTH OF MASSACHUSETTS
ss.
On this day of ,2010,before me,the undersigned notary public,
personally appeared Stuart A.Bornstein,in his capacity as Duly Authorized Person of Bay Point,
LLC,who proved to me through satisfactory evidence of identification,which was:
license; (�or personally known to me,to be the persons whose names are signed on the
preceding document in my presence,.and acknowledged to me that he signed the document
voluntarily for its stated purpose.
Notaty Public
My commission expires:
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