HomeMy WebLinkAbout0214 SCHOOL STREET � �� ��1�ate/ S-�
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Town of Barnstable
Regulatory Services
Richard V. Scali,Director Y
BARNSTA13M $ Building Division BA�ST�LE
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163q. �� Paul K. Roma 1639-2014
lf0"" s Building Commissioner
200 Main Street, Hyannis, MA 02601
www.town.barnstable.maxs
Office: 508-862-4038 Fax: 508-790-6230
May 15, 2017
Ms. Lisa Mycock, Esquire
766 Falmouth Road
Unit A-9
Mashpee, MA 02649 r
Re: 214 School Street, Cotuit, MA,
Dear Ms. Mycock,
This letter is in response to your correspondence received in this office.on May 12, 2017 regarding'the
above referenced address.
Several errors must be clarified:
1) the address is 214 School St., not 214 Main St., Cotuit as your letter indicates
2) I met with Mr. Kilroy once concerning this subject; there have not been, "...repeated efforts to
` secure approval of the buildability..." from this office
3) as you should know, this office does not give advisory opinions
4) no permit has been applied for; the application would contain a formal letter from an attorney
addressing buildability, not a memorandum.
Should.you have any questions, please do not hesitate to contact this office.
Sincerely,
1yau!.Roma ,.
Building Commissioner
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Town of Barnstable
Regulatory Services
Richard V. Scali,Director N
BAMSTAB Building Division BARNSTABLE
MARS
i639. Paul K. Roma 1639-2024
ix.s
9q,
prf0'" a Building Commissioner WD
200 Main Street, Hyannis, MA 02601
www.town.barnstable.ma.us
Office: 508-862-4038 Fax: 508-790-6230
May 15, 2017
Ms. Lisa Mycock, Esquire
766 Falmouth Road
Unit A-9
Mashpee, MA 02649
Re: 214 School Street, Cotuit, MA_;
Dear Ms. Mycock,
This letter is in response to your correspondence received in this office on May 12, 2017 regardingthe
above:referenced`address.
Several errors must be clarified:
1) the address is 214 School St., not 214 Main St., Cotuit as your letter indicates
2) I met with Mr. Kilroy once concerning this subject; there have not been, "...repeated efforts to
secure approval of the buildability..." from this office
3), as you should know,this office does not give advisory opinions
4) no permit has been applied for; the application would contain a formal letter from an attorney"
addressing buildability, not a memorandum.
Should you have any questions, please do not hesitate to contact this office.
Sincerely,
Paul Roma
Building Commissioner
r
Patricia Mello & Associates, P. C.
ATTORNEYS AT LA W
766 Falmouth Road, Unit A-9 .
MASHPEE, MASSACHUSETTS 02649
PATRICIA J. MELLO, ESQUIRE (508) 4 77-026 7 JENNIFER S. BARTH, ESQUIRE*
AMY B. KULLAR, ESQUIRE FAX (508) 477-2952 MARY M. GAFFNEY, ESQUIRE*
MARGARET G. BARAO, ESQUIRE www.attorneymello.eom LISA E. MYCOCK, ESQUIRE*
*of Counsel
May 5, 2017 J
`z
Mr. Paul Romar
Building Commissioner
Town of Barnstable
200 Main Street
Hyannis, MA 02601
Re: 214 Main Street, Cotuit, MA rr+
Dear Mr. Roma:
I represent Betsey C. Reid and Donald Cabral, the owners of the above-referenced property.
Enclosed please find a Zoning Memorandum prepared by Attorney Bernard T. Kilroy dated
October 17, 2016, setting forth the history of the locus and as well as his position with respect to
the buildability of the property. It is my understanding that despite repeated efforts by Attorney
Kilroy he has been unable to secure approval of the buildability from your office.
My clients secured a buyer for this parcel in September 2016, however, due to the lack of
response by your office, the sale has been unable to move forward. While it is my clients'.
position that the parcel is buildable, the proposed buyers have requested confirmation from the
Town. Please contact either myself or Attorney Kilroy regarding this matter at your earliest
convenience so as to avoid my client's suffering irreparable damage should they lose the buyers,
who have already been more than patient in this matter.
Thank you for your assistance.
Sincerely
isa E. ycock
cc: Betsey Reid
Jeffrey Scudder
Jessica Rapp Grassetti, Town Councilor
James H. Crocker, Jr. Town Councilor
I
ZONING MEMORANDUM
_ October 17, 2016
RE: 214 School Street, Cotuit, MA(shown as Barnstable Assessors Map 20, Lot.67)'the."hocus"
Y"F
HISTORY OF LOCUS: r4�
Locus is shown as LOT 22 on the "Plan of Building Lots at Cotuit For Sale By Chas. L. Gifford" recorded '
with the Barnstable County Registry of Deeds in Plan Book 15, Page 67(the "Plan"). Locust's currently in
a Residence RF zone and two acre overlay district.
Anthony L. Cabral and Dorothy D. Cabral acquired title to Locus and adjoining Lot 20, as shown on the
Plan, by deed from James C. Lane dated June 7, 1955 and recorded with said Deeds in Book 926, page
346.
j The Cabrals conveyed Locus and Lot 20 to Anthony L. Cabral b deed dated Februar 13 1973 and
Y Y ,
recorded in Book 1808, Page 167.
Anthony L. Cabral obtained a decision for a variance from the frontage requirement under the Town
Zoning ByLaw from the Barnstable Zoning Board of Appeals for both Locus and Lot 20 (Case No. 1973-
100)which decision was recorded with said Deeds in Book 2270, Page 145. According to the decision,
both Locus and Lot 20 met or could have met all other dimensional requirements of the Zoning ByLaw.
The end result of the decision was that Locus became a buildable lot for single family use.
Anthony L. Cabral conveyed Lot 20 to Franklin H. Nickerson,Jr. by deed.dated December 3, 1975 and
recorded with said Deeds in Book 2270, Page 146.
Anthony L. Cabral conveyed Locus to the current owners, Betsey C. Reid and Donald Cabral, reserving a
life estate in Locus to himself, by deed dated June 1, 2009 and recorded with said Deeds in Book 23834,
Page 29.
This falls squarely under the holding in the case of Hogan v. Hayes, 19 Mass.App. Ct. 399, 474 NE2d
1158. In that case,the owner of two adjoining lots, on one of which there was located an house and
garage and the other was vacant and both of which were undersize and lacked the required frontage.
The owner obtained a variance in 1974 from both the area and frontage requirement and to erect a
single family house on the vacant lot. She then sold the lot with the house and garage in 1975 to the
Hogans and the vacant lot in 1982 to the Hayes. The Hayes obtained a building permit in 1983 to build
on the.vacant lot and the Hogans appealed the issuance of the permit based on the theory that it had
lapsed due to the failure to timely exercise the rights granted thereunder.
The Court found, as is the case here,that the sale of the improved lot was sufficient exercise but also
that variances issued in 1974 had no time limit for their exersize.
In my view, even in the face of more restrictive zoning requirements, the Locus was given.the relief to
allow the building of a residence thereon and is insulated from the upgraded zoning requirements and is
therefore buildable for single family residence use so long as all dimensional requirements, save for
'3 frontage in existence at the time of the granting of the variance are met. In addition, it has been the
practice of the Town to give insulation from upgraded zoning to lots which have been given the benefit
of indefinite buildability life where, as is the case here, there has been active exercise of the rights
grated u der he variance in a timely manner.
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S , f /�
Bernad . Kil oy
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BUILDIH G LOTS AT COTUIT-FOR SALE By
C,1,21 tL-7 I-L7
7,........
Lots notnumbEred arp not included in this record
f I, James C. Lane,.married to .Stella"6. Lines. of Barnstable (Cotuit)
3 416
Barnstable County, Massachusetts;
, for consideration paid,grant to Anthony L. Cabral and Dorothy D. Cabral,
husband and wife, tenants by the entirety, both
Of said Cotuit, Barnstable County, Massachusetts with *ftlagq rni Mauls
J
the land in-said Cotuit, together with the buildings thereon, bounded:
(Description and antnmhcmms,if my)
A certain parcel of land with .the buildings thereon, situate in the
Southwesterly part of the Town of Barnstable, in that part of the Village
Of Cotuit formerly called Quimaquissett, and being Lot No. 20 and 22.-on a
"Plan of Building Lots for sale by Charles L. Gifford",• surveyed by E. C.
Bourne in May 1920, said plan being recorded with Barnstable County Registry
of Deeds.
Said Lot No. 20 is bounded and described as follows:
On the North by Lewis Pond, one hundred (100) feet; On the East by Lot No.
18 on said plan or land now .o. .formerly of A. C. Savery, two hundred ten
(210) feet; On the South by Quimaquissett Avenue, now called School Street,
one hundred (100) feet; and, .On the West by Lot No, 22 on said plan or land
now or formerly of S. F. Crocker, two hundred ten'(210) feet.
Said Lot No. 22 is bounded and 'described as follows:
On the North by Lewis Pond about one hundred (100) feet; On the East by
land now or formerly of William H. .Jones, deceased, two hundred ten (210)
feet; On the South by Quimaquisett Avenue, so-called, one hundred (100)
feet; and, On the West by land now or formerly of Charles L. Gifford,
about two hundred fifty (250) feet,.
Being the same premises conveyed to me by deed of Norma L. Sims dated
April 5T 1950 recorded with Barnstable County Registry of Deeds in Book.
749, Page.165.
I, Stella S. Lane, H of said grantor,
wife
release to said grantee all rights of dower and homestead and other interests therein.
311Uwas....QW........hands and seals tlus...q,wt. :. ......day of.........LT. e...::... .�r.�....�1i�15.�:
.. . . ... ....... ...../......� ....................
. ..
............_...................................................
................................................................................ ........._............. ...:...............................................
• '-('7J11e fllmtmdruuralifl rif• ils
Barnstable ss: ,
June ? ?9 55.
Then personally appearedithe above,named James d: Lane
and acknowledged the foregoing instrument to,be his free act and deed, before me.
. . . .
...................
OE
Murray G. Marble)!.' Not"TPnhfic—y¢
r'roi ton 6wtl September 16, 1961
77
.
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Barnstable, ss., Received November 14, 1955, and is recorded.
G.I.LOAN
We, Anthony L. Cabral and Dorothy D. Cabral,. husband and wife, as tenants by the entirety,
' both
.3 of ._Cotuit� Barnstable
County,Massachusetts,
for consideration paid,grant to the
WORKINGMENS CO-OPERATIVE BANK
situated in Boston, Suffolk County, Massachusetts with MORTGAGE COVENANTS, to secure the payment
`U of ...--_.._...—__......_...__.._....._..
'' -'----.�__..._SEylp'tl..._'`HJUgAND.._FtJ.UR._H[TiVDRE➢._�Z:�00.00)._ --
_...._.__.....__..,_..__...._ Dollars
with interest thereon,payable in fixed monthly installments on
each month hereafter,which payments shall first be applied to interest then due and the balance thereof remaining
applied to principal;the interest to be computed monthly in advance on the unpaid balance,
with the right to make additional payments .
on account of said principal sum at any time,except as set forth below;and subject to changes,from time to time
as provided by General Laws,Chapter 170,,Section 24,Sub-section 8,as amended,
all as provided in--..__-otu' ...—___•--•—.-rote of even date,and such further sums as may be advanced by
` the grantee under General Laws, Chapter 183,Sections 28A,as amended,the land with the buildings thereon,
situated in Cotuit, Barnstable County, Massachusetts, on Charles L. Gifford Plan,
duly recorded with 3arristable Deeds, Plan Book 26, Plan 79 bounded and described
as follows:
NORTH3RLY by Lewis Pond, one hundred (100) feet;
EASTERLY by Lot #18 on land now or formerly of A. C. Savery, two hundred and,
ter'-(210.GO)•fbet;
t SOUTIERLY by Guinaquissut Avenue, so called, one hundred (100) feet; .
STERLY by Lot #22 on land now or formerly of S. F. Archer, two hundred and
t.erf- (210.00) feet,
Said Lot is Lot number 20 on said plan.
€ ALSO another parcel of land situated'in Cotuit, being Lot #22 bounded and described
as ollosrs;
` KliTIi—ERLY by Lewis Pond, one hundred (100) feet, more or less;
EASTERLY by Lan! now or formerly of Mrs. H. Jones, deceased, two hundred and
'? ten (210). set;
SOUTHERLY by Guinaquissut Avenue, so cal7e d, one hundred (100) feet;
HESTERLY by ]and now or formerly of Charles L. Gifford,about two hundred and
fifty (250) _set.
i
For reference to title see.deed to be recorded herewith.
j
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al?CiWiISE, gtfiK 9
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BUON18U8 FAU 10
`# We, ANTHONY L. CABRAL and DOROTHY D. CABRAL, DmcttQttiwgtxotaootx 1dw,
l�i�Fl+F3FtAi�XlAfOf�iFf►°x�i1C�cJo�OCItDt
s
of Cotuit, Barnstable County, Massachusetts
;s County,Massachusetts, i
IWNip61fM7G INA for tlmdoll consideration s6c paid
s
grant to ANTHONY L. CABRAL
School Street, in
of / said Cotuit, Barnstable County, Massachusetts
with giAtclatpt ifuu l nU the land in said Cotuit, together with the buildings
thereon, bounded:
A certain parcel of land with the buildings thereon, situate in
the Southwesterly part of the Town of Barnstable, in that part of the
Village of Cotuit formerly called Quimaquissett, and being Lot No. 20
and 22 on a "Plan of Building Lots for sale by Charles L. Gifford",
surveyed by E. C. Bourne in May 1920, said plan being recorded with
Barnstable County Registry of Deeds.
Said Lot No. 20 is bounded and described as follows:
On the North by Lewis Ponds one.-hundred (100) feet; On the East by
Lot No. 18 on said plan or land now or.formerly of A. C. Savery, two
hundred ten (210) feet; On the South by puimaquissett Avenue, now
called School Street, one hundred (100) feet; and, On the West by
s Lot No. 22 on said plan or land now or formerly of S. F. Crocker, two
_ hundred ten (210) feet.
Said Lot No. 22 is bounded and described as follows:
On the North by Lewis Pond about one hundred (100) feet; On the East
by land now.or formerly of William H. Jones, deceased, two hundred
ten (210) feet; On the South by puimaquissett Avenue, so-called, one
hundred (100) feet; and, On the West by land now or formerly of
V Charles L. Gifford, about two hundred fifty (250) feet.
For title see deed to us from James C. Lane dated June 7, 1955 and
recorded in Barnstable County Registry of Deeds in Book 926 Page 346.
Consideration for this conveyance is less than $100.00.
Excouted as a scaled Instrument this 1J 4 day of edev-4-y 1
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SIR comnuaamndo of AW M*Wft
;t Barnstable
Then personally appeared the above named jpAbftt%Vbc0Zt Dorothy D. Cabral
j
and acknowledged the foregoing Instrument to be her a act sod ee 1,
/a�� E
Bofm me, Notary Public
f rturn r rq' C ��/roc K
My commission expires
RECORDED FES 21 I'll
fsc r.2270 fa_ 145
THE COMMONWEALTH OF MASSACHUSETTS - ^^O��
TOWN OF BARNSTABLE 2(b
BOARD OF APPEALS
it .........Mw 22.......................................19 74
NOTICE OF VARIANCE
Conditional or Limited Variance or Special Permit
(General Lnwe Chni ter 40A,8-tlon 18 as emended) .
Notice is hereby given that a Conditional or Limited Variance or Special Permit has been granted
To................................
..............................Anthony L. Cabral
...................................................•----.........................
o,raer at Petitioner
` Address............................Sohool Street
.........................................
City or Town.... Cotuit,.........
Massachusetts
......................11"..20..Lot..6.7..1A..AsassaAx.!a.iecvrsla.............-.................
3 ldeetitr Lend Atreeted ...........................
.................................................................................................:
by the Town of Barnstable. Board of Appeals affecting the rights of the owner with
` respect to the use of premises oil....School.,Stxsat,...Cotuit.....................................................
Street Car or Town
the record title standing in the name of
'9 .......................................... L. Cabral.
...............
School Street, Cotuit, Massachusetta
whose address is, ... ..............................................................
" .......................................
ect City or Town Slate ,
by a deed duly recorded in the..Ba=e..tatIl;....•_•..........County Registry of Deeds in Book
9.26...... Page... 46....--.. ...
.. Registry District of the Land Court
Certificate No.................................Book.................Page................
The decision:of said Board is on file with the papers in Decision or Case No...197}100
in the office of the Town Clerk of the Town of Barnstable,
Signed this...22nd.day of........May.............. ................1974
Board of Appeals: (�
.............\--- -�.�..:.......-- ...Chairman
-� Noara of ADreue
............�.. .............................................................Clerk
,hoard of Appeals
................................................19........ at..............o'clock and................................minutes....M. -
Received and entered with the Register of Deeds in the County of...........................................
Book........................Page........................
ATTEST .
..........................................................................
Register of Deeds
Notice to be recorded by Petitioner
�Ec� uiD DEC j is
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('r.l• ',nrb, j't t t )J,
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'fit the couclusiou of tl.ie heariu;;, the Board took said petition under
adviscnic.iit- A view of the loco.,; was had by the Board.
j
On ............PAS.r'LA....24................................. ........... 1-9 ..7k , the Board of
.1 ,Appeals found
The Petitioner, Anthony Cabral, seel.s a varikn.ce front
intensity Section ,T, Appendix A,
Regulations in %esid.e:Ace Districts, Barnstable Zoning by-Law as
revised AU, t 24, 1973, .to perMi� con struction of a small house on a lot
with insufficient frontage at School Street, Cotuit, in� an R�2 Zoning District.
'The Petitioner represented himself and stated that lots 20 and 22 on the plan
subraitt4d had been purchased as - o, separate lots in 1955 and lot 22 has a
house on it of 6z to 7 rooms, vi ich is too large for one person; that the Petitioner
dishes to build a smaller house. on lot 20, which has adequate sgaare footage, but
only 110' frontage, where 125' are required; .that the proposed house would be of
a modular type and set back further from the road than is the house or lot 22;
that most of the houses in the area are on lots of the same or
square footage and that the area of the two lots combined is 9 acre.,6 acrecsser frontage and/or
.
The Board found that the Petitioner' s deed states the e;cistance of two separate
IDt^ -av over e
,, that both of these lots he the r.,inimu,� square footage. the Board
found that it would be a hardship as defined in Chapter 40A of the Massachusetts
General laws Ter. Ed. 40A as amended to deny the Petitioner use of these two lots;
`+ that these two lots are unique in as much as they are the only ones in the area
with this status; that the issuance of this variance will not be in derogation
of ;the Barnstable Zoning By-Law nor detrimental to the public good. Therefore,,
the Board voted unanimously to grant this variance.
a
Restrictions imposed
i
Distribution:—
Board of ApiSeals
Town Clerk Town of Barnstable
i
Applicant
Persons interested
Building Auspectox
a
Publie Tnfo.mn.t.imi i
t i.,, i!.� �,. ,G ✓�C
book 2270 ra�F 146
260'7P2
I; ANTHONY L. CABRAL, individually,
of School Street, Cotuit, Barnstable
in consideration of THIRTY—FIVE THOUSAND FIVE HUNDRED AND 00 100 in
-----------
($35,500.00) DOLLARS,
grant to FRANKLIN H. MICHELSEN, JR., individually,
of 26 Skunknet Road, Centerville, Barnstable County, Massachusetts,
the land in Cotuit, Barnstable County, Massachusetts, with
iARPtI8tIt8
buildings thereof, bounded and described as follows:
Being a certain parcel of land with the buildings thereon,
situate in the Southwesterly part of the Town.of Barnstable, in that
part of the Village of Cotuit formerly called Quimaquissett; and
being LOT NO. 20 on a "Plan of Building Lots for sale by Charles
L. Gifford", surveyed by E. C. Bourne in May, 1902, said Clan
:i being recorded with the Barnstable County Registry of Dee
Book 15, Page 67. as in Plan
Said Lot No. 20 is bounded and described as follows:
On the North by Lewis Pond, one hundred (100) feet;
On the East by Lot No. 18 on said plan of land now or formerly
Of A. C. Savery, two hundred ten (210) feet;
:E On the South by Quimaquissett Avenue, now called School
Street, one hundred (100) feet; and
On the West by Lot No. 22 on said plan of land now or
s
formerly of S. F. Crocker, two hundred ten (210) feet..
-! For my title, see deed of Anthony L. Cabral and Dorothy D.
Cabral to me, dated February 13, 1973, and recorded with the
Barnstable County Registry of Deeds in Book 1808, Page 167.
xecuted as a sealed instrument this . day .y of
.a 1975
C ONWEALTH OF�1.�1A;SASC,HUSETTS C B
hDSiY — A�j
{ -776 8 0. 9 4- -
m
Ol(e 00mtnnmot all4 of Aaaewrl)MUM
BARNSTABLE, .
ys. -- 3 r1975
Then personally appeared the above named ANTHONY L. CABRAL
t
and acknowledged the foregoing instrument to I)e his free act and deed,
Before me, [_ .�
. C-at i., . 6 /i'� s Nt Nnfary .
My commission expires IV G tf- 9 10 9
flEl;GiUEfl DEC 3.75
'4
Property Location: 67 School Street, Cotuit, MA
Title not examined
,j
QUITCLAIM DEED
1, Anthony L. Cabral of 29 West. Main Street, Apartment #117, Massachusetts,
02601
' for consideration of less than Ten($10.00)Dollars,
grant to Betsey C. Reid of P.O. Box 145, Cotuit, Massachusetts 02635-0145 and
Donald Cabral of P.O, Box 6040, Corona, California 92878-6040, as Tenants in
Common,
with'QUITCLAIM COVENANTS, that certain lot or parcel of land,together with
the buildings thereon, in.Barnstable (Cotuit), Barnstable County, Massachusetts,
bounded and described as follows:
A certain parcel of land with the buildings thereon, situate in the
Southwesterly part of the Town of Barnstable,.in that part of the Village of Cotuit
formerly called Quimaquissett, and being Lot No. 22 on a "Plan of Building Lots
for sale by Charles L. Gifford", surveyed by E. C. Bourne in May 1920, said plan
recorded with the Barnstable County Registry of Deeds in Plan Book 15, Page 67.
J \ ,
Said Lot No. 22 is bounded and described as follows;
On the North by Lewis Pond about one hundred (100) feet;
On the East by Iand now or formerly of William H. Jones, deceased, two
hundred ten(210) feet;
Prepared by.the Law Office of Patricia J.Mello,P.C.
766 Falmouth Road,Mashpee,MA 02649
508-477-0267
1
i
SPKLEH
Bk 23834 Pg 30 #36447
On the South by Quimaquissett Avenue, so-called, one hundred(100) feet;
; and,
On the West by land now or formerly of Charles L. Gifford, about two
hundred fifty (250)feet.
The Grantor reserves a life estate in the above referenced property.
The Grantor reserves the power to appoint the premises, or any portion thereof,
outright or upon trusts,conditions, or limitations, to any one or more of the issue
of the Grantor or the spouses or surviving spouse of any of the foregoing persons.
The Grantor shall not exercise this power in favor of himself or his spouse. This
power shall be exercisable during the lifetime of the Grantor by deed making
' express reference to this power and executed and recorded prior to the death of the
Grantor. A release of the power reserved and granted hereunder, in whole or in
part, shall be effective when registered with the Barnstable County Registry
District. Any lifetime exercise or release of the foregoing power may be made by
an attorney in fact acting under�a durable power of attorney. No exercise of this
appointment shall be deemed to release a Grantor's life estate unless such a
release is explicitly made. The exercise of this power shall not exhaust it and the
deed recorded last shall control as to any ambiguities or inconsistencies, No
notice to, or assent by, the Grantees herein or their assigns shall be necessary in
connection with any exercise of the rights retained by the Grantor herein.
Subject to any and all existing restrictions and encumbrances still in force and
effect.
For Grantor's title see Deed of Anthony L. Cabral recorded with said Registry of
Deeds at Book 1808, Page 167.
WITNESS my hand and seal this I"day of June 2009,
Anthony L. Ca al
Prepared by the Law Office of Patricia J.Mello,P.C.
766 Falmouth Road,Mashpee,MA 02649
508-477.0267
2
SPKLEH
i
Bk 23834 Pg 31 #36447
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss
On this I" day of June 2009,before me,the undersigned notary public, personally
appeared Anthony L. Cabral, proved to me through satisfactory evidence of
identification, which was personal knowledge of identity, to be the person whose
name is signed on the preceding or attached document, and acknowledged to me
that he signed it voluntarily for its stated purpose.
.X
j
4 ,
IISA E.MYCOCK
I" Notary Aubk
Commonwealth of Massachusetts
Mr Commission Exptfes Mar 26,2010
{
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Prepared by the Law Office of Patricia J.Mello,P.C.
766 Falmouth Road,Mashpee;MA 02649
508-477-0267
3
SPKLEH
BARNSTABLE REGISTRY OF DEEDS
s
Commonwealth of Massachusetts
{ III III IIIII II III * Registry of V.rtal Records and Statistics StateFi(e# 2016 012609
a,
¢ sLL CERTIFICATE OF DEATH
52 1 Registered# 44
a Form R-301 08012015
Place ofDeath ROYAL OF COTUIT,MASHPEE, MA
Date ofDeath MARCH 18,2016 Age 98 YRS Sex MALE
CurrentiVame CABRAL , ANTHONY L:
Surname atBirth orAdoption CABRAL
s
AKA
F Birthplace BARNSTABLE, MASSACHUSETTS
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5
c Residence 126LEWIS POND ROAD,BARNSTABLE, MASS ACHUSETTS02635
U Race Education
0
ATE HIGH SCHOOLGRADUATE ORGED
Marital Status 'OccupationAndustry
DIVORCED SALESMAN/FOOD
Last Spouse.—Last,First,Middle(Surname a t Birth o rAdoption) Decedent:US.Veteran(Most Recent)
CABRAL DOROTHY(DOTTRMGE) WWII
`4 Moth er/Parent Name—Last,First Middle(Surname otBirthorAdoption) Birthplace
CABRAL, MARY (LUIS) PORTUGAL
Father/ParentName—Last,First llfiddle(SurnameotBirth orAdoption) Birthplace
CABRAL, MANUEL. (CABRAL) PORTUGAL
PartL Cause qfDeath—Sequentially list im mediate cause th en antecedent causes then underlying ca use Interval bemzen onset middeath
a.Immediate Cause(Final conditionresnhme in death)
RESPIRATORY FAILURE SEVERAL DAYS
b.Due to or as aconsequence of-.. -
; PNEUMONIA SEVERAL DAYS
c.Due to or as a conseguence of'.
F CHRONIC CONGESTIVE HEART FAILURE SEVERAL MOS.
w d.Due to or as a cousegueuce of.
m
U
< Part lLOthersignificant con dttionseontributingto death bta not resulting inunderlyingcause MonnerofDeath:
ANEMIA NATURAL
HYPERTENSION
DENJEE/TIA TimeofDeath: 09:50 PM
Resultoflnjury: NO
Certifier•.WILLIAM C.BO.WERS,MI) Lie# 52640
Addr. 2 JAN SEBASTIAN DRIVE, SANDWICH,MASSACHUSETTS 02563
Funeral Licensee/Designee WILLIAM B.CHAPMAN,JR Lic# 50359
o Facility/Addy. JOHN-LAWRENCE FUNERAL, HOME,BARNSTABLE, "SACHUSETTS
F ImmedfateDisposition CREMATION
o Date oflmmediateDisposition MARCH 23,2016
Place/Address
z ° DUXBURY CREMATORY, 150 MAYFLOWER STREET,
DUXBURY, MASSACHUSETTS 02332
+ Date ofReeord MARCH 23,2016
Date CLERK, TOWN OFMASHPEE
r _
E
f
11
1
I;the undersigned;hereby certifir that I am the Town Clerk for the Town of Barnstable that,as:—11.J hm'e custody of the records of births,marriages
and deaths,required by law to be kept In my office;and I do hereby certify that the above is a true cony from said records.
WITNESS:My hand and the SEAL OF THE TOWN OF BARNSTABLE
A TRUE COPY ATTEST:at Barnstable,Massachusetts /
Ann M.Quirk,Town Clerk, Barnstable
(If the Seal is not raised,this document has been illegally copied—*do not accept it.)
Roma, Paul
To: bkilroy@comcast.net
Subject: .172 Millway, Barnstable; 214 School, Cotuit
i Bernie,
I believe 172 Millway, Barnstable, meets the requirements of a buildable lot. However, I would suggest you contact the
Barnstable Fire Department(Deputy Chief Peter Burke)to confirm that a 12' ROW is sufficiently wide for FP access.
1 believe 214 School Street, Cotuit, needs ZBA relief before a building permit could be issued for that address.
If you have any.questions, or need something more formal than this e-mail,-please do not hesitate to contact this office.
Thanks,
Paul
'c
e
1
KILROY& WARREN,P.C.
ATTORNEYS AT LAW
THE ISAAC P. FAIRFIELD HOUSE
.67 SCHOOL STREET
BERNARD T. KILROY P.O.'BOX 960
HYANNIS, MASSACHUSETTS 02601-0960
TELEPHONE (508).771-6900
TELEFAX (508) 775-7526 '.
E-MAIL:bkilroy@comcast.net
February 3, 2017
Town of Barnstable ,
200 Main Street
Hyannis,MA 02601
Attention: Mr.Paul Roma,.Building Commissioner:
Re: Property att214 School Street, Cotuit
Dear Mr. Roma:
The property is.currently shown.as LOT 20 on a plan dated May.2, 1902 and recorded
in Plan Book 15, Page 67. Enclosed are a copy of the plan and assessors' map
The property and the adjoining LOT 22 were the subject of a frontage variance granted,
P P Y J g
by the Board of Appeals on May 22, 1974 and recorded on December 3, 1975 in Book
2270, Page 143 along with a deed of LOT 22 by the recipient of the variance.
The variance decision finds that the two lots commonly owned by the applicant met all
dimensional requirements save for frontage and gave relief from the frontage,
requirement. The Board found that the combined lots had a-total-of.96 acres of land
and that the lots were in an RD-2 zoning district.
I had prepared an opinion of buildability for my client based on the decision and on the
case of Hogan v. Hayes, concluding that the lot could be built upon.
However, I have discovered that the zoning in Cotuit changed to RF under Art. 159 of
the March 29, 1973 Town Meeting.
My question is whether,under the provisions of section 240-91.B. Common Lot
Protection of our Bylaw,LOT 20 remains buildable.
Copies of the variance decision, deed of LOT 22 and my zoning memo are enclosed.
Respectfully submitted ,
dernardT. Kilroy
e d.
bea2270 ra 145
THE COMMONWEALTH.roOF MA98AGHU6ETT9 - -.L _ 26071 -,
TOµ'N OF BARNSTABLE .. -
BOARD OF APPEALS -
........May.-22 ........ --.19 74 .
NOTICE,OF VARIANCE
Conditional or Limited Variance or Special Permit
- (Generet 1awe Chapter 40A,S—tlnn 18 ae emtaded) - -Notice,is.-hereby given that a Conditional or.Limited Variance or Special Permit has.been granted
To Anthony.L:'Cabral
...._... ...--- •-----. --..... .............................................
•. O or Pet t _____
School Street
Address..............-.......
.. ----- ----_- ------ --------
City or Town Cotuit, Massachusetts
.......................... ----------------------- -
......................I7aD__20_-Lot 6Z_l:n:_A seasA;r.1. ieourd$. --
idmfifr'1.and"AReeted - ________________.
by the Town of Barnstable. Board of Appeals affecting the rights of the owner with
respect to the use of premises on----Schonl.Stmeat,.--Catutt ................
6treat - City,or Town the record title standing in the name of
..-_...........................'Anthony L. Cabral
........ .............. -. ..---
School Stet, Cotuit, Massachusetts` -whose address is.................. re re-•--
stRn
by a deed duly recorded in the..Baz•AOUAD:_..................County Registry of Deeds in Book '
926_..... page...346._.-_._, •--- Registry District of the Land Court
Certificate No................. •--------------Boot. Page----
The decision of said Board is.on`file with the papers in Decision or Case No..19/3 10U
.-_.
in the office of the Town Clerk of the Town of Barnstable.
Signed this. 22nd.......day of.....:.. y 1974
Board of Appeals:
.. Chairman
• _ Noare of APDe
------ _i•----- -.___.._ .._Clerk
---Board of Appeals_ - - - -
----------------------------- --------19........ at .o'clock and -.---_.-_:minutes ....M.
Received and entered with the Register of.Deeds in the County of------------ ..............
._--_.--__:_ ----
Book.....................:..Page-----
• ------
ATTESr
........................ --------•---------- ---•---- ••-----
Register of Deeds
Notice to be recorded by Petitioner
kEL�nDCC DEC. J ZS
s
< "OV Z OF A NS` A I,E
Bard of Ag peals
AnthoTv L. Cabral
......... ........ ......... ................ _. __....._.
Petitioner
Appeal No. ,.. 1973�1 GO 22_ . ..: ._......_ _. ........ ......_.......... 19 f
FANS and DECISION
Petitioner �'tEe�� L. a�«���� `eec. 26 771
......... filed .petition on
..... ......... _ 19 ,
request nj a 'variavc for premises at : :a�:�o1:..�:��°�.�a.. .........................: Street, in the village
of _.......C� .................... .......:..; adjoining.premises of.... _......................................................
4rthur W. & Patricia A. Anderson;- Hazel L. Barrow; Robert E. & Sally E. Bernard; Barry. R. Bird;
Lawrence & Mary M. Bjork; .Frederick H. & Paula M. .Boden;, Raymond W. & Viola M. Bradford;
Jordon M. & Edith C. Browne, Jr. ; Helen .E. Burlingame; Roger A. & Elizabeth H. Burlingame;
3. Edgar & Dorthea E. Burnside; Buzzards Bay Gas Co. ;. William E.. &.Nancy Ruth Cash; Henry J. &
gary C. Cha.ndonait; Eleanor. M. Childs; D. Emerson& Doris E. Coleman; Henry `E. & Mary M. Cook;
Irthur C. & Catherine P. Crawford; Nicholas J. -& Eleanor K. DERosa; E. ;Murtaugh Dolliff; T,,eo
�. Fair; Olive L. Farmer; Francis W. & Bertha E... Gifford; Ruthanne Gruber; Marcella. G. Gross;
3ridget E. Harlow; Elizabeth C.. ,Hayden; John 0. &' .Catherine M. Heler; .Lollie B. & Olive J. .
iendrix; Norman & Diane F. Fioppensteadt; Elizabeth A. Kenna; .George'W. & Elizabeth A. Kenna;
;rnest W. Kitchen; Melissa H.' Lindquidt; Jeremiah J. &.Anne M. Mahoney;. Robert R. & Grace C.
ZcNutt; David.;W. &,,Rose E. Mehalko; Preston H. , Jr; & Marion P.. Morris; 'Julius H: Mueller;.'
'eter C. &,-Agnes C Murray; Brenda C. Nailor; Alfred L. & 'Phyllis' W. Nickerson; Donald F.
udith Nickerson; Harry B. :& Mary Nickerson; `Theodore W. & Gail Nickerson; Elmiro: A.' &
,lizabeth N. Oliva; Natalie P. Parker; Matthew F. & Dorothy E. . P.ells; Holdegarde L.. Peterson;'
ohn Edwin &,Rebecca S. Peterson; Carl A. &'Aurelia D. Petronio'; Donald L. & Joyce M. Porter;
:enneth W. & Elizabeth J. Porter;. -Josephone E. Power; .Proctro &'Eva T. Ransden; Manuel H.
Marion D.., Rebello; Roger B. A Betsey C.. Reid; William.H. Robbins; John E. &.Mar e,.E Roberts; .
'lorence H Ryder; Myron D. •& Kathryn K. Ryder; .Charle.s.N., °Savery; Helen P.. Seudder; Costas
,ethares; . Jacqueline H. Sh.aps; Charles B.. Showell; Albert M. &, Helen B. Smith; Roland-M. &
lorothy S. Smith; Herbert ;L. 'Snow; Hugh V. & Marie S. Steele; Donald Stephen; Timothy C & 4 .
atherine F. Sullivan; Paul A.:& Natalie B. Taylor; Manuel 0.- & Margaret.A. .Vieiro; Arvi -& .
nna L. Vilho;, Alexander Walcott; Allen B. , Jr. & Cheryl. N. Williams.
Josej it ... 'Wi.11 ia;ns ,parY Pmxi P.
Strayer Ga -0 _rm tit TtbcZC:
_.....................................Chairman ............... .................................._
J
ree
At•the:' conclusion`of the uhearing, the Board' took` said petztiori' under
advisement. A..view of.,`the locna .was had..by the::.Board ,
:On ..........�P.r..1, ..... 19 7 ..., the Board.of
_.
Appeals found' 7,,
The Petitioner, Anthony Cabral, :.seals a �eezio Tq Appendix A,n
Intensity-Regulations .in Residence e Districts, - �
e ices, �arnstab.Le Zoning By Lair as
rev sed August 24. . 9 3, -to� Permit construction .of a. mall' :House on'_a. lot
Ulita insi f"icient. f rontagq at Sohool•Straet, Cotuit, In .an RD-2. Zoning" Dist_ric.i,..
s
Th,t Petitioner represented himself .a .d stated that lots 20. and 22 on the plan
oKbm;fled'?, d been .;arcLa:sed as two, Separa:te lots in.i 955 and lot 22 has a
, E'; to: ; ._0011S, taThs:Ch iS :too :large for one 'person;' tha
house on :i t of t the Petitioner.
wishes to build a ,s-mall er house_ .on lot. 20, whi'ch has adequate square footage:, but
only-11af fray'tape, Where 125' are r6quired°, that the proposed.-house would be of
a Modular type e and, set back further,from the road: than, is the house on lot :22;
that -most of t7_e houses i:n'tn , 1 r . _
- - r a area are on a is of the same or _ esser� �roritage aszr,.,or
souare footage and that tie ar.ee ,of tie` two lots combined is .96 -acres. ..
The Board found. ths.t the_Petitioner' s' deed states the :exist anee of pro separate
bts; that bath .of these .lots have. over the `min,un m .square footage. The. Board
found that it wyoul d be `d hardship as. defined :i✓n'Cha-oter GA-of t�se ''a.ssa:chi setts
General laws-Ter. Ed. YiJA as- cn.0 ded to dexizT tlhe�Petitioner° .use of these two lots
that tk_iese two lots are unique in as much as they are the onl7 ones in the area
�ffit i u.. is status; that 'the i SSA ande of �1]1S"Val1 13Ce. T,7i11 not be ,in derogation
of the E)amstable Zoniag.-'By-_T at�T.:nor detrimental to t'�e public good, Therefore,
the Board ZTc fed � nas roual y to grant tl;s era fence a
Restrictions imposed
Distribution — . Board of Appeals
Town Clerk Town_of'$arnstable ,
Applicant
Persons 'interested ' j
~ Building Inspector
Public Information By ���
Board of Appeals C
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Map printed on: n/7/2o16 This map is for illustration purposes only.It is not Parcel lines shown on this map are only graphic Town of.Barnstable GIS Unit
adequate for legal boundary determination or representations of Assessor's tax parcels.They are
Feet regulatory interpretation.This map does not represent not true property boundaries and do not represent 367 Main Street,I4yannis,MA 026ot
O 167 333 an on-the-ground survey.It may be generalized,may not accurate relationships to physical objects on the map 5o8-862-4624
reflect current conditions,and may contain such as building locations.
Approx.Scale: 1 inch = ,167 feet cartographic errors or omissions. gis@towtl.barnstable.ma.us
ZONING MEMORANDUM:
October 17 2016
:RE: 214 School Street, Cotuit,MA(shown as'Barnstable Assessors Map 20., Lot 67 and Lot 20 on the
":Plan of Building.Lots'at Cotuit for Sale'By.Chas. L..Gifford" recorded with the Barnstable�Coufit'
Registry-of Deeds:in Plan Book 15,,Rage 67(the "Plan")-the "Locus
`HISTORY OF LOCUS:
Locus is shown:as,LOT20_on the Plan and Focus is currently in a Residence RF:zone and two acre,overlay
district.
Anthony-L.-Cabral and Dorothy D. Cabral.acquired title to'tocus and. adjoining:Lot�22, as shown on the
Plan, by deed from,Jame' s C. Lane dated June 7, 1955 and recorded with said Deeds in:Book 926, page
346:.
The_Cabrals conveyed Locus and Lot 22 to Anthony L. Cabral by deed dated;February.13, 1973 and
recorded in Book 1808., Page 167.
4.
Anthony L. Cabral obtained a decision-for a variance from the frontage requirement-under.the Town
Zoning ByLaw from the Barnstable Zoning,Board of Appeals for both Locus and Lot 22 (Ca se'No. 1973-
100) which decision was recorded With-said Deeds' in Book 2270, Page 145. According to the decision,
both Locus and Lot 22 met or could'have met all other dimensional requirements of the Zoning ByLaw.
The'end,result of the decision'was that Locus became a"buildable lot.for single family'use
r. Anthony L. Cabral conveyed Lot 22 to Franklin'H: Nickerson,Jr..by'deed'dated December 3, 1975 and
recorded with said Deeds in'Book 227.0, Page 146..
Anthony L. Cabral conveyed Locus to:the current-owners`Betsey.(. Reid and Donald Cabral, reserving a
life estate in'Locus to.himself, by deed dated June 1, 2009 and recorded with said Deeds'in Book 23834;
Page 29.
This falls squarely under the holding in the case of Hogan v..Hayes,`19 Mass. App. Ct. 39.9,474 NE2d-.:
1158'. In'Ahat case,the owner of two,adjoining`lots, on one bf which there was located an house and
garage and the.other was,vacant and=both of which were undersize and Jacked:the required frontage. 4
The owner,obtained a variance,in 1974 from both the area and frontage:requirement and to erect a.
single family house on.the vacant lot. She then sold the Lot with the house and garage in 19.75 to the
Hogans and the;vacant lot in 1982 to:the Hayes."The Hayes obtained.'a building permit in 1983 to-build
on the vacant lot and the.Hogans appealed:the issuance of thepermit'ljased on-the theory that it had
lapsed due`to the failure to timely exercise"the rights:granted thereunder. y.
The Court.:found, as'is the case here,that the sale of the improved lot was.sufficient exercise but also
that.variances issued in.1974 had no time_limit for their exersize. ', .
In my view, even in the face of more restrictive zoning requirements,.t'he`Locus was;given,the relief;to
allow.the:building of a residence thereon and.is insulated from the:upgraded zoning requirements and is
therefore buildable for single family residence use so long as ail dimensional requirements,save for
frontage in existence at the time of the granting ofahe variance are met. In addition;it,has been the
.practice of the Town to give insulation:from upgraded`zoning to lots which have been given the benefit
of indefinite buildability life where,as`is the case here,there has been active.exercise of:the rights .
granted under the variance in a timely manner.
-Bernard T. Kilroy
Hogan v.Hayes,474 N.E.2d 1158,19 Mass.App.Ct.399(Mass.App.Ct.,1985)
Page 1158 We abbreviate the facts as far as feasible.
_.:. By 1949, Margaret Stanton and.her husband
474 N.E.2d.u58 were owners by the entirety of both lots, 3 a
19 Mass.App.Ct.399 combined area of io,000 square feet with the
Frank H.HOGAN et al.1. house and garage thereon, and a frontage of
V. loo feet. In April, 1974, after the death of her
Robert P.HAYES et al.2 husband,Mrs.Stanton applied to the board of
Appeals Court.of Massachusetts, appeals for a variance to allow her to divide
Norfolk. her ownership so .that she could sell the lot
Argued Nov. 8, 1984• with the existing house and garage, and build
Decided Feb.22,1985• a small residence on the other lot. There was
need for a variance because the zoning
Page 1159 provisions then (and still) applicable in this
residential district specified a minimum lot
[19 MassApp.Ct. 4001 Robert L. size. of 7,650, square feet, minimum lot
Marzelli,North Pembroke,for plaintiffs. frontage and width each of 85 feet, and
minimum side yard depths of
Robert W. Langlois, Wollaston, for
defendants. Page 116o
Before [lg MassApp.Ct. 3991 GRANT,
KAPLAN and KASS,JJ. [19 MassApp.Ct. 4011 thirteen feet. 4 On a
determination that "a literal enforcement of
the provisions of the Zoning Ordinance would
[ig MassApp.Ct.4001 KAPLAN,Judge. involve substantial hardship to [Mrs.
The plaintiffs Frank and Katherine Stanton]," and so forth, the board of appeals .
granted a variance "to subdivide the premises
Hogan own a lot on a private way in Quincy, and erect a single-family dwelling on the
called Patrick Road, and the two-story house vacant lot created." Mrs. Stanton did not at
and detached garage thereon. The lot is . that time ask the planning board to give or
rectangular, has an area of 5,000 square feet, dispense with approval under the.Subdivision
and a width of 50 feet fronting on the way. Control Law. See Arrigo v. Planning Bd. of
The defendants Robert and Mary Hayes own Franklin, 12 MassApp. 8o2, 429 N.E.2d 355
a contiguous lot, similar in shape and area, (1981)
and with a similar 50 foot frontage on the
way. Their lot is vacant. The object of. the In 1975 Mrs: Stanton sold the lot with
present (consolidated) action was to prevent house and garage to the plaintiffs'
the Hayeses from building on their lot..On predecessor in title. The other lot remained
cross motions for summary judgment, aided vacant at the. time. Subsequently, the
by a statement of agreed facts, a judge of the defendants Robert and Mary Hayes
_Superior Court gave judgment for all the purchased that lot from Mrs. Stanton,>and,
defendants,who included, aside from Mr. and
about that time, on December 14, 1982, they
Mrs. Hayes, the Quincy building inspector, applied to the building inspector for a
the board of appeals, and the planning board.
On the main issue, _we, too, support the building permit for a one-story, single family
dwelling. The permit issued on January 14,
defendants; but there is a complication'that
stands in the way of an affirmance, as will 1983. On April 7, 1983,.the planning board
gave. the defendants an endorsement of
appear. "approval not required" under the
Subdivision Control Law.
-1-
Hogan v.Hayes,474 N.E.2d 1158,19 Mass.App.Ct.399(Mass.Apo.Ct.,1985)
t-
The plaintiffs have attacked in a number. G.L. c. 4oA, §§ 7 & & 7 We think, however,
of ways. On January. 24, 1983,. ten days after that the plaintiffs can escape this abyss. The.
the issuance of the building permit,'they filed defect,although it
a written protest with the building inspector.
Failing any response on his part, the Page 1161
plaintiffs, on February 28, 1983, filed an
administrative appeal with the board of may be spoken of as "jurisdictional appears
appeals.That board denied relief on June 24, not to be of such significance that a court
1983.5 As early as January 31, 1983,however, must take notice of it even if the opposing
the plaintiffs had instituted an action in the Ply fails to press it, cf. Mass.RCiv.P.
Superior Court against all the defendants 12(h)(3), 365 Mass. 757 (1974) (subject
named above. Their complaint, as finally matter defect); rather,* like a defect of
amended on May 11, 1983, and amplified by "personal" jurisdiction, it may be overlooked
the statement of agreed facts, asserted as a if not timely objected to, cf. MassaCiv.P.
main proposition that the variance had 12(h)(1),365 Mass. [19 MassApp.Ct.403] 757
"lapsed," thus destroying the [19 (1974)• Accordingly, the plaintiffs' appeal is
MassApp.Ct. 402] basis for the building not destroyed and we consider it.8
permit. If that contention were to be rejected,
then the plaintiffs would assert that .the 2. On the main question of the claimed
permit was invalid because it was not lapse of the rights granted by the variance,the
preceded by satisfaction of the Subdivision plaintiffs would have to concede that under
Control Law(whether, as we may suppose,by the Zoning Enabling Act which antedated the
approval of a subdivision or by endorsement present Zoning Act, G.L. c. 4oA (effective in
of"approval not required"); and,,further,that Quincy on June 30, 1978), a variance once
the necessary conditions did not exist for the validly allowed could continue in force
endorsement given by the planning board. without limit of time although not exercised.9
Perhaps to fortify themselves procedurally, Nor was a time limit set on the instant
the plaintiffs on July 12, 1983, commenced a variance, either by the ordinance or by the
second action in the Superior Court attacking actual text of the variance as allowed. The
specifically on the ground of"lapse"the ruling plaintiffs contend, however, that the new
of the board of appeals of June 24, 1983, statute, G.L. c. 4oA, § 10, quoted in the
which had refused to disturb the allowance of margin, 10 does establish a limit of.one year,
the. building permit. The two actions were and that this (or possibly the policy,expressed
ordered consolidated, and the summary by it) applies not only to variances granted
judgment appears to have been intended to after the effective date of the statute, but
ctively to variances granted theretofore.
dispose of both actions.6 retroa
The plaintiffs do not spell out convincingly
1. There is a. possible difficulty--not the extent or detail of this claimed
raised by the defendants--which threatens to retroactivity, but they assert that the instant
frustrate the plaintiffs' appeal. According to variance, unexercised, as they claim, through
the case of Vokes v. Avery W..Lovell, Inc., 18 1982 and beyond,was extinguished and could
MassApp. 471, 479, 468 N.E.2d.271 (1984), not furnish a lawful foundation for the
decided. after -the decision below, .the building permit.
triggering event. for an application for
administrative review of the action of the The notion that variances more than one
building inspector would be a' written . year old, and remaining unexercised by'the
response by him to the plaintiffs'protest;but effective date of the new statute, are
in the present case he has made no such destroyed wholesale by a retroactive
response voluntarily or by compulsion. See application of § 10, would appear quite
-2-
Hogan v.Hayes,474 N.E.2d 1158,19 Mass.App.Ct.399(Mass.App.Ct.,1985)
-. drastic, and hardly matches the text of that 207 (1965); Skipjack Cove.Marina, Inc. v.
provision.A milder contention might take the.. County Commrs. for Cecil County, 252 Md.
form that § io should extend to cancel 440, 450-452, .25o A.2d 26o .(1969). Cf.
variances, granted well before the effective Selectmen of Stockbridge v. Monument Inn,
date of the new statute, which have not been Inc., 14 Mass-App. 957, 958-959, 438 N.E.2d
exercised within a year after that date. Even 365(1982).
that proposition might put a great and
insupportable strain on the statutory [19 Mass.App.Ct.405]In holding that the
language. (See [19 MassApp.Ct. 4041 the variance at bar did not lapse but on the
reading of § io in Knott v. Zoning .Bd. of contrary has been sufficiently availed of, we
Appeals of Natick, 12 Mass-App. 1o02, 1004, do not mean to reflect in any way upon a
429 N.E.2d 353 [1981]•) possibility that an old variance, long
unexercised, may lose its force by reason of .
But we need not.and should not attempt radically changed conditions at the locus,
to rule on the broad issue of retroactivity. We including changes brought about by revisions
are prepared to say that, so far as § io may of a zoning ordinance or by=law. See Dimitrov
conceivably bear on the past variance at bar, v. Carlson, supra; In re Ambrosio v. Zoning
there was a sufficient exercise of it not later Bd.of Appeals of Huntington, 196 Misc. 1005,
than the time when Mrs. Stanton sold the lot ioo8-loo9, 96 N.Y.S.2d 38o (1949)• No such
and buildings to the plaintiffs' predecessor in claim can be made here..
1975. As indicated (see note 4, supra ), the
predecessor at that point (and, indeed, the 3. Like too many.zoning cases, this one is
plaintiffs today) would be in multiple beset by a procedural difficulty, here arising
violation of the zoning ordinance were it not upon the plaintiffs'. objection, already
for the variance.So also,after disposing of the adverted to, that the issuance of the building
plaintiffs' lot in reliance on the variance, Mrs. permit was not preceded by satisfaction of
Stanton retained a lot which, except for the subdivision requirements. More particularly,
variance, could not have been developed and the plaintiffs point to G.L. C. 41, § 81Y, par. 2
would have lost value. Even though the '(as appearing in St.1953, c. 674, § 7), which
variance had not been fully carried out by states that a building inspector may not issue
actually building, we think it was sufficiently his permit"until first satisfied that the lot...is
(and irrevocably) exercised. Cf. Dimitrov v. not within a subdivision, or that.a way
Carlson, 138 N.J.Super. 52, 59, 350 A_2d 246 furnishing the access to such lot as required
(App.Div.1975); Hill Homeowners Assn. v.. by the subdivision control law is shown on a
Passaic, 156 N.J.Super. 505, 512, 384 A•2d plan recorded ,or entitled to be recorded
172 (App.Div.1978y;Nuckles v.Allen,250 S.C. under [§ 81X]," etc.We do not know on what "
123, 130, 156 S.E.2d 633 (1967). u Moreover, basis the building inspector acted. The
the plaintiffs'. planning board's "approval not required" .
endorsement would be a proper basis, but
Page 1162 that came too late for the purpose. The
plaintiffs' grievance seems minor at best:
position is so intrinsically inequitable that it although asserting that the planning board's
should not prevail. They take advantage of so endorsement of "approval not required" was
much of the variance as is needed to enable improper, the plaintiffs do not provide any
them to hold their property lawfully but seek solid support for the assertion. See Haynes v.
at the same time to escape:from its coincident Grasso, 353 Mass. 731, 234 , N.E.2d 877
burden upon .them._ :See Ellen M. Gifford (i968); Adams v. Board of Appeals of
Sheltering Home Corp.v. Board of Appeals of Concord, 356 Mass. 709, 255 N.E.2d 372
Wayland, 349 Mass. 2925 295, 208 N.E.2d (1970)•
3
Hogan v.Hayes,474 N.E.2d 1158,19 Mass.App.Ct.399(Mass.App.Ct.,1985)
Having lost their point that the variance 6 We read the notice of appeal as being
has lapsed, the plaintiffs may see little profit addressed to the consolidated action although
in persisting with this litigation._ Strictly, nominally lodged only in the first action.
however, they are entitled to a reversal of the
judgment,but with leave to the defendants to 7 As to the administrative route that must be
supplement their pleadings and proof with traveled before judicial review-is sought, see
respect to compliance with G.L. c. 41, § 81Y' Neuhaus v. Building Inspector of
(having reapplied so far as they may deem. Marlborough, 11 MassApp. 230, 235, 415
necessary to the building inspector. or N.E.2d 235 (i981); McDonald's Corp. v:
Planning board.to attain compliance); the Seekonk, 12 MassApp. 351, 353, 424 N.E.2d
action to proceed further in the Superior 1136 (1981), and note Banquer. Realty Co. v.
Court as occasion may.require. Acting Bldg. Comm . of Boston., 389 Mass.
565,574-575,451 N.E.2d 422 (1983).
So ordered.
8 It may be observed that the building
--------- inspector is joined in the present action and is
aligned as a defendant.
1 Katherine A Hogan,his wife.
9. See, however, the reference below to the
2 Mary A. Hayes., his wife; the inspector of possible supersession of an unexercised
buildings of Quincy; the board of appeals of variance by reason of a severe change of
Quincy; and the planning board of Quincy.As conditions.
indicated below,this.action was consolidated
with another brought by the same.plaintiffs 10 Section'io, as amended by St.1977, c. 829,
and naming as defendant only the board of § 4B; Provides: "If.the rights authorized by a
appeals of Quincy. variance are not exercised within one year of
the date of grant of such variance they shall
3 The lots were originally laid out as part of a lapse, and may be reestablished only after .
plan recorded in 1902. By the late 1940's, the notice and a new hearing pursuant to this
two-lots came to be separately owned. The section."
Stanton bought one of the lots in 1948 and r -
the other in 1 11 We decide that the exercise of rights herein
949• would be sufficient to prevent a lapse of the
4 Without the variance, the division proposed variance even on the plaintiffs' hypothesized
by Mrs. Stanton would have put the built-on interpretation of § 1o. We do not attempt a
lot in manifest violation of the lot area and definition of "exercise" under § io in its
minimum frontage and width provisions. prospective sense. Cf. Hunters Brook Realty
There would be a violation; also, of the side Corp. v. Zoning Bd. of Appeals.of Bourne, 14
yard provision because a lot line bounding the Mass-APP.76,436 N.E.2d 978 (1982).
vacant lot would run within four feet of the Unlike §. 10, some zoning provisions have
existing house. Mrs. Stanton's plan put the
proposed house within ten feet of a lot line. carried definitions of use or exercise. See Roy
v. Kurtz, 357 So.2d 1354, 1356 (La.CtApp.), _
5 The board indicated that the "lapse" writ denied, 359 So.2d 1307 (La.1978); In re
question, mentioned immediately below, 23o Tenants Corp. v. Board of Standards &
would have to be finally decided by the court Appeals of New York, io1 A.D.2d 53, 54, 474
in the plaintiffs' action. commenced on N.Y.S.2d 498 (1984); In re Appeal of Newton
January 3i,1983. Racquetball Associates, 76 Pa.Commw. 238,
242,464 A.2d 576(1983).
y n Meeting. Action on Zoning
and related -Articles
j2.
Date A/R/N UBJECT
IA-AdoPt:R=RejecL:N=No action)
/3/29/73(cont'd.)Art. 154 R Apply OSRD in Res.D and Res D-2 dists. in Cotuit.
Art. 155 A. Change to.Urban Bus. Dist.,part of_Bus. Dist and Res. B Dist in Hyannis to
increase depth from 200 ft..to 300 .ft. from west side of Hinckley Rd. aloe;
Rte. 28, and require 25-fi. green-belt.planting along abutting
residentially zoned area
Art. 156 A ' .Require that'705% of required lot area square footage be upland.
Art. 157 A Add provisions that where street divides two zoning districts, the district!
are deemed to abut each other.
Art. 159 A Change to Res. F District a Res. D and Res. D-2 District for min. lot size o-
1A in'Cotuit.
Art. 160 A Change to Res. F-1 District a Res. E and Res. E- 1 District .for min, lot sizE
of 1A in Prect. 1 (Barnstable Village)..
Art. -161 R, Change to Highway Business District from Res. E and Res. D- 1 .(or Res F-
after action under Art. 160, supra) the area along Rte. 132 west of
Phinney's Lane. and establish use and intensity regulations, limiting uses
offices, banks, apartment, houses, hotels and motels
Art. 162 A Amend definition of,"Lot
Art. 163 R Amend provisions re keeping horses. (IP Arts: 164 & 165 as dependent o
.Art. 163..)
Art. 167 R Estab. conservancy dist. to protect wetlands (IP Arts. 168 &169 :as
dependent on Art. 167.)`
Art. 170 R Establish Design Review Panel
Art. 171- A $ 15,000 for engineering and/or planning consultant services to the
Planning Bd. for admin.&planning under subdivision-control:law
STM 71 1 /73 Art. 6 A Allow. use, by special permit, of regulation-sized, golf course in
9 all zc^inc
districts.
Town of Barnstable, MA Page 1 of 3
Town of Barnstable,MA
Friday,February3,2077
Chapter 240. Zoning
Article VIII. Nonconformities
f
§ 2,40-91. Nonconforming lot.
A. Separate lot exemption.Any increase in area,frontage,width,yard or depth requirement of
this chapter shall not apply to a lot for single-or two-family residential use which at the time
of recording or endorsement:
(1) Was not held in common ownership with any adjoining land;and
(2) Had a.'minimum of 5,000 square feet of area and 50 feet of frontage or the minimum
frontage requirement for the zoning district in which it is located;and
(3) Conformed to the existing zoning if any when legally created;and .
(4) Was separately owned at the time of every zoning change which made it
nonconforming.
B. Common lot protection.
(1) Any increase in the area,frontage,width,yard or depth requirement of this chapter shall .
not apply for a'period of five years from the effective date of the change',to a lot for
single-'or two-family residential use that:
(a) Is held in common ownership with.not more than two adjoining lots;and
(b) Had a minimum of 7,500 square feet'in area and 75 feet of frontage or the
minimum frontage requirement for the zoning district in which it is located;and
(c) Was recorded or endorsed on a plan that conformed to zoning when legally
created;and
(d) Conformed to applicable zoning requirements as of January T 1976,
C. The protection afforded by Subsection B shall become vested upon the sale or transfer of
the lot so protected into ownership se_parate.from that of adjoining lots or the building
thereon of a residence.
[Amended 1-20-2oo5 by Order No.2005-0391
D. Approval-not-required plan protection.Any change in uses permitted under this,chapter shall
not apply to any lot created by a plan endorsed by the Planning Board as a plan not requiring
approval under the Subdivision Control Law for.such period of three years from the date of
endorsement,as provided by MGL Ch.4oA,§6.
E.
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Town of Barnstable, MA Page 2 of 3
Subdivision plan protection. Any change1n this chapter shall not apply to land shown on a
plan under the Subdivision Control Law by a duly submitted and endorsed.defilnitive
subdivision plan,or a.preliminary plan followed within seven months by a definitive plan,for
such period of eight years from the date of endorsement,"as provided by MGL Ch.4oA,§6.
Any legally created lot with a recorded release from covenani of the Planning Board that has ,r
been sold or transferred into separate ownership and control from any adjoining lots within
eight years from the endorsement of the original subdivision plan shall be exempt from any
dimensional or bulk zoning changes and shall not lose its status as a single buildable lot under
zoning.
F. Merged lots. Except as otherwise provided herein, lawfully nonconforming lots that are
adjoining and held in common ownership,or underthe control of the same owner,shall be
treated so as to conform so far as possible with the minimum area requirement of the zoning
district in which they are located. No lot so merged,or:portion thereof, may be changed or
transferred in any manner that will increase the.degree of nonconformity unless a special
permit has first been obtained from the Zoning Board of.Appeals. No such special permit
may create any additional buildable lot(s).
G. Resource Protection Overlay District.
[Amended 10-26-2000]
(1) .Any increase in area,frontage, width,yard or depth requirements of the Resource
.Protection Overlay District shall not apply to a lot for single-or two-family residential
use which immediately prior to November 16,20oo,either:
(a) Conformed to the applicable bulk requirements of this chapter immediately prior
to November 16,2000:or
(b) Immediately prior to (on the effective date of this chapter,)was protected from
the applicable bulk requirements of this subsection by the provisions of§240-91A,
B,C;D,or E of this chapter.
(2) This protection afforded by this subsection shall be permanent.
H. Developed lot protection;demolition and rebuilding on nonconforming lots. Preexisting.legal
nonconforming lots which have been improved by the construction of a single-or two-family
residence which conformed to all provisions of the zoning ordinance-or bylaw at the time of
construction shall be entitled to completely demolish the old residence and construct
thereon a new-residence in accordance with the following.
[Added 11-18-2004 by Order No.2005-025�'�] _
(1) As-of-right.The proposed demolition and rebuilding shall be permitted as-of-right on a
preexisting legal nonconforming lot that contains a minimum of 1o,000 square feet of
contiguous upland,provided that the Building Commissioner determines that all of the
following criteria are met:
(a) The proposed new structure conforms to all current use-and setback
requirements of the zoning district it is located in;
(b) The proposed construction conforms to the.following requirements of lot
coverage,floor area ratio and building height:
' [1] Lot coverage by all buildings and all structures shall not exceed 20%or the .
existing lot coverage,whichever is greater;
[2]
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Town of Barnstable, MA Page 3 of 3
The floor area ratio shall not exceed 0.30 or the existing floor area ratio of the
structure being demolished and rebuilt,whichever is greater;and
[3] The building height,in feet,shall not exceed 30 feet to the highest plate'and
shall contain no-more than 2 /z stories.The building height,in feet,'shall be
defined as the vertical distance from the averagegrade plane to plate.
(c) Further expansion of the rebuilt structure must conform to Subsection H(1)(b)
above.
(2) As of right: merged lots each containing a minimum area of 43,56o square feet of
contiguous upland.Where,immediately prior to November 16,2000,two legally created
contiguous lots each containing a minimum area of 43,56o square feet of contiguous
upland were: (a) located in the Resource Protection Overlay District and (b) held in
common ownership and (c) improved by the construction.of one single-family
residence, including accessory structures which occupied both lots,each said 43,560
square foot lot may be treated under these provisions as two separate buildable lots;
provided that each of said lots'conformed to all the bulk regulations of-the zoning
ordinance immediately prior to November 16, 2000, and as long as the.other _
requirements of§240-giH(i)(a)through(c)above are satisfied.
[Added 5-7-2009 by Order No.2009-099]
(3) By special permit; If the proposed demolition and rebuilding cannot satisfy the criteria.
`established in Subsection H(i)above,then the Zoning Board of Appeals may allow the "
demolition and rebuilding by special permit,.provided that the Board finds that: .
(a) If the proposed new dwelling does not comply with Subsection H(1)(a) above,.
then the proposed yard setbacks must be equal to or greater than the yard
setbacks of the existing building;and
[Amended 2-17-2605 by Order No.2005-058]
(b) All the criteria in Subsection 11-11(i)(b)[1],[2] and [3]above are met.
(c) The proposed new dwelling would not be substantially more detrimental to the
neighborhood than the existing dwelling.
(d) This section,shall only apply to Subsection H(2)to the extent that the proposed-
demolition and rebuilding cannot satisfythe criteria established in Subsection H(i)
above and shall not be available for relief from any of the other provisions of.
Subsection H(2).
[Added 5-7-2009-by Order No.2009-099]
1] Editor's Note:This order also redesignated former Subsection H(2)as Subsection H(3).
http://ecode360.com/printBA2043?guid=6559848 2/3/2017
' KILROY& WARREN,P.C.
ATTORNEYS AT LAW,
THE ISAAC P. FAIRFIELD.HOUSE;_
67 SCHOOL STREET
BERNARD T. KILROY P.O. BOX 960
HYANNIS, MASSACHUSETTS 02601-0960F`
TELEPHONE (508) 771-6900'
TELEFAX (508) 775-7526 _
E-MAIL: bkilroy@comcast.net
February.3, 2017
Town of Barnstable `
200 Main Street
Hyannis, MA 02601,
Attention: Mr.Paul Roma, Building Commissioner
Re: Property at 214 Scfiool�Street, Cotuit
Dear Mr. Roma:
The property is currently shown as LOT 20 on a plan dated May 2, 1902 and recorded
in Plan Book 15, Page.67. Enclosed-are a copy of the plan and assessors'map
The propertyand'the adjoining LOT 22 were the subject of a frontage variance granted
by-the Board of Appeals on May 22, 1974 and recorded on December 3, 1975 in Book
2270, Page 143 along with a deed of LOT 22 by the recipient of the variance.
The variance decision finds that the two lots commonly owned by the applicant met all
dimensional requirements save for frontage and gave relief from the frontage
requirement.. The Board found that the combined lots had a,total of.96 acres of land
and that the lots were in an RD-2 zoning district.
I had prepared an opinion of buildability for my client based on the decision and on the
case of Hogan v.Hayes,-concluding that the lot could be built upon.
However,I have discovered that the zoning in Cotuit changed to RF under Art. 159 of
the March 29, 1973 Town,Meeting.
My question is whether,under the provisions of section 240-91.13. Common Lot
Protection of our Bylaw, LOT 20 remains buildable.
T
Copies of the.variance decision, deed of LOT 22 and my zoning memo are enclosed.
Respectfully submitted
Bernard T. Kilroy
P
bceK 2270 145
THE COMMONWEALTH OF MASSACHu6ETT3 - 26071
T0WN OF BARNSTABLE
BOARD OF APPEALS
_w_May_22__.__—._--------••-------_19 74
r
NOTICE OF VARIANCE >
Conditional or Limited Variance or Special Permit
(Crnvd L. Chnpt-40A,8—tlon 18---mdcd) ,
Notice-is,hereby given that a Conditional or Limited Variance or Special Plermit has been granted i
To--------------------- -Anthony L. Cabral ,
own,"rndtirnc
Address--------- School Street
City or TowCotuit, Massachusetts
iL - ........-.......—...................--......_
......._._..........h1eD 20_hvt .....
- -'• � ideneifr Land dSeeted -
by the Town of Barnstable. Board of Appeals affecting the rights of the owner with
respect to the use of premises on__-SehonL_Stxsetr�ntuit;________..
5trcet City or Town.
the record title standing in the name of
--------------------------------Anthony L.._Cabral
.............-................-
whose address
School Street, Cotuit,,Massachusetts
is -
str, Ba rw,•n smm
by a deed duly recorded in the.BA=stablg••. -.County Registry of Deeds in Book
._926_-...Page_._�46__-__................................._.........---.'.----Registry District of the Land Court
Certificate No.................- - Book:_.: _........Page-_--
The decision of said Board is on file with the papers in Decision or Case No.:.1973100 y
in die office of the Town Clerk of the Town of Barnstable, y
Signed this_-22nd=day of.......May - _ _.f 1974 .: . .
Board'of Appeals: F(
..................._•-'- �-7.-..:- •
r
�.. �-a-t-wppeau — _Chairman
•
J...
•.
---.___------,_-______Clerk
Appeol�- DOIrd oI - '
------------------—----------- ---— 19-_... at.............o'clock and--............----•-----minutes .__M. .. • -
Received-and entered with the Register of Deeds in the County of—._............. r
took----------:-...A-Page.......................
-
ATTEST
_ t
•••__ ------.._.....
— =--f Register o/Deeds
Notice to be recorded by Petitioner
i;ll�Utfl DEC 3 75 .-
T o VV 1V OF BARN STABLE
Board of Appeals
Anthony L. ('abxral
_..._.........._........_......._....._.................................................__.....................
Petitioner
r�
Appeal No. 00 ..... 19 (4
7 �`.._...__...._.._........___.._..__ ...................... .............._.
FACTS and DECISION
L:�"I.thon' i. ` bra! Dec. 2b
Petitioner ,:..:...._...............`....................'.........-......................................-•--•-•--................._. filed petition on ......................................_ 19 7_ ,
requesting a variant e ii�for remises at .. V ii l StreE 4
'e p . p .... ..... ...._.......-...-.......-..._...-........... Street, in the village
Latui v
of ........_..................._.................................. , adjoining.premises of................._......................................................................................_..._.................
_._.
xthur W. & Patricia A. Anderson; Hazel L. Barrow; Robert E. & Sally E. Bernard; Barry. R. Bird;
,awrence & Mary M. Bjork; Frederick H. & Paula M. .Boden; -Raymond W. & Viola M. Bradford;
-ordon M. & Edith C. Browne, Jr. ; Helen E. Burlingame; Roger A. & Elizabeth H. Burlingame;
Edgar & Dorthea E. Burnside; Buzzards Bay Gas Co. ; William E. & Nancy Ruth Cash; Henry J. &
ary C: Chandonait; Eleanor M. Childs; D. Emerson & Doris E. Coleman; Henry E. .& Mary M. Cook;
xthur C. & Catherine P. Crawford; Nicholas J. & Eleanor K. DERosa; E. Murtaugh Dolliff; 1,eo
Fair; Olive L. Farmer; Francis W. & Bertha E. Gifford; Ruthanne Grober; Marcella. G. Gross;
ridget E. Harlow; Elizabeth C. Hayden; John 0. & Catherine M. Heher; .Lollie B. & Olive J.
endrix; Norman & Diane F. Hoppensteadt; Elizabeth A. Kenna; .George W. & Elizabeth A. Kenna;
rnest W. Kitchen; Melissa H. Lindquidt; Jeremiah J. &.Anne M. Mahoney; Robert R. & Grace C.
cNutt; David .W. &Rose E. Mehalko; Preston H. , Jr. & Marion P. Morris; Julius H. Mueller;
eter C. & Agnes C. Murray; Brenda C. Nailor; Alfred L: & Phyllis W. Nickerson;- Donald F. &..
adith Nickerson; Harry B. & Mary Nickerson; Theodore W. & Gail Nickerson; Elmiro A.' &
Lizabeth N. Oliva; Natalie P. Parker; Matthew F. & Dorothy E. Pells; Holdegarde L. Peterson;'
Dhn Edwin & Rebecca S. Peterson; Carl A. & Aurelia .D. Petronio; Donald L. & .,Joyce M. Porter;
3nrieth W. '& Elizabeth J. Porter;. Josephone E. Power; Proctro & Eva T. Ransden; Manuel H.
Marion D. Rebello; Roger. B. & Betsey C.; Reid; William H. Robbins; John E. & Marie, E. Roberts; ,
Lorence H. Ryder; Myron D. & Kathryn K. Ryder; .Charles•N. Savery; Helen P. Scudder; Costas
:thares; Jacqueline H. Shags; Charles B. Showell; Albert M. & Helen B. Smith; Roland M. &
)rothy S. Smith; Herbert. L. 'Snow; Hugh V. & Marie S. Steele; Donald Stephen; Timothy C. &
Ltherine F. Sullivan; Paul A. & Natalie B. Taylor.; Manuel 0.- & Margaret A. Vieiro; Arvi &
m.a L. Vilho; Alexander Walcott; Allen B. , ,'rr. & Cheryl- .N. Williams.
Josef_ll williams tk:ry d'27m B. Str y er Gail If nightingale
..................................................._.............................. .................................................................................. ....................__._..._._.:.._--.......----......_........._.__
Chairman
_._.............................................................................. ._....................................._............................- ------- .........._........................................................:............._
At the conclusion,of the hearing, the Board,took said petition under
advisement. A -view of the locus .was had.by the Board.
On ..........49M. 1 8--...... ........................... ..............J9 14..., the Board of
Appeals found
The Petitioner, Wbony Cabral; seeks a 7ariance from Section J, . Appen 1 X A,
Intensity Regulations it Residence Districts, Barnstable Zoning BST Law as
revised August 24, 1973, to permit construction_ of a small house on a lot
with insufficient f cartage at School Street, Cotuit, in an. RD-2 Zoning District.
The Petitioner represented himself and stated that lots 20 and 22 on .the plan
submitted tted had been pareAa.sed as t o, ,separste lots-in n 1955 and lot 22 has a
house on it of 6,17 to f rooms, which is too large for one person; that the-Petitioner
wishes to build-a smeller house on lot 20, which has adequate square footage, but
only 11o' frontage, where 129 -are required, that the proposed house would be of
a, modular type e and set UK further from the road than is the ,house on lot 22;
that most of t''e Musts in We area are an lots- of the 'same or lesser frontage and/or
square footage and that the�area of the two lots combined is .96 acres.
The Board found that the Pet tionar' s deed states the existaree WAS separate
lets', that both of these lots have over the min±num square- ootage. the Board
found tha it Quid be a, hardship as defined in Chapter 40A of'tl!c �ssachusetts.
General jai-is Tei% Bd. 40A as amanded to deny the Petiti.Oner use of these two lots;
that these two lots are unique in, as much as they are the only ones in the area
with this p tatus; That the issuance. of this variance will not be in, derogation .
of the.Bannstabl.e Zoning By Law nor detrIa'ental' to 'the public goodo, Therefore, J
the Board voted un_a=rRously to grant this variance.
Restrictions-imposed
;Distribution': Board of Appeals
Town Clerk Town of Barnstable.
Applicant f
Persons interested
1
Building Inspector ! V�4v..I.fey!l
.Public Information B ��`' Iz
Board of Appeals Chaff. a`�
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P P /7/ Town of Barnstable GIS Unit
'Ma tinted on: 11 2016 a This map is for illustration purposes only.It is not .Parcel lines shown on this map are only graphic
adequate for legal boundary determination or representations of Assessor's tax parcels.They are
Feet regulatory interpretation.This map does not represent not true property boundaries and do not represent 367 Main Street,Hyannis,MA 026ot
0 167 333 an on-the-ground survey.It maybe generalized,may not accurate relationships to physical objects on the map 5o8-862-4624
reflect current conditions,and may contain such as building locations.
Approx.Scale: I inch= .167 feet cartographic errors or omissions. gis@town.barnstable.ma.us
ZONING MEMORANDUM
October 17,2016
,.,RE: 214 School Street, Cotuit, MA(shown as Barnstable Assessors Map 20, Lot 67 and Lot 20 on the
"Plan of Building Lots at Cotuit For Sale By Chas. L. Gifford" recorded with the Barnstable County
Registry of Deeds in Plan Book 15, Page 67(the "Plan")-the "Locus"
HISTORY OF LOCUS:
Locus is shown as LOT 20 on the Plan and Locus is currently in a Residence RF zone and two acre overlay .
district.
Anthony L. Cabral and Dorothy D. Cabral acquired title to Locus and adjoining Lot 22, as shown on the
Plan, by deed from James C.Lane dated June 7, 1955 and recorded with said Deeds in Book 926, page
346.
The Cabrals conveyed Locus and Lot 22 to Anthony L. Cabral by deed dated February 13, 1973 and
recorded in Book 1808, Page 167.
Anthony L. Cabral obtained a decision for a variance from the frontage requirement under the Town
Zoning ByLaw from the Barnstable Zoning Board of Appeals for both Locus and Lot 22 (Case No. 1973-
100) which decision was recorded with said Deeds in Book 2270, Page 145. According to the decision,
both Locus and Lot 22 met or could have met all other dimensional requirements of the Zoning ByLaw.
The end result of the decision was that Locus became a buildable lot for single family use.
Anthony L. Cabral conveyed Lot 22 to Franklin H. Nickerson,Jr. by deed dated December 3, 1975 and
recorded with said Deeds in Book 2270, Page 146.
Anthony L. Cabral conveyed Locus to the current owners, Betsey C. Reid and Donald Cabral, reserving a
life estate in Locus to himself, by deed dated June 1, 2009 and recorded with said Deeds in Book 23834,
Page 29. .
This falls squarely under the holding in the case of Hogan v. Hayes, 19 Mass.App. Ct. 399,474 NE2d
1158. In that case,the owner of two adjoining lots, on one of which there was located an house and
garage and the other was vacant and both of which were undersize and lacked the required frontage.
The owner obtained a variance in 1974 from both the area and frontage.requirement and to erect a
single family house on the vacant lot. She then sold the lot with the house and garage in 1975 to the
Hogans and the vacant lot in 1982 to the Hayes. The Hayes obtained a building permit in 1983 to build
on the vacant lot and the Hogans appealed the issuance of the permit based on the theory that it had
lapsed due to the failure to timely exercise the rights granted thereunder.
The Court found, as is the case here,that the sale of the improved lot was sufficient exercise but also
that variances issued in 1974 had no time limit for their exersize.
In my view, even in the face of more restrictive zoning requirements,.the Locus was given the relief to
allow the.building of a residence thereon and is insulated from the upgraded zoning requirements and is
therefore buildable for single family residence use so long as all dimensional requirements, save for
frontage in existence at the time of the granting of the variance are met. In addition, it has been the
practice of the Town to give insulation from upgraded zoning to lots which have been given the benefit
of indefinite b,uildability life where, as is the case here,there has been active exercise of the rights
granted under the variance in timely manner..
Bernard T. Kilroy
i
f
f
A
Hogan v.Hayes,474 N.E.2d 1158,19 Mass.App.Ct.399(Mass.App.Ct.,1985)
Page 1158 £ We abbreviate the facts as far as feasible.
= By 1949, Margaret Stanton and her husband
474 N.E.2d U58 were owners by,the entirety of both lots,'3 a
19 Mass.App.Ct.399 combined area of io,000 square feet with the
Frank H.HOGAN et al. 1. house•and garage thereon, and a frontage of
V. ioo feet. In April, 1974, after the.death of her
Robert P.HAYES et al. z husband,Mrs.Stanton applied to*the board of
Appeals Court of Massachusetts, appeals for a variance to allow her to divide .
Norfolk. a her ownership so .that she could sell the lot
Argued Nov. 8,1984•, with the existing house and-garage, and build
Decided Feb. 22, 1985,. a small residence on the other.lot. There was a.
need for a variance because the .zoning
Page 1159 provisions then (and still) applicable in this
residential district specified a minimum lot
[i9 Mass.App.Ct. , 4001 Robert < L. - size of 7,650 square feet; minimum lot `
Marzelli,North Pembroke,for plaintiffs. frontage and width each of 85 feet, and
minimum side yard depths of
Robert W. Langlois, Wollaston, for
defendants. Page 1160
Before [i9 MassApp.Ct. 399] GRANT,* [19 MassApp.Ct. 4011 thirteen feet. 4 On a
KAPLAN and KASS,JJ.- determination that "a literal enforcement of
the provisions of the Zoning Ordinance would
[19 MassApp.Ct.400]KAPLAN,Judge.
.involve substantial . hardship to [Mrs.-
Stanton]," and so forth, the board of appeals
The plaintiffs. Frank and Katherine granted a variance"to subdivide the premises
Hogan own a lot on a private way in Quincy,
called Patrick Road, and the two-story house ... and erect a single-family dwelling. on the
and detached garage .thereon. The lot is vacant lot created." Mrs. Stanton did-not at
rectangular, has an area of 5,00o square feet, that time ask the planning board to give or
and a width of.5o feet fronting on the way. dispense with approval under the Subdivision -
The defendants Robert and Mary Hayes own Control Law.,See Arrigo v..Planning Bd. of Y
a contiguous lot, similar in shape and area, Franklin, 12 Mass-App. 802, 429 N.E.2d 355
and with a, similar 5o 'foot frontage on the' (1981).
way. Their•lot is vacant. The object of the In 1975 Mrs. Stanton sold the lot with
present (consolidated) action was to prevent house and garage . to the plaintiffs'
the Hayeses from building on their lot..On predecessor in title. The other lot remained'
cross motions, for summary judgment, aided vacant at the: time. Subsequently,, the
by a statement of agreed facts, a judge of the defendants Robert and Mary Hayes
.Superior .Court gave judgment for all the . purchased that lot from Mrs. Stanton;.and,'
defendants,who included, aside from Mr. and about that time, on December 14, 1982,,they"
_Mrs..Hayes, the Quincy building inspector, applied to the. building inspector for- a
the board of appeals, and the planning board.
building permit for a.one-story, single family
On the main issue; we, too, support the dwelling. The permit issued on January 14;
defendants, but there is a complicationthat 1983. On April 7, >983,.the,planning board
stands in the way, of an affirmance, as will gave the defendants• an ..endorsement of t
appear.: "approval . not. required". under-' •.'thee
Subdivision Control Law.
Hogan v.Hayes,474 N.E.2d 1158,19 Mass.App.Ct.399(Mass.Apo.Ct.,1985)
The plaintiffs have attacked in a number G.L. c. 4oA, §§ 7 & 8. 7 We think, however,
of ways. On January 24, 1983,. ten days after that the plaintiffs can escape this abyss. The.
the issuance of the building permit,they filed defect, although it
a written protest with the building inspector..
Failing any response on his part, the Page 1161
plaintiffs, on February 28, 1983, filed. an
administrative appeal with the board of, may be spoken of as "jurisdictional," appears
appeals.That board denied relief on June 24, not to be of such significance that a court
1983.5 As early as January 31, 1983,however, must take notice of it even if the opposing
the plaintiffs.had instituted an action in the PAY fails to press it, cf. Mass.R.Civ.P.
Superior Court against all the defendants 12(h)(3), 365 Mass. 757 (1974) (subject
named above. Their complaint, as finally matter defect); rather, like a defect of
amended on May 11, 1983, and amplified by "personal" jurisdiction, it may be overlooked
the statement of agreed facts, asserted as a if not timely objected to, cf. Mass.RCiv.P.
main proposition that the variance had 12(h)(1),365 Mass. [19 MassApp.Ct.403] 757
"lapsed," thus destroying the [19 (197.4). Accordingly, the plaintiffs' appeal is
Mass.App.Ct. 402] basis for the building not destroyed and we consider it.8
permit. If that contention were to be rejected,
then the plaintiffs would assert that .the 2. On the main question of the claimed
permit was invalid because it was not lapse of the rights granted by the variance,the
preceded by satisfaction of the Subdivision plaintiffs would have to concede that under
Control Law(whether, as we may suppose,by the Zoning Enabling Act which antedated the
approval of a subdivision or by endorsement present Zoning Act, G.L. c. 4oA (effective in
of"approval not required"); and,further,that Quincy on June 30, 1978), a variance once
the necessary conditions did not exist for the validly allowed could continue in force
endorsement given by the planning board. without limit of time although not exercised. 9
Perhaps to fortify themselves procedurally, Nor was a time limit set on the instant
the plaintiffs on July 12, 1983, commenced a variance, either by the ordinance or by the
second action in the Superior Court attacking actual text of the variance as allowed. The
specifically on the ground of"lapse"the ruling plaintiffs contend, however, that the new
of the board of appeals of June 24, 1983, statute, G.L. c. 4oA, § io, quoted in the
which had refused to disturb the allowance of margin, 10 does establish a limit of one year,
the building permit. The two actions were and that this (or possibly the policy expressed
ordered consolidated, and the summary by it) applies not only to variances granted
judgment appears to have been intended to after the effective date of the statute, but
dispose of both actions.6 retroactively to variances granted theretofore.
The plaintiffs do not spell out convincingly
1. There is a possible difficulty--not the extent or detail of this claimed
raised by the defendants--which threatens to retroactivity, but they assert that the instant
frustrate the plaintiffs' appeal. According to variance, unexercised, as they claim, through
the case of Vokes v. Avery W..Lovell, Inc., 18 1982 and beyond,was extinguished and could
Mass-App. 471, 479, 468 N.E.2d 271 (1984), not furnish a lawful foundation for the
decided after the decision below, the building permit.
triggering event for an application for
administrative review of the action of the The notion that variances more than one
building inspector ector would be a written year old, and remaining unexercised by the
response by him to the.plaintiffs protest; but effective date of the new statute are
in the present case he has made no such destroyed wholesale by a retroactive
response voluntarily or by compulsion. See application of § 10, would appear quite
-2-
Hogan v.Hayes,474 N.E.2d 1158,19 Mass.App:Ct.399(Mass.App.Ct.,1985)
drastic, and hardly matches the text of that 207 (1965); Skipjack Cove Marina, Inc. v.
provision.A milder contention might take.the.. County Commrs. for Cecil County, 252 Md. .
form that § io should extend to. cancel 440, 450-452, 25o A.2d 26o .(1969). Cf.
variances, granted well before the effective Selectmen of'Stockbridge v. Monument Inn,
date of the new statute, which have not been Inc., 14 MassApp. 957, 958-959, 438 N.E.2d
exercised within a year after that'date. Even 365(1982).
that proposition might put a great and
insupportable strain on the statutory, [19 MassApp.Ct.4051 In holding that the
language. (See [19 Mass.App.Ct. 4041 the variance at bar did not lapse but on the
reading of § io in Knott v. Zoning .Bd. of, contrary has been sufficiently availed of; we
Appeals of Natick, 12 Mass-App. 1002, 1004, do not mean to reflect in any way upon a
429 N.E.2d 353 [1981]•) possibility that an old variance, long
unexercised, may lose its force by-reason of
But we need not and should not attempt radically changed conditions :at the locus,
to rule on the broad issue of retroactivity. We including changes brought about by revisions
are prepared to say that; so far as § io may' of a zoning ordinance or'by-law. See.Dmitrov
conceivably bear on,the past variance at bar, v. Carlson, supra; In re Ambrosio v. Zoning
there was a sufficient exercise of it not later Bd. of Appeals of Huntington, 196 Misc.1005,
than the time when Mrs. Stanton sold the lot loo8-ioo9, 96 N.Y.S.2d 380 (1949)• No such
and buildings to the plaintiffs' predecessor in claim can be made here:
1975. As indicated (see note 4, supra ), the
predecessor at that point (and, indeed, the 3:Like too many.zoning cases,this one'ds
plaintiffs today) would , be in multiple beset by a procedural difficulty, here'arising
violation of the zoning ordinance were it not upon the plaintiffs' objection, already
for the variance.So also,after disposing of the . adverted to, that the issuance of the building a
plaintiffs' lot in reliance on the variance,Mrs. permit was not preceded by 'satisfaction of
Stanton retained a lot which, except for the `.. subdivision requirements. More particularly,
variance, could not have been developed and the plaintiffs point to G.L. L 41, § 81Y, par. 2
would have lost value. Even though the (as appearing in St.1953, c. 674, § 7), which
variance had not been fully carried out by states that a building inspector may not issue.
actually building,we think it was sufficiently- his permit"until first satisfied that the lot,..is
(and-irrevocably) exercised. Cf. Dimitrov v. not within a subdivision, or, that a way
Carlson, 138 N.J.Super 52, 59, 35o A:2d 246`, furnishing the access to such lot as required
(App.Div.1975); Hill Homeowners Assn. V. by the subdivision control law is shown on a ,
Passaic, 156 N.J.Super. 505, 512, 384 A•2d ,' plan• recorded or entitled to be recorded
172(App.Div.1978);Nuckles v.Allen, 250 S.C. under [§ 81X]," etc. We do not know on what
123, 130, 156 S.E.2d 633 (1967). ll Moreover, basis the building inspector acted. The
the plaintiffs' planning board's. "approval not 'required"
endorsement,would be a proper basis, but
Page 1162 that. came .too late for .the purpose. The
plaintiffs' grievance seems minor at,best:
position is so intrinsically inequitable that it although asserting that the planning"board's
should not prevail. They take advantage of so endorsement of "approval not required" was
much of the variance as is needed to enable improper, the plaintiffs do not provide any
them to hold their property lawfully but seek solid support for the assertion. See Haynes v.
at the same time to escape.from its coincident Grasso,, 353 Mass. 731, 234 , N.E.2d- 877
burden upon them., See Ellen M. Gi€€ord' (.1968); Adams .v. Board of. Appeals of
Sheltering Home Corp-.-V. Board of Appeals of Concord, 356 Mass. 709, 255 N.E.2d 372
Wayland, 349 Mass_ 292, 2.95, 208 N.E.2d (1970)
-3-
Hogan v.Hayes,474 N.E.2d 1158,19 Mass.App.Ct.399(Mass.App.Ct.,1985)
Having lost their point that the variance 6 We read the notice of appeal as being
has lapsed, the plaintiffs may see little profit addressed to the consolidated action although
in persisting with this litigation. Strictly, nominally lodged only in the first action.
however, they are entitled to a reversal of the
judgment,but with leave to the defendants to 7 As to the administrative route that must be
supplement 'their pleadings and proof with traveled before judicial review-is sought, see
respect to compliance with G.L. c. 41, § 81Y Neuhaus v. Building Inspector of
(having reapplied so far as they may deem. Marlborough, 11 MassApp. 230, 235, 415
necessary to the building inspector or N.E.2d 235 (1981); McDonald's Corp. v.
planning board to attain compliance); the Seekonk, 12 MassApp. 351, 353, 424 N.E.2d
action .to proceed further in the Superior 1136 (1981), and note Banquer. Realty Co. v.
Court as occasion may require. Acting Bldg. Commr. of Boston, 389 Mass.
565,574-575,451 N.E.2d 422(1983).
So ordered.
8 It may be observed that the building
_____________ inspector is joined in the present action and is
aligned as a defendant.
1 Katherine A Hogan,his wife. -9_ See, however, the reference below to the
2 Mary A.-Hayes, his wife; the inspector of possible supersession of an unexercised
buildings of Quincy; the board of appeals of variance by reason of a severe change of
Quincy; and the planning board of Quincy.As conditions.
indicated below;this action was consolidated
with another brought by the same plaintiffs 10 Section 10, as amended by St.1977, c. 829,
and naming as defendant only the board of § 4B, provides: "If the rights authorized by a
appeals of Quincy. variance are not exercised within one year of
the date of grant of such variance they shall
3 The lots were originally laid out as part of a lapse, and may be. reestablished only after
plan recorded in 1902. By the late 1940's, the notice and a new hearing pursuant to this
two lots came to be separately owned. The section."
Stanton bought one of the lots in 1948 and
the other in 1 1i We decide that the exercise of rights herein
949 would.be sufficient to prevent a lapse of the
4 Without the variance,the division proposed variance even on the plaintiffs' hypothesized
by Mrs. Stanton would have put the built-on interpretation of § io. We do not attempt a
lot in manifest violation of the'lot area and definition of "exercise" under § io in its
minimum frontage and width provisions. prospective sense. Cf. Hunters Brook Realty
There would be a violation, also, of the side Corp. v. Zoning Bd. of Appeals of Bourne, 14
yard provision because a lot line bounding the MassApp.76,436 N.E.2d 978 (1982).
vacant lot would run within four feet of the Unlike § 1o, some zoning provisions have
existing house. Mrs. Stanton's plan put the
carried definitions of use or exercise. See Ro
proposed house within ten feet of a lot line. y
v. Kurtz, 357 So.2d 1354, 1356 (La.CtApp.),
5 The board indicated that the "lapse" writ denied, 359 So.2d 1307 (La.1978); In re
23o Tenants Corp. v. Board of Standards &
mentioned immediately below, rP
question, y
would.have to be finally decided by the court. Appeals of New York, 1o1 AD.2d 53, 54, 474
in the plaintiffs' action commenced on N.Y.S.2d 498 (1984); In re Appeal of Newton
January 31,1983. Racquetball Associates, 76 Pa.Commw. 238,
242,.464 A.2d 576(1983)•
or
n Meetina Action on Zoning and related Articles -
Date ART A/R/N SUBJECT
IA=Adoat:R�Reiect-N=:No actionl-
3/29/73(cont'd.)Art. .154 R Apply OSRD in Res.D and Res D-2 dists. in Cotuit.
Art. 155._ A Change to Urban Bus, Dist. part of Bus. Dist and Res. B Dist in Hyannis to
increase depth from 200'ft. to 300 ft. from west side of Hinckley Rd. a)on
Rte. 28, and require 25-ft. green-belt.planting along abutting
residentially zoned area.
Art. 156 A Require that 70% of required lot-area square footage be upland.
Art. 157 A Add provisions that where street divides two zoning districts, the district
are deemed to abut,each other.
Arta 159 A Change to Res. F District a Res. D and Res. D-2 District for min: lot size o
IA in Cotuit.
Ar.t:,.160 A Change to Res. F-1 District-a Res. E and Res. E- 1 Distract for min: lot sizE
of to in Prect. i (Barnstable Village).
Art. 161 R Change to Highway Business District-from Res. E and Res. D- 1 (or Res F
after action-under Art. 160, supra) the area along Rte. 132 west of
Phinney's Lane. and establish use and intensity regulations,limiting-uses
offices, banks, apartment, houses,"hotels and motels
Art. :1.62 A, Amend°definition of "Lot
F ,
Art. 163 . R Amend provisions re keeping horses. (IP Arts. 164' & 165'as depende^t o
Art. 163.)
Art. 167 R Estab. conservancy dist: to protect wetlands OP Arts.1.68 &169 as
dependent on Art. 167.)
Art,. 170" R Establish Design Review. Panel
Art. 171 A $'1'5,000 for engineering and/or planning consultant services to the
Planning Bd.-for admin.&planning under subdivision-control.law
STM 71 1 /73 Art. 6 - A Allow.use, by special permit; of regulation-sized, golf course in all zc i.n
districts.
Town of Barnstable, MA . Page 1 of 3
Town of Barnstable,MA
Friday,February3,2oi7
Chapter 240. Zoning
Article VIII. Nonconformities
§ 240-91. Nonconforming lot.
A. Separate lot exemption.Any increase in area,frontage,width,yard or depth requirement of
this chapter shall not apply to a lot for single-or two-family residential use which at the time
of recording or endorsement:
(1) Was not held in common ownership with any adjoining land;and
(2) Had a minimum of 5,000 square feet of area and 5o feet of frontage or the minimum
frontage requirement for the zoning district in which it is located;and
(3) Conformed to the existing zoning if any when legally created;and
(4) Was separately owned at the time of every zoning change which made it
nonconforming.
B. Common lot protection.
(1) Any increase in the area,frontage,width,yard or depth requirement of this chapter shall
not apply for a period of five years from the effective date of the change,to a lot for
single-or two-family residential use that:
(a) Is held in common ownership with not more than two adjoining lots;and
(b) Had a minimum of 7,500 square feet in area and 75 feet of frontage or the
minimum frontage requirement for the zoning district in which it is located;and
(c) Was recorded or endorsed on a plan that conformed to zoning when legally
created;and
(d) Conformed to applicable zoning requirements as of January 1,1976.
C. The protection afforded by Subsection B shall become vested upon the sale or transfer of
the lot so protected into ownership separate from that of adjoining lots or the building
thereon of a residence.
[Amended 1-20-2005 by Order No.2005-0391
D. Approval-not-required plan protection.Any change in uses permitted under this chapter shall
not apply to any lot created by a plan endorsed by the Planning Board as a plan not requiring
approval under the Subdivision Control Law for such period of three years from the date of
endorsement,as provided by MGL Ch.4oA,§6.
E.
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.Town of Barnstable, MA Page 2 of-3
Subdivision plan protection.Any change in this chapter shall not apply to land'shown on a .
plan under the Subdivision Control Law by'a duly submitted and endorsed definitive
subdivision plan,or a preliminary plan followed within seven months by a definitive plan,for
such period of eight years from the date of endorsement,as provided by MGL Ch.4oA,§6.
Any legally created lot with a recorded release from covenant of the Planning Board that has c�
been sold or transferred into separate ownership and control from any adjoining lots within
eight years from the endorsement of the original subdivision plan shall be exempt from any
dimensional or bulk zoning changes and shall not lose its status as a single buildable Iqt under.
zoning: -F. Merged lots. Except as otherwise provided he'rein,`lawfully nonconforming lots that are
adjoining and.held in common ownership,or under the control of the same owner,shall be
treated so as to conform so far as possible with the minimum area requirement of the zoning
district in which they are located. No lot so merged,or portion thereof,may be changed or
transferred in any manner that will increase the degree of nonconformity unless a special
permit has first been obtained from the Zoning Board of Appeals. No such special permit
may create any additional buildable lot(s).
G. Resource Protection Overlay District.
[Amended 10-26-2000]
(1) Any increase i.n area,frontage,width,yard or depth requirements of the Resource
Protection Overlay District shall not apply to a lot for single-or two-family residential
use which immediately prior to November 16,2000,either:
-(a) Conformed to the applicable bulk requirements of this chapter immediately prior.
to November 16;2000:or
(b) Immediately prior to (on the effective date of this chapter,)was protected from
the applicable bulk requirements of this subsection by the provisions of§240-91A, `
B,C,D,or E of this chapter.
(2) ikThis protection afforded by this subsection shall be permanent. "
H. Developed lot protection;-'demolition and rebuilding on nonconforming lots. Preexisting legal
nonconforming lots which have been improved by the construction of a single-or two-family
residence which conformed to all provisions of the zoning ordinance or bylaw at the time of
construction shall be entitled to completely demolish the old residence and construct
thereon'a new residence in accordance with the following.
[Added 11-18-2004 by Order'No.2005-025['J =
(1) As-of-right.The proposed.demolition and`rebuilding shall be permitted as-of-right on a
preexisting legal nonconforming lot that contains a minimum of io,000 square feet of
contiguous upland,provided that the Building Commissioner determines that all-of the
following criteria are met: .
(a) The proposed new structure conforms to all current use and setback. "
requirements of the zoning district it is located in;
(b) The proposed construction conforms,to the following requirements of lot
coverage,floor area ratio and building height:
[1] Lot coverage by all buildings and all structures shall not exceed 20%or the
existing lot coverage,whichever is greater;
[2]
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Town of Barnstable, AN Page 3 of 3,
The floor area ratio shall not exceed 0.30 or the existing floor area ratio of the
structure being demolished and rebuilt,whichever is greater;and
[3] The building height, in feet,shall not exceed 30 feet to the highest plate and
shall contain no-More than 2 1/2 stories.The building height, in feet,shall be
defined as the vertical distance from the average grade plane to plate.
(c) Further expansion of the rebuilt structure must conform to Subsection H(i)(b)
above.
(2) As of right: merged lots each containing a minimum area of 43,56o square feet of
contiguous upland.'Where,immediately prior to November i6,2000,two legally created
contiguous lots each containing a minimum area of 43,56o square feet.of contiguous
upland were: (a) located in the Resource Protection Overlay District and (b) held in
common ownership and (c) improved by the construction of one single-family
residence, including accessory structures which occupied both lots,each said 43,56o
square foot lot may be treated under these provisions as two separate buildable lots,
provided that each of said lots conformed to all the bulk regulations of the zoning
ordinance immediately prior to November i6, 200o, and as long as the other
requirements of§24o-9iH(i)(a)through(c)above are satisfied.
[Added 5-7-2oo9 by Order No:2009-099]
(3) By special permit. If the proposed demolition and rebuilding cannot satisfy the criteria
established in Subsection H(1) above,_hen the Zoning Board of Appeals may allow the
demolition and rebuilding by special permit,provided that the Board finds that:
(a) If the proposed new dwelling does not comply with Subsection H(i)(a) above,
then the proposed yard setbacks must be equal to or greater than the yard
setbacks of the existing building;and
[Amended 2-i7-2oo5 by Order No.2005-058]
(b) All the criteria in Subsection H(1)(b)[i],(2] and [3]above are met.
(c) The proposed new dwelling would not be substantially more detrimental to the
neighborhood than the existing dwelling.
(d) This section shall only apply to Subsection H(2)to the extent that the proposed
demolition and rebuilding cannot satisfy the criteria established in Subsection H(i)
above and shall not be available for relief from any of the other provisions of
Subsection H(2).
[Added 5-7-2oo9 by Order No.2009-099]
[1] Editor's Note:This order also redesignated former Subsection H(2)as Subsection H(3).
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