HomeMy WebLinkAbout0151 SCHOOL STREET Y . . F
Town of Barnstable
Legal Department - Town Attorneys' Office
367 Main Street, Hyannis MA 02601-3907
Inter-Office Memorandum
Robert D. Smith, Town Attorney Office: 508-862-4620
Ruth J. Weil, 1 st Assistant Town Attorney Fax: 508-862-4724
T. David Houghton, Assistant Town Attorney
Claire Griffen, Paralegal/Legal Assistant
Claudette Bookbinder, Legal Clerk
Date: November 15, 2001
TO: ETER DiMATTEO, Building Commissioner
TO: ZONING BOARD OF APPEALS
From: RUTH J. WEIL, 1st Assistant Town Attorney [ ]
Subject: Taylor v. ZBA of Town of Barnstable, et al
Superior Court, C.A. No. 1998-722A
Our Legal Ref.: #98-0138
----------------------------------------------------------------------------------------------------------
Attached is a copy of the Decision rendered by the Superior Court in the above
matter on November 14t", 2001. You will note that the decision of the Zoning Board of
Appeals has been upheld.
RJW:cg
Atchmt.
[98-0138\memo-1]
12
COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE,ss. SUPERIOR COURT
CIVIL ACTION
NO. 98-722
PETER B. TAYLOR
VS.
EMMETT GLYNN & others'
FINDINGS OF FACT, RULINGS OF LAW AND
ORDER FOR JUDGMENT
The plaintiff,Peter B.Taylor,brought this action for judicial review,pursuant to G.L.c.40A,
§ 17, of the grant of a variance to the defendants, Paul J. Carey and Jane Carey, by the Barnstable
Zoning Board of Appeals ("Board") which permitted the defendants to build a single family
residence on a vacant lot owned by the defendants. The plaintiff alleges that the Board's decision
was erroneous as a matter of law and exceeded the scope of its authority and that, as such, the
decision should be annulled and the matter remanded for further hearing. As grounds for his motion,
the plaintiff claims that the Board's decision did not contain the required statutory findings necessary
for the grant of a variance in that there are no special conditions affecting this lot and having to do
with its shape, topography or soil condition. The defendants argue that the plaintiff lacks standing
to bring suit because he is not an "aggrieved person" as defined by G.L. c. 40A, § 17 and, as such,
plaintiff's complaint should be dismissed. The matter was tried before me without a jury over the
course of two days. The trial began on September 20, 2000, however, due to the illness of one of
the parties,the remainder of the trial was continued until August 1,2001. The Court heard from four
Ron Jansson, Gore Burman, Richard Boy, Gail Nightingale, Elizabeth Nilsson, Thomas
DeReimer and David Rice, as the Zoning Board of Appeals of the Town of Barnstable, Paul J.
Carey and Jane Carey
witnesses and received 12 exhibits in evidence. Set forth below are my findings of fact and rulings
of law. For the reasons summarized there, I conclude that the plaintiff's appeal fails and,
accordingly, that the Board's decision remain undisturbed.
FINDINGS OF FACT
1. The plaintiff,Peter B.Taylor("Taylor"),owns and lives in property located at 161 School
Street in Cotuit,Barnstable County,Massachusetts. This property is designated as Parcel 88 on the
Town of Barnstable Assessors' Map 020.
2. Paul J. Carey and his wife, Jane Carey (the "Careys"), reside at 16 Brentwood Road in
Chelmsford, Massachusetts. The Careys own a vacant lot located at 151 School Street in Cotuit,
Barnstable Count, Massachusetts which is designated as Parcel 87 on the Town of Barnstable
Assessors' Map 020.
3. Parcel 87 and Parcel 88 are adjacent,abutting and contiguous properties in that they share
a common side boundary line.
4. The Careys' property, Parcel 87, has approximately 24,400 square feet of area and
approximately 131 feet of frontage. r
5. In the 1960s when the lots were created, Parcel 87 was located in RD-2 zoning district
which required a minimum lot size of 20,000 and a minimum frontage of 125 feet. In 1973, the
Town of Barnstable amended its zoning by-laws. At that time, Parcel 87 was re-designated as being
located in an RF Residential F Zoning District which requires a minimum lot size of one acre and
a minimum frontage of 150 feet.
6. Prior to the Careys' ownership, Parcel 87 was owned by Mrs. Carey's mother, Marcella
Gross ("Gross"). Gross owned both Parcel 87 and the adjacent parcel,Parcel 86. By 1971,a single
2
family residence was built on Parcel 86. In late 1982, Gross applied for and was granted a variance
for Parcel 87, which reinstated the lot as buildable. Pursuant to G.L. c. 40A, § 10, any rights not
exercised within one year of the grant of a variance lapse. Thus, Gross's,variance lapsed as it was
not recorded until July,1984, more than 18 months after it was issued. In addition, Parcel 86 and
Parcel 87 remained in common ownership for more than 17 months after the variance was granted.
7. The Careys became owners of Parcel 87 in June,1984, when Gross deeded the property
to them in consideration of$100.00.
8. The Careys filed an application for a variance for Parcel 87 on September 2, 1998. The
Careys sought a variance from the minimum lot size and frontage requirements for their property.
On October 21,1998, following a public hearing, the Board unanimously approved the Careys'
request for a variance. The Board's decision was filed with the Town Clerk on November 2, 1998.
9. Taylor objects to the construction of a single family residence on Parcel 87 as he believes
it will destroy his existing sense of spaciousness, damage or destroy his existing views, and lower
the desirability and value of his property. Specifically,he objects to interference with his view and
with his privacy. The materials the plaintiff submitted in support of his position, in addition to the
testimony provided by his expert witness,lack specific factual substance and are nothing more than
unsubstantiated opinions as to the negative consequences of the granting.of the variance to the
Careys. Specifically, the plaintiff's expert's use of open space and conservation land to make
comparisons with the Carey's property added no value in proving any significant or particularized
harm to Taylor.
10. I find that the building of a single family residence on Parcel 87 will not result in any
adverse harm to Taylor. I further find that the existence of a residence on Parcel 87 will not effect
3
Taylor differently than it will affect other properties in the area.
RULINGS OF LAW
1. In general, "a party has standing when it can allege an injury within the area of concern
of the statute or regulatory scheme under which the injurious action has occurred." Massachusetts
Association of Independent Insurance Agents and Brokers,Inc. v. Commissioner of Insurance, 373
Mass. 290, 293 (1977).
2. In the case of zoning appeals under Section 17,standing is limited to persons"aggrieved"
by the decision of the zoning board and"any municipal officer or board"regardless of whether such
board or officer could otherwise qualify as an "aggrieved person." G.L. c. 40A, § 17.
3. Although recent cases on the subject have held that the term "person aggrieved" should
not be read narrowly, see Marashlian v. Zoning Board of Appeals of Newburyport,421 Mass. 719,
721 (1996), only a limited class of individuals--those whose property interests will be effected--have
standing to challenge a zoning board's exercise of its discretion to grant a special permit or variance.
Green v. Board of Appeals of Provincetown, 26 Mass. App. Ct. 469,479 (1988), reversed on other
grounds, 404 Mass. 571(1989). f
4. Such individuals acquire standing by asserting ".a plausible claim of a definite violation
of a private right, a private property interest, or a private legal interest. Harvard Square Defense
Fund, Inc. v. Planning, Board of Cambridge, 27 Mass. App. Ct. 491, 492-93 (citations omitted),
review denied, 405 Mass. 1204 (1989). See also, Marashlian v. Zoning Board of Appeals of
Newburyport, 421 Mass. 719, 723 (1996).
5. Claims that involve matters of general public interest or concern, rather than a private
right or interest,are insufficient to confer standing as an aggrieved person. Harvard Square Defense
4
Fund, Inc. v. Planning Board of Cambridge, 27 Mass. App. Ct. 491, 492-493 (1989). See also,
Cohen v. Zoning Board of Appeals of Plymouth, 35 Mass. App. Ct. 619, 623 (1993) (claim to
interest must be separate from that of the public at large and must be factually substantial).
6. Absent challenge, a plaintiff is presumed to be a "person aggrieved" with standing if he
or she is a "party in interest" entitled to receive notice of the public hearing before the Municipal
Board pursuant to Section 11 of the Zoning Act. Marotta v. Board of Appeals of Revere, 337 Mass.
199, 204 (1957).
7. The presumption that a "party in interest" under Section 11 is also a "person aggrieved"
under Section 17 is rebuttable. Cohen v. Zoning Board of Appeals of Plymouth, 35 Mass. App. Ct.
619, 621 (1993). "Abutters...enjoy a rebuttable presumption [that] they are `persons aggrieved."'
Bell v. Zoning Board of Appeals of Newburvport, 421 Mass. 719, 721 (1996). Here, as Taylor is
an abutter to the Careys'property,he enjoys a rebuttable presumption that he is an aggrieved person
pursuant to G.L. c. 40A, § 17.
8. The precise amount and nature of the evidence needed to rebut the presumption has not
been firmly established. However, the party seeking to rebut the presumption must come forward
with sufficient evidence which would provide a trier of fact with a factual basis to find facts contrary
to the presumed ones. See Liacos, Massachusetts Evidence 53-54 (5th ed. 1981) ("A presumption
is rebutted by evidence warranting a finding contrary to the presumed fact"); Barvenik v. Board of
Aldermen of Newton, 33 Mass. App. Ct. 129, 131-32 n. 7 (1992). The one thing which the party
seeking to rebut the presumption may not do is to offer the findings of the zoning board as sufficient
evidence. Watros v. Greater Lynn Mental Health & Retardation Association Inc.,421 Mass. 106,
111 (1995) ("The findings of the board, resulting in the decision that the plaintiffs are challenging,
5
J
cannot be given evidentiary weight."). Here, the Careys rebut the presumption that Taylor has
standing by demonstrating that his claims,although personal in nature,do not present a recognizable
or definite violation of a private right, a private property interest, or a private legal interest.
9. Where the plaintiffs standing is successfully challenged,as in this case,the presumption
will vanish and the issue will be determined on all the evidence. Barvenik v. Board of Aldermen of
Newton, 33 Mass. App. Ct. 129, 131-32 n. 7 (1992). "The plaintiff must [then] put forth credible
evidence to substantiate his allegations." Marashlian v. Zoning Board of Appeals of Newbulyport,
421 Mass. 719, 721 (1996). Credible evidence, for this purpose, is a specific showing that the
plaintiffs'injury is special and different from the concerns of the rest of the community. Id. at 723.
10. A review of standing based on all the evidence does not require that the factfinder make
a finding regarding the ultimate merit of the plaintiffs allegations. "To do so would be to deny
standing, after the fact, to any unsuccessful plaintiff." Marashlian v. Zoning Board of Appeals of
Newburyport, 421 Mass. 719, 721 (1996). Thus, to determine whether a person is a "person
aggrieved" under Section 17,with standing to prosecute zoning appeals,the court must first decide
whether plaintiff has sustained some significant degree of harm as a proximate result of the
challenged zoning decision. The injury must be real, substantial and directly caused by the zoning
relief challenged to support, on balance,judicial intervention to protect against such injury. Boston
Edison Company v. Boston Redevelopment Authority, 374 Mass. 37, 46 (1977).
11. The showing of harm necessary to support standing as an aggrieved person is essentially
a fact-sensitive matter. Forms of harm recognizable in zoning appeals generally include a decrease
in natural light, an increase in pedestrian and vehicular traffic, a loss of scarce parking spaces and
- interference with access to property. Bedford v. Trustees of Boston University, 25 Mass. App. Ct.
6
372, 377 (1988).
12. General public concerns such as open space,architectural style,historic preservation and
aesthetics are not the type of harm that would support standing as an aggrieved person. Barvenik
v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129, 135 (1992).
13. Where recognizable harm is claimed, the damage to the plaintiff must be shown to be l
definite and material and not predicated merely upon "speculative personal opinion." Cohen v.
Zoning Board of Appeals of Plymouth, 35 Mass. App. Ct. 619, 622 (1993).
14. A slight,immeasurable or speculative effect on the plaintiffs rights or interests shall not
be a sufficient basis on which to find a person aggrieved. Bedford v.Trustees of Boston University,
25 Mass. App. Ct. 372, 377 (1988).
15. Plaintiff Taylor has not offered sufficient credible evidence to show that his private
rights, private property interest or private legal interests are materially affected by the variance
granted to the Careys. Moreover, Taylor's allegations that a residence on Parcel 87 would impair
the enjoyment of his property by diminishing his privacy and views are both subjective and
speculative. His allegations certainly do not provide a sufficient an impaired enjoyment of his home
and property basis for status as an aggrieved person under the statute.
16. This Court rules that the construction of a single family residence on the property located
at 151 School Street in Cotuit, Barnstable County, Massachusetts, shown as Parcel 87 on the Town
of Barnstable Assessors' Map 020, will have no negative impact on the plaintiff's private rights,
private property interest or private legal interests.
17. This Court rules that plaintiff Taylor is not a person "aggrieved" within the meaning of
G.L. c. 40A, § 17 and, accordingly, he has no standing to pursue his challenge to the Careys'
7
variance in this appeal.
ORDER
For the foregoing reasons, it is hereby ORDERED that the plaintiff's complaint is
DISMISSED due to the plaintiff's lack of standing to pursue this appeal. Accordingly,as the Court
does not have subject matter jurisdiction, it cannot reach the merits in this case and the decision of
the Barnstable Zoning Board of Appeals will remain undisturbed.
Richard F. onnon
Justice of e Superior Court
DATED: November , 2001
r
A true. y,Attest: 8
� � Clerk
V ai Y — ' r
- - Commonwealth of Massachusetts
County of Barnstable
The Superior Court
CIVIL DOCKET#: BACV1998-00722-A
RE: Taylor v Zoning Board of Appeals of the Town of Barnstable et al
TO: Ruth J Weil, Esquire
367 Main Street
New Town Hall
Hyannis, MA 02601
NOTICE OF DOCKET ENTRY
You are hereby notified that on 11/08/2001 the following entry was made on the above
referenced docket:
Findings: of Fact, Rulings of Law and Order of Judgment: It is Ordered that
the plaintiffs complaint is dismissed due to the plaintiffs lack of standing to pursue
this appeal. Accordingly, as the Court does not have subject matter jurisdiction, it
cannot reach the merits in this case and the decision of the Barnstable Zoning Board
of Appeals will remain undisturbed. (Richard F. Connon, Justice)
r
Dated at Barnstable this 14 day of November.
Scott W. Nickerson,
Clerk of the Courts
BY: Nancy N. Weir
Assistant Clerk
Telephone: (508) 375-6684
cvdgeneric 2.wpd 253740 findings irvineji
Town of Barnstable
Planning Department
Staff Report
Appeal Number 1998-120-Carey
Variance to Section 3-1.4(5)Bulk Regulations-Minimum Lot Size and Frontage
Date: October 14, 1998
To: Zoning Board of Appeals
t
From:
Approved By: Robert 0. Schernig, Director
Reviewed By: Art Traczyk, Principal Planner
Drafted By: Alan Twarog, Associate Planner
Petitioners: Paul J.and Jane Carey
Property Address: r-151 School Street,Cotuit
Assessor's-Map/Parcel•—Map 020,Parcel 087
Area: 0.56 acre
Zoning: RF Residential F Zoning District
Groundwater Overlay: AP Aquifer Protection District
Filed:September2, 1998 Hearing:October21, 1998 Decision Due:December 11, 1998
Background:
The property that is the subject of this appeal contains approximately 24,400 sq. ft. of area and
approximately 131 feet of frontage. It is commonly addressed as 151 School Street, Cotuit. The site is
located in a RF Residential F Zoning District which has a minimum lot size requirement of one acre and a
minimum frontage requirement of 150 feet.
The subject lot was created in the 1960s. At that time, the property was zoned RD-2 which had a
minimum lot size requirement of 20,000 sq. ft. and a minimum frontage requirement of 125 feet. In March
of 1973 (ATM 3/29/73, Art. 159), the property was rezoned to an RF District with a minimum lot size of one
acre and a minimum frontage of 150 feet. The subject lot is equal in size to the majority of the lots in this
neighborhood. Most of the lots in this area of Town have already been developed with single-family
dwellings, which abut the property on all sides.
On December 16, 1982, the Zoning Board of Appeals granted Variance No. 1982-81 to allow two
undersized lots under common ownership to be utilized as buildable lots. Lot 86 was already improved
with a single-family dwelling. According to the petitioners' application, the subject property (Lot 87)was
not separated from the adjoining land (Lot 86) by conveyance within one year of the Variance decision
which was not recorded until after the conveyance. The property was conveyed 17 months after Variance
No. 1982-81 was approved and the Variance was not recorded until July of 1984; 18 months after it was
granted.
Chapter 40A of the Massachusetts General Laws states that the rights authorized by a Variance must be
exercised within one year of the date of issuance or such rights shall lapse. It further states that no
Variance shall take effect until a copy of the decision is recorded in the registry of deeds. It appears the
previously approved Variance has lapsed because it was not recorded until 18 months after it was
granted.
The applicant is now seeking a new Variance from the minimum lot size and frontage requirements in
order to re-establish the development rights of the subject property.
I
Town of Barnstable-Planning Department-Staff Report
Appeal Number 1998-120-Carey
Variance to Section 3-1.4(5)Bulk Regulations-Minimum Lot Size and Frontage
Variance Findings:
In consideration for the Variance, the petitioner must substantiate those conditions unique to this property
that justify the granting of the relief being sought. In granting of the Variance the Board must find that:
• unique conditions exist that affect the locus but not the zoning district in which it is located,
• a literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship,
financial or otherwise to the petitioner, and
• the relief may be granted without substantial detriment to the public good and without nullifying or
substantially derogating from the intent or purpose of the Zoning Ordinance.
Attachments; Application Copies: Petitioner/Applicant
Assessor's Map
Plot Plan
Facts and Decision for Appeal No. 1982-81
2
- :...
;THE ZONING RELIEF BEING SOUGHT HAS
" }BEEN DETERMINED BY THE ZONING
t� ,E`:rORCEMENT OFFICER TO
f SEP — 2 of ME;APPROPRIATE RELIEF GIVEN S
clReunIsTANCEs,
- . ABLE
I 70NING BOARD OF APPEAt3 ,3
zoning oar o peals
�.:.; -AAppilbation to Petition for a Variance
Date Received For Office Use only:
Town Clerk Office Appeal # 1�-O(
Hearing Date L -�3i"-
Decision due .,�,:. 1 a
The undersigned hereby appeal to the Zoning Board of Appeals for a
variance from the zoning ordinance, in the manner and for the
reasons hereinafter set forth: `
Petitioner's Name: Paul J. and Jane Carey
Petitioner's Address: c/o Michael D. Ford, Esquire,
P. O. Box 665, W. Harwich, MA.02671
(SO8) 430-1900
Property Location: School Street, Cotuit
Property Owner: Paul J. and Jane Carey
Address of Owner: 16 Brentwood Road, Chelmsford, MA. 01824-1334
If petitioner differs from owner, state nature of interest:
Number of Years Owned: 14+
Assessor's Map/Parcel Number: MaR 20, Parcel 87
Zoning District: RF
Groundwater Overlay District: AP
Variance Requested: Section 3-1.4 (5) Bulk Regulations for RF
Residential District
Cite Section & Title of the Zoning Ordinance
Description of Variance Requested: Variance is requested from
frontage and area requirements of the Zoning Bylaw.
Description of the Reason and/or Need for the Variance: Lot
contains approximately 24,400 square feet and approximately 131
feet of frontage and, therefore, does not meet current
requirements. Prior lot owner received variance (1982-81) but
Building Commissioner has determined that said variance has lapsed.
Petitioner received lot in 1984 as part of family property
distribution after grant of variance by Board of Appeals.
Petitioners have paid taxes on lot for 14 years as buildable
relying onRrior variance decision. Petitioners now desire to sell
the lot but have been advised that the rights granted under the
prior variance decision have lapsed since property was not
separated from adjoining land by conveyance within one year of the
variance decision (conveyance occurred 17 months after variance
became final) and variance was not recorded until after the
conveyance (variance recorded in July of 1984 - 18 months after
grant of variance) . As a result, Petitioners brings this request
for issuance of a new variance.
r
Application to Petition for a Variance
Description of Construction Activity (if applicable) Use of lot for
construction of single-family home.
Existing Level of Development of the Property - Number of
Buildings: None
Present Use(s) : MLA, Gross Floor Area: NIA sq. ft.
Proposed Gross Floor Area to be Added: N/A Altered:
Is this property subject to any other relief (Variance or Special
Permit) from the Zoning Board of Appeals? Yes(X] No [ ]
If Yes, please list appeal numbers or applicant's name Lot
received Variance (1982-81) but Building commissioner has
determined that rights under variance have lapsed. (1982-81,
Petitioner Marcella Gross)
Is the property located in an Historic District? Yes [ ] No [X]
Is the property a Designated Landmark? Yes [ ] No [X]
For Historic Department Use Only:
Not Applicable [ ]
OKH Plan Review Number
Date Approved
Signature:
Have you applied for a building permit? Yes [X] No [ ]
Has the Building Inspector refused a permit? Yes [X] No [ ]
Has determined that rights under prior variance have lapsed.
All applications for a variance which proposes a change in use, new
construction, reconstruction, alterations or expansion, except for
single or 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 following 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.
�1
All proposed development activities, except single and two-
family housing developments, will require five (5) copies of
a proposed site improvement 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: �C
Petitioner or Agent's Signature
Agent's Address: P.O. Box 665. W. Harwich, MA. 02671
Phone: (508) 430-1900
M
c��r CLLRIN
;kBLL. INTOWrN OF BARNSTABLE
Xi JAN 21 PH 2 49 Zoning Board of Appeals
Deed duly recorded in the
Property Owner
County registry of Deeds in Book
Page _ _ _ Registry
Petitioner
District of the Land Court Certificate No.
Book _ Page
Appeal No. __19.B2_fl1 .. __ _ _ Jar uarS' 1982
FACTS and DECISION
s
Marcella G. Gros November 23 82
Petitioner .._.. _... ... ..._.._._.._.._. filed petition on November .
requesting a variance-permit for premises at in the village
(street)
of __ _GiLti L__ ______ adjoining premises of _ _ __ (see attached list)
Locus under consideration: Barnstable Assessor's Map no. .2Q __ lot no.s,_-U & 87
Petition for Special Permit: 0
Application for Variance: [N made under See. of the Town of Barnstable
Zoning by-laws and See. .10...n f__ _ . _.._ _._w_._••._.__ ___ Chapter 40A., Mass. Gen. Laws
for the purpose of _Variangg to allow two undersized lots to be utilized as
Locus is presently zoned in_. Re-A .dellr-96—F._W-ning••_d;L6.:.r1.G•t•► •-- --
Notice of this hearing was given by mail, postage prepaid, to all persons deemed affected and
by publishing in Barnstable Patriot newspaper published in Town of Barnstable a copy of
which is attached to the record of these proceedings filed with Town Clerk.
A public hearing by the Board of Appeals of the Town of Barnstable was held at the Town
Office Building, Hyannis, Mass., at _ 45 _ _X# P.M. ____ December.U 1982
upon said petition under zoning by-laws.
Present at the hearing were the following members:
YRicb.a d T.—My
Acting Chairman
At the conclusion of the hearing, the Board took said petition under a. .sement. A view of the
locus was made by the Board.
Y
Appeal No. 1982-81 - Page ._ 2 ..._._ of
On --Jkx=k t r 16 19 _82.-...., The Board of Appeals found
The petitioner was represented by Attorney Michael D. .Ford who explained
that a variance is sought to allow two lots with insufficient square foot
area to be utilized as buildable lots at School St. , Cotuit in a residence F
zoning district. Each of the two lots would contain approximately one-half
acre and a residence exists on lot #86 as shown on the plan submitted with the
filing. These lots were created in 1969 and zoning in this area changed in 1973
and now requires a minimum lot size of one-acre. The petitioner's lots are
equal in size to the majority of the lots in the neighborhood and the location
of the dwelling on lot #86 with frontage on two streets creates a circumstance
not commonly found in this area. Lot #87 is vacant land and lends itself to being
a separate buildable lot due to the location of the house on lot #86. Hardship
would ensue to the petitioner if these two lots cannot be utilized as separate
buildable lots and there would be neither detriment to the neighborhood nor
derogation of the spirit and intent of the zoning by-laws if the variance relief
is allowed. .
No one spoke in favor of or in objection to the petition and the Board took the
matter under advisement.
The Board voted- unanimously to grant the petitioner variance relief to allow the
maintenance of the dwelling on lot #86. and- the utilization of lot #87 as a
separate buildable lot. The Board found that this property has a shape not
commonly found in the zoning district and the requirements of Sec. 10 of Chapter 40A. ,
Mass. Gen. Laws and Sec. Q. 2(c) of the Barnstable zoning by-laws are met at this
site. The Board found that the majority of the lots in this neighborhood comprise
20,000 sq. ft. and the petitioner's lots would be comparable in size and therefore
would not cause detriment to the neighborhood. The lots shall be as shown on
the plan submitted with the filing and cited as follows:
"Plan of Land in Barnstable (Cotuit) Mass. for Marcella G. Gross
by Charles N. Savery, dated: October 8, 1969."
Clerk of the Town of Barnstable, Barnstable
County, Massachusetts, hereby certify that twenty (20) days have elapsed since the Board of Appeals
rendered its decision in the above entitled petition and that no appeal of said decision has been filed
in the office of the Town Clerk.
Signed and Sealed this day of _.____ _ _ 19 under the pains and
penalties of perjury.
Distribution:—
Property Owner ------- -- --- ---
Town Clerk Board of Appeals
Applicant Town of Barnstable
Persons interested
Building Inspector
Public Information By —
Board of Appeals Chair an
24
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