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HomeMy WebLinkAbout0040 ORCHARD ROAD rM ,R Town of Barnstable Legal Department 36T Main Street, Hyannis,.MA 02601 508-862-4620 Fax 508-862-4724 ROUTING SLIP DATE: December 20, 2007 09 TO: Zoning Board of Appeals FROM: RUTH J. WEIL,Town Attorney X T. DAVID HOUGHTON, 1st Assistant Town Attorney CHARLES S. McLAUGHLIN, Jr., Assistant Town Attorney CLAIRE GRIFFEN, Legal Assistant PAM GORDON, Legal Clerk RE: Wood-Horgan OUR FILE REF NO: 2005-0204 Enclosed please find a copy of the Land Court Decision affirming the ZBA and Building Commissioner's decision that the Wood/Horgan lot (Orchard Road) is not buildable. Thank you. 20050204ZBAroute.doc COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT BARNSTABLE, ss. MISCELLANEOUS CASE NO. 313538 (LJL) DANIEL C. WOOD and DAVID SCOTT ) HORGAN, ) Plaintiffs, �<; il E V. D EC i 7 2007 lit RON S. JANSSON,RANDOLPH CHILDS, ) GAIL NIGHTINGALE, JAMES IG4`liv ;,Il..hill.; j HATFIELD,,and JEREMY GILMORE, as ) q <'+"f;u OF f:"'sTAK they are members of the TOWN OF ) BARNSTABLE ZONING BOARD OF ) APPEALS, and the TOWN OF ) BARNSTABLE, ) Defendants. ) DECISION On September 20, 2005, Daniel C. Wood (Wood). and David Scott Horgan (David) (collectively, plaintiffs) filed a complaint against the members of the Barnstable Zoning Board of Appeals(ZBA)and the Town of Barnstable(Barnstable)(collectively,defendants).' The complaint contains two counts: Count I,brought pursuant to G. L. c.40A,§ 17,appeals a decision of the ZBA upholding the action of the Barnstable Building Commissioner(Commissioner)denying a building permit application filed by Wood; and Count II seeks a determination under.G.L. C. 240, § 14A,as to the applicability of the current Section 4-4 of the Barnstable Zoning Ordinance to a vacant parcel . 'Members of the Horgan family are identified herein by their first names. s , r , of land located at 40 Orchard Road in Centerville(locus). A trial was held in Boston on June 8, 2007. A stenographer recorded and transcribed the proceedings. As a result of prior discussions,the parties called no witnesses but introduced twenty- seven exhibits and one chalk.2 With leave of court, plaintiffs and defendants submitted post-trial filings on August 28 and August 30, 2007, respectively. A review of the record revealed that a number of clarifications and corrections were required. After receiving a letter from a court clerk, the parties filed on October 5, 2007, a stipulation, Amended Agreed Statement of Admitted Evidence,and Exhibits 27A through Exhibit 27F.3 Noting the omission of two exhibits from this filing,the clerk sent a second letter to the parties. In response, the parties submitted exhibits 27B and 27D on December 3,2007. The supplemental submissions of October 5 and December 3,2007, are hereby made part of the record. All exhibits and the chalk are hereby incorporated into this decision for purposes of appeal. On all the exhibits, stipulations, and other evidence properly submitted by.the parties, and the reasonable inferences I draw therefrom,and taking into account the pleadings and arguments of the parties, I find the following facts: 1. Wood and David are individuals who reside, respectively, in the Centerville and Marstons Mills villages of Barnstable. 2. The ZBA is a duly established board of appeals under G. L. c. 40A, § 12. 'On the record,the parties stated that they were proceeding on an agreement"as to what the evidence is and a submission of such agreed evidence to the trier of fact for decision thereon." J. R.Nolan &B. Henry, Civil Practice § 33.2 (3d. ed. 2004). Under this approach, "the fact finding tribunal must find the facts upon the agreed evidence as it does in the usual case . . . [and] may reach whatever decision is warranted by the evidence." Id. at § 33.9. 3-the parties have filed Amended Agreed Statement of Admitted Evidence to replace; Agreed Statement of Admitted Evidence marked as exhibit 1. . 2 3. Barnstable is a duly organized municipal corporation. 4. Teel Realty Trust recorded a plan dated September 1927 with the Barnstable Registry of Deeds in plan book 21, at page 133 (1927 plan) creating.a subdivision of land known as Centerville Estates.4 (exhibit 3). Lots 29 through 33 as depicted on the 1927 plan are bounded southerly by Orchard Road, westerly by Park Avenue, and easterly by land of Chester Bearse. According to the 1927 plan,these lots contain the following areas: Lot 29-12,240 square feet;Lot 30- 12,600 square feet;Lot 31- 12,700 square feet;Lot 32- 10,905 square feet;and Lot 33 - 14,160 square feet. 5. Locus is comprised of Lot 32 and a rectangular portion of Lot 33(rectangle)as shown on a plan dated September 1931 (1931 plan)recorded in plan book 44,at page 121. (exhibit 4). The 1931 plan shows the remaining portion of Lot 33 (triangle)as containing 1,965 square feet.' After subtracting the area of the triangle from Lot 33 as shown on the 1927 plan,the remaining area of the rectangle would measure approximately 12,195 square feet.b Thus, locus contains approximately 23,100 square feet with 190 feet of frontage along Orchard Road. A decision sketch is attached depicting locus and showing the area of the triangle. 6. On October 17; 1945, Benjamin F. Teel conveyed to Frank L. Horgan, also known as Frank L.Horgan,Sr.(Frank,Sr.),Lots 29,30,31,32,and the rectangle(collectively,Horgan lots). 4All recording references are to this particular Registry of Deeds. 'By deed dated September 14, 1931, and recorded in book 485, at page 99, Wetmore- - Savage Co., the then owner of the triangle, conveyed the land to Nelson Bearse. (exhibit 5). 'The area of Lot 33 as shown on the 1931 plan is inconsistent with the 14,160 square foot area given on the 1927 plan. The dimensions of the rectangle on the 1931 plan(100' x 120.89'), If one adds the triangle area of 1,965 square feet to the result in an area of 12,089 square feet. rectangle, the sum is 14,954 square feet. This discrepancy in area is not material and does not. affect the outcome of this decision. 3 The deed to Frank Sr. is recorded in book 635, at page 411. (exhibit 7). 7. At a.time when multifamily use was allowed,Frank,Sr.in 1948 built.a multi-family structure containing three units on Lot 29. (exhibit 1,¶4). 8. In 1949,the Barnstable zoning by-law_(1949 by-law)included one residence district known as_a"Residence A District." Centerville,in which locus is situated,was not included in the Residence A District under the 1949 by-law. (exhibit 1,¶ 1). 9. On March 7, 1950, the Annual Town Meeting amended the 1949 by-law to include Centerville and a section of West Hyannisport in the Residence A District(1950 by-law). For lots in.the Residence A District, the minimum dimensional requirements were as follows: lot area— 7,500 square feet; width—seventy-five feet; and front yard set back—twenty feet or percent of the lot depth if less than one hundred feet. (exhibit 1,¶2). 10.. The depth of locus exceeds one hundred feet. (exhibits 3, 4). 11. The 1950 by-law contained the following provision regarding nonconforming uses: "Any lawful building or use of a building or premises or part thereof existing at the time this by-law or any amendment thereto is adopted may be continued although such building or use does not conform to the provisions thereof" (exhibit 1,¶3). 12. The 1956 Annual Town Meeting amended the 1950 by-law by adopting Warrant Article 42 (1956 by-law). Among other revisions, the 1956 by-law established a Residence B-1 District (Residence B-1 district) in which the minimum lot area was 10,000 square feet and minimum width was one hundred feet. The 1956 by-law also placed locus in the Residence B-1 district.' (exhibit 1, ¶6). '.The record does not.include a copy of the 1956 by-law. Although the parties identify the zoning district in exhibit 1,T 6, as the RB-I district, I infer from exhibit 1,¶ 10,that the name of the district was,in fact, the Residence B-1 district. 4 13. The 1958 Annual Town Meeting approved a number of revisions to the 1956 by-law (1958-by-law),including changing the zoning district for locus from the Residence B-1 district to the Residence D-1 district. (exhibit 1,¶ 10). Section S(2) of the 1958 by-law permitted a building to be erected on a lot in a Residence D-1 district with a minimum lot area.of 20,000 square feet and minimum lot width of 125 feet, "provided that one (1) one-family dwelling and its accessory buildings may be erected on any lot.which, at the time this by-law is adopted is separately owned, or which is shown on a plan of lots approved by the Board of Survey and recorded in the.Barnstable Registry of Deeds after January 1, 1956, and before the date this by- law is adopted." J (exhibit 26). 14. As of the effective date of the 1958 by-law, the Horgan lots were held in common ownership by Frank, Sr., and each lot measured less than 20,000 square feet and had a lot width of less than 125 feet. None of the Horgan lots was "shown on a plan of lots approved by the Board of Survey and recorded . . .after January 1, 1956. . . ." (exhibit 1,¶ 11). 15. Frank, Sr. conveyed the Horgan lots to Frank L. Horgan, Jr., Trustee (Trustee) by deed dated September 11, 1974, and recorded in book 2094, at page 301. (exhibit 8). 16. Section G. of the then current by-law was amended by vote of the Special Town Meeting on November 6, 1977 (1977 amendment),by adding the following subparagraph E.: "Any lot lawfully laid out by a plan or deed duly recorded, as defined in section eighty-one L. of chapter forty-one, or any lot shown on a plan endorsed with the words `approval under the subdivision control law not required' or words of similar import, pursuant to section eighty-one of chapter forty-one, which complies at the time of such recording or endorsement,whichever is earlier,with the minimum area, frontage,width,and depth requirements,if any,of the zoning ordinances or by-laws in.effect in the Town of Barnstable notwithstanding the adoption or amendment of provisions of a zoning ordinance or by-law in the town imposing minimum area, frontage, width, depth or yard requirements, or more than one such requirement, in excess of those in effect at the time of such recording or endorsement (1) may thereafter be built upon for residential use if, at the time of the adoption of such 5 requirements or increased requirements or while building on such lot was otherwise permitted,whichever occurs later,such lot was held in ownership separate from that of adjoining land located in the same residential district,or(2)may be built upon for residential use for a period of five years from the date-of such recording or such endorsement, whichever is earlier, if, at the time of the adoption of such that of adjoining land located in the same residential district;' and further provided, in either instance at the time of building(a) such lot has an area of 7,500 (seventy five hundred) square feet or more and a frontage of twenty feet or more, is in a district zoned for residential use, and conforms except as to area, frontage,width and depth with the applicable provisions of the zoning ordinance or by law in effect in the town and(b) any proposed structure is to be located on such lot so as to.conform with the minium requirements of front, side and rear setbacks, if any, in effect at the time of such recording or such endorsement, whichever is earlier, and to all other requirements for such structure in effect at the time of building." (exhibit 27A) (italics added). 17. By vote of the Special Town Meeting on February 28, 1985, the minimum lot area in the Residence D-1 district increased from 20,000 square feet to 43,560 square feet. (exhibits 1., ¶ 13; 27B). With one exception noted below, Section G. E. in the 1985 by-law appears unchanged from the 1977 amendment.9 (exhibits. 1,¶ 12B; 27). 18. As evidenced by a deed dated June 3, 1985,and recorded in book 4369,at page 8,the Trustee conveyed the Horgan lots to. Frank, Sr. and Eleanor N. Horgan (Eleanor). (exhibit 9). Simultaneously, Frank, Sr. and Eleanor transferred the title to the Horgan lots to Frank L. Horgan, Jr. (Frank, Jr.)by deed dated June 3, 1985, and recorded in book 4369, at page 9. (exhibit 10). 19. Section G. E. appeared without change in the zoning by-law of 1986. (exhibits 1,¶ 12C; 27C). 'A reading of the italicized language reveals that the 1977 amendment appears to have omitted words from the first proviso. It appears that the omission was corrected by an amendment adopted by a Special Town Meeting on February 28, 1985. See finding 17 and note 9 infra. .9As found in the 1985 by-law, the first proviso reads as follows: "if, at the time of the adoption of such requirements or increased requirements, such lot was held in common ownership with that of adjoining land located in the same residential district . . . ." 6 20. The Special Town Meeting voted on April 7 1987 to amend and recodi fythe 1986 by-law(1987 by-law). Section 4-4.5 of the 1987 by-law revised Section G.E. of the 1986 by-law as follows: ".`Any lot lawfully laid out by a plan or deed duly recorded,or any lot shown on a plan endorsed with the words `approval under the subdivision control law not required' or words of similar import, which complies at the time of such recording or such endorsement,whichever is earlier,with the minimum area,frontage,width,and depth requirements,if any,of the zoning by-law in effect at the time of such endorsement may thereafter be built upon for residential use(notwithstanding amendment of the zoning bylaw changing such requirements,including yard requirements or more than one such requirement, in excess of those in effect at the time of such recording or such endorsement) if:. 1) At the time of the adoption of such requirements or increased requirements or while building on such lot was otherwise permitted,whichever occurs later,such lot was held in ownership separate from. that of adjoining land located in the same residential district; or 2)At the time of the adoption of such requirements or increased requirements, such lot was held in common ownership with that of adjoining land located in the same residential district,but then only for a period of five(5)years from the date of such recording or such endorsement,whichever is earlier; And further provided in either instance, 3) At the time of building,.such lot has an area of seventy-five hundred (7500) sq. feet or more and a frontage of twenty(20) feet or more, is in a district zoned for. residential use, and conforms except as to area, frontage, width and depth with the applicable provisions of the zoning by-law in effect; and 4) Any proposed structure is to be located on such lot so as to conform with the minimum requirements of front, side and rear setbacks, if any,in effect at the time of such recording or such endorsement, whichever is earlier, and to all other requirements for such structure in effect at the time of building:" (exhibit 27E). 21. Frank,Jr. conveyed locus to David by deed dated October 19, 1989,and recorded in book 6928, at page 192. (exhibit 11). 22'. At all times since October 19, 1989, David has held title to,locus in separate 7 . L e ownership from all adjoining land. (exhibit 1, ¶22). 23. In April 1990, the Commissioner issued a foundation permit to David for a single- family residence on locus. (exhibit 19, ¶ 19). Several abutters appealed the issuance of the foundation permit to the ZBA. (exhibit 19,¶20). 24. On September 27, 1990, the Barnstable Town Council (Town Council) voted to recodify the zoning regulations as the Zoning Ordinance of the, Town of Barnstable (1990 ordinance).10 (exhibit 1;¶30A). The only change to Section 4-4.5 of the 1990 ordinance from the 1987 by-law was substituting the word "ordinance"for the word"by-law." (exhibit 21). 25. . In a decision dated April 25, 1991,and filed with the Barnstable Town Clerk on May 8, 1991,the ZBA overruled the issuance of the foundation permit for locus. (exhibit 19,¶21).11 26. Pursuant to G. L. c. 40A, §.17, David filed an appeal in the land court on May 28, 1991 (1991 appeal)challenging the decision of the ZBA upholding the Commissioner's revocation of a foundation permit for locus. (exhibits 1,¶28; 18). 27. The Town Council amended the zoning ordinance on November 3, 1995 (1995 ordinance).12 In pertinent part, the 1995 ordinance included the following provisions concerning "Barnstable changed its form of government on April 11, 1989,with the adoption of the Charter of the Town of Barnstable(Charter). While still known as the Town of Barnstable, Barnstable"shall constitutionally have a city form of government." Charter, Section 1-4. "The copy of the decision attached to the complaint in Miscellaneous'Case No. 163151 reveals the date that the ZBA issued the decision and the date of filing with the Barnstable Town Clerk. ""The effective date of the adoption or amendment of any zoning ordinance . . . shall be the date on which such adoption or amendment was voted upon by a city council . . . ." G. L. c. 40A, § 5, eighth par. Barnstable contends that the effective date of amendments to the zoning ordinance is thirty days after adoption by the town council. Charter, Section 2-8... The outcome of this decision is not dependent upon whether the effective date of the 1995 ordinance was November 3, 1995, or thirty days thereafter. 8 nonconformities: "44.1 Intent: It is the intent of this section(i) to protect property rights of owners of pre-existing legally created nonconforming lots, uses and buildings or structures and (ii) to provide regulation of changes or expansion of pre-existing nonconfomiing structures, building and uses. 4-4.2 Nonconforming Lots: 13 2.) Common Lot Protection: Any increase in the.area, frontage,width, yard or depth requirements of the Zoning Ordinance shall not apply for a period of 5 years from the effective date of the change, to a lot for single or two-family residential use that: A) is held in common ownership with not more than 2 adjoining lots; and B) had a minimum of 7,500 sq. $. in area and 75 feet of frontage or the minimum frontage requirement for the zoning district in which it is located; and C) was recorded or endorsed on a plan that conformed to zoning when legally created; and D) conformed to applicable zoning requirements as of January 1, 1976. The protection afforded by this paragraph shall become vested upon the sale or transfer of the lot so protected into ownership separate from that of adjoining lots or the building thereon of a residence. 5) Merged Lots: Except as otherwise provided herein,lawfully nonconforming lots that are adjoining and held in common ownership, or under the control of the same owner, shall be " have deliberate) In their amended agreed statement of the evidence,the parties Y omitted quoting the language that-pertains to separate lot exemption, Section 4-4.2 1)..See exhibit 22 at 95. I infer that the parties agree that such exemption is inapplicable to the facts of the case at bar. Thus,I do not consider lot.3.2 and the rectangle, taken together,to meet the requirements of Section 4-4.2 1). 9 7 treated so as to conform so far as possible with the minimum area requirement of the zoning district in which they are located. No lot so merged, or portion thereof,may be. changed or, transferred in any manner that will increase the degree of nonconformity unless a special permit has first been obtained from the Zoning Board of Appeals. No such special permit may crreate[sic]any additional buildable lot(s)." (exhibit 22).14 28. Section 4-4 of the 1995 ordinance has been applied retroactively by the Commissioner. (exhibit 1,¶34). 29. David filed a motion for summary judgment in the 1991 appeal on.November 15, 1995 (summary judgment motion),and the court(Scheier,J.)heard oral argument from the parties on March 27, 1996. (exhibit 18).u 30. On October 9, 1996,the court(Scheier,J.)issued an order on the summary judgment motion(1996 decision)(exhibit 19).16 The court found that"lot 29 did merge with adjoining lots, with respect to zoning,to the extent necessary to bring lot 29 in compliance first with the 1958 By- law amendment and later with the 1985 By-law amendment." Additionally,the court held that . "lot 29 merged with lots 30, 31 and 32 -to the extent necessary to meet one acre zoning — with the unfortunate result of leaving an unbuildable remainder lot comprised of lots 33 and part of 32(4,885 square feet of lot 32). . . ." [T]he building on lot 29 exhausted any future right to build on the adjoining lots, to the extent necessary to bring lot 29 into minimum size compliance under the By-law . . . ." 14In exhibit 1, ¶32, the parties quote certain provisions concerning nonconformities and cite the 1995 ordinance as the source for the quotations. The quoted text,however, is found in the 2005 recodification of the 1995 ordinance. See exhibit 23. 15Although the Town Council approved the 1995 ordinance twelve days prior to the filing of the summary judgment motion, the documents submitted by David in connection with this motion made no mention of the 1995 ordinance. 16Whereas neither party to the 1991 appeal argued the relevance of the 1995 ordinance to the court, the 1996 decision made no reference to that ordinance. "As defined in the 1996 decision, lot 33 referred only to the rectangle portion of lot 33 after the 1931 conveyance of the triangle. 10 31. The judgment that issued with the 1996 decision provided that it was "ADJUDGED and ORDERED that the property identified in the attached decision as lot 32-33 is not a buildable lot under the Town of Barnstable Zoning By-law(By- law); and it is further ADJUDGED and ORDERED that the lot identified as lot 29 in the attached decision merged, for purposes of zoning with lots 30, 31, and part of 32; and it is further ADJUDGED and ORDERED that lot 29,as merged with lots 30,31, and part of 32, and the lot comprised of lot 33 and the remainder of lot 32, are not buildable lots under the By-law." (exhibit 20).18 32. On or about June 5,2004,David and Wood executed a Purchase and Sale Agreement (2004 agreement)whereby David agreed to sell and Wood agreed to purchase locus for$295,000.00 but set no time for performance. Among the contingencies set forth in paragraph 30, the 2004 agreement provided that it was"SUBJECT TO [locus] BEING BUILDABLE TO SUIT A 4 BRM. HOME. (BY WAY OF BUILDING PERMIT)". (exhibit 16). 33. Wood filed an application with the Commissioner on August 13, 2004, seeking a permit to construct a four-bedroom residence on locus. (exhibit 15.) 34. The proposed dwelling satisfied all of the dimensional requirements of the zoning district in which locus was located, with the exception of minimum lot size. (exhibit 1,¶44). 35. By letter dated September 23, 2004, the Commissioner denied the building permit application. (exhibit 2). In pertinent part, the Commissioner wrote that "[t]he lot in question is unique in that it has already been declared unbuildable because of a court decision. A subsequent 18The docket in Miscellaneous Case No..163151 reveals that David filed a notice of appeal on November 5, 1996. (exhibit 18). Pursuant to Mass. R. App.P. 29 (b), all parties stipulated that the appeal be dismissed in Agreement for Dismissal filed with the Appeals Court on May 23, 1997. The Appeals Court that day dismissed the appeal with prejudice arid without costs. 11 zoning ordinance, in my opinion, is not going to change this lot's status." 36. On October 12, 2004, Wood filed an appeal of the Commissioner's decision to the ZBA (Wood appeal). (exhibit 1,¶46). 37. A public hearing on the Wood appeal was duly advertised and noticed to all interested parties in accordance with G. L. c. 40A, § 11. (exhibit 1,¶47). 38. The public hearing on the Wood appeal opened on November 17,2004,and the ZBA continued the hearing on six occasions until the last session held on August 24,2005.19 (exhibit 1, ¶48). 39. On January 20, 2005, Barnstable codified its ordinances into a Code (Barnstable Code)and re-numbered sections accordingly. In particular,Sections 4-4.1 through 4-4.8 of the 1995 ordinance are now found as Article VIII, §§ 240-90 through 240-97 of the Barnstable Code.20 (exhibits 1,¶35; 23). 40. -In its decision filed with the Barnstable Town Clerk on September 7, 2005 (ZBA decision),the ZBA denied the Wood appeal on the ground that the 1996 decision precluded Wood's application for a building permit. (exhibit 24). 41. Since the effective date of Section 4-4 as appearing in the 1995 ordinance, Commissioners have consistently issued permits for building on vacant lots which;on the effective date of the 1985 zoning change increasing the minimum lot area to one acre complied with the minimum bulk requirements and were later conveyed into ownership separate from that of adjoining 19 The hearing dates between November 17,2004,.and August 24, 2005, were January 19, February 9,April 27,June 22, and August 10, 2005. 20The Barnstable Code also made a variety of non-substantive revisions to the text of the sections regarding nonconformities. 12 i land within five hears of said zoning change.21 Regarding appeals brought pursuant to G.L. c. 40A, § 17, it is the duty of the judge to hear all the evidence and to find the facts. . . . The decision of the board is competent evidence to enable the judge.to,ascertain what conclusion the board reached in order that he may determine whether upon the facts found by him the decision of the board should stand or should be annulled or should be modified. In a word, the matter is heard de novo and the judge makes his own findings of fact,independent of any findings of the board, and determines the legal validity of the decision of the board upon the facts found by the court, or if the decision of the board is invalid in whole or in part,the court determines what decision the law requires upon the facts found. Bicknell Realty Co v Board of Appeal of Boston, 330 Mass. 676,679(1953). Accord Pendergast v Board of Appeals of Barnstable,331 Mass. 555,558-559(1954). In an appeal of a zoning board's decision upholding a building inspector's ruling on a building permit application, the court determined that the scope of review was"essentially"as broad as de novo review under G.L.c.40A, § 17. See Heavyv Board ofMpeals of Chatham,58 Mass.App.Ct.4017 403-404 n. 5 (2003). See also Cameron v Board of Appeal of Yarmouth, 23 Mass. App. Ct. 141, 149 (1986). One treatise on Massachusetts zoning jurisprudence states that"the same standard applies to the scope of review for all zoning decisions." M.Bobrowski,Handbook of Massachusetts Land Use and Planning Law § 11.05,at 348 n.117(2d ed.2002). Thus,I have considered the record before me on a de novo basis and have made the above findings of fact. Under G. L. c. 240, § 14A,David is entitled to seek from this court,as the owner of locus, a determination of the extent to which any Barnstable zoning ordinance, by-law, or regulation "affects a proposed use,,enjoyment, improvement or ,development of [locus] by the erection, 211n exhibit.1.¶53,the parties indicate that the statement contained therein is admitted de bene. In earlier hearings before me, defendants have previously expressed their objection to this statement. I now admit the statement into evidence and thus have made finding 41 above. " 13 alteration or repair of structures thereon or otherwise . . . ." Count H of the complaint seeks a judgment that Section 4-4 of the 1995 zoning ordinance applies to the proposed construction of a new single family dwelling on locus. While the parties have provided a detailed chronology of events concerning the chain of title to locus and the various zoning regulations in Barnstable, the outcome of this decision turns on an issue of law predicated upon a much more narrow set of facts. Defendants argue that the claims of plaintiffs are barred by the principle of res judicata. Plaintiffs insist that the instant action is not precluded by the 1996 decision and that consideration of the 1995 by-law would have caused the court to find locus as grandfathered..For the reasons discussed below,.I agree with defendants. "`Res judicata' is the generic term for various doctrines by which a judgment in one action has a binding effect in another." Heacock v.Heacock,402 Mass.21,23 n.2(1988). Accord Bagle v. Moxlev, 407 Mass. 633, 636 (1990). The doctrines encompassed under the term res judicata consist of both claim preclusion and issue preclusion. See Blanchette v. School Comm. of Westwood, 427 Mass. 176, 179 n. 3 (1998). "Issue preclusion applies to issues of law or fact." In the Matter of Daniel W.Goldstone,445 Mass. 551, 569 (2005). "Before a party will be precluded from relitigating an issue, a court must determine that (1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party(or in privity with a party) to the prior adjudication;and(3)the issue in the prior adjudication was identical to the issue in the current adjudication." Tuper v.North Adams Ambulance Serv. Inc.,428 Mass. 132, 134(1998). See Massachusetts Prop. Ins. Underwriting Ass'n v.Norrington, 395 Mass. 751,753 (1985). Plaintiffs insist that issue preclusion does not apply here because the discussion of merger in the 1996 decision.was not essential to the ruling that locus was not buildable. I disagree and find 14 that each of the tests for issue preclusion applies. In the 1996 decision,Judge Scheier bifurcated her analysis. The first issue she addressed was whether lots 30-31 and locus were grandfathered under G. L. c. 40A, § 6, and Section G.E. of the 1985 by-law.22 The second issue centered on the effects of merger. The central question behind both issues,however,was"whether Plaintiffs'respective lots constitute separate buildable lots for zoning purposes." (exhibit 19 at 9)., The two issues are complementary, not disjunctive. Judge Scheier found that as of the adoption of the 1985 by-law,the Trustee."had five years to preserve his rights under section 6 and section [G.E.]." (exhibit 19 at 13).Thereafter, "lot 29 merged with lots 30, 31, and 32—to the extent necessary to meet one acre zoning—with the unfortunate result of leaving an unbuildable remainder lot comprised of lots 33 and part of 32 . . . ." (exhibit 19 at 14). Both issues are equally essential to the finding. While plaintiffs attempt to assert a claim in the case at bar that differs from that raised in the 1991 appeal,the underlying issue is identical. The question before me is whether plaintiffs are now entitled to the issuance of a building permit for the construction of asingle-family dwelling on locus. The same question was actually litigated in the 1991 appeal and resulted in the 1996 decision and final judgment adverse to David. Although he commenced an appeal of the judgment, David ultimately dismissed the appeal on May 23, 1997. David was a party in the 1991 appeal,as well as one of the plaintiffs here. As the buyer under the 2004 agreement, Wood is in privity with David. The 1996 decision resolved the outstanding issue by holding(correctly,in my view)that the owner of locus is not entitled to a building permit. After accounting for the portion of lot 32 that merged with lots 29,30,and 31,the total area of locus that can be considered for building purposes 22The 1996 decision concerned not only locus but also the appeal of Frank L. Horgan, III challenging the decision of the ZBA that upheld the Commissioner's revocation of a building permit for lots 30 and 31. 15 is the 12,195 square feet of the rectangle and 4,885 square feet of lot 32. Thus for zoning purposes, locus is deemed to measure 17,080 square feet. A second principal argument of plaintiffs is that Section G.E.of the 1985 by-law, as well as Section 4-4 ofthe 1995 ordinance,provides permanent grandfather protection to locus under Rourke v.Rothman,448 Mass. 190(2007). Plaintiffs contend that the separate conveyance of locus in 1989 effectively granted it the perpetual grandfather protection of the separately owned provision of Section 4-4.5 1) of the 1985 bylaw. I disagree. In two instances,Section G.E. of the 1985 by-law provided for protection to a lot laid out by a recorded deed or endorsed plan against increases in minimum area and frontage requirements. Under the first scenario, a lot had to be held in ownership separate from adjoining land(clause(1)). In the second scenario, a lot with a minimum area of 7,500 square feet and frontage of twenty feet, if not in separate ownership,was protected for a period of five years"from the date of such recording or such endorsement . . . ."(clause(2)). Under Section 4-4.2 2) of the 1995 ordinance, a lot held in common ownership had the benefit of grandfather protection provided four requirements were satisfied:the lot(A)was held with not more than two adjoining lots;(B)had a minimum area of 7,500 square feet and seventy-five feet of frontage; (C)was recorded or endorsed on a plan that conformed to zoning when legally created; and (D) conformed to applicable zoning requirements as of January 1, 1976. These requirements are conjunctive. In the post-trial submission, plaintiffs argue that "[u]pon the conveyance of[locus] into separate ownership in 1989, [locus] became permanently grandfathered under Section G. E. of the 1985 by-law." I disagree: In making their argument,plaintiffs rely on the language of clause(1)that protects a lot from dimensional increases"while building on such lot was otherwise permitted"but 16 ignore the fact that in 1985 locus was not a parcel of land owned separately from adjoining land. Clause (2) controls, not clause(1). Plaintiffs also claim that locus meets each of the requirements of Section 4-4.2 2)of the 1995 ordinance. In particular,plaintiffs claim that locus"conformed to applicable zoning requirements as of January 1, 1976." Section 4-4.2 2)D. As set forth in finding number 14 above, none of the Horgan lots met the requirements of the 1958 by-law calling for a lot to contain a minimum of 20,000 square feet and a lot width of not less than 125 feet. Furthermore,none of the Horgan lots was "shown on a plan of lots approved by the Board of Survey and recorded . . .after January 1, 1956. . Consequently,I find locus did not conform to the applicable zoning requirements as of January 1, 1976, and Section 4-4.2 2) provides no grandfather protection for locus. Had locus qualified for grandfather protection under Section G.E. of 1985 by-law,the right to build on locus was limited to a period of five years from"the date of such recording[of a plan or deed] or such endorsement [of a plan] . . . ." This language concerning the five year period to develop lots held in common ownership remained part of the zoning by-law from the 1977 amendment until November 1995. With the adoption of the 1995 ordinance,the five year period ran from the effective date of the dimensional change in the regulation, not from the date of the recording of a deed or endorsement of a plan. I do not reach the question,however, whether the drafters of the language of Section 4-4.2 2)of the 1995 ordinance intended to correct the earlier five year protection provision and to conform with G. L. c. 40A,.§ 6, as added by St. 1975, c. 808, § 3. In any event,none of the owners of locus during the period of February 28, 1985,through February 29, 1990, exercised their right to build thereon. Factually,Rourke is inapposite to the case at bar. The Rourke Court began its legal analysis 1. w buildable as a b with the statement that {t]here is no question that,at the relevant time. . . the locus 17 e lot." Rourke, 448 Mass. at 193. The underlying policy reaffirmed in Rourke is to "keeping once- buildable lots buildable . . . ." Id. at 197. As discussed above, locus was not a buildable lot at the relevant times. Thus, the holding of Rourke is not relevant to the issues before me. Plaintiffs place great weight on the fact that past Commissioners have applied Section 4-4.2 of the 1995 ordinance retroactively. I,nevertheless, do not find that past applications of the zoning ordinance control the outcome here. The record is devoid of details about such other applications in Barnstable. Therefore,I have no basis to determine the correctness of the past interpretations of Section 4-4.2 by Commissioners. Whether correct or not, the long standing interpretation of a zoning by-law is not binding on a judge on de novo review. C£Hebb v.Lamport,4 Mass.App. Ct. 202, 209 (1976). Irrespective of the details concerning other lots in Barnstable, the specific facts concerning the history of locus lead me to the decision herein. Having weighed the evidence, considered the parties' arguments, and applied the pertinent law, I find and rule on Count I that plaintiffs are precluded.from relitigating the issue of whether. locus is a buildable lot, where the 1996 decision and judgment resolved that issue in the negative. On Count II,I determine that Section 4-4.2 2)of the 1995 ordinance(now§ 240-9.1.13 of the Code) applies to locus. Accordingly,a building permit may not lawfully be issued for the construction of a single-family residence on locus. Judgment shall enter accordingly. eon Jotice ardi J Date: December 13, 2007 18 91.00 100.00 32.52 N -48 c � . o , " � L O Li S a) , N - ' 90.00 100.00 E w ORCHARD (40 00 wide) ROAD COMMONWEALTH OF MASSACHUSETTS MEAL) LAND COURT DEPARTMENT OF THE TRIAL COURT BARNSTABLE, ss. MISCELLANEOUS CASE NO.313538 (LJL) DANIEL C. WOOD and DAVID SCOTT ) HORGAN, ) Plaintiffs, ) V. ) RON S. JANSSON,RANDOLPH CHILDS,) GAIL NIGHTINGALE, JAMES ) HATFIELD, and JEREMY GILMORE, as ) they are members of the TOWN OF ) BARNSTABLE ZONING BOARD OF ) APPEALS, and the TOWN OF ) BARNSTABLE, ) Defendants. ) JUDGMENT This action was tried on June 8, 2007, and a decision has been entered.this day.' In accordance with that decision,it is hereby ORDERED, ADJUDGED, and DECLARED that, on count I of the complaint, plaintiffs Daniel C.Wood and David Scott Horgan are precluded from relitigating the issue of whether locus is a buildable lot; and it is further ORDERED,ADJUDGED,and DECLARED that,on count II of the complaint,Section 4-4.2 2)of the 1995 ordinance(now § 240-9 LB of the Code)applies to locus, and a building permit may 'If not specifically defined herein, all terms carry the same definitions as stated in the decision. = not la 1 e issued for the construction of a single-family residence on locus. By the Court. (Lombardi, J.) Attest: Deborah J. Patterson Recorder Dated: Decemberl3, 2007 Copy A-1 TCST: RECORDER 2 TM , Town of Barnstable , r Zoning Board of Appeals Daniel M.Creedon,III,Chairman KAM Planning Division - 200 Main Street, Hyannis, Massachusetts 02601 Thomas A.Broadrick,Director Planning,Zoning&Historic Preservation 4 Phone(508)862-4785 Fax,(508)862-4725 May 1,2005 Robert D. Smith,Town Attorneys Ruth Wiel,First Assistant Town Attorney Town of Barnstable,Town Attorney Office 367 Main Street,Hyannis,MA 02601 Reference: Zoning Board request for your presence for the June 22, 2005,Public Hearing on Appeal 2004-153,Daniel Wood-An Appeal of the Building Commissioner's denial of a ' building permit for property addressed 40 Orchard Road,Centerville,MA Dear Attorneys Smith and Weil: At the Zoning Board of Appeal's April 27,2005 hearing of the above referenced Appeal, issues were raised with respect to past litigation and ramifications that this past litigation may have on today's Appeal before the Board. The Board has requested your attendance at the continuation of this Appeal in order to assist the Members in fully understanding the aspects to be considered. The Appeal was continued to 7:00 P.M.,Wednesday June 22, 2005 at the Main Hearing Room Town Hall. ' For your information, the Applicant was represented by Attorney Albert J. Schultz and neighborhood opponents were represented by Attorney Bruce U. Gilmore. I have included a copy of the Zoning Board of Appeals file and all information submitted in support and opposition for background. Should you desire any additional explanation of the legal concerns facing the Board,please feel free to contact me at my office: 508-771-7600. ' 1 ' On behalf of all the Board Members,thank you and your office for its continuous assistance to the Board. Respectfully Ron S. Jansson,Vice Chairman Attachment: Copy ZBA File 2004-152 Copy: File Appeal 2004-152 Wood Bruce P.Gilmore,Esq.,P.O.Box 714,West Barnstable,MA 02668 Albert Schultz,Esq.,7 Parker Road,Osterville,MA 02655 Tom Perry,Building Commissioner TOWN OF BARNSTABLE ZONING BOARD OF APPEALS P 1; r t-` 411fii G „ Appeal No.: 2004-153 MEMORANDUM OF ABUTTERS IN OPPOSITION TO APPEAL OF DANIEL C. WOOD TO DECISION OF BUILDING INSPECTOR The decision of the Building Inspector is correct and should be upheld for several equally supportable reasons. First, the "lot or locus is not a pre-existing, non-conforming lot protected by the ordinance or M.G.L.A.ch.40A§6.' It was created by a deed,not a plan, r k� in 1989, at a time when the minimum lot size in the zoning district required an area of one acre, and this zoning change had been in place since February 28, 1985. The applicant believes that he is entitled to a building permit pursuant to the language contained in the zoning bylaw Section 4-4. Section 4-4 of the by-law was revised in 1995. The pertinent portion of the by-law is Section 4-4.1 Intent which states as follows: It is the intent of this section(i)to protect the property rights of owners of pre-existing legally created non-conforming lots, uses and buildings or structures and (ii) to provide regulation of changes or expansion of pre-existing nonconforming structures, building and uses. 2) Common Lot Protection: 'The decision of Judge Scheier of the Land Court succinctly states the reasoning that the lot before the Board does not receive any protection under M.G.L. c. 40, §6. No good purpose is served by reiterating any portion of the argument dealing with c. 40, §6 which is in the Board's file on this matter. 1 Any increase in the area, frontage, width, yard or depth requirement of the Zoning Ordinance shall not apply for a period of 5 years from the effective date of the change, to a lot for single or two-family residential use that: A) is held in common ownership with not more than 2 adjoining lots; and B) had a minimum of 7,500 sq. ft. in area and 75 feet of frontage or the minimum frontage requirement for the zoning district in which it is located; and C) was recorded or endorsed on a plan that conformed to zoning when legally created; and D) conformed to applicable zoning requirements as of January 1, 1976. The Board should take note that there is a building on Lot 29 which is an apartment use. The protection afforded a lot under the local by-law as well as M.G.L.c.40A, §6 applies to a single or two family residential use. Clearly this use was not either single or two family use. The abutters suggest that since the property, as it existed at the time of the zoning change,was used as an apartment building,the applicant fails to even get past the first clause in Section 4-4.1 (2) and therefore, the Board needs to go no further in its examination of Sections A,B, C and D. The zoning by-law as amended in 1995 had no applicability to the i Horgan property at all. If the Board finds that the Horgan property apartment use does fall within the protection afforded under Section 4-4.1, the subject lot will need to meet all of the criteria in Sections A, B, C and D. The clauses are conjunctive and the applicant must meet all of them. The language in Section A above affords the 5 years of protection provided that the lot is held in common ownership with not more than 2 adjoining lots. The property was 2 owned by Frank Horgan,Jr.,Trustee at the time of the zoning change on February 28, 1995 and it contained 5 lots. The subject lot doesn't meet the requirement of Section A. Whether or not it meets the requirements in Sections B, C and D is irrelevant since it fails to comply A. The applicant states in his memorandum that since lots 29 and with Section pp 30 merged as a result of the up-zoning in 1958, these now become one lot. The second lot then would l be lots 32 and 33 which again the applicant declares are to somehow be considered one lot as of the zoning change in 1985. The abutters suggest that this reasoning fails and that the Board will find that there were more than two lots at the time of the zoning change in 1985. Although the applicant was asked by the Board to give a history on the chain of title to the property, a brief history is in order. Lots 29, 30,31, 32 and part of 33 were all owned by Frank Horgan, Sr. from 1945 until September 11, 1974 when the entire parcel was conveyed to Frank Horgan, Jr., Trustee. From 1945 until 1974, the only events to note relative to this parcel are: 1. In April of 1948, Frank Horgan, Sr. built a multi-family structure on Lot 29. 2. Town wide zoning went into effect in 1956:The principal uses in the district of the parcel were detached one family dwellings and the "taking of not more than six lodgers by a family resident in the dwelling." The minimum square footage in the district was 10,000 sq. ft. The use of Lot 29 is now legally non- conforming. 3. In 1958, the minimum square footage was increased to 20,000 sq. ft. Lot 29 3 is now undersized. All of the lots remain in common ownership. From 1974 until June of 1985, Frank Horgan,Jr.,Trustee owned the entire parcel. It should be noted that the entire parcel was in common ownership when the zoning change occurred on February 28, 1985 which increased the minimum square footage on lots in the area in which the parcel is located to 1 acre. The parcel was conveyed in June of 1985 from Frank Horgan, Jr., Trustee to Frank Horgan, Sr. and Eleanor Horgan. They, in turn, immediately conveyed the entire parcel to Frank Horgan, Jr. Finally, in 1989, lots 30, 31, 32 and 33 were conveyed out into various ownership by the children of Frank Horgan, Jr. The next, more compelling reason that the Board should uphold the decision of the building inspector is that at the time of the 1989 conveyances out to the children of Frank Horgan, Jr., further merger had occurred. The judgment of Land Court Judge Scheier indicates that lots 29 and 30 had merged pursuant to the change in zoning in 1958. In 1985, lots 31 and a portion of lot 32 merged with the lots 29 and 30. Thus the subject "lot," which Judge Scheier says is the remainder of lot 32 and the portion of 33 did not qualify as "protected grandfathered" lots.' They were and are now unbuildable. The doctrine of merger provides that when a town increases its dimensional requirements,adjoining lots held in common ownership may be joined to satisfy the new requirements. Vetter v. Zoning 'The Board's past practice in merger is to use the entire lot to satisfy the dimensional requirements. Unlike Judge Scheier who said that the a part of lot 32 was still unmerged, this Board historically would suggest that all of lot 32 merged and only that portion of lot 33 would be available for consideration on the issue of buildability. 4 Board of Appeals of Attleboro, 330 Mass. 628, 116 N.E. 2d 277 (1953). By ordinance or bylaw,many municipalities have authorized construction on undersized,nonconforming lots as long as the lot was not owned in common ownership with an adjoining lot which could be merged to satisfy the enlarged dimensional requirements. Clark v. Board of Appeals of Nahant, 338 Mass. 473, 155 N.E. 2d 754 (1959). The applicant,Daniel Wood,in his memorandum for this Board discusses merger and suggests to this Board that lots 29 and 30 merged as a result of the increased square foot in the 1958 zoning amendment. He fails to follow the merger doctrine through, as Judge Scheier did, to its natural conclusion. The building on lot 29 triggered the merger in 1958. When zoning was again amended in 1985, that same building again was deficient in the square footage contained in lots 29 and 30. When zoning increased to an acre, lots 31 and a portion of lot 32(which were still in common ownership)then merged with lots 29 and 30. Although the applicant would like the result to be different from the Land Court decision, lots 29, 30, 31 and a portion of lot 32 have all merged:'There is only a portion of lot 32 and a portion of lot 33 remaining and that remainder is unbuildable. The Land Court decision contains a comprehensive history of both the conveyances and zoning changes upon which her decision was based(p.3-8). Footnote 10 of her decision addresses the current ordinance 4-4.5 and is diapositive of the current appeal. The Court's focus on lot 29, its use, a multi-family'apartment, not a single or two family use, and the failure of Frank Horgan, individually or as trustee, to avail himself of , 5 r rights under § 6 (40A) and § 4-4.5 (ordinance)but he did not. Since the Court ruled that a portion of lot 32 merged with lot 29 to make the apartment lot conforming, it was and is not possible to recapture that portion of lot 32 to make lots 32 and 33 now buildable and thus the decision of the building inspector is not only logical but legally correct. The final argument for the Board to consider is the issue of res judicata. Res judicata provides that claims resolved in litigation are precluded from subsequent litigation, and so are claims which could or should have been presented in the first proceeding. Beals v. Commercial Union Ins. Co., 61 Mass. App. Ct. 189, 800 N.E. 2d 824 (2004).(Emphasis added). Simply stated, the entire parcel consisting of lots 29-33 were the subject of the two civil actions brought b Frank Horgan 'III and David -Scott Horgan against the Town g Y g g g following two decisions by the then Zoning Board that stated that lots 30-31 and lots 32-33 were not buildable lots.' Although the applicant's attorney argues that the 1995 zoning amendment under Section 4-4 was not available for the Land Court to consider, his argument fails. The zoning change to Section 4-4 was voted by the Barnstable Town Council on November 3, 1995. The abutters call the Board's attention to this date. It is crucial to the argument on res judicata. A law suit brought in the Massachusetts court system can reach its end in a number 'Although the applicant in this appeal is Daniel Wood, the owner of record is David Scott Horgan, the same owner in Land Court case 163151.. 6 i of ways. It can end with a trial or dismissal of the case. It can end with an appeal and the denial of any further appellate review. Or it can end as a result of a decision following argument and submission of briefs on a motion for summary judgment. For the lay people on the Board,a motion for summary judgment is a request by one side to have the judge rule that the other side can't prove an essential part of its case. There is no testimony by witnesses and no trial. In its simplest form, one party puts forth its written argument; the other party has a chance at rebuttal via written argument. The judge then listens to the attorneys and further reviews the written materials. A decision is rendered as to whether or not the second party can actually prove its case at trial. If not,the judge so finds and he then dismisses the case upon writing his decision. In the above referenced Land Court actions,David Scott Horgan filed his motion for summary judgment in the matter he brought against the Town on November 15, 1995. The Town filed its motion for summary judgment in the second case which Frank Horgan, III brought against the Town on January 16, 1996. Arguments on both cases were held on March 27, 1996.' Note that all of these dates are after the date that the zoning amendment in Section 4-4 was adopted. The applicant incorrectly states in his memorandum that the "claim" (under new Section 4-4) was not brought up in Land Court as it was not in existence at the time when, 'See decision of Judge Scheier, page 2, which verifies these dates. 7 in fact, it had.been very recently adopted. The doctrine of res judicata states that claims resolved in litigation are precluded from subsequent litigation, and so are claims which could or should have been presented in the first proceeding. Neither Frank Horgan, III nor David Scott Horgan addressed the "new" Section 4-4 in their arguments but they had the opportunity and are precluded from attempting to relitigate on this basis. For all of the above reasons, the decision should be sustained. Date: January 11, 2005 For the Abutters By Their Attorney, Bruce P. GilkaTI, Esq. P.O. Box 714 1170 Route 6A West Barnstable, MA 02668 508-362-8833 BBO# 192940 8 Town of Barnstable Regulatory Services B" MASS.`� ' Thomas F. Geiler,Director Es6,9, Building Division Thomas Perry,Building Commissioner 200 Main Street, Hyannis,MA 02601 www.town.barnstable.maxs Office: 508-862-4038 Fax: 508-790-6230 September 23, 2004 Kilroy & Warren,P.C. Attn: Bernard T. Kilroy 67 School St. PO Box 960 Hyannis,MA 02601 RE: 40 Orchard Rd., Centerville,Map 207 Parcel 021 004 Dear Atty. Kilroy: I am writing in response to your letter of September 7,2004 on the above referenced lot. I do agree with you that permits have been issued in the past for lots that were beyond the five years of protection. In most cases this is because the abutting lots were either built upon or were conveyed into separate ownership. The lot in question is unique in that it has already been declared unbuildable because of a court decision. A subsequent zoning ordinance, in my opinion, is not going to change this lot's status. In view of this I will have to deny the building permit application for 40 Orchard Rd., Centerville which was received by my office on September 7, 2004. Sincerel , Thomas Perry Building Commissioner TP/AW LE TOWN OF BARNSTABLE ZONING BOARD OF APPEALS APPEAL NO. 2004-153 REPLY MEMORANDUM OF DANIEL C. WOOD TO OPPOSITION OF ABUTTERS PROPERTY LOCATED AT: Z40`ORCHARD ROAD' CENTERVILLE ASSESSORS MAP 207, PARCEL 21-4 Submitted by: Albert J. Schulz, Esquire 7 Parker Road Osterville, MA 02655 The Applicant, Daniel C. Wood, files this Reply Memorandum in response to certain assertions made by the Abutters in their opposition, as follows: 1. ASSERTION NO. 1 (Page 1): Locus was "created by a deed, not a plan, in 1989." APPLICANT'S REPLY: The Abutters cite no authority for their position. In fact, their position is contrary to a long line of Massachusetts cases that have addressed this issue and that have held that the word "lot" for zoning purposes is not determined by assessors' plans, assessments, or sources of title. Vetter v. Board of Appeals of Attleboro, 330 Mass. 628 (1953); See, also, Smigliani v. Board of Appeals of Saugus, 348 Mass. 767 (1665); Giovanni v. Board of Appeals of Plainville, 4 Mass.App.Ct. 239 (1976); Vassalotti v. Zoning Board of Appeals of Sudbury, 348 Mass. 658 (1965). Adjoining parcels may, and in certain instances must, be combined to meet dimensional requirements of the zoning by-law. Heald v. Zoning Board of Appeals of Greenfield, 7 Mass.App.Ct. 286 (1979). See, also, Gaudet v. Building Inspector of Dracut, 358 Mass. 807, 265 N.E.2d 375 (1970); Miller v. Board of Appeals of Brookline, 356 Mass. 659, 255 N.E.2d 365 (1970); Becket v. Building Inspector of Marblehead, 6 Mass.App.Ct. 96, 104 (1978). 2 2. ASSERTION NO. 2 (Page 2): Locus was neither "single nor two family use." APPLICANT'S REPLY: The Abutters suggest that since an apartment was constructed on Lot 29 in 1948, which is now nonconforming because of subsequent zoning amendments, that all of the land on Orchard Road, including Locus was "not either single or two family use" as required.by Section 4-4. This contention is contrary to the specific provisions of the Zoning Ordinance. Locus is located in an RD-1 residential zoning district in which a single-family residential dwelling (detached) is the only permitted use. Section 3-1.1(1) The fact that some of the land on Orchard Road may be considered nonconforming does not preclude the construction of a residence as of right under the Zoning Ordinance. 3. ASSERTION NO. 3 (Page 3): At the time of the zoning change on February 28, 1985, the property owned by Frank Horgan, Jr. "contained 5 lots." APPLICANT'S REPLY: The Abutters' assertion, again, ignores the definition of"lot" as construed b the long line of Massachusetts cases cited both in Applicant's Y g pp Memorandum and this Reply Memorandum. As a result of the 1958 amendment, the 3 number of lots, for zoning purposes, was reduced from 5 to 3, at the most, and arguably just 2, as the result of merger. Under either scenario, condition (A) of Section 4-4.2(2) was met. 4. ASSERTION NO. 4 (Page 4): At the time of the 1989 conveyance(s), "further mergers had occurred." APPLICANT'S REPLY: Section 4.4 of the Zoning Ordinance, as amended in 1995, specifically provides that "Any increase in the area,frontage, width, yard or depth requirement of the Zoning Ordinance shall not apply for a period of 5 years from the effective date of the change . . " Therefore, since Locus falls within the protection of Section 4-4.2(2), no merger could have occurred until the expiration of the five-year period in early 1990. By that time, Locus was held in ownership separated from that of adjoining land and the rights under Section 4-4.2(2) became vested. 5. ASSERTION NO. 5 (Page 6): The Applicant's present claim "could or should have been presented in the first proceeding." (Miscellaneous Case No. 163,151) 4 APPLICANT'S REPLY: The Abutters cite the case of Beals v. Commercial Union Insurance Company, 61 Mass. App. Ct. 189 (2004) in support of their assertion that the present claim of Daniel Wood "could or should have been presented in the Land Court Miscellaneous Case No. 163,151, and, therefore, Wood's present application is precluded by the doctrine of res judicata, also known as issue preclusion. In point of fact, the Beals case supports the Applicant's position rather than the Abutters' position. In Beals, the Plaintiff was injured in an automobile accident. She filed a complaint against Commercial Union Insurance Company requesting arbitration of her claim (Action No. 1) and was awarded $204,000.00 by the arbitrator. The award was subsequently confirmed by a Superior Court judge. Beals then filed an action for unfair claim settlement practices against Commercial Union in the Superior Court (Action No. 2). The Appeals Court, in reversing the trial judge's grant of summary judgment for Commercial Union against Beals, held that even though all of the facts comprising Beal's "claim" of unfair settlement practices were known to Beals prior to the institution of her arbitrator's claim (Action No. 1), she was not obligated to amend her complaint to include the unfair settlement claim and, thus, the doctrine of res judicata, or issue preclusion, did not bar Action.No. 2. In the present case, the Land Court Miscellaneous Case No. 163,151 was filed in the Land Court on May 28, 1991, more than 4 years prior to the amendment of Section 4-4 of the Zoning Ordinance (see.docket sheet attached as Exhibit 1) in November 1995. 5 f Since the Applicant's present claim did not even arise until after Miscellaneous Case No. 163,151 was filed, the present action is not barred by the doctrine of res judicata or issue preclusion. Integrated Technologies Limited v. Biochem Immunosystems, (U.S.) Inc., 2 F. Supp. 2d97, 102 (D.Mass. 1998). Conclusion. Section 4-4.2, as amended in 1995 by its clear and specific language, was intended to apply, retroactively, to pre-existing non-conforming lots. On February 28, 1985, Locus was a pre-existing non-conforming lot that contained more than 20,000 square feet and at least 125 feet of width. Locus was created at the time of the enactment of the 1958 by- law, via merger. It is located in an RD-1 residential zoning district and, as such, is a lot for single-family or two-family use. The protection afforded to Locus under section 4- 4.2(2) vested in October 1989, upon conveyance of Locus into ownership separate from that of adjoining lots. 6 Respectfully submitted, Albert J. hulz, Esquire Attorney for Daniel C. Wood 7 Parker Road Osterville, MA 02655 (508) 428-0950 7 EXHIBIT 1 01/14/2005 11:08 FAX Z 001 COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT DOCKET Converted CASE TYPE: Miscellaneous DATE FILED; May 28, 1991 CASE NO.: Misc. 163151 CASE SUB TYPE: ZAC -Complaint,Appeal from Zoning I3oard, LAND IN: Town Of Barnstable Chapter 40A,Sec. 17 Case Appealed On: 11/5/1996 ON: PLAINTUT(S): DEFENDANT(S): DAVTD SCOTT HORGAN, ELIZABETH NILSSON. BRUCE BURLINGAME. LUKE AND LALLY. DEXTER BLISS. GENE AS THEY ARE THE BURMAN. EDWIN GOURLEY. TOWN OF ZONING BOARD OF BARNSTABLE. APPEALS. PAUL BROWN. PLAINTIFFS'ATTORNE'Y(S): DEFENDANTS'ATTORNEY(S): 1 5/28/1991 NANCY H.LOEB,ATTORNEY 1 6/5/1991 ROBERT D.SMITH, Judith M_Buckley,Atty. Town Attorney Parker,Coulter,Daley& Muth J.Weil, White Assistant Town Attorney One Beacon Street Town of Barnstable Boston,Mass.02108 WITHDRAWAL FILED: 367 Main Street New Town Hall Hyannis,Mass. 11/15/95 01601 Appears for Dexter Bliss,et al,as 2 11/15/1995 MAYNARD KIRPA.LANI,.SSQ. Kevin 3.O'leary,Esq. Peabody&Arnold 50 Rowes Wharf Boston,Ma.02110 Date Printad: 1/14/2005 Case No.: Misc.163161 Converted Page 1 of 3 01/14/2005 11:08 FAX 1R]002 7- Code Entry Date 1 XAC Complaint,Appeal from Zoning Board, Cliap.40A Sec. 17,Filed 05/28/1991 2 AOS Affidavit of Service by certified on each defendant,filed 06/28/1991 3 MISC Plaintiffs First Set of Interrogatories Propound-ed Upon Defendant Town of Barnstable Zoning Board 03/30/1992 of Appeals,filed 4 PRA Plaintiffs Request for Admissions of Facts to theDefendant Dexter Bliss,filed 03/30/1992 5 PRA Plaintiffs Request for Admissions of Facts to theDefendant Elizabeth Nilsson,filed 03/30/1992 6 PRA Plaintiffs Request for Admissions of Facts to theDefendant Bruce Burlingame,filed 03/30/1992 7 PRA Plaintiffs Request for Admissions of Facts to theDefendant Luke Tally,filed ' 03/30/1992 8 PRA Plaintiff Request for Admissions of Facts to theDefendant Gene Burman,filed 03/30/1992 9 MISC Barnstable Zonis Board of A eats'Motion to g pp Strike All Discovery Propounded by Plaintiff(to be 04/03/1992 heard on April 23, 1992),filed 10 MISC Board of Appeals'Motion for Protective Order on Behalf of Defendants,Dexter Bliss,et al,as they are 04/08/1992 Members of The Barnstable Zoning Board ofAppeals(to be heard on April 23, 1992),filed 11 MISC Statement of Reasons in Support of Motion for Protective Order Precluding the Answering of 04/08/1992 Requests for Admissions by Members of the Board of Appeals,filed 12 MISC Plaintiff David Scott Horgan Motion for Summary Judgment and Request for Hearing,Filed 11/15/1995 13 MISC Affidavit of David Scott Horgan,Filed 11/15/1995 14 MISC Affidavit of Franc L.Horgan,Jr.,Filed 11/15/1995 15 MISC Affidavit of Eleanor N.Horgan,Filed 11/15/1995 16 MISC Affidavit of Kevin J.O'Leary,Esq.,Filed 11/15/1995 17 MISC Plaintiff,David Scott Horgan's Memorandum of Law in Support of His Motion for Summary Judgment 11/15/1995 Filed 18 MISC Plaintiff David Scott Horgan Motion for Summary Judgment and Request for Hearing,Motion to be 12/00/1995 heard on February 2, 1996.(Scheier,J.) 19 MISC Plaintiff David Scott Horgan Motion for Summary Judgment and Request for Hearing,Motion 02/02/1996 continued to March 27, 1996. (Scheier,1.) 20 MISC Memorandum in Opposition to Plaintiffs Motion forSummary Judgment by Defendant,Zoning Board 03/19/1996 of Appeals,Filed 21 MISC Affidavit of Shirley M.Crocker,Records CIerk forAssessors,Town of Barnstable,Filed 03/19/1996 22 MTSC Plaintiff David Scott Horgan Motion for Summary Judgment and Request for Hearing,Motion taken 03/27/1996 under advisement (Scheier,J.) 23 MISC Affidavit of Kevin J.O'Leary,Esq.,Filed 04/19/1996 24 MISC Affidavit of Janice P.Semprini,Asst.Assessor, Filed 04/19/1996 Date Printed: 1/14/2005 Case No.: Misc_163151 Converted Page 2 of 3 01/14/2005 11:08 FAX Q 003 # Code Entry Date 25 NHSC Order Granting Summary Judgment,Issued. (Scheier,J.) 10/09/1998 26 JE Judgment Entered. (Scheier,J.) 10/09/1996 27 NAP 'Notice of Appeal by Plaintiff,Filed 11/05/1996 28 MISC Notice of Assembly of Record on Appeal,Tssued. 02/21/1997 29 MISC Notice of Service of Notice of Appeal,Issued. 02/21/1997 30 MISC Agreement for Dismissal,Filed 05/27/1997 Date Printed: 1/14/2005 C2S9 No,: Misc.163151 Converted Page 3 of 3 TOWN OF BARNSTABLE BUILDING PERMIT APPLICATION Map Parcel � —0 y, � Permit# Health Division VIM Date Issued !� Conservation Division �� y�ti Application Fee Tax Collector A 11 Permit Fee Treasurer Planning Dept. ON P/Lty. A"iV® /104 Date Definitive Plan Approved b Pla ning B and O R e c� m� � 4 o� k. .�(e e � -� S� e s�� II�D1+0 Historic-OKH Preservation/Hyannis Project `10 Qr2Cbl 1ect Street Address y ? 3��'F�' Village 6L N am I tw Owner d�'' ��� fiZ UlOOP Address Telephone 8/,; : 3r,:Zo Permit RequestlO o- 6/1!g r ';�o© - Square feet: lst floor:existing proposed Z 2nd floor: existing proposed Total new ��' Zoning District ®- Flood Plain Groundwater Overlay Project Valuation .Ze zvv `e Construction Type Afew Lot Size /cae Grandfathered: 0 Yes ❑No If yes,attach supporting documentation. Dwelling Type: Single Family Two Family 0 Multi-Family(#units) Age of Existing Structure Historic House: O Yes 06 No On Old King's Highway: ❑Yes No Basement Type: Ai(full ❑Crawl ❑Walkout O Other Basement Finished Area(sq.ft.) Basement Unfinished Area(sq.ft) /4 Number of Baths: Full: existing new Half:existing new Number of Bedrooms: existing new Total Room Count(not including baths):existing new First Floor Room Count Cn IN Heat Type and Fuel: OGas ❑Oil ❑Electric ❑Other � Central Air: 14Yes ❑No Fireplaces: Existing New 9 Existing wood/coal Effi` e: 0 Yg qao Detached garage:0 existing ❑new size . Pool:O existing 0 new size Barn:O existR ❑net--.sizeA' Attached garage:0 existing it tnew size Shed:O existing ❑new size Other: Zoning Board of Appeals Authorization O Appeal# Recorded❑ rn Commercial ❑Yes 00 No If yes,site plan review# Current Use L1!JnQ t &t*U7— Proposed Use BUILDER INFORMATION Name 41 Telephone Number Address _ License# Home Improvement Contractor# Worker's Compensation# t / ALL CONSTRUCTION DEBRIS RESULTING FROM THIS PROJECT WILL BETAKEN TO C�Ga9Z o��` SIGNATURE L DATE Lo 4 Rd The law of merger in-a zoning,context also is helpful in resolving the instant issue. "The usual construction of the word `lot' in a zoning context ignores the manner in which the components of a total given area have been assembled and concentrates instead on the question whether the sum of the components meets the requirements of the by-law." Becket v. Building Inspector of Marblehead,6 Mass. App. Ct. 96, 104,further appellate review denied, 375 Mass. 78-8 (1978). "Conformity to the requirements of the zoning ordinance is achieved in such a case by treating the ostensibly conforming lot as servient to the nonconforming lot to the extent necessary to achieve compliance with the area ... requirements of the zoning ordinance at the .time of the transfer." DiCicco v. Berwick, 27 Mass. App. Ct. 312, 314 (1989)(citations omitted) (the merger in DiCicco resulted in a remainder lot consisting of 1000 square feet with 40 feet of frontage)." Prior to 1958, lot 29 consisted of 12,240 square feet. To satisfy the 20,000 square foot requirement of the 1958 By-law amendment(when all the lots were owned by Frank L.Horgan, Sr.), 7,760 square feet of lot 30 merged with lot 29 to form a conforming lot (lot 29-30). The remaining neighboring lots -- lots 31, 32, 33, and the remainder of lot 30 (approximately 4,900 square feet)were not affected by this merger. However,further merger occurred in February 1985, when the By-law was amended to increase minimum lot size from 20,000 to 43,560 square feet. In February 1985,Frank L.Horgan, Jr., Trustee owned all the lots. He had the opportunity to reduce the nonconformity;alternatively,he had five years to act to preserve his rights under section 6 and section 4-4.5, yet he did not. Therefore, the law of merger took effect and lot 29 merged with the "Although I acknowledge DiCicco as precedent, I also recognize the unfortunate outcome of the creation of a unbuildable lot from the remainder of the abutting parcel used to bring the improved lot into zoning conformance. 13 f adjoining parcels to the extent necessary to satisfy the new minimum lot area requirements. Thus, lot 29 merged with lots 30,31 and 32 -- to the extent necessary to meet one acre zoning--with the unfortunate result of leaving an unbuildable remainder lot comprised of lots 33 and part of 32(4,885 square feet of lot 32). I conclude the building on lot 29 exhausted any future right to build on the adjoining lots, to the extent necessary to bring lot 29 into minimum size compliance under the By-law(see attached diagram). This conclusion is consistent with the policy of minimizing zoning nonconformities. Indeed,the conveyances of lots 30 through 33 out of a common owner after the 1985 amendment only exacerbated the nonconformity as to lot 29. To allow a landowner to sidestep. local zoning in a way that creates a nonconformity would promote inefficient land use. i therefore uphold both decisions of the Board and grant summary judgment in both cases in favor of Defendants. Judgment accordingly. lac ,aryn Faith Scheier Justice Dated: October 9, 1996 14 ' ft TOWN OF BARNSTABLE IS/—tim—ning-BoArd of Appeals Application for Other Powers Date Received For office use only: � Town Clerk's Office: Appeal# Hearing Date Decision Due � The undersigned hereby applies to the Zoning Board of Appeals for the reasons indicated: Applicant Name: Daniel Wood � Phona:_5U8_8l Applicant Address: 38 Property Location: 40 Orchard Road, Centerville, MA Property Owner: Duvid�Scott Horgan Phone: Address ofOwner: 41 Baxters Neck Road Aomasnor'syW Number: Zoning District: ` Groundwater Overlay District: AP � This is a request for: [ l Enforcement Action J� Appeal of Administrative Official's Decision [ l Other General Powers -P|mooe Specify: Which of the Zoning Ordinance and/or MGL Chapter 4UA are you appealing bz the Zoning Board of Sections 5 3 2 and 4-4 2 2 of the Zoning Ordinance -a nd M.G.L. Chapter 40A Sections 8 l3 l4 �Aod 15 Nature of Appeal &Description ofApplicant � C000ui l �bn�� � dated "� ""=^ " =^^ � permit application (Application 79278) . The building permit was for a single Attach Additional Sheet if Necessary | f Application for Other Powers Page 2 Existing Level of Development of the Property- Number of Buildings: none Present Use(s): vacant Gross Floor Area: sq. ft. Is the property located in a designated Historic District?..................................................... Yes [ ] No [Xj If yes [ ] -Old King's Highway Regional Historic District Date Approved (if applicable) [ ) - Hyannis Main Street Waterfront Historic District Date Approved (if applicable) Is the building a designated Historic Landmark?.................................................................. Yes [ ] No [X] Have you applied for a building permit?................................................................................ Yes [K] No [ ] Have you been refused a building permit? ...........................................................................Yes [X] No [ ] The following information, as applicable, should be submitted with the application at the time of filing. Failure to do so may result in a denial of your request. • Three (3)copies of the completed application form, each with original signatures. • Three (3)copies of a certified property survey(plot plan) and one (1) reduced copy(8 1/2"x I V or 11"x 17")showing the dimensions of the land, all wetlands,water bodies, surrounding roadways and the location of the existing improvements on the land. • Three (3)copies of a proposed site improvement plan and one (1)reduced copy(8 1/2"x 11"or 11"x 17"). • The applicant may submit any additional supporting documents to assist the Board in making its determination. Signature: Date: Applicant's or Re sentative's Sig4hture Representative's Albert J. Schulz, Esq. Phone: 508-428-0950 Address: 7 Parker-.Road, Osterville, MA 02655 Fax No.: 508-420-1536 f FTHET°,�, Town of Barnstable Regulatory Services ` $" MAS& Thomas F. Geiler,Director 619.'°'Fo►�'' Building Division Thomas Perry,Building Commissioner 200 Main Street, Hyannis,MA 02601 www.town.barnstable.ma.us Office: 508-862-4038 Fax: 508-790-6230 September 23,2004 Kilroy& Warren,P.C. Attn:Bernard T.Kilroy 67 School St. PO Box 960 Hyannis,MA 02601 RE: 40 Orchard Rd., Centerville,Map.207 Parcel 021 004 Dear Atty. Kilroy: ` I am writing in response to your letter of September 7,2004 on the above referenced lot. I do agree with you that permits have been issued in the past for lots that were beyond the five years of protection. In most cases this is because the abutting lots were either built upon or were conveyed into separate ownership. The lot in question is unique in that it has already been declared unbuildable because of a court decision. A subsequent zoning ordinance, in my opinion,is not going to change this lot's status. In view of this I will have to deny the building permit application for 40 Orchard Rd., Centerville which was received by my office on September 7, 2004. Sincerel Thomas Perry Building Commissioner TP/AW From the Office of: A 4 STANDARD FORM PURCHASE AND SALE AGREEMENT This day of 'l 0,416• 20 1. PARTIES AND MAILING ADDRESSES hereinafter called the SELLER,agrees to SELL and (fill in) Jyi�it2 C'_ 4000O of ,3.9 &-✓z.y,-v e i2e1c- C�v/uytv�6cc ,/ oz�3� hereinafter called the BUYER or PURCHASER, agrees to BUY, upon the terms hereinafter set forth, the followd!ing described premises: yU �9CyfA'e-4 �Q L�'�r��I/ttLr /�,4 Q 9G3Z ' 2: DESCRIPTION ILA W%`rJ z V�'��j• t�,�f`0j�-��Cj,+t�'/0/U �-35 /�"I/�jJ. �//U/V D� ,�je��1j�/. (fill in and include title reference) 3. BUILDINGS, , Included in the sale as a part of said premises are the buildings,structures, and improvements now thereon, STRUCTURES, and the fixtures belonging to the SELLER and used in connection therewith including, if any, all wall-to-wall IMPROVEMENTS, carpeting, drapery rods, automatic garage door openers, venetian blinds, window shades, screens, screen FIXTURES doors, storm windows and doors, awnings, shutters, furnaces, heaters, heating equipment, stoves, ranges, oil and gas burners and fixtures appurtenant thereto, hot water heaters, plumbing and bathroom fixtures, (fill in or delete) garbage disposers, electric and other lighting fixtures, mantels, outside television antennas, fences, gates, trees, shrubs, plants and, ONLY IF BUILT IN, refrigerators, air conditioning equipment, ventilators, dishwashers,washing machines and dryers;and but excluding 4. TITLE DEED Said premises are to be conveyed by a good and sufficient quitclaim deed running to the BUYER, or to the (fill in) nominee designated by the BUYER by written notice to the SELLER at least seven days *Include here by specific before the deed is to be delivered as herein provided, and said deed shall convey a good and clear record reference any restdc- and marketable title thereto,free from encumbrances,except tions, easements, rights (a) Provisions of existing building and zoning laws; and obligations in party (b) Existing rights and obligations in party walls which are not the subject of written agreement; walls not included in(b), (c) Such taxes for the then current year as are not due and payable on the date of the delivery of leases,municipal and such deed; other liens, other (d) Any liens for municipal betterments assessed after the date of this agreement; encumbrances,and (e) Easements, restrictions and reservations of record,if any, so long as the same do not prohibit or make provision to protect materially interfere with the current use of said premises; SELLER against `(f) BUYER's breach of SELLER's covenants in leases, where necessary. 5. PLANS If said deed refers to a plan necessary to be recorded therewith the SELLER shall deliver such plan with the deed in form adequate for recording or registration. 6. REGISTERED In addition to the foregoing, if the title to said premises is registered, said deed shall be in form sufficient TITLE to entitle the BUYER to a Certificate of Title of said premises, and the SELLER shall deliver with said deed all instruments,if any, necessary to enable the BUYER to obtain such Certificate of Title. 7. PURCHASE PRICE The agreed purchase price for said premises is (fill in);space is allowed to write out the amounts if desired dollars,of which $ have been paid as a deposit this day and $ of cf y�Sao are to be paid at the time of delivery of the deed in cash,or by certified, cashier's,treasurers or bank check(s). $ 95 o d0 TOTAL 7Wp /1411r6WoV AN<'l /t/iN� /:�_143_PlvL5410 COPYRIGHT©1979,1984, 1986, 1987, 1988,1991, Rev. 1999 All rights reserved. This form may not be copied or GREATER BOSTON REAL ESTATE BOARD EQUAL HOUSING reproduced in whole or in part in any manner Form ID:RA151 PD:04/02-7500 OPPORTUNITY whatsoever without the prior express written consent of the Greater Boston Real Estate Board. 8. 'TIME FOR Such deed is to be delivered at o'clock M. on the day of PERFORMANCE; 20 at the DELIVERY OF DEED(fill in) Registry of Deeds, unless otherwise agreed upon in writing. It is agreed that time is of the essence of this agreement. 9. POSSESSION and Full possession of said premises free of all tenants and occupants, except as herein provided, is to be CONDITION of delivered at the time of the delivery of the deed, said premises to be then (a) in the same condition as they PREMISE now are, reasonable use and wear thereof excepted, and (b) not in violation of said building and zoning (attach a list of laws, and (c) in compliance with the provisions of any instrument referred to in clause 4 hereof.The BUYER exceptions, if any) shall be entitled personally to enter said premises prior to the delivery of the deed in order to determine whether the condition thereof complies with the terms of this clause. 10. EXTENSION TO If the SELLER shall be unable to give title or to make conveyance, or to deliver possession of the premises, PERFECT TITLE all as herein stipulated, or if at the.time of the delivery of the deed the premises do not conform with the OR MAKE provisions hereof, then any payments made under this agreement shall be forthwith refunded and all other PREMISES obligations of the parties hereto shall cease and this agreement shall be void without recourse to the parties CONFORM hereto, unless the SELLER elects to use reasonable efforts to remove any defects in title, or to deliver (Change period of possession as provided herein, or to make the said premises conform to the provisions hereof, as the case time if desired). may be, in which event the SELLER shall give written notice thereof to the BUYER at or before the time for performance hereunder, and thereupon the time for performance hereof shall be extended for a period of thirty days. 11. FAILURE TO If at the expiration of the extended time the SELLER shall have failed so to remove any defects in title, PERFECT TITLE deliver possession, or make the premises conform, as the case may be, all as herein agreed, or if at any OR MAKE time during the period of this agreement or any extension thereof,the holder of a mortgage on said premises PERMISES shall refuse to permit the insurance proceeds, if any, to be used for such purposes, then any payments CONFORM,etc. made under this agreement shall be forthwith refunded and all other obligations of the parties hereto shall cease and this agreement shall be void without recourse to the parties hereto. 12. BUYER's The BUYER shall have the election, at either the original or any extended time for performance, to accept ELECTION TO such title as the SELLER can deliver to the said premises in their then condition and to pay therefore the ACCEPT TITLE purchase price without deduction,in which case the SELLER shall convey such title,except that in the event of such conveyance in accord with the provisions of this clause, if the said premises shall have been damaged by fire or casualty insured against, then the SELLER shall, unless the SELLER has previously restored the premises to their former condition,either (a) pay over or assign to the BUYER, on delivery of the deed, all amounts recovered or recoverable on account of such insurance, less any amounts reasonably expended by the SELLER for any partial restoration,or (b) if a holder of a mortgage on said premises shall not permit the insurance proceeds or a part thereof to be used to restore the said premises to their former condition or to be so paid over or assigned, give to the BUYER a credit against the purchase price, on delivery of the deed, equal to said amounts so recovered or recoverable and retained by the holder of the said mortgage less any amounts reasonably expended by the SELLER for any partial restoration. 13. ACCEPTANCE The acceptance of a deed by the BUYER or his nominee as the case may be, shall be deemed to be a full OF DEED performance and discharge of every agreement and obligation herein contained or expressed, except such as are,by the terms hereof,to be performed after the delivery of said deed. 14. USE OF To enable the SELLER to make conveyance as herein provided,the SELLER may, at the time of delivery of MONEY TO the deed, use the purchase money or any portion thereof to clear the title of any or all encumbrances or CLEAR TITLE interests, provided that all instruments so procured are recorded simultaneously with the delivery of said deed. 15. INSURANCE Until the delivery of the deed,the SELLER shall maintain insurance on said premises as follows: `Insert amount Type of Insurance Amount of Coverage (list additional types of insurance (a)Fire and Extended Coverage `$ A—�j )'/�r��,f y lIV604LZ and amounts as (b) agreed) 16. ADJUSTMENTS Collected rents, mortgage interest, water and sewer use charges, operating expenses (if any) according to (list operating ex- the schedule attached hereto or set forth below, and taxes for the then current fiscal year, shall be penses,if any, or apportioned and fuel value shall be adjusted, as of the day of performance of this agreement and the net attach schedule) amount thereof shall be added to or deducted from, as the case may be, the purchase price payable by the BUYER at the time of delivery of the deed. Uncollected rents for the current rental period shall be apportioned if and when collected by either party. i COPYRIGHT©1979,1984,1986,1987,1988,1991 GREATER BOSTON REAL ESTATE BOARD All rights reserved. I 17' ADJUSTMENT If the amount of said taxes is not known at the time of the delivery of the deed,they shall be apportioned on OF UNASSESSED the basis of the taxes assessed for the preceding fiscal year,with a reapportionment as soon as the new tax AND rate and valuation can be ascertained; and, if the taxes which are to be apportioned shall thereafter be ABATED TAXES reduced by abatement,the amount of such abatement, less the reasonable cost of obtaining the same, shall be apportioned between the parties, provided that neither party shall be obligated to institute or prosecute proceedings for an abatement unless herein otherwise agreed. 18. BROKER's FEE A Broker's fee for professional services of t (fill in fee with is due from the SELLER to r11`1/ dollar amount or percentage;also name of Brokerage m e the Broker(s) herein, but if the SELLER pursuant to the terms of clause 21 hereof retains the deposits made firhereunder by the BUYER, said Broker(s) shall be entitled to receive from the SELLER an amount equal to one-half the amount so retained or an amount equal to the Broker's fee for professional services according to this contract,whichever is the lesser. 19. BROKER(S) The Broker(s)named herein WARRANTY, warrant(s)that the Broker(s)is(are)duly licensed as such by the Commonwealth,of Massachusetts. (fill in name) 20. DEPOSIT All deposits made hereunder shall be held in escrow by (rill in name) as escrow agent subject to the terms of this agreement and shall be duly accounted for at the time for performance of this agreement. In the event of any disagreement between the parties, the escrow agent may retain all deposits made under this agreement pending instructions mutually given in writing by the SELLER and the BUYER. 21. BUYER's If the BUYER shall fail to fulfill the BUYER's agreements herein,all deposits made hereunder by the BUYER DEFAULT; shall be retained by the SELLER as liquidated damages unless within thirty days after the time for DAMAGES performance of this agreement or any extension hereof, the SELLER otherwise notifies the BUYER in writing. 22. RELEASE BY The SELLER's spouse hereby agrees to join in said deed and to release and convey all statutory and other HUSBAND OR rights and interests in said premises. WIFE 23. BROKER AS The Broker(s) named herein join(s) in this agreement and become(s) a party hereto, insofar as any PARTY . provisions of this agreement expressly apply to the Broker(s), and to any amendments or modifications of such provisions to which the Broker(s)agree(s)in writing. 24. LIABILITY OF If the SELLER or BUYER executes this agreement in a representative or fiduciary capacity, only the TRUSTEE, principal or the estate represented shall be bound,and neither the SELLER or BUYER so executing, nor any SHAREHOLDER, shareholder or beneficiary of any trust, shall be personally liable for any obligation, express or implied, BENEFICIARY, etc. hereunder. 25. WARRANTIES AND The BUYER acknowledges that the BUYER has not been influenced to enter into this transaction nor has he REPRESENTATIONS relied upon any warranties or representations not set forth or incorporated in this agreement or previously (fill in);if none, made in writing, except for the following additional warranties and representations,if any,made by either the state`none",*if SELLER or the Broker(s): any listed,indicate by whom each war- ranty or represen- tation was made 26. M RTGAG In or er to help fin nce the cquisition sai premises, the BU ER shall apply for a cone ional bank o C NTINGIC Y other i stitution mortgage I an of$ prevailin ates, erms d C SE conditio . If espite the B ER's iligent a rts a c mitment or s ch loan canno a obtai d n or (omit' of before 120 the BUYER terminate hi greement b ritten provi for notice to a LLER and/or t oker(s),as age s)for the SE prior to th xpiration of c time, in 0 er to where on any yments m e un r this agre en hall be fo with r funde nd II other o igati s of P rchase) the rties hereto all ce a and thi agree nt shall a voi ithout rec r to the rties ereto. no ev t will the BUY e deemed to hav used dilig t orts to obtai . uch com ' ment unless e YER submits a co a mortgage to application co ing to the for g ' g provision or before ,2 COPYRIGHT©1979,1984,1986,1987,1988,1991 GREATER BOSTON REAL ESTATE BOARD All rights reserved. I •27'. CONSTRUCTION This instrument, executed in multiple counterparts, is to be construed as a Massachusetts contract, is to OF AGREEMENT take effect as a sealed instrument, sets forth the entire contract between the parties, is binding upon and enures to the benefit of the parties hereto and their respective heirs, devisees, executors, administrators, successors and assigns, and may be cancelled, modified or amended only by a written instrument executed by both the SELLER and the BUYER. If two or more persons are named herein as BUYER their obligations hereunder shall be joint and several. The captions and marginal notes are used only as a matter of convenience and are not to be considered a part of this agreement or to be used,in determining the intent of the parties to it. 28. LEAD PAINT LAW The parties acknowledge that, under Massachusetts law, whenever a child or children under six years of age resides in any residential premises in which any paint, plaster, or other accessible material contains dangerous levels of lead, the owner of said premises must remove or cover said paint, plaster or other material so as to make it inaccessible to children under six years of age. 29. SMOKE DETECTORS The SELLER shall, at the time of the delivery of the deed, deliver a certificate from the fire department of the city or town in which said premises are located stating that said premises have been equipped with approved smoke detectors in conformity with applicable law. 30. ADDITIONAL The initialed riders,if any,attached hereto,are incorporated herein by reference. PROVISIONS 6 j rprT� sys l /J�26 �49�C L� —. s uQ J BZT P"D 6LL'79'1e_ -rl i cam:' FOR RESIDENTIAL PROPERTY CONSTRUCTED PRIOR TO 1978,BUYER MUST ALSO HAVE SIGNED LEAD PAINT"PROPERTY TRANSFER NOTIFICATION CERTIFICATION" NOTICE: This is a legal document that creates binding obligations. If not understood,consult an attorney. � G SELLER BUYER SELLER(or Spouse) BUYER Taxpayer ID/ Taxpayer ID/ BRO ER(S) COPYRIGHT©1979,1984,1986,1987,1988,1991 GREATER BOSTON REAL ESTATE BOARD All rights reserved. . . r Town of Barnstabler, - ERK Zoning Board of Appea'1'-s::: .: : .:,;:r ';- Enforcement Appeal Decision and No t i ce 't _,, J a Appeal No . 1.991 -12 Petitioner Paul Brown et a At a regularly scheduled hearing of. the Barnstable . Zoning Board of Appeals , held on. April 25 , 1991., and having .been continued. from March 14 , 1991 , notice of which was duly published in the Barnstable Patriot , and notice of which was forwarded to all interested parties pursuant to . Massachusetts General Lau. (MGL) , Chapter 40A, the petitioner , Paul. Brown et al represented by Attorney Michael D. Ford , appealed to . the Board a decision of the Building Commissioner to issue a building permit for construction of a single-family dwelling , pursuant to the Town of Barnst.abie Zoning Ordinance , Section 5-3 . 2 ( 1 ) , "Enforcement /Appeal " and MGL Chapter 40A, Section 8 . T h e site is shown on A s s e s s o r ' s hj a p/a atr c:e_l_N-u m-b-9�r=2-0 7/0-21_ and . i s commonly addressed as 40 Orchard Road , Cente_r_v_i_l_I e- MA and i.s zoned RD- 1 , Residence D_1_Disttricctt . The petitioner , a.ggrieved with the Building Commissioner ' s determination to issue a buildi.ng permit , requested that the Zoning Board of Appeals override that decision and cause the permit to be revoked . Summary of Procedure : At the meeting of March 14 , 1991 , the Zoning Board of Appeals heard this appeal and Appeal # 1991 - 11 concurrently due to : the nature and relationship of the two appeals being the subject of the same land area , the April 04 , 1990 issuance of two ( 2 ) building permits by the Building Commissioner for the site and the subsequent December 18 , 1990 , action of the Building Commissioner to withdraw on.e of those permits and to uphold only the issuance of the other building permit . Appeal #1991 - 11 , that of Frank L. Horgan , is aggrieved with the Building Commissi.oner ' s determination to withdraw the issuance of one of the building permits , and is seeking the Board to override that determination and allow for an additional permit to be issued for the construction of a single-family dwelling .on the site . Frank L. Horgan was represented by Attorney Nancy H . Loeb . . 111 4 Both representatives agreed to concurrently hearing the appeals and agreed with the procedures outlined by the Board Chairman . The petitioner ' s request . was heard by Board members : Dexter Bliss , , Elizabeth Nilsson , Bruce Burlingame , Gene Burman and Chairman Luke Lally . Board members selected to decided on the case were agreeable to both Attorneys . Summary of Evidence: T.he following materials were submitted to Zoning Board of Appeals File # 1991 - 12 : January 16 , 1991 , Town of: Barnstable ZBA Application for Appeal #1991 - 12 ; List of abutters , certified by Robert D . Whitty , Director .of Assessing , dated , January .25 , 1991 ; Copy of March 14 , 1991 , Notice of Public ;Hearing ; Copy of the September 17 , 1990 , letter from Michae.I . D. Ford to Joseph DaLuz summarizing the reasoning why no building permits should not be . issued on the. site ; Copy of a December 18 , 1990 , letter from Joseph D. DaLuz , Building Commissioner to Attorney Nancy Loeb , . documenting the Commissioner ' s determination to only issue one building permit for the site in question ; Copy of a May 04 , 1990 , letter from Joseph D. DaLuz , Building Commissioner to Attorney Richard C. Anderson , issuing a delay in construction on the site until such. time as questions regarding the site and its building permits can be reviewed and clarified ; Copy of an Approval Not Required Plan , dated 11 -28-89 for which the Barnstable Planning Board refused to endorse Copy of Planning Board Minutes of 12-18-89 , documenting the Planning Board ' s refusal to endorse the ANR plan based upon the lack of information resulting in questions regarding whether or not. the plan qualifies and as an ANR or a subdivision plan ; Copy of a Subdivision Plan , titled "Centerville Estates" , and dated September 1927 . Copy of Case History ":defendants Berwick and Nelson , plantiff , and abutter represented by James L. Lamothe Jr . " in which a non-conforming lot .was determined to serve a non-conforming use as necessary to the extent required to achieve compliance with zoning requirements ; January 28 , 1991 letter to ZBA Office from Michael D. Ford , related to the scheduling of the appeal and an extension of ' time for acting on the appeal ; March 01 , 1991 , Department of Planning and Development Background Information submitted to The Zoning Board of Appeals ; March 14 , 1991 , Submittal from Michael D. Ford to Zoning' Board of Appeals titled "Appeal of. th,e Decision _ of Barnstable Building Inspector by Paul Brown et al , presenting the case that no building permits should be issued for the property ; and March 26 , 1991 , Memorandum from ZBA Chairman Lally requesting the input of the Town Attorneys Office on the subject of Appeals #1991 - 11 and 12 . At the meeting of .March 14 , 1991 , Both attorneys Loeb and Ford presented their case and materials substantiating their respective positions_. Attorney Loeb presented opinions as to the rights afforded the Hogans to have two ( 2 ) new buildable lots within the . site in question and further claimed that the use and location of multi -family apartment structure did not have a bearing on this Appeal . She presented her case to the Board in a written memorandum, dated March 14 , 1991 and presentedg the background , .a .discussion and conclusion as well as accompanying support papers . This memorandum is contained . within Appeals File No . 1991 -11 ; Attorney Ford presented the opinion that those rights af. forded. protection of the lots had in fact expired and the lots have all merged including that area occupied by the multi -family apartment structure . Under this opinion ,. no building permit should be afforded the locus in question ; Attorney Ford went on to explain that protection under MGL Chapter 40A, Section 6 , applies only to lots for single and two-family dwellings , and that this locus being occupied with a multi -family apartment structure does not afford itself such protection . Furthermore , no plans have ever been recorded as to the conveyance of. lots since the original 1927 subdivision or the 1945 construction of the multi -family dwelling and land ownership has in essence been that of a single control , the Horgan family ; Attorney Ford presented his findi.ngs in a paper titled "Appeal of the Decision of Barnstable Building Inspector by Paul Brown et al " • The Petitioner , Pau.l .Brown , spoke in favor: of his appeal . to the Board for enforcement of the Zoning Ordinance because he felt the issuance of any building permit for the site would not be in . keeping with the spirit and. intent of Barnstable ' s Zoning Ordinance ; The Board read into the records , letters submitted to the File No 1991 -11 , which being in support of that petition are opposed to this appeal . Those letters were from the following persons ; Larry Horgan , Frank Horgan , Mary Law, Diane Horgan James , Bill O 'Toole, George Hammond , Alan Grandy , Dan. James . and Mr . Russell ; and The public hearing was closed on March 14 , 1991 and the matter of both .appeals was taken under consideration by the Board to allow the members to review the information presented and to seek the input of the Town .Attorney ' s Office . Both appeals were subsequently taken up by the Board at .its meeting of A.pri.l 25 ; 1991 at which time the Board formulated .its findings and Decision . Finding of Facts : At the meeting of April 25 , 1991 , the Zoning Board of Appeals made the following finding of facts as . related to Appeal No 1991 -12 : 1 . On December 18 , 1989 , the Barnstable Planning Board denied the endorsement of an Approval Not Required Plan (ANR) for the subject . site ; 2 . A four. (4 ) unit multi -family dwelling , built in 1945 , exists on the site ,and the dwelling and lots in question have been assessed as one. lot (map 207 , parcel 021 ) for several years ; 3 . The total area of the site , being between 1 . 37 and 1 . 39 acres , is not sufficient to create two ( 2 ) . new . one-acre buildable lots in addition to retaining a lot area for the multi -family structure ;: 4 . In February , 1985 the lot area requirements for the zoning district was increased to one ( 1 ) acre , and there is no plan on record as of 1985 which shows or describes the site as con.tain.ing five ( 5 ) lots in existence at that time . In effect , all lots have ' been under common ownership ( control ) by Frank L. Horgan as owner/ trustee since 1945 ; and ,f 5 . The owner, of this property is not. a.fforde.d the five. . ( 5 ) yea r.s- of p.rot.ecti.on for lot size increase (which occurred in 1985 ) and which is provided for in MGL Chapter 40 .A, Section 6 due to the fact that multi - family dwellings ( greater that two ( 2 ) units ) are. exempt from such protection . The vote on the finding of facts was as follows : Ayes : Dexter Bliss , Elizabeth Nilsson , Bruce Burlingame and Chairman Luke Lally . Nays : Gene Burman Decision : At -the meeting of April 25 , . 1991 , a motion wa.s duly made and seconded to find that the issuance of a building permit for this. site is in error and that the decision of the Building Commissioner toissue one building permit for the site is overridden by th.e Board and such permit is revoked by the Zoning Board of Appeals . The vote was. as follows : Ayes :. Dexter Bliss , Elizabeth Nilsson , Bruce Burlingame and Chairman Luke Lally . Nays : Gene Burman Appeal No . #1991-12, requesting the Board to override the decision of the Building Commissioner and revoke that permit which is issued has been favorably acted upon and such . permit is revoke.d . RT 28 TOP OF FOUNDATION 45.00 6„ MAX ?' iLEVEL 2' MIN }1.00' MIN, 3.00' MAX NORTH Z PINE RISER REQ'D 9" MIN, 36" MAX 0.17 •� 5� 3" SEEDED TOPSOIL, 27* SLOPE 2" PEASTONE P� 1.25 42.00 MIN B ON 44.00 MAX 41.50 1.17 40V66- -38.5090 � 41.00 ORC ARD 41.25 0.2540.73 �r" :iS Y, �.� a o 0 0 3/4" TO 1-1/2"DOUBLE 0.83 4.00 40.50 `=5" ``1 =n , . • �. s„`t �'rr', WASHED STONE • tr! ,�x .a?;• nr•,•`��. -.K�v' �.i 'r. 4.00 RIBUTION BOX SIDES32 x 41500 GALLON SEPTIC TANK3 OR DB-5 H-10 2,pp 18.00 ST-1500-H-10ER TEST TO ENDS VE EQUAL FLOW 6" GRAVEL ON NATIVE SOIL OR BOTTOM OF TEST HOLE 20.50 MECHANICALLY COMPACTED BASE 36 x 12 LOCUS MAP NOT TO SCALE GENERAL NOTES DESIGN CALCULATIONS 1) ALL WORKMANSHIP AND MATERIALS SHALL CONFORM TO 310CMR15.00 THE STATE ENVIRONMENTAL CODE TITLE V. MINIMUM NUMBER OF BEDROOMS 4 REQUIREMENTS FOR THE SUBSURFACE DISPOSAL OF SANITARY SEWAGE, GARBAGE DISPOSAL UNIT NOT ALLOWED AVAILABLE FROM STATE HOUSE BOOKSTORE 1-617E727-2834, AND DESIGN FLOW TOWN OF BARNSTABLE RULES AND REGULATIONS FOR THE SUBSURFACE SOIL TEST 4 BEDROOMS x 110 GAL/(BR-DA)=440 GPD. DISPOSAL OF SANITARY SEWAGE. BATE OF SOIL TEST 07 27404 REQUIRED SEPTIC TANK CAPACITY (MIN)1500 0 GAL 2) CONTRACTOR SHALL VERIFY LOCATION OF EXISTING UTILITIES. PERCOLATION r ACTUAL SEPTIC TANK CAPACITY 1500 GAL CONTACT DIG-SAFE AND LOCAL WATER DEPARTMENT 3 BUSINESS DAYS WITNESSED BY DOVE LEACHING AREA REQUIREMENTS BEFORE BEGINNING CONSTRUCTION. PERCOLATION RATE <2 MIN../INCH. SOIL EVALUATOR Y LING SEPTIC SYSTEM PROFILE --BOTTOM 0.74 GAL/(SF-DA) 3) CONTRACTOR RESPONSIBLE FOR OBTAINING ADEQUATE HORIZONTAL NOT TO SCALE --SIDE 0.74 GAL/(SF-DA) AND VERTICAL CONTROL. OBSERVATION HOLE i LEACHING CAPACITY 4) ALL COVERS OF SANITARY UNITS SHALL BE BROUGHT TO WITHIN 6" ELEV.= 43.00 ((36'x12') + 2x(36'+12')x2') OF FINISHED GRADE. ALL MASONRY UNITS TO BE MORTARED IN PLACE. xO.74 GALASF-DAY)= 461 GP D ALL PVC PIPE TO BE SOLVENT WELDED. ELEV. DEPTH HORIZ SOIL TEXTURE COLOR MOTTLING RESERVE 461 GP D 5) NO DETERMINATION HAS BEEN MADE AS TO COMPLIANCE WITH DEEDED 42.83 0-2 0 - - N OR ZONING RESTRICTIONS AND/OR REGULATIONS. OWNER/APPLICANT 42.42 2-7 A LOAMY SAND 10YR4/3 0 MUST OBTAIN SUCH DETERMINATION FROM APPROPRIATE AUTHORITY. 41.00 7-24 Bw LOAMY FINE SAND 10YR5/6 N APPROX. NGVD 6) EXCAVATE AND REMOVE UNSUITABLE MATERIAL BELOW THE LEACHING 33.00 24-120 C MEDIUM SAND 10YR7/4 E BENCHMARK INVERT ELEVATION FOR 5' AROUND LEACHING SYSTEM AND REPLACE WITH CBF EL.= CLEAN SAND. 41.84 7) IF ANY DETAIL OF THIS PLAN IS NOT UNDERSTOOD, CONTACT DESIGN ENGINEER AT 432-6360. 8) 48 HOUR NOTICE IS REQUIRED FOR ANY INSPECTION OR \�4�t ALTERNATE BENCHMARK: TOP OF CERTIFICATION REQUIRED. 91.01' FOUNDATION NAIL TO BE SET IN TREE 9) SITE LIES WITHIN FLOOD ZONE C AS SHOWN ON MAP 250001 0016 D PERCOLATION TEST DONE AT A DEPTH OF 58" �0 ELEV 45.00 DATED 07-02-92. NO WATER ENCOUNTERED y�F OBSERVATION HOLE 2 - El EV.= 32.00 ELEV. DEPTH HORIZ SOIL TEXTURE COLOR MOTTLING RREA 99 6 j 15.50 31.25 0-9 Ap LOAMY SAND 10YR3/2 N J, RE ? GO ' 30.00 9-24 Bw LOAMY FINE SAND 10YR5/8 0 28.67 24-40 Cl FINE SAND 10YR6/6 N T#1 20.50 40-138 C2 MEDIUM SAND 10YR7/6 E A AA 2.00 ? 36 24.0 PERCOLATION TEST DONE AT A DEPTH OF 58" (o 3g p NO WATER ENCOUNTERED 50.00 ^f ARE 3,02 F. P OPO ED o dA 4B Q FUTUR TO 45.0 °- OOL 3 4.0 "t 2• APPROVAL E 'IN- STAMP 0 PRO OS D 21 f ' c� AR GE o �p Date DESCRIPTION Drawn Checked OF 43.5 w LA 42. 2.00 REVISIONS o ,, 3 4. 0 SEPTIC SYSTEM AND SITE PLAN N �' �� 4,,j 18. 0 PROPOSED AT E a w 40 ORCHARD ROAD ORHw 31. 1 > IN R© ROAD E ��0 36.00 CEN TERVI LLE 19 ZONING DISTRICT: RD-1 32 SCALE: NOTED DATE: AUG 9, 2004 AQUIFER PROTECTION OVERLAY 3 DISTRICT ---- _ 00 4.00 0 LA BARGE - ASSESSORS MAP 207E SOBS 4 PAVED s�RFA�E Q ENGINEERING& CONTRACTING,INC. 237 MAIN ST. -ROUTE 28 SITE PLAN WEST HARWICH, MA 02671 1 " = 20' G gVEL SURFACE 40 12.0 (508)432-6360 10 0 •030 DRAWN BY: BJY '�-� CHECKED BY: TAL SHEET 1 OF 1