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HomeMy WebLinkAbout0099 OCEAN DRIVE - Health Ocean ®ri-e . +�r 266=004ii or - -- -vH .r yan sp t� { .A, .~ t r t u I' t " i n E e a y _lot PAGE 1 OF 4 k r Town of Barnstable 3 Board of Health sn�rr�-r>As aeAM 200 Main Street, Hyannis,MA 02601 Office: 508-862-4644 Fax: 508-790-6304 May 11, 2004 Ms. Anne Doerge Middle Fort Road Middleburgh, NY 12112 and Mr. David Crispin, P.E. 657 Route 28 West Yarmouth, MA 02673 RE: 99 Ocean Drive, West Hyannisport, MA/Variance Request A=266-004 Dear Ms. Doerge and Mr. Crispin, This matter came before the Board of Health upon your requests for eight (8) variances to construct a septic system at 99 Ocean Drive West Hyannisport, Massachusetts. The variances requested were specifically from: 310 CMR 15.211: To construct a soil absorption system sixteen (16) feet away from a coastal bank, in lieu of the fifty (50) feet minimum separation distance required. 310 CMR 15.211: To install a septic tank only four (4) feet away from the coastal bank, in lieu of the twenty-five feet (25) minimum separation distance required. 310 CMR 15.211: To construct a soil absorption system at (zero feet away from) a property line, in lieu of the ten feet minimum separation distance required. 310 CMR 15.248: To construct a septic system without providing any space for a reserve area as required. 310 CMR 16.203: To design a septic system with a capacity to handle two bedrooms, 220 gallons per day. Q:crispinrevie2 PAGE 2 OF 4 T .. PART Vill, SECTION 1.00: To construct a soil absorption system sixteen (16) feet away from a coastal bank, in lieu of the one-hundred (100) feet minimum separation distance required. PART VIII, SECTION 1.00: To construct a septic tank four (4) feet away from a coastal bank, in lieu of the one-hundred (100) feet minimum separation distance required. PART VIII, SECTION 1.00: To construct a septic tank ninety feet away from vegetated wetlands, in lieu of the one-hundred (100) feet minimum separation distance required. As is discussed more fully below, after holding a hearing on April 20, 2004 and reviewing the evidence, the Board voted to deny the request for variances. Background Information This parcel is 47, 717 square feet in size. Out of 47,717 square feet, 35,921 square feet, or 75%, of the property is wetland. This parcel is assessed at a value of$9,400. Discussion of Evidence and Findings by the Board 1. The Town of Barnstable Coastal Health Resource Coordinator, Dale Saad, Ph.D. in engineering, provided a letter dated April 20, 2004 which indicated that the proposed work is located within a designated "Area of Concern" as part of the Town's Wastewater Facilities Plan. This area is defined as "an area of concern" due to the impacts of development resulting from small lot sizes, proximity to wetlands, and coastal banks. 2. Dr. Saad provided information which indicated that this property is within the watershed of an area closed to shellfishing due to high bacterial contamination. This property also directly abuts this area which is closed to shellfishing due to high bacterial contamination (see attached map of Squaw Island/Hall's Creek). 3. Dr. Saad additionally noted that the wetland adjacent to this site is one of the areas included in the Massachusetts Estuaries Project. 4. A letter dated April 20, 2004 was received from Mr. John and Mrs.Margaret Berry which indicated that the "proposed soil absorption system would be located on sandy soil subject to movement and shifting during times of high water and storms." "The swale that-is proposed would further concentrate and redirect run- off onto the abutting property and directly into the salt marsh." The letter further indicated that this variance request to place a soil absorption system eight feet away from the coastal bank would "pose serious risk to erosion of the coastal Q:crispinrevie2 PAGE 3 OF 4 banks. The proposed slopes are excessively steep; landscaping would be difficult to maintain further eroding of the bank." Mr. and.Mrs. Berry also indicated that the "excavation for the septic and drainfield would extend into the private road resulting in a hardship for the residents since Ocean Drive dead- ends. Traffic would potentially be restricted east of#99." In addition, the letter indicated "since the proposed reserve area is to be located within the primary SAS, there is effectively no reserve area" provided on the plan. 5. Ms. Nina Tepper and Mr. William Stewart provided a letter dated April 20, 2004 which indicated "being so close to a coastal bank, the property stands to experience soil instability, rising groundwater levels under the septic system, and increased flooding, especially during high tide storms." Their letter further indicated that "this property experiences active shifting and soil instability." 6. Also, the plan was reviewed by Thomas McKean, R.S., C.H.O. It was determined that the submitted engineering plan was deficient. The application letter dated April 20, 2004 consisted of requests for eight variances. However the submitted plan listed only six variance requests. The variance requests proposed relative to the separation distance between the proposed septic tank and the vegetated wetlands (Part VIII, SECTION 1.00) and the variance request proposed relative to the five feet separation distance proposed between the septic tank and the coastal bank (PART VIII, SECTION 1.00) were not included on the submitted plan dated April 4, 2004. 310 CMR 15.220 clearly states that the plan shall include a "list of all variances to the provisions of 310 CMR 15.000 sought in conjunction with the plan." 7. The applicant's engineer, David Crispin, P.E., P.L.S., stated in his letter dated April 20, 2004 that "there is no difference from this system being near a coastal bank and being near the mound of a raised system because the septic tank will be water-tight." However, this statement does not address the impacts which will occur from wastewater discharges from the proposed soil absorption system sixteen feet away from a coastal bank as proposed. 8. The engineer representing the applicant, David Crispin, P.E., P.L.S., stated in his letter dated April 20, 2004 that "a reserve area is not necessary because a failed system is typically installed in the same location when failed." However, most systems are designed with reserve areas as required by the minimum standards within the State Environmental Code. Also, past septic system repair records have shown that it is usually preferable to install a soil absorption system within the designed reserve area when the primary system fails. 9. A majority of the variances requested are significant in nature, in excess of 50% of the minimum requirements, including a request for a 92 feet variance out of the 100 feet setback requirement in regards to the minimum separation distance between a soil absorption system separation and a coastal bank. Also, a 21 feet variance was requested out of 25 feet minimum setback required in Q'crispinrevie2 i PAGE 4 OF 4 regards to.the minimum separation distance between a septic tank and a coastal bank. In addition, the soil absorption system was proposed to be located zero feet away from the property line in lieu of the ten feet minimum separation distance required (a 100% variance). These setback requirements are minimum standards within the State Environmental Code. 10. 310 CMR 15.003 (1) reads as follows: `Full compliance with the provisions of 310 CMR 15.000 is presumed by the State Department of Environmental Protection to be protective of the public health, safety, welfare, and the environment.' This application consisted of requests for eight (8) variances. It is the finding of the Board of Health that the granting of eight variances for the construction and use of a septic system at this site would not prove to be protective of public health, welfare and the environment. Based upon the evidence on the record before the Board, it was determined that you failed to demonstrate that the strict enforcement of the particular provisions of 310 CMR 15.000 and the town regulations from which variances were sought would be manifestly unjust and you failed to establish that a level of environmental protection that is at least equivalent to that provided under 310 CMR 15.000 can be achieved without strict application of the provisions of 310 CMR 15.000 from which multiple variances are sought, as specifically required by 310 CMR 15.410. Therefore, your request for variances is denied. Sin rely, Way Miller, M.D., Chairman usan G. Ra i Sumner Kaufman, M.S.P.H. BOARD OF HEALTH TOWN OF BARNSTABLE cc:Michael Ford,Esq Q:crispinrevie2 I ILIMassachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 4A'-Abbreviated Notice of Resource Area Delineation Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP And Town of Barnstable Ordinances Article XXVII A. General Information Important: When filling out 1. Applicant: forms on the Anne Doerge computer, use Name on ly the tab E-Mail Address(if applicable) key to move Middle Fort Road your cursor- Mailing Address do not use the Middleburgh NY 12112 return key. Cityfrown State Zip Code Phone Number Fax Number(if applicable) 2. Representative (if any): BSC Group, Inc . Firm Norman Hayes nhayes@bscgroup.com Contact Name E-Mail Address(if applicable) 384 Washington Street Mailing Address Norwell MA 02061 City/Town State Zip Code (781)659- 7981 (617)345-8027 Phone Number Fax Number(if applicable) 3. Property Owner(if different from applicant): Anne Doerge Name Middle Fort Road Mailing Address Middleburgh NY 12112 Cityfrown State Zip Code 4. Total Fee: $100.00 (from.Appendix B:Wetland Fee Transmittal Form) 5. Project Location: 99 Ocean Drive Hyannisport(Barnstable) Street Address City/Town 266 4 Assessors Map/Plat Number Parcel/Lot Number 6. Registry of Deeds: Barnstable 3041 343 County Page Certificate(if Registered Land) KARING t^ SEP - 5 2003 'SEP 2 3 2003 BARNSTABLE CONSERVATION �aforrr4a.doc•rev.12/15/00 Dit i Page 1 of 3 t r Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands DEP File Number: WPA Form 4A — Abbreviated Notice of Resource Area Delineation Lln Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by DEP And Town of Barnstable Ordinances Article XXVII B. Area(s) Delineated 1. Bordering Vegetated Wetland (BVW): Approximately 210 linear feet of Bordering Vegetated Wetland Linear Feet of Boundary Delineated 2. Check all methods used to delineate the Bordering Vegetated Wetland (BVW) boundary: ❑ DEP BVW Field Data Form (attached) ® Other Methods for Determining the BVW boundary(attach documentation, See Project Description): ® 50% or more wetland indicator plants ® Saturated/inundated conditions exist ® Groundwater indicators ® Direct observation ® Hydric soil indicators ❑ Credible evidence of conditions prior to disturbance. 3. Indicate if any other resource area(s)are delineated: Resource Area(s): Land Subject to Coastal Storm Flowage Coastal Bank (State and Town of Barnstable) �J C. Additional Information Include the following with this Abbreviated Notice of Resource Area Delineation: a.) USGS or other map of the area (along with a narrative description, if necessary), containing sufficient information for the Conservation Commission and the Department to locate the site. b.) Plans identifying the boundaries of the Bordering Vegetated Wetlands (BVW)(and other resource areas, if applicable). c.) Other material identifying and explaining the determination of resource area boundaries shown on I plans (e.g., a DEP BVW Field Data Form). IIII d.) List the titles and final revision dates for all plans and other materials submitted with this Abbreviated Notice of Resource Area Delineation. wpaform4a.doc•rev.12/15/00 Page 2 of 3 Sep 02 03 09:53a Allen Spencer 5188276566 p. 2 AUG-29-2003 FRI 10;07 AM BSO NORWELL FAX NO. 6173458027 P. 02 Massachusetts Department of Environmental Protection Bureau of Resource Protection-Wetlands DEP File Number. WPA Form 4A —Abbreviated Notice of Resource Area Delineation Massachusetts Wetlands Protection Act M.G.L.c. 131,§40 Prortded by DEP And Town of Bamstable Ordinances Article XXVII D. Fees The fee for work proposed under each Abbreviated Notice of Resource Area Delineation must be calculated and submitted to the Conservation Commission and the Department(see Instructions and Appendix B:Wetland Fee Transmittal Form). E. Signatures and Submittal Requirements I hereby certify under tha penalties of perjury that the foregoing Abbreviated Notice of Resource Area Delineation and accompanying plans,documents,and supporting data are true and complete to the best of my knowledge.1 understand that the Conservation Commission will place notification of this Notice in a local newspaper at the expense of the applicant in accordance with the wetlands regulations,310 CMR 10.05(5xa). further certify under penalties of perjury that all abutters were notified of this application,pursuant to the requirements of M.G.L.c.131,§40.Notice must be made In writing by hand dellvery or certified mail (return receipt requested)to all abutters within 100 feet of the property line of the project location. Signature of Appticant Data Signature of Propeny Owner(d d,ffeYnt Date e o epre9entab%e(►f ny g For Conservation Commission: Two copies of the completed Abbreviated Notice of Resource Delineation(WPA Form 4A),including supporting plans and documents;two copies of pages 1 and 2 of Appendix 9;and the city/town fee Payment must be sent to the Conservation Commission by certified mail or hand delivery. For DEP: Two copies of the completed Abbreviated Notice of Resource Delineation(WPA Form 4A),including supporting plans and documents:two copies of pages 1 and 2 of Appendix B;and a copy of the state fee Payment must be sent to the DEP Regional Office(see Appendix A)by certified mail or hand delivery. The DEP copies must be sent at the some time as the application submission to the Conservation Commission.Failure by the applicant to send copies in a timely manner may result in dismissal of the Abbreviated Notice of Resource Area Delineation. wpalamra.ex•rvv.,LSSNo rave 3 ar 7 r a. BS.' ,C` GR' OU P 's E , ff -657 Main Street, Route 28 TUB,;, • West Yarmouth, MA : A, 'rt DEPT., ., E oz673 December 3; 2003' _ Te1,:5o8 778-8919 Fax: 568=778 8966 RE: 99.Ocean Drive, Hyannisport,MA -Dear Abutter: -,Pleak,be,advised that ai%application for variances from the',Regulations of the Mass. •be artment of Environmental Protection Title 5 and/or-the Town';of Barnstable Regulations for Subsurface Disposal'of Sewage, has been submitted to the.Barnsiablei. Health Departrriem for approval: The=Locus is showri on assessors'map 266; parcel 4 and-as#99 Ocean Drive, Hyannisport... / The application and plans�are available for-review at the Barnstable Health Department; Barnstable Town Annex, E -IYlain'.Street, Hyannis;•MA 02601 (508);862-4644,. A Public Meeting is.,scheduled.for December.16, 2003 at 7.00pm at the Barnstable.town hall. ._ `Sincerely ieran J Healy, IT The BSC Gr6up, Inc. cc Barnstable Health Department. Engineers ; Environmental, F ''t Scientists GIS'Consultants` Landscape 'Architects,' Planners Surveyors Dec 06 03 12:57p R11en Spencer 5188276566 p. 1 C11tw; a. -Ooze 13.E C dd�e g a .Yfoad "q& .woe 232 �ifTiddle6uag0, C/Y 4�,d '2722 December 6,2003 To Whom It May Concern: I give authority to BSC Engineering, Michael Ford, Esq., to represent me or my interest before the Town of Barnstable Committee hearings. Anne A. Doerge I Town of Barnstable Regulatory Services F THE Tp� c Thomas F. Geiler,Director CAB Public Health Division BAM9q, MASS.: Thomas McKean,Director RFD N1°�A 200 Main Street, Hyannis, MA 02601 Office: 508-862-4644 Fax: 508-790-6304 TO: Barnstable Board of Health CC: Thomas McKean, Di ector, Public Health Division FROM: Dale Saad, Ph.D. 25,1. Coastal Health Resource Coordinator DATE:... April 20, 2004 RE: . .99.Ocean Drive,Hyannis (Map 266-004) I have reviewed the sewage disposal system plan(dated 4/4/04 by BSC Group) for the above.reference property and have the following comments: • The plan calls for six (6) variances from either Title 5 or Town of Barnstable Health regulations for the construction of a new, single-family dwelling. • Two (2)variances are missing that deal with the new location of the reserve area to be placed in the area of proposed primary S.A.S. (see bottom of page two). • The majority of the variances requested are significant in nature, ranging from 21 out of 25 feet to.92.out of 100 feet and involve setbacks to the + coastal bank, an important resource area. In the event of a severe storm, the house and septic system could be in jeopardy by being built in, or in such close proximity to, the coastal bank. • The most insignificant variance.is not environmental in nature but involves a setback to the street line(variance of 10 out of 10 feet). • The lot,while having a total size of 47,717 S.F.,has only 11,796.S.F. of upland, an amount that would support only a one-bedroom house if in a nitrogen sensitive area. The applicant is apparently aware of the environmental sensitivity of the parcel in that they are willing to accept a deed restriction to two (2)bedrooms. The proposed floor plans should be carefully reviewed to ensure the two-bedroom maximum. • The lot is located in one of the Areas of Concern as listed in the Waste Water Facility Plan (WWFP). This area was included due to the impacts of existing development resulting from small lot sizes, depth to groundwater problems,proximity of wetlands and coastal banks, etc. The new construction proposed would add to an already impacted system by Page I of 2 I requiring many of the same variances that have been problematic in the past. • The Squaw Island area, including the waters adjacent to this site, is currently closed to shellfishing due to bacterial contamination. • The waters adjacent to the site is one of the areas include in the Massachusetts Estuaries Project. • There are many other parcels, in the immediate area and throughout Barnstable, that are similar to this parcel and the variances required to develop it (in both number and magnitude). For many years, these parcels have been considered as"un-buildable" for the reasons mentioned above. f Massachusetts Title 5: 310-15.211 , Proposed reserve area to.existing coastal bank(50' required). 16' provided. A variance of 34' is requested. r Town of Barnstable Board of-Health: i At Proposed reserve area to.coastal bank(100' required) 8' provided. A variance of 92'.is requested. a Page 2 of 2 Town of Barnstable Regulatory Services Thomas F. Geiler,Director y Public Health Division * saxxsrABIS, 9 � MASS. Thomas McKean,Director 200 Main Street, Hyannis, MA 02601 Office: 508-862-4644 Fax: 508-790-6304 TO: Barnstable Board of Health CC: Thomas McKean,Director,Public Health Division FROM: Dale.Saad,Ph.D. Coastal Health Resource Coordinator DATE: .. January 18,2004 RE: 99 Ocean Drive,Hyannis (Map 266-004) I have reviewed the sewage disposal system plan(dated 11/14/03.by BSC Group) for the above reference property and have the following comments: • The plan calls for eight(8) variances from either Title 5 or Town of Barnstable Health regulations for the construction of a new, single-family dwelling. • The majority of the variances requested are significant in nature, ranging from 23 out of 25 feet to 96 out of 100 feet and involve setbacks to the coastal bank, an important resource.area.In the event of a severe storm, the house and septic.system could be in jeopardy by being built in, or in such close proximity to,the coastal bank. • The.most insignificant variance is not environmental in nature but involves a setback to the street line. • The lot,while having a total size of 47,717 S.F.,has only 11,796 S.F. of upland, an amount that would support only a one-bedroom house if in a . nitrogen sensitive.area..The applicant is apparently aware of the environmental sensitivity of the parcel in that they are willing to accept a deed restriction to two(2)bedrooms. The proposed floor plans should be carefully reviewed to.ensure the two-bedroom maximum. • The lot is located in one of the Areas of Concern as listed in the Waste Water Facility Plan(WWFP). This area was included due to the impacts of existing development resulting from small lot sizes, depth to groundwater problems,proximity of wetlands and coastal banks, etc.The new construction proposed would add to an already impacted system by requiring many of the same variances that have been problematic in the past. • The Squaw Island area, including the waters adjacent to this site, is currently closed to shellfishing due to bacterial contamination. Page 1 of 2 r j i' • The waters adjacent to the site is one of the areas include in the Massachusetts Estuaries Project. There-are many other parcels, in the immediate area and throughout Barnstable,that are similar to this parcel and the variances required to develop it (in both number and magnitude).For many years, these parcels have been considered as "un-buildable" for the reasons mentioned above. 's Page 2 of 2 „ INVERT AT END --- 'OF LEACHING TRENCH 11.82 H ELEVATION AT BOTTOM _ OF LEACHING TRENCH 9.82- ESTIMATED GROUNDWATER � NDWATER ELEVATION 4.2 K _ VARIANCES REQUESTED.- i `� I�IASSACHUSETTS TITLE 5• � ' 211 ��PROPOSED S.A.S. TO EXISTING COASTAL $ , rj 16' PROVIDED. A VARIANCE OF 34' IS REQUESTED. REQUIRED) �tr PROPOSED S.A ' .S. AREA TO EXISTING STREET LINE (1 fl' REQUIRED) 50 PROVIDED. A VARIANCE OF 10' IS REQUESTED. PROPOS ED SEPT IC TANK TO EXISTING .COASTAL BANK (25' REQUIRED) ) 4' PROVIDED. A VARIANCE OF 21' IS REQUESTED. ASSACH I I n_15.248 y ' RESERVE AREA TO BE PLACED 1N AREA OF PROPOSED PRIMARY S.A.S. V r TITLE V• SECTION 15.20 3 V17 ,,DESIGN FLOW OF 220 GPD REQUESTED IN L v REQUIRED. A TWO BEDROOM IEU OF THE MINIMUM 330 GPD u DEED RESTRICTION IS TO BE RECORDED. e � L t 1 1 I I i fi TOWN pF BAR# STAB E BOARD OF HEALTH: (-----'PROPOSED S.A.S. AREA TO COASTAL BANK 100' 8' PROVIDED. ( REQUIRED A VARIANCE OF 92 IS REQUESTED. ) gg , 0 5eA rf_5e-(`K �U U Nru r 2 S re��2�-�c , D p� Q 0 r r i . i 4 L.L-L- VIA l l V 1 v I I ✓V I I V I 1 . OF LEACHING TRENCH 10.82 J ESTIMATED GROUNDWATER ELEVATION 4.2 K VARIANCES REQUESTED: MASSACHUSETTS TITLE 5: 310-15.211 PROPOSED S.A.S. TO EXISTING COASTAL BANK (50' REQUIRED) 2' PROVIDED. A VARIANCE OF `Ar8' IS REQUESTED. PROPOSED S.A.S. AREA 3 '0 OSED S.A.S EA TO EXISTING STREET LINE (10 REQUIRED) �68' PROVIDED. A VARIANCE OF 2' IS REQUESTED. lo \,PRGPOSED RESERVE TO EXISTING COASTAL BANK (50' REQUIRED) � � '4' PROVIDED. A VARIANCE OF 46' IS REQUESTED. a C PROPOSED SEPTIC TANK TO EXISTING COASTAL BANK (25' REQUIRED) e =-/,2�' PROVIDED. A VARIANCE OF 2-3, � IS REQUESTED. TITLE V: SECTION 15.203: DESIGN FLOW OF 220 GPD REQUESTED IN LIEU OF THE MINIMUM 330 GPI s REQUIRED. A TWO BEDROOM DEED RESTRICTION IS TO BE RECORDED. g N M W a m TOWN OF BARNSTABLE BOARD OF HEALTH: E 0 . �PROPOS D RESERVE AREA.. TO EXISTING WETLANDS (100' REQUIRED) a �S 61,k 86' PR VIDED. A VARIANCE OF 14' IS REQUESTED. r 1 �, PROPO E S.A.S. AREA TO EXISTING WETLANDS (100' REQUIRED) 93' PR IDED. A VARIANCE OF "Y IS REQUESTED. a PROPO S.A.S. AREA TO COASTAL BANK (100' REQUIRED) CA! VIDED. A VARIANCE. OF 96' IS REQUESTED. 0 a N Ol U a w TOWN OF BARNSTABLE CONSERVATION COMMISSION TO ALLOW A BUILDING IN A COASTAL BANK TO ALLOW -A BUILDING WITHIN \50' OF A COASTAL 'BANK. n a a Town of Barnstable Op IME Board of Health BARNSTASLE, P.O.Box 534,Hyannis MA 02601 9 MASS. i639• �0 AjED rAA'�A Agreement to Extend Time Limit for Acting Upon a Variance Request In the Matter of a variance request form eceived on the Petitioner(s), regarding the property at 99 e r,ve- s vt- MA , the petitioner(s) and the Board of Health agree that the Board of ealth has until T-I& -20 ?,�)oC( (insert date)to act upon the Petitioners'completed application for a variance. In executing this Agreement, the Petitioner(s) hereto specifically waive any claim for a constructive grant of relief based upon time limits applicable prior to the execution of this Agreement. Petitioner(s)): Board of He h: Signatu Signature: Petitioner(s)or Petitioner's Representat kq Chairman Print: Print: rt Date: Z0d3 Date: 2*6e 2d� Address of Petitioner(s)or Petitioner's Representative Town of Barnstable Board of Health Town Hall Public Health Division Office 367 Main Street, Hyannis, MA 02601 Phone(508)862-4644 Fax(508)790-6304 file q:extend.doc RECEIVIED DEC 3 1 2003 Nina Tepper & William Stewart 158 3rd Avenue TOWN of BARNSTABLE HEALTH DEPT. West Hyannisport, MA 12/23/2003' i Town of Barnstable Board of Health P.O. Box 534 Hyannis, MA 02601 Dear Board of Health, Thank you for allowing us to speak at the December 16 meeting. We are forwarding a recent letter we wrote to the Conservation Commission. Within the document are many of the same points we raised at the Board of Health meeting with some additions. We have also contacted the Audubon Society, because of the delicate ecosystem of birds, shellfish, plantlif e, and other wildlife that would be affected if this project proceeds. This marsh is also on the path for hundreds of migrating birds: Again, we urge you not to approve these variances as they contradict most of your own regulations and your committment to public health and conservation. We look forward to the January 20th meeting, after your site visit, hoping you will conclude that moving forward with these variances would not be in the public's best interests. Thank you again for the work you do. Sincerely -- Nina S. Tepper Wi I I i�am H: Stewart t Dec 09 03 10: 56a Nina Tepper (413) 534-8119 p. 2 I William and Nina Tepper-Stewart 158 3rd Avenue West Hyannisport, MA 12/07/2003 Town of Barnstable Board of Health P.O. Box 534 Hyannis, MA 02601 We are asking to be put on record opposing applications for variances from the Regulations of the Mass Department of Environmental Protection,Title 5 and the Town of Barnstable Regulations for Subsurface Disposal of Sewage. The Locus is shown on assessors map 266, parcel 4 and as#99 Ocean Drive, Hyannisport. According to tax records, this property had been deemed"unbuildable" over the years and the owners had been paying lower taxes to reflect this. Two questions arise from this. Frst, what has changed that makes this property now "buildable"? Second, wouldn't the owners have to pay back taxes for the property if it is deemed buildable? The"State Environmental Code,Title 5,specifies that such an application falls in the jurisdiction of the local Board of Health. With that in mind,there are three regulations adopted by the Board of Health of the Town of Barnstable that we will address concerning this application. The first is under the provisions of General Laws,Chapter II1, Section 31,"The One Hundred (100) Feet Setback Regulation." Interestingly,this regulation was originally adopted 4/23/77 and revised this past 5/27/2003,effective date 6/13/2003. According to this regulation; "Unless otherwise specified by the Board of Health, all soil absorption systems, leaching facilities, septic tanks, disposal fields,or other sewage disposal system components hereafter constructed shall be so located that a distance of not less than 100 feet intervene between any bordering vegetated wetland(as defined within 310 CMR 15.002 of the State Environmental Code,Title 5,Minimum Requirements for the Subsurface Disposal of Sanitary Sewage) and/or watercourse including brooks, ponds,salt and fresh water marshes, logs, streams, coastal banks, lakes or spring high water mark of tidal waters and any portion of any soil adsorptions system, leaching facility, septic tank, disposal field, or other sewage disposal system component" It would appear to anyone looking at how recently this regulation was reviewed, that both the generation before and those in leadership of the Board of Health presently share in a concern and understanding of protecting our coasts from possible pollution. Less than 6 months after the review of this regulation, we would think the Board of Health would want to maintain its role as serious regulators and protectors of a healthy environment for now and the future and not risk a variance to this regulation at this time. Recent variances granted on Ocean Drive should not be interpreted at a precedent that can apply to subsequent applications. The conditions for each application must be reviewed individually. Although we have concerns about these recently granted variances,we are aware that the property granted variances had an existing dwelling. True that most of the homes on Ocean Drive may be considered "non-conforming",we must remember that all but our recently built home(which was. required to abide by current regulations in order to make it"conforming)were build years before the current regulations came into effect. These laws were written,we assume, to protect the coast from further building that might jeopardize the marshes. Lot#99 does not have an existing Dec 09 03 10: 56a Mina Tepper (413) 534-8119 p. 3 Tepper-Stewart page 2 structure and should not be given the same consideration as those who must improve and maintain property already established. The second regulation is Chapter 111, Section 31 and section 127A: concerns"Soil Stability". The regulation states: "Septic sewage systems shall not be installed in any area where there is active shifting of sands or earth. This would include sand dunes, some areas of coastal beach and other areas subject to wind-borne-free moving soil." , My husband grew up on the property directly across the street from Lot#99. Over the years we have photographs that can document the"active shifting of sands or earth" in the marshes. During hurricane season the marsh waters come within 2 to 3 feet of the road on Ocean Drive,flooding the basements and yards of nearby homes,passing over the land that might contain this proposed septic system.This is another example that might violate the "100 Feet Setback" Regulation as well. This brings us to the third regulation, the"Flood Plain Sewage Regulation." If, beyond our better judgment,this project is approved,the Board of Health would be held responsible to insure that the permit follows the laws of Section 31,Chapter 111,of the General Laws of the Commonwealth of Massachusetts. This states that: "Permits for on-site sewage disposal or water supply may be approved for construction when located within zones "A" and"V" I as designated on F.I.A. Flood Insurance Maps Numbers H + 1-04,effective April 3, 1978 on file with the Town Clerk Planing Board, Building Inspector, and Board of Health, when it is demonstrated by the applicant that in the event of flooding to base elevations such facilities are designed to supply minimize contamination. Any new or replacement water pp y system or sanitary sewerage system within such area shall be designed to minimize or eliminate infiltration of flood waters into the system and discharges from the system into flood waters. Applicant shall also comply with all provisions of the Massachusetts Department of Environmental Quality Engineering, Title V and all Town of Barnstable Health regulations." If the Board of Health determines that this property does not have to comply with ALL the Town of i Barnstable Health regulations, there must be the awareness that there WILL be flooding at times and even "minimal" infiltration of floodwaters into the system and discharges from the system into flood waters is unacceptable and will likely result in pollution over time. Knowing the potential for disaster years after our stay on earth, should we take the chance today to give variances that go against the dialogue and judgment put into the writing of these regulations by previous and present Board of Health members? I hope the Board of Health determines,after all these concerns are measured,that it must continue to respect and take responsibility for the coast line,the marshes,the abutting neighbors,and the gift nature has provided. I urge you not to approve these variances. Thank you for the opportunity to be on the agenda- Signed,.. . Mina S.Teppe; _L William H. Stewart Nina S.Tepper&William H. Stewart Jr. 1.58 3rd Avenue West Hyannisport, MA 12/21/2003 Town of Barnstable Conservation Commission 367 Main Street Hyannis,MA 02601 Dear Conservation Commission, Within the past month,we have become aware that owners of property located on assessors map 266, parcel 4 and as#99 Ocean Drive,West Hyannisport are attempting to obtain numerous variances to build a two bedroom house on sensitive marshland within 100 feet of the coastal banks. As abutters we have felt compelled to challenge this request for all the harm it could bring. At the last December 16 Board of Health meeting,we came from Western Mass to address our concerns. In doing the research on this case, we can see how intertwined are the concerns of public health and conservation. With that in mind,we wanted to share with you the issues we presented to the Board of Health and to begin a dialogue with the Commissioners on the conservation issues that bring us all concern. If this issue makes it to your Commission,we want our views opposing this project to be put on record. To begin,Article XXVII of"Wetlands Protection" regulations of the Town of Barnstable Conservation Commission states its purpose,"to protect wetlands and related water resource,and their values and functions,including,but not limited to,the following: public or private water supply;ground water;storm damage prevention;flood control;erosion and sedimentation control; prevention of water pollution;wildlife habitat; shellfish;agricultural and aquacultural values;and , historical values. The property in question falls within this Article especially when we consider the wildlife habitat on this.property that now provides a home to endless species of birds,shellfish, and salt marsh vegetation which would be forever altered. This property is requesting a 96 foot variance from the Board of Health to place the septic system within 100 feet of the coastal banks. They only have four feet within which to work. There is no room to build the house within all setback requirements including being 20 feet from the road. This property would have to"fill,dredge,or alter in or within 100 feet of the vegetated wetland" in order to build this house. As we stated to the Board of Health,this land is subject to flooding and tidal action,especially during storms. Is it reasonable to ignore all regulations written by the Board of Health and the Conservation Commission to protect these wetlands in order to build a two bedroom house? In what ways will this benefit the public? As you have been informed,this property was already `filled,dredged,and altered' in order to perform a perk test. They bulldozed and tore out marsh vegetation without permission, violating the"Wetlands Protection" regulation. This should be enough to raise concern. At the December 16 Board of Health meeting we made the following statement asking to be put on record opposing applications for variances from the Regulations of the Mass Department of Environmental Protection,Title 5 and the Town of Barnstable Regulations for Subsurface Disposal of Sewage. The Locus is`shown on assessors map 266, parcel 4 and as#99 Ocean Drive, Hyannisport. . According-to tax'.records,"this property had been deemed"unbuildable" over the years and the owners had been paying lower taxes to reflect this. What has changed that makes this property now "buildable"? William H. Stewart Sr., the previous abutter to#99, was a staunch conservationist, who understood that this property was protected by the Conservation Commission and worked as a Shellfish Warden to protect the delicate scallops,clams,crabs, ells,quahogs and others that breed there. He was an avid bird watcher as well. He understood the importance of protecting the marshes and was told by previous Commissioners that the land was"unbuildable." Tepper-Stewart page 2 The State Environmental Code,Title 5, specifies that such an application falls in the jurisdiction of the local Board of Health. With that in mind,there are three regulations adopted by the Board of Health of the Town of Barnstable that we will address concerning this application. The first is under the provisions of General Laws,Chapter III, Section 31,"The One Hundred(100) Feet Setback Regulation." Interestingly,this regulation was originally adopted 4/23/77 and revised this past 5/27/2003, effective date 6/13/2003. According to this regulation; "Unless otherwise specified by the Board of Health, all soil absorption systems, leaching facilities,septic tanks,disposal fields,or other sewage disposal system components hereafter constructed shall be so located that a distance of not less than 100 feet intervene between any bordering vegetated wetland (as defined within 310 CMR 15.002 of the State Environmental Code,Title 5, Minimum Requirements for the Subsurface Disposal of Sanitary Sewage)and/or watercourse including brooks, ponds,salt and fresh water marshes, logs, streams,coastal banks, lakes or spring high water mark of tidal waters and any portion of any soil adsorptions system, leaching facility, septic tank, disposal field, or other sewage disposal system component." We understand that#99 is requesting a SAS (leaching field) in close proximity to the coastal banks and salt marshes. Actually,of the 100 feet required,they have only 4 feet available, making this a variance of 96 feet. If a 96 foot variance is approved, we can't help but wonder what good it will be to keep this regulation on the books. It will be as good as obsolete,taking much authority away from the Board of Health. It would appear to anyone looking at how recently this regulation was reviewed,that both the generation before and those in leadership of the Board of Health presently share in a concern and understanding of protecting our coasts from possible pollution. Less than 6 months after the, review of this regulation, we would think the Board of Health would want to maintain its role as serious regulators and protectors of a healthy environment for now and the future and not risk a variance to this regulation at this time. Recent variances granted on Ocean Drive should not be interpreted at a precedent that can apply to subsequent applications. The conditions for each application must be reviewed individually. Although we have concerns about these recently granted variances, we are aware that the property granted variances had an existing dwelling. True that most of the homes on Ocean Drive may be considered"non-conforming", we must remember that all but our recently built home(which was required to abide-by,current regulations in order to make it"conforming).were built years before the current regulations came into effect. These laws were written, we assume,to protect the coast from further building that might jeopardize the marshes., Lot#99 does not have an existing structure and should not be given the same consideration as those who must improve and maintain property already established. , The second regulation is Chapter 111, Section 31 and section 127A: concerns"Soil Stability". The regulation states: "Septic sewage systems shall not be installed in any area where there is active shifting of sands or earth. This would include sand dunes, some areas of coastal beach and other areas subject to wind-borne-free moving soil." My husband grew upon the property directly across the street from Lot#99. Over the years we have photographs that can document the"active shifting of sands or earth"in the marshes. During hurricane season the marsh waters come within 2 to 3 feet of the road on Ocean Drive,flooding the basements and yards of nearby homes, passing over the land that might contain this proposed septic system.This is another example that might violate the"100 Feet Setback" Regulation as well. Sea level is rising more rapidly along the U.S. coast than worldwide. The Environmental Management 15:39-58 (1991)cited studies by the EPA and others to"have estimated that along Tepper-Stewart page 3 the Gulf and Atlantic coasts,a one foot rise in sea level is likely by 2050. In the next century,a two foot rise is most likely, but a four foot rise is possible;and sea level will probably continue to rise for several centuries,even if global temperatures were to stop rising a few decades hence." A four foot change in sea level could place this proposed septic system underwater within the coastal banks and salt marshes. This statement continues,"Coastal marshes and swamps are particularly vulnerable to rising sea level because they are mostly within a few feet of sea level. Attempting to hold back the a prevent new marsh from forming and result in a total loss of marshes with bulkheads etc. m g YP marsh in some areas."This house will likely struggle with flooding and try to stem the tides. Even if the engineers can boast of new technology, as time passes and today's technology becomes outdated and worn,this leaching field will be even closer to the wetlands if not inundated by water. Is building a two bedroom house worth the risk? This brings us to the third regulation,the"Flood Plain Sewage Regulation."If, beyond our better judgment,this project is approved,the Board of Health would be held responsible to insure that the permit follows the laws of Section 31,Chapter 111,of the General Laws of the Commonwealth of Massachusetts. This states that: "Permits for on-site sewage disposal or water supply may be approved for construction when located within zones "A" and "V" I as designated on F.I.A. Flood Insurance Maps Numbers H + 1-04, effective April 3, 1978 on file with the Town Clerk Planing Board, Building Inspector,and Board of Health, when it is demonstrated by the applicant that in the event of flooding to base elevations such facilities are designed to minimize contamination. Any new or replacement water supply system or sanitary sewerage system within'such area shall be designed to minimize or eliminate infiltration of flood waters into the system and discharges from the system into flood waters. Applicant shall also comply with all provisions of the Massachusetts Department of Environmental Quality Engineering, Title V and all Town of Barnstable Health regulations." P If the Board of Health determines that this property does not have to comply with ALL the Town of Barnstable Health regulations,there must be the awareness that there WILL be flooding at times and even "minimal"infiltration of floodwaters into the system and discharges from the system into flood waters is unacceptable and will likely result in pollution overtime. Knowing the potential for disaster years after our stay on earth, should we take the chance today to give variances that go against the dialogue and judgment put into the writing of these regulations by previous and present Board and Commission members? 1 hope the Board of Health and Conservation Commission determines,after all these concerns are measured,that it must continue to respect and take responsibility for the coast line,the marshes,the abutting neighbors, and the gift nature has provided. We urge you not to approve these variances as they contradict most of your own regulations and your committment to conservation and public health. Thank you for the opportunity to be on the agenda. Nina S. Tepper William H. Stewart CC: Board of Health Audubon Society Town of Barnstable Regulatory Services Thomas F. Geiler,Director P� + BARN LE, : Public Health Division v� 6 9 � Thomas McKean,Director ArFO N1°�a 200 Main Street, Hyannis, MA 02601 Office: 508-862-4644 Fax: 508-790-6304 TO: Barnstable Board of Health CC: Thomas McKean,Director,Public.Health Division FROM: Dale.Saad, PhD. � Coastal Health Resource Coordinator DATE: .. January 18, 2004 RE: 99 Ocean Drive,Hyannis (Map 266-004) I have reviewed the sewage disposal system plan(dated 11/14/03 by BSC Group) for the above reference.property and have the following comments: • The plan calls for eight (8) variances from either Title 5 or Town of Barnstable Health regulations for the construction of a new, single-family dwelling. • The majority of the variances requested are significant in nature, ranging from 23 out of 25 feet to 96.out of 100.feet and involve setbacks to the coastal bank, an important resource area. In thee event of a severe storm, the house and septic.system could be in jeopardy by being built in, or in such close proximity to,the coastal bank. • The most insignificant variance is not environmental in nature but involves a setback to the street line. • The lot,while having a total size of 47,717 S.F.,has only 11,796 S.F. of upland, an amount that would support only a one-bedroom house if in a nitrogen sensitive.area. The applicant is apparently aware of the environmental sensitivity of the parcel in that they are willing to accept a deed restriction to two (2)bedrooms. The proposed floor plans should be carefully reviewed to.ensuree the two-bedroom maximum. • The lot is located in one of the Areas of Concern as listed in the Waste Water Facility Plan(WWFP). This area was included due to the impacts of existing development resulting from small lot sizes, depth to groundwater - problems,proximity of wetlands and coastal banks, etc. The new construction proposed would add to an already impacted system by requiring many of the same variances that have been problematic in the past. • The Squaw Island area, including the waters adjacent to this site, is currently closed to shellfishing due to bacterial contamination. Page 1 of 2 • The waters adjacent to the site is one of the areas include in the Massachusetts Estuaries Project. • There are many other parcels, in the immediate area and throughout Barnstable,that are similar to this parcel and the variances required to develop it(in both number and magnitude). For many years, these parcels have been considered as "un-buildable" for the reasons mentioned above. Page 2 of 2 ►8 RNSTABL ,'A• O� DATE: PH 1: 59 FEE: i639• �0 prFD MAt A �p Town of Barnstable, BY ���{5��� _ CHED. DATE: Board of Health 200 Main Street, Hyannis MA 02601 Office: 508-8624644 FAX: 508-790-6304 Susan G.Rask,R.S. Sumner Kaufman,M.S.P.13. Wayne A Miller,M.D. VARIANCE RE VEST FORM LOCATION Property Address: 99 Ocean Drive, Hyannisport, MA Assessor's Map and Parcel Number: 2 6 6—0 0 4 - 47, 717 s. f Size of Lot: Wetlands Within 300 Ft. Yes X Business Name: No Subdivision Name: S e aside P a r APPLICANT'S NAME: David Crispin 508 778-8919 Did the owner of the property authorize you to represent him or her? Phone Yes X No PROPERTY OWNER'S NAME CONTACT PERSON Name: Ms .Anne Doerge . Middle Fort Road Name: Mr. David Crispin Address: Middleburgh, NY 12112 Address: 657 Rt 28, W. Yarmouth, 02673 Phone: Phone: 508 778-8919 VARIANCE FROM REGULATION(List Reg.) REASON FOR VARIANCE(May attach if more space needed) See attached Plan Barnstable Road Ta ings NEW NATURE OF WORK: House AV=0bX12 House Renovation ❑ Repair of Failed Septic System ❑ Checklist(to be completed by office staff-person receiving variance request application) Four(4)copies of the completed variance request form Four(4)copies of engineered plan submitted(e.g.septic system plans) Four(4)copies of labeled dimensional floor plats submitted(e,g.house plans or restaurant kitchen plans) �•�F/t t Signed letter stating that the property owner authorized you to represent him/her for this request Applicant understands that the abutters must be notified by certified mail at least ten days prior to meeting date at applicant's (for Title V and/or local sewage regulation variances only) expense Full menu submitted(for grease trap variance requests only) . Variance request application fee collected (no fee for lifeguard modification renewals, grease trap variance renewals [same owner/leasee only],outside dining variance renewals(same owner/leasee ottlyl,and variances to repair failed sewage disposal systems (only if no expansion to the building proposed)) Variance request submitted at least 15 days prior to meeiing date VARIANCE APPROVED NOT APPROVED Susan G.Rask,RS.,Chairman REASON FOR DISAPPROVAL Scanner Kaufman,M.S.P.fL Wayne A Miller,M.D. Q:\HEALTH\Application Forms\VARZREQ.DOC 1�1'fvvv� ( �e'o Py ,p y a OF tME Tp�Y,r DATE: * BAursTABLE, « FEE MAss. � 1639• ,0�AIFD MA'1 A REC. BY Town of Barnstable,,.,,,D. DATE: Board of Health 200 Main Street,Hyannis MA 02601 Office: 508-862-4644 Susan G.Rask,R.S. FAX: 508-790-6304 Sumner Kaufman,M.S.P.H. Wayne A Miller,M.D. VARIANCE REQUEST FORM LOCATION S Property Address: 99 Ocean Drive, Hyannisport, MA p 266-004 Size of 47 ,717 s. f.- Assessor's Mad Parcel Number: t: Wetlands Within 300 Ft. Yes X Business Name: No Subdivision Na Sea Nan side Par APPLICANT'S NAME: David Crispin 508 778-8919 51 Phone Did the owner of the property authorize you to represent him or her? Yes X No PROPERTY OWNER'S NAME CONTACT PERSON Name: Ms.Anne Doerge Name: Mr._-David Crispin Middle Fort Road Address: Middleburgh, NY 12112 Address: 657 Rt 28 , W. Yarmouth, 02673 Phone: Phone: 508 7 7 8—8 919 VARIANCE FROM REGULATION(List Reg.) REASON FOR VARIANCE(May attach if more space needed) See attached Plan Barnstable Road Takings , � •.` NEW NATURE OF WORK: HouseAVMXODX�? House Renovation ❑ Repair of Failed Septic System ❑ Checklist(to be completed by office staff-person receiving variance request application) _ Four(4)copies of the completed variance request form Four(4)copies of engineered plan submitted(e.g.septic system plans) Four(4)copies of labeled dimensional floor plans submitted(e.g.house plans or restaurant kitchen plans) Signed letter stating that the property owner authorized you to represent him/her for this request Applicant understands that the abutters must be notified by certified mail at least ten days prior to meeting date at applicant's expense (for Title V and/or local sewage regulation variances only) Full menu submitted(for grease trap variance requests only) . Variance request application fee collected (no fee for lifeguard modifications renewals, grease trap variance renewals (same owner/leasee only),outside dining variance renewals(same owner/lessee only],and variances to repair failed sewage disposal systems [only if no expansion to the building proposed]) Variance request submitted at least 15 days prior to-meeting date VARIANCE APPROVED Susan G.Rask,R.S.,Chairman NOT APPROVED Sumner Kaufman,M.S.P.H. REASON FOR DISAPPROVAL Wayne A.Miller,M.D. Q:\HEALTH\Application Forms\VARIREQ.DOC McKean, Thomas From: Susan Ford [susanjford@yahoo.com] Sent: Friday, April 16, 2004 1:56 PM To: McKean, Thomas Subject: Re: Test April 16, 2004 To: -The Barnstable Board of Health As I am unable to attend next Tuesday's meeting, I am e-mailing you to express my huge opposition to any building being allowed on the lot at the corner of Ocean Dr. and Third Ave. in West Hyannisport. This proposed building site is wetlands, plain and simple. It is a title marsh and part of a very delicate eco system. I have lived in this area all of my life and have seen much of our shore destroyed. If this devastation is allowed - what next? Thank you, Adelaide McMurrer 59 Harbor Hills Rd. Centerville, MA 02632 --- "McKean, Thomas" <Thomas.McKean@town.barnstable.ma.us> wrote: > This is only a test. > Do you Yahoo! ? Yahoo! Tax Center - File online by April 15th. http: //taxes.yahoo.com/filing.html 1 13 z w HOUSE OF REPRESENTATIVES d STATE HOUSE, BOSTON 02133-1054 p,M SVOv DEMETRIUS J. ATSALIS Committees: REPRESENTATIVE Vice Chairman 2ND BARNSTABLE DISTRICT Commerce and Labor ROOM 167, STATE HOUSE Public Safety TEL. (617) 722-2692 DISTRICT OFFICE FAX(617) 722-2846 Aril 20,2004 45 BARNSTABLE ROAD Rep.DemetriusAtsalisUhou.state.ma.us p HYANNIS, MA 02601 TEL. (508) 771-5422 FAX (508) 790-8755 Thomas McKean MICHAEL KARATH Director CHIEF OF STAFF Board of Health JOHN HORGAN 200 Main Street LEGISLATIVE RESEARCHER Hyannis,MA Dear Mr. McKean: I am writing to the Barnstable Board of Health to state my opposition to a proposed variance for construction within a protected salt marsh and coastal bank in West Hyannisport. The location of the proposed project is a plot of land located at the end of Third Avenue,numbered Lot Number 99, in West Hyannisport. While I usually do not get involved with local issues, several calls to my office from residents living in the neighborhood precipitated my involvement in the project. I personally visited the site of the proposed construction and was astonished to find that somebody would actually consider building on this location. Even though I am not a professional in the building industries, I just know that this is not a suitable site for development due to the natural characteristics and configurations of the property. While we all acknowledge the need for appropriate housing, we should also consider the negative impacts of decisions that could compromise the future public health and fragility of the Cape Cod environment. I feel that allowing this project to continue forward will have a negative impact on the community and share with you a strong commitment to protect the health of Barnstable's citizens and the area's precious resources. Sincerely Demetrius J.Atsalis STATE REPRESENTATIVE 2nd Barnstable District Il April 20, 2004 rTown of Barnstable Board of Health 200 Main Street Hyannis, MA 02601 Re: Sewage Disposal System Design 99 Ocean Drive West Hyannisport, Barnstable, MA The following summarizes our objections, as abutters, to the request for variances and to the design and placement of the septic system proposed for 99 Ocean Drive, West Hyannisport. This is the second time an application for variances has been submitted for this project. The first request was withdrawn after considerable objections were raised. We feel that the variances sought now are still excessive, all in excess of 50% of minimum requirements, and that this is still a substandard design proposal. Barnstable Board of Health Variance. Proposed SAS to coastal bank-100' is required. Applicant is seeking a variance of 92'. ➢ The proposed soil absorption system ("S.A.S.") will be located 8' from the town coastal bank. If the variance for 92' is granted, the septic tank& S.A.S. will be located on sandy soil subject to movement and shifting during times of high water and storms. When the system's drainfield is saturated with stormwater it increases the likelihood of destabilizing the coastal bank. The swale that is proposed will further concentrate and redirect run-off onto the abutting property and directly into the saltmarsh. Massachusetts Title 5 Variances: Proposed SAS to coastal bank—50' is required. Applicant is seeking a variance of 34'. ➢ Both this variance and the preceding one pose serious risk to erosion of the coastal banks. The proposed slopes are excessively steep, landscaping would be difficult to maintain further eroding the coastal bank. ➢ This plan also includes three dry wells all which appear to be in or immediately adjacent to the coastal banks. Any such object placed in sandy soil will exacerbate erosion. The proposed drywell at Contour 15 is on the top of one of the coastal banks. The proposed drywell at Contour 6 is at an elevation which appears to be about 6.5'. Since the groundwater elevation is 4.2'that leaves approximately two feet for installation of a drywell. Proposed SAS to existing street line—10' are required. Applicant is seeking a variance for the entire setback requirement of 10'. ➢ Excavation for the septic and drainfield would extend into the private road resulting in a hardship for residents since Ocean Drive dead ends. Traffic would potentially be restricted east of#99. ➢ The plan does not show the location of the existing water line servicing Ocean Drive. All other utilities are clearly identified. If the water line is on the south side of the street, it is likely to be in the area of the proposed drainfield. If the distance from the water line to the h drainfield is inadequate by prevailing standards, it creates a health issue. Proposed septic tank to existing coastal bank—25' are required. Applicant is seeking a variance for 21'. ➢ In addition to the previously stated risks associated with erosion, fill is required to allow construction to the elevations proposed. Fill on the East side of the proposed structures will create a steep slope resulting in a trench approximately 20 feet wide and 3 feet deep on the adjacent property (111 Ocean Drive). This trench will concentrate run-off from the proposed house, yard and street and potential effluent from the drainfield and direct such into the saltmarsh. Reserve Area. ➢ Since the reserve area is proposed to be in the primary SAS. There is effectively no reserve area. Design flow. Minimum of 330GPD is required. Applicant is proposing a design flow.of 220 GPD. ➢ A deed restriction is proposed as the solution for the plan's failure to meet the minimum design flow requirement. The system proposed allows a design flow 33% less than the requirement. In addition to the variances sought, it's important to note that this property has previously been classified as unbuildable. The 2004 assessed value of the lot is$9,400. The assessed value of the lot and the associated taxes have for many years been nominal compared to other properties in the surrounding area. We feel the number of variances sought and the extent of relief from existing regulations requested in this plan, suggest a wanton disregard for the regulations of the town of Barnstable and Massachusetts Title 5. The regulations are in place to protect public health and preserve the natural assets of the area. Hall's Creek is already seriously compromised by inadequate septic systems. It would be disappointing for this board to trivialize or ignore the current regulations and allow this project to proceed. ' Respectfully submitted, John P. Berry Margaret Berry Trustees 111 Ocean Drive West Hyannisport, Barnstable, MA January 5, 2004 Town of Bamstable Board of Health 200 Main Street Hyannis, MA 02601 Re: Sewage Disposal System Design 99 Ocean Drive West Hyannisport, Bamstable, MA The following summarizes our objections, as abutters, to the request for variances and to the design and placement of the septic system for 99 Ocean Drive,West Hyannisport. ➢ Instability of the coastal bank. The proposed soil absorption system CS.A.S.') will be located within 2 feet of the coastal bank. Regulations require 100 feet. If the variance for 96 feet is granted, the septic tank&S.A.S.will be located on sandy soil subject to movement and shifting during times of high water and storms. The particular location and elevations of the system,within 12 feet of our property line, will redirect surface run- off. When the system's drainfield is saturated with stormwater it increases the likelihood of destabilizing the coastal bank. In the event of a blowout, effluent would drain onto our abutting property and directly into the saltmarsh. It is also likely that storm flowage would be redirected into our structure with the proposed filling of the coastal bank. ➢ Impact of topographical change. Fill required to allow construction of the elevations proposed will create a steep slope and effectively create a ditch or trench approximately 30 feet wide and 3 feet deep on the adjacent property(111 Ocean Drive)which will concentrate run-off from the proposed house, yard and the existing street. This slope will collect run-off, potential effluent from the drainfield and direct such into the wetland and the adjacent property on a regular basis. ➢ Hardship. The hardship identified in the proposal is associated with town acquiring a portion of the property in 1928 to allow emergency tuming access at the end of Third Avenue. The land taking was well prior to the ownership of the property by the current owner(acquired in 1976). Furthermore,the 2004 assessed value of the lot is$9,400. The assessed value of the lot and the associated taxes have for many years been nominal compared to other properties in the surrounding area. ➢ Grading.The proposed elevations would require grading work to be done on the private road to maintain positive drainage. The design provides minimal cover for the drainfield. the grading plan shows slopes over 2%, furthermore the 3:1 coastal bank encroaches into the drainfield creating a substandard design. ➢ Erosion of the coastal bank. The proposed slopes are excessively steep, landscaping would be difficult to maintain further eroding the coastal bank. The proposed foundation is at the bottom the coastal bank and would incur significant damage in a storm event. The result of this may alter the tidal flow and change the flood plain. ➢ 50 foot wetland buffer impact. The proposed construction comes within 2 feet of the 50 foot buffer. It is highly probable this buffer would be further damaged during construction. r ➢ Deed restriction:The proposed two bedroom deed restriction cannot be enforced.The proposal appears to include a walkout basement which could be used as a third bedroom, making the drainfield design substandard. ➢ Numberttype of variances requested: Seven variances are requested from the Board of Health. Four of these request substantive relief from current regulations. Title 5 variances: ➢ Proposed SAS to existing coastal bank—a variance of 48'of a required 50'is requested. ➢ Proposed reserve to existing coastal bank—a variance of 46'of a required 50' is f requested. ➢ Proposed septic tank to existing coastal bank—a variance of 23' of a required 25' is requested. Town of Barnstable BOH variances: ➢ Proposed SAS area to coastal bank—a variance of 96'of a required 100'is requested. We feel the extent of these variances suggest a wanton disregard for existing regulations. We feel that approval of the current development proposal is not in the spirit or the intent of current ordinances and current septic engineering practices, and request that the board of Health deny the variances requested for this development. In addition, approval of this project may result in substantial hardship and potential devaluation of our property. . k Respectfully submitted, John P. erry Margaret rry Trustees 111 Ocean Drive West Hyannisport, Barnstable, MA 158 3Td Avenue West Hyannisport, MA April 20, 2004 Board of Health 200 Main Street Hyannis, MA 02601 Dear Board of Health, Many interested citizens from the Avenues of West Hyannisport and others on the Cape came to speak in opposition of building on the salt marsh property identified as#99 Ocean Drive when this issue last came before the Board of Health on January 20, 2004. It wasn't until it became obvious that the Board could not in clear conscience approve so many extensive variances that the application was withdrawn. Regardless of the changes or technical promises made by the engineers in their new plan,the consequences of approving this project remain the same. Building a septic system for a two bedroom home on previously deemed"unbuildable" sensitive marshland would adversely affect the abutters and the natural wildlife and salt marsh environment forever. There are regulations we want to address that are under the jurisdiction of the Board of Health in relation to building a septic system within"protected conservation wetlands and a coastal bank." To begin,provisions of General Laws, Chapter III, Section 31, "The One Hundred Feet Setback Regulation" require a 100 foot setback from salt marshes and the coastal banks. This project is still requesting an extensive variance of 92 feet to build a septic system within 100 feet of the coastal banks. Even if the Board of Health wanted to waive its own regulations,these plans also.require a number of variances from the Massachusetts Title V minimum requirements. The project would violate 50 foot and 25 foot state requirements as well. These include: • A variance of 34 out of 50 feet required for the proposed SAS system • A similar variance for the proposed reserve as it is now within the SAS system • 21 out of the 25 feet required for the proposed septic tank v A variance of 10 feet to build 10 feet from the street line where 0 feet are provided. According to Mass Title V Regulations; 310 CMR 15.00, this last variance would grossly violate some critical up-keep requirements that specify not driving over the system. The system, if built in the road, would experience continuous traffic on a daily basis by the year round and summer residents of Ocean Drive. Regulation Chapter lIl, Sections 31 and 127A concerns "Soil Stability". Being so close to the coastal bank, the property stands to experience soil instability, rising groundwater levels under the septic system, and increased flooding, especially during high tide storms. Another site visit would point out changes just over the past 4 months. You can see an 8 foot log or dock piling and newly formed marsh land that was pushed into the wetland of this property by the ice caps this winter and increased spring rains. Page 2 Where would the marsh go if all is taken away? This property experiences active shifting and soil instability. The Environmental Protection Agency of the Federal Government states that attempting to hold back the marshes with structures could result in a "total loss of marsh" as sea levels rise, "up to 4 feet by 2050, even if global temperatures were to stop rising a few decades hence.'' This is all within the lifetime of our grandchildren placing this SAS system even closer to the coastal banks. Building on this property will also force changes in the distribution of water over that part of the marshes, creating added storm flooding and forcing an overflow onto existing property. Bottom line is that this septic system will have rising ground water . levels during wet seasons, the house will experience flooding, and both the salt marsh and abutters will have to struggle with the consequences if approval is granted. We would also hope the Board will look back at the last hearing records and reread the letter submitted by a Docto?who documented the impact of this SAS system and how the salt marsh in this inlet"cannot sustain increased nitrate levels." Also, the engineers' report is based on data taken late last summer during the dry season. Title V recommends that elevation estimates be taken during the wet season, usually April and May, which is one issue we would have liked clarified had we been notified of the fall Conservation hearing (which is another issue will would have to addressed.) There is no question that this property will experience flooding above average, especially when you consider the occurrences of coast storms and tidal surges exacerbated by a full moon. Recent variances granted on Ocean Drive should not be interpreted as a precedent that can apply to subsequent applications. The conditions for each application must be reviewed individually. Although we have concerns about these recently granted variances, we are aware that the property granted variances had an existing dwelling. True that most of the homes on Ocean Drive may be considered "non conforming", we must remember that all but our recently build home (which was required to abide by current regulations in order to make it conforming) were build years before the current regulations came into effect. These laws were written to protect the coast from further building that might jeopardize the marshes. Lot #99 does not have an existing structure and should not be given the same consideration as those who must improve and maintain property already established and ultimately serve to "benefit the public" with these improvements. By granting all these variances, the Board of Health would demonstrate to all of us here and the community at large, that you do not believe you have the authority to stand by your own regulations, and that the interests of#99 will take precedence over common sense, good judgment, and preexisting structures on abutting property. We also ask, "What interests are gained by setting such a precedent to build on wetlands that have remained vacant and have no existing structure? According to Department of Health regulations, variances should only be approved if ultimately it would benefit the public. How will this benefit the public? The benefits of standing by your own regulations, by protecting the environment and respecting.the abutters who stand to be negatively affected by this project, are undeniable. Page 3 In closing, we also understand that this property should be protected by Article XXVII of the Wetlands Protection regulations of the Town of Barnstable Conservation Commission. Although.this may seem off topic to the Board of Health, we see how intertwined are the concerns of public health and conservation. The Board of Health has a responsibility to take all concerns under advisement and should not approve variances that would otherwise violate existing Town of Barnstable regulations. An opinion from Conservation would be a reasonable next stop only if the Board wants to verify what you already know- that granting approval of all these variances will contradict your own regulations and your commitment to public health and conservation. We are here to ask that you stand fast to your regulations by not approving these variances and not compromising the minimum standards set by Title V and your own regulations and demonstrate the leadership you have been entrusted with. k Thank you for the opportunity to express our opposition. �_S.i rely,%f Nina S. Te per William 11. tewart 1 III i Town of Barnstable Regulatory Services THE 1p o Thomas F. Geiler, Director ,,,x,,, ABLF Public Health Division MASS. �0 Thomas McKean, Director 200 Main Street, Hyannis, MA 02601 Office: 508-862-4644 Fax: 508-790-6304 TO: Barnstable Board of Health CC: Thomas McKean,Diji vector, Public Health Division FROM: Dale Saad,Ph.D. �.J - . Coastal Health Resource Coordinator DATE: April 20, 2004 RE: 99 Ocean Drive, Hyannis (Map 266-004) I have reviewed the sewage disposal system plan (dated 4/4/04 by BSC Group) for the above reference property and have the following comments: • The plan calls for six (6) variances from either Title 5 or Town of Barnstable Health regulations for the construction of a new, single-family dwelling.. • Two (2).variances are missing that deal with the new location of the reserve area to be placed in the area of proposed primary S.A.S. • The majority of the variances requested are significant in nature,ranging from 21 out of 25 feet to 92 out of 100 feet and involve setbacks to the coastal bank, an important resource area. In the event of a severe storm, the house and septic system could be in jeopardy by being built in, or in such close proximity to, the coastal bank. • The most insignificant variance is not environmental in nature but involves a setback to the street line(variance of 10 out of 10 feet). • The lot, while having a total size of 47,717 S.F.,has only 11,796 S.F. of upland, an amount that would support only a one-bedroom house if in a nitrogen sensitive area. The applicant is.apparently aware of the environmental sensitivity of the parcel in that they are willing to accept a deed restriction to two (2)bedrooms. The proposed floor plans should be carefully reviewed to ensure the two-bedroom maximum.. • The lot is located in one of the Areas of Concern as listed in the Waste Water Facility Plan(WWFP). This area was included due to the impacts of existing development resulting from small lot sizes, depth to groundwater problems,proximity of wetlands and coastal banks, etc. The new construction proposed would add to an already impacted system by requiring many of the same variances that have been problematic in the past. Page 1 of 2 r � • The Squaw Island area, including the waters adjacent to this site, is currently closed to shellfishing due to bacterial contamination. • The waters adjacent to the site is one of the areas include in the Massachusetts Estuaries Project. • There are many other parcels, in the immediate area and throughout Barnstable, that are similar to this parcel and the variances required to develop it(in both number and magnitude). For many years, these parcels have been considered as "un-buildable" for the reasons mentioned above. Page 2 of 2 BSC G­ R0UP _ rt kF. 657 Main Street,' - Unit 6 n~ " `,Route 28 k ,` West Yarmouth, MA _�' ✓; 02673 .April 20, 2004 Tel~508 778 89iq Fax 508 778 8'966 Barnstable Board of.Health z Barnstable Town Offices ,., Barnstable, MA :Re. 99 Ocean Drive W..Hyariiiisport' r Members ofthe Board —This Getter rs_to document`the request for variances from Title,S and'the"Barn"stable A Supplementary,regulations for the construction of a new septic"system: The variances.Are.listed.as�follows `1) 310C k-1521:1 ti k — Setbacks to�coastal bank from septic tank and Soil Adsorption System ' s •', S:feet provided for septic tank and 17-feet for-SAS (50 fee't-required) j Setback from So>1 Adsorption Svstern to street line x { !' r - • 0-feet-provided (10 feet required)' 2)3"lOCMR 15 248 Reserve Area (None provided: reuse location as.commonly done) ' J 3 310 CMR;15 203 3_bedroom:desi n minimum flow 2 bedroom with a deed restriction. k proposed , : 4') Barnstable supplementary Regulations 100 foot setback regulationz Setback to vegetated eptic tank wetlands from s J Environmental r �t • 90 feet.provided 100'feet required Y 'Scientists r Setback from coastal bank to SAS /+:Septic:tank yy GIS Consultants n• • 5'feet provided for septic tank and:17 feet for SAS,(50 feet required) t.. x Landscaper, The deniat of the residentially zoneda"prop`erty for a.two +bed room denies aft substantiv6rchitects use of'the property and4is considered manifestly unjust : �., t. s Planners T� l x 4 Same degree of environmental:protection rs offered'because •` Coastal bank is not an eroding coastal bank producing sediment,therefore it-is, only-a coastal bank that offers buffering from the still water-surge because the area is located within an-A zone (not subject to`s gnificant wave action)-1ri this case whether or not the-land form_sloped to the-requirements of a:coastal:bank , the land would buffer the flood. Therefore the presumption of a setback s ' reventiii unearthing of the tank or s stem.b erosion s.ver unlikel to happen. p g g Y y Y Y_ pp • -Further;'the'setback to an inland bank(which is defined as. s.the,first observable , ''break in the slope or the mean annual flood level,,'whichever-is lower) is the'same:' as.that as a coastal>bank indicating that the setbdck'where some environmental or he" th-drapact_could'occur could be reasonably considered the lower level of the ' coastal bank'or the mean annual flood lme`(ie the'limits of the salt marsh). ' • I`.In practicality, there is no difference-from this,system being near a coastal bank." r : and.being near the mound of a raised;systern because. . f'` o The_septic tank is water tight: - s o The.system rs sized in accordancewith alI provisions of Title 5. N'c o The SAS =A 00 foot to wetlands and 5 feet to seasonal high groundwater o." The=l O foot setback is to-the street line which is a,private waywhere ownership is to.the centerline: to Reserve Area is not necessary because a failed system is typically y installed in the same location when failed. There is no recognized ; practical way of expanding the;use above that proposed such that reserve ' { r area in not critical. ' 6 off`-The-site.size allows conformance with nitrogen sensitive regulations even - R =though the area is not so designated: I trust°this all_ows'the Board to vote on this revised plati I ;~ f t:Sincerely, he BSC Gro c,' D id J Crispin PE PLS n r. Associate (TO PLAINTIFF'S ATTORNEY: PLEASE CIRCLE TYPE OF ACTION INVOLVED: CONTRACT TORT MOTOR VEHICLE TORT EQUITABLE RELIEF OTHER) I Q1vn nvu(vtx1#4 of Musissr4us>e##s BARNSTABLE,ss. SUPERIOR COURT No. 04-330 ANNE A. DOERGE VS. TOWN OF BARNSTABLE BOARD OF HEALTH SUMMONS. To the above-named defendant You are hereby summoned and required to serve upon....Peter...i...,,,Feuer ach,x....E, .q... ..n............................ ...........................................................man, LLP .............:.plaintiff's attorney, whose address is ......................................................................................... . . 50 Rowes Wharf, Boston, MA 02110 ................................................................................................................................................................................... . , an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so,judgment by default will be taken against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Barnstable either before service upon plaintiff's attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim or you will thereafter be barred from making such claim in any other action. Witness, $UZANNE V. DEL.VECCHIO Esquire, at Barnstable,the.........15.t:h......................................................... day of................June..........................................................,in the year of our Lord two thousand and ....four. ............................... Clerk NOTE: When more than one defendant is involved,the names of all defendants shall appear in the caption. If a separate summons is issued for each defendant, each should be addressed to the particular defendant. NOTICE TO DEFENDANT You need not appear personally in court to answer the complaint but if you claim to have a defense, either you or your attorney must serve a copy of your written answer within 20 days as specified herein and also file the original in the Clerk's office. PROOF OF SERVICE OF PROCESS I hereby certify and return that on ...u.ne....1..6.;....................................................................... 20....04....... I served a copy of the within summons, together with a copy of the complaint in this action, upon the within-named defendant , in the following manner(see Mass. R. Civ. P. 4 (d) (1-5): Pursuant . . ...l .:G. V..,.�.......4.(.d.)..(5.).,.....by.....mailing...su.ch....copies....to....the...Town...of....Barnstable Board of Health by certified mail. .......................................................................................................................................................................................................................................................................... .................................................................................................. ........... ...... ..... .... ..... ... ............................................................... Dated: June 16 20 04. .. . ..... ... . ............... ............?...�... �.. - -- N.B. TO PROCESS SERVER: ,/h—cM- �,-r j-t . P Leh PLEASE PLACE DATE YOU MAKE SERVICE ON DEFENDANT IN THIS BOX ON THE ORIGINAL AND ON COPY SERVED ON DEFENDANT. June 16, 2004 (TO PLAINTIFF'S ATTORNEY: PLEASE CIRCLE TYPE OF ACTION INVOLVED: CONTRACT - TORT MOTOR VEHICLE TORT EQUITABLE RELIEF OTHER) 19VU manfVzz t4 .a# Alassat4usE##s BARNSTABLE,ss. SUPERIOR COURT No. 04-330 ANNE A. DOERGE VS. TOWN OF BARNSTABLE BOARD OF HEALTH SUMMONS To the above-named defendant You are hereby summoned and required to serve upon....Peter. .......Es.q..,,:.............................. ...Rubn...and...Rudman, LLP plaintiff's attorney, whose address is 50 Rowes Wharf, Boston, MA 02110 ......................................................................................................................................................................................................................I an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so,judgment by default will be taken against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Barnstable either before.service upon plaintiff's attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim or you will thereafter be barred from making such claim in any other action. Witness, SUZANNE V. DEL.VECCHIO Esquire, at Barnstable,the.........15.t:h......................................................... day of................June..........................................................,in the year of our Lord two thousand and ....four.....:.......... Clerk NOTE: When more than one defendant is involved, the names of all defendants shall appear in the caption. If a separate summons is issued for each defendant, each should be addressed to the particular defendant. NOTICE TO DEFENDANT You need not appear personally in court to answer the complaint but if you claim to have a defense, either you or your attorney must serve a copy of your written answer within 20 days as specified herein and also file the original in the Clerk's office. PROOF OF SERVICE OF PROCESS I hereby certify and return that on.... u.ne....16.;....................................................................... 20....a ►......, I served a copy of the within summons, together with a copy of the complaint in this action, upon the within-named defendant , in the following manner(see Mass. R. Civ. P.4(d) (1-5): Pursuant.... o...l?aq.S.n. .......4..(.d.)0.)..,.....hy.....mailing...such....copies....to....the...Toym....c>f....Barnstable Board of Health by certified mail. .................................................................................................. ........... ...... .... .... ............. ............. ........ ....... ...... ................................................................ Dated: June 16, , 20 04 . ............. ... ............ .... ........ ............... ............ ............................. �.. - -- N.B. TO PROCESS SERVER: A j j UA-- jam._ �C.✓I7 N ,� j��- PLEASE PLACE DATE YOU MAKE SERVICE ON DEFENDANT IN THIS BOX ON THE ORIGINAL AND ON COPY SERVED ON DEFENDANT. June 16, 2004 COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT DEPARTMENT BARNSTABLE, ss. CIVIL ACTION NO. ANNE A. DOERGE, ) Plaintiff, ) • V. ) COMPLAINT TOWN OF BARNSTABLE ) BOARD OF HEALTH, ) Defendant. ) INTRODUCTION 1. This action is an appeal under M.G.L. c.249, §4 and c.231A, §1 et seq., from the denial by the Defendant Town of Barnstable Board of Health (the "Board") dated May 11, 2004, of the Plaintiff's,Anne A. Doerge,,Disposal System Construction Permit Application(the "Application"). Plaintiffs Application sought approval for a septic system to service a small two bedroom home on vacant land located at 99 Ocean Drive, West Hyannisport, Massachusetts. Without the approval,there is no economically beneficial use of the Property. 2. Plaintiff challenges the Board's denial on the grounds that the Board did not act in a fair,judicial or reasonable manner upon the substanial evidence presented and that the denial rests on misinterpretations, misunderstandings and allegations that have no a = relevance under Title V of the Commonwealth's Environmental Code, 310 CMR 15.00 et seq. ("Title V"), and the Town of Barnstable Board of Health Regulations (the "Health 600545_1 1 Regulations") and/or are technically unfounded. The Board's decision is arbitrary and capricious and represents a substantial error of law inflicting manifest injustice on the Plaintiff. 3. This action also seeks just compensation for the unconstitutional taking of the Plaintiff's property in violation of the Massachusetts Constitution and the United States Constitution due to the Board's actions and the operation of the Board's h Regulations. JURISDICTION 4. Jurisdiction to obtain annulment of the Board's denial of Plaintiffs' Application is conferred upon this Court by M.G.L. c.249, §4, M.G.L. c.231A, §1 et seq., and/or M.G.L. c. 30A, §14 and 310 C.M.R 15.421. PARTIES 5. Plaintiff Anne A. Doerge is the owner of the property located.at 99 Ocean Drive, West Hyannisport, Massachusetts ("Property"). Ms. Doerge resides at 135 Middle Fort Road,Middleburgh,New York. 6. Defendant Town of Barnstable Board of Health is the municipal authority authorized to permit septic systems under Title V and the Barnstable Board of Health I Regulations. The mailing address of the Board is 200 Main Street, Hyannis, Massachusetts 02601. This action is brought against the Board and its members in their official capacities. 600545_1 2 .,y FACTUAL BACKGROUND 7. The Plaintiff proposes to construct a small, two bedroom single-family home with a septic system on the Property, which consists of approximately 47,717 square feet. 8. The Plaintiff filed an initial Application for a Disposal Works Construction Permit on or about December 3, 2003. 9. Based upon comments and feedback from the Board and neighbors, the original Application was withdrawn without prejudice so that the Plaintiff could respond to issues the Board wished to see addressed in the plans. 10. In response to the Board's comments, the Plaintiff revised the plan of the proposed septic system and specifically addressed the issues raised by the Board. The Plaintiff submitted its revised Application on or about April 4, 2004. 11. A portion of the Property contains salt marsh vegetation, a coastal bank and the 100-year flood plain as those terms are defined in the Massachusetts Wetlands Protection Act, M.G.L. c.131, §40 ("State Wetlands Act") and implementing regulations at 310 C.M.R. 10.00 et seq. However, as the Application and record of the Board ("Record") clearly demonstrated, none of the septic system components were located within either the salt marsh, coastal bank, or 100-year flood plain. 12. In fact, the revised Application located the septic system as far as possible from the salt marsh, which could be considered the most sensitive wetland resource area on the Property. The soil absorption system is set back 100 feet or more from the salt marsh,which exceeds the 50 foot set back requirement in Title V and complies with the 100 foot setback in the Board of Health regulations. 600545_1 3 13. In moving the soil absorption system as far as possible from the salt marsh,the Plaintiff was required to locate the soil absorption system at her property boundary with an adjacent private road. The Plaintiff's registered professional engineer and her attorney demonstrated to the Board at its hearing on April 20, 2004 that the Plaintiff had legal rights extending to the center of the private road and was legally authorized to install septic system components thereunder. The engineer demonstrated that none of the work would alter or interfere with the traveled way. 14. The soil absorption system is located within flood insurance rate zone "Zone C",which is outside of even the 500-year flood and within an area designated as "minimal flooding"pursuant to the Federal Emergency Management Agency ("FEMA"). 15. The Applicant's registered professional engineer testified at the Board's hearing on April 20, 2004,that the coastal bank is not subject to erosion, wave action or failure and does not have active shifting sands and does not supply sediment through erosion. The coastal bank is completely vegetated and stable. The testimony of the registered professional engineer was not refuted by any credible documentary or testimonial evidence, and was plainly evident from the Board's view of the Property. 16. A portion of the coastal bank is within the 100-year flood plain, however, the engineer demonstrated and the plan reflected that it is "still water"flooding that is not able to erode or destabilize the coastal bank. 17. The letter report of the professional engineer dated April 20, 2004, and his testimony at the Board's hearing,demonstrated that the proposed septic system, which is located above and outside of the coastal bank, will not have any adverse effect on the stability of the coastal bank. 600545_1 4 18. The Massachusetts Wetlands Act and 310 C.M.R. 10.30(6) allow construction on or within 100 feet of a coastal bank if such construction, like that proposed in the Application, will have no adverse effect on the stability of the bank. 19. Septic systems and homes larger than those proposed in the Application have been permitted on the properties adjacent to and near the Plaintiff's property. 20. The professional engineer testified that, in his approximately 30 years of professional experience, if the Plaintiff's septic system ever needed repairs in the future, " the repairs could be performed within the footprint of the proposed system, as is commonly done on other properties throughout the Commonwealth. Therefore, a reserve area was not necessary and the same degree of environmental protection could be achieved without having a separate designated reserve system. 21. The Plaintiff proposed recording a permanent deed restriction on the Property which would limit the size of the dwelling and septic system to only two bedrooms, which is the smallest dwelling practicable and allowed under Title V. Other dwellings in the neighborhood are larger than two bedrooms. 22. The Applicant was willing to install an"innovative system" under Title V to enhance environmental protection even though such an innovative system was not required under Title V or the Board of Health's Regulations. 23. The professional engineer testified and submitted a technical report demonstrating that the proposed Application with variances would provide a level of environmental protection that is at least equivalent to that provided under Title V and the Board of Health's Regulations, without strict application of the provisions thereof from which the Plaintiff sought variances. 600545_1 5 24. The evidence demonstrated that enforcement of the provisions from which variances were sought and the Board's denial deprive the Plaintiff of substantially all beneficial use of the Property and would therefore be manifestly unjust. 25. Title V provides at 310 C.M.R. 15.410 that variances may be granted when enforcement of the subject provisions"would be manifestly unjust"and the pe rson rson Y J p requesting the variances has established that a level of environmental protection that is at least equivalent to that provided under Title V can be achieved without strict application of the provisions from which variances are sought. See 310 C.M.R. 15.410(1) and (2). The Board of Health's Regulations do not contain any stricter variance provisions from those set forth in Title V. 26. In denying the Application,the Board relied upon evidence that was irrelevant and inaccurate on its face. The Record demonstrates that the Board's decision was based on neighborhood and political pressures instead of sound technical and scientific reasons. 27. The Board's decision dated May 11, 2004, demonstrates on its face that the Board relied upon inaccurate and irrelevant information in denying the Application. For instance, the Board's decision was based upon inaccurate information that the "proposed soil absorption system would be located on sandy soil subject to movement and shifting during times of high water and storms." The record is devoid of any credible scientific evidence to support that statement,yet there is credible engineering testimony c to the contrary. The Board also based its decision on such trivial concerns as the alleged failure to properly describe the requested variances, even though the Record demonstrates that everyone, including the Board and its staff, were fully aware of the variances sought. 600545_1 6 f III . 28. There is no credible information present in the Plaintiff s Application or the Board's Record or Denial to rebut the validity of the Plaintiff's engineer's evaluation of the coastal bank,the lawful authority to construct some of septic system components within the layout of the private right-of-way, the design or deed rider for a two-bedroom system, or the Application's compliance with the variance standards of Title V or the F , Board's Health Regulations. 29. The Plaintiffs Application fully complied with all of the requirements of Title V and the Barnstable Health Regulations, with variances that will result in the protection of the environment and human health and avoid an unconstitutional taking of property without just compensation. 30. The Board's denial of the Plaintiffs Application is unjustified and leaves the Plaintiff with only the burden of paying taxes. The Plaintiff has gone to significant measures to comply with State and local requirements and to present a complete and environmentally sensitive Application, for as small a dwelling as is allowed under Title V and is practicable. COUNT I—CERTIORARI 31. The Plaintiff hereby restates and incorporates by reference the allegations and statements contained in Paragraphs 1 through 30 of this Complaint. 32. The Plaintiffs Application complies with Title V and the Barnstable Health Regulations including the variance criteria to demonstrate the same degree of environmental protection and manifest injustice and deprivation of all economic use of the Property, from the Board's Denial. 600545_1 7 33. The Board's denial of the Plaintiffs Application was not based upon substantial evidence in the record and constitutes a substantial error of law. 34. The Board's denial of the Application has resulted in substantial injury and. manifest injustice to the Plaintiff. COUNT II—DECLARATORY JUDGMENT. 35. The Plaintiff hereby restates and incorporates by reference the allegations i and statements contained in Paragraphs 1 through 30 of this Complaint. 36. The Board's decision is unlawful and should be declared null and void because it is based upon impermissible considerations, is unsupported by the substantial evidence, and deprives Plaintiff of all economically beneficial uses of her property. COUNT III—UNCONSTITUTIONAL TAKING UNDER MASSACHUSETTS AND UNITED STATES CONSTITUTIONS 37. The Plaintiff hereby restates and incorporates by reference the allegations and statements contained in Paragraphs 1 through 36 of this Complaint. 38. Articles X and XII of the Massachusetts Constitution and the Fifth Amendment to the United States Constitution prevent the governmental taking of private property without just compensation. 39. The Board's denial and the Title V and the Barnstable Health Regulations on their face and as applied to the Plaintiffs property by the Board, constitute an unconstitutional taking of the Plaintiff's property without just compensation. 40. The Board's denial does not allow any reasonable economic use of the Plaintiff s property. 600545_1 8 41. The Board's denial co nstitutes a final administrative decision 'which has been made without possibility of relief. 42. The Board denial deprives the Plaintiff of all economically viable use of the Property, leaving her only the burden of paying taxes on it. ° Y PRAYERS FOR RELIEF WHEREFORE, the Plaintiff prays that this Court: ' 1. Direct the Board to certify to this Court the administrative Record in accordance with Superior Court Standing Order 1-96; 2. Enter an Order finding that the Plaintiffs proposed septic system Application.with variances complies with Title V of the State Environmental Code and with the Barnstable Board of Health Regulations; 3. Enter an Order annulling the Board's May 11, 2004 denial of Plaintiffs Application; 4. Enter an Order requiring the Board to issue an approval of the Plaintiffs Application; 1 5. If the Board's decision is allowed to stand, enter an Order requiring the Town to pay the Plaintiff just compensation for the Property as a fully marketable lot for residential purposes; and 6. Award the Plaintiff her costs and reasonable attorneys' fees; 600545_1 9 7. Allow whatever additional relief this Court deems equitable and proper. Plaintiff requests a trial before a jury on all claims under Count III. For the Plaintiff, - ANNE A. DOERGE, By er A eys, I(lat Peter J. Feue'rbach BBO #567061 Rubin and Rudman LLP 50 Rowes Wharf Boston, MA 02110 (617) 330-7136 DATED: June, 2004 6oO545_1 10 CIVIL ACTION DOCKET NO.(S) Trial Court of Massachusetts COVER SHEET Superior ourt De artm nt ; County L . PLAINTIFF(S) DEFENDANT(S) PTORNE ,,FIRM NAME,.? >A SS AND TELEPHONE ATTORNEY (if known) �. l /.i 1 T f¢ J+f'Gi/G /3/IL fiSO r X_ . ' /�.c l,f V /1w./ •t UZr16 r Board of Bar Overseers number: 'rj 1 0� 0 7-6'C) 1 Origin code and track designation Place an x in one box only: ❑ 4. F04 District Court Appeal c.231, s. 97 &104 (After X 1. F01 Original Complaint trial) (X) ❑ 2. F02 Removal to Sup.Ct. C.231,s.104 ❑ 5. F05 Reactivated after rescript; relief from (Before trial) (F) judgment/Order(Mass.R.Civ.P. 60) (X) ❑ 3. F03 Retransferto Sup.Ct. C.231,s.102C (X) ❑ 6. E10 Summary Process Appeal (X) e TYPE OF ACTION AND TRACK DESIGNATION (See reverse side) CODE:NO. TYPE OF ACTION (specify) TRACK IS THIS A JURY CASE? ( - Y - urC� ( ) es ( ) No The following is a full, itemized and detailed statement of the facts on which plaintiff relies to determine money damages. For.this form, disregard double or treble damage claims; indicate single damages only. TORT CLAIMS (Attach additional sheets as necessary) a. .Documented medical expenses to date: I. Total hospital expenses . . . . . . . . . . . . . . . . . . . . . . . . 2. Total Doctor expenses . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . $ . . . . . . . . . . . . . 3. Total chiropractic expenses . . . . . . . . . . . $ . . . . . . . . . . 4. Total physical therapy expenses . . . . . . . . . . . $ " ' 5. Total other expenses (describe) . . . . . . . . . . . . . . . . . . . . . $ $ . . . . . . . . . . . . . 3. D.ocumented lost wages and compensation to date Subtotal $ ... . . . . . . . . . . . Documented property damages to date . . . . $ >. Reasonably anticipated future medical and hospital expenses . . ... . . . . $ Reasonably anticipated lost wages . . . . . . . . . . . . . . " " ' " " $ . . . . . . . . . . . . . _ Other documented items of damages (describe) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Brief description of plaintiff's injury, including nature and extent of injury (describe) $ $ ... . . . . . . . . . . . TOTAL $. . . . . . . . . . . . . CONTRACT CLAIMS 'rovide a detailed description of claim(s): (Attach additional sheets as necessary) TOTAL $. . . . . . . . . . . . .. PLEASE IDENTIFY, BY CASE NUMBER, NAME AND COUNTY, ANY RELATED ACTION PENDING IN THE SUPERIOR COURT DEPARTMENT "I hereby certify that I have complied with the requirements of Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC Rule 1:18) requiring that I provide my clients with information about court-connected dispute resolution services and discuss ith ern the ad v to s and disadvantages of the various methods." Signature of Attorney of Record DATE: )TC-6 mtc005-11/99 CIVIL ACTION COVER SHEET INSTRUCTIONS SELECT CATEGORY THAT BEST DESCRIBES YOUR CASE CONTRACT REAL PROPERTY MISCELLANEOUS 401 Services, labor and materials (F) C01 Land taking(eminent domain) (F) E02 Appeal from administrative (X) k02 Goods sold and delivered (F) CO2 Zoning Appeal,G.L.c.40A (F) Agency G.L.c.30A k03 Commercial Paper (F) CO3 Dispute concerning title (F) E03 Action against Commonwealth 408 Sale or lease of real estate IF) C04 Foreclosure of mortgage 00 Municipality,G.L.c.258 (A) 412 Construction Dispute (A) C05 Condominium lien and charges (X) E05 All Arbitration (X) 499 Other(Specify) (F) C99 Other(Specify) (F) E07 c.112,s.12S(Mary Moe) (X) TORT E08 Appointment of Receiver (X) B03 Motor Vehicle negligence- EQUITABLE REMEDIES E09 General contractor bond, personal.injury/property damage (F) D01 Specific performance of contract (A) G.L.c.149,s.29,29a (A) B04 Other.negligence-personal D02 Reach and Apply (F) E11 Workman's Compensation (X) injury/property damage (F) D06 Contribution or Indemnification (F) E14 Chapter 123A Petition-SDP (X) 305 Products Liability (A) D07 Imposition of Trust (A) E15 Abuse Petition,G.L.c.209A (X) 306 Malpractice-medical (A) D08 Minority Stockholder's Suit (A) E16 Auto Surcharge Appeal (X) 307 Malpractice-other(Specify) (A) D10 Accounting (A) E17 Civil Rights Act,G.L.c.12,s.11H (A) 308 Wrongful death,G.L.c.229,s2A (A) D12 Dissolution of Partnership (F) E18 Foreign Discovery proceeding (X) 315 .Defamation(Libel-Slander) (A) D13 Declaratory Judgment G.L.c.231A (A) E96 Prisoner Cases (F) 319 Asbestos (A) D99 Other(Specify) .(F) E97 Prisoner Habeas Corpus (X) 320 .Personal Injury-Slip&Fall (F) E99 Other(Specify) (X) 321 Environmental (A) 322 Employment Discrimination (F) 399 Other(Specify) (F) TRANSFER YOUR SELECTION TO THE FACE SHEET. EXAMPLE: CODE NO. TYPE OF ACTION (SPECIFY) TRACK IS THIS A JURY CASE? B03 Motor Vehicle Negligence-Personal Injury (F) D Yes ❑ No SUPERIOR COURT RULE 29 DUTY OF THE PLAINTIFF.The plaintiff or his/her counsel shall set forth, on the face sheet (or attach additional sheets as iecessary), a statement specifying in full and itemized detail the facts upon which the plaintiff then relies as constituting money Damages.A copy of such civil action cover sheet, including the statement as to the damages, shall be served on the defendant :ogether with the complaint. If a statement of money damages, where appropriate is not filed, the Clerk-Magistrate shall transfer :he action as.provided in Rule 29(5)(C). DUTY OFTHE DEFENDANT. Should the defendant believe the statement of damages filed by the plaintiff in any respect nadequate, he or his counsel may file with the answer a statement specifying in reasonable detail the potential damages which 'nay result should the plaintiff prevail. Such statement, if any, shall be served with the answer. A CIVIL ACTION COVER SHEET MUST BE FILED WITH EACH COMPLAINT, BUFF COLOR PAPER. FAILURE TO COMPLETE THIS COVER SHEET THOROUGHLY AND ACCURATELY MAY RESULT IN DISMISSAL OF THIS ACTION. Commonwealth of Massachusetts - County of Barnstable The Superior Court CIVIL DOCKET# BACV2004-00330-A RE: Doerge v Barnstable Board of Health TO:Peter J Feuerbach, Esquire Rubin & Rudman 50 Rowes Wharf Boston, MA 02110 TRACKING ORDER -X TRACK (Administrative Agency Appeal - 30A) You are hereby notified that this case is on the accelerated (X) track as per Superior Court Standing Order 1-88 and.Standing Order 1-96. The orders require that the various stages of litigation described below must be completed not later than the deadlines indicated. STAGES OF LITIGATION DEADLINE Service of process made and return.filed with the Court 09/07/2004 Answer filed 90 days after service: Case disposed 01/05/2005 Counsel for plaintiff must serve this tracking order on defendant before the deadline for filing return of service. This case is assigned to session A sitting at Barnstable Superior Court in , Barnstable. Dated: 06/09/2004 Scott W. Nickerson Clerk of the Courts Nancy N. Weir Assistant Clerk Location: Civil A Telephone: (508) 375-6684 Disabled individuals who need handicap accommodations should contact.the Administrative Office of the Superior Court at(617)788-8130 cvdtracxe02_2.wpd 390698 inidocOl kellmary RUBIN AND RUDMAN LLP COUNSELLORS AT LAW 56 ROWES WHARF • BOSTON, MASSACHUSETTS 02110-3319 TELEPHONE: (617)330-7000 • FACSIMILE: (617)439-9556 • EMAIL: FIRM@RUBINRUDMAN.COM Peter J. Feuerbach Direct Dial:(617)330-7136 E-mail:pfeuerbach@rubinrudman.com June 16, 2004 Certified Mail No. 7002 2030 0002 2464 0800 Return Receipt Requested Board of Health 200 Main Street Hyannis,MA 02601 Certified Mail No. 7002 2030 0002 2464 0794 Return Receipt Requested Linda E. Hutchenrider,Town Clerk Barnstable Town Hall 367 Main Street Hyannis,MA 02601 Re: Anne A.Doerge vs.Town of Barnstable Board of Health Barnstable Superior Court Civil Action No. 04-330 Dear Ms. Hutchenrider and Members of the Board of Health: In accordance with Massachusetts Rules of Civil Procedure Rule 4(d)(4 and 5) 1 enclose herewith a summons and a copy of the Complaint, Civil Action Cover Sheet, and Tracking Order pertaining to the lawsuit that this firm has filed in Barnstable Superior Court in the above referenced action. I am also forwarding a copy of the same to Town Counsel as a courtesy. Ve tru y,yours, Peter J. Feu fach PJF/es Enclosures cc: Robert D. Smith,Esq., Town Counsel 6007271 A Community Pmteiud by P METROGARD InsuPrivate Education Thlen A a Phone:888-740-0275 Phone:781-740-1518 Fax:781-740-1519 The Insurance Package for Government Subdivisions June 24, 2004 Robert D. Smith;Town Attorney Town of Barnstable 367 Main Street Hyannis, MA. 02601 - 3907rw Claim No.: MAS-0040774 Re: Doerge v. Town of Barnstable Board of Mealth Dear Mr. Smith i As you are aware, the. Town of Barnstable, hereinafter the "Town," recently submitted the above captioned, complaint filed by Anne Doerge, hereinafter "plaintiff," for consideration of a defense and/or indemnification under the policy of insurance issued to the Town by Redland Insurance Company. In this regard, Redland has issued Commercial General Liability Policy number XG2 — 1000163 to the Town with effective dates of July 01, 2002 through July 01, 2003. The Commercial General Liability Policy carries liability limits in the amount of $1,000,000 per occurrence with a general aggregate limit of$3,000,000. In the complaint, filed with the Barnstable Superior Court, the plaintiff alleges that the Town of Barnstable Board of Health wrongfully denied her application for a septic system permit to service a small two-bedroom home located at 99 Ocean Drive, West Hyannisport, Massachusetts. The plaintiff claims that without approval of the permit, there is no economically beneficial use of the property. As a result, the plaintiff filed this action asking the court to order the Board of Health to issue the permit and for damages due to a Regulatory Taking under state and federal law. Based upon my review of the complaint and the policy issued to the Town o f Barnstable,. I have determined that no coverage is available under the General Liabilit i Policy"My; , analysis of the contract follows.. cb— ry -� ao cr; Q Z to N N Ce 4o r- m Massamont Insurance Agency Inc., P.O. Box 130,Hingham,MA,02043 ti Robert D. Smith, Esq. June 24, 2004 Page 2 of 4 General Liability Policy The Town's General Liability policy includes form CG 00 01 (ed. 10/01) which provides, in pertinent part, the following: Section I—Coverage A: Bodily Injury and Property Damage Liability 1. Insuring Agreement a. We will pay those sums that the Insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the Insured against any "suit" seeking those damages... b. This insurance applies to "bodily injury" and "property damage" only if: (1) the "bodily injury" or"property damage" is caused by an occurrence...; and (2) the "bodily injury" or "property damage" occurs during the policy period. Section I—Coverage 1B: Personal and Advertising Injury Liability 1. Insuring Agreement a. We will pay those sums that the Insured becomes legally obligated to pay as damages because of"personal and advertising injury" to which this insurance applies. We will have the right and duty to defend the Insured against any "suit" seeking those damages... b. This insurance applies to: "personal and advertising injury" caused by an offense arising out of your business but only if the offense was committed in the "coverage territory" during the policy period. CG 00 01 also provides various definitions including the following: "Bodily injury" means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time. r Robert D. Smith, Esq. June 24,2004 Page 3 of 4 "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions. "Personal and Advertising Injury" means injury including consequential "bodily injury" arising out of one or more of the following offenses: a. false arrest, detention or imprisonment; b. malicious prosecution; c. the wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor; d. oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's good, products or services; e. oral or written publication or material that violates a person's right of privacy; f. the use of another's advertising idea in you"advertisement"; g. infringing upon another's copyright, trade dress or slogan in your"advertisement" or h. mental anguish and humiliation "Property Damage" means: a. physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or b. loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the "occurrence"that caused it. DISCUSSION The Town of Barnstable is insured under a Commercial General Liability Policy issued by Redland Insurance Company and cited above. Upon receipt of service of process in this matter, representatives of the Town tendered copies of the suit papers to Redland S� c Robert D. Smith, Esq. June 24, 2004 Page 4 of 4 Insurance Company for consideration of a defense and/or indemnification under the General Liability Policy. However, after analyzing the terms and provisions of the policy under applicable law, Redland Insurance Company must, unfortunately, deny and disclaim all coverage to the Town of Barnstable for the above-captioned action. This denial and disclaimer is based on the following alternative grounds: (1) The intent of the General Liability policy is to respond to claims for damages because of bodily injury, property damage and/or personal and advertising injury. As an initial matter, the plaintiff does not seek damages because of bodily injury, property damage or personal injury and advertising injury. This fact, alone, precludes coverage under the General Liability policy. However, even though the claim might broadly be construed as one for property damage, (i.e. loss of use) the property damage did not arise out of an occurrence as defined. Therefore, there is no coverage under the Commercial General Liability Policy. In light of the above denial and disclaimer, Redland Insurance Company owes no duty to defend or indemnify the Town of Barnstable Board of Health against the above-captioned action. now pending. As a result, Redland Insurance Company will not assign defense counsel to represent the Town of Barnstable Board of Health in this matter, nor will it pay any award or judgment issued against the Town of Barnstable Board of Health and in favor of the plaintiff. Redland Insurance Company accordingly urges the Town of Barnstable Board of Health to take whatever steps or measures it deems necessary and appropriate to protect its rights and interests with respect to the plaintiff's claims. The above enumeration of grounds shall not be construed as a waiver or relinquishment of any additional grounds for denial that Redland Insurance Company has or may have in the circumstances of this matter, nor as a waiver or relinquishment of any rights of Redland Insurance Company under its policies. No act or omission of Redland Insurance Company, its agents, servants, employees or attorneys, shall be so construed. We suggest that the Town of Barnstable forward this matter to the appropriate insurer, providing errors and omissions coverage to the Town, for review and consideration. aaniel 6yquestions,please do not hesitate to contact us. 9 orrison Claims Attorney cc: Barnstable Board of Health Dowling & O'Neil Insurance RUBIN AND RUDMAN LLP COUNSELLORS AT LAW 50 ROWES WHARF • BOSTON, MASSACHUSETTS 02110-3319 TELEPHONE: (617)330-7000 • FACSIMILE: (617)439-9556 • EMAIL: FIRM@RUBINRUDMAN.COM Peter J. Feuerbach Direct Dial: (617) 330-7136 E-mail: pfeuerbach@rubinrudman.com September 22, 2004 Board of Health Attention: Joan Agostinelli 200 Main Street Hyannis, MA 02601 Re: 99 Ocean Drive, Hyannisport,Barnstable, MA Public Records Request-M.G.L. c.66, 410 M Dear Joan: Pursuant to your request,please find enclosed our Firm check for$5.40 to cover the remaining balance for copies of the public records request for the above property. Thank you for your assistance and consideration.. 7Very t ly rs, eter J. Feue ach PJF:ees , Enclosure 6121821 Dec 09 03 10: 56a Nina Tepper (413) 534-8119 p. 2 • William and Nina Tepper-Stewart 158 3rd Avenue West Hyannisport, MA 12/07/2003 Town of Barnstable Board of Health P.O. Box 534 . Hyannis, MA 02601 We are asking to be put on record opposing:applications for variances from the Regulations of the Mass Department of Environmental Protection,Title 5 and the Town of Barnstable Regulations for: Subsurface Disposal of Sewage. The Locus is shown on assessors map 266, parcel 4 and as#99 Ocean Drive, Hyannisport. According to tax records,this property had been deemed"unbuildable" over the years and the owners had been paying lower taxes to reflect this. Two questions arise from this. First, what has changed that makes this property now "buildable"? Second, wouldn't the owners have to pay back taxes for the property if it is deemed buildable? The State Environmental Code,Title 5,specifies that such.an application falls in the jurisdiction of the local Board of Health. With that in mind,there are three regulations adopted by the Board of Health of the Town of Barnstable that we will address concerning this application. The first is under the provisions of General Laws,Chapter III,Section 31,"The One Hundred " Interestingly,this re ulation was originally adopted 4/23/77 and Regulation." g (100} Feet Setback g • revised this past 5/27/2003,effective date 6/13/2003. According to this regulation; "Unless otherwise specified by the Board of Health, all soil absorption systems, leaching facilities, septic tanks, disposal fields,or other sewage disposal system components hereafter constructed shall be so located that a distance of not less than 100 feet intervene between any bordering vegetated wetland (as defined within 310 CMR 15.002 of the State Environmental Code,Title 5,Minimum Requirements for the Subsurface Disposal of Sanitary Sewage)and/or watercourse including brooks, ponds,salt and fresh water marshes, logs, streams, coastal banks,lakes or spring high water mark of tidal waters and any portion of any soil adsorptions system, leaching facility, septic tank, disposal field, or other sewage disposal system component." it would appear to anyone looking at how recently this regulation was reviewed,that both the generation before and those in leadership of the Board of Health presently share in a concern and understanding of protecting our coasts from possible pollution. Less than 6 months after the review of this regulation,we would think the Board of Health would want to maintain its role as healthy environment for now and the future and not risk a serious regulators and protectors of a variance to this regulation at this time. Recent variances granted on Ocean Drive should not be interpreted at a precedent that can apply to. . subsequent applications. The conditions for each application must be reviewed individually. Although we have concerns about these recently granted variances,we are aware that the property granted variances had an existing dwelling. True that most of the homes on Ocean Drive may be considered "non-conforming",we must remember that all but our recently built home(which was required to abide by current regulations in order to make it"conforming)were build years before ' the current regulations came into effect. These laws were written,we assume,to protect the coast from further building that might jeopardize the marshes. Lot#99 does not have an existing • Dec 09 03 10: 56a Nina Tepper (413) 534-0119 p. 3 Tepper-Stewart page 2 structure and should not be given the same consideration as those who must improve and maintain property already established. The second regulation is Chapter 111, Section 31 and section 127A: concerns"Soil Stability". The regulation states: s area where there is active shifting of "Septic sewage systems shall n sands or earth. This would include sand be in stalled nes, some areas of coastal beach and other areas subject to wind-borne-free moving soil." ver the My husband grew up on the property directlyacivershift shifting of sands oss the street from r earth" inCthe marshes. During have photographs that can document rs we thethe hurricane season the marsh waters come in basements and yards of nearby homes,passing over the land that might contain this proposed septicto 3 feet of the road on cean Drive, system.This is another example that might violate the"100 Feet Setback" Regulation as well. This brings us to the third regulation, the"Flood Plain Sewage Regulation." If, beyond our better judgment, this preJlaws of Section 31,Chapte the Board r 1111 Health thewould Gene al Laws responsible f thebCommonwealth of thepermit follows th Massachusetts. This states that:. "Permits for on-site sewage disposal or water supply may be approved for construction when located within zones"A" and"V" I as designated on F.I.A. Flood Insurance Maps Numbers H+ 1-04,effective April 3, 1978 on file with the Town Clerk Planing Board,Building Inspector,and Board of Health, when it is demonstrated by the • applicant that in.the event of flooding to base elevations such facilities are designed to minimize contamination. Any new or replacement water supply system or sanitary sewerage system within such area shall be designed to minimize or eliminate infiltration of flood waters into the system and discharges from the system into flood waters. Applicant shall also comply with all provisions of the Massachusetts Department of Environmental Quality Engineering,Title V and all Town of Barnstable Health regulations." If the Board of Health determines that this property does not have to comply with ALL the Town of Barnstable Health regulations,there must be the awareness that there WILL be flooding at times and even "minimal" infiltration of floodwaters into the system and discharges from the system into flood waters is unacceptable and will likely result in pollution over time. take the to Knowing the potential for disaster years after our ds ment ut earth,on theld we w tin oft esehregulations ance by give variances that go against the dialogue and ju a p lth members? I hope the Board of Health determines,after all previous and present Board of Hea these concerns are measured,that it must continue to respect and take responsibility for the coast line,the marshes,the abutting neighbors,and the gift nature has provided. I urge you not to approve these variances. Thank you for the opportunity to be on the agenda. ..Signed,.. ..... ... - Mina S.Te-pp(. William H.Stewart • Town of Barnstable Regulatory Services �pFZHE Tp�; Thomas F. Geiler,Director 'b HP sniitvsci�s o Public Health Division .9 A MASS........ t619.. ss.. Thomas- VMcKtan Director 200 Main Street, Hyannis, MA 02601 Office: 508-862-4644 Fax: 508-790-6304 TO: Barnstable Board of Health CC: Thomas McKean,Director,Public.Health Division FROM: Dale.Saad,Ph.D. Coastal Health Resource Coordinator DATE: .. January 18, 2004 RE: 99 Ocean Drive,Hyannis.(Map 266-004) I have reviewed the sewage disposal system plan(dated 11/14/03.by BSC Group) for the above reference.property.and have.the following comments: • Thee plan calls.for eight(9)variances from either Title 5.or Town of • Barnstable Health regulations for the construction of a new,single-family dwelling. • The majority of the variances requested are significant in nature,ranging from 23 out of 25 feet to 96 out of 100 feet and involve setbacks to the coastal bank, an important resource.area.In the event of a severe storm, the house and septic.system could be in jeopardy by being built in, or in such close proximity to;the coastal bank. • The.most insignificant variance is not environmental in nature but involves a setback to the street line. • The lot,while having a total size.of 47,717 S.F.,has only 11,796 S.F.of upland, an amount that would support only a one-bedroom house if in a nitrogen sensitive.area..The applicant is.apparently aware of the environmental sensitivity of the parcel in that they are willing to accept a deed restriction to two(2)bedrooms.The proposed floor plans should be carefully reviewed to.ensure the two-bedroom maximum. • The lot is located in one of the Areas of Concern as listed in the Waste Water Facility Plan(WWFP).This area was included due to the impacts of existing development resulting from small lot sizes,depth to groundwater . problems,proximity of wetlands and coastal banks, etc.The new construction proposed would add to an already impacted system by requiring many of the same variances that have been problematic in the past. I • The Squaw Island area,including the waters adjacent to this site,is currently closed to shellfishing due.to bacterial contamination. Page 1 of 2 . • The waters adjacent to the site is one of the areas include in the Massachusetts Estuaries Project. • There are many other parcels, in the immediate area and throughout Barnstable,that are similar to this parcel and the variances required to develop it(in both number and magnitude).For many years,these parcels have been considered as "un buildable"for the reasons mentioned above. • Page.2 of 2 Q Town of Barnstable Regulatory Services 'I E Tp Thomas F. Geiler,Director Public Health Division * IARNSI'ABLE, 9 '""SS i639• 0� Thomas McKean,Director prFD'A0�a . 200 Main Street, Hyannis,MA 02601 Office: 508-862-4644 Fax: 508-790-6304 TO: Barnstable.Board of Health CC: Thomas McKean,Di Lector,Public Health Division FROM: . Dale Saad,Ph.D. Coastal Health Resource Coordinator DATE: April20,.2004. RE: .99.Ocean Drive,Hyannis (Map 266-004) I have reviewed the sewage disposal system plan(dated 4/4/04 by BSC.Group) for the above reference property and have the following comments: • The plan calls for six(6)variances from either Title 5.or Town of • Barnstable Health regulations for the.construction of a new, single-family dwelling.. • Two (2).variances.are missing that deal with the new location of the reserve area to be placed in the area of proposed primary S.A.S.. • The majority of the variances requested are significant in nature,ranging from 21 out of 25 feet to 92 out of 100 feet and involve setbacks to the coastal bank, an important resource area. In the event of a severe storm, the house and septic system could be in jeopardy by being built in, or in G such close proximity to,the coastal bank. • The most insignificant variance is not environmental in nature but involves a setback to the street line(variance of 10 out of 10 feet). • The lot,while having a total size of 47,717 S.F.,has only 11,796 S.F. of upland, an amount that would support only a one-bedroom house if in a nitrogen sensitive area. The applicant is apparently aware of the environmental sensitivity of the parcel in that they are willing to accept a deed restriction to two (2)bedrooms. The proposed floor plans should be carefully reviewed to ensure the two-bedroom maximum.. • The lot is located in one of the Areas of Concern as listed in the Waste Water Facility Plan(WWFP). This area was included due to the impacts of existing development resulting from small lot sizes, depth to groundwater problems,proximity of wetlands and coastal banks, etc. The new construction proposed would add to an already impacted system by • requiring many of the same variances that have been problematic in the past. Page 1 of 2 • The Squaw Island area,including the waters adjacent to this site, is currently closed to shellfishing due to bacterial contamination. • The waters adjacent to the site is one of the areas include in the Massachusetts Estuaries Project. • There are many other parcels, in the immediate area and throughout Barnstable, that are similar to this parcel and the variances required to develop it(in both number and magnitude). For many years,these parcels have been considered as"un-buildable" for the reasons mentioned above. i I • Page 2 of 2 January 5, 2004 • Town of Barnstable Board of Health 200 Main Street - Hyannis, MA 02601 Re: Sewage Disposal System Design 99 Ocean Drive West Hyannisport, Barnstable, MA The following summarizes our objections, as abutters,to the request for variances and to the Z design and placement of the septic system for 99 Ocean Drive,West Hyannisport. ➢ Instability of the coastal bank. The proposed soil absorption system (°S.A.S.� will be located within 2 feet of the coastal bank. Regulations require 100 feet. If the variance for 96 feet is granted,the septic tank&S.A.S.will be located on sandy soil subject to movement and shifting during times of high water and storms. The particular location and elevations of the system,within 12 feet of our property line,will redirect surface run- off. When the system's drainfield is saturated with stormwater it increases the likelihood of destabilizing the coastal bank. In the event of a blowout, effluent would drain onto our abutting property and directly into the saltmarsh. It is also likely that storm flowage would be redirected into our structure with the proposed filling of the coastal bank. ➢ Impact of topographical change. Fill required to allow construction of the elevations proposed will create a steep slope and effectively create a ditch or trench approximately 30 feet wide and 3 feet deep on the adjacent property(111 Ocean Drive)which will • concentrate run-off from the proposed house, yard and the existing street.This slope will collect run-off, potential effluent from the drainfield and direct such into the wetland and the adjacent property on a regular basis. ➢ Hardship. The hardship identified in the proposal is associated with town acquiring a portion of the property in 1928 to allow emergency turning access at the end of Third Avenue.The land taking was well prior to the ownership of the property by the current owner(acquired in 1976). Furthermore,the 2004 assessed value of the lot is$9,400.The assessed value of the lot and the associated taxes have for many years been nominal compared to other properties in the surrounding area. ➢ Grading.The proposed elevations would require grading work to be done on the private road to maintain positive drainage.The design provides minimal cover for the drainfield. the grading plan shows slopes over 2%,furthermore the 3:1 coastal bank encroaches into the drainfield creating a substandard design. ➢ Erosion of the coastal bank.The proposed slopes are excessively steep, landscaping would be difficult to maintain further eroding the coastal bank. The proposed foundation is at the bottom the coastal bank and would incur significant damage in a storm event.The result of this may after the tidal flow and change the flood plain. ➢ 50 foot wetland buffer impact.The proposed construction comes within 2 feet of the 50 foot buffer. It is highly probable this buffer would be further damaged during construction. • ➢ Deed restriction:The proposed two bedroom deed restriction cannot be enforced.The • proposal appears to include a walkout basement which could be used as a third bedroom, making the drainfield design substandard. ➢ Number/type of variances requested: Seven variances are requested from the Board of Health. Four of these request substantive relief from current regulations. Title 5 variances: ➢ Proposed SAS to existing coastal bank—a variance of 48' of a required 50'is requested. ➢ Proposed reserve to existing coastal bank—a variance of 46' of a required;50' is requested. ' ➢ Proposed septic tank to existing coastal bank—a variance of 23'of a required 25' is requested. Town of Barnstable BOH variances: ➢ Proposed SAS area to coastal bank—a variance of 96'of a required 100' is requested. We feel the extent of these variances suggest a wanton disregard for existing regulations. We feel that approval of the current development proposal is not in the spirit or the intent of current ordinances and current septic engineering practices, and request that the board of Health deny the variances requested for this development.In addition, approval of this project may result in substantial hardship and potential devaluation of our property. Respectfully submitted, John P. erry Margaret ny Trustees 111 Ocean Drive West Hyannisport, Barnstable, MA • Town of Barnstable Regulatory Services P�OptME lOk Thomas F. Geiler,Director O ,, 8 Public Health Division `` '' Thomas McKean,Director AT�D1AP�a 200 Main Street, Hyannis,MA 02601 I Office: 508-862-4644 Fax: 508-790-6304 TO: Barnstable Board of Health CC: Thomas McKean,Director,Public.Health Division FROM: Dale.Saad,Ph.D. Coastal Health Resource Coordinator DATE:.. January 18, 2004 RE: 99 Ocean Drive, Hyannis.(Map 266-004) I have reviewed the sewage disposal system plan(dated 11/14/03.by BSC Group) for the above reference property.and have.the following comments: The plan calls.for eight(8)variances from either Title 5.or Town of • Barnstable Health regulations for the construction of a new,single-family. dwelling. • The majority of the variances requested are significant in nature;ranging from 23 out of 25 feet to 96 out of 100.feet and involve setbacks to the coastal bank, an important resource.area.In the event of a severe storm, the house and septic.system could be in jeopardy by being built in, or in such close proximity to,:the.coastal bank. • The.most insignificant variance is not environmental in nature but involves a setback to the street line. • The lot,while having a total size.of 47,717 S.F.,has only 11,796 S.F. of upland, an amount that would support only a one-bedroom house if in a nitrogen sensitive.area.The applicant is.apparently aware of the environmental sensitivity of the parcel in that they are willing to accept a deed restriction to two(2)bedrooms. The proposed floor plans should be carefully reviewed to.ensure the two-bedroom maximum. • The lot is located in one of the Areas of Concern as listed in the Waste Water Facility Plan(WWFP).This area was included due to the impacts of existing development resulting from small lot sizes,depth to groundwater . problems,proximity of wetlands and coastal banks, etc.The new construction proposed would add to an already impacted.system by requiring many of the same variances that have been problematic in the • past. -. • The Squaw Island area,including the waters adjacent to this site, is currently closed to shellfishing due to bacterial contamination. Page 1 of 2 • The waterss adjacent to the site is one of the areas include in the Massachusetts Estuaries Project. • There.are many other parcels, in the immediate area and throughout Barnstable,that are similar to this parcel and the variances required to develop it(in both number and magnitude).For many years,these parcels have been considered as "un-buildable"for the reasons mentioned above. • Page.2 of 2 C -03 Nina Tepper & William Stewart s 158 3rd Avenue West Hyannisport, MA 12/23/2003 Town of Barnstable Board of Health P.O. Box 534 Hyannis, MA 02601 Dear Board of Health, Thank you for allowing us to speak at the December 16 meeting. We are forwarding a recent letter we wrote to the Conservation Commission. Within the document are many of the same points we raised at the Board of Health meeting with some additions. We have also contacted the Audubon Society, because of the delicate ecosystem of birds, shellfish, plantlif e, and other wildlife that would be affected if this project proceeds. This marsh is also on the path for hundreds of • migrating birds. Again, we urge you not to approve these variances as they contradict most of your own regulations and your committment to public health and conservation. We look forward to the January 20th meeting, after your site visit, hoping you will conclude that moving forward with these variances would not be in the public's best interests. Thank you again for the work you do. _Sincerely-;.. - Nina S. Tepper William H. Stewart Town of Barnstable Regulatory Services oFtHe rq�� Thomas F. Geiler,Director P� Public Health Division * BARNSPABLE, '`� . �0� Thomas McKean,Director ArFO" A 200 Main Street, Hyannis, MA 02601 Office: 508-862-4644 Fax: 508-790-6304 TO: Barnstable Board of Health i CC: Thomas McKean,Director,Public Health Division FROM: Dale.Saad,Ph.D. Coastal Health Resource Coordinator DATE:.. January 18, 2004 RE: 99 Ocean Drive, Hyannis (Map 266-004) I have reviewed the sewage disposal system plan(dated 11/14/03.by BSC Group) for the above reference.property and have the following comments: • The plan calls.for eight (8)variances from either Title 5.or Town of • Barnstable Health regulations for the construction of a new, single-family dwelling. • The majority of the variances requested are significant in nature, ranging from 23 out of 25 feet to 96.out of 100.feet and involve setbacks to the coastal bank, an important resource.area.In the event of a severe storm, the house and septic.system could be in jeopardy by being built in, or in such close proximity to,the.coastal bank. } • The most insignificant variance is not environmental in nature but involves a setback to the street line. • The lot,while having a total size of 47,717 S.F.,has only 11',796 S.F. of upland, an amount that would support only a one-bedroom house if in a nitrogen sensitive.area..The applicant is.apparently aware of the environmental sensitivity of the.parcel in that they are willing to accept a deed restriction to two(2)bedrooms. The proposed floor plans should be carefully reviewed to.ensure the two-bedroom maximum. • The lot is located in one of the Areas of Concern as listed in the Waste Water Facility Plan(WWFP). This area was included due to the impacts of existing development resulting from small lot sizes,depth to groundwater - problems,proximity of wetlands and coastal banks, etc.The new construction proposed would add to an already impacted system by requiring many of the same variances that have been problematic in the • past. • The Squaw Island area,including the waters adjacent to this site, is currently closed to shellfishing due to bacterial contamination. Page 1 of 2 • • The waters adjacent to the site is one of the areas include in the Massachusetts Estuaries Project. There are many other parcels, in the immediate area and throughout Barnstable,that are similar to this parcel and the variances required to develop it(in both number and magnitude).For many years,these parcels have been considered as "un-buildable"for the reasons mentioned above. s E 1 • l Page.2 of 2 Town of Barnstable Regulatory Services Thomas F. Geiler,Director ..s Public Health Division * snxxrns 9� 1 ,m� Thomas McKean,Director 200 Main Street, Hyannis,MA 02601 Office: 508-862-4644 Fax: 508-790-6304 TO: Barnstable.Board of Health CC: Thomas McKean Di ector Public Health Division FROM: . Dale.Saad,Ph.D. � - Coastal Health Resource Coordinator DATE: April 20, 2004. RE: .99.Ocean Drive,Hyannis (Map 266-004) I have reviewed the sewage disposal system plan(dated 4/4/04 by BSC.Group) for the above reference property and have the following comments: The plan calls for six(6)variances from either Title 5.or.Town of Barnstable Health regulations for the construction of a new, single-family dwelling. • Two (2).variances.are missing that deal with the new location of the reserve area to be,placed in the area of proposed primary S.A.S.. • The majority of the variances requested are significant in nature,ranging from 21 out of 25 feet to.92 out of 100 feet and involve setbacks to the coastal bank, an important resource area. In the event of a severe storm, the house and septic system could be in jeopardy by being built in, or in such close proximity to,the coastal bank. • The most insignificant variance is not environmental in nature but involves a setback to the street line (variance.of 10 out of 10.feet). • The lot,while having a total size of 47,717 S.F.,has only 11,796 S.F. of upland, an amount that would support only a one-bedroom house if in a nitrogen sensitive area. The applicant is apparently aware of the environmental sensitivity of the parcel in that they are willing to accept a deed restriction to two (2)bedrooms. The proposed floor plans should be carefully reviewed to ensure the two-bedroom maximum.. • The lot is located in one of the Areas of Concern as listed in the Waste Water Facility Plan (WWFP). This area was included due to the impacts of existing development resulting from small lot sizes, depth to groundwater problems,proximity of wetlands and coastal banks, etc. The new construction proposed would add to an already impacted system by requiring many of the same variances that have been problematic in the past. Page 1 of 2 • The Squaw Island area, including the waters adjacent to this site, is currently closed to shellfishing due to bacterial contamination. • The waters adjacent to the site is one of the areas include in the Massachusetts Estuaries Project. • There are many other parcels, in the immediate area and throughout Barnstable, that are similar to this parcel and the variances required to develop it(in both number and magnitude). For many years, these parcels have been considered as "un-buildable"for the reasons mentioned above. i Page 2 of 2 Dec 09 03 10: 56a Nina Tepper (413) 534-8119 p. 2 '5' • William and Nina Tepper-Stewart 158 3rd Avenue • West Hyannisport, MA 12/07/2003 Town of Barnstable Board of Health P.O. Box 534 . Hyannis, MA 02601 We are asking to be put on record opposing applications for variances from the Regulations of the Mass Department of Environmentalh rLocus s,Title 5 and shown on assesso s map e Town of B266, parcel 4 Regulations for Subsurface Disposal of Sewage Ocean Drive, Hyannisport. According to tax records,this property had been deemed"unbuildable" over the years and the owners had been paying lower taxes to reflect this. Two questions arise from this. First, what has changed that makes this property now "buildable"? Second, wouldn't the owners have to pay back taxes for the property if it is deemed buildable? The State Environmental Code,Title 5,-specifies..that such..an application,falls in the jurisdiction of the local Board of Health. With that in mind,there are three regulations adopted by the Board of Health of the Towri of Barnstable that we will address concerning this application. The first is under the provisions of General Laws, Chapter Ill, Section 31,"The One Hundred (100) Feet Setback Regulation." interestingly,this regulation was originally adopted 4/23/77 and • revised this past 5/27/2003,effective date 6/13/2003. According to this regulation; "Unless otherwise specified by the Board of Health, all soil absorption systems, leaching facilities, septic tanks, disposal fields,or other sewage disposal system components hereafter constructed shall be so located that a distance of not less than 100 feet intervene between any bordering vegetated wetland (as defined within 310 CMR 15.002 of the State Environmental Code,Title 5,Minimum Requirements for the Subsurface Disposal of Sanitary Sewage)and/or watercourse including brooks, ponds,salt and fresh water marshes, logs, streams, coastal banks, lakes or spring high water mark of tidal waters and any portion of any soil adsorptions system, leaching facility,septic tank, disposal field, or other sewage disposal system component" It would appear to anyone looking at how recently this regulation was reviewed,that both the generation before and those in leadership of the Board of Health presently share in a concern and understanding of protecting our coasts from possible pollution. Less than 6 months after the review of this regulation,we would think the Board of Health would want to maintain its role as serious regulators and protectors of a healthy environment for now and the future and not risk a variance to this regulation at this time. Recent variances granted on Ocean Drive should not be interpreted at a precedent that can apply to subsequent applications. The conditions for each application must be reviewed individually. Although we have concerns about these recently granted variances,we are aware that the property granted variances had an existing dwelling. True that most of the homes on Ocean Drive may be considered "non-conforming",we must remember that all but our recently built home(which was required to abide by current regulations in order to make it"conforming)were build yeas before the current regulations came into effect. These laws were written,we assume, to protect the coast from further building that might jeopardize the marshes. Lot#99 does not have an existing Dec 09 03 10: 56a Nina Tepper (413) 534-8119 p. 3 • Tepper-Stewart page 2 struct ure and should not be given the same consideration as those who must improve and maintain • property already established. The second regulation is Chapter I11, Section 31 and section 127A: concerns"Soil Stability". The regulation states: "Septic sewage systems shall not be installed in any area where there is active shifting of sands or earth. This would include sand dunes, some areas of coastal beach and other areas, subject to wind-borne-free moving s My husband grew up on the property directly across the street from Lot#99. Over the years we ; that can docu ment the"active shifting of sands or earth" in the marshes. During t flooding the havephotographscean Drive, g he road on O tern come within 2 to 3 feet hurricane season the marsh waters •Q 'n this proposed septic t might contain p p in over the land that b basements and yards of nearby homes,passing system.This is another example that might violate the"100 Feet Setback' Regulation as well. third regulation the"Flood Plain Sewage Regulation." If, beyond our better This brings us to the g responsible to insure that the o would be held the Board of He alth judgment,this project is approved, Commonwealth of J g P neral Laws of the 31 Chapter 111,of the,Ge permit follows the laws of Section P Massachusetts. This states that: "Permits for on-site sewage disposal or water supply may be approved for construction when located within zones "A" and"V" I as designated on F.I.A. Flood Insurance Maps Numbers H+ 1-04,effective April 3, 1978 on file with the Town Clerk Planing Board, Building Inspector,and Board of Health, when it is demonstrated by the • applicant that in.the event of flooding to base elevations such facilities are designed to minimize contamination. Any new or replacement water supply system or sanitary sewerage system within such area shall be designed to minimize or eliminate infiltration of flood waters into the system and discharges from the system into flood waters. Applicant shall also comply with all provisions of the Massachusetts Department of Environmental Quality Engineering, Title V and all Town of Barnstable Health regulations." If the Board of Health determines that this property does not have to comply with ALL the Town of Barnstable Health regulations,there must be the awareness that there WILL be flooding at times and even"minimal" infiltration of floodwaters into the system and discharges from the system into flood waters is unacceptable and will likely result in pollution over time. Knowing the potential for disaster years after our stay on earth, should we take the chance today to give variances that go against the dialogue and judgment put into the writing of these regulations by previous and present Board of Health members? I hope the Board of Health determines,after all these concerns are measured,that it must continue to respect and take responsibility for the coast line,the marshes,the abutting neighbors,and the gift nature has provided. I urge you not to approve these variances. Thank you for the opportunity to be on the agenda- Signed,.. ..... Mina S.Tepp� William H. Stewart • Massachusetts Title.5: 310-15.211 Proposed reserve area to existing coastal bank(50' required) 16' provided. A variance of 34' is requested. Town of Barnstable Board of Health:. Proposed reserve area to coastal bank(100' required) 8' provided. A variance of 92' is requested. I I 245 2 2 \ 138 0 4, 1.36' �r 12\2 °3 i 8 MAP 245 3 #-L 3 26b; MAP 245n 266 0 \/ 006- 0 #21 MAP 266 1 �. . Z Aj 21°3 #` 8 1 MAP 2 1 r II # t # r \ e MAP 266 8 00 �i 3 �#9 r 6,,3. 6 -- . 45 266 ,10391 ��. ,7 i� .9 �� \ i�7.1 2°6 i 1°4 , \/ y r' 0°4 MAP 266 PARCEL 004 IN W E 99 Ocean D-riviu s *NOTE I'lardme ft ,and **NOTE:The parcel lines are only graphic reprosenlations DATA SOURCES: Manimetrics(man-moe features)we interpreted from 1995 aerial photographs by The James or anon were ran to met National of.pr arty boundgri They are not true h�mtion;,nr� W.Sewall fnmppaarry.Taprgrophy and vegetation x�e interpreted from 1989 aerial photographs by 6EOD Map Aoarrary Stan rds at a scahr of do rot represent actual relationships to physical oWeds (orporation. PC imeaft"rophy,and vgetation were mapped to meet National Map Accuraq Standards 1°=100. on.the.awp. do scale ofl°=100'.PoW-Iine weiedigked.from-FY2004Town-ofBorrsstableAssessolstax.mops. e:\bilkl\Basemap.dgn 1/20/2004 9:01:05 AM \ 1 � , ` 6 #82 29 0 0 3 Cr / \\ 1' 245 2 5 , Q MAP 266 -^-- ' MAP 32 0 3 11 #23 1 G � 2 MAP 245 \ 1 1 U�Z \\ 144 1 1� # a6 r 12 #137 ------- 2 ❑ i l MAP 245. 11 1 3 #I 11 26b ��\ \ 11 MAP 245 ----- 66. 1 122 _ -- - p1 M06- 02#146 45 #' 1. \ 2 #115 # 8 AP_ ------ Z M245 �\ #1 8 \ i • #161 0MAP 266 001 \\. r 245 !1 #I6 ,1 1# 3 <t, i I� MAP 245 - 1150.. i ,• MAP 266 t / l -- - - 005 i #III MAP 266 004 _�A"9 M1AP.45 _C)3 - #75 #91 MAP 245 \ #191 — �L AL 41 — 41 4- 145 �i \ MAP 266 Cy 25 \ oo�L '\ _ - 24AL n \ P 134 — 41 _i�vl_ N\VIL � I 45` " \ — \i \/i p AL I I MAP 245 135-002� #40 - MAP 266 PARCEL 004 , SCALE: 1"=150' w E WITH 100" BUFFER s *NOTE: Planimetrics,topography,and **NOTE:The parcel lines are only graphic representations DATA SOURCES: Planimetrics(man-made features)were interpreted from 1995 aerial photographs by The James vegetation were mapped to meet National of property boundaries. They are not true locations,and W.Sewall Company. Topography and vegetation were interpreted from 1989 aerial photographs by GEOD Map Accuracy Standards at a scale of do not represent actual relationships to physical objects Corporation. Planimetrics,topography,and vegetation were mapped to meet National Map Accuracy Standards on the map. at a scale of 1°=100'. Parcel lines were digitized from FY2004 Town of Barnstable Assessors tax maps, Property Location: 99 OCEAN DRIVE MAP ID: 266/004/// Vision ID: 19104 Other ID: Bldg#: 1 Card 1 of I Pr;nt Doe.01/20/2004 08:51 60ERGE,ANNE A Description I Code A raised Value Assessed Value MIDDLE FORT RD ES LAND 1320 99400 9,400 801 MIDDLEBURGH,NY 12122 Barnstable 2004,MA ccount# 167839 Plan Ref. Tax Dist. 400 Land Ct# Per.Prop. #SR Life Estate #DL I Notes: VISION #DL 2 GIS ID: 19104 Total 9,4001 9,4001 V L Wi C, kD DOERGE,ANNE A 3041/343 Q 0 Yr. lCode Assessed Value Yr. Code Assessed Value Yr. Code Assessed Value 2003 1300 15,2002002 1300 15,200 2001 1300 15,200 15,2-0—OF--Total:, 15,2001 Total:I 15,200 U�- 1 XEIYIPTTONS ,_ - BOTHER„ SESSME, TS This si nature acknow[ed es a visit b a Data Collector or Assessor Year TypelDescription Amount Code Description Number Amount Comm.Int. APPRAISEII VA IL Appraised Bldg.Value(Card) 0 Appraised XF(B)Value(Bldg) 0 Appraised OB(L)Value(Bldg) 0 Total. Appraised Land Value(Bldg) 9,400 4o, Special Land Value -04 1 L'S I ATE Total Appraised Card Value 9,400 Total Appraised Parcel Value 9,400 Valuation Method: Cost/Market Valuation �et Total Appraised Parcel Value 9,400 q CHA�YG�VJ � T, Permit ID Issue Date Tvpe Description Amount Insp.Date I %Comp. Date Comp. Comments Date ID Cd. Purpose/Result 'W" A NO W IT OWN -xw B#1 Use Code I Description Zone D FrontaZe DeptW Units Unit Price I Factor SJ C.Factor Nbhd Adi. I Notes-AZ/S&:cial Xicinz Adf. Unit Price Land Value 1 !1320 ndevable 'i RF1 4 1 1.06 AC 3,400.00 0.95 M 1.00 0113 2.75 WETLAND, 9,400 Total Card Land Units 1.06 AC Parcel Total Land Area: 1.06 AC Total Land Valk 9'400 Property Location: 99 OCEAN DRIVE MAP ID: 266/004/ Vision ID:19104 Other ID: Bldg#: 1 Card 1 of 1 Print Date: 01/20/2004 08 Element Cd. Ch. Description Commercial Data Elements Style/Type 99 acant Land' Element Cd. Ch. Description Model 00 Vacant Heat&AC Grade Frame Type Baths/Plumbing tories ccupancy eiling/Wall ooms/Prtns zterior Wall 1 /o Common Wall 2 Wall Height Roof Structure Roof Cover .Y �s�CONbO�/M'0�.8'JIEHOMEDAT.,�t � 3 Interior Wall 1 2 Element Code [Description Factor Interior Floor 1 Complex 2 Floor Adj Unit Location eating Fuel eating.Type umber of Units C Type umber of Levels /o Ownership Bedrooms Bathrooms . ,COS,T%M4RKET,I�f1 ilATIO r „ Total Rooms nadj.Base Rate 1.00 Size Adj.Factor 0.00000 Bath Type Grade(Q)Index 0.00 Kitchen Style dj.Base Rate 0.00 Bldg.Value New 0 Year Built 0 ff.Year Built 0 rml Physcl Dep 0 �. uncnlObslnc 0 MIXEDUSE,,,'; con Obslnc 0 Specl.Cond.Code 1320 Undevable 100 Specl Cond% veralI%Cond. 0 eprec.Bldg Value ''°�� OB O(7TBUIZD�NC Y�91�1I r�7'EMS(Lj IXFBLIICDINGEJXTItA�FEA,TTl1tEEEEEES(B) . Code Description LIB I Units Unit Price Yr. I Dp Rt %Cnd A r. Value a BITILDING S,IIB .AREA SUIMAR#YECTIf7 „�... ., Code I Description 1LivmjZArea I Gross Area E .Area Unit Cost Unde rec. Value TtL Gross Liv Lease Area 0 0 0 Bld Val: • Town Of Barnstable Natural Resources SC26.0 7 . 1 .5 Squaw Island / .Squaw Island_/ I"i a I I's Creek Hall's Creek Shellfishing Area The.waters.and flats and all tributaries thereto of Squaw Island in the Town of Barnstable, east of a line drawn across A the common mouth of Green Dunes a Creek and Halls Creek(DMFISC:26.0; classified as. prohibited). 4 {fp t 1 ` 5 CHAQ : tCK EPCH R q x sue , ;�, �� 'C,�lIL gE�gCF,i; � � CRA G��. � ,�� � � .� �� � �,�`2 �• �,�,�*�;,�,� :, � �-� z a xT. �(lT;Wit„ .: „I``I���:. v�•tm� !e'T5f� Ys!•2��r3✓�c a t ' t ,y 3 f,.,.?"� �4.. '� _ �;X�'�`}rz�,•K�'G.�, iA I�Y ..L � 5,�3�� `4 `.� S'Sf`2 ( 9.Ax R�` 3� •y� q '� £�� ?'�s.�+�:�3'. {j� '�Y �. m �x,. xs -� �'9�';� �'a s'��.� ,�;t f s x ,�geew.. '.a•"��5r�,.��'�' '��&-'£ ��'��, 's, ..+� �'` y� t by is �� i✓� L�w y?1NS�Y�`�'4 ri �t �Jr e'� �r',�-+. �'' a�� i v � y•, � "�� `>... :;(� � ':: ®S(�y w��°ya�:� � .< �'�Yd � s -'FY>'i-��������.`�' t^e°t �t ,�`' i � � -'•RAW no i -rt�' ��.. 5 m� Fao DY-„- } ®{��' �„+Sw,�;Xt � �;+ £ i t :,. �•ryy��N� q :�, �`` �s � ��� ��DR�� 'K.-Ns"�*+ ,{�.jT -,�"�N•=X° �x .;��1„ '� -�r�Rjar.'�`'.., .�'sua� � -��F r,.ns� �'x s � �'.�,'�'Sa� r` ` '�.a� _++ '`�y.� '�• ors* ""'i� z 4 m Y t A l✓s ti 1{.3 sy; � 7 IN S* '. `�� �Ws ;,.{ d sF �4ir r Srw,sf�J;�Q y t t :r AT Way r ter`'r_`' xis ? .. �� ,�,,�'' yt�� s+t: 3 4 z '� 'V s � �''c„r',y rw 1'c•� �+..kk �fq.� �, "� ' .. c< }Poll L 150M304 PAa 343 06563 WE, ANNE A. DOERGE, of Middlefort Road, Middleburgh, New York, and JEFFREY S. ALFORD, of 204 Utah Avenue, Warner Robins, Georgia, as tenants in common OMM31INKMmmix In oonsidemtion of SEVEN HUNDRED FIFTY AND 00/100 ($750.00) DOLLARS grant to ANNE A. DOERGE, of Middlefort Road, Middleburgh, New York xMk with quitclaim ranrnsnts .i the land in Barnstable (West Hyannisport), Barnstable County, Massachuset s, bounded and described as follows: Commencing at a marker at the Northwest corner of the premises and running Southerly on land now or formerly of Bessie E. Johnson, three hundred twenty-five (325) feet, more or less to a marker= thence turning and running Easterly on land now or formerly of heirs of John A. Carney, one hundred sixty-nine (169) feet, more or less to center of ditch; thence turning and running Northerly in center of said ditch, one hundred ninety eight (198) feet to a marker at the head of said ditch) thence turning and running Northerly one hundred i fifteen (115) feet on land now or formerly of Mrs. H. H. Davis to Ocean Street, and turning running Westerly one hundred twenty-two (122) feet more or less on Ocean Street to point of beginning. For title to the above parcel, see Estate of Alice L. Lovgren, j Barnstable Probate No. 53582, the grantors herein being the residuary I devisees under the will of said Alice L. Lovgren. Ca ► 17. 1 I i BOVY 41 PACE 344 Executed as a sealed instrument this / y` day of 19 79 Ann� oe g�f Je r SWAlforr OF IJW,XDRK ss. 1979 Then personally appeared the above named Anne A. Doerge 4 I and acknowledged the foregoing instrument to be 4er tree act and deed, j Btljore me,' N Pubi{o— HELEN 1.ALr U.ID y Notary public,State of New Vorl. My commission expires '� 3 c 1991 Qua lad in Schoharis County Commission Explree March 30,190$I STATE-OF GEORGIA ff ea. Nov a , 1979 Then personally appeared the above-named Jeffrey S. Alford.and acknowledged the foregoing instrument to be his free act before me b7otary� My commission expires: 11 3c).%0 RECORDED JAN 8 W � �tI IUIYIlP9S 1Uk(PrPIIf, the said The Wareham Savings Bank f' has caused its corporate seal to be hereto affixed and these presents to be signed in its name and behalf by 1142 Edward A. Besse its President this:, 18th day of December A. D. 19 61. t THE WAREHAM SAVINGS BANK ............ - - ........................... .....-.................--- ---...... by . c, c c�`L �L... .�—...................... �'".-mot L President c�hr fIIntmm�nwealtti of �assatl�usrrts - Plymouth ss. December 18, 1961 Then personally appeared the above named Edward A..Besse, President and acknowledged the foregoing instrument to be the free act and deed of < The Wareham Sa ings ank lcfore me r Notary Public • - My commission expires May 26, 19 67 ' s Barnstable, ss., Received January 4, 1962, and is recorded. _ I, HarolA l._V. Lovgren, sometimes known as zarolti V. G. Lovgren, of Us Town of Barnstable, County of Barnstable, I.1assachusetts, the surviving husban8 of Elsie E. Lovgren late of Barnstable aforesaid being pparried,for consideration paid,grant to arold V. Lovgren aforesaid and to Alice M. Lovgren, husbanr� and. wife, both of Earnstable aforesaid as tenants by the entirety, Q M= with rgtttatM WMattte °o thelandin Barnstable aforesaid described as follows: A certain parcel �, situated at Eyannisport ;' 1 of lanrq and buil9ings th"�� t �'.ay Massachusetts in the Town of Barnstable, ta264 in rzl�table County, Ili" on a Plan being the Lots numbered 262E and entitled B"Plan"of�Seasid eeotion Park at Hyannis- C. . prawn by FreA 0. Smith, , port, Mass., ownea by the SeasiAe Park Association," August 1893, re - corned in the Barnstable Registry of needs, Book 205, Page 601, and boundeA anA describeda as follows:Northerly by Lot 260 on said n Pla , one hundred (100) feet: Southerly by Forest Street, one hundred (100) feet; iastgrl8 by Fourth Avenue, eighty (80) feet and Westerl� by Lots numbered 367 and 369 on said Plan, eighty (80 feet, containing about 8000 square feet r'or Bran ors tltle to this parcel see deed of John F. Craig ant Louise 'V. Craig to grantor and Elsie E. Lovgren (the latter 1142 now being raeceaserll -later, Yovember 10, 1945, recorded 7ebruary 4 9, 1946 in Rook 641, Page 58 8 ' together with another parcel of land in Barnstable aforesaid, described as follows: ,Vesterly by Fifth Avenue, as shown on a plan hereinafter referred to, eighty (80) feet:; Fortherly by Lot 371, Block 1), on saia' Plan, one hundred (100) feet; Easterly by Lots 262 ark 264, Plouk 1) or. said Plan, eighty (80) feet and Southerly by Forest Street, one hunirerl (100) feet, these premises being shown as Lots 367 are 369, Block G.or. a Plan entitled "Plan_ Of Seaside Park at ^yannisport, lfiass., onned. by Seaside Park Association, Boston, Mass., August 18,. 1893, Scale lob feet to an inch, 'area 0. Smith _ C. E.", which..saiP Plan is auly.recoreel ir.. the Darnstable County registry of needs in Plan Book 34, Page 23. This conveyance is made subject to all rights;-easements and restrictions row in force set out in the deed of Louis A. Byrne to the rantor herein aatea January 20, 1950 recorded in the arnstable County Registry of 7eeds or. January 23, 1950 in Took 740, Page 109 to which reference is mane for the 1_•rartor's title. "Together with another parcel of lan.ra in r-arnstable aforesaid. aescribea as follows: I:ana in that section of Barnstable lrro•:rr. as ''.:Test Yaphis Port ._ oft Gormercing at a marker at the "orth:!est corner of the premises an-1 ru-rir.� Southerly n+l r Bessie a.. •0 or tea.. now E. � ;� y o or _o^merly of :.,,,,s ie E. John.,or., three hundred twenty-five (325) feet, more cr less to a marker; thence turning arr, rurring Easterly on larI now or formerly of heirs of Joan A. Carney, one r_ar_arer4. sixty-hire (169) feet, more or less to center of 9itch; thence turning an' running °-ortherly in center of sail ditch, ore hunrarei rir_ety eight (198) feet to a marker at the head of saia ditch, thence tu_rnin; art. rurnirg '-ortherly one hunPred -fifteen (115) feet or lane.. now or formerly of i s. ^avis to Ccear_�treet, an-' turning rurnir,�, ''>7esterl.y one hunrlre. twenty-tr:o (122)e re or less on Ccear Street to point cf be ir.�-ir�rr. - the .,reprises conveyer ,; ee•l cf _el'_ :o Bohr. .: Akeson recorr-er? _._-eta..=e o --tee 325. -y i. A. the l:.st %-escriberl -farce! being the premises cerveye, by aee-' of J Ohs! Akescn to the '•rartor hereir are 1s_c "lizabeth Lov6rerhe 1.atte^ ^Ci., bein+* aeceased) auly recor'e' instartle ?e;istry of "eels on I:ay 27, 1960 in look 1078, Page 381. The consir'eration for the within transfer is less than ',100. kmdmd Vie;: okx�t� , i ',�3--�;� -� .T��..cr#dctmes�siOkou�esCsxd:��'�`�2�5,`��-�, "• �i1nr55.....my......hand and seal this...........(.................day of ..........mac. ' Fr....................19c1 .............................................. = tl+ V .................................................................................. .................................................................................... RUBIN AND RUDMAN LLP • COUNSELLORS AT LAW 50 ROWES WHARF • BOSTON, MASSACHUSETTS 02110-3319 TELEPHONE'.(617)330-7000 • FACSIMILE: (617)439-9556 • EMAIL: FIRM@RUBINRUDMAN.COM Peter J. Feuerbach Direct Dial: (617) 330-7136 E-mail: pfeuerbach@rubinrudman.com September 22, 2004 Board of Health Attention: Joan Agostinelli 200 Main Street Hyannis,MA 02601 Re: 99 Ocean Drive,Hyannisport, Barnstable,MA Public Records Request-M.G.L. c.66, VO Dear Joan: • Pursuant to your request,please find enclosed our Firm check for$5.40 to cover the remaining balance for copies of the public records request for the above property. Thank you for your assistance and consideration.. Very ly s, eter J. Feue ach PJF:ees Enclosure , 612182_1 oTIERING A Comimniry Proteed by Max T 6A+ ThelnsurancePackage for PdvateEducaBon KJ Cl) Phone:8B8-740-0275 Phone:781-740-1518 Fax:781-740-1519 The Insurance Package for Government Subdivisions June 24,2004 Robert D. Smith, Town Attorney Town of Barnstable 367 Main Street An Hyannis, MA. 02601 - 3907 P Y Claim No.: MAS-0040774 Re: Doerge v. Town of Barnstable.board of Mealth Dear Mr. Smith • As you are aware, the Town of Barnstable, hereinafter the "Town;" recently.submitted the above captioned complaint filed by Anne Doerge, hereinafter "plaintiff, for consideration of a defense and/or indemnification under the policy of insurance issued to the Town by Redland Insurance Company. In this regard, Redland has issued Commercial General Liability Policy number XG2— 1000163 to the Town with effective dates of July 01, 2002 through July 01, 2003. The Commercial General Liability Policy carries liability limits in the amount of $1,000,000 per occurrence with a general aggregate limit of$3,000,000. In the complaint, filed with the Barnstable Superior Court, the plaintiff alleges that the Town of Barnstable Board of Health wrongfully denied her application for a septic system permit to service a small two-bedroom home located at 99 Ocean Drive, West Hyarnnisport, Massachusetts. The plaintiff claims that without approval of the permit, there is no economically beneficial use of the property. As a result, the plaintiff filed this. action asking the court to order the Board of Health to issue the permit and for damages due to a Regulatory Taking under state and federal law. Based upon my review of the complaint and the policy issued to the Town ofBarnstable, I have determined that no coverage is available under the General Liability Policy my r analysis of the contract follows. Zz • Co crt N � =r N Pn r►1 Massamont Insurance Agency Inc., P.O. Box 130,Hingham,MA,02043 Robert D. Smith,Esq. June 24, 2004 • Page 2 of 4 General Liability Policy The Town's General Liability policy includes form CG 00 01 (ed. 10/01)which provides, in pertinent part,the following: Section I—Coverage A: Bodily Injury and Property Damage Liability 1. Insuring Agreement a. We will pay those sums that the Insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the Insured against any"suit" seeking those damages... b. This insurance applies to "bodily injury" and "property damage" only if: (1) the "bodily injury" or "property damage" is caused by an occurrence...; and • (2) the "bodily injury" or "property damage" occurs during the policy period. Section I—Coverage B: Personal and Advertising Injurry Liability 1. Insuring Agreement a. We will pay those sums that the Insured becomes legally obligated to pay as damages because of"personal and advertising injury" to which this insurance applies. We will have the right and duty to defend the Insured against any "suit" seeking those damages... b.This insurance applies to: "personal and advertising injury" caused by an offense arising out of your business but only if the offense was committed in the "coverage territory"during the policy period. CG 00 01 also provides various definitions including the following: "Bodily Injury" means bodily injury, sickness or disease sustained by a person, • including death resulting from any of these at any time. Robert D. Smith,Esq. June 24,2004 • Page 3 of 4 "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions. "Personal and. Advertising Injury" means injury including consequential "bodily injury" arising out of one or more of the following offenses: a. false arrest, detention or imprisonment; b. malicious prosecution; c. the wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor; d. oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's good,products or services; e. oral or written publication or material that violates a person's • right of privacy; f the use of another's advertising idea in you"advertisement"; g. infringing upon another's copyright, trade dress or slogan in your"advertisement" or h. mental anguish and humiliation "Property Damage"means: a. physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or b. loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the "occurrence"that caused it. DISCUSSION • The Town of Barnstable is insured under a Commercial General Liability Policy issued by Redland Insurance Company and cited above. Upon receipt of service of process in this matter, representatives of the Town tendered copies of ahe suit papers to Redland a Robert D. Smith,Esq. June 24,2004 • Page 4 of 4 Insurance Company for consideration of a defense and/or indemnification under the General Liability Policy. However, after analyzing the terms and provisions-of the policy under applicable law, Redland Insurance Company must, unfortunately, deny and disclaim all coverage to the Town of Barnstable for the above-captioned action. This denial and disclaimer is based on the following alternative grounds: (1)The intent of the General Liability policy is to respond to claims for damages because of bodily injury, property damage and/or personal and advertising injury. As an initial matter, the plaintiff does not seek damages because of bodily injury, property damage or personal injury and advertising injury. This fact, alone, precludes coverage under the General Liability policy. However, even though the claim might broadly be construed as one for property damage, (i.e. loss of use) the property damage did not arise out of an occurrence as defined. Therefore, there is no coverage under the Commercial General Liability Policy. In light of the above denial and disclaimer, Redland Insurance Company owes no duty to defend or indemnify the Town of Barnstable Board of Health against the above-captioned action, now pending. As a result, Redland Insurance Company will not assign defense counsel to represent the Town of Barnstable Board of Health in this matter, nor will it pay any award or judgment issued against the Town of Barnstable Board of Health and in favor of the plaintiff. Redland Insurance Company accordingly urges the Town of • Barnstable Board of Health to take whatever steps or measures it deems necessary and appropriate to protect its rights and interests with respect to the plaintiff's claims. The above enumeration of grounds shall not be construed as a waiver or relinquishment of any additional grounds for denial that Redland Insurance Company has or may have in the circumstances of this matter, nor as a waiver or relinquishment of any rights of Redland Insurance Company under its policies. No act or omission of Redland Insurance Company,its agents, servants, employees or attorneys, shall be so construed. We suggest that the Town of Barnstable forward this matter to the appropriate insurer, providing errors and omissions coverage to the Town, for review and consideration. Gouny questions,please do not hesitate to contact us. or 'son Claims Attorney cc: Barnstable Board of Health Dowling & O'Neil Insurance I RUBIN AND RUDMAN LLP • COUNSELLORS AT LAW 50 ROWES WHARF • BOSTON, MASSACHUSETTS 02110-3319 TELEPHONE:(617)330-7000 • FACSIMILE: (617)439-9556 • EMAIL: FIRM@RUBINRUDMAN.COM Peter J. Feuerbach Direct Dial:(617)330-7136 E-mail:pfeuerbach@rubinrudman.com June 16, 2004 Certified Mail No. 7002 2030 0002 2464 0800 Return Receipt Requested Board of Health 200 Main Street Hyannis,MA 02601 Certified Mail No. 7002 2030 0002 2464 0794 Return Receipt Requested Linda E.Hutchenrider,Town Clerk Barnstable Town Hall 367 Main Street Hyannis,MA 02601 Re: Anne A.Doerge vs. Town of Barnstable Board of Health Barnstable Superior Court Civil Action No. 04-330 Dear Ms. Hutchenrider and Members of the Board of Health: In accordance with Massachusetts Rules of Civil Procedure Rule 4(d)(4 and 5) I enclose herewith a summons and a copy of the Complaint, Civil Action Cover Sheet, and Tracking Order pertaining to the lawsuit that this firm has filed in Barnstable Superior Court in the above referenced action. I am also forwarding a copy of the same to Town Counsel as a courtesy. Ve tru ours, Peter J. Feu ' ach PJF/es Enclosures cc: Robert D. Smith,Esq.,Town Counsel 600727_1 (TO PLAINTIFF'S ATTORNEY: . PLEASE CIRCLE TYPE OF ACTION INVOLVED: CONTRACT TORT_ MOTOR VEHICLE TORT EQUITABLE RELIEF OTHER) (9VUUUV%t(Vtzdt4 Vf Alazzar4urtttla BARNSTABLE,ss. SUPERIOR COURT No. 04-330 ANNE A. DOERGE VS. TOWN OF BARNSTABLE BOARD OF HEALTH SUMMONS To the above-named defendant • You are hereby summoned and required to serve upon:...Petez....J.,t...Feu. . .).,.... . .q.,.;..:............................ Rubin...and...Rudman.,...LLP.............................................................................................plaintiff's attorney, whose address is 50 Rowes Wharf, Boston, MA 02110 ......................................................................................................................................................................... , an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so,judgment by default will be taken against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Barnstable either before service upon plaintiff's attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim or you will thereafter be barred from making such claim in any other action. Witness, SUZANNE V. DEL VECCHI® Esquire, at Barnstable,the........15.th................................:.............: -' day of................June...........................................................in the year of our Lord two thousand and ....four............................... Clerk ` NOTE: When more than one defendant is involved,the names of all defendants shall appear in the caption.If a I • separate summons is issued for each defendant,each should be addressed to the particular defendant. I NOTICE TO DEFENDANT You need not appear personally in court to answer the complaint but if you claim to have a defense, either you or your attorney must serve a copy of your written answer within 20 days as specified herein and also file the original in the Clerk's office. (TO PLAINTIFF'S ATTORNEY: PLEASE CIRCLE TYPE OF ACTION INVOLVED: CONTRACT TORT. MOTOR VEHICLE TORT EQUITABLE RELIEF OTHER) 19VUUUVztfiazR1t4 Vf tomazur4usietts BARNSTABLE,SS. SUPERIOR COURT No, 04-330 ANNE A. DOERGE VS. TOWN OF BARNSTABLE BOARD OF HEALTH- SUMMONS To the above-named defendant • You are hereby summoned and required to serve upon....Pe, eJ_.,.,.Fev.e , Rubin and Rudman LLP ...................................................._.....:............................................................................................. .........plaintiff's attorney, whose address is 50 Rowes Wharf, Boston, MA 02110 an answer to the .. ...............................................................................................................................................................................................................M., complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so,judgment by default will be taken against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Barnstable either before.service upon plaintiff's attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject- matter of the plaintiff's claim or you will thereafter be barred from making such claim in any other action. Witness,_SUZANNE V. DEL.VECOHIO Esquire, at Barnstable,the........:15.th..........................................:........ day of................June...........................................................in the year of our Lord two thousand and .::.f our. ....:........... / r GE Clerk • NOTE: When more than one defendant is involved,the names of all defendants shall appear in the caption.If a . separate summons is issued for each defendant, each should be addressed to the particular defendant. NOTICE TO DEFENDANT You need not appear personally in court to answer the complaint but if you claim to have a defense, either you or your attorney must serve-a copy of your written answer within 20 days as specified herein and also file the original in the Clerk's office. i COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT DEPARTMENT BARNSTABLE, ss. CIVIL ACTION NO. ANNE A.DOERGE, f ) Plaintiff, ) V. ) COMPLAINT TOWN OF BARNSTABLE ) BOARD OF HEALTH, ) Defendant. ) INTRODUCTION • 1. This action is an appeal under M.G.L. c.249, §4 and e.231A, §1 et seg.; from the denial by the Defendant Town of Barnstable Board of Health (the "Board") dated May 11, 2004, of the Plaintiff s,Anne A. Doerge,,Disposal System Construction Permit Application(the "Application"). Plaintiffs Application sought approval for a septic system to service a small two bedroom home on vacant land located at 99 Ocean Drive, West Hyannisport, Massachusetts. Without the approval,there is no economically beneficial use of the Property.' 2. Plaintiff challenges the Board's denial on the grounds that the Board did not act in a fair,judicial or reasonable manner upon the substanial evidence presented and that the denial rests on misinterpretations,misunderstandings and allegations that have no relevance under Title V of the Commonwealth's Environmental Code, 310 CMR 15.00 et • seq. ("Title V"), and the Town of Barnstable Board of Health Regulations (the"Health 600545_1 i • Regulations") and/or are technically unfounded. The Board's decision is arbitrary and capricious and represents a substantial error of law inflicting manifest injustice on the Plaintiff. 3. This action also seeks just compensation for the unconstitutional taking of the Plaintiff's property in violation of the Massachusetts Constitution and the United States Constitution due to the Board's actions and the operation of the Board's Regulations. JURISDICTION 4. Jurisdiction to obtain annulment of the Board's denial of Plaintiffs' Application is conferred upon this Court by M.G.L. c.249, §4, M.G.L. c.231A, §1 et seq., and/or M.G.L. c. 30A, §14 and 310 C.M.R. 15.421. • PARTIES 5. Plaintiff Anne A. Doerge is the owner of the property located.at 99 Ocean Drive, West Hyannisport, Massachusetts ("Property"). Ms. Doerge resides at 135 Middle Fort Road, Middleburgh;New York. 6. Defendant Town of Barnstable Board of Health is the municipal authority authorized to permit septic systems under Title V and the Barnstable Board of Health Regulations. The mailing address of the Board is 200 Main Street, Hyannis, Massachusetts 02601. This action is brought against the Board and its members in their official capacities. 600545_1 i FACTUAL BACKGROUND 7. The Plaintiff proposes to construct a small,two bedroom single-family home with a septic system on the Property, which consists of approximately 47,717 square feet. 8. The Plaintiff filed an initial Application for a Disposal Works Construction Permit on or about December 3,2003. 9. Based upon comments and feedback from the Board and neighbors, the original Application was withdrawn without prejudice so that the Plaintiff could respond to issues the Board wished to see addressed in the plans. 10. In response to the Board's comments, the Plaintiff revised the plan of the proposed septic system and specifically addressed the issues raised by the Board. The • Plaintiff submitted its revised Application on or about April 4, 2004. 11. A portion of the Property contains salt marsh vegetation, a coastal bank and the 100-year flood plain as those terms are defined in the Massachusetts Wetlands Protection Act,M.G.L. c.131, §40 ("State Wetlands Act") and implementing regulations at 310 C.M.R. 10.00 et seq. However, as the Application and record of the Board ("Record")clearly demonstrated, none of the septic system components were located within either the salt marsh, coastal bank, or 100-year flood plain. 12. In fact,the revised Application located the septic system as far as possible from the salt marsh, which could be considered the most sensitive wetland resource area on the Property. The soil absorption system is set back 100 feet or more from the salt marsh,which exceeds the 50 foot setback requirement in Title V and complies with the • 100 foot setback in the Board of Health regulations. 6oO545_1 3 • 13. In moving the soil absorption system as far as possible from the salt marsh,the Plaintiff was required to locate the soil absorption system at her property boundary with an adjacent private road. The Plaintiff's registered professional engineer and her attorney demonstrated to the Board at its hearing on April 20, 2004 that the Plaintiff had legal rights extending to the center of the private road and was legally authorized to install septic system components thereunder. The engineer demonstrated that none of the work would alter or interfere with the traveled way. 14. The soil absorption system is located within flood insurance rate zone "Zone C", which is outside of even the 500-year flood and within an area designated as "minimal flooding"pursuant to the Federal Emergency Management Agency ("FEMA"). 15. The Applicant's registered professional engineer testified at the Board's hearing on April 20, 2004,that the coastal.bank is not subject to erosion,wave action or • failure and does not have active shifting sands and does not supply sediment through pP Y g erosion. The coastal bank is completely vegetated and stable. The testimony of the registered professional engineer was not refuted by any credible documentary or testimonial evidence, and was plainly evident from the Board's view of the Property. 16. A portion of the coastal bank is within the 100-year flood plain, however, the engineer demonstrated and the plan reflected that it is "still water"flooding that is not able to erode or destabilize the coastal bank. 17. The letter report of the professional engineer dated April 20, 2004, and his testimony at the Board's hearing, demonstrated that the proposed septic system, which is I located above and outside of the coastal bank,will not have any adverse effect on the I stability of the coastal bank. • i 600545_l 4 y 18. The Massachusetts Wetlands Act and 310 C.M.R. 10.30(6) allow • construction on or within 100 feet of a coas tal bank if such construction, like that proposed in the Application,will have no adverse effect on the stability of the bank. 19. Septic systems and homes larger than those proposed in the Application have been permitted on the properties adjacent to and near the Plaintiff's property. 20. . The professional engineer testified that, in his approximately 30 years of professional experience, if the Plaintiff s septic system ever needed repairs in the future, the repairs could be performed within the footprint of the proposed system, as is commonly done on other properties throughout the Commonwealth. Therefore, a reserve area was not necessary and the same degree of environmental protection could be achieved without having a separate designated reserve system. 21. The Plaintiff proposed recording a permanent deed restriction on the Property which would limit the size of the dwellingand septic stem to p y only two bedrooms, which is.the smallest dwelling practicable and allowed under Title V. Other dwellings in the neighborhood are larger than two bedrooms. 22.- The Applicant was willing to install an"innovative system"under Title V to enhance environmental protection even though such an innovative system was not required under Title V or the Board of Health's Regulations. 23. The professional engineer testified and submitted a technical report demonstrating that the proposed Application with variances would provide a level of environmental protection that is at least equivalent to that provided under Title V and the Board of Health's Regulations, without strict application of the provisions thereof from which the Plaintiff sought variances. 600545_1 5 24. The evidence demonstrated that enforcement of the provisions from which variances were sought and the Board's denial deprive the Plaintiff of substantially all beneficial use of the Property and would therefore be manifestly unjust. 25. Title V provides at 310 C.M.R. 15.410 that variances may be granted when enforcement of the subject provisions "would be manifestly unjust" and the person requesting the variances has established that a level of environmental protection that is at least equivalent to that provided under Title V can be achieved without strict application of the provisions from which variances are sought. See 310 C.M.R. 15.410(1) and (2). The Board of Health's Regulations do not contain any stricter variance provisions from those set forth in Title V. 26. In denying the Application,the Board relied upon evidence that was irrelevant and inaccurate on its face. The Record demonstrates that the Board's decision -� was based on neighborhood and political pressures instead o g p p f sound technical and scientific reasons. 27. The Board's decision dated May 11,2004, demonstrates on its face that the Board relied upon inaccurate and irrelevant information in denying the Application. For instance,the Board's decision was based upon inaccurate information that.the "proposed soil absorption system would be located on sandy soil subject to movement and shifting during times of high water and storms." The record is devoid of any credible scientific evidence to support that statement,yet there is credible engineering testimony to the contrary. The Board also based its decision on such trivial concerns as the alleged failure to properly describe the requested variances,even though the Record demonstrates that everyone, including the Board and its staff, were fully aware-of the variances sought. 600545_1 6 28. There is no credible information present in the Plaintiff s Application or the Board's Record or Denial to rebut the validity of the Plaintiff's engineer's evaluation of the coastal bank,the lawful authority to construct some of septic system components within the layout of the private right-of-way, the design or deed rider for a two-bedroom system, or the Application's compliance with the variance standards of Title V or the Board's Health Regulations. s 29. The Plaintiffs Application fully complied with all of the requirements of ' Title V and the Barnstable Health Regulations,with variances that will result in the a protection of the environment and human health and avoid an unconstitutional taking of property without just compensation. 30. The Board's denial of the Plaintiffs Application is unjustified and leaves the Plaintiff with only the burden of paying taxes.. The Plaintiff has gone to significant measures to comply with State and local requirements P Y and to present a complete and environmentally sensitive Application, for as small a dwelling as is allowed under Title V and is practicable. COUNT I—CERTIORARI 31. The Plaintiff hereby restates and incorporates by reference the allegations and statements contained in Paragraphs 1 through 30 of this Complaint. 32. The Plaintiffs Application complies with Title V and the Barnstable Health Regulations including the variance criteria to demonstrate the same degree of environmental protection and manifest injustice and deprivation of all economic use of the Property, from the Board's Denial. r 600545_1 7 33. The Board's denial of the Plaintiffs Application was not based upon substantial evidence in the record and constitutes a substantial error of law. 34, The Board's denial of the Application has resulted in substantial injury and manifest injustice to the Plaintiff. COUNT II—DECLARATORY JUDGMENT 35. The Plaintiff hereby restates and incorporates by reference the allegations and statements contained in Paragraphs 1 through 30 of this Complaint. 36. The Board's decision is unlawful and should be declared null and void because it is based upon impermissible considerations, is unsupported by the substantial evidence, and deprives Plaintiff of all economically beneficial uses of her property. COUNT III—UNCONSTITUTIONAL TAKING UNDER MASSACHUSETTS AND UNITED STATES CONSTITUTIONS 3T The Plaintiff hereby restates and incorporates by reference the allegations and statements contained in Paragraphs 1 through 36 of this Complaint. 38. Articles X and XII of the Massachusetts Constitution and the Fifth Amendment to the United States Constitution prevent the governmental taking of private property without just compensation. 39. The Board's denial and the Title V and the Barnstable Health Regulations on their face and as applied to the Plaintiffs property by the Board, constitute an unconstitutional taking of the Plaintiff's property without just compensation. 40. The Board's.denial does not allow any reasonable economic use of the -Plaintiff s property. 600545_l 8 41. The Board's denial constitutes a final administrative decision which has • been made without possibility of relief. 42. The Board denial deprives the Plaintiff of all economically viable use of the Property, leaving her only the burden of paying taxes on it. PRAYERS FOR RELIEF WHEREFORE,the Plaintiff prays that this Court: 1. Direct the Board to certify to this Court the administrative Record in ' accordance with Superior Court Standing Order 1-96; 2. Enter an Order finding that the Plaintiffs proposed septic system Application with variances com plies lie pp s with Title V of the State Environmental 1 Code and with the Barnstable Board of Health Regulations; 3. Enter an Order annulling the Board's May, 11, 2004 denial of Plaintiffs Application; 4. Enter an Order requiring the Board to issue an approval of the Plaintiffs Application; , 5. If the Board's decision is allowed to stand, enter an Order requiring the Town to pay the Plaintiff just compensation for the Property as a fully marketable lot for residential purposes; and 6. Award the Plaintiff her costs and reasonable attorneys' fees; 600545_1 9 7. Allow whatever additional relief this Court deems equitable and proper. Plaintiff requests a trial before a jury on all claims under Count III. For the Plaintiff, ANNE A. DOERGE, By er Ambeys, Peter J. FeudYbach BBO#567061 Rubin and Rudman LLP 50 Rowes Wharf Boston, MA 02110 (617) 330-7136 DATED: June 2004 - r 600545_1 10 CIVIL ACTION DOCKET NO.(S) Trial Court of Massachusetts COVER SHEET Superior ourt Departmgnt County:- IVS W L&_ Sul IFF(S) DEFENDANT(S) FORS FIRM Nj&Ar .-AD R SS AND T LEPHONE ATTORNEY (if known) Pills J�! i:Ur, y', Ruf�r7�J LAP Sd f�dial�4.S w�Jdt -i� ` If aS,-Z Y+� NS�c L 3�' N+�fi e,l S Board of Bar Overseers number: j 6' f / l 0 PL4,v Origin code and track designation Place an x in one box only: ❑ 4. F04 District Court Appeal c.231, s.97 &104 (After 1: F01 Original Complaint trial) (X) 2. F02 Removal to Sup.Ct. C.231,s.104 ❑ 5. F05 Reactivated after rescript; relief from (Before trial) (F) judgment/Order(Mass.R.Civ.P.60) (X) ❑ . 3. F03 Retransfer to Sup.Ct.C.231,s.102C (X) ❑ 6. E10 Summary Process Appeal (X) TYPE OF ACTION AND TRACK DE SIGNATION .CODE,N ,. TYPE OF ACTION s ATION (See reverse side)' (specify) TRACK K Y) IS THIS A( JURY" �CASE. G I" do'Z.. i Icf l if—lLr��i ( No '-Ounrr-ME) ( ) (?�)17es ( ) I ne.following is a full, itemized and detailed statement of the facts on which plaintiff relies to determine .money damages. For.this form, disregard double or treble damage claims; indicate single damages only. TORT CLAIMS (Attach additional sheets as necessary) a. Documented medical expenses to date: 1. Total hospital expenses . . . . . . . . . . . . . . . . . . . . . . . $ Total Doctor expenses . . . . . . . . . . . . Total chiropractic expenses . . . ... . . . . . . . . . . . . . . . . $ . $ Total physical therapy expenses . . . . . . . . . " ' 5. Total other expenses (describe) . . . . . . . . . . . . . . . . . . . . . . . . $ : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ . . . . . . . . . . . . . 3. D.ocumented lost wages and compensation to date Subtotal $... . . . . . . . . . . . 'Documented property dama es to date . . . . . $ g $ . . ... . . . . . . . . >. Reasonably anticipated future medical and hospital expenses . . . . . $ _. Reasonably anticipated lost wages . . • • . _ . . . . . . . $ ' ' ' • • ' • • • • Other documented items of damages (describe) . . . . . . . . . . . . . . ' . ' ' ' ' ' ' ' . ' . ' ' ' ' . ' ' '. a. Brief description of plaintiff's injury, including nature and extent of injury (describe) $ $ ... . . . . . . TOTAL $ CONTRACT CLAIMS (Attach additional sheets as necessary) 'rovide a detailed description of claim(s): TOTAL $. . . . . . . . . .. . . PLEASE IDENTIFY, BY CASE NUMBER, NAME AND COUNTY, ANY RELATED ACTION PENDING IN THE SUPERIOR CO DEPARTMENT "I hereby certify that I have complied with the requirements of Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC Rule 1:18) requiring that I provide my clients with information about court-connected dispute resolution services and discuss ith em the adv to s and disadvantages of the various methods:' Signature of Attorney of Record DATE: Commonwealth of Massachusetts County of Barnstabl The Superior Court • CIVIL DOCKET# BACV2004-00330-A RE: Doerge v Barnstable Board of Health TO:Peter J Feuerbach, Esquire Rubin & Rudman 50 Rowes Wharf Boston, MA 02110 TRACKING ORDER -X TRACK (Administrative Agency Appeal - 30A) You are hereby notified that this case is on the accelerated (X) track as per Superior Court Standing Order 1-88 and.Standing Order 1-96. The orders require that the various stages of litigation described below must be completed not later than the deadlines indicated. STAGES OF LITIGATION DEADLINE Service of process made and returnfiled with the Court 09/07/2004 • Answer;filed. . 90 days after service: Case disposed 01/05/2005 Counsel for plaintiff must serve this tracking order on defendant before the deadline for filing return of service. This case is assigned to session A sitting at Barnstable Superior Court in Barnstable. Dated: 06/09/2004 Scott W. Nickerson Clerk of the Courts Nancy N. Weir - Assistant Clerk Location: Civil A Telephone: (508) 375-6684 -Disabled individuals who need handicap accommodations should contact.the Administrative Office of the Superior Court at(617)788-8130- cvdtracxeO2 2.wpd 390698 inidoc0l kell—ry�� - a....w..,.y. ....-`.w.. �«. .....� _ , i (TO PLAINTIFF'S ATTORNEY: . PLEASE CIRCLE TYPE OF ACTION INVOLVED: CONTRACT TORT MOTOR VEHICLE TORT EQUITABLE RELIEF OTHER) Q1zr xt(VtXX a# Rss1tr Uzttts BARNSTABLE,ss. SUPERIOR COURT No. 04-330 ANNE A. DOERGE VS. TOWN OF BARNSTABLE BOARD OF HEALTH SUMMONS To the above-named defendant • You are hereby summoned and required.to serve upon �EPtg.r.... aci.,....E, ,g,,,.;..:.....................:...... Rubin and Rudma.n.,....LLP........................ .......plaintiff's attorney, whose address is .. . ..... .. 50 Rowes Wharf, Boston, MA......02110.......................................................::............................................... an answer to the ..................................................................................... complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so,judgment by default will be taken against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Barnstable either before service upon plaintiff's attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim or you will thereafter be barred from making such claim in any other action. Witness, SUZANNE V. DEL VECCHI® Esquire, at Barnstable,the.........1.5.th.......................................... day of................June..........................,...............................,in the year of our Lord two thousand and ....four. Clerk NOTE: When more than one defendant is involved,the names of all defendants shall appear in the caption.If a • separate summons is issued for each defendant, each should be addressed to the particular defendant. NOTICE TO DEFENDANT n You need not appear personally in court to answer the complaint.but if you claim to have a defense, either you or your attorney must-serve a copy of your written answer within 20 days as specified herein and also file the original in the Clerk's office. • COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT DEPARTMENT BARNSTABLE, ss. CIVIL ACTION NO. ANNE A. DOERGE, ) Plaintiff, ) V. ) COMPLAINT TOWN OF BARNSTA13LE ) BOARD OF HEALTH, ) Defendant. ) INTRODUCTION 1. This action is an appeal under M.G.L. c.249, §4 and e.231A, §1 et seq., from the denial by the Defendant Town of Barnstable Board of Health(the "Board") dated May 11, 2004, of the Plaintiff s,Anne A. Doerge,,Disposal System Construction- Permit Application(the "Application"). Plaintiffs Application sought approval for a septic system to service a small two bedroom home on vacant land located at 99 Ocean Drive, West Hyannisport, Massachusetts. Without the approval,there is no economically , beneficial use of the Property. 2. Plaintiff challenges the Board's denial on the grounds that the Board did not act in a fair,judicial or reasonable manner upon the substanial evidence presented and that the denial rests on misinterpretations,misunderstandings and allegations that have no relevance under Title V of the Commonwealth's Environmental Code, 310 CMR 15.00 et seq. ("Title V"), and the Town of Barnstable Board of Health Regulations (the"Health 600545_1 i • Regulations") and/or are technically unfounded. The Board's decision is arbitrary and capricious and represents a substantial error of law inflicting manifest injustice on the Plaintiff. ' 3. This action also seeks just compensation for the unconstitutional taking of the Plaintiff's property in violation of the Massachusetts Constitution and the United States Constitution due to the Board's actions and the operation of the Board's H Regulations. JURISDICTION 4. Jurisdiction to.obtain annulment of the Board's denial of Plaintiffs' Application is conferred upon this Court by M.G.L. c.249, §4, M.G.L. c.231A, §1 et and/or M.G.L. c. 30A, §14 and 310 C.M.R 15.421. • PARTIES 5. Plaintiff Anne A. Doerge is the owner of the property located.at 99 Ocean Drive, West Hyannisport, Massachusetts ("Property"). Mg. Doerge resides at 135 Middle Fort Road, Middleburgh,New York. 6. Defendant Town of Barnstable Board of Health is the municipal authority authorized to permit septic systems under Title V and the Barnstable Board of Health Regulations. The mailing address of the Board is 200 Main Street, Hyannis, Massachusetts 02601. This action is brought against the Board and its members iri their official capacities. 6oO545_1 2 • FACTUAL BACKGROUND 7. The Plaintiff proposes to construct a small,two bedroom single-family home with a septic system on the Property, which consists of approximately 47,717 square feet. 8. The Plaintiff filed an initial Application for a Disposal Works Construction Permit on or about December 3, 2003. 9. Based upon comments and feedback from the Board and neighbors,the original Application was withdrawn without prejudice so that the Plaintiff could respond to issues the Board wished to see addressed in the plans. 10. In response to the Board's comments, the Plaintiff revised the plan of the proposed septic system and specifically addressed the issues raised by the Board. The • Plaintiff submitted its revised Application on or about April 4, 2004. 11. A portion of the Property contains salt marsh vegetation, a coastal bank and the 100-year flood plain as those terms are defined in the Massachusetts Wetlands Protection Act, M.G.L. c.131, §40 ("State Wetlands Act") and implementing regulations at 310 C.M.R. 10.00 et seq. However,as the Application and record of the Board ("Record")clearly demonstrated, none of the septic system components were located within either the salt marsh, coastal bank, or 100-year flood plain. 12. In fact,the revised Application located the septic system as far as possible from the salt marsh,which could be considered the most sensitive wetland resource area on the Property. The soil absorption system is set back 100 feet or more from the salt marsh,which exceeds the 50 foot set back requirement in Title V-and complies with the • 100 foot setback in the Board of Health regulations. i 600545_1 3 . ..,,.....a:..«....-.�,.-..�-a-.-!,,..,.+.-...,.+..--...-rw•.,...a...+...,+....-:.�.....:.+.a-.rw..,...a.,+.,.',:;w.....,�:w+-ner:+'.-.-...+,...wxn,�*.r—wn�..,..aa..M:•-niwwr� 3...-a.. J • 13. In moving the soil absorption system as far as possible from the salt marsh,the Plaintiff was required to locate the soil absorption system at her property boundary with an adjacent private road. The Plaintiff's registered professional engineer and her attorney demonstrated to the Board at its hearing on April 20, 2004 that the Plaintiff had legal rights extending to the center of the private road and was legally authorized to install septic system components thereunder. The engineer demonstrated that none of the work would alter or interfere with the traveled way. 14. The soil absorption system is located within flood insurance rate zone "Zone C", which is outside of even the 500-year flood and within an area designated as "minimal flooding"pursuant to the Federal Emergency Management Agency ("FEMA"). 15. The Applicant's registered professional engineer testified at the Board's hearing on April 20,2004,that the coastal.bank is not subject to erosion, wave action or failure and does not have active shifting sands and does not supply sediment through erosion. The coastal bank is completely vegetated and stable. The testimony of the registered professional engineer was not refuted by any credible documentary or testimonial evidence, and was plainly evident from the Board's view of the Property. 16. A portion of the coastal bank is within the 100-year flood plain, however, the engineer demonstrated and the plan reflected that it is "still water"flooding that is not able to erode or destabilize the coastal bank. 17. The letter report of the professional engineer dated April 20, 2004, and his testimony at the Board's hearing,demonstrated that the proposed septic system,which is located above and outside of the coastal bank, will not have any adverse effect on the stability of the coastal bank. 600545_1± I •• • 18. The Massachusetts Wetlands Act and 310 C.M.R. 10.30(6) allow construction on or within 100 feet of a coastal bank if such construction, like that ro ' the Application,lication will have no adverse Posed in P effect on the stability of the bank. 19. Septic systems and homes larger than those proposed in the Application have been permitted on the properties adjacent to and near the Plaintiff's property. 20. . The professional engineer testified that, in his approximately 30 years of professional experience, if the Plaintiff's septic system ever needed repairs in the future, the repairs could be performed within the footprint of the proposed system, as is commonly done on other properties throughout the Commonwealth. Therefore, a reserve area was not necessary and the same degree of environmental protection could be achieved without having a separate designated reserve system. I 21. The Plaintiff proposed recording a permanent deed restriction on the • Property which would limit the size of the dwellingand se tic p system to only,two i bedrooms, which is the smallest dwelling practicable and allowed under Title V. Other dwellings in the neighborhood are larger than two bedrooms. 22. The Applicant was willing to install an"innovative system"under Title V to enhance environmental protection even though such an innovative system was not required under Title V or the Board of Health's Regulations. 23. The professional engineer testified and submitted a technical report demonstrating that the proposed Application with variances would provide a level of N environmental protection that is at least equivalent to that provided under Title V and the Board of Health's Regulations, without strict application of the provisions thereof from which the Plaintiff sought variances. 600545_1 5 • 24. The evidence demonstrated that enforcement of the provisions from which variances were sought and the Board's denial deprive the Plaintiff of substantially all beneficial use of the Property and would therefore be manifestly unjust. 25. Title V provides at 310 C.M.R. 15.410 that variances may be granted when enforcement of the subject provisions "would be manifestly unjust" and the person requesting the variances has established that a level of environmental protection that is at least equivalent to that provided under Title V can be achieved without strict application of the provisions from which variances are sought. See 310 C.M.R. 15.410(1) and (2). The Board of Health's Regulations do not contain any stricter variance provisions from those set forth in Title V. 26. In denying the Application,the Board relied upon evidence that was irrelevant and inaccurate on its face. The Record demonstrates that the Board's decision • was based on neighborhood and political pressures instead of sound tec hnical and scientific reasons. . 27. The Board's decision dated May 11,2004, demonstrates on its face that the Board relied upon inaccurate and irrelevant information in denying the Application. For instance,the Board's decision was based upon inaccurate information that:the "proposed soil absorption system would be located on sandy soil subject to movement and shifting during times of high water and storms." The record is devoid of any credible scientific evidence to support that statement, yet there is credible engineering testimony to the contrary. The Board also based its decision on such trivial concerns as the alleged failure to.properly describe the requested variances, even though the Record demonstrates that everyone, including the Board and its staff, were fully aware of the variances sought. • 600545_1 6 28. There is no credible information present in the Plaintiffs Application or the Board's Record or Denial to rebut the validity of the Plaintiff's engineer's evaluation of the coastal bank,the lawful authority to construct some of septic system components within the layout of the private right-of-way, the design or deed rider for a two-bedroom system, or the Application's compliance with the variance standards of Title V or the Board's Health Regulations. 29. The Plaintiffs Application fully complied with all of the requirements of Title V and the Barnstable Health Regulations,with variances that will result in the protection of the environment and human health and avoid an unconstitutional taking of property without just compensation. 30. The Board's denial of the Plaintiffs Application is unjustified and leaves • the Plaintiff with only the burden of paying taxes. The Plaintiff has gone to significant measures to comply with State and local requirements and to present a complete and environmentally sensitive Application, for as small a dwelling as is allowed under Title V and is practicable. COUNT I—CERTIORARI 31. The Plaintiff hereby restates and incorporates by reference the allegations and statements contained in Paragraphs 1 through 30 of this Complaint. 32. The Plaintiffs Application complies with'Title V and the Barnstable Health Regulations including the variance criteria to demonstrate the same degree of environmental protection and manifest injustice and deprivation of all economic use of the Property, from the Board's Denial. 600545_1 7 f 33. The Board's denial of the Plaintiffs Application was not based upon substantial evidence in the record and constitutes a substantial error of law. 34. The Board's denial of the Application has resulted in substantial injury and manifest injustice to the Plaintiff. COUNT II—DECLARATORY JUDGMENT 35. The Plaintiff hereby restates and incorporates by reference the allegations and statements contained in Paragraphs 1 through 30 of this Complaint. 36. The Board's decision is unlawful and should be declared null and void because it is based upon impermissible considerations, is unsupported by the substantial evidence, and deprives Plaintiff of all economically beneficial uses of her property. COUNT III-UNCONSTITUTIONAL TAKING UNDER • MASSACHUSETTS AND UNITED.STATES CONSTITUTIONS 37. The Plaintiff hereby restates and incorporates by reference the allegations and statements contained in Paragraphs 1 through 36 of this Complaint. 38. Articles X and XII of the Massachusetts Constitution and the Fifth Amendment to the United States Constitution prevent the governmental taking of private properly without just compensation. 39. The Board's denial and the Title V and the Barnstable Health Regulations on their face and as applied to the Plaintiffs property by the Board, constitute an unconstitutional taking of the Plaintiff s property without just compensation. 40. The Board's.denial does not allow any reasonable economic use of the Plaintiffs property. • I 600545_1 8 i 41. The Board's denial constitutes a final administrative decision which has been made without possibility of relief. 42. The Board denial deprives the Plaintiff of all economically viable use of the Property, leaving her only the burden of paying taxes on it. PRAYERS FOR RELIEF WHEREFORE,the Plaintiff prays that this Court: 1. Direct the Board to certify to this Court the administrative Record in accordance with Superior Court Standing Order 1-96; 2. Enter an Order finding that the Plaintiffs proposed septic system Application.with variances complies with Title V of the State Environmental Code and with the Barnstable Board of Health Regulations; . 3. Enter an Order annulling the Board's May 11,2004 denial of Plaintiffs Application; 4. Enter an Order requiring the Board to issue an approval of the Plaintiffs Application; 5.. If the Board's decision is allowed to stand, enter an Order requiring the Town to pay the Plaintiff just compensation for theTroperty as a fWly marketable lot for residential purposes; and 6. Award the Plaintiff her costs and reasonable attorneys'-fees; 600545_1 . 9 7. Allow whatever additional relief this-Court deems equitable and proper. Plaintiff requests a trial before a jury on all claims under Count III. For the Plaintiff, ANNE A. DOERGE, By,her AgOneys, Peter J. Feue ach BBO #567061 Rubin and Rudman LLP 50 Rowes Wharf x Boston,MA 02110 (617) 330-7136 DATED: June, 2004 600545_1 10 CIVIL ACTION DOCKET NO.(S) Trial Court of Massachusetts !z, COVER SHEET Superior ourt Departmgnt tFF(S) County: ►VV -'/1`� X DEFENDANT(S) 67 ar %d wJ/V v," 6~,,s ro1�13 c�� O Rr.N FIRM N , �ND T EPHONE O ATTORNEY (if known)t • Arr ff. ff.--r'�L i 6rye° Avam4w f_L-P so ffv ,4,x �i��: ,,�; If as','tW (t)U-rv$/G.L, Board Bauer Overseers number: 6 IL— 0 7-4'v 1 Origin code and track designation Place an x in one box only: ❑ 4. F04 District Court Appeal c.231, s.97 &104 (After 1: F01 Original Complaint trial) (X) ❑ 2. F02 Removal to Sup.Ct.C.231,s.104 ❑ 5. F05 Reactivated after rescript; relief from (Before trial) (F) judgment/Order(Mass.R.Civ.P.60) (X) ❑ 3. F03 Retransfer to Sup.Ct. C.231,s.102C (X) ❑ 6. E10 Summary Process Appeal (X) TYPE OF ACTION AND TRACK DESIGNATION (See reverse side) CODE.N TYPE OF ACTION (specify) TRACK IS THIS A JURY CASE? r ( ) (X)�(_o s ( ) No The.following is a full, itemized and detailed statement of the facts on which plaintiff relies to determine .money damages. For.this form, disregard double or treble damage claims; indicate single damages only. TORT CLAIMS k. .Documented medical expenses to date:(Attach additional sheets as necessary) 1. Total hospital expenses . . . . . . . . . . . . . . . " Total Doctor expenses . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . $ . . . . . . . . . . . . Total chiropractic expenses $' 4. Total physical therapy expenses . . . , . . . ' . . . . . . ' $ . . . . . 5. Total other expenses (describe) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ . . . . . . . . . . . . . 3. Documented lost wages and compensation to date Subtotal $... . . . . . . . . . . . .. 'Documented property damages to date , , . . . . . : $ ). Reasonably anticipated future medical and hospital expenses . . $ Reasonably anticipated lost wages . , , , , , , , , , . . . . . . . . . . . . . . . . . . $ . . . . . . . . ._ " Other documented items of damages (describe) ; . . . . . . . . . . . . . ' . ' ' . ' ' . ' . ' . ' ' . ' ' ' a. Brief description of plaintiff's injury, including nature and extent of injury (describe) $ $ ... . . . .. . . . . . . . TOTAL $. . . ... . CONTRACT CLAIMS (Attach additional sheets as necessary) rovide a detailed description of claim(s): TOTAL $. . . . . . . . . . . PLEASE IDENTIFY, BY CASE NUMBER, NAME AND COUNTY, ANY RELATED ACTION PENDING IN THE SUPERIOR C0*DEPARTMENT "I hereby certify that I have complied with the requirements of Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC Rule 1:18) requiring that I provide my clients with information about court-connected dispute resolution services and discuss ith em the adv to s and disadvantages of the various methods:' Signature of Attorney of Record DATE: Commonwealth of Massachusetts z• County of BarnstabL6 The Superior Court • CIVIL DOCKET# BACV2004-00330-A RE: Doerge v Barnstable Board of Health TO:Peter J Feuerbach, Esquire Rubin & Rudman 50 Rowes Wharf Boston, MA 02110 TRACKING ORDER - X TRACK (Administrative Agency Appeal - 30A) You are hereby notified that this case is on the accelerated (X) track as per Superior Court Standing Order 1-88 and.Standing Order 1-96. The orders require that the various stages of litigation described below must be completed not later than the deadlines indicated. a STAGES OF. LITIGATION DEADLINE • Service of process made and return,filed with the Court 09/07/2004 Answer filed 90:days after service.- Case disposed 01/05/2005 Counsel for plaintiff must serve this tracking order on defendant before the deadline for filing return of service. This case is assigned to session A sitting at Barnstable Superior Court in Barnstable. Dated: 06/09/2004 € Scott W. Nickerson Clerk of the Courts Nancy N. Weir Assistant Clerk Location: Civil A Telephone: (508) 375-6684 Disabled individuals who need handicap accommodations should contact the Administrative Office of the Superior Court;at(617)788-8130 cvdtracxeOZ_a.wpd 390698 inidoc0l kellmary .........,........,... .,..-.......,,......,..»..........-.e-,..-..-.....,.. .-+.,+.N-*+,e•-.,..wM+.-..-�«,«..,..:a.r..,;-w...,.wr.,.�,.,«,..m..,.,•..s...r...: ...y.,•-..,,.-.,-.a...,.......-»...:;.w�..+..-,r...w,. 2� RUBIN AND RUDMAN LLP • COUNSELLORS AT LAW 50 ROWES WHARF • BOSTON, MASSACHUSETTS 02110-3319 TELEPHONE: (617)330-7000 • FACSIMILE:(617)439-9556 • EMAIL:FIRM@RUBINRUDMAN.COM Peter J. Feuerbach Direct Dial:(617)330a136 E-mail:pfeuerbach@rubinrudman.com June 16,2004 Certified Mail No. 7002 2030 0002 2464 0800 Return Receipt Requested Board of Health 200 Main Street Hyannis,MA 02601 Certified Mail No. 7002 2030 0002 2464 0794 Return Receipt Requested Linda E.Hutchenrider,Town Clerk Barnstable Town Hall • 367 Main Street Hyannis,MA 02601 Re: Anne A.Doerge vs. Town of Barnstable Board of Health Barnstable Superior Court Civil Action No.04-330 Dear Ms. Hutchenrider and Members of the Board of Health: In accordance with Massachusetts Rules of Civil Procedure Rule 4(d)(4 and 5)I enclose herewith a summons and a copy of the Complaint, Civil Action Cover Sheet, and Tracking Order pertaining to the lawsuit that this firm has filed in Barnstable Superior Court in the above referenced action. I am also forwarding a copy of the same to Town Counsel as a courtesy. Ve tru ours, Peter J. Feu ' . ach PJF/es Enclosures - cc: Robert D. Smith,Esq., Town Counsel 6007271 e .. A Comro'miry Mudd by Dip i the Insurance Package for Private EducaBon A�l Phone:888-740-0275 Phone:781-740-1518 Fax:781-740-1519 The Insurance Package for Government Subdivisions June 24, 2004 Robert D. Smith, Town Attorney Town of Barnstable 367 Main Street An 41% Hyannis, MA. 02601 - 3907 %.OPY i Claire No.: MAS-0040774 Re: .Doerge v. Town of Barnstable.hoard of Health Dear Mr. Smith • As you are aware, the Town of Barnstable, hereinafter the "Town," recently submitted the above captioned complaint filed by Anne Doerge, hereinafter "plaintiff," for consideration of a defense and/or indemnification under the policy of insurance issued to the Town by Redland Insurance Company. In this regard, Redland has issued Commercial General Liability Policy number XG2 1000163 to the Town with effective dates of July 01, 2002 through July 01, 2003. The Commercial General Liability Policy carries liability limits in the amount of $1,000,000 per occurrence with a general aggregate limit of$3,000,000. In the complaint, filed with the Barnstable Superior Court, the plaintiff alleges that the Town of Barnstable Board of Health wrongfully denied her application for a septic system permit to service a small two-bedroom home located at 99 Ocean Drive, West x Hyanmisport, Massachusetts. The plaintiff claims that without approval of the permit, there is no economically beneficial use of the property. As a result, the plaintiff filed this action asking the court to order the Board of Health to issue the permit and for damages due to a Regulatory Taking under state and federal law. Based upon my review of the complaint and the policy issued to the Town ofBarnstable I have determined that no coverage is available under the General Liabilit Polic M[ y analysis of the contract follows. Zlt 2 :�'j c . Co M • D N � =c3 �r� r N tV CD ao r— m Massamont Insurance Agency Inc., P.O.Box 130, Hingham,MA,02043 Robert D. Smith,Esq. June 24, 2004 • Page 2 of 4 General Liability Policy The Town's General Liability policy includes form CG 00 01 (ed. 10/01)which provides, in pertinent part,the following: Section I—Coverage A: Bodily Injury and Property Damage Liability 1. Insuring Agreement a. We will pay those sums that the Insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the Insured against any "suit" seeking those damages... t b. This insurance applies to "bodily injury" and "property damage" only if: (1) the "bodily injury" or"property damage" is caused by an occurrence...; and • (2) the "bodily injury" or "property damage" occurs during the policy period. Section I—Coverage B: Personal and Advertising Injury Liability 1. Insuring Agreement a. We will pay those sums that the Insured becomes legally obligated to pay as damages because of"personal and advertising injury" to which this insurance applies. We will have the right and duty to defend the Insured against any "suit" seeking those damages... b. This insurance applies to: "personal and advertising injury" caused by an offense arising out of your business .but only if the offense was committed in the "coverage territory"during the policy period. CG 00 01 also provides various definitions including the following: "Bodily injury" means bodily injury, sickness or disease sustained by a person, • including death resulting from any of these at any time. x Robert D. Smith, Esq. June 24, 2004 • Page 3 of 4 "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions. "Personal and Advertising Injury" means injury including consequential "bodily injury" arising out of one or more of the following offenses: a. false arrest, detention or imprisonment; b. malicious prosecution; c. the wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor; d. oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's good,products or services; e. oral or written publication or material that violates a person's • right of privacy; f. the use of another's advertising idea in you"advertisement"; g. infringing upon another's copyright, trade dress or slogan in your"advertisement" or h. mental anguish and humiliation "Property Damage"means: a. physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it,or b. loss of use of tangible property that is not physically injured: All such loss of use shall be deemed to occur at the time of the "occurrence"that caused it. DISCUSSION • The Town of Barnstable is insured under a Commercial General Liability Policy issued by Redland Insurance Company and cited above. Upon receipt of service of process in this matter, representatives of the Town tendered copies of the suit papers to Redland Robert D. Smith,Esq. June 24, 2004 • Page 4 of 4 Insurance Company for consideration of a defense and/or indemnification under the General Liability Policy. However, after analyzing the terms and provisions of the policy under applicable law, Redland Insurance Company must, unfortunately, deny and disclaim all coverage to the Town of Barnstable for the above-captioned action. This denial and disclaimer is based on the following alternative grounds: (1) The intent of the General Liability policy is to respond to claims for damages because of bodily injury, property damage and/or personal and advertising injury. As an initial matter, the plaintiff does not seek damages because of bodily injury, property damage or personal injury and advertising injury. This fact, alone, precludes coverage under the General Liability policy. However, even though the claim might broadly be construed as one for property damage, (i.e. loss of use) the property damage did not arise out of an occurrence as defined. Therefore, there is no coverage under the Commercial General Liability Policy. { In light of the above denial and disclaimer, Redland Insurance Company owes no duty to defend or indemnify the Town of Barnstable Board of Health against the above-captioned action now pending. As a result, Redland Insurance Company will not assign defense counsel to represent the Town of Barnstable Board of Health in this matter, nor will it pay any award or judgment issued against the Town of Barnstable Board of Health and in favor of the plaintiff. Redland Insurance Company accordingly urges the Town of • Barnstable Board of Health to take whatever steps or measures it deems necessary and appropriate to protect its rights and interests with respect to the plaintiff's claims. The above enumeration of grounds shall not be construed as a waiver or relinquishment of any additional grounds for denial that Redland Insurance Company has or may have in the circumstances of this matter, nor as a waiver or relinquishment of any rights of Redland Insurance Company under its policies. No act or omission of Redland Insurance Company,its agents, servants, employees or attorneys, shall be so construed. We suggest that the Town of Barnstable forward this matter to the appropriate insurer, providing errors and omissions coverage to the Town, for review and consideration. G u have y questions,please do not hesitate to contact us. 0el oMsori Claims Attorney cc: Barnstable Board of Health Dowling & O'Neil Insurance RUBIN AND RUDMAN LLP COUNSELLORS AT LAW 50 ROWES WHARF • BOSTON, MASSACHUSETTS 02110-3319 TELEPHONE.(617)330-7000 • FACSIMILE: (617)439-9556 • EMAIL: FIRM@RUBINRUDMAN.COM Peter J. Feuerbach Direct Dial: (617) 330-7136 E-mail: pfeuerbach@rubinrudman.com September 22, 2004 Board of Health Attention: Joan Agostinelli 200 Main Street Hyannis,MA 02601 Re: 99 Ocean Drive,Hyannisport,Barnstable,MA Public Records Request-M.G.L. c.66, 410 Dear Joan: • Pursuant to your request,please find enclosed our Firm check for$5.40 to cover the remaining balance for copies of the public records request for the above property. Thank you for your assistance and consideration.. Very ly s, eter J. Feue ach PJF:ees Enclosure • 612182_1 RUBIN AND RUDMAN LLP COUNSELLORS AT LAW 50 ROWES WHARF • BOSTON, MASSACHUSETTS 02110-3319 TELEPHONE.(617)330-7000 • FACSIMILE: (617)439-9556 • EMAIL: FIRM@RUBINRUDMAN.COM I Peter J. Feuerbach Direct Dial: (617) 330-7136 E-mail: pfeuerbach@rubinrudman.com September 22, 2004 Board of Health Attention: Joan Agostinelli 200 Main Street Hyannis,MA 02601 Re: 99 Ocean Drive,Hyannisport, Barnstable, MA Public Records Request-M.G.L. c.66, 410 Dear Joan: • Pursuant to your request,please find enclosed our Firm check for$5.40 to cover the remaining balance for copies of the public records request for the above property. Thank you for your assistance and consideration.. Very ly s, eter J. Feue ach PJF:ees Enclosure I 6121821 ERI[V A Gunnanity 0 Pmutud by T The lnsarance Package Ior Private&UC86011 Z_1T 7 Phone: 8 -740-0275 Phone: 81-740-1518 Fax:781-740-1519 The Insurance Package for Government Subdivisions June 24, 2004 Robert D. Smith, Town Attorney Town of Barnstable 367 Main Street Hyannis,MA. 02601 - 3907 LUPY Claim No.: MAS-0040774 Re: Doerge v. Town of Barnstable Board of Health Dear Mr. Smith • As you are aware, the Town of Barnstable, hereinafter the "Town," recently submitted the above captioned complaint filed by Anne Doerge, hereinafter "plaintiff," for consideration of a defense and/or indemnification under the policy of insurance issued to the Town by Redland Insurance Company. In this regard, Redland has issued Commercial General Liability Policy number XG2— 1000163 to the Town with effective dates of July 01, 2002 through July 01, 2003. The Commercial General Liability Policy carries liability limits in the amount of $1,000,000 per occurrence with a general aggregate limit of$3,000,000. In the complaint, filed with the Barnstable Superior Court, the plaintiff alleges that the Town of Barnstable Board of Health wrongfully denied her application for a septic system permit to service a small two-bedroom home located at 99 Ocean Drive, West Hyannisport, Massachusetts. The plaintiff claims that without approval of the pen-nit, there is no economically beneficial use of the property. As a result,the plaintiff filed this action asking the court to order the Board of Health to issue the permit and for damages due to a Regulatory Taking under state and federal law. Based upon nay review of the complaint and the policy issued to the Town o f,Barnstable,,I have determined that no coverage is available wider the General LiabitiC) Polic 'My y -f analysis of the contract follows. ZF `F C ' CZ `� N . • Co o;. N Co r— rn Massamont Insurance Agency Inc., P.O. Box 130,Hingham,MA,02043 Robert D. Smith,Esq. June 24, 2004 Page 2 of 4 General Liability Policy The Town's General Liability policy includes form CG 00 01 (ed. 10/01)which provides, in pertinent part,the following: Section I—Coverage A: Bodily Injury and Property Damage Liability 1. Insuring Agreement a. We will pay those sums that the Insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the Insured against any "suit" seeking those damages... b. This insurance applies to "bodily injury" and "property damage" only if- (1) the "bodily injury" or"property damage" is caused by an occurrence...; and (2) the "bodily injury" or "properly damage" occurs during • the policy period. Section I--Coverage B: Personal and Advertising Injury Liability 1. Insuring Agreement a. We will pay those sums that the Insured becomes legally obligated to pay as damages because of"personal and advertising injury" to which this insurance applies. We will have the right and duty to defend the Insured against any "suit" seeking those damages... b.This insurance applies to: "personal and advertising injury" caused by an offense arising out of your business .but only if the-offense was committed in the "coverage territory" during the policy period. CG 00 01 also provides various definitions including the following: "Bodily injury" means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time. a Robert D. Smith, Esq. June 24, 2004 • Page 3 of 4 "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions. "Personal and Advertising Injury" means injury including consequential "bodily injury" arising out of one or more of the following offenses: a. false arrest, detention or imprisonment; b. malicious prosecution; c. the wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor; d. oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's good,products or services; e. oral or written publication or material that violates a person's • right of privacy; L the use of another's advertising idea in you"advertisement"; g. infringing upon another's copyright, trade dress or slogan in your"advertisement" or h. mental anguish and humiliation "Property Damage" means: a. physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or b. loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the "occurrence"that caused it. DISCUSSION The Town of Barnstable is insured under a Commercial General Liability Policy issued by Redland Insurance Company and cited above. Upon receipt of service of process in this matter, representatives of the Town tendered copies of the suit papers to Redland 1 Robert D. Smith,Esq. June 24,2004 Page 4 of 4 Insurance Company for consideration of a defense and/or indemnification under the General Liability Policy. However, after analyzing the terms and provisions of the policy under applicable law, Redland Insurance Company must, unfortunately, deny and disclaim all coverage to the Town of Barnstable for the above-captioned action. This denial and disclaimer is based on the following alternative grounds: (1) The intent of the General Liability policy is to respond to claims for damages because of bodily injury, property damage and/or personal and advertising injury. As an initial matter, the plaintiff does not seek damages because of bodily injury, property damage or personal injury and advertising injury. This fact, alone, precludes coverage under the General Liability policy. However, even though the claim might broadly be construed as one for property damage, (i.e. loss of use) the property damage did not arise out of an occurrence as defined. Therefore, there is no coverage under the Commercial General Liability Policy. In light of the above denial and disclaimer, Redland Insurance Company owes no duty to a p tioned defend or indemnify the Town of Barnstable Board of Health against the above-captioned action now pending. As a result, Redland Insurance Company will not assign defense ac g p counsel to represent the Town of Barnstable Board of Health in this matter, nor will it pay any award or judgment issued against the Town of Barnstable Board of Health and in favor of the plaintiff. Redland Insurance Company accordingly urges the Town of • Barnstable Board of Health to take whatever steps or measures it deems necessary and appropriate to protect its rights and interests with respect to.the plaintiffs claims.. The above enumeration of grounds shall not be construed as a waiver or relinquishment of any additional grounds for denial that Redland Insurance Company has or may have in the circumstances of this matter, nor as a waiver or relinquishment of any rights of Redland Insurance Company under its policies. No act or omission of Redland Insurance Company,its agents, servants, employees or attorneys, shall be so construed. We suggest that the Town of Barnstable forward.this matter to the appropriate insurer, providing errors and omissions coverage to the Town, for review and consideration. a 6yy. uestions,please do not hesitate to contact us. or son Claims Attorney cc: Barnstable Board of Health Dowling & O'Neil Insurance 2� RUBIN AND RUDMAN LLP COUNSELLORS AT LAW 50 ROWES WHARF • BOSTON, MASSACHUSETTS 021 10-33 19 TELEPHONE:(617)330-7000 • FACSIMILE:(617)439-9556 • EMAIL: FIRM@RUBINRUDMAN.COM Peter J.Feuerbach Direct Dial:(617)330-7136 E-mail:pfeuerbach@rubinrudman.com June 16, 2004 F Certified Mail No. 7002 2030 0002 2464 0800 Return Receipt Requested Board of Health 200 Main Street Hyannis,MA 02601 ' I Certified Mail No.7002 2030 0002 2464 0794 Return Receipt Requested Linda E.Hutchenrider,Town Clerk Barnstable Town Hall 367 Main Street Hyannis,MA 02601 Re: Anne A.Doerge vs.Town of Barnstable Board of Health Barnstable Superior Court Civil Action No.04-330 Dear Ms. Hutchenrider and Members of the Board of Health: In accordance with Massachusetts Rules of Civil Procedure Rule 4(d)(4 and 5)I enclose herewith a summons and a copy of the Complaint,Civil Action Cover Sheet, and Tracking Order pertaining to the lawsuit that this firm has filed in Barnstable Superior Court in the above referenced action. I am also forwarding a copy of the same to Town Counsel as a courtesy. Ve t4Feu ' Peter J PJF/es Enclosures cc: Robert D. Smith,Esq.,Town Counsel 6007271 (TO PLAINTIFF'S ATTORNEY: PLEASE CIRCLE TYPE OF ACTION INVOLVED: CONTRACT ' TORT. MOTOR VEHICLE TORT EQUITABLE RELIEF OTHER) 19VU 2t£trz-X1t4 Vf Puzzatic4ustttz BARNSTABLE,ss. SUPERIOR COURT No, 04-330 ANNE A. DOERGE VS. TOWN OF BARNSTABLE BOARD OF HEALTH SUMMONS To the above-named defendant : • You are hereby summoned and required to serve upon....Pe.ir.ex....J_.....Feubx ,E. .q.,..; .................................. Rudman,. LLP plaintiff's attorney, whose address is 50 Rowes Wharf, Boston, MA 02110 I ........I......................... . . an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so,judgment by default will be taken against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Barnstable either before.service upon plaintiff's attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim or you will thereafter be barred from making such claim in any other action. Witness, SUZANNE V. DEL.VEO£HIO Esquire, at Barnstable,the..:.....:1.5.t:h................................................ .:. . t_ day of................June...........................................................in the year of our Lord two thousand and ....four r Clerk • NOTE: When more than one defendant is involved,the names of all defendants shall appear in the caption.If a separate summons is issued for each defendant, each should be addressed to the particular defendant. NOTICE TO DEFENDANT You need not appear personally in court to answer the complaint but if you claim to have a defense, either you or your attorney must serve a copy of your written answer within 20 days as specified herein and also file the original in the Clerk's office. .........-,....a.,.e..-.-..,�,.......,....-...+...,».,...-.",,.w..-....-:.--.,...-....-.-.-.-..,..-...--.-.,�..-........,...+«w...-.-,..,+�+•-r.,..-,.w..+-e-....nr...;-�.,.+.+..-d...,;-,v-w.-..,+-r,.,w-.,*r..+...,.«.a...,.�o-..,.+.....,-at„«...+,+,..�.,«..: ....++--+�w.n:.=-.n....�.«.�««-....a • COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT DEPARTMENT BARNSTABLE, ss. CIVIL ACTION NO. ANNE A.DOERGE, ) Plaintiff, ) V. ) COMPLAINT TOWN OF BARNSTABLE ) BOARD OF HEALTH, ) Defendant. ) - INTRODUCTION • 1. This action is an appeal under M.G.L. c.249, §4 and e,231A, §1 et seq., from the denial by the Defendant Town of Barnstable Board of Health (the "Board") dated May 11, 2004, of the Plaintiff's,Anne A. Doerge,,Disposal System Construction E Permit Application(the "Application"). Plaintiffs Application sought approval for a septic system to service a small two bedroom home on.vacant land located at 99 Ocean Drive, West Hyannisport, Massachusetts. Without the approval,there is no economically beneficial use of the Property. 2. Plaintiff challenges the Board's denial on the grounds that the Board did not act in a fair,judicial or reasonable manner upon the substanial evidence presented and that the denial rests on misinterpretations, misunderstandings and allegations that have no relevance under Title V.of the Commonwealth's Environmental Code, 310 CMR 15.00 et seq. ("Title V'-'), and the Town of Barnstable Board of Health Regulations (the"Health 600545_1 1 • Regulations") and/or are technically unfounded. The Board's decision is arbitrary and capricious and represents a substantial error of law inflicting manifest injustice on the Plaintiff. 3. This action also seeks just compensation for the unconstitutional taking of the Plaintiff's property in violation of the Massachusetts Constitution and the United States Constitution due to the Board's actions and the operation of the Board's Regulations. JURISDICTION 4. Jurisdiction to.obtain annulment of the Board's denial of Plaintiffs' Application is conferred upon this pp p Court by M.G.L. c.249, §4,M.G.L. c.231A, §1 et sect., and/or M.G.L. c. 30A, §14 and 310 C.M.R. 15.421. • PARTIES 5. Plaintiff Anne A. Doerge is the owner of the property located.at 99 Ocean Drive, West Hyannisport, Massachusetts ("Property"). Ms. Doerge resides at 135 Middle Fort Road, Middleburgh,New York. 6. Defendant Town of Barnstable Board of Health is the municipal authority authorized to permit septic systems under Title V and the Barnstable Board of Health Regulations. The mailing address of the Board is 200 Main Street,Hyannis, Massachusetts 02601. This action is brought against the Board and its members in their .official capacities. I • 600545_1 2 • FACTUAL BACKGROUND 7. The Plaintiff proposes to construct a small,two bedroom single-family home with a septic system on the Property, which consists of approximately 47,717 square feet. 8. The Plaintiff filed an initial Application for a Disposal Works Construction Permit on or about December 3, 2003. 9. Based upon comments and feedback from the Board and neighbors, the original Application was withdrawn without prejudice so that the Plaintiff could respond to issues the Board wished to see addressed in the plans. 10. In response to the Board's comments, the Plaintiff revised the plan of the proposed septic system and specifically addressed the issues raised by the Board. The • Plaintiff submitted its.revised Application on or about April 4, 2004. 11. A portion of the Property contains salt marsh vegetation, a coastal bank and the 100-year flood plain as those terms are defined in the Massachusetts Wetlands Protection Act,M.G.L. c.131, §40 ("State Wetlands Act") and implementing regulations at 310 C.M.R. 10.00 et seq. However, as the Application and record of the Board ("Record")clearly demonstrated,none of the septic system components were located within either the salt marsh, coastal bank, or 100-year flood plain. 12. In fact,the revised Application located the septic system as far as possible from the salt marsh, which could be considered the most sensitive wetland resource area on the Property. The soil absorption system is set back 100 feet or more from the salt marsh,which exceeds the 50 foot set back requirement in Title V and complies with the S100 foot setback in the Board of Health regulations. 600S45_l 3 • 13. In moving the soil absorption system as far as possible from the salt marsh,the Plaintiff was required to locate the soil absorption system at her property boundary with an adjacent private road. The Plaintiff's registered professional engineer and her attorney demonstrated to the Board at its hearing on April 20, 2004 that the Plaintiff had legal rights extending to the center of the private road and was legally authorized to install septic system components thereunder. The engineer demonstrated that none of the work would alter or interfere with the traveled way. 14. The soil absorption system is located within flood insurance rate zone "Zone C",which is outside of even the 500-year flood and within an area designated as "minimal flooding"pursuant to the Federal Emergency Management Agency ("FEMA"). 15. The Applicant's registered professional engineer testified at the Board's hearing on April 20, 2004,that the coastal bank is not subject to erosion,wave action or failure and does not have active shifting sands and does not supply sediment through erosion. The coastal bank is completely vegetated and stable. The testimony of the registered professional engineer was not refuted by any credible documentary or testimonial evidence, and was plainly evident from the Board's view of the Property. 16. A portion of the coastal bank is within the 100-year flood plain,however, the engineer demonstrated and the plan reflected that:it is "still water"flooding that-is not able to erode or destabilize the coastal bank. 17. The letter report of the professional engineer dated April 20,2004, and his testimony at the Board's hearing, demonstrated that the proposed septic system,which is located above and outside of,the coastal bank;will not have any adverse effect on the stability of the coastal bank. 600545_1 4 i • 18. The Massachusetts Wetlands Act and 310 C.M.R. 10.30(6) allow construction on or within 100 feet of a coastal bank if such construction, like that proposed in the Application,will have no adverse effect on the stability of the bank. 19. Septic systems and homes larger than those proposed in the Application have been permitted on the properties adjacent to and near the Plaintiff's property. 20. . The professional engineer testified that, in his approximately 30 years of professional experience, if the Plaintiff's septic system ever needed repairs in the future, the repairs could be performed within the footprint of the proposed system, as is commonly done on other properties throughout the Commonwealth. Therefore, a reserve area was not necessary and the same degree of environmental protection could be achieved without having a separate designated reserve system. • 21. The Plaintiff proposed recording a permanent deed restriction on the Property which would limit the size of the dwelling and septic system to only two bedrooms, which is the smallest dwelling practicable and allowed under Title V. Other dwellings in the neighborhood are larger than two bedrooms. 22. The Applicant was willing to install an"innovative system"under Title V to enhance environmental protection even though such an innovative system was not required under Title V or the Board of Health's Regulations. 23. The professional engineer testified and submitted a technical report demonstrating that the proposed Application with variances would provide a level of environmental-protection that is at least equivalent to that provided under Title V and the Board of Health's Regulations, without strict application of the provisions thereof from which the Plaintiff sought variances. • 600545_1 5 24. The evidence demonstrated that enforcement of the provisions from which variances were sought and the Board's denial deprive the Plaintiff of substantially all beneficial use of the Property and would therefore be manifestly unjust. 25. Title V provides at 310 C.M.R. 15.410 that variances may be granted when enforcement of the subject provisions "would be manifestly unjust"and the person requesting the variances has established that a level of environmental protection that is at least equivalent to that provided under Title V can be achieved without strict application of the provisions from which variances are sought. See 310 C.M.R. 15.410(1) and (2). The Board of Health's Regulations do not contain any stricter variance provisions from those set forth in Title V. 26. In denying the Application,the Board relied upon evidence that was irrelevant and inaccurate on its.face. The Record demonstrates that the Board's decision was based on neighborhood and political pressures instead of sound technical and scientific reasons. 27. The Board's decision dated May 11, 2004, demonstrates on its face that the Board relied upon inaccurate and irrelevant information in denying the.Application. For instance,the Board's decision was based upon inaccurate information that.the "proposed soil absorption system would be located on.sandy soil subject to movement and shifting during times of high water and storms," The record is devoid of any credible scientific evidence to support that statement, yet there is credible engineering testimony to the contrary. The Board also based its decision on such trivial concerns as the alleged failure to properly describe the requested variances, even though the Record demonstrates that everyone,including the Board and its staff, were fully aware of the variances sought. 600545_1 6 • 28. There is no credible information present in the Plaintiff s Application or the Board's Record or Denial to rebut the validity of the Plaintiff's engineer's evaluation of the coastal bank,the lawful authority to construct some of septic system components within the layout of the private right-of-way, the design or deed rider for a two-bedroom system, or the Application's compliance with the variance standards of Title V or the Board's Health Regulations. 29. The Plaintiffs Application fully complied with all of the requirements of Title V and the Barnstable Health Regulations,with variances that will result in the protection of the environment and human health and avoid an unconstitutional taking of property without just compensation. 30. The Board's denial of the Plaintiffs Application is unjustified and leaves the Plaintiff with only the burden of paying taxes. The Plaintiff has gone to significant measures to comply with State and local requirements and to present a complete and environmentally sensitive Application,for as small a dwelling as is allowed under Title V and is practicable. COUNT I—CERTIORARI 31. The Plaintiff hereby restates and incorporates by reference the allegations` and statements contained in Paragraphs 1 through 30 of this Complaint. 32. The Plaintiffs Application complies with Title V and the Barnstable Health Regulations including the variance criteria to demonstrate the same degree of environmental protection and manifest injustice and deprivation of all economic use of - the Property, from the Board's Denial. • 600545_1 7 33. The Board's denial of the Plaintiffs Application was not based upon • substantial evidence in the record and constitutes a substantial error of law. 34. The Board's denial of the Application has resulted in substantial injury and manifest injustice to the Plaintiff. COUNT II—DECLARATORY JUDGMENT 35. The Plaintiff hereby restates and incorporates by reference the allegations and statements contained in Paragraphs 1 through 30 of this Complaint. 36. The Board's decision is unlawful and should be declared null and void a because it is based upon impermissible considerations, is unsupported by the substantial evidence, and deprives Plaintiff of all economically beneficial uses of her property. COUNT III—UNCONSTITUTIONAL TAKING UNDER MASSACHUSETTS AND UNITED STATES CONSTITUTIONS 37. The Plaintiff hereby restates and incorporates by reference the allegations and statements contained in Paragraphs 1 through 36 of this Complaint. 38. Articles X and XII of the Massachusetts Constitution and the Fifth Amendment to the United States Constitution prevent the governmental taking of private property without just compensation. 39. The Board's denial and the Title V and the Barnstable Health Regulations on their face and as applied to the Plaintiffs property by the Board, constitute an unconstitutional taking of the Plaintiff's property without just compensation. 40. The Board's.denial does not allow any reasonable economic use of the Plaintiffs property. • 6oO545_1 8 41. The Board's denial constitutes a final administrative decision which has • been made without possibility of relief. 42. The Board denial deprives the Plaintiff of all economically viable use of the Property, leaving her only the burden of paying taxes on it. . PRAYERS FOR RELIEF WHEREFORE, the Plaintiff prays that this Court: r k. 1. Direct the Board to certify to this Court the administrative Record in accordance with Superior Court Standing Order 1-96; 2. Enter an Order finding that the Plaintiffs proposed septic system Application.with variances complies with Title V of the State Environmental Code and with the Barnstable Board of Health Regulations; . 3. Enter an Order annulling the Board's May 11, 2004 denial of Plaintiffs Application; 4. Enter an Order requiring the Board to issue an approval of the Plaintiffs Application; 5. If the Board's decision is allowed to stand, enter an Order requiring the F Town to pay the Plaintiff just compensation for the Property as a fully marketable lot for residential purposes; and 6. Award the Plaintiff her costs and reasonable attorneys' fees; 4 • 600545_1 9 T Allow whatever additional relief this Court deems equitable and proper. Plaintiff requests a trial before a jury on all claims under Count III. For the Plaintiff, ANNE A. DOERGE, By her Amheys, Peter J. Feue'rbach BBO #567061 Rubin and Rudman LLP 50 Rowes Wharf Boston,MA 02110 (617) 330-7136 DATED: June, 2004 • 600545_1 10 CIVIL ACTION DOCKET NO.(S) Trial Court of Massachusetts COVER SHEET Superior ourt Departmgnt County: Gh� ' IFF(S) A _ DEFENDANT(S) y "� c)//-&p tJ� fir �TORNI�f FIRM Nat fE,.ADJQRgS.SAND TELEPHONE ATTORNEY (if known) a �, rr� J rvjCFj/ Ifs5 .. ' /Zc�t(3�N /IwD �, Slrr7f� l r�r^s/� AVOM4W ��P SO fide �ai�t r-� If ofr)'tW &JUwS,b.+Lj Icy �I,v fv, 11110 C Zrt6 r Board of verseers number; '0 f' I - G 7,6,U 1 Origin code and track designation Place an x in one box only: ❑ 4. F04 District Court Appeal c.231, s.97 &104 (After 1: F01 Original Complaint trial) (X) 2. F02 Removal to Sup.Ct. C.231,s.104 ❑ 5. F05 Reactivated after rescript; relief from (Before trial) (F) judgment/Order(Mass.R.Civ.R 60) (X) ❑ 3. F03 Retrahsfer to Sup.Ct. C.281,s.102C (X) ❑ 6. E10 Summary Process Appeal (X) TYPE OF ACTION AND TRACK DESIGNATION (See reverse side) .CODE,NO. TYPE OF ACTION (specify) TRACK IS THIS A JURY CASE? 1 uNr� tIdAmLl i -)(— X) :�' ( ) No The-following is a full, itemized and detailed statement of the facts on which plaintiff relies to determine .money damages. For.this form, disregard double or treble damage claims; indicate single damages only. TORT CLAIMS (Attach additional sheets as necessary) a. Documented medical expenses to date: 1. Total hospital expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ Total Doctor expenses . . . . . . . . . . . . : . . . . :. . . . . . . . . . . . ... . . .. . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . Total chiropractic expenses $ 4. Total physical therapy expenses . . . . : . . . : . . . . . $ 5. Total other expenses (describe) . . . . . . . . . . . . : . . . . . $. . . . . . . . . . . . . . . . . . . . . . . . . . . $. . . . . . . . . . . . . 3. D.ocumented lost wages and compensation to date . Subtotal $. . . . . . . . . . . . . 'Documented property damages to date . . . . . . . $ ' ?. Reasonably anticipated future medical and hospital expenses . ... . . . . , $ . . . . Reasonably anticipated lost wages . . , . . . . . . . . " " " " " " " $ " " " " " " Other documented items of damages (describe) a. Brief description of plaintiff's injury, including nature and extent of injury (describe) $ $ ... . . . . . . . . . . . TOTAL $. . . . . . . . . . . . . CONTRACT CLAIMS (Attach additional sheets as necessary) .rovide a detailed description of claim(s): TOTAL $. . . . . . . . PLEASE IDENTIFY, BY CASE NUMBER, NAME AND COUNTY,ANY RELATED ACTION PENDING IN THE SUPERIOR CCO DEPARTMENT "I hereby certify that I have complied with the requirements of Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC Rule 1:18) requiring that I provide my clients with information about court-connected dispute resolution services and discuss WithApern the adv to s and disadvantages of the various methods:' - Signature of Attorney of Record DATE: Commonwealth of Massachusetts s County of Barnstabl,e The Superior Court • CIVIL DOCKET# BACV2004-00330-A RE: Doerge v Barnstable Board of Health TO:Peter J Feuerbach, Esquire Rubin & Rudman 50 Rowes Wharf Boston, MA 02110 TRACKING ORDER - X TRACK (Administrative Agency Appeal - 30A) You are hereby notified that this case is on the accelerated (X) track as per Superior Court Standing Order 1-88 and.Standing Order 1-96. The orders require that the various stages of litigation described below must be completed not later than the deadlines indicated. STAGES OF. LITIGATION DEADLINE Service of process made and return.filed with the Court 09/07/2004 Answer,filed. 9O:days after service.- Case disposed 01/05/2005 Counsel for plaintiff must serve this tracking order on defendant before the deadline for filing return of service. This case is assigned to session A sitting at Barnstable Superior Court in Barnstable. t Dated: 06/09/2004 Scott W. Nickerson Clerk of the Courts Nancy N. Weir Assistant Clerk Location: Civil A Telephone: (508) 375-6684 Disabled individuals who need handicap accommodations should contact the Administrative Office of the superior Court.at(617)788-8130 cvdtracxeOZ 2.wpd 390698 inidoc0l kellmary� RUBIN AND RUDMAN LLP COUNSELLORS AT LAW 50 ROWES WHARF • BOSTON, MASSACHUSETTS 02110-3319 TELEPHONE:(617)330-7000 • FACSIMILE:(617)439-9556 • EMAIL:FIRM@RUBINRUDMAN.COM Peter J. Feuerbach Direct Dial:(617)330-7136 E-mail:pfeuerbach@rubinrudman.com June 16, 2004 Certified Mail No. 7002 2030 0002 2464 0800 Return Receipt Requested Board of Health 200 Main Street Hyannis,MA 02601 Certified Mail No. 7002 2030 0002 2464 0794 Return Receipt Requested Linda E.Hutchenrider,Town Clerk Barnstable Town Hall 367 Main Street Hyannis,MA 02601 Re: Anne A.Doerge vs.Town of Barnstable Board of Health Barnstable Superior Court Civil Action No.04-330 Dear Ms. Hutchenrider and Members of the Board of Health: In accordance with Massachusetts Rules of Civil Procedure Rule 4(d)(4 and 5) I enclose herewith a summons and a copy of the Complaint, Civil Action Cover Sheet, and Tracking Order pertaining to the lawsuit that this firm has filed in Barnstable Superior Court in the above referenced action. I am also forwarding a copy of the same to Town Counsel as a courtesy. _ Ve tru y-;, ours, Peter J. Feu ach PJF/es Enclosures cc: Robert D. Smith,Esq., Town Counsel 6007271 (TO PLAINTIFF'S ATTORNEY: . PLEASE CIRCLE TYPE OF ACTION INVOLVED: CONTRACT TORT MOTOR VEHICLE TORT EQUrIABLE RELIEF OTHER) (9V=xzWnfVtN1t4 V# usizar4us'efts BARNSTABLE,ss. SUPERIOR COURT No. 04-330 ANNE A. DOERGE VS. TOWN OF BARNSTABLE BOARD OF HEALTH SUMMONS To the above-named defendant You are hereby summoned and required to serve upon....Pe.t:.e......I.... ............................ .Rubin...and...Rudm.nl....LLP.............................................................................................plaintiff's attorney, whose address is 50 Rowes Wharf, Boston, MA......02110......................................................................................................., an answer to the ..................................................................................... complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service.If you fail to do so,judgment by default will be taken against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Barnstable either before service upon plaintiff's attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim or you will thereafter be barred from making.such claim in any other action. Witness, $UZANNE V. DEL VECCHIO Esquire, at Barnstable,the.........1.5.th............................... day of................June......_...................................................in the year of our Lord two thousand and ....four. ' Clerk NOTE: When more than one defendant is involved,the names of all defendants shall appear in the caption.If a separate summons is issued for each defendant, each should be addressed to the particular defendant. NOTICE TO DEFENDANT You need not appear personally in court to answer the complaint but if you claim to have a defense, either you or your attorney must serve a copy of your written answer within 20 days as specified herein and also file the original in the Clerk's office. • COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT DEPARTMENT BARNSTABLE, ss. CIVIL ACTION NO. ANNE A.DOERGE, ) Plaintiff, ) V. ) COMPLAINT TOWN OF BARNSTABLE ) BOARD OF HEALTH, ) Defendant. ) INTRODUCTION 1. This action is an appeal under M.G.L. c.249, §4 and c.231A, §1 et seg_,. from the denial by the Defendant Town of Barnstable Board of Health(the-"Board") dated May 11, 2004, of the Plaintiff's, Anne A. Doerge,,Disposal System Construction Permit Application(the "Application").. Plaintiffs Application sought approval for a septic system to service a small two bedroom home on vacant land located at 99 Ocean Drive, West Hyannisport, Massachusetts. Without the approval;there is no economically beneficial use of the Property. 2. Plaintiff challenges the Board's denial on the grounds that the Board did not act in a fair,judicial or reasonable manner upon the substanial evidence presented and that the denial rests on misinterpretations,misunderstandings and allegations that have no relevance under Title V of the Commonwealth's Environmental Code, 310 CMR 15.00 et seq. ("Title V"), and the Town of Barnstable Board of Health Regulations (the "Health 600545_1 1 t Regulations") and/or are technically unfounded. The Board's decision is arbitrary and capricious and represents a substantial error of law inflicting manifest injustice on the Plaintiff. 3. This action also seeks just compensation for the unconstitutional taking of the Plaintiff's property in violation of the Massachusetts Constitution and the United States Constitution due to the Board's actions and the operation of the Board's Regulations. JURISDICTION 4. Jurisdiction to.obtain annulment of the Board's denial of Plaintiffs' Application is conferred upon this Court by M.G.L. c.249, §4,M.G.L. c.231A, §1 et seq., and/or M.G.L. c. 30A, §14 and 310 C.M.R 15.421. PARTIES 5. Plaintiff Anne A. Doerge is the owner of the property located.at 99 Ocean Drive, West Hyannisport,Massachusetts ("Property"). Ms. Doerge resides at 135 Middle Fort Road, Middleburgh,New York. 6. Defendant Town of Barnstable Board of Health is the municipal authority authorized to permit septic systems under Title V and the Barnstable Board of Health Regulations. The mailing address of the Board is 200 Main Street,Hyannis, Massachusetts 02601. This_action is brought against the Board and its members in their official capacities. 600545_1 2 I� FACTUAL BACKGROUND 7. The Plaintiff proposes to construct a small,two bedroom single-family home with a septic system on the Property, which consists of approximately 47,717 square feet. 8. The Plaintiff filed an initial Application for a Disposal Works Construction Permit on or about December 3, 2003. 9. Based upon comments and feedback from the Board and neighbors,the original Application was Withdrawn without prejudice so that the Plaintiff could respond to issues the Board wished to see addressed in the plans. 10. In response to the Board's comments, the Plaintiff revised the plan of the I proposed septic system and specifically addressed the issues raised by the Board. The Plaintiff submitted its revised Application on or about April 4, 2004. 11. A portion of the Property contains salt marsh vegetation, a coastal bank- and the 100-year flood plain as those terms are defined in the Massachusetts Wetlands Protection Act, M.G.L. c.131, §40 ("State Wetlands Act") and implementing regulations at 310 C.M.R. 10.00 et seq. However, as the Application and record of the Board ("Record") clearly demonstrated, none of the septic system components were located within either the salt marsh, coastal bank, or 100-year flood plain. 12. In fact,the revised Application located the septic system as far as possible from the salt marsh,which could be considered the most sensitive wetland resource area on the Property. The soil absorption system is set back 100 feet or more from the salt marsh;which exceeds the 50 foot set back requirement in Title V and complies with the 100 foot setback in the Board of Health regulations. 6oO545_1 3 13. In moving the soil absorption system as fax as possible from the salt marsh,the Plaintiff was required to locate the soil absorption system at her ro e P p rtY boundary with an adjacent private road. The Plaintiff s registered professional engineer and her attorney demonstrated to the Board at its hearing on April 20, 2004 that the Plaintiff had legal rights extending to the center of the private road and was legally authorized to install septic system components thereunder. The engineer demonstrated that none of the work would alter or interfere with the traveled way. m 14. The soil absorption system is located within flood insurance rate zone "Zone C", which is outside of even the 500-year flood and within an area designated as "minimal flooding"pursuant to the Federal Emergency Management Agency ("FEMA"). 15. The Applicant's registered professional engineer testified at the Board's hearing on April 20, 2004,that the coastal.bank is not subject to erosion,wave action or failure and does not have active shiftingsands and does not supply sediment through pp Y g erosion. The coastal bank is completely vegetated and stable. The testimony of the registered professional engineer was not refuted by any credible documentary or testimonial evidence, and was plainly evident from the Board's view of the Property. 16. A portion of the coastal bank is within the 100-year flood plain,however, the engineer demonstrated and the plan reflected that it is "still water" flooding that is not able to erode or destabilize the coastal bank. 17. The letter report of the professional engineer dated April 20, 2004, and his testimony at the Board's hearing, demonstrated that the proposed septic system, which is located above and outside of the coastal bank,will not have any adverse effect on the stability of the coastal bank. 600545_l - 4 18. The Massachusetts Wetlands Act and 310 C.M.R. 10.30(6) allow construction on or within 100 feet of a coastal bank if such construction, like that proposed in the Application, will have no adverse effect on the stability of the bank. 19. Septic systems and homes larger than those proposed in the Application have been permitted on the properties adjacent to and near the Plaintiff's property. 20. The professional engineer testified that, in his approximately 30 years of professional experience, if the Plaintiff's septic system ever needed repairs in the future, the repairs could be performed within the footprint of the proposed system, as is commonly done on other properties throughout the Commonwealth. Therefore, a reserve area was not necessary and the same degree of environmental protection could be achieved without having a separate designated reserve system.- 21. The Plaintiff proposed recording a permanent deed restriction on the Property which would limit the size of the dwelling and septic system to only two bedrooms, which is the smallest dwelling practicable and allowed under Title V. Other dwellings in the neighborhood are larger than two bedrooms. 22. The Applicant was willing to install an"innovative system"under Title V to enhance environmental protection even though such an innovative system was not required under Title V or the Board of Health's Regulations. 23. The professional engineer testified and submitted a technical report demonstrating that the proposed Application with variances would provide a level of environmental protection that is at least equivalent to that provided under Title V and the Board of Health's Regulations, without strict application of the provisions thereof from which the Plaintiff sought variances. • 600545_1 5 24. The evidence demonstrated that enforcement of the provisions from which variances were sought and the Board's denial deprive the Plaintiff of substantial) all P y beneficial use of the Property and would therefore be manifestly unjust. 25. Title V provides at 310 C.M.R. 15.410 that variances may be granted when enforcement of the subject provisions"would be manifestly unjust"and the person requesting the variances has established that a level of environmental protection that is at least equivalent to that provided under Title V can be achieved without strict application of the provisions from which variances are sought. See 310 C.M.R. 15.410(1) and (2). The Board of Health's Regulations do not contain any stricter variance provisions from those set forth in Title V. 26. In denying the Application,the Board relied upon evidence that was irrelevant and inaccurate on its face. The Record demonstrates that the Board's decision was based on neighborhood and political pressures instead of sou nd technical and scientific reasons. 27. The Board's decision dated May 11, 2004, demonstrates on its face that the Board relied uponinaccurate and irrelevant information in denying the Application. For instance,the Board's decision was based upon inaccurate information that.the "proposed soil absorption system would be located on sandy soil subject to movement and shifting during times of high water and storms." The record is devoid of any credible scientific-evidence to support that statement,yet there is credible engineering testimony to the contrary. The Board also based its decision on such trivial concerns as the alleged failure to properly describe the requested variances, even though the Record demonstrates that everyone,including the Board and its staff, were fully aware of the variances sought. 600545_1 6 28. There is no credible information present in the Plaintiffs Application or the Board's Record or Denial to rebut the validity of the Plaintiff's engineer's evaluation of the coastal bank,the lawful authority to construct some of septic system components within the layout of the private right-of-way, the design or deed rider for a two-bedroom system, or the Application's compliance with the variance standards of Title V or the Board's Health Regulations. 29. The Plaintiffs Application fully complied with all of the requirements of Title V and the Barnstable Health Regulations,with variances that will result in the protection of the environment and human health and avoid an unconstitutional taking of , - property without just compensation. 30. The Board's denial of the Plaintiffs Application is unjustified and leaves the Plaintiff with only the burden of paying taxes. The Plaintiff has gone to significant measures to comply with State and local requirements and to present a complete and environmentally sensitive Application, for as small a dwelling as is allowed under Title V and is practicable. COUNT I—CERTIORARI 31. The Plaintiff hereby restates and incorporates by reference the allegations and statements contained in Paragraphs 1 through 30 of this Complaint. . 32. The Plaintiffs Application complies with Title V and the Barnstable Health Regulations including the variance criteria to demonstrate the same degree of environmental protection and manifest injustice and deprivation of all economic use of the Property, from the Board's Denial. 1 600545_1 7 33. The Board's denial of the Plaintiff s Application was not based upon substantial evidence in the record and constitutes a substantial error of law. 34. The Board's denial of the Application has resulted in substantial injury and manifest injustice to the Plaintiff. COUNT II—DECLARATORY JUDGMENT 35. The Plaintiff hereby restates and incorporates by reference the allegations and statements contained in Paragraphs 1 through 30 of this Complaint. 36. The Board's decision is unlawful and should be declared null and void because it is based upon impermissible considerations, is unsupported by the substantial evidence, and deprives Plaintiff of all economically beneficial uses of her property. COUNT III—UNCONSTITUTIONAL TAKING UNDER MASSACHUSETTS AND UNITED STATES CONSTITUTIONS 3T The Plaintiff hereby restates and incorporates by reference the allegations and statements contained in Paragraphs 1 through 36 of this Complaint. 38. Articles X and XII of the Massachusetts Constitution and the Fifth Amendment to the United States Constitution prevent the governmental taking-of private property without just compensation. 39. The Board's denial and the Title V and the Barnstable Health Regulations on their face and as applied to the Plaintiff s property by the Board, constitute an unconstitutional taking of the Plaintiff's property without just compensation. 40. The Board's.denial does not allow any reasonable economic use of the h Plaintiffs property. 600545_1 8 41. The Board's denial constitutes a final administrative decision which has been made without possibility of relief. 42. The Board denial deprives the Plaintiff of all economically viable use of the Property, leaving her only the burden of paying taxes on it. PRAYERS FOR RELIEF WHEREFORE,the Plaintiff prays that this Court: 1. Direct the Board to certify to this Court the administrative Record in accordance with Superior Court Standing Order 1-96; 2. Enter an Order finding that the Plaintiffs proposed septic system Application with variances complies with Title V of the State Environmental Code and with the Barnstable Board of Health Regulations; 3. Enter an Order annulling the Board's May 11, 2004 denial of Plaintiffs Application; 4. Enter an Order requiring the Board to issue an approval of the Plaintiffs Application; 5. If the Board's decision is allowed to stand, enter an Order requiring the Town to pay the Plaintiff just compensation for the Property as a fully marketable lot for residential purposes; and 6. Award the Plaintiff her costs and reasonable attorneys' fees; • 600545_1 9 • 7. Allow whatever additional relief this Court deems equitable and proper. Plaintiff requests a trial before a jury on all claims under Count III. For the Plaintiff, ANNE A. DOERGE, By her Attfteys, Peter J. Feue'rbach BBO#567061 Rubin and Rudman LLP 50 Rowes Wharf Boston, MA 02110 (617) 330-7136 DATED: June, 2004 600545_1 10 d rw..w.w+.vn+iew..va...«,..c•..-++tw.w++r.......w..«.+-+ »�..,.n�....,-r....-r.n..-.......-r..�............�......,n.+«•..aw-rv..+:r-,.r.,»+..�»n......•.s...+M*.sw+w.win...r•r+..w'Mw»...,,+...w-...,+m�-».-»r+..,.�w�«++.�r++.r�....�ww+,�••+.�.•.n.:ws.+-e.•.•+�+a +..+-.••-r...+.-�+ CIVIL ACTION DOCKET NO.(S) Trial Court of Massachusetts � COVER SHEET Superior ourt Departmgnt County: ►!f� %1� L/�C._ IFF(S) A DEFENDANT(S)�'�r.� �� �CJ�.��cr %d w,1 of Ur' Q✓�l�.t'iil`��c.-� 'TORNE ,FIRM NjaME,.AD R19S�S AND TELEPHONE ATTORNEY if known �. r1ri J `f eA4p[Q10fZ���,QL./I /tzC13JN 4wo ( ) "P S4 f�d�v,4,s GV d ii i�•1-� If d¢,VVI &J U-MS t L> 3 C�- r'+-t 4)ri I t�'/I�v ev Soar f BB Overseers number: j 6 f Origin code and track designation Place an x in one box only: ❑ 4. F04 District Court Appeal c.231, s.97 &104 (After 1: F01 Original Complaint trial) (X) 2. F02 Removal to Sup.Ct.C.231,s.104 ❑ 5. F05 Reactivated after rescript; relief from (Before trial) (F) judgment/Order(Mass.R.Civ.P.60) (X) ❑ 3. F03 Retrahsfer to Sup.Ct. C.231,s.102C (X) ❑ 6. E10 Summary Process Appeal (X) TYPE OF ACTION AND TRACK DESIGNATION (See reverse side) CODE.NQ. TYPE OF ACTION (specify) TRACK IS THIS A JURY CASE? r" p� fnuart�r' (� ) No The.following is a full, Itemized and detailed statement of the facts on which plaintiff relies to determine .money damages. For.this form, disregard double or treble damage claims; indicate single damages only. TORT CLAIMS (Attach additional sheets as necessary) a. .Documented medical expenses to date: 1. Total hospital expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 2. Total Doctor expenses . . . . . . . . . . . . . . . . . . . . . . . . . • Total chiropractic expenses . . . ... . . . . . . . . . . . . . . . . . . . $ . . . . . . . . . . . . Total physical therapy expenses . . . . . . . . . . . . . $ 5. Total other expenses (describe) . . . . . . . . . . . . . . : . . . . . . . . $. . . . . . . . . . . . . . . . . . . . . . . . . . . . $. . . . . . . . . . . . . Subtotal $ . . . . . . . . . . . . . 3. Documented lost wages and compensation to date g p . $ . •Documented property damages to date >. Reasonably anticipated future medical and hospital expenses . . . . . . . . $. . . . . . . . . . . . . Reasonably anticipated lost wages . . . . . . . . . $ Other documented items of damages (describe) . . . . . . . . . . . . . . . . . . . . . . . $. . . . . . . . ' . . ' $. . . . . . . . . . . . . a. Brief description of plaintiff's injury, including nature and extent of injury (describe) $ ... . . . . . . . . . . . TOTAL $. . . . . . . . . . . . . CONTRACT CLAIMS (Attach additional sheets as necessary) 'rovide a detailed description of claim(s): TOTAL_$. . . . . . . PLEASE IDENTIFY, BY CASE-NUMBER, NAME AND COUNTY, ANY RELATED ACTION PENDING IN THE SUPERIOR COi& DEPARTMENT "I hereby certify that I have complied with the requirements of Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC Rule 1:18) requiring that I provide my clients with information about court-connected dispute resolution services and discuss ith em the adv to s and disadvantages of the various methods:' Signature of Attorney of Record DATE: Commonwealth of Massachusetts County of Barnstabl,6 The Superior Court • CIVIL DOCKET# BACV2004-00330-A RE: Doerge v Barnstable Board of Health TO:Peter J Feuerbach, Esquire Rubin & Rudman 50 Rowes Wharf Boston, MA 02110 TRACKING ORDER -X TRACK (Administrative Agency Appeal - 30A) You are hereby notified that this case is on the accelerated (X) track as per _Superior Court Standing Order 1-88 and.Standing Order 1-96. The orders require that the various stages of litigation described below must be completed not later than the deadlines indicated. STAGES OF LITIGATION DEADLINE Service of process made and return.filed with the Court 09/07/2004 • Answer.filed. . 90,days after service.- Case disposed 01/05/2005 Counsel for plaintiff must serve this tracking order on defendant before the deadline for filing return of service. This case is assigned to session A sitting at Barnstable Superior Courtin Barnstable. Dated: 06/09/2004 Scott W. Nickerson Clerk of the Courts Nancy N. Weir Assistant Clerk Location: Civil A Telephone: (508) 375-6684 Disabled individuals who need handicap accommodations should contact the Administrative office of the Superior Court at(617)788-8130 • cvdtracxe02 2.wpd 390698 inidoc0l kellmaryTo-.�; �, RUBIN AND RUDMAN LLP COUNSELLORS AT LAW 50 ROWES WHARF • BOSTON, MASSACHUSETTS 02110-3319 TELEPHONE:(617)330-7000 • FACSIMILE: (617)439-9556 • EMAIL: FIRM@RUBINRUDMAN.COM Peter J. Feuerbach Direct Dial: (617) 330-7136 E-mail: pfeuerbach@rubinrudman.com September 22, 2004 Board of Health Attention: Joan Agostinelli 200 Main Street Hyannis,MA 02601 Re: 99 Ocean Drive,Hyannisport, Barnstable,MA Public Records Request-M.G.L. c.66, §10 Dear Joan: • Pursuant to your request,please find enclosed our Firm check for$5.40 to cover the remaining balance for copies of the public records request for the above property. Thank you for your assistance and consideration.. Very ly s, eter J. Feue ach PJF:ees Enclosure a 6121821 oTERilyo A Gonnwrniry Pn+eira!by e T The lnsu In ckage for Private Wadon O Q Phone:888-740-0275 Phone:781-740-1518 Fax:781-740-1519 The Insurance Package for Government Subdivisions June 24, 2004 Robert D. Smith, Town Attorney Town of Barnstable 367 Main Street COP 9 Hyannis, MA. 02601 - 3907 Claim No.: MAS-0040774 Re: Doerge v. Town of Barnstable Board of Health Dear Mr. Smith • As you are aware, the Town of Barnstable, hereinafter the "Town," recently submitted the above captioned complaint filed by Anne Doerge, hereinafter "plaintiff," for consideration of a defense and/or indemnification under the policy of insurance issued to the Town by Redland Insurance Company. In this regard, Redland has issued Commercial General Liability Policy number XG2— 1000163 to the Town with effective dates of July 01, 2002 through July 01, 2003. The Commercial General Liability Policy carries liability limits in the amount of $1,000,000 per occurrence with a general aggregate limit of$3,000,000. In the complaint, filed with the Barnstable Superior Court, the plaintiff alleges that the Town of Barnstable Board of Health wrongfully denied her application for a septic system permit to service a small two-bedroom home located at 99 Ocean Drive, West Hyannisport, Massachusetts. The plaintiff claims that without approval.of the permit, . there is no economically beneficial use of the property. As a result, the plaintiff filed this action asking the court to order the Board of Health to issue the permit and for damages due to a Regulatory Taking under state and federal law. Based upon my review of the complaint and the policy issue&to the Town of>'Barnstable, I have determined that no coverage is available wider the General Liabilit Policy—"My�t analysis of the contract follows. fi cry sv cc, cn f ntv '- CO � r— rn Massamon4 Insurance Agency Inc., P.O. Box 130, Hingham,MA,02043 1 , 4 Robert D. Smith, Esq. June 24, 2004 • Page 2 of 4 General Liability Policy The Town's General Liability policy includes form CG 00 01 (ed. 10/01)which provides, in pertinent part, the following: Section I—Coverage A: Bodily Injury and Property Damage Liability 1. Insuring Agreement a. We will pay those sums that the Insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the Insured against any "suit" seeking those damages... b. This insurance applies to "bodily injury" and "property damage" only if: (1) the "bodily injury" or"property damage" is caused by an occurrence...; and (2) the "bodily injury" or "property damage" occurs during the policy period: Section I—Coverage B: Personal and Advertising Injury Liability 1. Insuring Agreement a. We will pay those sums that the Insured becomes legally obligated to pay as damages because of"personal and advertising injury" to which this insurance applies. We will have the right and duty to defend the Insured against any "suit" seeking those damages... b.This ' applies to: "personal and advertising injury" caused by an offense arising out of your business but only if the offense was committed in the "coverage territory" during the policy period. CG 00 01 also provides various definitions including the following: "Bodily injury" means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time. 4 Robert D. Smith,Esq. June 24, 2004 Page 3 of 4 "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions. "Personal and Advertising Injury" means injury including consequential "bodily injury" arising out of one or more of the following offenses: a. false arrest, detention or imprisonment; b. malicious prosecution; c. the wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor; d. oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's good,products or services; e. oral or written publication or material that violates a person's • right of privacy; f the use of another's advertising idea in you"advertisement"; g. infringing upon another's copyright, trade dress or slogan in your"advertisement" or h. mental anguish and humiliation "Property Damage" means: a. physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or b. loss of use of tangible property that is not physically injured: All such loss of use shall be deemed to occur at the time of the "occurrence"that caused it. DISCUSSION The Town of Barnstable is insured under a Commercial General Liability Policy issued • by Redland Insurance Company and cited above. Upon receipt of service of process in this matter, representatives of the Town tendered copies of the suit papers to Redland Robert D. Smith,Esq. June 24,2004 • Page 4 of 4 Insurance Company for consideration of a defense and/or indemnification under the . . of the policy and provisions y terms P General Liability Policy. However, after analyzing the p under applicable law, Redland Insurance Company must, unfortunately, deny and disclaim all coverage to the Town of Barnstable for the above-captioned action. This denial and disclaimer is based on the following alternative grounds: (1) The intent of the General Liability policy is to respond to claims for damages because of bodily injury, property damage and/or personal and advertising injury. As an initial matter, the plaintiff does not seek damages because of bodily injury, property damage or personal injury and advertising injury. This fact, alone, precludes coverage under the General Liability policy. However, even though the claim might broadly be construed as one for property damage, (i.e. loss of use) the property damage did not arise out of an occurrence as defined. Therefore, there is no coverage under the Commercial General Liability Policy. In light of the above denial and disclaimer, Redland Insurance Company owes no duty to defend or indemnify the Town of Barnstable Board of Health against the above-captioned action now pending. As a result, Redland Insurance Company will not assign defense counsel to represent the Town of Barnstable Board of Health in this matter, nor will it pay any award or judgment issued against the Town of Barnstable Board of Health and in favor of the plaintiff. Redland Insurance Company accordingly urges the Town of Barnstable Board of Health to take whatever steps or measures it deems necessary and • appropriate to protect its rights and interests with respect to the plaintiff's claims. The above enumeration of grounds shall not be construed as a waiver or relinquishment of any additional grounds for denial that Redland Insurance Company has or may have in the circumstances of this matter, nor as a waiver or relinquishment of any rights of Redland Insurance Company under its policies. No act or omission of Redland Insurance Company,its agents, servants, employees or attorneys, shall be so construed. We suggest that the Town of Barnstable forward.this matter to the appropriate insurer, providing errors and omissions coverage to the Town, for review and consideration. G y questions,please do not hesitate to contact us. omson Claims Attorney cc: Barnstable Board of Health Dowling &O'Neil Insurance � I P_ Z � �I v3a O # I I n N I prn � v p 1/rn�r Q I 8 z I a i { � 1 cl IT TI -mil i PROJECT md ANNE A. DOERGE RESIDENCE GADzooksARcHrEcruRAL GRAPHics W. NYANNISPORT, MA { W 10 SEABOARD LANE WANNIS, MA 026a PRELIMINARY PLANS - PHONE: 508-775 31 Z - i-- --- � I m � I o I . z � I � L D. I D A _ PROJECT: m _ m ANNE A. DOEROE RESIDENCE GADzooks ARCHITECTURAL GRAPHICS W. NYANNISPORT, MA ` L W 10 SEABOARD LANE HYANNIS, MA 02ro01 W g PRELIMINARY PLANS W - PHONE: 508-7 75-6031 f (� Ij I' jl II Ijl j i i' Illj II I 11 Mill III t ii ail II II. l ill ii I ii II, it i I;i III I I it ili l It it ,I II lii it i! ql i l � I III II O II II I III il. iil it ii III m * II - a I� II i II II i II I I it I I I it II it I I II it E I (ll j 'I III III II Ijl �j POJECT- j � ill jlj ITI !III I, � I I 11 li Ili ANNE A.R DOERGE RESIDENCE G/ADZOOkS og�RCHn7Ec UR- rvpAp ic; W. WYANNI5PORT, MA 10 SEABOAJ;V LANE HYANNI S, MA 026a W ELEVATIONS PHONE: 508-77 a-0031 I j I i I ; I 'i i i i { 20-0l' rD7 ,1 1 i. 1 — I it i . i i r it �l i I, i ;i g d PROJECT: 1 . m m ANNE A, ®O�ERc��® RESIDENCE d o .s f HITF-MRAL ca l�°IBG N. HYANNIJPORT, MA g W PRELIMINARY PLANS PHONE 508-7, 75-W31 1 k j I I i 1 5 N 0513013 - ®® m rn N l , f v c FZ /171 [IMIM .]3.3 a O ®®PROJECT: m m ANNE A, ®OERGE RESI C>E.NCE CADZOOkSARcHITECTURAL GRAPHCS V N. NYANNI5PORT, MA _® 10 SEABOARD LANE. H YANNIS, IA 0201 a , o PRELIMINARY PLANS PHONE: 508-77 1 a - ���®� SEPTIC TANK DETAIL: 1 ,500 GALLON DISTRIBUTION BOX DETAIL: NOT TO SCALE LEACHING TRENCH ``DETAIL: NOT TO SCALE REVISIONS SOIL TEST PIT DATA: P-10,544 NO. DATE DESCRIPTION NOT TO SCALE N0. OF OUTLETS 5 TEST PIT #L TEST PIT -.#Z_ HIGH GROUNDWATER COMPUTATION 5. INLET AND OUTLET TEES TO BE CAST IRON, FINISHED .GRADE 38' MAX .COVER GRD. EL. 8.6 13.3 BASED ON TP 1 NOTES: t. SEPTIC TANK SHALL BE STEEL SCHED. 40 PVC OR CAST-IN-PLACE CONCRETE. FINISHED GRADE GRD. EL. � REINFORCED CONCRETE. EST. HIGH GW. 4.2 EST. HIGH GW. SEE TP-1 2. SEPTIC TANK TO WITHSTAND H-10 LOADING TEES TO BE CENTERED UNDER MANHOLE COVER. REMOVABLE �-- Y WALLS LOAM & SEED DISTURED AREAS DEPTH TO WATER 8.0 CpVED i NOTES: A FILL UNLESS UNDER PAVEMENT, DRIVES OR LOAMY S ND INDEX WELL MIW-29 TRAVELED WAYS. WHEREIN H-20 LOADING WATER LEVEL RANGE ZONE SHALL APPLY. .�:•�. n�•o.. ,� •�...., .�. ,. � ��� i. DIST. BOX TO WITHSTAND H-10 LOADING 2 CAP ENDS l OYR 4 2 „ A 'T' UNLESS UNDER PAVEMENT, DRIVES OR . .� . ,�. .-��• _ . . A., 7 20 CURRENT DEPTHa1NDEX 8 03 8.1 1 ALL PIPE CONNECTIONS AND CONCRETE I 4 PVC �V�'0� B A WATER LEVEL ADJUSTMENT( / ) CONSTRUCTION SHALL BE WATERTIGHT. W 24ME'TaALA HANpLESE BROUGHT150 TRAVELED WAYS WHEREIN H-20 LOADING . ems. . . •. . •. .. • . . LOAMY S ND LOAMY S ND 1.6 / j 15 mow- A •Y• `� w oscenvc 1OYR 5,6 1OYR 4 4 DEPTH TO ADJUSTED HIGH WATER 4.4 4. FILL ALL UNUSED KNOCKOUTS WITH TO 6 OF FINISH GRADE -+- T . 8. .. • . • GENERAL NOTES: 17" 25" MORTAR. TEE TO BE UNDER 1 ' IN. 6 . 5,r,OUTLETS 2•PROVIDE INLET TEE OR BAFFLE MERE EL = 7.2 M.H. OPENING SLOPE OF PIPE EXCEEDS 0.08 FT./FT OR 1. THIS PLAN IS FOR DESIGN AND LOAMY DATE: INDICATES 'r IN PUMPED SYSTEM. r �, LEVEL Bl]TTBM DISPOSAL FACILITY ONLY. AWAMWCONSTRUCTION OF THE SEWAGE SAND 8/22/03 v ESTIMATED r t 2' 3. FIRST TWO FEET OF PIPE OUT OF DIST. ALL 2.Y 6/� SEASONAL HIGH 1 •_ • RAISE M.H W/L" 4 BOTTOM ON LEVEL BOX TO BE LAID LEVEL. PROFILE ATERIALS�SHALL CONFORMSTO MASS. 32" TEST BY: GROUND WATER O 6 SEWER BRICK .;• •. ::. :•,• . STABLE BASE 6 MIN. 3 4 TD _ EL = 10.6 THE BSC GROUP. INC. 10'-0' �T� - _ C�� 1 1 2' CRUSHED 4. ALL PIPE CONNECTIONS AND CONCRETE O.E.P TITLE 5 AND LOCAL BOARD 52" N WA 12' BASE 38 MAX. - 12 MIN. COVER INDICATES CONSTRUCTION SHALL BE WATERTIGHT. OF HEALTH REGULATIONS. 3. ALL PIPES LOCATED UNDER PAVEMENT WITNESSED BY: 5. FILL ALL UNUSED KNOCKOUTS WITH MORTAR. 2X MN. FINISH GRADE 4' MIN. LOAM do SEED OR TRAVELED WAY SHALL BE SCHEDULE �_ OBSERVED :� 3' '•; SAM WHITE 10' 14" / 40 OR EQUAL. 66„ GROUND WATER PRECAST SEPTIC TANK .,, INLET TEE PERC. RATE: 30 1 j2` �l twoMt� 4. THERE LOCAARE � THIN NO PRIVATE WELLS 72" C 2 _MIN./INCH INDICATES - 5'-2' 4'-8' �' S'-8' DA TUM: PROPOSED LEACHING FACILITY NOR MEDIUM SAND MEDIUM SAND SOIL EVALUATOR PERC. - _ _ Z '•' 4'-Ow M 'w 15 1/2' '; LIQUID DEPTH 2' MIN. OF 1/8' TO ANY KNOWN WELLS PROPOSED 'WITHIN 1OYR 6/8 1OYR 6/6 CRAIG FIELD TEST .0 an i- PRECAST-DIST. VERTICAL DATUM: N.G.V.D. 1929 24' 1/2' WASHED STONE 150' OF ANY KNOWN LEACHING FACILITY. �� 5. WITHIN LIMIT OF EXCAVATION REMOVE SOIL CLASS: r Box INDICATES - y .-:-�.-:• 3/4' TO 1-1/2' DOUBLE L. ALL TOPSOIL. SUBSOIL AND OTHER r.:: :` -:: :<; " ' •'::. •,. BENCH MARK SET: HYDRANT TAG BOLT ASHED STONE (NO FINES) IMPERVIOUS MATERIAL EL = (-1.4) 120 EL = 2.80 126 1 UNSUITABLE BOTTOM ON LEVEL STABS BASE 3' 17 ELEVATION 13.64 _ 8. REPLACE WITH CLEAN WASHED SAND MATERIAL r• L.T.A.R. PLAN VIEW 8 MIN. 3/4 TO AWE' 11 OR OTHER CLEAN GRANULAR SOILS 0.74 G.P.D./SQ.FT. 1 1/2' STONE CROSS-SECTION VIEW _PLAN VIEW CROSS-SECTION CONFORMING TO THE FOLLOWING . . . SIEVE ANALYSIS: I 10% (MAX) BY WT. SHALL PROFILE: NOT TO SCALE / / • : : PASS No. 50 SIEVE EL=A / - - - - LEGEND FIRST PIPE LENGTH / � I � • • �• (� � G • PASS�NoN100 SIEVE SHALL TOP FOUNDATION • . . . Lv DESIGN CRITERIA. CONCRETE COVERS TO WITHIN TO BE SET LEVEL / / G CS X OF No. 4 SIEVE SHALL EL.=15.0 6" OF FINISHED GRADE. FOR MIA. 2' / / ' : : : •� 50.9 X SPOT ELEVATION FINISH GRADE DE`�IGN FLOW: PASS No. 200 \ G / - - . . C.B. ♦ CATCH BASIN UNIFORMITY COEFFICIENT O No. 4 r r 4' PVC SCH 80 / . . . . Z : . . .. \ ! - - • -_ • : : : : : : • • - • ' ' ' ' U' #c LIGHT POLE 2_ BEDROOMS AT_1G.P.B./D 220 G.P.D. SIEVE </=N3.o 4' P / '..� ••.-• �• -.-..• ••, UP i UTILITY POLE 7. EXISTING UTILITIES WHERE SHOWN 4 PVC 2'-1 8'-3 8' DOUBLE WASHED STONE / I --.� -. - - h( 4' 1 1 • - • -1.•• ••.• " • - O W OVER. ELECTRIC LINE IN THE DRAWINGS ARE APPROXIMATE. / - /2' DOUBLE SMASHED STONE / - `I ' - G- GAS LINE THE CONTRACTOR SHALL BE RESPON- _ _ NOTES • • 1 • . -• . • - • . RIVE • , • . . . • REQUIRED SEPTIC TANK: 9Bt.E FOR PROPERLY LOCATING AND SEE I I . . " - ! OCEAN D, - - - -W- WATER LINE - COORDINATING THE PROPOSED CON- 1=E I-G 1 • - - . - - - 2�0 X 200% - 440 GAL. r I=C o 1 - • • '� ROAD , q'.' L . " WF#1 WETLAND FLAG #1 STRUC110N ACTIVITY WITH DIG-SAFE 5 OUTLET 1=F ��w`+•- -_OHW 1 . .! (PRIVA = 1500 GAL AND THE APPLICABLE UTILITY �: •�• • . SEPTIC TANK PROVIDED. r 10' MIN' DIST. BOX -m BOTTOM EL=J OkW OHW I • . : - : : - . -1 . . ' •� TCB TOWN COASTAL BANK COMPANY AND MAINTA"NG THE SEPTIC TANK I . - » J - • / -i oHw. - - : : : . • . . • �,pp►OS�p- TCe - ��6 SCB /// STATE COASTAL BANK EXISTING UTILITY SYSTEM IN SERVICE. • _ DIG-SAFE SHALL BE NOTIFIED PER 20 MIN HIGH WATER EL-K o - -- 13_i " : ���'�M1T� � """'�*��.,, SIZE OF LEACHING FACILITY REQUIRED: THE STATE OF MASSACHUSETTS • BENCHMARK I I - ! - ' �"'"-oylr EXCAVATIO •h,, �`�/ � DESIGN PERC. RAZE: MIN./ INCH AT TEL 1888-344-TSTATUTE CHAPTER 8Z233CT}iE TION 409 • HYDRANT TAG-BOLT I ( �� SEE N ---- <2 INVERT ELEVATIONS: . . ELEVATION 13.64 N .f I r D 6 "� ""GHw , ENGINEER DOES NOT GUARANTEE r II y - yam/ LONG TERM APPL. RATE 0•74 /S THEIR ACCURACY OR THAT ALL • ' • - G.P.D .F. TOP OF FOUNDATION 16.0 A I • . \ \\ -'.' ! UTILITIES Q \ �"` �• ` • ■i u n■n■u■u■ // ♦ _ ARE SHOWN.AND SUBSURFACE STRUCTURES 4" INVERT AT BUILDING 12.67 B �' 4 a \ \ - - ' "/r '50 E ; .72 --'''- 220 GPD 0.74 GPD/SF 297 S.F, �� t f'�/ �p \ \• • -•• , SERVE N TALELECEN�FROMONS �RECORD PLANS. THE UNDERGROUND UTILITIES 4" INVERT AT SEPTIC TANK (IN) 12.47 C I . . I V I -,••' \ I `\ -. - -- I FACILITY PROVIDED] CONTRACTOR SHALL VERIFY SIZE, SIZE OF LEACHINGLOCATION AND INVERTS of uTIUTiEs 4 INVERT AT SEPTIC TANK (OUT) 12.22 D I °N° m 1 _ 3' _ _....1,0 -"I ' �� *C" --' `J AND sTRucn�REs As REQUIRED PRIOR �� /. ^' v WE'i1-�`ND-I'-- -- • . W 20.7' 15.1 I ZONE ,.�1~80'"WETLAND 4" INVERT AT DIST. BOX (IN) 12.17 E ( I _ �.-... a '0 R I ! Opp ro THE START of CONSTRUCTION. L; 4" INVERT AT DIST. BOX T F 1 e / .pp PROP 1500 4.9 .... ... ,. - BUFFER 2x3' WIDE. 2' DEEP. 21.5' LONG TRENCH (OUT) 12.00 • , " • p v„� _ B. THIS SYSTEM IS NOT DESIGNED FOR - o GAL S.T. - OdD _ _ 1 M > / FL �'� THE USE OF A GARBAGE GRINDER. INVERTS AT LEACHING FACILITY: I : / : _ : ^i S / TP-2 / / - - .- sue" ONE .0 2C2'+2'+3'>x21.5' 301 S..F. A GARBAGE GRWDER Is NOT N PROPOSED 1 . - . - . 1 •r / �' - •aft ow Z �V 11 C'� � t I • --1 -� PROP / �. E __ - - WATER SERVICE _ .- :i- . - ---- yEWAY -- _ , 0� RECOMMENDED 4" INVERT AT BEGINNING • ' . . . . . •. .. -.- . . :i 1� 10- 01 x 0.074 LEACHING SF 22 GPD FACILITY. �� FL R _ DED IKAE TO RECOGNIZED G l .� . / 3 G . . . . . . . • :: - . . . . . : _ , ..•• ' . . .W'�-. / ,_ / NMPAcr� THE LEACHING OF LEACHING TRENCH 11.93 G BREAKOUT 12.5 . ' . . . • . • . . / ,- K� ' �.L--' �� PROVIDED .�. . - . . . . . i i 2 EXISTING 4" INVERT AT END _ PROPOSED ... ,�' _ DWELLING _ OF LEACHING TRENCH 11.82 H _ i AREA OF DRYWELL - ELEVATION AT BOTTOM \ „ �� ROAD TAKING S _ ... .. -y'•' . '��. •- 10.4 OF LEACHING TRENCH 9.82 J \\ \ _.� �� 7- 5.0 ,.-� \ / �..---- R=30.00 .. - N ESTIMATED GROUNDWATER ` / L=47.12' ,.�• 1r* - PROPOSED ELEVATION 4.2 K �.I ''� `�-` .�''y� / ,,.- / ` ,,-�- DRYWELL LOCUS INFORMATION VARIANCES REQUESTED: s . . ___ :. _ - o BSC 85� 1 � BE �aOM�L JNG / GROUP • 0.1��'� .��,c,_ -�'" .�•''� �� '� �� f _ T.O.F ,1V8'.`0 / ./ -- /� � � CURRENT OWNER. Ms. ANNA E. DOERGE / f "r - C !V 657 Main Street, (RT. 28) Unit 6 • CRAW EEL. 11. ' W.Yarmouth Massachusetts MASSACHUSETTS TITLE 5: 310-15.211 �� / .9• 10.7 0 TITLE REFERENCE: DEED BOOK 3041, PAGE 343 10.0 � .� �� � � PROPOSED PLAN REFERENCE: 34/23 do 22/113 02673 PROPOSED S.A.S. TO EXISTING COASTAL BANK (50' REQUIRED) 9,0 - DRYWELL 5087788919 16 PROVIDED. A VARIANCE OF 34 IS REQUESTED. �-- - ASSESSORS MAP: 266 \ � '.`_-ram' •� � 6.0 g _ PARCEL: 4 PROJECT TITLE: PROPOSED S.A.S. AREA TO EXISTING STREET LINE (10' REQUIRED) / "/Ev 1 1,p • 0' PROVIDED. A VARIANCE OF 10' IS REQUESTED. REALTY TRb1kT _ __ _ -- --9-- • . •�• .• � 1. '' ����/ '� , ZONING DISTRICT: RB #91 _ 7 SETBACKS: FRONT 20 PROPOSED SEPTIC TANK TO EXISTING COASTAL BANK 25' REQUIRED OCEANDRIVE `,✓' • .���� /�� '/ 50000 . WETLAND D- • - ' SIDE 10' SEWAGE DISPOSAL 4 PROVIDED. A VARIANCE OF 21' IS REQUESTED. ASSESSORS / ' - / ./ -_� - / .' - �- PROPOSED I HAYBALE BUFFER REAR 10 MAP 266 . / _ / / -/ ,,��- SILT FENCE LINE ` MINIMUM LOT SIZE. 43,560 S.F. SYSTEM DESIGN PARCEL 3 �. / / f DAVID J. _ � - / - -• CRISPIN MST. TOTAL LOT AREA: 47,717t S.F. MASSACHUSETTS TITLE 5: 310 15,248 �. / _ - CIVIL f - ,l I �-- / / 1` N� • NITROGEN SENSITIVE RESERVE AREA TO BE PLACED IN AREA OF PROPOSED PRIMARY S.A.S. �''�`'- / .- 100.0' / `�` '�/ r ZONE: NOT A ZONE II < / ,,1' / N/F 'm o - ZONE�ISTR C°: C. B, do A9 - EL 11 #99 OCEAN DRIVE TITLESECTION 1 ... L-' 57.0 v - V. SEC 0 5.203. / / _1_ / ANNA E. DOERGE c� �' OVERLAY DISTRICT- AP / I 1 #99 OCEAN DRIVE v_ co W. H i A �I NISP OR T DESIGN FLOW OF 220 GPD REQUESTED IN LIEU OF THE MINIMUM 330 GPD __ _ _ -ems- �� ASSESSORS MAP 266 I Z $ $Af�NSTA$LE REQUIRED. A TWO BEDROOM DEED RESTRICTION IS TO BE RECORDED. - - PARCEL 4 (A s N F L - N �► / LOCUS PLAN. NO SCALE MARGARET / I �/ 35,921t S.F.• OF WETLAND J BERRY, TRUSTEES MASSACHUSETTS LAND SUBJECT TO 47,717t S.F. TOTAL AREA I n #111 OCEAN DRIVE \ / COASTAL STORM FLOWAGE ASSESSORS MAP 266 °f- PARCEL 5 IrnC PREPARED FOR: L Ms. ANNE E. DOERGE EXISTING - WF#7 MIDDLE FORT ROAD TOWN OF BARNSTABLE HOARD OF HEALTH: DWELLING ,,�, W#4 WF#5 WF#6 N q� %� I _ _ _ _ _ _ _ _ _ MIDDLEBURGH, N.Y. _ WF#3 PROPOSED S.A.S. AREA TO COASTAL BANK (100' REQUIRED) 4.6 - �/ SLTMARSH 34 EDGE �' WETLANDS • WF#10 Q� F � 12112 08' PROVIDED. A VARIANCE OF 92' IS REQUESTED. • 8`NI i u' • w v� LOCUS I CENTERVILLE AVE. � WF#2 • / • E0 186't TO �� ` • L ! c° / • MATCH B• 0 DATE: 4/4/04 CRAIQ,� ` • , wF#9 i v�, ' 17DAL BANK EXISTING FEW �� �� 000, Jam' COMP. DESIGN: K. HEATY . .- P WF#8 $ r^ L ' ' c,� DRAWN: P. HACHECK: D. GIST • .0000 WF#1 SEE DEP FILE #SE 3-41 s1 LAN VIEW W '' L40 ,. / FOR ANORAD APPROVAL. MATCH B CRAIGVILLE BEACH FIELD: D. GAZZOLO / E. KEATING SCALE: 1' = 10 FEET �• NANTUCKET SOUND FILE NO. 8567-SP4.DWG �IK DWG NO. 5460-03 0 5 10 20 FT, SHEET t OF 1 JOB N0. 4-8567.00 Lt_! S�Fti REVISIONS: F� N0. DATE DESC.LOCUS INFORMATION '� Z^ N/F Q WILLIAM STEWART \ — � #158 THIRD AVENUE CURRENT OWNER: Ms. ANNA E. DOERGE N > J ASSESSORS P�� �P 266 — TITLE REFERENCE: DEED BOOK 3041. PAGE 343 �� �GF /O 22 �n 2 Ira N/F Q � v� ` — L� � � � U L� CHARLES & MARCIA CORMAY a PLAN REFERENCE: 34/23 & 1928 THIRD AVE. LAYOUT 22/113 CENTERVILLE AVE. LOCUS D #161 THIRD AVENUE b ASSESSORS MAP 245 ` ) I:: .r ASSESSORS MAP: 266 �,� OCT 1 4 2003 PARCEL 124 y / I • A I PARCEL- 4 — / I G / / I•.L+-- N - G - ZONING DISTRICT: RB � BARNSTABLE CONSERVATION G • , - . . . - E SETBACKS: FRONT 20DRIV RAIGVILLE BEACH EANSIDE 10 / / I:: -•�. ' • -_�•• • '1'- ' ' ' 1 VEL_ (PRIVATE ROAD) REAR 10 NANTUCKET SOUND 1 .1. 1= MINIMUM LOT SIZE: 43.560 S.F. BENCHMARK :'�:� -�-oHw� - .1- �� TOB ��� LOCUS MAP: NOT TO SCALE HYDRANT TAG-BOLT ---t3� EXISTING TOTAL LOT AREA: 47.717t S.F. � ,„a ELEVATION 13.64 NGVD I-••• l .r •..l 1 11 �- NITROGEN SENSITIVE / - .- 7 :�� ZONE: NOT A ZONE II \ 4.54�0 E z M : I 1 \ W .. .01 FEMA FLOOD ZONE DISTRICT- B. & A9 - EL 11 cFIE A. • '"'"''r � FIELD u, 1/ 'ram .- No.38039 •- • ..� ��O 1 I E 9 . .` OVERLAY DISTRICT: AP OCEAN � . : 1 �!...� ON': x_ EXISTING 5 (PRIVATE ' ,-KRU-er✓ z j 1 DWELLING TE ROAD) • ,�:---• ------- �Ze4' TAKING 1.379± S.F. u 2-30.00 • .� PROFESSIONAL LAND SURVEYOR DATE O e � R. mmmlm • 1 ' PLAN Ct r y J• /� �._ / 1 o v0' COASTAL BANK DELINEATION PROCEDURES: OF /y ID SUBJECT TO 1 I� rn 'P �p 1. SLOPES LESS THAN 10% BELOW FEMA FLOOD LIMITS ARE LAND SUBJECT TO COASTAL STORM FLOWAGE. LAN D COASTAL STORM FLOWAGE I � 1 .zEXISTIN _ DWELLING ----y ��- 1 �. JOHN & MARGARET BERRY. TRUSTEES 2• SLOPES GREATER THAN 1OX ARE STATE COASTAL BANK UP TO THE FEMA FLOOD LIMIT, IF SEAWARD � 1 -_ R ',__ FACING AND BORDERING ON ANOTHER WETLAND RESOURCE AREA. #99 OCEAN DRIVE W 7 1� �' --- #111 OCEAN DRIVE WF#4 #5 1 WF#6 F# 1 ASSESSORS MAP 266 3. SLOPES ABOVE THE FEMA FLOOD LIMIT THAT ARE GREATER THAN 25% ARE STATE COASTAL BANK � •�1 WF#10 PARCEL 5 TO THE BREAK IN SLOPE LESS THAN 25X„ IF SEAWARD FACING AND BORDERING ON ANOTHER IN SALTMA��I' � EDGE IOF WETLANDS 1 #2 • �..• -vl I• • �� ' "�� • WETLAND RESOURCE AREA. PLEASE NOTE THAT 25% SLOPES ARE ALSO TOWN OF BARNSTABLE HYAN N I S PO RT / • /�� OF 8 0l -, WF#9 ` COASTAL BANK. 31 m WF 4. SLOPES GREATER THAN 18X ARE TOWN OF BARNSTABLE COASTAL BANK, IF SEAWARD FACING. MASSAC H U S ETTS of-WF#O >% ` ' (BARNSTABLE COUNTY) WF#11 FX I STI N G CSJ REALTY TRUST CONDITION S #91 OCEAN DRIVE ASSESSORS MAP 266 PARCEL 3 JULY 28. 2003 LIMITS OF TOWN AND STATE COASTAL BANK rn r7 N FEMA - ELEVATION 11.0 0 W 0 N/F o o ANNE A. DOERGE rn DATUM E1.L�>r o #99 OCEAN DRIVE ASSESSORS MAP 266 -10• z PARCEL 4 N 11,796f S.F. OF UPLAND t t M Ui 'ari Ki LEGEND 35,921 t S.F. OF WETLAND 47.717t S.F. TOTAL AREA PREPARED FOR: 50.9 X SPOT ELEVATION C.B. ® CATCH BASIN 0+00 0+50 1+00 Ms. ANNE E. DOERGE DMH ® DRAINAGE MANHOLE MIDDLE FORT ROAD SMH ® SEWER MANHOLE PROFILE A - A MIDDLEBURGH, N.Y. TMH m TELEPHONE MANHOLE 12112 LP LIGHT POLE UPL-*"� UTILITY POLE / LIGHT UPLT:0 UTILITY POLE / LIGHT & TRANSFORMER UPT UTILITY POLE / TRANSFORMER UP UTILITY POLE , V 1 r BSC - W — OVERHEAD ELECTRIC LINE o EHH ELECTRIC HANDHOLE 657 Main Street, unit 6 • GMET GAS METER W.Ymmouth Massachusetts -G— GAS LINE LIMITS OF STATE 02M a GAS GATE K 508 778 8919 m WATER GATE PN I COASTAL BANK FEMA — ELEVATION 11.0 WG ® EX�SNG �pPL 8 Q 2003 The 8SC Group. Inc. -W— WATER LINE OF • TEST PIT EO SCALE: 1" = 20' a WF#1 WETLAND FLAG #1 0 2.5 5 10 rciGs TCB TOWN COASTAL BANK DATUM ELW 0 10 20 40 Fm SCB /// STATE COASTAL BANK -jaw S PROJ. MGR.: C. FIELD N 1A N O a Ui Ni FIELD: D. GAZZOLO / E. KEATING �•g8' CALC./DESIGN: K. HEALY ,�• W 19 ' S 17 0+00 0+50 1+00 DRAWN: K. HEALY CHECK: C. FIELD FILE: 8567-EXC.DWG R R PROFILEU --- LJ DWG. NO: 5460-01 S SHEET 1 OF 1 JOB. NO: 4-8567.00 SEPTIC TANK DETAIL: 1 ,500 GALLON DISTRIBUTION BOX DETAIL: NOT TO SCALE LEACHING TRENCH DETAIL: NOT TO SCALE REVISIONS SOIL TEST PIT DATA: P-10,544 N0. DATE DESCRIPTION NOT TO SCALE NO. OF OUTLETS 5 HIGH GROUNDWATER COMPUTATION FINISHED GRADE 36" MAX .COVER TEST PIT -#1- TEST PIT -#2._ NOTES: 1. SEPTIC TANK SHALL BE STEEL 5. INLET AND OUTLET TEES TO BE CAST IRON. GIRD. EL. 8•6 GIRD. EL. 13.3 BASED ON TP#1 REINFORCED CONCRETE. SCHED. 40 PVC OR CAST-IN-PLACE CONCRETE. FINISHED GRADE 4.2 SEE TP-1 2. SEPTIC TANK TO WITHSTAND H-10 LOADING TEES TO BE CENTERED UNDER MANHOLE COVER. REMOVABLE 2 WALLS LOAM & SEED DISTURBED AREAS EST HIGH GW EST. HIGH GW DEPTH To WATER 6.0 �� �"- NOTES: UNLESS UNDER PAVEMENT, DRIVES OR INDEX WELL MIW-29 TRAVELED WAYS, WHEREIN H-20 LOADING o;.�„+o;,�,,.,i;,� , ,�;,�,;, 1. DIST. BOX TO WITHSTAND H-10 LOADING y, SHALL APPLY. . ._,_,� • �• •..i.c4'�tF 13�VCTI.OQ52' w Ma., ; " .a�� x x WATER LEVEL RANGE ZONE A 2 BAR UNLESS UNDER PAVEMENT DRIVES OR i CAP ENDS 7 "• 20" CURRENT DEPTHOINDEX WELL 8 03 8.1 3. ALL PIPE CONNECTIONS AND CONCRETE TRAVELED WAYS WHEREIN H-20 LOADING 4 PVC ( / CONSTRUCTION SHALL BE WATERTIGHT. 2-24 DIA CONCRETE MANHOLES e+ • e+ e+ •��a • �+ • •a • •e • �� • °tea • �+ • • WATER LEVEL ADJUSTMENT 1.6 W/ METAL HANDLES BROUGHT - 15• °• °�'° o�° q'� ayq� q'�q� • ; 4. FILL ALL UNUSED KNOCKOUTS WITH TO 6" OF FINISH GRADE mot' T SHALL APPLY. b'b ,�°• b� bib b�bb4> b� b4> �r. a°•c�rr " DEPTH TO ADJUSTED HIGH WATER 4.4 " e •+ •+ • • • •e • •• • •+ •+ •�+ • • •� a • • • " MORTAR. TEE TO BE UNDER 6" fi 8 2. PROVIDE INLET TEE OR BAFFLE WHERE ° a GENERAL NOTES: V� EL = 7.2 17 25 12 MIN. 5.5 OUTLETS / T M.H. OPENING SLOPE OF PIPE EXCEEDS 0.08 FT./FT OR LEVEL BOTTOM I. THIS PLAN IS FOR DESIGN AND aa's:Xr y �' q( 3• ��a t1' ' e• ee a •'i'4''' -�- IN PUMPED SYSTEM. 25� CONSTRUCTION OF THE SEWAGE w k� DATE: INDICATES b °�„ L DISPOSAL FACILITY ONLY. 8/22/03 �_ ESTIMATED 2" 3. FIRST TWO FEET OF PIPE OUT OF DIST. RAISE M.H WWG.. 4 BOTTOM ON LEVEL PROFILE " 2. ALL CONSTRUCTION METHODS AND TEST BY: SEASONAL HIGH 10-6 6 MIN. 3 4 TO BOX TO BE LAID LEVEL _ SEWER BRICK e, •, STABLE BASE MATERIALS SHALL CONFORM TO MASS. 32 GROUND WATER & MORTAR 1 1/2 CRUSHED D.E.P TITLE 5 AND LOCAL BOARD 52" EL = 10.6 THE BSC GROUP, INC. 10'-0" " CROSS-SECTION TON 4. ALL PIPE CONNECTIONS AND CONCRETE OF HEALTH REGULATIONS. INDICATES NORMAL WATER LEVEL 12 S E BASE CONSTRUCTION SHALL BE WATERTIGHT. 36 MAX. - 12 MIN. COVER WITNESSED BY: : " 3. ALL PIPES LOCATED UNDER PAVEMENT _V OBSERVED 3 " 5. FILL ALL UNUSED KNOCKOUTS WITH MORTAR. 2% MIN. FINISH GRADE /� 4" MIN. LOAM & SEED OR TRAVELED WAY SHALL BE SCHEDULE " SAM WHITE - GROUND WATER PRECAST SEPTIC TANK a 10 14 f_ / 40 OR EQUAL 66 INLET TEE 5-1 30 1 2 3d 4. THERE ARE NO KNOWN PRIVATE WELLS PERC. RATE: / " _ DATUM LOCATED WITHIN 150 FT. OF THE 72" _Z.-MIN./INCH INDICATES - - 5'-2" PROPOSED LEACHING FACILITY NOR PERC. 15 1/2 MEDIUM SAND MEDIUM SAND SOIL EVALUATOR - - .4'-8z UQU D"DEPTHn+oU a 5-8. 2" MIN. OF 1/8" TO ANY KNOWN WELLS PROPOSED WITHIN 1 OYR 6/8 10YR 6/6 CRAIG FIELD TEST 5-$ N a Box A4' � /PRECAST DIST. VERTICAL DATUM: N.G.V.D. 19291 2 WASHED STONE 150 OF ANY KNOWN LEACHING FACILITY. SOIL CLASS: :x. ax^ INDICATES 41-1 - 11 / / 5. WITHIN LIMIT. S EXCAVATION OTHER� - 12O" - " a` yf'' :��-: a �' r'�•',�,,�,:. :e WASHED STONE (OOFlN S) ALL TOPSOIL. SUBSOIL AN EL = ( 1.4) EL - 2.80 126 1 '" UNSUITABLE •a BENCH MARK SET: HYDRANT TAG BOLT E IMPERVIOUS MATERIAL MATERIAL b BOTTOM ON LEVEL-STABLE'BASE b 3• I- •..� -� 6. REPLACE WITH CLEAN WASHED SAND PLAN VIEW ,W" �, d /.RU 7 1/2 ELEVATION 13.64 CROSS-SECTION OR OTHER CLEAN GRANULAR SOILS L.T.A.R. s MIN. 3/4 To 0.74 G.P.D./SQ.FT. 1 1/2" STONE CROSS-SECTION VIEW PLAN VIEW CONFORMING TO THE FOLLOWING SIEVE ANALYSIS: I 10% (MAX) BY WT. SHALL PROFILE: NOT TO SCALE ; -'. _ , - LEGEND PASS No. 50 SIEVE A FIRST PIPE LENGTH / / I ' • - \ I G DESIGN CRITERIA: PASS°No.No. 100 SIEVE SHALL TOP FOUNDATION CONCRETE COVERS TO WITHIN TO BE SET LEVEL / / - i G ELF 15.0 6" OF FINISHED GRADE. FOR MIN. 2' 50.9 X SPOT ELEVATION <5 R OF No. 4 SIEVE SHALL FINISH GRADE I _ G - - = C.B. ® CATCH BASIN DESIGN FLOWN PASS No. 200 �15.1'-14.5' - : UNIFORMITY COEFFICIENT O No. 4 ti 4" PVC SCH 80 - LP LIGHT POLE 2 BEDROOMS AT110G.P.B./D 220 G.P.D. SIEVE </-6.0 " z . 4 PV '.I'• - 7. EXISTING UTILITIES WHERE SHOWN SCH " 2"-1 8"-3 8' DOUBLE WASHED STONE I - - - - :'_•• - - - --- .- --•-•- -. - - - UP UTILITY POLE IN THE DRAWINGS ARE APPROXIMATE. W .1• _ _ -0 W- OVER. ELECTRIC LINE THE CONTRACTOR SHALL BE RESPON- SIBLE 1/2" DOUBLE WASHED STONE V / > 1 . - : -1 -� ' - - - : - - -G- GAS LINE REQUIRED SEPTIC TANK: FOR PROPERLY LOCATING AND =B \I-D - N S 5 / I - • • - 1 . _' - : I CEAN DRIVE - - - - -W- WATER LINE COORDINATING THE PROPOSED CON- 0220 X 200% 440 GAL. - I - R STRUCTION ACTIVITY WITH DIG-SAFE I=C 7 I-G > O - PRIVATE ROAD) #1 OWN COASTAL BA 5 OUTLET I F �""�."�`of+W-- I : ' : ' ' :I ( . . •_ • ' :\' - TCB SEPTIC TANK PROVIDED: _ 500 GAL. CAND THE OMPANY AND MABNTANIING THE DIST. BOX s a J ��. . OHW--�� I • - - - - - _ SEPTIC TANK BOTTOM EL= N. /'� OHW�I---_..._�W: . 'I : .• - /. i TCB /.�6 SCB STATE COASTAL BANK EXISTING UTILITY SYSTEM IN SERVICE. s I . : _ _1 -/ - . ONW `� �i�i'PROPOSED ;,,.,, / �� SIZE OF LEACHING DIG-SAFE SHALL NOTIFIED PER HI WATER EL K o 3 I �• W r ,19i'ry;iiMr ,;,;,,M„ / MASSACHUSETTS BENCHMARK I I : - : oyyt,•S„_,__,.,`UMITS OF C NG FACILITY REQUIRED: THE STATE OF • HYDRANT TAG-BOLT I ,���' EXCAVASI81�_ " " r� � // / DESIGN PERC. RATE: <2 MIN. INCH STATUTE CHAPTER 82, SEC33. THE 409 • I - 1 cr' S OTES ,� r / - / AT TEL. 1-$$$-344-7233. THE INVERT ELEVATIONS: ELEVATION 13.64 NG - - 74 AND 6 LONG TERM APPL. RATE 0. G.P.D/S.F. ENGINEER DOES NOT GUARANTEE " "" "' `�^ / THEIR ACCURACY OR THAT ALL TOP OF FOUNDATION 16.0 A \� I ^ ''� 7 � aye � 4 � �■��■��■ / UTILITIES AND SUBSURFACE STRUCTURES w ' �* wi� y "�� � a ' � / 220 GPD + 0.74 GPD/SF = 297 S.F. ARE SHOWN. LOCATIONS AND tia,�•^ 4" INVERT AT BUILDING 13.67 B �I �: - �r o 1 I N 845450 E 71.7 �: ELEVATIONS OF UNDERGROUND UTILITIES 4" INVERT AT SEPTIC TANK IN 13.47 C yI 1 :V V. �4 / CONTRACTOR SHALLE, ( ) I o 1 0 -L r SIZE OF LEACHING FACILITY PROVIDED: TAKEN FROM RECORD PLANS. THE " 1 - _ �.' VERIFY NVERTS OF UTILITIES 4 INVERT AT SEPTIC TANK (OUT) 13.22 D II - - _ CN m 1 _ ,0 - ROPOs�O / - � ,,, ,. "C" .� LOCATION STRUCTURES AS REQUIRED PRIOR N 1lER MIr^'";rya'.. y^,,pa«.• Q{`�E WETLAND AND I ^5� - � 13.17 E A WT' � w �--•'--� --- r �'.aa .�"'„ I �^ � '" �„" :.c,r , ' Z ��- TO THE START OF CONSTRUCTION. 4 INVERT AT DIST. BOX IN �---- C ) 100R - _ -_ ,. ' BUFFER I BUt• r ,. ^y;,^I ,'. '... : rr' r;,;'; arM- .^..;:. R •- , , , / 1grl�TE9 �� ^,I. 1 0 ,;r 9=e - WID P . - " •-•�E � "2 2 DEEP, 25 LONG THE 1 F o ,, : :, I .. .� .,.� �r.,.:. 0 4 INVERT AT DIST. BOX (OUT) 1 rn _ ox ROP 15 ,1. �, pra , ,� p 2 1• t� -NCH I • . I p D ^' .�.,•�"� '�•���'r»�;�;;,^� .00 '. NOT DE ►� 1 � 1 �,,� > _ / AL S. ;,Y�'� . "�� "'�•'� 'x •�,;•��^ '. � '� �7�•p,�9 , . , , THE USE OF A GARBAGE GRINDER. 8. INVERTS AT LEACHING FACILITY: y' - _xr � _. ►'� E - - 1 / . • �n / TP 2 _ . s _ _ ZOr1 11 O 2XC2-+2 +2 )x.25 3OO S•.F. A GARBAGE GRINDER IS NOT o pPt0PO5ED / r * T I,"�. RECOMMENDED DUE TO RECOGNIZED 4 INVERT AT BEGINNING j - PROPOSED I / _ _ - �. _ _ OF LEACHING AREA WATER SERVICE . - / z 1 DRIVEWAY i r _:5 �. x' rz G k � � .., _10- ADVERSE IMPACTS T TH OF LEACHING TRENCH 12.95 G BREAKOUT 13.5 / -� \ , � �� 300 x 0.74 GPD / SF = 222 GPD FACILITY IMPA O E LEACHING 4 INVERT AT END 1 / _ - 2 _ �a EXISTING PROVIDED OF LEACHING TRENCH 12.82 H 1 ' ' . _ \ G ,m �" -_ DWELLING /6 �/ AREA OF - � ; y rtir r � way r« a .- / � � " p*'�'�.�r' "`�"'r'""'.�w,'.�u:!r ^�i '� q a^a a"� /+a,•..�� ,,ice" r�"•,�.i� �,r• � , ELEVATION AT BOTTOM \ � � �� ROAD TAKING � �... �•.•� ;:;, �,�� �' »,�; ��� k�"�a',' �; ,�� .�.. ;� ;:�", '�' 10.82 J \ �j 1 379t S.F. c,C� r a�a, �r � � -• ,...,; •► a cFa a+"rr ,xa.: k �a r , x •rwM 10.4 OF LEACHING TRENCH ; / `- .. ?M. _ $- TI GROUNDWATER _ i 14L _ - 5.0 �� a1,��Ira ' F a �� '' f a ES MATED G 0 / R-30.00 w t ^w � I \ a• N 4aMIN ��� far x a � i4 a Mti� +y ELEVATION 4.2 K _ ,� u �� ', - / L=47.12 LOCUS INFORMATION �w"^t.�^H•�aar ar:�;..a' M •r '�•• Via,.a.ry;,Yt�'ray. r � ,�� r�;�.•.. �:,;� .�>�-s;�:•,w',an'" ' �.r'�,..�;aw. w*r'�' _"' �r a •:,,y� ,.:;c ''!fix- r:,r' 'C ;•r„,,,Iq'M^" . �:sz•=-•,..•t ?•,•,....,:.... i r- a'r a.. �.•,a' �d: ,� -.a: ,y.. ..M' '^M� y "' ';y..�i..+.._:..,:"^..�'•' �,..�.m*„,. -.^, I ;,;, , ,aaaa.�a:a^ ^'�,.r.a ^c a x a-c .•� ter- �" ^;�'•�'- s:: :...�r7�" - • '";� ...„i?,. ,aa...w...s.aa,. _ a^,':?.. .�r��•.. .,.,.r:a,;^^'..„. ••I' ^rr:• ,., r ..,i �",�1T... �'aMw��ac..,�wr "^- ^raw" �M^s^, ^>,c. - n���• „�, / o VARIANCES REQUESTED: _: T NG w BSCGROupQ �� -•�•' - ��� � CURRENT OWNER: Ms. ANNA =;�` ;, x� ,�,;,,,x•,•�,-....,y.; ��.=...�'..:, �. •,.._.. _ M:x,�•a;',' •0� // 0' �" E DOERGE 'a" �,• +��•' r�^t,Fm„ x��. 7 „•••,,,�. .••• ,�•r •,.,�,��..,•�,,.r'„a5• r.,, twa �� / �� ��r �. a w 3� BREAKOUT, Nx MASSACHUSETTS TITLE 5: 310-15.211 ems ' x - M� ESL 8.2 6 TITLE REFERENCE DEED BOOK 304 PAGE 343 * {� ,,� 657 Main Street, ssa 28) Unit w a r .�� � � �x - 0 / � ' 10.7 � 1' W.Yarmouth Massachusetts 2.0 .� PLAN REFERENCE: 34/23 & 22/113 02673 PROPOSED S.A.S. TO EXISTING COASTAL BANK (50' REQUIRED) 9.0 50$ 778 8919 0' PROVIDED. A VARIANCE OF 50' IS REQUESTED. . ' ,i.' , �I� � - - 9. 56.0 .0 ASSESSORS MAP: 266 1 F FEA4 L �.a ° �� I ,. _ /�-." 6 PARCEL: 4 PROPOSED S.A.S. AREA TO EXISTING STREET LINE 10' REQUIRED S / EL 11•0 , . PROJECT TITLE: / /i ZONING DISTRICT- RB 2' PROVIDED. A VARIANCE OF 8' IS REQUESTED. REALTY TRbT ____----9--__•_ • . -�' .• ��M', SETBACKS: FRONT 20' 50 A . #91 J' / a WETLAND ' PROPOSED RESERVE AREA TO EXISTING STREET LINE (10 REQUIRED) OCEAN DRIVEy : PROPOSED �"� �gU ER REAR 10' SEWAGE DISPOSAL 4' PROVIDED. A VARIANCE OF 6' IS REQUESTED. ASSESSORS • / - i- - MAP 266 _ ' FM; r a:..; 'ram%'"' HAYBALE / / 8, ��/ SILT FENCE LINE MINIMUM LOT SIZE: 43.560 S.F. SYSTEM DESIGN PROPOSED RESERVE TO EXISTING COASTAL BANK (50' REQUIRED) PARCEL 3 - ` - -� -'' / 1, EXIST. TOTAL LOT AREA: 47,717f S.F. 1' PROVIDED. A VARIANCE OF 49' IS REQUESTED. , NITROGEN SENSITIVE PROPOSED SEPTIC TANK TO EXISTING COASTAL BANK (25' REQUIRED) --�. - / , ZONE: NOT A ZONE II A VARIANCE OF 18 IS REQUESTED. _- - / - 1�/ 99.0 "/ `� -� #99 OCEAN DRIVE 7 PROVIDED. Q _. � FEMA FLOOD 1/ N/F o, o s ZONE DISTRICT: C. PROPOSED S.A.S. TO PROPOSED FULL FOUNDATION (20' REQUIRED) _ - �' 1 B, & A9 - EL 11 / _ 57•0 ' ANNA E. DOERGE cn W. H YAN N I P 17' PROVIDED. A VARIANCE OF 3' IS REQUESTED. /r #99 OCEAN DRIVE v co OVERLAY DISTRICT: AP S ORT ASSESSORS PARCE MAP 266 �z � B A R N S TA B LE (A �^ N/F LOCUS PLAN: NO SCALE Lv 35,921t S.F.• OF WETLAND rn JBERR TRUSTEES MASSACHUSETTS 0. / LAND SUBJECT TO 47 717f S.F. TOTAL AREA I D \ TITLE V: SECTION 15.203: / ''� COASTAL STORM FLOWAGE r_ v, #111 OCEAN DRIVE ASSESSORS MAP 266 DESIGN FLOW OF 220 GPD REQUESTED IN LIEU OF THE MINIMUM 330 GPD 5/ _ __ z O1- PARCEL 5 co REQUIRED. A TWO BEDROOM DEED RESTRICTION IS TO BE RECORDED. �` Sq�F __ ,QD PREPARED FOR: Ms. ANNE E. DOERGE EXISTING WF#7 MIDDLE FORT ROAD Q TOWN OF BARNSTABLE BOARD OF HEALTH: DWELLING �A� WF#4 WF#5 WF#6 N -9LTyi� WF#3 , _� , __.. • _ �, „�. � Fti p MIDDLEBURGH, N.Y. o PROPOSED RESERVE AREA TO EXISTING WETLANDS (100' REQUIRED) �'--- EDGE OF WETLANDS WF#10 �� 12112 97 PROVIDED. A VARIANCE OF 3 IS REQUESTED. 4.6 • / • / SAI.TMARSH \ • ...� � ��� I • /GE OF 8� � . 1 0 • � -•" ' � ' . CENTERVILLE AVE. �G LOCUS s PROPOSED S.A.S. AREA TO EXISTING WETLANDS (100 REQUIRED) WF#2 / Ea 186't TO t° i WF 9 MATCH B � DATE: 1/5/04 tZ 99' PROVIDED. A VARIANCE OF 1' IS REQUESTED. �' �� • EXISTING # /f � COMP. DESIGN: K. HEALY TIDAL BANK 00 / / �� CHECK: D. CRISPIN g PROPOSED S.A.S. AREA TO COASTAL BANK (100' REQUIRED) , Ii ' VIEW W#8 0 / L �� a 0' PROVIDED. A VARIANCE OF 100' IS REQUESTED. SEE DEP FILE #SE 3-4181 PLAN V ( E V V �/ v DRAWN: P. HAGIST # FOR ANORAD APPROVAL. MATCH B CRAIGVILLE BEACH FIELD: D. GAZZOLO / E. KEATING SCALE' 1' = 10 FEET 0001 .101• NANTUCKET SOUND FILE NO. 8567-SP3.DWG m DWG NO. 5460-02 -" -_ -- 0 5 10 20 FT. SHEET 1 OF 1 JOB N0. 4-8567.00 _._-_.--__. ._-...- -,..tia...., c..." _ ^',e.ass1 :.3 .td rr: a...ar6„�..,.,Yr -, .smt enY*feix. ..Y6+nas:. _«...•: c •ij`sYWS.tiYi6iitl3.bi64iM1tiei6Wlf:i �1it.:: • SOIL TEST PIT DATA: P-10,544 SEPTIC TANK DETAIL: 1 ,500 GALLON DISTRIBUTION BOX DETAIL: NOT TO SCALE LEACHING TRENCH DETAIL: NOT TO SCALE REVISIONS NO. DATE DESCRIPTION NOT TO SCALE N0. OF OUTLETS 5 TEST PIT -#1 TEST PIT #2- HIGH GROUNDWATER COMPUTATION NOTES: 1. SEPTIC TANK SHALL BE STEEL 5. INLET AND OUTLET TEES TO BE CAST IRON, FINISHED GRADE 36" MAX .COVER GRD. EL. 8.6 GRD. EL. 13.3 (BASED ON TP#1 REINFORCED CONCRETE. SCHED. 40 PVC OR CAST-IN-PLACE CONCRETE. 4.2 SEE TP-1 2. SEPTIC TANK TO WITHSTAND H-10 LOADING TEES TO BE CENTERED UNDER MANHOLE COVER. REMOVABLE 2" WALLS FINISHED GRADE EST. HIGH GW EST HIGH GW. DEPTH TO WATER 6.0 COVER NOTES: LOAM do SEED DISTURBED AREAS UNLESS UNDER PAVEMENT, DRIVES OR A "�1-L INDEX WELL MIW-29 TRAVELED WAYS, WHEREIN H-20 LOADING � iwt)AMY AND: avc ex t. H- G SHALL APPLY. +•a:•v..+.v:•v....is•v.:•' 2" DIST BOX TO WITHSTAND 10 LOADING 2r WATER LEVEL RANGE ZONE A - UNLESS UNDER PAVEMENT DRIVES OR iCAP ENDS 7r 20" CURRENT DEPTNOINDIX WELL 8 03 3. ALL PIPE CONNECTIONS AND CONCRETE " T 4" PVC ' '-'-� ' =' '�4.�F g�/G==•00' •�-•-• / ) �'�-- CONSTRUCTION SHALL BE WATERTIGHT. 2-24 DIA CONCRETE MANHOLES TRAVELED WAYS WHEREIN H-20 LOADING o e o e+ o e+ e e e e o+ o o+ o hPa9 °b�4 �a a a e o a a �C e o e o e WATER LEVEL ADJUSTMENT 1.6 _ W/ METAL HANDLES BROUGHT t:p 15" SHALL APPLY. a• mob" °° b°k'�a° b� b� b�:'h�b :' ` :1fb,�9 " !! ,DAM NQ L0�4A DEPTH TO ADJUSTED HIGH WATER 4.4 4. FILL ALL UNUSED KNOCKOUTS WITH TO 6 OF FINISH GRADE -T 24' crtvE ern, 10YI7 5 �� „ - MORTAR. 8r � e♦ eoe♦ o• eeer e • a orte eeeeorore or oreoo 0 17" 25 TEE TO BE UNDER 12" MIN. 6" 5,5' OUTLETS 2• PROVIDE INLET TEE OR BAFFLE WHERE a a a gP aM°a GENERAL NOTES: EL = 7.2 M.H. OPENING v SLOPE OF PIPE EXCEEDS 0.08 FT./FT OR (/ �C e o e e ' o o e 'j- IN PUMPED SYSTEM. ,_ LEVEL BOTTOM 1. THIS PLAN IS FOR DESIGN AND 8 DATE: INDICATES ! 3 �b�ab�ab ab� 'a��a L- " 25 CONSTRUCTION OF THE SEWAGE L. MAM'Y S ND 8/22/03 v_ ESTIMATED 2 3. FIRST TWO FEET OF PIPE OUT OF DIST. DISPOSAL FACILITY ONLY. SEASONAL HIGH 10'-6" RAISE M.H W� 4 BOTTOM ON LEVEL " TEST BY: SEWER BRICK .. o_ - • - STABLE BASE 6 MIN. 3/4 TO BOX TO BE LAID LEVEL. PROFILE 2. ALL CONSTRUCTION METHODS AND 32" GROUND WATER r " 1 1/2" CRUSHED MATERIALS SHALL CONFORM TO MASS. ., do MORTAR 52" EL = 10.6 THE BSC GROUP, INC. 10-0 12• CROSS-SECTION STONE BASE 4. ALL PIPE CONNECTIONS AND CONCRETE r r D.E.P TITLE 5 AND LOCAL BOARD INDICATES NORMAL WATER LEVEL CONSTRUCTION SHALL BE WATERTIGHT. 36 MAX. - 12 MIN. COVER OF HEALTH REGULATIONS. WITNESSED BY: OBSERVED 3" 5. FILL ALL UNUSED KNOCKOUTS WITH MORTAR. /2% MIN. FINISH GRADE 4" MIN. LOAM do SEED 3. ALL PIPES LOCATED UNDER PAVEMENT 66" SAM WHITE = GROUND WATER PRECAST SEPTIC TANK �� 10" 14" 4OR 0 TRAVELED WAY SHALL BE SCHEDULE 72" PERC. RATE: - _ c INLET TEE ? 5-1" 30 1/2" W MAXIMUM 4. THERE ARE NO KNOWN PRIVATE WELLS _ " " DATUM: 15' MIN LOCATED WITHIN 150 FT. OF THE - MIN./INCH INDICATES 5'-2" 4_6 e r 5_8 1s 1 2 C PERC. _ MEDIUM SAND MEDIUM SAND SOIL EVALUATOR TEST 5'-8" 9 .-- LIQUID DEPTH (GAS C NI / r w ���� �- PROPOSED LEACHING FACILITY NOR F 2 MIN. OF 1 8 TO ANY KNOWN WELLS PROPOSED WITHIN 1 OYR 6/8 10YR 6/6 CRAIG FIELD N r PRE BOX DIST. VERTICAL DATUM: N.G.V.D. 1929 24' o e e e / 1/2" WASHED STONE 150' OF ANY KNOWN LEACHING FACILITY. SOIL CLASS: INDICATES 5. WITHIN LIMIT OF EXCAVATION REMOVE •�e4=::'•e .=:a: �e-: : :'•"Q:�: ��: ::e 3/4" TO 1-1/2" DOUBLE ALL TOPSOIL, SUBSOIL AND OTHER EL = (-1.4) 120" EL = 2.80 126" 1 UNSUITABLE �a BOTTOM ON LEVEL STABLE BASE ba 3» BENCH MARK SET: HYDRANT TAG BOLT 2, WASHED STONE (NO FINES) IMPERVIOUS MATERIAL. MATERIAL PLAN VIEW " " �" �, � �, 71/2 ELEVATION 13.64 f'- 6. REPLACE WITH CLEAN WASHED SAND L.T.A.R. 6 MIN. " S TO CROSS-SECTION VIEW PLAN VIEW CROSS-SECTION OR OTHER CLEAN GRANULAR SOILS 0•74 G.P.D./SQ.FT. 1 1/2" STONE CONFORMING TO THE FOLLOWING i SIEVE ANALYSIS: PROFILE: NOT TO SCALE / / - I 10% (MAX) BY WT. SHALL / / ( - LEGEND PASS No. 50 SIEVE C' <10 % OF No. 4 SIEVE. SHALL EL.=A DESIGN ' PASS No. 100 TOP FOUNDATION FIRST PIPE LENGTH / / I . . . . - - - \ \ CONCRETE COVERS TO WITHIN71 TO BE SET LEVEL J / \ I G CRITERIA. \ 50.9 X SPOT ELEVATION <5 x OF No. 4 SIEVE SHALL EL.=15.0 6" OF FINISHED GRADE. FOR MIN. 2' / \ \ FINISH GRADE 1 _ _ tr, : : C.B. ® CATCH BASIN DESIGN FLOW: PASS No.,200 EL.-15.1'-14.5' J / - - � \ I � LP LIGHT POLE UNIFORMITY COEFFICIENT O No. 4 4" PVC SCH 80 2 BEDROOMS AT 110 G.P.B./D 220 G.P.D. SIEVE </=6.0 - - - - - - . - . � � I . . . . . . --•,1-_ . . . - - - - UP UTILITY POLE?' SCHP40 4" 4 2'-1 8"-3 8" DOUBLE WASHED STONE / \ 7. EXISTING UTILITIES WHERE SHOWN / I 1- : RIV 0 WOVER. ELECTRIC LINE IN THE DRAWINGS ARE APPROXIMATE. /41/2" DOUBLE WASHED STONE / > E : : -G- GAS LINE THE CONTRACTOR SHALL BE RESPON- REQUIRED SEPTIC TANK: SIBLE FOR PROPERLY LOCATING AND I=D SEEN S 5 ! . I EAN , - - -W- WATER LINE =C I=E I�G > I=H t I 0 p,VEL 220 X 200% 440 GAL. s OUTLET 1=F 0 «��rWr- _ 0 I : I I (PRIVATE ROAD) ` GR WF 1 WETLAND FLAG 1 - COORDINATING THE PROPOSED CON- # # STRUCTION ACTIVITY WITH DIG-SAFE z CL OHW-' TCB TOWN COASTAL BANK SEPTIC TANK PROVIDED: 500 GAL. AND THE APPLICABLE UTILITY DIST. BOX �. . OHW COMPANY AND MAINTAINING THE SEPTIC TANK io BOTTOM EL.=J \ I �"�' OHW--�-� I "" - � / , . . / ,�� --•-._ TC �'► tiro SCB /,// STATE COASTAL BANK I \ ( OINI--�--_.� /� E / EXISTING UTILITY SYSTEM IN SERVICE. HIGH WATER EL.=K I o 13_/ ( ( _ I W-��_ ��� '"R'" �.. // 5/ SIZE OF LEACHING FACILITY REQUIRED: THE STATE OF MA DIG-SAFE SHALL E NOTIFIED PER BENCHMARK 9 �ED/` '� I HYDRANT TAG-BOLT ( ( //�" _ - STATUTE CHAPTER 82, SECTION 409 / LIMI OF��'- oHW / DESIGN PERC. RATE: <2 MIN. INCH I I "' / / AT TEL 1-888-344-7233. THE INVERT ELEVATIONS. ELEVATION 13.64 NG �X2A'GAl10N ENGINEER DOES NOT GUARANTEE SEE NOTES LONG TERM APPL. RATE 0,74 G.P.D/S.F. TOP OF FOUNDATION 16.0 A I \ I 5 AN 6 THEIR ACCURACY OR THAT ALL Q • ' , ■�t�i4n�n�u■ UTILITIES AND SUBSURFACE STRUCTURES 220 GPD 0,74 GPD/SF = 297 S.F. ARE SHOWN. LOCATIONS AND o \ \ I 84'54'50" E 71. 2 + 4 INVERT AT BUILDING 13.67 B �. . . o N ( „' �. ; 4" INVERT AT SEPTIC TANK (IN) 13.47 C Of I 1 ' WETLAND " ETAKEN FROM RECORD LEVATIONS of UNDERGROUND ununEs �. (� .4 /. a0 U 00 .. " •� / \ \ - " " "'+e / CONTRACTOR SHALL VERIFY SSI EE 4 INVERT AT SEPTIC TANK (OUT) 13.22 D ( N m BUFFER _ . _ _ '�` --I ' *""" - SIZE OF LEACHING FACILITY PROVIDED. y - --- -- 11.3 ,,"+�+^ " o -' LOCATION AND INVERTS OF UTILITIES 1 .17 ( /• o -4- �\ w B. 20.7 15.1Cam .WETLAND AND STRUCTURES AS REQUIRED PRIOR 4 INVERT AT DIST. BOX (IN) 3 E BUFFER TO THE START OF CONSTRUCTION. 4" INVERT AT DIST. BOX (OUT) 13.00 F 4.9 2-2' WIDE, 2' DEEP, 25' LONG TRENCH 1 OSED RESER PROP 15 _ Z� INVERTS AT LEACHING FACILITY: 11I / / / :'> 0.0 ROPosED pR0P6.5' x,2s' Tp_2 GAL S. " GNED FOR ��1��9 - 8 THE USE OF A GARBAGE. THIS SYSTEM IS NOT IGRNDER I 4" INVERT AT BEGINNING PROPOSED !� �� o DRIVEWAY - / r , p ZE`EV 11 0 2xC2 +2 +2 )x25 - 300 F. A GARBAGE GRINDER IS NOT WATER _l - / I J : OF LEACHING AREA SERVICE Z �: -- i,... - - - - ._ i0 ADVERSE RECOMMENDED DUE TT 12.95 G BREAKOUT 13.5 � ���°°• "'° � - OF LEACHING TRENCH . - - k _ - _ . . . . ... �.: , ,,.x • ., . ..,.:.;;;.:•', .,�:.;;:..�.. n � r� � / ..,.... ,,•.• �0© .� ,.;rG' _ IMPACTS 0 THECLEACH LEACHING - P FACILITY. 2 G D n PROVIDED 4 INVERT AT EN_ 1 . . . . . . . �...,: ... ;: .: ,,.... EXISTING 12.82 H 1I _ � - - - �0 I OF LEACHING TRENCH L- - AREA OF DWELLING ELEVATION AT BOTTOM \ / ROAD TAKING r `�• � r `. OF LEACHING TRENCH 10.82 J \ 1,379t S.F. SGB M.»- 10.4 ESTIMATED GROUNDWATER \ V R=30.00' " *� "' • \ �� -7 w ti mrw / ELEVATION 4.2 K \- / L=47.12' ;;.:.... o -� ' __ _ _ LOCUS INFORMATION VARIANCESREQUESTED: -E LIES ED. �:' .. �'" I / * art. * LN G * / TI 0 N CURR " OU ENT OWNER: Ms. ANN BSC F A GROup MASSACHUSETTS TITLE 5: 310 15.211 "" µ "�► L w� gp, S `b• �. �, E. DOERGE ".. '""" w '� BREAKOUT I N� 2 PROPOSED S.A.S. TO EXISTING COASTAL BANK 50' REQUIRED o. FSL. 8.2 1 •g o TITLE REFERENCE: DEED BOOK 3041, PAGE 343 657 Main Street, (RT. 28) Unit6 ( ) ............. `�`""w""'" `""""""""""�" -r "' / W.Yarmouth Massachusetts 2' PROVIDED. A VARIANCE OF 48' IS REQUESTED. ';� 10.0 pE�FC �201 PLAN REFERENCE: 34 3 & 2 13 02673 PROPOSED S.A.S. AREA TO EXISTING STREET LINE 10' REQUIRED) A / 26 5087788919 ( mow ��. / �. 6.0 ASSESSORS MAP: 266 8' PROVIDED. A VARIANCE OF 2' IS REQUESTED. \`N F FEM LINE EIEV ��' _ / PARCEL: 4 PROJECT TITLE: cs' / i 0 , PROPOSED RESERVE TO EXISTING COASTAL BANK (50' REQUIRED) REALTY TRb'ST _ _ _ _- -_9_- --�' - �"" // ZONING DISTRICT: RB / SETBACKS: FR NT 20' 4 PROVIDED. A VARIANCE OF 46 IS REQUESTED. #91 �-' - W . 1 50' WETLAND , OCEAN DRIVE . /f� *� PROPOSED �-- "'_• SID 10, SEWAGE D POSAL R :,: BUFFE REA 10 PROPOSED SEPTIC TANK TO EXISTING COASTAL BANK (25 REQUIRED) ASSESSORS / / - _ _ HAYBALEMAP / I 2' PROVIDED. A VARIANCE OF 23' IS REQUESTED. PARCEL 6 3 '�---_8 �y� / / / '' / 591 SILT FENCE LINE MINIMUM LOT SIZE: 43,56 S.F. SYSTE DESIGN �OF EXIST. TOTAL LOT AREA: 47 717f S.F. DAVID J. NITROGEN SENSITIVE CRISPIN H ZONE: NOT A ZON II I __ / 1 93.0 /� �� cn CIVIL TITLE V: SECTION 15.203: _ ` ` f_ N/F o s No.32112 FEMA ZONE DISTRICT. c, B, & A9 #99 OCEAN DRIVE •._ - L- 57.0 � '�sl� DESIGN FLOW OF 220 GPD REQUESTED IN LIEU OF THE MINIMUM 330 GPD l , / / _1_ - / ANNA E. DOERGE cn REQUIRED. A TWO BEDROOM DEED RESTRICTION IS TO BE RECORDED. l �` / #99 OCEAN DRIVE g O0 OVERLAY DISTRICT: AP W. HYANNISPORT N - - - - - - ^ / 86.7 ASSESSORS MAP 266 I o �� �+ PARCEL 4 N F \ r BARNSTABLE 11,796t S.F. OF UPLAND � m JOHN & MARGARET /N' LOCUS PLAN. N❑ SCALE 35,921f S.F. OF WETLAND CD BERRY, TRUSTEES ASSACHUSETTS a / LAND SUBJECT TO I > ` 47,717t S.F. TOTAL AREA n #111 OCEAN DRIVE i COASTAL STORM FLOWAGE ASSESSORS MAP 266 o TOWN OF BARNSTABLE BOARD OF HEALTH: / - °' PARCEL 5 PROPOSED RESERVE AREA TO EXISTING WETLANDS (100' REQUIRED) I �-5// _ _ _ _ _ __ _ / / / z CIOD m 86' PROVIDED. A VARIANCE OF 14' IS REQUESTED. PROPOSED S.A.S. AREA TO EXISTING WETLANDS (100' REQUIRED) PREPARED FOR: 93' PROVIDED. A VARIANCE OF 7' IS REQUESTED. EXISTING Ms. ANNE E. DOERGE WF#7 PROPOSED S.A.S. AREA TO COASTAL BANK (100' REQUIRED) DWELLING I �, 4•'.�'`' WF 3 wF#4 WF#5 WF#6 N � T MIDDLE FORT ROAD _ �� 4 PROVIDED. A VARIANCE OF 96 IS REQUESTED. / - - - # • •_ , _r . • - . _ . Fti�AO MIDDLEBURGH, N.Y. / EDGE OF WETLANDS WF#10 �� LF 12112 g 4.6 /�// • / vw / SALTMARSH \ O I F 8 �oF N . ...". �'�' GE 0 .+ �' 1 1 0 �s� CENTERVILLE AVE. �� LOCUS DATE: 11 14/03 WF#2 / 186 f TO CRAIG A. cn. WF#9 MATCH B • � \ EXISTING c4 FIELD u� /0 � �� COMP. DES N: K. HEALY TIDAL BANK No.38039 No No / / J� o L / P CHECK: D. C SPIN TOWN OF BARNSTABLE CONSERVATION COMMISSION _ SEE DEP FILE #SE 3-4181 PLAN VIEW � WF#8 �`"/ �� DRAWN: P. HAG T # FOR ANORAD APPROVAL. n MATCH B CRAIGV CH FIELD: D. GAZZOLO E. KEATING TO ALLOW A BUILDING IN A COASTAL BANK SCALE: 1' = 10 FEET y"' ' �' ,' 03 NANTUCKET SOUND FILE NO. 8567-SP.DW TO ALLOW A BUILDING WITHIN 50 OF A COASTAL BANK. ►� r DWG NO. 5460-02 0 5 10 20 FT. JOB NO. 4-8567.00 SHEET 1 OF 1 ill . i I . f