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121 & 125 OAKWOOD STREET
i �� _-- - _ -- � s OFtNE TpM,_ ; . "�. The Town of Barnstable HAM * .niuvsrnBt.�, • 9� 1659. Department of Health Safety and Environmental Services ArFDMA'lA Building Division 367 Main Street,Hyannis MA 02601 Office: 508-790-6227 Ralph Crossen Fax: 508-790-6230 Building Commissioner November 19, 1996 Richard S.Dubin,Attorney At Law 4A Bayberry Square 1645 Route 28 Centerville,MA 02632 Re: 121 & 125 Oakwood Street,Cotuit,MA'S Map/parcel 018/055 002 and 018/049 Dear Attorney Dubin: I read your letter of November 7, 1996 concerning lots 49 and 55-2 on Oakwood Street(Map 18). While I agree with your assessment of Vassalotti v Board of Appeals of Sudbury,I am not able to agree that this example fits into that situation. The key difference,and the one that causes this situation to need a variance, is the fact that up until 1988 lot 55-2 was merged with lot 55-1 and improperly separated and sold. This action caused a zoning problem for lot 55-1,and cannot be used to join with lot 49. You have the right to appeal this decision. If you so choose,I will be more than happy to help. Sincerely, Ralph M.Crossen Building Commissioner RMC/km cc: Robert Smith,Town Attorney Q961119B i i RICHARD S. DUBIN ATTORNEY AT LAW 4A BAYBERRY SQUARE 51 BEACH ROAD, UNIT 204 1645 ROUTE 28 POST OFFICE BOX, 1104 CENTERVILLE, MA 02632 VINEYARD HAVEN , MA 02568 (508) 771-0330 (508) 693-5757 FAX: (508) 778-6966 FAX: (508) 693-2778 November 7, 1996 Ralph Crossen Building Commissioner Town of Barnstable Dear Commissioner Crossen: I represent Robert W. Pollard and write to request that you determine whether the lot depicted on Assessors Map 18 Parcel Number 49 is buildable under the Town of Barnstable's Zoning By- Law. (Assessors Map 18 attached) . Statement of Facts. Robert W. Pollard and wife Sandra, now deceased, purchased lot number 49 in 1981. Lo 9 appears as lot number._ on the Plan of House Lots at Cotuit . -.Dated Aug 1912 by .L. Crocker. In 1988, Pollard purchased Lot 55-2 (loon Crocker Plan) .' Lots 49 and 55-2 should be treated as a single nonconforming lot entitled to protection under the Barnstable Zoning By-law and Massachusetts General Laws Chapter 40 (A) . Lot 49 was an unprotected undersized nonconforming lot because it lacked the requisite minimum 5, 000 square feet of area and fifty feet of frontage. In every other respect the lot would be entitled to protection.2 When lot 55-2 was purchased, it entitled Pollard to combine the two lots and create a single lot 49 with sufficient square footage and frontage to meet the criteria for protection under state and local law. Accordingly, the lot should be deemed Lot 55-2 was in common ownership with lot 55-1 prior to 1988. In 1988, Pollard exchanged lot 53 (adjacent to lot 55-1) for lot 55-2 (adjacent to lot 49) unaware that lot 55-2 may have merged with lot 55-1. However, inasmuch as the exchange was of lots of equal size, the exchange did not increase the degree of nonconformity as prohibited under the by-law. Z Lot 49 was not held in common ownership, conformed to the existing zoning when created., and was separately owned at the time of the zoning change that made it nonconforming. • r s buildable. There is significant and longstanding precedent for this position. I refer you to the following cases which are discussed below and attached hereto for your convenience. Vassalotti v. Board of Appeals of Sudbury, 348 Mass. 658 (1965) ; Burke v. Zoning Board of Appeals of Harwich, 38 Mass. App. Ct. 957 (1995) ; Gaudet v. Building Inspector of Dracut 358 Mass. 797 (1970) ; and Planning Board of Norwell v. Serena, 27 Mass. App. Ct. 689 (1989) . Statement of Law. In Vassalotti v. Board of Appeals of Sudbury, 348 Mass. 658 (1965) , the Supreme Judicial Court of Massachusetts held that the combination of three contiguous undersized lots that together fell below the then required minimum area had produced one lawful - because grandfathered - undersized lot. The three undersized lots in Vassalotti each contained approximately 2, 500 square feet in area. The Court's decision that the landowner was entitled to a building permit and not required to seek a variance is particularly relevant. The three undersized lots which were not entitled to grandfather protection when treated separately were entitled to protection under both state and local law when combined even though the single combined lot was still undersized. The lot became protected because once combined it met the threshold area requirement under both state and local law. In 1995, the Massachusetts Appeals Court relied on Vassalotti in deciding that four separate lots, none of which contained as much as 5, 000 square feet, could be combined to create one nonconforming grandfathered lot. Burke v. Zoning Board of Appeals of Harwich, 38 Mass. App. Ct. 957 (1995) . While the Court rejected the landowners effort to create two undersized lots citing the "principal that landowners may not create dimensional nonconformity if the use of adjoining land they own can avoid or 'diminish the nonconformity" - the Court did approve the combination of the lots to create one undersized grandfathered lot. Id. at 958-960. See Gaudet v. Building Inspector of Dracut, 358 Mass. 797 (1970) . In Planning Board of Norwell v. Serena, 27 Mass. App. Ct. 689 (1989) , the court explicitly found that "all the land in each of the Serenas' two lots was available to avoid or reduce the dimensional nonconformity of either lot viewed in isolation. " Id. at 691, (emphasis supplied) . The by-law at issue in the Burke decision provided that "Existing lots lawfully laid out by plan or deed which complied at the time of layout with applicable provision of [z]oning [b]y-laws, if any, may be built upon for single family residential purposes provided: (a) [s]aid lots have f if ty (5 0) f eet of f rontage and f ive thousand (5, 000) square feet of area " Burke, 38 Mass. App. Ct. 958 . The Barnstable by-law provision , is similar in design. Protection is afforded to a lot for single or ,two-family 2 residential use which at the time of recording: a. was not held in common ownership; b. had a minimum of 5,000 square feet; C. conformed to the existing zoning when created; and d. was separately owned at the time of every change which made it nonconforming. The crucial inquiry for determining whether a lot is grandfathered is the status of the lot immediately prior to the zoning change that rendered the lot nonconforming. In Adamowicz v. Town of Ipswich, 395 Mass. 757, 762-763 (1985) , the Supreme Judicial Court held that a lot does meet the statutory requirements" if the most recent instrument of record prior to a restrictive zoning change reveals that the lot was separately owned, even though a previously recorded subdivision plan may reveal that the lot was at one time part of land held in common ownership. Lot 49 became nonconforming in 1958 ;when it was zoned RD-2 with a minimum lot size of 20, 000 square feet. The most recent instrument of record prior to the restrictive zoning change was a deed from John and Marion Collins to Chester W. Wilcox recorded on December 4, 1956. Thus, under the by-law lot 49 became nonconforming in 1958 and was not protected because it lacked the minimum area of 5,000 square feet. When lot 55-2 merged with lot 49, lot 49 increased in size to 8, 000 square feet and became a legal nonconforming lot under the by-law and the Adamowicz decision and the other cases discussed above. For your convenience I enclose copies of the title of the locus.3 Would you kindly review this matter and advise me of your opinion at your earliest convenience. Yours very truly, I Richard S. Dubin Enclosures cc: Ruth J. Weil, Esq. 3 I examined title to all contiguous lots and determined that lot 49 was not held in common with any contiguous lot until 1988. Lot 55-2 was held in common ownership with Lot 55-1 for a period of time as described above. 3 {. ' SST S P 424 °0 22 21 09 AC 23 dSx JOAC JBAC 64 .�BAC' 36AC "09Ac M 19 s i IL3 \�� ' / R 66 18 i. 16 :17 1e S8 ti _OO tlrwwP ='27AC JOAC. �.IOAG'. A9AC .IOAC 28AG .21AC A< /Ofl, 1.3L c YPuwo so to 6S♦t s C 100 ;.i.00�C T63 KE too 1.P.aE 100 c . —62 AC ,3062 61 I 42 41 �. 52 23AC 24AC " g 2 AC JOAC E� w Doo 094 G 'SI$ 103 89 ::45 AC =-'09AC . .. .71 AC - p �.c 104 3OAC 71AC t 44 S L03 AC 1AC r Q 10 RICKERSON • 1/•1 M•,1M 9AC • .. 102. .r : •� 113 r00 ROAD + � ©« 49AC S 67AC. T Ott. o�' 80 .46ACp. o �T2 40 ( 0 .48 24At IAiCCy :SI At a r N. IOACI .c 06AC t ,Ac �.w 45 Y O .364 14 A0 0 los D 0 t I 1.24 AC 100 O T"it it? 96AC F el sa4 76. .60 AC se. .50AC OOK 1 L7 ja 1."046 .82 z2A O 75 .66AC < - "N NICKERSON A S?AC �I F93 's11AAC 8 �&A-�. Chain of Title Grantor Registry Reference Grantee William & 412/122 DD Arthur Hancock Marie Gifford Treasurer's Deed 895/69 DD Marion A. Collins John & Marion 960/362 DD Chester D. Wilcox Collins Chester D. Wilcox 3321/137 DD Robert & Sandra Pollard ! 2-1 2 t ((( (2-1 i yM yet y,��r�tw�r�7Nq ' a l l III'' �(J�1 D_ ((��(�j" �+ l r a ltL�� lfy..WRJ..�p vC c rim/Ll /+Y.u (�..r 4L. w.. J. r' l�•C ¢ 1 r _ .............._ # " u;:l ry -l�l!"Crw'�.,..:(.!?v�.,.�.-C.f..J'......(..JG✓��v��:�0✓�..C,.n..-s.�-.<�W ..ic�r.!�".4iUW..��=•fit-�..G�,�L ....... _.. .. ..... b ` a _ y t Jx ' ' IN CONSIDIIt�"I',(ON Of C �r.���/-t w LJ��uaL cvkueL .2.2� c f lA t ?_ 70 Yea t d "' paid by..�.tn�. w..11✓a.,.:.vvT f1r. ,G,n.wXr:.�. .it.Zwc..�..�.N. l .,,lL: ...2.c.-s.s�............ u .,,.t, 'ti'.2•lt���T'r'.t<v'.,uGt-�...V..•.,-- -..l..,w "...2.vLv..CnM-.� . . ..... ... ...... ._. ... _ .... . ... _ a ': yy.FlFl� the receipt whereoL.i.hereby•ackiowle geed,dL-'hereby 6 6 s,l and convey,unto the said :. wl�-.4P,6'wr,GY"s'/ �) D rive, 'teat,6:u i+u p! i IJ �.iCi' _ L..2.wL..i'vc+�.G :J..C.C...., .-. ...Q...C`LtiC. �.v' f ..<C..Cw..-I WG2�4-i✓+..�iC.-✓r+.l'-- _ k (!nti D, }- -. fny J L f/l.-:����t-C t!Lwv. '.:.M1l+. � +C�.I ...l.Z.��G✓vv� WYn LflGt<G.G:G.�. tyvi.G,�Gx.-s-r..� �� y rn'`..�Y C2.s� vq �� ,., I ujj4- i"Y Vn lvv 1.clK 4 N it 51,�l ^t U�� _..: �e t.tvvvvL2.uz k y,l lull C�2 ..Cio.vvv'. d.. �i �o.,f ea L.. . 1<c_.1..`�./F ... .. .......... ......... y ryJ` t jr� I tMw� _,,.. . �)N4ry�yt 4. .. - ..... ...... .. .. .. ..................... .... - _ 1 1 .. . .. ..... .. ... ..... ..... ...... .. ... t ^ 71ti z .J y ICI .... ..... . .. .. .... . .. ... .. r 9 r ..N ......... ..._.............. ..................... „'�„ .. . ................... ...................... . ... ......... .... .... .. ......._............................. .... IG� lJIt -. .. . .. ... .. ...... . .... .. ... ..... .. - A 9 ... ................ .. it ryy tl TO IIAYE dN U 'O HOLD the.... ......granted premises with all the privileges and appurtenances thereto belonging to the said 6 QQ J 4 ......llerrs and_�ytgns to their own use tail behoof forever. _ Ni dd ..... L�_ or "fell p And. ... P.r hem-by _... ... :. .... .............. .. ... .... 3 f and ......-Heirs, Executors and Administrators, cuvun:uit with-lhe swirl grantuu end. ivs�s-......... .......Ileire arid +. s � �( tn' Assigns,-that............'l.rl,, �7�..................... . ..... :.............lawfully soized in feu suuple'of the granted prnwisus;that they are Free.hom all 11-J a) ..:.................. .. .. - II t encumbrances T...,...... . ........ ................................................ - �ly 11q I .. ....... ThaG.. .......n.AIY....... 1 . ..have good right to sell and convey the tuuue as aforesaid....... >sr i t�i IB I 71 , '.. ...........:......aidnnd.....t0,L, , .. .. ... Heirs,Executors, and `Ili eta r QQ .. i'Ir 6 I ddministrators shall WARRANT AND DEFEND the santo to the aril grmrtco aud.....�(ii.+.m.. ......: ......heirs rind Assigns forever � A,„.. e �r " against the lawful claims and deuurudsof.all pm sous - - tlry .,I nn�Mid-fBn-C4r0-ce �sntd '//�r'n/ ........... ........................................................._ _ i /,10 ..... ... ......... .. e ........ ........ .......... ... ..:..... .... ... ...................................... .... ...... «X. and....,'/ivVy_ .... ,, ....... ..._flat _ nl Assigiis all right of to both. r Fry'II i der hereby release unto the grantee. ly•u ..lei- DOWER aid 11011ES1'EAD in Lhe granted premises.and all Wier rights and interests Lhetwn. V 1"NESS:IVILElt OL .._iVt/-Z ...:tlesaid...:W.v.<C vG,r✓tti... 7_...V ....QvvYriGl[NG1LLvt�?.:. .... ... ...... +) ...... . ....... .. lI ,9 he ve hereunto set �LTvtlt ....hand_and seal this .. day oF. in the year Ona'Ihousaud-Nme hundred and- ri+r ............. s' It� a C✓, Sighed,Sealed,:aml D,4rere4, in presence of 1;ArF�r" -"car !�! - ill ... .l�'+'�./ .... . ... .. t{ J CO'"'oNw:AUM Oh'.11.{ss.kcImstn-rs. - - ................................................... .... , �Y ,1T�hto, personally�rappeared the above-narged ........... ...... .. ....... ... .... .. ... ... ». I and Teknowledged the iuc' mg uutruutent tobu -.., N ............ .. ................. ..... ......:....... ....... ...... .. ..... ........ - .. f co ut r td died, before me .. . i .. . ....... . .. ... ... . ... > IUS I1C li oN'PILE FACE. R J ..F�t 't'tl BARNSTABLE,ss. ReeervelA4�~ ..�.3. ... .....1f1;�� , rid is recorded aad compared ... r r ;r Barnstable, pursuant and subject to the provisions of General Laws (Ter. "Ed.) Chapter 60j Sections 53 and 54 as amended, hereby take for said Mown the following described land: 'taxed to Arthiji'ilandock A parcel of land In Cotutt,Maas., as described In a,deed from wil- liam C. Gifford et at recorded at Samstabte Registry ' of Deeds, x '1 Book 412, Page 192; supposed to r'1 ' -contain' about.4000 sq.ft. 1948 tax =1.88 1948 C.I Dist.$0.21.1949 tax 2.10 1049 C.Dist,10.22 .1960 tax 2.10' 1960 C.Diet.=0.28 11951 tax$1.63, 1961 C:Dist.$0.19 Said land is taken for non—payment of taxes as defined in E' Section 43 of said Chapter 60 assessed thereon to Arthur Hancock for k' the years 1948 — 1951 inc., which were not paid within fourteen days after demand therefor made upon Arthur Hancock on April 18, 1952 and now remains unpaid together with interest and incidental expenses and costs to the date of taking in the amounts hereinafter specified, after jnotice of intention to take eaid land given as required by law. 1948 taxes remaining unpaid .......................$ 1.88 1948 C. Dist, taxes remaining unpaid...... ..$ .21 1949 taxes remaining unpaid........................$ 2.10 1949 C. Dist. taxes remaining unpaid...............$ ,22 3 1950 taxes remaining unpaid.................... ..$ 2.10 t i \ 1950 C. Dist. taxes remaining unpaid...............$ .28 I 1951 taxes remaining unpaid,.......................$ 1.53 JI. 1951 C. Dist. taxes remaining unpaid...............$ .19 i 1948 t 94 (tax) int....$0.29 1948 (C. Dist.) int....$ .04 1949 (tax) int....$0.21 1949 (C. Dist.) int....$ .03 1950 (tax) int....$0.13 1950 (C. Dist.) int....$ .02 1951 (tax) int....$0.04 1951 (C. Dist.) int....$ .00 Interest to date of taking.........................$ .76 �. Incidental expenses and costs to the date of taking....... ........3 3.75 Sum for which lam is taken........................$13.02 WITNESS my hand and seal this twenty—third day of Ilay, 1952. I "CAP' Collector of Taxes for the Tovm of Barnstable i The Commonwealth of Y.assachusetts Barnstable, ss. , C'z May 23, 1952 ri +�wi '4` 'f-V Then personally appeared the above named Howard W. Sears and ack— r��r 'Ahoy the foregoing instrument to be his free act and deed as Collector ' x"before me, d t Nw�� ter• Notary Public >Y i7. F CLARENCE M. CHASE ' 11y,Commission expires NOTARY PUBLIC My Commission Expires March 30,1935 (This form approved by Henry F. Long, Commissioner of Corporations and Taxation). Barnstable, ss., Received May 29, 1952, and is recorded. *E E .'X,•,4 i+ AFFIDAVIT +� r TO PORECLOSE TAX t'i1, + � Cly"6NWiAL+N.60'MASsAt;N )!§Pt s LAND OF LOW VALUE R' bf OAKTMENT OP COItPORAtIONS AND TAXATION F SHBlT NO i heard..W....9ear.s.......... .. .......... ...........Treasurer of__.........Barnstable............ ......... ............. t NAMR OP CITY ON TOWN a A Schan, - A� i, Commissioner of Corporations and Taxation, hereby make affidavit that in my opinion nt: diedfiar(t parcel of Ladd held 6y .. .... .....the..tairm .of..Barns.tabl.e. .•.......... .. .. x .. .... . ollel ' AlldfP aftltl�tturftlflt of taking or a tax title deed listed herewith is insuf#lcient to meet the ta..I e xe.s. . ,in.terest. ..and ch Iris � �a I �A ba tht taxes and megsments theteon,together With the expenses of it foreclosute of the tights of redempul <<` l�t3ftTCt tr6if Chapter 60,Section 69;that none of such parcels exceeds$1,000 in value;and that the facts essent !l�$hlE,�dlldl't�ts)•the tax title ott each of such parcels have been adequately established. INSTRUMENT T Y "r RUMENT OF TAKING RAKE OF PERSON ASSESSED IN THE YEAR O►THE TAX ofa�R Date OR TAX TITLE DEED •,�f1 ,•NO• TbR WHICH THE LAND WAS TAKEN OR SOLD which of Taking land or REGIi 11.R Eli LOCATION OF PARCEL Sale was taken gook Pa a certificate of t Sot' or sold 8 Tide Ka, Emma F. Angus& Nettie.G. Phinney 1949- 1ot it ighground, B. 249.' P. 549 .. ��.`,+:.•1 ................................. ..... 195.1 ..5./231.5? nz 46$ lrmaiA P► Angus and 'Nettiel0. Phinney _ +tI:2..fotBit )ighgroPund;...B......249.'...P.. 549.....,. 959 Descapt �yo1,..•� ..•...., i. 1.. .....5/23/.52.... .,...81.2..,....t,bg.. ......... ]lbigail Ht Backus COtlfltiq .Wa+t Cent ervillerB•373.t P.1$3 1950 .12/28/51 803 263 valuadc / 3......... ... S,v,E , ;I ► John .Baptista . 4 Old Yarmouth Rd. H annis B. -�< ... ...........................r...y..... ..... �. ..59.$ P b$ 1950 12/z$ 51 $o 264 Pbillip J, Bergstrom t �. j Phinneyts Lane,Centerville,B. 1 1950 12/2$/51 803 265 TaxCo,z 5...... ............. ............ .. . . ... 47....... Elizabeth Cummings (Lizzie C.Cummingt Demand. ' CirCi>it Ave. H annis B a 220 P. 506 1950 12/2$ 51 $03 26$ Land ado {z...y...... ..... i i N,.I.. . . ... ,95,. _ _.. z ,' Rd. , Cotkit ...;........ 1. Dacrlpti Karl Humphrey 1 Deed , parce $ Skunknet RivertM.M., B.470P P. 211 1950 12/28/51 $03 272 e :1 ! .. .. ................. ... ......_ _ Robert Eldon Libby Eel Creek,.Meadow,w.Barn.IBt596t?•311 19. Q... 12 2$ 51 $0 2 5 .. 1... /.. ... .... 3...... .7.4....... ........... Phebs G� Smith E 1945- Notice of k :� Y. ,( ..Cadax,.,Rw&1gp.;B.5.6}PA226;...,B.5$.,..,Pw.202.....195.1.. ....5/23./.52..... .....$12.......4.7D..,. `i Jtleeph G, Teixeira (2).•;; i4i,.Rf>" Craigy.il.le...11d,.Rll.!port.aB..5.7.9P.�354....19.50.. .12,L2$/51.... ......$.03.......27.7.... i Taldn8 e i I I ir; .... .... ..... .... lnfm�.SW J. t - TOTAL NUMISVO OM SHk6tll ATTACHED + � ek,Art dtEAched hereto and made a Part hereof,as provided for by General Ldws,Chapter 60,Sect: �'e�1N�e kI LAItvd TO TAx TITLt:s Which severally refer to the above-mentioned reels and are c,, 19-54.•. " COMMISSIONFLp OF COpMOpATIONB ANn TAKATION .y+, '1 � 4s*��r•. `f bNWrAL�,vbACNueetrs ommissirintt 61 Corptsrdfions rind Taxation, ; .4 ittbee SU95tR �itf►4Al�i'�I�tt-yp�l4[ � i�IIi�HF lfI t'�,IFOIQAT W Ah AWb YaXATION.,� ,X:-. EMMA (l { i t THIS DEED NOT VALID UNLESS RECORDED IN THE PROPER REGISTRY OF DEEDS WITHIN 60 DAYS AMR THE SALE FORM 474 TREASURER'S DEED TO A PERS. "C a LAND OF LOW VALUE JI THE COMMONWEALTH OF MASSACHUSErTS • t Q.w...cl...o.%.... a. n.e_t.a TTpl e_...._._._..__. NAYt OF CI OR TOM/N OFFICE OF THE TREASURER I 1 I,................................_H.oward....VA...._sara Barnstable Treasurer of the Town of........................................................................... pursuant to the provisions of General Laws, Chapter 60, Section 79, in consideration of00 i........................................ ........:....-...._-.....-.....-,....—........ :n....n....,....tW dollars to me id,hereby Marlon A. Collins Pa Y grant to............................................................................................. of Box 207, Centervill.e.......... ...............................................................................tile pa !of land i ...«.....Centerville, pft;re described in the instrument of taking or tax Collector's deed to which reference is made in the following schedule: 4AMM OF PRRSON ASSESSED IN THE YEAR OF THE INSTRUMENT OF TAKING I. { TAR FOR WHICH THE LAND WAS TAKEN OR SOLD OR TAX TITLE DEED NAMES OF INTERESTED PERSONA a (• f RECORDED ggg;gqiffiftep I IIY REGISTERED MAIL WITS NOTI LOCATION OF PARCEL - SALE UNDER CHAPTER 00, SECTIOb- l .,. Bock I Page ;.rthur Hancock 7.6t 58 Oakwood Rd.,Cotuit I812 14�1I f. The land hereby granted was included� in an affidavit made b Y The Commissioner of Corporations and recorded taxation, On October 11 19 54 in the.......Barnstable County Registry of Deeds, �• inEn"Il eWiJ ..................._........_.._......._...._.._..Rer+strr-Pibtsiet ,Beek ......... .............. Rage-..._ rBeeetmeetof—TitltlVo-- �' relative to the value of certain parcels of ]arid men .eyt3' P by said town for non-payment Of taxes and to the validity j of the tax titles held thereon;and was offered for We at public auction on............._..._.........._....___....__....._...___..___...., December 20 in accordance with a notice of sale posted on.................................._.__._... Deceme be 6 ______.__._..._... ......._._. 19__54, in.........................._._«....____«. ..down 0#'fice Buildin , _...__....__.............. ................................. ....;and was sold to the above-named (S►tCJFT FLACK WNERK NOTICE WAS POSTED) I grantee at the original time and place appointed for the sale, i ................................:}g-.,.•_,,,,•.She being the highest bidder whose bid was not rejected as inadequate. This deed is given with the covenant that the aforesaid sale was in all particulars conducted according to law. Executed as a sealed instrur nbIhis...............................20th........._..........day of................Degember 4 ' ............................................. 19...�......._, o -•••••.........._.... Treasurerf the City-- of.................a9 rnetable Howard W. SearsTown THE COMMONWEALTH OF MASSACHUSETTS ..A.r..ritl.tat—,.£..._..................... es. December 21 54 ........._........................._..__._...........__......_...........«_... , 19..._..__. Then personally appeared the ...___.__...._.._....._.«..................._. Sears and acknowledged the foregoing instrument to be his free act and deed as Treasurer as aforesaid, before me, Icy COMM18110D aalnt.........._Aril 2 59 JE.dp Or.�PMq Laurence F. TNI.TORN APPROVED BY COMNIS.IOHER O►COR ORATIONS AND TAKATION. HOSSS\WARREN, INC. PUELISNERS /OSTON FORM 1136 v Barnstable, ss., Received December 21, 1954, and is recorded. e a' ! i VT 41�L li �✓ip � 1 i xt , �' • (i!`1. IONtgESLtII OF AtASSACHUSEiif ' '�S$E a155 - husband e€said grantor, wife Aney hy the GuFtesY � ntfe-all-rights�ef d" " -mad and-other-interests-therein. „ G ; ifncrn•. !?tY..:-.hand and seal this........ 2.r.�..................daq (J ve ................................................................ ....(� rss.c�G9..(... ....r StAs................ _ ......_. Ii II � ....................................................... . \ 011r Gnmmnnwri lth n# foil alttrhumt1i Barns tab l e 1956 a r - ss. - -- November •4e7:Th(:n personally appeared the above named —MTHERINE DAVIDSON ._.._. and acknowledged the foregoing instrument to be —her frceQq aiSd edged,before me f ;Crt.......... Notaxg Public—Justice of the P-re Aly commission expires (_Csv�.c 4' iG 19(n u Barnstable, ss., Received December 4, 1956, and is recorded. I i, r A. COLL TNS . sometimes es known as 10HN, COr� ,I,INS, , I and husband and wife, both i, i� of Barnstable (Centerville), Barnstable County, btassachusetts, 7Gklf+jt)WAxYrkW, for consideration paid, grant to CH-ESTER C. WILCOX, of 50 Commonwealth Avenue,,Boston, Suffolk County, Massachusetts, x with quitrialut tauenttHtn Ybmttaxt#iax the following described parcels of land located within said TOM (Description and encumbrances,if any) of 1arnstable and being described as follows: r Parcel I All that land described 9n a Treasurer's deed of said Town to ¢ , + , John A. Collins dated December! 21 1953 recorded with Barnstable Deeds in Book 861 Page 522. ' County i 1 I , Parcel II All that land described in a deed of the Treasurer of said Town to John A. Collins dated March 6 1..Q52 recorded with said Deeds in Book 805, Page 530. i All throt land described in a Treasurert s weed :f "ovar; th { Marlon A. Collins .dated December 20 1054 rerordcd with. id D(;eds in "Pb¢k SIP5, 'Page 69 , : S 9' z, A , Parcel IV • • r All. that land described in a deed of the Inhabitants of the Toivri +- t of Barnstable to John Collins dated December 1 1954, recorded wl th said ' Deeds in Book 895, Page 562. C=c` CI'it OF N.riS u(f�t'1ETTS 7 sE t l cr ;i�3d �cCa JIM WMiKX 1 I c�cpoftmtec�ll;�pli�x�sdtXSFx�se'x�X�x� acadxxiYcc iar�'�stxi'itet�itx dl I{ !,� t� � Y JJ1 jUIf4rG1...QLT....hands and seals this............. ....l .. 1.....day of ..++%6...... ...... .. .. .......................................................... ......... .. ............ .... ................................. ... ..�.�(.1_,:a.4.l.^.vZ•�.......4: �?L"..�5.../Y:..�..1� - ♦ r a I � ... .. .. c1hr (nummautttraltl1 of ii�tt:t:tpcllu::rtt, parnstable, I Then personally appeared the above named John A. Collins , 1 and acknowledged the foregoing instrument to be his free act and deed,before me jtC <:::... `......!..�.':V..Y:: ::>1..... ......... + Not.ry Public y=ZfX2d1WAY#dC a My cowmission rxpires _+.�.��` �. �' 19 • i Barnstable, ss., Received December 4, 1956, and is recorded. :;I IS TRUST COMPANY, a h;assnck,usetts banking cor•porE:tion with its Inelpal place of business in Barnstable (Hyannis) Barnstable County, 1 j . t,'^Hchusetts, present holder of a mortgage u umn Ada M. L. George t HYANNIS TRUST COMPANY �♦ j I I Iacd September 28, 1926 --nlcdwith Barnstable County Registry of Deeds nl: 421 Page 8 acknoavledgts satisfaction of the same fit tuitit iti iullarf, the said Hyannis Trust Company t 1• t. caused its corporate seal to be hereto affixed and these presents to he signed in its name and behalf.by w { vied C. Besse, its President and 1 �; h v ' liltam G. Finch its Asst.Treasurerthis 30th day ti, HYANNIS TRUST COM1T�itfY•"` by I President4 )�� I '{ Aft. Treasurer t y. G ! � it 1 f �.Mc� wa.r� a-�.,'+G ,�' r r .„ +�} ta�a'.'`t s ,.I'�` ` — 'eegT t' d." ,r ,,'�Sz, �. 6'rs. Sr -aytxig• rsr' aYb�J '�s " '';,iya�� t`A. - '`R a .. a- t"±glPr } "'t. �- �alq: 7t` n r� � `-� ' .. ! '� h.t�;..3 '""W-^•, •`l x a M& ..•I.s4 ,,�+kL'� .-"`tuna,`a :. v n `itF I-� . ,ty'%. i 1 ,�*, -xi'�':F"Tss +a,+� %r u+> *m ur r w.-M.>'g'•a-44,4,c�'rJ;v: � rt�.>_ �' $ ...:i�'�..y.+ !r4:wEi m.*.ry "'w a's.�o-� =+z �pii+r i•.w4. v �+tr, ">a 'a+�re,,.`�,� "M . 137 'Tvlta$..Q. uloi11 n of Chester C. Wilcox, Suffolk Probate Docket Niunber 398663, by virtue of the powers 1:t1 f7 `a�' contained in said Will, and every other power a+ ly f for consideration paid,and in full conmideration of One Hundred ($100,00) Dollars grant`t. Robert and Sandra Pollard, Joint Tenants $1I t. .2434 Island Pine Drive, E. with quilrialm rournnuts j tPort Richey, Florida 33568 ## ! .•,��t x��:3a �, � ��N-A�.". �... - (Dacriplias and<ncumbranccs,if sny) A certain parcel of land situated in Cotuit, County of Barnstable, Commonwealth s A' of Massachusetts, comprising lot numbered fifty-eight (58) as shown on the plan v by of house lots at Cotuit, Massachusetts, dated November, 1905, made E. B. Bourne r 4lrr+ said plan being compiled by X. L. Crocker, C.E., dated August, 1912. The Said lot y e � contains 4000 square feet more of less, according to said plan. IN Being the same premises described as Parcel III in Deed of John A. Collins et use a N to the said Chester C. Wilcox, dated November 30, 1956, and recorded with Barn stable Deeds, Book 960, 'Wage 362. For back title see said Deeds Book 412 P m - 122. , 4 age � Oakwood Street Cotuit, Massachusetts Property Addresas Lot y8 , , ..P Also shown as Lot # 49 on Town of Barnstable Tax Map. - The premises herein described are conveyed subject to real estate taxes assessed for the fiscal year commencing July 1, 1981. r}Ya I x ; �IYn>'eel nty_hand and seal this_ /'S _. _ day of 9.c.tczbe� 19.81 _ NORMAN F. FAY, Trustee a1Aforesaid -ter ��'• '3' � .,. "' .............._._..._._ _____YT.._.._....�. _._......._..._._ ..._� M.. ! r w42 tdntnmcttmra114 of 19ass"4usettn j o � t rs 19 `sj inter Saaa 'x`.. 'Ilea personally appeared the above named IVo..r o,. �L •..••'�/1'' " ' # and gdanowledged the foregoing instrument to be ti i s free act and deed°Vef P .Notary Fubt.k . M)cammi-uion expires J Air• TH, \.19_Y y . (°Individual_Joint Tenants—Tenants in Common.) +. CHAVM 183 SEC 6 AS AMENDED BY CHAPTER,491 OF 1969 j! 'i• �, Eeery deed j resenttd for terord,hall-contain or lure endorsed upon it the full name,residasce and,post address adds of the grantee fw - - 1 a'rmtAi of the amount of the full'comideration thereof indoUua of the nam e of the other consideration therefor,if not delivered ar•specific sum.The full coosiderstioo shall tneao the teal price for the convc wee without deduction (or Any lima or e erxwnbrmms; unseal by the grantee or remaining'thereoa-All such endon®ents and tecitsh shall be recorded'u put otthe deed, - ,�'� Failure to comply with this section shall not affect the v"ty of asq deed.No register of deeds shill accept a dad for recording wleaa it 0 in compliance with the requimmmts of this aection, OCT I9 8 I3 r i QUERY PROPERTY: QUERY END QUERY PROPERTY PENTAMATION----------------------------------------------------------- 11/18/96 PARCEL ID 018 055 002 GEO ID 40891 LOT/BLOCK 57 DBA PROPERTY ADDRESS OWNER POLLARD 121 OAKWOOD STREET ROBERT W 11142 SALT TREE LN Cotuit PORT RICHEY FL 34668 PHONE DISTRICT CT DEVELOPMENT STATUS C ASSESSOR' S CODE CAPACITY(NOTES) ZONING DIST/ZOC RF SEWER SYSTEM FLOOD PLN/ELEV. WATER SYSTEM OKH? $# BEDROOMS ZBA DECISION FAMILY APT LOT SIZE 3920 .4 OPER/MGR NAME WET LANDS MULT ADDRESS USE 130 (N) EXT / (P) REVIOUS / NO (T) ES / PER(M) ITS / (V) IOLATIONS / (G) EOBASE / (E) XIT This value is not among the valid possibilities i QUERY PROPERTY: QUERY END QUERY PROPERTY PENTAMATION----------------------------------------------------------- 11/18/96 PARCEL ID 018 049 GEO ID 517 LOT/BLOCK DBA PROPERTY ADDRESS OWNER POLLARD 125 ROBERT 11142 SALT TREE LANE Cotuit PORT RICHEY FL 34668 PHONE DISTRICT CT DEVELOPMENT STATUS C ASSESSOR' S CODE CAPACITY (NOTES) ZONING DIST/ZOC RF SEWER SYSTEM FLOOD PLN/ELEV. WATER SYSTEM OKH? ## BEDROOMS ZBA DECISION FAMILY APT LOT SIZE 3920 .4 OPER/MGR NAME WET LANDS MULT ADDRESS USE 131 (N) EXT / (P) REVIOUS / NO (T) ES / PER(M) ITS / (V) IOLATIONS / (G) EOBASE / (E) XIT This value is not among the valid possibilities A Town of Barnstable Planning Department Staff Report Appeal No. 1997-38 Pollard Variance to Section 3-1.3(5) Bulk Regulations Date: March 18, 1997 To: Zoning Board of Appeals From: Approved By: Robert P. Schernig, Director Reviewed By: Art Traczyk Principal Planner Drafted By: Laura Harbottle, Associate Planner Applicant: Robert W. Pollard Property Address: 121 & 125 Oakwood St., Cotuit Assessor's Map/Parcel Map 18, Parcel 49&55.002 Area 09&.09 ac. Zoning: RF Residential F Zoning District Groundwater Overlay: AP Aquifer Protection District Filed,February 24, 1997 Public Hearing,April 2, 1997 Decision Due June 4, 1997 Background: The property that is the subject of this appeal consists of two lots each with an area of 4,000 sq. ft. One of the two lots was deeded to the owner in 1988. According to the Building Commissioner, this property was improperly deeded out of a parcel with which it was previously merged. The property fronts on a dirt road and other roads in this area appear unpaved. Variance: In consideration for the Variance, the applicant must substantiate those conditions unique to this lot that justify the granting of the relief being sought. Staff Review/Recommendation: Assessor's records show that many undersized lots in this area were merged in FY 1981. They also give a picture of many property transfers between several families, the Michonskis, Pollards and Lawrences, during the 1970's and 1980's. The Michonskis acquired Parcel 55-1 (previously shown as Parcel 55) in 1975 from Irving Lawrence. The Pollards purchased Parcel 48 in 1975, then apparently exchanged it for property of Irving Lawrence the same year, although the location of the property they received is unclear. Mr. Pollard and his wife, now deceased, purchased Parcel 49 in 1981. Mr. Pollards now wishes to build on Lot 49 merged with Lot 55-2, which they acquired through another property exchange. On Lot 55-1, the parcel out of which 55-2 was subtracted, there is a 1,276 sq. ft. house and 576 sq. ft. garage with living quarters above which was built in 1980. This appears to be two-family use, which would not have been permitted in 1980 except for family apartments, and no zoning relief for this use is evident. The zoning in this area became one acre in March, 1973. The two lots which Mr. Pollard wishes to combine total 8,000 sq. ft. The Barnstable Zoning Ordinance Section 4-4.2(2) requires two or three adjoining lots to be merged within five years of a zoning change, which would have been 1978. Previously, there was a 20,000 sq. ft. minimum area requirement. When Lot 55-2 was removed from 55-1, this reduced the size of Lot 55-1, which contains two dwellings, to .45 acres or 19,602 sq. ft. The applicant should be prepared to show variance conditions for the reduction in size of Lot 55-1 as well as this proposed new two-lot merger. Attachments: Applications Assessor Map Plan Reduction copies: Applicant/Petitioner Building Commissioner 40 TOWN OF BARNSTABLE Zoning Board:of, Appeals FEB 2 4 1997 AUUI ' t'on tq t Dn for a Variance . Date Received; Sawn Clerk office. For office Use only: r 24 - fir► Appeal # 1 r I1 ' 3.R Hearing Date 14 Decision Due The undersigned hereby applies to the Zoning Board of Appeals for a variance from the Zoning ordinance, in the manner and for the reasons hereinafter set forth: Petitioner Name: Robert W. Pollard Phone Petitioner Address: 11142 Salt Tree Lane, Port Richey, FL 34668 Property Location: 121 & 125 Oakwood Street, Cotuit, MA Property owner: Same Phone Address of Owner: Same If petitioner differs from owner, state nature of interest: Number of Years owned: 16 years and 9 years . Assessors Map/Parcel Number: 018/049 & 018/055-2 Zoning District: RF Groundwater overlay District: Variance Requested: 3.-1 .4 (5) Bulk Regulations Cite Section & Title of the Zoning ordinance Description of Variance Requested: Variance from Dimensional requirements Lot area and frontage Description of the Reason and/or Need for the variance: See attached Description of Construction Activity (if applicable) : Construction of a single family home Existing Level of Development of the Property - Number of Buildings: NONE Present Use(s) : NONE Gross Floor Area: None sq.ft. Proposed Gross Floor Area to be Added: Altered: Is this property subject to any other relief (variance or Special Permit) from the Zoning Board of Appeals? If Yes, please list appeal numbers or applicants name Yes [ ] No [� Application to Petition for a Variance Is the property within a Historic District? Yes [ J No aJ Is the property a Designated Landmark? Yes [ ] No (K) For Historic Department Use Only: Not Applicable . . . . . . . . . . . . . . . [ ] ORH Plan Review Number Date Approved Signature: Have you applied for a building permit? (xl [] Has the Building Inspector refuse No d a permit? Yes Yes No [ ] All applications for a Variance which proposes a change in use, new construction, 'reconstruction alterations or expansion,P n, except for single leor two-family dwellings, will require an approved site Plan see section 4- 7.3 of the Zoning ordinance) . That process should be completed prior to submitting this application to the Zoning Board of Appeals. For Building Department use only: Not Required [.}-_ Site Plan Review Number Date Approved Signature: The followings information must be submitted with the Petition at the time of filing, without such information the Board of Appeals may deny your request.• Three (3) copies of the completed Application Form, each with original signatures. Five (5) copies of a certified property survey (plot plan) showing the dimensions of the land, all wetlands, water bodies, surrounding roadways and the location of the existing improvements on the land. All proposed development activities, except single and two-family housing development, will require five (5) copies of a proposed site improvements plan approved by the site Plan Review Committee. This plan must show the exact location of all proposed improvements and alterations on the land and to structures. see "contents of site Plan:" Section 4-7.5 of the Zoning ordinance, for detail requirements. The petitioner may submit any additional supporting documents to assist the Board in making its determination. Signature: Date Petitioner or Agents Signature Fain P. Gildea, Esq. Dubin & Stephenson Agent's Address: ��S Rnt:tP 28,�enterviIle 02632 Phone: 771-0330 Fax No.778-6966 r �B.t y, ��� e L ' D BARNSTABLE, MASSACHUSETTS ` ez, 07 q �S DO2, 1 ASSESSORS MAPS f(y' .'. O/8 [e - iaio u.�so [A�IaI `N�tt r.►.�e� _ _ 1 3gsaL g 20 jp .21K ..SAC JOAC l� ii .09 Ac e \ k / -O It s .1s1c sAt get ►. 64 o A r .39AC 9 j ze 13 14 e Z / too o i ,IAC .1fac ,iie 16 �(� :� es• uw ``�� Sl R ss ee 000 lli1C as AC .27 AC i.o a ��./ ='.ttAc .>tiAc • so 1.yf k ►awe r F-45, R l o [ 1[o too ea.t seti,.,e =q 00 •o TOT&& 63s•Ac ( •o RoAe ARAC 62 e zo: ` 1 ,SAc �_ zoo. >aAcK• YJIM �' 103C_ Tt oa� so t2�AC 9 ioaAe 71AT ND I L ^ Il•1 M•11M ,OTAC elCf[A�eq .°, 37 $ © f 9 102,<.. s A'. ...ta fa0 fo•o I WAC A9AC ./fAC � � 7 e � ' 1e o- f y L48J 00 AA ACC ¢ N ja NAL .SI A-C �I o .11Aoe21Acl � u • q Io 101 N A/Ac • 2AC- $ ; S I N �AG e O 43AC $ f �77 o qS .01 AC L --►P>z L2A AC!4A_J Zoe tee 1 TRt[i ,/ :' S 91 1 �g` goAo AC Te •61 AC Q z I.OoAC� IL 1 t .c :z• 1.00.f 02 I.ec O /all s ti /eNc 75 1[ICR[RaOR to •It NC � I O ti 0 >f 10 `• q •Y s q b4 C ki93 ;� 2 99 83 I' I q5 ` . A .a4Ac asAc s JTk p AIAC-1 boor 19 uoAC ! w r N I 121-� o © vrEs 12AC s a'-1 ~ QV.b C `h � 1 �s� $ •t/� I 0 • A ire Lt�— 110 T n w 07 73 � ^eel r� C1aCLE ` *SAC .MACo� � ia � yl i $ st�lso qAc ! 72 I i•1 t 9'=NN� f ZINC v e90 1 A04C 7w asr + I ,fAc y qI0-3 qf,•2 * PIN[ a zap 71.L 71.1 I.00aC. qb.t ROA te,►c eslc 1.0��g �• ss •o e /� • I CERTIFY THAT THIS SURVEY AND PLAN WERE MADE COTUIT IN ACCORDANCE WITH THE PROCEDURAL AND TECHNICAL STANDARDS FOR THE PRACTICE OF LAND SURVEYING IN THE COMMONWEALTH OF MASSACHUSETTS _.7/ 7 LOT 66 I Qvo � PAUL A. MERITHEW. P.LS. DATE � STAB ON 0 g0 ELL ) (FN�.R2�OFF) ASSESS RS. ENE LOT 50 y i R D LOT 67 PJ RIDGE >A y ASSESSORSLOO i ^``a `'==� LOT 55-1 o BEAC!! SHED Q ° STAKE --I (ser) l ! LOCL S i .Y FLOT 57 / CB,/DISC ASSESSORS \ LOT 55-2 AREA=4.000 S.F. l LOCUS M4P ASSESSORS F� f LOT 45 S �� �O / l PLAY REF.' 2,%11 & 38630A RES ZO.X£ ! (.j LOT 58' ! FLOOD ZOAT "C" ASSESSORS ASSESS ORS MAP 18 LOT 49 Srai£I ARE.4=4,000 S.F. (SET) •\ / n LOT 6.9 l ° P. CT PL_ _ ,- Ors' L _",D i% fOO° srAhe LOC.-I T£D 1�.. (SEV / l LOT 59 ---ASSESSORS - PR£PAP.£D FOR- LOT 4e �Q / RICH4RD ti' DUBIA- I l HOGS£ OQ,' J.A.VL'ARY 27. 1997 i GRAPHIC SCALE YAN EE SURGE'}" CONSULTANTS UNIT 1, 40 LVDG:STRY ROAD 20 i 0 70 w 80 P.0. BOX 265 M9RSTOXS.16lILL-'z MASS. 02648 1 TEL 428-0055 FAX 420-5553 ( IN FEET I inch = '0 i i i { i TOWN OF BARNSTABLE ZONING BOARD OF APPEALS Petition for Variance of Robert W. Pollard i Respectfully Submitted, Fain P. Gildea, Esq. Dubin & Stephenson 1645 Route 28 Suite 4A Centerville, MA 02632 Nature of Application The Applicant, Robert W. Pollard, is the current owner of two contiguous parcels of Land in the Town of Baxristable shown on Assessor's Map 18 as Parcels 49 and 55-2 . He and his wife Sandra (now deceased) purchased the lots in 1981 and 1.988 respectively with the desire of building a retirement home. Mrs. Pollard died an untimely death, and now, some nine years after purchasing the second lot, Mr. Pollard desires to build :a moderately priced single family home. Mr. Pollard applied for a building permit and was denied. Mr. Pollard's application was denied because the Building Commissioner determined that Parcel 55-2 was not available to increase the square footage of Parcel 49. (Copy of Building Commissioner's letter attached) . Background Robert and Sandra Pollard purchased Parcel 49 on Assessor's Map 18 in 1981.1 In 1988, the Pollard's purchased Parcel 53 and thereafter conveyed it to Walter and Doris Michonski in exchange for Parcel 55-2. The purpose for the exchange was as follows. Walter and Doris Michonski (Sandra Pollard's parents) purchased Parcel 55 in 1975. It contained 20,000 square feet and included several contiguous lots on the Crocker Plan. Parcel 55 appeared roughly as a rectangle on the corner of Cedar Street and Pine Ridge Road with a portion (Parcel 55-2) jutting out in a Southeasterly direction with frontage on Oakwood Street. The parties exchanged the two parcels to square up their respective landholdings and add sufficient additional square footage to Parcel 49 to permit it to be built upon. The exchange involved parcels of equal size (each lot contained 4,000 square feet) and the parties believed that because the parcels were of equal size and the exchange improved the shape of their lots, Parcels 49 and 55-2 could be combined and therefore be built upon. The Site. Parcels 49 and 55-2 were originally laid out on a plan of land recorded in 1912. The area is zoned RF with a minimum area requirement of one acre and frontage of 150 feet- The combined area of the two lots is 8,000 square feet. The combined lots are deficient in frontage by 70 feet. All. other applicable regulations will be complied with. 1 References to the various lots discussed herein are by parcel number as shown on the Assessor's Map. The lots are also depicted by different numbers on the "Plan of House Lots in Cotuit Mass. Dated August 12 by N.L. Crocker. " The lots are surrounded by other residential structures and there is no land available to meet current zoning requirements. Town water is available and, therefore, , there will be no public health issue affecting development. The site is in an area that contains numerous undersized lots that. have been built upon. The Proposed Building Project. Mr. Pollard had a ground survey conducted for the two parcels which is shown on the certifi ed lot plan attac:p p tied hereto. Mr. Pollard proposes to construct a moderately priced three bedroom single family home on the site. Mr. Pollard will comply with all local ordinances and regulations and is seeking relief only from lot size and frontage requirements. Argument. The Building Inspector determined that Parcel 55-2 was not available to be used to increase the area of Parcel 49 because Parcel 55-2 had merged with Parcel 55-1. Otherwise, Mr. Pollard could combine Parcels 49 and 55-2 to create a single buildable lot and be entitled to a building permit as is clear from the numerous cases that recognize the right of a landowner to combine undersized lots and gain grandfathered protection under Chapter 40A. Vassalotti v. Board of Appeals of Sudbury, 348 Mass. 648 ( 1965) . Vassalotti and subsequent decisions recognize the principal that while landowners may not create dimensional nonconformity they can use adjoining land to diminish nonconformity and combine lots of less than 5,000 square feet to create a single lot, though while still undersized, is of sufficient size to meet the statutory requirements for protection. Burke v. Zoning Board of Appeals of Harwich, 38 Mass.App.Ct. 957 (1995) . The logic of what Mr. Pollard tried to accomplish is apparent from viewing the Assessor's Maps from the years 1983 and 1997. (Copies attached) . The maps show that the exchange did improve the shape of the lots and did not increase the degree of nonconformity of either parcel as prohibited by the ordinance . Moreover, the zoning ordinance provides that a transfer such as this is permissible through a special permit. The transfer of Parcel 55-2 occurred nearly 10 years ago but without a special permit. Variance. This situation is somewhat unique and an appropriate case for granting a variance. The lots in this area were laid out in 1912. After a variety of transfers and reconfigurations the neighborhood now contains several cottage style and single family homes located on lots of various sizes. While the parties did not understand that parcel 55-2 had merged with parcel 55-1, their intention was to improve the shape of the lots and not create a qreater degree of nonconformity. They believed what they were doing was permissible. They did in fact improve the shape of the parcels and did not violate the purpose of the ordinance. To have accomplished this but not be permitted to build will create a substantial hardship. The factors affecting these parcels can be distinguished from other parcels in the area. The two contiguous parcels are bounded by a street, two larger parcels that are already built on and another 4,000 square foot parcel. Thus; there is no land available to meet the minimum lot size in the district. Moreover, the lots will remain vacant and unbuildab e 1 unless relief is granted. Had Mr. Pollard purchased the lots knowing they were unbuildable the equities would be different. However, :he sincerely believed that they would meet the requirement of both local and state law. The Board must weigh the harm to the Applicant against the benefit to the Town. There is no detriment to the Town to permit the building of a single family home on: this lot. The only useful purpose for the lot is for a single family home. There will be no detriment to the neighborhood or the public good should the Board act favorably on this request. Conclusion. For the reasons set out herein, as well as those presented to the Board at its Public Hearing, it is respectfully requested that the Board grant the relief requested. Respectfully submitted, Fain P. Gildea , Esq. 4 AFFIDAVIT I, Robert W. Pollard, 'on oath depose and say My wife, Sandra (now deceased) , and I acquired Lot 49 (Assessors' Map 18, Lot 49) in 1981. In 1988, we acquired Lot 55-2. At that time we were not aware that Lot 55-2 may not have been available for transfer. We believed that we were acquiring sufficient square footage to enable us to combine the two contiguous lots to create a single lot. containing approximately 8,000 square feet and thereby be entitled to build a single family home. I was not aware that because Lot 55-2 had been held in common ownership with Lot 55-1 that any transfer would be preclude my use of both lots as a single buildable lot. In 1996, I applied for a building permit, and at that time learned the reason why my lot does not qualify as a buildable lot. I intended to build on the lots much earlier than the present but because of my wife's untimely death, have not pursued a building permit until recently. Signed under pains and penalties of perjury. obert U. Pollard Commonwealth of Massachusetts County February , 1997 Subscribed and sworn before me, -Q S Notary Publib My commission expires: 0J��w Chain of Title Grantor Registry Reference Grantee William & 412/122 DD Arthur Hancock Marie Gifford Treasurer's Deed 895/69 DD Marion A. Collins John & Marion 960/362 DD Chester D. Wilcox Collins Chester D. Wilcox 3321/137. DD Robert & Sandra Pollard L RICHARD S. DUBIN ATTORNEY AT LAW 4A BAYBERRY SQUARE 51 BEACH ROAD, UNIT 204 1645 ROUTE 28 POST OFFICE BOX 1104 CENTERVILLE, MA 02632 VINEYARD HAVEN , MA 02568 (508) 771-0330 (508) 693-5757 FAX: (508) 778-6966 FAX: (508) 693-2778 November �, l996 Ralph Crossen Building Commissioner Town of Barnstable Dear Commissioner Crossen: I represent Robert W. Pollard and write to request that you determine whether the lot depicted on Assessors Map 18 Parcel Number 49 is buildable under the Town of Barnstable's Zoning By- Law. (Assessors. Map 18 attached) . Statement of Facts. Robert W. Pollard and his wife Sandra, now deceased, purchased lot number 49 in 1981. Lot 49 appears as lot number 58 on the Plan of House Lots at Cotuit Mass. Dated August 1912 by N.L. Crocker. In 1988, Pollard purchased Lot 55-2 (lot 57 on Crocker Plan) .' Lots 49 and 55-2 should be treated as a single nonconforming lot entitled to protection under the Barnstable Zoning By-law and Massachusetts General Laws Chapter 40(A) . Lot 49 was an unprotected undersized nonconforming lot because it lacked the requisite minimum 5, 000 square feet of area and fifty feet of frontage. In every other respect the lot would be entitled to protection.2 When lot 55-2 was purchased, it entitled Pollard to combine the two lots and create a single lot 49 with sufficient square footage and frontage to meet the criteria for protection under state and local law. Accordingly, the lot should be deemed 1 Lot 55-2 was in common ownership with lot 55-1 prior to 1988. In 1988, Pollard exchanged lot 53 (adjacent to lot 55-1) for lot 55-2 (adjacent to lot 49) unaware that. lot 55-2 may have merged with lot 55-1. However, inasmuch as the exchange was of lots of equal size, the exchange did not increase the degree of nonconformity as prohibited under the by-law. 2 Lot 49 was not held in common ownership, conformed to the. existing zoning when created, and was separately owned at the time of the zoning change that made it nonconforming. buildable. There is significant and longstanding precedent for this position. I refer you to the following cases which are discussed below and attached hereto for your convenience. Vassalotti v. Board of Appeals of Sudbury, 348 Mass. 658 (1965) ; Burke v. Zoninq Board of Appeals of Harwich, 38 Mass. App. Ct. 957 (1995) ; Gaudet v. Building Inspector of Dracut 358 Mass. 797 (1970) ; and Planning Board of Norwell v. Serena, 27 Mass. App. Ct. 689 (1989) . Statement of Law. In Vassalotti v. Board of Appeals of Sudbury, 348 Mass. 658 (1965) , the Supreme Judicial Court of Massachusetts P held that the combination of three contiguous undersized lots that together fell below the then required minimum area had produced one lawful - because grandfathered - undersized lot. The three undersized lots in Vassalotti each contained approximately 2,500 square feet in area. The Court's decision that the landowner was entitled to a building permit and not required to seek a variance is particularly relevant. The three undersized lots which were not entitled to grandfather protection when treated separately were entitled to protection under both state and local law when combined even though the single combined lot was still undersized. The lot became protected because once combined it ' met the threshold area requirement under both state and local law. In 1995, the Massachusetts Appeals, Court relied on Vassalotti in deciding that four separate lots, none of which contained as much as 5, 000 square feet, could be combined to create one nonconforming grandfathered lot. Burke v. Zoning Board of Appeals of Harwich, 38 Mass. App. Ct. 957 (1995) . While the Court rejected the landowners effort to create two undersized lots citing the "principal that landowners may not create dimensional nonconformity if the use of adjoining land they own can avoid or diminish the nonconformity" the Court did approve the combination of the lots to create one undersized grandfathered lot. Id. at 958-960. See Gaudet v. Building Inspector of Dracut, 358 Mass. 797 (1970) . In Planning Board of Norwell v. Serena, 27 Mass. App. Ct. 689 (1989) , the court explicitly found that "all the land in each of the Serenas' two lots was available to avoid or reduce the dimensional nonconformity of either lot viewed in isolation. " Id. at 691, (emphasis supplied) . The by-law at issue in the Burke decision provided that "Existing lots lawfully laid out by plan or deed which complied at the time of layout with applicable provision of (z]oning (b]y-laws, if any, may be built upon for single family residential purposes provided: (a) (s]aid lots have fifty (50) feet of frontage and five thousand (5, 000) square feet of area . . . . " Burke, 38 Mass. App. Ct. 958. The Barnstable by-law provision is similar in design. Protection is afforded to a lot for single or two-family 2 residential use which at the time of recording: . a. was not held in common ownership; b. had a minimum of 5, 000 square feet; C. conformed to the existing zoning when created; and d. was separately owned at the time of every change which made it nonconforming. The crucial inquiry for determining whether a lot is grandfathered is the status of the lot .immediately prior to the zoning change that rendered the lot nonconforming. In Adamowicz v. Town of Ipswich, 395 Mass. 757 , 762-763 (1985) , the Supreme Judicial Court held that a lot does meet the statutory requirements if the most recent instrument of record prior to a restrictive zoning change reveals that the lot was separately owned, even though a previously recorded subdivision plan may reveal that the lot was at one time part of land held in common ownership. Lot 49 became nonconforming in 1958 when it was zoned RD-2 with a minimum lot size of 20,000 square feet. The most recent instrument of record prior to the restrictive zoning change was a deed from John and Marion Collins to Chester W. Wilcox recorded on December 4, 1956. Thus, under the by-law lot 49 became nonconforming in 1958 . and was not protected because it lacked the minimum area of 5,000 square feet. When lot 55-2 merged with lot 49, lot 49 increased in size to 8, 000 square feet and became a legal nonconforming lot under the by-law and the Adamowicz decision and the other cases discussed above. For your convenience I enclose copies of the title of the locus.3 Would you kindly review this matter and advise me of your opinion at your earliest convenience. Yours very truly, Richard S. Dubin Enclosures cc: Ruth J. Weil, Esq. 3 I examined title to all contiguous lots and determined that lot 49 was not held in common with any contiguous lot until 1988. Lot 55-2 was held in common ownership with Lot 55-1 for a period of time as described above. 3 �1HE . The ' ,A MBUL : Town of Barnstable HAM ; �0�' Department of Health Safety and Environmental.Services ArEDj"0�� Building Division 367 Main Street, Hyannis MA 02601 Office: 508-790-6227 Fax: 508-790-6230 Ralph Crossen Building Commissioner November 19, 1996 Richard S. Dubin,Attorney At Law 4A Bayberry Square 1645 Route 28 Centerville,MA 02632 121 &;125Oakwood Street,Cotult,.MA Map/parcel 01,8/055 Dear Attorney Dubin: I read your letter of November 7, 1996 concerning lots 49 and 55-2 on Oakwood Street(Map 18). While I agree with your assessment of Vassalotti v Board of Appeals of Sudbury, I am not able to agree that this example fits into that situation. The key difference,and the one that causes this situation to need a variance,is the fact that up until 1988 lot 55-2 was merged with lot 55-1 and improperly separated and sold. This action caused a zoning problem for lot 55-1,and cannot be used to join with lot 49. You have the right to appeal this decision. If you so choose, I will be more than happy to help. Sincerely, Ralph M.Crossen Building Commissioner RMC/km cc: Robert Smith,Town Attorney Q961119B