HomeMy WebLinkAbout0087 SCUDDER BAY CIRCLE /
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` Doc-- 1 s 177 s 529 11-10--2011 1 i0=48
Ctf 0- 195627 -
BARNSTABLE LARD COURT REGISTRY
W M
9C QUITCLAIM DEED
I, Evelyn M. Maher; married to, Charles L. Maher, of 18 White
Pine Lane, Barnstable� (Centerville) , Barnstable County,
Massachusetts, in consideration of One Hundred Seventy-five
Thousand ($175, 000. ) Dollars paid, grant. to Paul E. Graff and Greta
ti A. Graff, husband and wife,. as tenants by the entirety; both of
Q 86,81 S.E,. .Nicolete Lane, Hobe Sound, Florida 33455
3 with quitclaim covenants
the land in Barnstable (Centerville) , Barnstable °County;
Massachusetts,' bounded and -described as follows: '
Westerly by White Pin''e Lane, one :'hundred thirty-seven
and 50/100 ' (137 . 50) feet;
N F.
Northwesterly by the junction -of said Lane and Scudder Bay,
Circle, twenty-eight and '27/100 (28.27) feet;
Northerly. by said Scudder Bay Circle, one hundred seven
p , and 75/100 (107 .75) feet;
Northeasterly by Lot 20, one hundred. forty (140) feet;
4
Southeasterly by "a portion. of Lot 21 and by Lot 18, one
q ,hundred sixty-two and 96/100 (162. 96) -feet.
All of said boundaries are determined by the Land Court to be
located as shown on Land . Court Plan. 27-801-A ,(Sheet 2) ; the same
being compiled from a plan drawn.by Earle F. Dunham,. Sr , .Surveyor;
dated April .4-, 1957, and _,additional.., data on file in the Land
Registration Office at Boston, all as modified and approved by the
. : Court, a copy of .a portion of which is filed' in Barnstable; County .
Registry of Deeds in Land,, Registration Book 199, Page .19 with
Certificate of Title No 25959 and said land is shown thereon as
LOT' 1:9.,
:1
Said land is subject to an easement as set forth in a grant
made by Fields Point Manufacturing Corporation to the Cape &
Vineyard Electric Company and the New England Telephone and
Telegraph Company dated April 25, 1957, duly recorded in Book 972,
Page 30.
Said land is subject to, and has the benefit of, easements and
restrictions granted and reserved in a deed given by said Fields"
Point Manufacturing Corporation to Harold. I. Wilcox -et ux . dated
September 2, 1958, duly recorded in Book 1014, Page 104, ° as
affected by two instruments executed by said Fields Point
Manufacturing Corporation; one dated February 16, 1960, duly
recorded in Book -1073, Page 215 and the other dated August 31,
1960, duly recorded in Book 1088, Page 394 .
Said land is subject to the easement
granted in a deed given by Evelyn M.. Maher to Charles. L. Maherkof
even date to be filed for registration herewith. *and Evelyn M. Maher
For grantor' s title, see Certificate of Title No. 55394 in the
Barnstable Registry District of the Land Court.
Executed as a sealed instrument this /(Aday of November,
2011.
Evel n .M.. Maher
BARNSTABLE COUNT 'EXCISE TAX
BARNSTABLE LAND COURT REGISTRY
Dote: 11-10-2i!11 @ 10:43a.m
COMMONWEALTH OF MASSACHUSETTS (:tl; 3-4 Ga,r: 1177529
Fee: $477.511 Cons: �175r0ijii,iiq
Barnstable, .ss
On this 1,0 day of November, 2011, before me, the undersigned
notary public, personally appeared Evelyn M. Maher, proved to me
through. satisfactory evidence to be the person whose name is signed
on the preceding document, and acknowledge to me that she signed
it voluntarily for its stated purpose. �.
.s,,,y
AS C '��►
o•`0 .p,9 Notary ublic
IAM.•• p
A. Gp° i?�tG My Commission Expires: Z7 x
to
s a N MASSACHUSETTS STATE EXCISE TAX
r BARNSTABLE LAND COURT REGISTRY
Date: 11-10-2011 S. 10:4Eam
p .bF Ctl`.: 354 Docr: 1177529
y'k .PtlB�� Fee: $598.50 Cons: $1757000.00
1
AFFIDAVIT OF.ATTORNEY
The undersigned, an attorney at law,.make the following statements ,
of my own personal knowledge:
1. 1 am the attorney for &CLY44' k /fL c:......., the grantor(#
grrs I e(Scymmdgage (s) [select one] named in the deed/ rae [select
one] to which this affidavit is attached. . I participated in the preparation of,,
said deed/raGt>gagel participated in the closing of the transaction of which
such deed/rye is a partladvised the grantor(s)/ a WrwxtMee
as to the execution and delivery of such deed/mortgage [select-appropriate
facts].
2. Subsequent to the preparation of such deed/modgage�the
following changes to the deed/martgagec were made at the time of delivery
of the deed/modM a in the process of preparing to record the
deed/iertga p [select appropriate facts].
a) delete the words "access .and landscape" on page 2
b) insert the name "Evelyn M. Maher" on page 2
C)
3. All such changes were made with the consent and approval of the
grantor(s)/grantee(sy ffso [select appropriate facts] in order to
conform the deed/ mutgage to their intentions.
Signed under the pains and penalties of perjury this loth day of
November , 20 11.
J -
``\\�\tut a rrliilr
'C 0, iigl name
`�`�4�•�\9SIONFypFr� ''/, Thomas C. Paquin 388890
:i;Cr J:z-, ,'qF:F print name BBO
. N•
OMA
//IlI1HJ1t11\\
•�2 REGISTRY�pp�1STASl� OF DEEDS
-
Doc' 1 r 177 r 12S 1.1-1�J-2U11 i o:4a
BARNSTAGLE LANDi .;COURT REGISTRY
V DEED OF EASEI1;NT
ZZ
IlkI, EVELYN M. MAHER; married to Charles L. 'Maher, of. 18 White
Pine Lane, Barnstable (Centerville) ,. Barnstable County,
Massachusetts :(hereinafter, "Grantor",)., in consideration of One
Dollar paid, grant to CHARLES L. MAHER and EVELYN M. MAHER,
husband and wife., as tenants by ,the entirety, both of 18' White Pine
Lane, Barnstable (Centerville) ,, Barnstable County, Massachusetts
V (hereinafter, collectively, "Grantees") , an easement over 2, 315
ti
square feet of LOT 19 as shown on Land .Court Plan 27801-A (Sheet
2) , as depicted on the sketch plan .annexed , hereto and: entitled:
3 "Easement Plan in Barnstable (Centerville) , MA over part of Lot 19
shown on Land Court Plan 27801-A (Sheet 2) Scale of 30 feet to' an-
cn inch January 20, 2003 Edward E. Kelley Reg. Prof. Land. Surveyor Box .
W 51 Cummaquid, MA 026377. ("easement area") ;.
Said easement shall be appurtenant to the Grantees' real
Ali estate located at 18 White Pine Lane,, shown as Lot 18 and Lotr21 on
Land Court Plan 27801-A. (Sheet 2) - and- shall run with the land:
Said easement shall -be for the purpose of Grantees' ingress
and egress to the rear yard of Lot 18 and Lot 21 from White Pine
A Lane. No driveway shall be constructed, within the easement and no
V motor vehicles, boats, trailers or the like shall be parked or
4 stored within the easement area.. Grantor shall- retain all rights
�q in the easement area for all purposes not inconsistent with the
easement rights`` granted =herein. ,
The easement granted herein shall terminate upon the death of
the last to die of Charles L. Maher -and Evelyn M. Maher or the
earlier conveyance ,of Lot, 18 or .Lot 21.
F
For Grantor's title,T see Certificate of 'Title No. 55394 .
For Grantee's title see Certificate of Title No: 34045 and
Certificate of Title No 35317;
Executed as a sealed instrument this /DAday of November,
2011.
i .C..-i -../
EvelynIM. Maher
COMMONWEALTH OF. MASSACHUSETTS
Barnstable, ss
On this /b day of November, 2011, before me, the undersigned
notary public, personally appeared Evelyn M. Maher,. proved to me
through satisfactory evidence to be the person whose name is signed
on the preceding document, and acknowledged to me ;that she.: signed
it voluntarily` for its stated purpose.
!t` S C Pq0 r
O o�M:+�xA;. G� NotaryPublic
�� � 2t.1oa� ,Z My Com0ission Expires:
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SKCTCH
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SCUDDER BAY C�RC`E
N 76030'50°E R-
248.09..
60.16 - A-47.59
R=18.00
A=28.27
CB r OD .
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ti WT ZO
w LOT 19 W
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in
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z°27'27"e
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-� N and landscape -_. z_ .30•s8
orf, e i
- °v � ea5emen 32.28
FT 1 6
p m 2,315.S4. 162.9 I
Z -S 6g°57'2911 W LOT 21
LOB
EASEMENT PLAN IN BARNSTABLE (CENTERVILLE) MA.
OVER PART OF LOT 19
SHOWN ON LAND COURT PLAN 27801A SHEET 2
SCALE OF THIRTY FEET TO AN INCH
JANUARY 20, 2003
EDWARD E..KELLEY
REG. PROF LAND SURVEYOR
BOX 51
Q: CU M M AOU I D,MA. 026375
CHARLES R.MAHER- PETITIONER
BARNSTABLE REGISTRY OF DEEDS
i
J ,
JOHN W. KENNEY
ATTORNEY AT LAW
12 CENTER PLACE
1550 FALMOUTH ROAD
CENTERVILLE, MA55ACHU5ETT5 02632
TELEPHONE 771-9300 FAX NO. 775-6029
AREA CODE 508 e-mail:jwkesq@cape.com
December 7, 2000
HAND DELIVERED
Building Department
Town of Barnstable
367 Main Street
Hyannis, Ma 02601
Re: Opinion Letter re: Buildability of undersized lot
Locus: Lots 19 and 20 on Land Court Plan 27801-C
Parcel I.D.: Map 187, Parcels 007 and 035
Land Area: Lot 19 - .43 acres
Lot 20 - .41 acres
Total land area: .84 acres
TO WHOM IT MAY CONCERN:
I am writing this letter to set forth the reasons why, in my opinion, for zoning purposes
the above-referenced lots have merged into one lot and together they form one buildable, "non-
conforming lot" exempted from the current minimum lot size provisions of the Barnstable
Zoning Ordinance. I request that this opinion letter be placed in your file on this property. The
facts regarding the lots are as follows:
1. Lots 19 and 20 were originally established on a plan of land dated April 4, 1957.
The plan is registered in the Land Court Division of the Barnstable Registry of
Deeds as Land Court Plan 28701-A. A copy of this plan is enclosed herewith for
your review.
2. In 1956 the zoning district in which Lots 19 and 20 are located was an RB-1
Zoning District. This district required 10,000 square feet of land with a width of
100 feet for each lot. At the time of their creation, Lots 19 and 20 met all
requirements of the RB-I Zoning District.
3. Shortly after the subdivision plan creating Lots 19 and 20 was approved, the
zoning district in which these lots lie was changed. In 1958 the district was
changed to RD-1 and required 20,000 square feet of land with a width of 125 feet.
Lot 19 contains 18,700 square feet. Lot 20 contains 18,000 square feet. Pursuant
to the provisions of M.G.L.c. 40A §6, however, Lots 19 and 20 were protected
from the effects of this change until 1964.
Building Department
December 7, 2000
Page 2 of 4
4. At the time of their creation, in 1957, Lots 19 and 20 were owned by Fieldspoint
Manufacturing Corporation. Fieldspoint Manufacturing Corporation continued to
hold title to Lots 19 and 20 until 1965. Therefore, the lots lost their "plan
protection" and merged into one lot in 1964.
5. Fieldspoint Manufacturing Corporation conveyed Lot 19 to Charles Maher and
Evelyn Maher by deed dated March 29, 1965. This deed was recorded on April
15, 1965 in the Land Court Division of the Barnstable Registry of Deeds as
Document No. 95,311. A copy of this deed is enclosed herewith for your review.
6. On July 11, 1972, Evelyn Maher and Charles Maher conveyed title to Lot 19 to
Evelyn Maher individually. This deed is registered as Document No. 162,157.
Evelyn Maher has held title to this lot since the date of the deed into her. A copy
of this deed is enclosed herewith for your review.
7. On March 29, 1965, Fieldspoint Manufacturing Corporation conveyed title to Lot
20 to Charles Maher. This deed is registered as Document No. 216,373. Charles
Maher has held title to Lot 20 since the date of the deed into him. A copy of this
deed is enclosed herewith for your review.
8. Since Lots 19 and 20 were merged prior to the conveyances by Fieldspoint
Manufacturing Corporation to the Mahers, the separate conveyances to the
Mahers are not sufficient to undo the merging of Lots 19 and 20 into one lot.
When Lots 19 and 20 merged into one lot in 1964, the resulting single lot met the
requirements of the RD-1 Zoning District. The conveyance of Lot 19 to Mr. and
Mrs. Maher in 1965 created a dimensional non-conformity in Lot 20 which could
not be done without the approval of the Zoning Board of Appeals. Thus, even
though Evelyn Maher holds title separately to Lot 19 and Charles Maher holds
title separately to Lot 20, for zoning purposes these lots were deemed to be
merged into one lot in 1965 and remain as one merged lot today. See Horgan v.
Board of Appeals of Barnstable, Land Court Miscellaneous Case Number 163150
and 163151 a copy of which is enclosed herewith for your review. Also see
Asack vs. Board of Appeals of Westwood, 47 Mass. App. Ct. 733, 1999, a copy
of which is enclosed herewith for your review.
9. Charles and Evelyn Maher also own abutting Lots 18 and 21. Abutting Lot 18
was acquired by Charles and Evelyn Maher from Fieldspoint Manufacturing
Corporation by deed dated November 27, 1964. Lot 18 contains 22,500 square
feet. It also has a width in excess of 125 feet. At the time of its conveyance into
the Mahers Lot 18 met the requirements of the RD-1 Zoning District for a single-
family residential lot. A copy of the deed to Lot 18 which is Land Court
Document Number 92,617 is enclosed herewith for your review.
` Building Department
December 7, 2000
Page 3 of 4
10. Subsequent to the acquisition of Lot 18, the Mahers acquired title to abutting Lot
21. Abutting Lot 21 was acquired from Fieldspoint Manufacturing Corporation
by deed dated and recorded on June 21, 1965. Lot 21 contains 22,700 square feet
and is held in the name of Charles and Evelyn Maher. Lot 21 also has a width in
excess of 125 feet. At the time of the conveyance by Fieldspoint Manufacturing
Corporation to the Mahers, Lot 21 met the requirements of the RD-1 Zoning
District for a single-family residential lot. A copy of the deed to Lot 21 which is
Land Court Document Number 97,000 is enclosed herewith for your review.
11. The Mahers constructed their personal residence on abutting Lots 18 and 21. For
zoning purposes these lots are merged into one buildable lot and it contains the
Mahers' private residence.
12. The zoning history of this area is as follows:
1950 Zoning A District Article 68
1956 RB-I District Requiring 10,00 square foot lots
With a width of 100 feet Article 42
1958 RD-1 Area was increased to 20,000 square
feet with a width of 125 feet Article 49
1985 RD-1 Area was increased to 1 acre with a
20-foot frontage requirement and a 125 foot width Article 1
1996 RD-1 Area still required 1 acre of area with 20 feet
of frontage and a width of 125 feet with
established setbacks of 30 feet for the front of the
lot and 10 foot setbacks for the side and rear of
the lot
2000 Two acre zoning enacted
13. Lots 19 and 20 did not comply with the zoning change in 1958. When the plan
protection afforded by M.G.L.c. 40A expired in 1965, these lots were merged into
one building lot. This merger took place prior to the conveyance of either lot by
Fieldspoint Manufacturing Corporation to the Mahers.
14. Abutting Lots 18 and 21 complied with every zoning change which affected this
area until the adoption of Article 1 on February 28, 1985 at Town Meeting which
increased the area for lots in the district to one acre. At the time of this change,
Lots 18 and 21 were each owned by Charles and Evelyn Maher jointly. Lots 18
and 21 have merged into one lot.
Based on the foregoing it is my opinion that under Section 4-4.2(1) of the Town of
Barnstable Zoning Ordinance, the lot which was created by the merger of Lots 19 and 20 is not
held in common ownership with any adjoining land; has a minimum of 5,000 square feet of area
and 50 feet of frontage (which exceeds the minimum frontage requirement for this zoning
district); conformed to the existing zoning when legally created; individually Lots 19 and 20 did
i
Building Department
g P
December 7, 2000
Page 4 of 4
not comply with the zoning change of 1958 but the resulting merged lot did comply with this
zoning change; and the lot has been held in separate ownership at the time of every zoning
change which made it non-conforming. Therefore, it is my opinion that Lots 19 and 20 are one
merged "grandfathered" lot and may be build upon for residential purposes because the
combined lot resulting from the merger of Lots 19 and 20 conforms with Section 4-4.2(1) of the
Zoning Ordinance.
Very truly yours,
Jo0hn W. Kenney, Es .
JWL:gb
Barnstable.o25
Cc: Mr. and Mrs. Maher
� vsn� ^
------_duly—established under the-laws --- -Slu
and having its usual place of business at
for wnsideration paid,
------ -----'-- U
- . "
L m=mmm Count y. and �
(Description and encumbmca,if=71
WESTERLY by White Pit%e Lane, 137-50 feet;
~~^^~~^~L^ by ~ curved~ —line —forming -- irit rr-etlmn — --- �
Pine Lane and Scudder
' Circle, having a radius
of 18.00 feet and an arc of 28.12 7 feet;
NORT11ERLY by Scudder wn Circle, 107.75 fent SOUTHWESTERLY � |
. .
by
All of said boundaries °re ==^mi= by the Court to be located as shown on !
—Plan --_' ' (Sheet_ _, -- same —being~ --_-'_ from—_ - plan—_ drawn — Earle ` /
Sr., Surveyor, dated April 4 1957 and additional data on u`* in the ^ono Registration !
Office—_ at Boston,— _all --__—'--_— —_-- '— _'____copy. -_hich-Page 104 as affected by two instruments executed by said Fields Point Manufacturing'
filed in Barnstable County Registry of Deeds in Land Registration Book 199, Page 19
with Certificate of Title No. 25959, and said land to shown thereon as LOT 19.
The above described lot is subject to and has the benefit of easements and restrictions
granted and reserved in a deed given by said Fields Point Manufacturing Corporation
to Harold 1. Wilcox et ux dated September 2, X958, duly recorded In Book 1014,
^
Corporation; one dated February 16, 1960, recorded in Book 1073, Page
zw and the
other dated August 13, 1960, recorded in Book 1088, Page 394.
;
he
For "``^° `°^e"e"` is made to =^`^^^"°`e of ^^^^. .. ~.~ which ^~~-^. --_ '_ �
originalumzoe of the Land Court in xi �
D]1 USE �
! cc
In uiltilroo w9er,=. the said ""°^^O." /
has caused its corporate =ad to be hereto affixed and m= presents to be signed, acknowledged and �
delivered in its name and behalf by LVL_;�M_.!�_s Executive Vice President,and
Gerard J. Quinton,
its Secretary hereto duly authorized,this 29th
day nf Maz�Ch. _.in die year one thousand nine hundred and sixty-five.
Signed and senled in the presence of
by �
S.
- THE STATE OF RHODE ISLAND
John A. Wilson, Executive Vice PreBident, and
Then personally appeared the above-named Geraxd_.J_..QuiDt0z)
and acknowledged the foregoing instrument to be the free act and decd of the
ie. %111 before me,
w
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� r4•+!'•hM''�•On!t'i!!F!tt'A.t+Jf!+'•N...,••A.M:L '•�M-
QUITCLAIM DEED
•HARLES L. MAHER and EVELYN M. MAHER, husband and wife, as tenants
y the entirety, both of 18 White Pine Lane, Centerville, Massa-
chusetts, for consideration paid of - lo.o o grants to:
EVELYN M. MAHER, married to Charles L. Maher,
18 White Pine Lane, Centerville, Massachusetts,
ith QUITCLAIM COVENANTS, the land situate in Barnstable (Center-
ille), Barnstable County, Massachusetts, bounded and described as
ollows:
I: STERLY by White Pine Lane, 137.50 feet;
ORTEFdFSTERLY by the JJunction of said Lane and Scudder Bay Circle,
28.27 feet;
ORTHERLY by said Scudder Bay Circle, 107.75 feet;
NORTHEASTERLY by Lot' 20, 140 feet; and
SOUTHEASTERLY by a/portion of Lot 21 and by Lot 18, 162.96 feet.
All of said boundaries are determined by the Court to be located as
_ shown on plan 27801-A (Sheet 2) the same being compiled-=.from a--plan 1.-.--- --.
drawn by Earle F. Dunham, Sr. , Surveyor, dated April 4, 1957,' and
additional data on file in the Land Registration Office at Boston,
all as modified and approved by the Court, a copy of a portion of
which is filed in Barnstable County Registry of Deeds in Land Regis
tration Book 199, Page 19, with Certificate of Title No. 25959 and 1
said land is shown thereon as
Subject to an easement recorded in Book 972 Page 30 Barnstable
Registry of Deeds.
Said Land is subject to and has the benefit of easements and
restrictions, reservations and other matters set forth in instrumen s
recorded in said Registry of Deeds in Book 1014, Page 104, Book 107
Page 215 and Book 1088 Page 394.
For title, see Certificate of Title No. 34514.
WITNESS our hands and seals this //✓day of .July, 1972.
.Charles . ,dn. r !
v yn er t
THE COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss. July J/ 1972
Then personally appeared the above-named Charles L. Maher and I
Evelyn M. Maher and acknowledged the foregoing instrument to be
their free act and deed, before me
iLiam roweJr.) otary Public
My Comifission Expires: January 1, 1976
-•- —• - _.... mow►-;— ;�,,,,
001�M•'.;W,;1�kit.c'�: it+� "�:.mow,.., .ei+('a•� ".^.,75':
..f.1'► ems"e!'Inc+xs�+eMt'yea►+"trec�xlMtn"rre�ri+yhwhlvx^7s�aame•'sserr•+rw•-•,•rni-rato�•a�t�'riM"'"�A�
I
aic� ,3-73
,
OLITCLAIM DEED
!'C1 ! :1"':LF CTLItI:lC
under the laws of Rhode Island, and having a usual place of�'usiness
in Providence, Rhode Island, for consideration naic of
Grants to: ---- --
CHARLES L. NAHER of 18 White Pine Lane,
Centerville, P,arnstable County, '!assacusetts
with ?UITCLAIA! COVENANTS, a parcel of land situated in I;arnstai•le
(Centerville) , Barnstable County, Massachusetts, described as follows:
Northwesterly by Scudder Bay Circle, eighty-seven and 95/100
`(87.95) feet;
xortherly by the junction of said Circle and bill Creek Foad,
thirty and 11/100 (30.11) feet;
Easterly by said Road, one hundred fifty-nine-_and 497100---
(159.49) feet;
Southerly by a portion of Lot 21, one hundred fourteen and
88/106 (114.88) feet; and
westerly by Lot 19, one hundred forty (140) feet.
All of said boundaries are determined by the Court to be located as s::ewn
on Plan 27801-T (Sneet 1) dated April 4, 1957, drawn by Earle r. Dunham,
Sr., Surveyor, as modified and approved by the Court, and filed in the
Land Registration Office at Boston, a copy of a portion of which is f:_td
in Barnstable County Registry of Deeds in Land Registration Book 199
Page 19 with Certificate of Title No. 25959, said land is shown thereon
as LOT 20.
Said land is subject to an easement as set forth in a grant made by
'Fields Point Manufacturing TorporaUon'to_�Iie 'rape s Vineyard lectric—` ,
Company and the Sew England Telephone and Telegraph Company dated
April 25, 1957 duly recorded in Book 972 Page 30.
Said land is subject to and has the benefit of easements and restrictions
granted and reserved in a deed given by said Fields Point Manufacturing
Corporation to Harold L. Wilcox at ux dated Septecber 2, 1958 duly
recorded in Book 1014 Page 104, as affected by two instruments executed
by said Fields Point Manufacturing Cornoration; one gated February 16 ,
1960 duly recorded in Book 1073 Page 215 and the other dated Aug'!st 31,
.1960 duly recorded in Book 1088 Page 394.
For title, see Certificate of Title No. 66
For corporate authority, see VOTE reaistered''as Document 'cumber 186191,
Barnstable Registry District.
IN WITNESS 14IIERSOF the said FIELDS POINT MANUFACTURI74C CORPORATION has
caused its corporate seal to be hereto affixed and these presents to be
signed, acknowledged and delivered in its name and behalf by 10=Ud A. WcAdrne, its as'=t.�1'reasurer,and thristopher guru, its _
Vice President, hereto duly authorized, this 16th day of January, 19?6.
FIELDS POINT ,=U FACTURIVG CORPORATICN
TC
- Vice P:tasidont ;a,
1yIJ
i
Page 1
Citation/Title
716 N. E. 2d 135, 47 Mass.App.Ct. 733, Asack v. Board of Appeals of Westwood,
(Mass .App.Ct. 1999)
*135 716 N.E. 2d 135 t
47 Mass .App.Ct. 733
Appeals Court of Massachusetts,
Norfolk.
Philip P.ASACK&another(FN1)
V.
BOARD OF APPEALS OF WESTWOOD.
No! 97-P-2176.
Argued May 13, 1999.
Decided Sept. 15, 1999.
Property owners brought actions to review decisions of board* of appeals
denying their applications for permit to build on nonconforming lot. Cases were
consolidated. The Superior Court, Barbara A. Dortch-Okara, J. , affirmed. '
Owners appealed. The Appeals Court, Dreben, J. , held that property owners '
common ownership of nonconforming lot and adjacent lot reduced or eliminated the
nonconformity.
Affirmed.
West Headnotes
[1] Zoning and Planning °z 503
414 ----
414IX Variances or Exceptions
414IX (A) In General
414k502 Particular Structures or Uses
414k503 Architectural or Structural Designs in
General .
Property owners ' common ownership of nonconforming lot and adjacent lot
reduced or eliminated the nonconformity, and thus owners could not avail
themselves of variance which had previously been issued for the nonconforming
lot.
[2] Zoning and Planning (&;;P321
414 ----
414VI Nonconforming Uses
414k321 In General.
A landowner will not be permitted to create a dimensional nonconformity if he
can use his adjoining land to avoid or diminish the nonconformity.
[3] Zoning and Planning cg=�254
414. ----
Copyright (c) West Group 2000 No claim to original U. S. Govt. works
i
i
i
r' Page 2
716 N. E. 2d 135, 47 Mass .App.Ct. 733, Asack v. Board of Appeals of Westwood,
(Mass .App.Ct. 1999)
414V Construction, Operation and Effect
414V (B) Architectural and Structural Designs
414k254 Area and Frontage Requirements .
Adjoining parcels held in common ownership are generally considered one lot
for zoning purposes.
[4] Zoning and Planning (&=:1321
414 ----
414VI Nonconforming Uses
414k321 In General.
A person owning adjoining record lots may not artificially divide them so as
to restore old record boundaries to ',obtain a grandfather nonconforming
exemption; to preserve the exemption the lots must retain a separate identity.
[5] . Zoning and Planning (9=2
414 ----
414I In General
414k2 Purpose.
A basic purpose of the zoning laws is to foster the creation df conforming
lots .
Stephen Gordet, Westwood, for the plaintiffs .
Thomas P. McCusker, Jr. , Boston, for the defendant .
Present: PERRETTA, DREBEN, & SPINA, JJ.
*136 DREBEN, J. ,
When in 1988, the plaintiffs purchased property in Westwood, described in
their deed as lots 7 and 8 on a recorded plan, they were unaware that in 1970,
prior to the passage of the 1975 revision of G.L. c. 40A, including a new § 10,
(FN2) a variance had been issued for lot 7 . The 1975 revision required a
variance to be exercised within a year of its grant.
Discovering the existence of the variance during a refinancing of the
property and relying thereon, the plaintiffs in 1994 sought a building permit .
The permit was denied, the denial was [47 Mass.App.Ct. 7341 upheld by the
Westwood board of appeals (board) and, in turn, by the Superior Court. (FN3)
We affirm.
The facts are undisputed and are set forth in the findings of the trial
judge. In 1970, Rosemary M. and Robert J. Valinote owned lots 7 and. 8 shown on
a 1936 plan. Their home was on lot 8, which they purchased in 1936. They
acquired lot 7, an adjacent unimproved lot, in 1942 . Due to changes in the
zoning by-law after 1936, lot 7 in 1970 lacked both the frontage and t-he area
needed to be a buildable lot . The requirements, which continue to the present
time, are that the lot have an area of 40, 000 square feet and a frontage of 125
Copyright (c) West Group 2000 No claim 'to original U. S. Govt., works
y
Page 3
716 N.E. 2d .135, 47 Mass.App.Ct. 733, Asack v. Board of Appeals of Westwood,
(Mass .App.Ct . 1999)
feet. In 1970, the Valinotes obtained a variance in order t'o qualify lot 7 as a
buildable lot. The variance contained no language placing a time limit on its
validity and could continue in force without limit of time. See Hogan v. Hayes,
19 Mass.App.Ct. 399, 403, 474 N. E. 2d 1158 (1985) .
In 1972, the Valinotes sold lot 8 to Ronald L. and Marguerite L. Prosser, and
in 1973 sold them lot 7 . Also in 1973, the Prossers conveyed both lots to
Ronald L. Prosser as trustee of the Prosser Family Trust. As trustee, Prosser
in 1987 filed a petition for a variance to construct a house on lot 7, but this
was denied by the board. Although Prosser filed an appeal from that denial to
the Superior Court, his appeal was dismissed for want of prosecution.
In 1988, the plaintiffs purchased both lots from the Prosser Family Trust,
and in 1994 applied for the building permit, the denial of which is the subject
of this appeal. As indicated earlier; the first notice the plaintiffs received
of the 1970 variance was in 1993 or 1994 when a title examination was performed
for a refinancing of their property.
The plaintiffs rely on language in Hogan v. Hayes, 19 Mass .App. Ct. at 403,
474 N. E. 2d 1158, to support their contention that G.L. c. 40A, § 10, the statute
which provides that a variance lapses if not exercised within one year after its
grant, see note 2, supra, is not retroactive and does not apply to variances
which were granted prior to its effective date. In Hogan, the owner of two
adjoining lots obtained a variance allowing her to divide her ownership so that
she could sell the lot with the existing house and garage and build a small
residence on the other lot . She sold the lot with the house in 1975 to Hogan' s
predecessor in [47 Mass .App.Ct . 735] title and sold the remaining vacant lot in
1982 to Hayes . Faced with Hogan' s argument that the variance had lapsed by
.reason of c. 40A, § 10, Justice Kaplan termed "drastic, " and not matching the
statute ' s text, a construction that would destroy wholesale all variances more
than one year old remaining unexercised on the effective date of the statute.
Ibid. He also indicated that a "milder" construction which takes the form of
cancelling variances which have not been exercised within a year of the new
statute *137 "might put a great and insupportable strain , on the statutory
language. " Ibid.
[1] As in Hogan, we need not reach, the broad issue of retroactivity. We also
need not decide whether the trial judge was correct in ruling that there was no
exercise of the variance by the 1972 conveyance of lot 8 to the Prossers . (FN4 )
Even if we assume that the sale was such an exercise, we agree with the
defendant board which in its decision stated, " [T] o the extent that the
separation of said Lot 7 and Lot 8 could in any way be determined an exercise of
a variance, the subsequent merger of Lot 7 and Lot 8 in common ownership in the
absence of anything more, would nullify any type of an exercise. "
[2] Unlike the situation in Hogan, where the two lots ended up in d1ifferent
ownership, here the subsequent purchase of lot 7 by the Prossers, who were
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..Y
f Page 4
716 N.E. 2d 135, 47 Mass .App.Ct . 733, Asack v. Board of Appeals of Westwood,
(Mass.App.Ct. 1999)
already the owners of lot 8, effected a merger as did the later purchase of both
lots by the plaintiffs . This result is closely analogous to the "principle of
long-standing application in the zoning context [with regard to nonconforming
exemptions] : a landowner will not be permitted to create a 'dimensional
nonconformity if he [can use] his adjoining land to avoid or diminish the
nonconformity. " Planning Bd. of Norwell v. Serena, 27 Mass .App.Ct. 689, 690,
542 N. E. 2d 314 (1989) , and [47 Mass .App.Ct. 7361 cases cited, S. C. , 406 Mass .
1008, 550 N.E. 2d 1390 (1990) . Burke v. Zoning Bd. of Appeals of Harwich, 38
Mass .App. Ct . 957, 958-960, 650 N.E. 2d 355 (1995) .
[3] [4] Moreover, " [a] djoining parcels held in common ownership are generally
considered one lot for zoning purposes . Heald v. Zoning Bd. of Appeals of
Greenfield, 7 Mass .App.Ct. 286, 2901 387 N. E. 2d 170 (1979) . 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, 373 N. E. 2d 1195 (1978) . " Girard v. Board of Appeals of Easton, 14
Mass .App.Ct . 334, 335, 439 N. E. 2d 308 (1982) . A person owning adjoining record
lots may not artificially divide them so as to restore old record boundaries to
obtain a grandfather nonconforming exemption; to preserve the exemption the
lots must retain "a separate identity. " Lindsay v. Board of Appeals of Milton,
362 Mass . 126, 132, 284 N. E. 2d 595 (1972) .
[5] A basic purpose of the zoning laws is "to foster the creation of
conforming lots . " Murphy v. Kotlik, 34 Mass .App. Ct . 410, 414 n. 7, 611 N. E. 2d
741 (1993) . See Giovannucci v. Board of Appeals of Plainville, 4 Mass .App.Ct.'
239, 242-243, 344 N.E. 2d 913 (1976) . We see no reason why this purpose, which
is reflected in the zoning principle that precludes an owner from availing
himself of a nonconforming exemption unless he includes his adjacent land in
order to minimize the nonconformity, Sorenti v. Board of Appeals of Wellesley,
345 Mass . 348, 353, 187 N. E. 2d 499 (1963) , should not also apply to the
plaintiffs who by reason of their deed from the *138 . Prosser' s own both lots 7
and 8 . Their ownership of lot 7, which is adjacent to nonconforming lot 8,
reduces or eliminates the nonconformity. See Vetter v. Zoning Bd. of Appeal of
Attleboro, 330 Mass . 628, 630-631, 116 N. E. 2d 277 (1953) . For this reason, they
cannot avail themselves of , the 1970 variance, and the denial of the building
permit was proper.
Since the plaintiffs, by their own admission, were not aware of the variance
when they bought the property, no equitable considerations militate against this
result . Compare Hogan v. Hayes, 19 Mass .App.Ct. at 404, 474 N.E. 2d 1158, where
the plaintiffs ' position opposing a building permit was described as "so
intrinsically inequitable that it should not prevail . "
Judgment affirmed.
(FN1 . ) Deborah Van Valkenberg.
Copyright (c) West Group 2000 No claim to original U. S . Govt. works
Page 5
716 N.E. 2d 135, 47 Mass.App. Ct. 733, Asack v. Board of Appeals of Westwood,
(Mass .App. Ct . 1999)
(FN2 . ) In relevant part G.L. c. 40A, § 10, as inserted by St. 1975, c. 808, § 3,
provided: "If the rights authorized by a variance are not exercised within
one year of the date of grant of such variance they shall lapse, and may be
reestablished only after notice and a new hearing pursuant [to] this
section. " The provision was again amended by St . 1984, c. 195 .
(FN3. ) Two cases involving the same issues were consolidated. Apparently,
there was a procedural difficulty in the first case, and the plaintiffs two
years later reapplied for a building permit.
(FN4 . ) The plaintiffs argue, again relying on Hogan, that the 1972 sale of lot
8 was an exercise of the variance,% In Hogan, the court found that there was
a sufficient exercise of the variance by the sale of the lot containing the
house in 1975 because, without it, the built-on lot would have been in
manifest violation of the lot area and minimum frontage requirements . In the
present case the board and the Superior Court judge distinguished Hogan on
the ground urged by the defendant board, namely that a variance was not
required for lot 8, that it had status as a valid nonconforming use, and was
not dependent upon a variance to comply with the zoning by-law. The facts
set forth in Hogan and in the record of the present case are insufficient for
us to accept that distinction. The lots in Hogan were originally separate
lots and acquired by the owner at different times, see Hogan at 400 n. 3, 474
N. E. 2d 1158, and the discussion of the court appears to treat the two lots as
merged.
Copyright (c) West Group 2000 No claim to original U. S. Govt. works
- qai(2 i
{{� fiEzais= FIELDS POINT MAIWA,CTURING CORPORATION, farrerly known as FIELDS ?DINT l
MANUFACTURING CORPORATION (1953), a corporation duly established under the laws)
I of the State of Lhode Island, and having its usual place of business at i
Providence, Providence County, Rhode Island and Barnstable (Hyannis), Barnstabl
County, Massachusetts, for consideration paid, grants to
F I CHARLES L. MAHER and EVELYN M, 144HER, husband and wife, as tenants by the
E entirety, both of 44 Po(id View Drive, Centerville, Barnstable County,
IlMassachusetts
with QUITCLAIM COVENANTS the land in Barnstable (Centerville), Barnstable
I County, Massachusetts, bounded and described as follows:
WESTERLY by White Pine Lane, 146,01 feet;
-V IINORTHERLY by a portion of Lot 19, 132.28 feet;
EASTERLY by Lot 21, 196.73 feet; and
SOUTHERLY by Lot 56, 144.61 feet.
i
iAll of said boundaries are determined by the Court to be located.as shown on
Plan 27801 A (Sheet 2), the same being compiled from a plan drawn`by Earle F.
(Dunham, Sr., Surveyor, dated April 4, 1947, and additional data oil file in the
Land Registration Office'at Boston, all as modified and approved by the Court
a copy of which is filyd in Barnstable County Registry of Deeds in Land Re-
gistration Book 199, Pa-.e 19 with Certificate of Title No. 25959, and said
land is shown thereon as LOT 18. j
eFyNSTrRIt The above described lot is subject to and has the benefit of easements and
q restrictions granted and reserved ir. a dacd-givenby-said-Flelds-Point-
I I F..,. Manufacturing Corporation to Harold I. Wilcox et ux dated September 2, .1958, i
�Iduly recorded in Book 1014, Page 10» as affected by two instruments executed
ti ,y I by said Fields Point Manc`.acturing Corporation: one dated February 16, 1960,
recorded in Book 1073, Page 215 and the other dated August 13, 1960, recorded
1 II in Book 1083, Page 394.
ii For title, reference is made to Certificate of Titl: No. 25959 which issued
I� from the original decree of the Land Court in this case. f
IN WITNESS 147HEREOF, the said FIELDS POINT AANUFACTURING CORPORATION has casued
o Ln T its corporate seal to be hereto affixed and these presents to be signed,
1111:1 C7N i acknowledged and delivered in its name and behalf by
thereto duly authorized this 24th day of November, 1964.
FIELDS POINT 1•iANUFACTURING CORPORATION
By
President
>`�svtE�iS`\; By. 0
t
......W."' Secretary
flTHE STATE, OF RHODE ISLAND
i Providence, ss. November 24, 1964
Then pparsonally appeared the shove named ARNOLD B. CHACE,
President, and GERARD J. QU PITON, Searetary,
f A;.aforesaid, and acknowledged the foregoin3 instrument to be the free act and
�P I,'dod of the FIELDS POINT MANUFACTURING CORPORATION, b fore me,
Notary Public
}:P U 0 LI My commission expires
-My Commission Eap:ccs.i<anc X 1960
' I
�'Y�::.�'1:a'aF C•v��.:•....f•\'•Y:if/"A:.-..lY.i`)`1M:4•rl:�r.`ai1:�4iA�t:iF�,./`\T.T w'lfMHfi1`J M`. �,j�.
ors.� ��,�t:1�•a:�..:.�'-:..���.-�.a-. ....t:' .7••c,.:`. i
i
• I
I
�-
o
a
W
rbeving
POUTIELDS POT ::A1�'iTF6CTURI'1G CO!',PCRATION, a corporat•tor. duly
stablished un+er the laws of the State of Rhode Island, and
its usual place of business at Providence, Providence
ounty, Rhode Island, and Barnstable (1lyannis) Barnstable County,
assachusetts, for consideration paid, Grnnts to:
CHARLES L. :d.1ix"E. and EVELYN 1,:. 'iAHER, husband and wife, as
tenants by the entirety, both of 44 Pond View Drive, Centerville,
j Barnstable County, 1•iassachusetts, with QUI"_'CLAI.,. COVENJibTS,
�I the land in Barnstable (Centerville) Iarnstable County, Massachu-
setts, bounded and described as follows:
I EASTERLY by a private way called hill Creek iiobd, 130.00 feet;
it SOUTHERLY b; Lot 57, 162.36 feet;
i WESTERLY by Lot 18, 196.73 feet;
I, NORTFERLY by a portion of Lot 19 end by Lot 20, 14`•.:e feet.
�I li All of said boundaries are determined by the Court to. be located
as shown on Plan 27801 A (Sheet 2) the .a.•ne beinG compiled from
f a plan drawn by Earle F. Dunham; Sr., Surveyor, dF-ited April 4,
1957, and additloncI data on file in the Land Registration
j Office at Boston, all an modified and approved by the Court, a
copy of thick is tiled in Barnstable County Registi— of Deeds in
Lend Rogistrati^n book 199, Pege 12 with Curtificr.te of Title
No. 259:9, and laic' land is shown thoreon as LET 21. i
The .nbove described lot i" subject to and has the berreilt of
jeasements and restrictions granted and reserved in a deed given
by sale. Fields Point Manufacturing Corporation to Iiarold I.
i Wilcox of ux dated September 2, 1058, dul;; recorded in Book
1014, page 104, as affected by two instruI.,t•nt: executed by znid I
Fields Point•.J:anul'acturing Corporation: one doted F'abruary
it 1960, recorded in Book 1073, page 215 and tho other dLtad
.I August 13, 1960, recorded in Boole. 1089, pnge34.
1 For title, refsre.nco is wade to Cortificetc of Tide. No. 2S9b9
II which issued rrcr! the Tr'Ginal decree of the Lard Court in this
case.
it .IN YITIIESS WHE'.EOF, the said FIEZ:S FOI:^ ".1u"
i :,1+1N:'l.CTUR. OC'RPOIIA-
+I TIOP has caused its corporate seal to be hereto affixed and
1 these presents to be signed, acknowledged and delivered in its
i nRmc and behalf by ARl.0LD B. CHACE, its President, rrd I�I
OXHIURD J. QUIN?ON, its, Secretary I
hereto duly nuthorizod this 16th day of Juno, 1965.
FIELDS POINT .ANUYACTURING y Q�•�`�;p'��17�
1: tCASE
29
e^titary
Providence ss; TATE OF WiODE IS1Aii June
r., 1963
Then pe:•sona-1Jy appeared•the...6156vc•'nnr,ed Ar:;old :. Chace
President, and Gerard J. :;uinton, Secretary
I "••. and aeknbwloeged the foroGoinG inetrument to be the free act
,RIC "'•one. deed of r'IEL'S POINT 1•;A�ulr'TU`iNG C ';1'01 ..TIrN, befero me, jl
�\ R` Notary Pul,11c i
tip ' (L\G Qfa?1 My Commis.lon Ex,iires:
U 13
My Commission Expires June 30, 19da
i
i
I
27801
Sheet 2
I
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N 29 45 57 E + 32.±
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Fields Point Manufacturing Corporation
Note t
Sco/e of 1h/a plan 150 feet to on Inch. Y a Concrete Bound
LAND C:UU K 1
DEPARTMENT OF THE TRIAL COURT
BARNSTABLE, SS.
MISCELLANEOUS CASE
FRANK L.HORGAN,III, } NO. 163154
Plaintiff )
)
V. )
DEXTER BLISS, ELIZABETH )
NILSSON,BRUCE BURLINGAME, )
LUKE LALLY, and GENE BURMAN, )
as they are the Town of
Barnstable Zoning Board of )
Appeals,PAUL BROWN and )
EDWIN GOURLEY, )
Defendants )
MISCELLANEOUS CASE
DAVID SCOTT HORGAN, ) NO. 163151
Plaintiff )
V. )
)
DEXTER BLISS,ELIZABETH )
NILSSON,BRUCE BURLINGAME, )
LUKE LALLY,and GENE BURMAN, )
as they are the Town of )
Barnstable Zoning Board of )
Appeals, PAUL BROWN and )
EDWIN GOURLEY, )
Defendants )
ORDER GRANTING SUMMARY JUDGMENT
In the interest of judicial economy I consolidated these two cases for purposes of the
summary judgment hearing because they have a similar fact pattern, share common parties and
i
summary judgment hearing because they have a similar fact pattern, share common parties and
counsel, and concern abutting property in Centerville, Massachusetts. Both cases are appeals
pursuant to G.L.c.40A, § 17,of decisions rendered by the Barnstable Zoning Board of Appeals(the
Board).'
Case no. 163150 is an appeal by Plaintiff Frank L. Horgan,III, of a decision by the
Board upholding the Town of Barnstable(the Town)Building Commissioner's determination that
land owned by Plaintiff(lot 30-31) did not constitute a buildable lot Frank L. Horgan, III,wants
i
to build a single-family house on lot 30-31. In case no. 163151, Plaintiff David Scott Horgan
. f
appealed the Boards decision revoking the issuance of a foundation permit to construct a single
family residence on a parcel owned by him (lot 32-33) because it was not a buildable lot. David
Scott Horgan also wants to build a single-family house on his lot
The Board moved for summary judgment on January 16, 1996,in case no. 163 15 0;
on November 15, 1995, David Scott Horgan moved for summary judgment in case no. 163 15 1.
Counsel argued the motions on March 27, 1996.
In case no. 163150,the Board argued it correctly upheld the Commissioner's denial
of Frank L. Horgan, IU's building permit because it claimed a merger of lots 29 and part of 30
rendered Plaintiffs remainder lot (lot 30-31) too small to be buildable. In addition, the Board
alleges Frank L. Horgan,III's lot does not enjoy any grandfather protection under G.L. c.40A, §
6,(section 6)or section 4-4.5 of the Town's Zoning By-law (By-law, section 4-4.5). By contrast,
Frank L. Horgan, III, argued the case must.go to trial because a question of fact remains as to
whether his lot is buildable under G. L. c. 40A, § 6. However,I consider the question to be one of
law, not fact. The Board's motion is supported by the statements and documents cited in the
2
Z000 A&VII rivauQII0g ZZLOTLLQOS YU ZC:ST Q3A1 00/TO/TT
affidavit of David Scott Horgan'and the affidavit of Shirley Crocker,Clerk of the Barnstable Board
of Assessors. Frank L.Horgan,lil,also relies on David.Scott Horgan's affidavit and, for the most
part,the Board adopts the facts cited therein. The affidavit of Janice P.Semprini,Assistant Assessor
for the Town,also is in the record.
In case no. 163151,David Scott Horgan appeals the Board's decision upholding the
Commissioner's revocation of Plaintiff's foundation permit. Plaintiff argues lot 32-33 is a legally
nonconforming lot protected by the grandfather provisions in the By-law. The Town claims the lot
merged with lots 29 through 31 and,in addition, lot 32-33 is not grandfathered by either G.L.
c. 40A, § 6, or section 4-4.5 of the By-law. David Scott Horgan's motion is supported by his
affidavit. Other affidavits in the record for case no. 163151 are as follows: Frank L. Horgan, III
(plaintiff in case no. 163150); Eleanor N. Horgan, grandmother of David Scott Horgan; two
affidavits of Kevin J.O'Leary,Esq., attorney for David Scott Horgan; and Janice P. Semprini.
Defendants Paul Brown and Edwin Gourley were notified as parties in interest at the
public hearings conducted by the Board in connection with these cases. Messrs.Brown and Gourley
did not submit memoranda on the instant motions.
On all the summary judgment materials,I find the following facts are not in dispute,
and rule for Defendants in both cases:
I. Plaintiff Frank L.Horgan, 111, lives at 59 Isalene Street and Plaintiff David
Scott Horgan lives at 53 Elm Street,both in Hyannis,Massachusetts.
'The affidavits of David Scott Horgan filed for both cases are identical. The David Scott Horgan
affidavit was filed on January 16, 1996,in case no. 163150,and on November 15, 1995,in case no.
163151.
3
Co0ln div'I fivauaaoS ZZLOTLL802 %Vd ZC:ST T" 00/TO/TT
2. Defendants Bliss,Nilsson, Burlingame, Lally and Burman are members of
the Board.
3. Defendant Brown lives at 27 Orchard Road, Centerville, and Defendant
Gourley lives on Bacon Lane, Centervslle.
4. In September 1927, a plan of land was recorded with the Barnstable Registry
of Deedsz in Plan Book 21,at Page 133,for a parcel of land consisting of five lots numbered 29.30,
31, 32 and 33 (collectively the lots, individually lot 29 and so forth) located on Park and Orchard
Streets in Centerville, Massachusetts (see attached sketch). Lots 30 and 31 (lot 30.31) arc the j
subject of case no. 163150,and lots 32 and 33 (lot 32-33)are the subject of case no. 163151.
5. By deed dated September 14, 1931,and recorded in Book 485, at Page 99,
Wetmore-Savage Company conveyed a portion of lot 33 to one Nelson Bearse. By deed dated
September 24, 1945, and recorded in Book 635,at Page 42, Wetmore-Savage Company conveyed
lots 29, 30, 31, 32 and the remaining portion of lot 33 (hereinafter referred to as lot 33) to one
Benjamin F.Teel.
6. By deed dated October 17, 1945, and recorded in Book 635, at Page 411,
Benjamin F.Teel conveyed to.Funk L.Horgan,Sr.,the following:
a certain piece or parcel of land situated in Barnstable (Centerville), Barnstable
County,Massachusetts,more particularly bounded and described as follows:
Being Lots 29, 30, 31, 32 and part of Lot 33, as shown on plan of land entitled
"Centerville Estates,Centerville,Mass.,Teel Realty Trust Owner, September 1927"
7. At all times material,lot 29 consists of 12,240 square feet;lot 30 consists of
'All recording references are to this Registry.
4
too hivi avauanou ZZLOTLL002 JVd CC:ST T" 00/TO/TT
• i
12,600 square feet;lot 31 consists of 12,700 square feet; lot 32 consists of 10,905 square feet;and
lot 33 consists of 12,195 square feet.
8. In 1947, the By-law did not establish a minimum lot size or any other
dimensional requirements for a buildable lot.'
9. On or about April 1948,Frank L. Horgan, Sr.,built a multi-family structure-'
containing three residential units on lot 29. At that time multifamily use was an allowed use of lot
29 4
i
t
10. When town-wide zoning went into effect in 1956,all the lots were in an RB-
I residential district. The principal permitted uses in the RB-1 district were"detached one-family
dwelling" and"the taking of not more than six(6) lodgers by a family resident in the dwelling."
The minimum square footage for a lot in the RB-1 district was 10,000 square feet Accordingly,the
use of lot 29 became legally nonconforming.
11. In 1958,the zoning district for the lots changed from RB-I to RD-I With
regard to minimum lot size,section N(2)provided:
No building,except one-story buildings of accessory use,shall be erected on a lot
less than one hundred twenty-five(125)feet wide and containing not less than twenty
thousand (20,000) square 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 March 7,
3The By-law defines"lot"at section 7 as follows: "[a]single area of land in one ownership
defined by metes and bounds or boundary lines,no portion of which is bisected by a street."
'In January 1986,Frank L_Horgan,Jr.,installed two sewage system pits on lot 30 to serve
the existing multi-family structure on lot 29. In March 1991, pursuant to a permit from the
Barnstable Board of Health, Frank L. Horgan, Jr., abandoned and filled the pits on lot 30 and
relocated them on lot 29.
5 ,
,
goo in 61V'I rivaucnoa ZZLOTLL902 %V3 COST T" 00/TO/TT
i
1950 and before the date this by-law is adopted.
12. As of the date(in 1958)on which the minimum lot area zoning changed from
10,000 square feet to 20,000 square feet,all the lots were held in common ownership by Frank L.
Horgan, Sr., and each was undersized.'
13. By deed dated September 11, 1974,and recorded in Book 2094,at Page 30t
Frank L.Horgan,Sr., conveyed all the lots to-Frank L. Horgan,Jr.,Trustee..
14. By vote of Town Meeting on February 28, 1985,the minimum lot area in the
RD-1 zoning district increased from 20,000 square feet to 43,560 square feet.' As of the date on
which the minimum lot area changed to 43,560 square feet, all the lots were held in common
ownership by Frank L.Horgan,Jr.,Trustee.
15. By deed dated June 3, 1985,Frank L.Horgan,Jr.,Trustee,conveyed all the
lots to Frank L.Horgan, Sr.,and Eleanor N. Horgan By deed dated June 3, 1985,Frank L.Horgan,
Sr.,and Eleanor N. Horgan conveyed all the lots to Frank L.Horgan,Jr.'
16. From September 14, 1931, through June 23, 1985, the lots were conveyed
together six times by six separate instruments pursuant to the following description:
SOUTHERLY by Orchard Road, as shown on Plan hereinafter mentioned, four
hundred sixty-seven and 611100(467.61)feet;
'None of the lots were "shown on a plan of lots approved by the Board of Survey and
recorded...after March 7, 1950.
''The By-law appended to David Scott Horgan's affidavit(exhibit H)is the By-law as adopted
through Special Town Meeting of April 7, 1987. It does not reference the adoption dates of various
amendments. However,because the parties have agreed the amendment in question was adopted
on February 28, 1985,I accept that date for purposes of these motions.
No recording reference is in the record.
6
900 Z Arl 11V3N( o9 ZZLOTLL802 YU CC:ST aU 00/TO/TT
f
SOUTHWESTERLY by the corner of Orchard Road and Park Avenue, Sixty-three
and 111100(63.11)feet; -
WESTERLY by Park Avenue,eighty(80.00)feet;
NORTHERLY by Lots 28,26A,26,25 and land of H.G.Lumbert,five hundred five
and 26/100(505.26)feet; and
SOUTHEASTERLY by land now or formerly of Nelson Bearse,one hundred twenty
and 89/100 (120.89) feet.
Being Lots 29, 30, 31, 32 and part/of Lot 33, as shown on plan of land entitled
"Centerville Estates,Centerville,Mass.,Teel Realty Trust Owner,September 1927",
duly recorded in the Barnstable County Registry of Deeds.
Being a part of the premises conveyed to Teel by deed from Wetmore Savage
Company, dated September 24, 1945, duly recorded in the Barnstable County
Registry of Deeds.
right-of-way with a Together ri over Orchard Road and Park Avenue,as shown on said
L � Y
Plan,in common with others entitled thereto,to and from the Public street'
11. From 1945 through 1989,the lots were assessed by the Town as one parcel,
fast to Frank L.Horgan,Sr., then to Frank L.Horgan,Jr.,as Trustee,and then to Frank L.Horgan,
Jr.
18. By deed dated October 19, 1989,Frank L. Horgan, Jr., conveyed lot 30 to
Linda H.Horgaa. By deed dated October 19, 1989,Frank L.Horgan,Jr., conveyed lot 31 to Frank
L.Horgan,III. By deed dated October 19, 1989,Frank L.Horgan, Jr., conveyed lot 32 and part of
lot 33 to David Scott Horgan. By deed dated February 1, 1990, Linda H.Horgan conveyed lot 30
to Frank L. Horgan,Ill. At the time of their conveyances, none of these lots individually met the
'This description is taken from the deed of Fronk L. Horgan, Sr.,to Frank L.Horgan,Jr.,
Trustee,recorded in Book 2094, at Page 301. For the most part,the description is consistent with
those in the various deeds,differing only in minor-and insignificant respects.
L00in Arl rivauaaoff ZZLOTLLSOS %Vd CC:ST aU 00/TO/TT
dimensional requirements of one-acre zoning under the By-law,in effect since February 28, 1985.
19. In April 1990,the Commissioner issued a building permit to Frank L.Horgan,
III,to build one single-family residence on lot 30-31 and a foundation permit to David Scott Horgan
for a single-family residence on "Lot 32 and part of Lot 33."g Subsequently, the Commissioner
stayed the permits pending a determination by him on a challenge filed by several abutters. By
decision dated December 18, 1990,the Commissioner revoked the permit issued to Frank L.Horgan,
i
III,and ruled lot 30-31 had merged with lot 29. The Commissioner also determined lot 32-33 was
a buildable lot and the permit as to this lot was valid.
20. Frank L. Horgan, III, appealed to the Board the Commissioner's adverse
decision regarding lot 30-31. Several abutters appealed to the Board the Commissioner's decision
to issue the foundation permit for lot 32-33.
21. By two decisions dated May 8, 1991,the Board overruled the decision of the
Commissioner to issue a building permit for lot 32-33,finding the lot did not constitute a buildable
lot The Board also affirmed the Commissioner's decision regarding lot 30-31,finding this lot did
not constitute a buildable lot The attached diagram provides a sketch of these recited facts.
Summary judgment is appropriate here because no material facts are in dispute.
9Attached to the affidavit of Kevin J. O'Leary,Esq.,dated November 14. 1995,are copies
of the following documents: Board of Health for the Town — Application for Disposal Works
Construction Permit for owner David Scott Horgan,Certificate of Compliance,and Disposal Works
Construction Permit for lot 32-33,each dated February 2, 1990;Application for Percolation Test and
Observation Pits for Lot 32-33 ("AS ONE'S for applicant David Scott Horgan, dated January 9,
1990;and"Application for permit to construct single family dwelling"for lot 32-22,for applicant
David Scott Horgan,dated April 4, 1990(the application contains a notation,at the bottom indicating
a foundation permit was issued on the same date).
8
goo in A1v'I IIvaucnoa ZZLOTLL802 Yvd tC:ST T" 00/TO/TT
Community National Bank v. Dawes 369 Mass. 550 (1976); Mass. R. Civ. P. 56(c). Upon
consideration of the briefs and other summary judgment materials,I find in favor of Defendants in
both cases.
At issue is whether Plaintiffs' respective lots constitute separate buildable lots for
zoning purposes. To begin my analysis,I first turn to the provisions of G.L. c.40A, §6,(sectioa
6)and section 4-4.5 of the By-law(section 4-4.5),which control so-called grandfather protection for
npnconforming lots. I find lots 30-31 and 32-33 do not enjoy such protection,even assuming--as
I do for purposes of this initial analysis--Plaintiffs are correct in that lots 30 and 31 constitute one
lot(30-31) and that lots 32 and 33 also constitute one lot(32-33).
Section 6 offers two types of protections:one for lots held in separate ownership and
one for a maximum of three lots held in common ownership. Since there is no dispute that in 1985
all the lots in question were held in common ownership,only the second protection is relevant as
follows:
[a)ny increase in area... shall not apply for a period of five years from its effective '
date or for five years after January 1, 1976,whichever is later,to a lot for single and
two family residential use,provided the plan for such lot was recorded or endorsed
and such lot was held in common ownership with any adjoining land and conformed
to the existing zoning requirements as of January first, 1976....
In Adamowicz v. mulch,395 Mass. 757(1985)1)the court construed.the first sentence of the fourth
paragraph of section 6 and concluded the word"recording"in the statute means the recording of any
instrument,plan or decd;the statute looks to the most recent instrument of record prior to the zoning
change which rendered the lot nonconforming; and a given lot meets the separate ownership
requirements of the statute if the most recent instrument of record prior to the.zoning change shows
the lot as separately owned, even if previous ins>rtunents slow it held in common with adjoining
9
600E d&V'T Ilvasaaoff ZZLOTLLOOS %V3 MU M 00/TO/TT
i
land: This analysis has been applied to the second sentence of section 6,paragraph 4,as well. 5=
j3aldiga v Bgard of A 395 Mass. 829, 933 (1985).
Applying the reasoning in Adamowicz to the facts at hand,the recording relevant to
our analysis is the deed to Frank L.Horgan,Jr.,Trustee,from Frank L.Horgan,Sr.,dated September
11, 1974,because that is the most recent instrument prior to the zoning change in February 1985-,'
which rendered lot 30-31 and lot 32-33 nonconforming (under the assumption noted above). If
j
indeed both lots were protected as pre-existing nonconforming lots, Plaintiffs had five years from
February 28, 1985,to take advantage of the grandfather protection afforded lots held in common
ownership by securing a building permit. However, Plaintiffs did not even apply for building
permits until April 1990,two months after any grandfather protection they may have had expired.
Sfi Falcone v, Zoning B2ard of Appeals of Brnekto . 7 Mass.App. Ct.710,713 (1979)(in context
of the Subdivision Control Law, G. L. c. 41, § 81P, court noted "that mere filing of a permit
application does not toll the running of the protection perio&J. Therefore,the lots are not buildable
lots under section 6.
Similarly,Plaintiffs failed to satisfy the criteria necessary to obtain the grandfather
protection afforded under section 44.5 of the local By-law,which states in pertinent part as follows:.
Any lot lawfully laid out on a plan or deed duly recorded...which complies at the
time of recording or endorsement, whichever is earlier, with the minimum area,
frontage,width,and depth requirements,if any,of the zoning bylaw in effect at the
time of such recording or endorsement,may thereafter be built upon for residential
use(notwithstanding amendment to the zoning bylaw changing such requirements
in excess of those in effect at the time of such endorsement)if.
1) At the time of the adoption of such requirements or increased requirements
or while building on the 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
10
OTOO mvi fivauc oia ZZLOTLLOOS %tad tC:ST T" 00/TO/TT
i
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 only for a period of five years from the
date of such recording or endorsement,which ever is earlier....1.
I
Although the language is not identical to that of G.L. c.40A, § 6, this By-law provision,like that
of the state statute,provides two distinct provisions:one for lots held in separate ownership and one,
for lots held in common ownership. Also, like section 6,a property owner must take advantage of
i,
the grandfather protection within five years from the date of the zoning change which rendered the . iI
lots nonconforming. Since neither Plaintiff did so within the allotted five years,neither can claim
buildable lot status under section 4-4.5.
Having ruled on the non-applicability of section 6 and section 4-4.5(again,under the
assumption lot 30-31 and lot 32-33 each were individual lots),I am left with the more thorny issue
posed by the town,namely,whether lot 29 merged with at Ieast lot 30 or at most with lots 30 through
32 or 33. If lot 29 did so merge,then grandfather protection is unavailable to lot 30-31 and lot 32-
33. In fact,the existence of these two lots would be a fiction, and there would be no possibility of
developing any of the lots numbered 30 to 33. 1 find lot 29 did merge with adjoining lots, with
1QPlaintiff David Scott Horgan argues that,read in conjunction,paragraphs one and two of
section 4-4.5 give him perpetual grandfather protection. He claims that,since building on lot 32-33
was otherwise permitted until February 28, 1990, under the common ownership provision of
paragraph two,once he obtained ownership in September 1989,the separate ownership provision
of paragraph one is triggered. Plaintiff claims that,since paragraph one does not contain the five
year time limit on grandfather protection,his right to build on the lot is perpetual.
This argurnent attempts to impermissibly"parlay one dispensation'into another." Too=
v.Board of Anveals o Wareham,33 Mass.App.Ct. 55,60(1992),reversed on other gmi nds.415
Mass.329(1993). In addition the use of the word"or",separating the two provisions of section 4-
4.5 provides clear indication that the intent was not"to pile one grandfather protection on another."
Fgrzoco Y. Board of Appeals of Falmouth, 29 Mass. App. Ct. 986, 987 (1990), futher annellaie
w denied,409 Mass. 1102(1991).
. 11
TTO a A&V'I fivas(f1oS ZZLOTLL802 %V3 W ST M 00/TO/TT
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.
I found no cases addressing the question directly, and none are cited by counsel.
However,Sorenti v. Board of Appeals of Wel ukL 345 Mass.348 (1963),and v
of Appeals of Beverly, Misc. Case No. 153543 (Land Court Feb. 26, 1992) (Kilborn, J.), ate
instructive, particularly in the context of the so-called law of merger. 5=MIM Alley-v. Building
i
Inspector of D vers,354 Mass.6(1968);Bouffard v City of Peabody Zoning Board of A22eals�
3L CR 230 199
In Sorenti,the plaintiff had at one time owned two adjacent lots(lots 1 and 2 in my
recount of the facts). Each lot had frontage of 9.9 feet, which was not enough to meet zoning
frontage requirements. Subsequently, the plaintiff sold lot 1, which then was built upon, and
attempted unsuccessfully to obtain a permit to build on lot 2 on the basis of a nonconforming
exemption. The court ruled the building of a dwelling on lot 1 "exhausted [the plaintiff's]right to
build structures[on lot 2] on the basis of the...frontage." jL at 353. The court reasoned,.
I
that an owner who has or has had adjacent land has it within his power, by adding
such land to the substandard lot,to comply with the frontage requirement,or,at least,
to make the frontage less substandard. In other words, the owner cannot avail
himself of the nonconforming exemption unless he includes his adjacent land in
order to minimize the nonconformity.
I&(Citation omitted).
In Bobro sIw ci the plaintiffs conforming lot was held non-buildable because the
conforming lot was held in common ownership with the plaintiff s nonconforming lot. The court
concluded that an improved"lot" is subject to the same considerations as to mcrgcr of lots-more
particularly,the policy of minimiang non-conformities-that apply to vacant lots...:. LL
12
ZTO M divi fivaucnoa ZZLOTLLSOS %V3 MST M 00/TO/TT
Misc. Case #163150• at
Misc. Case #163151
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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
i
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-taw." Becket_v_. Building
InsM=r of Marblehead,6 Mass. App.Ct.96, 104,further appellate review-denied,375 Mass. 788
(1978). "Conformity to the requirements of the zoning ordinance is achieved in such a case by
treating the ostensibly conforming lot as servient to jhe nonconforming lot to the extent.necessary
to achieve compliance with the area ... requirements of the zoning ordinance at the time of the
transfer." DiOcco y._Bm icv k,27 Mass. App. Ct.312, 314(1989)(citations omitted)(the merger
in Di icco resulted in a remainder lot consisting of 1000 square feet with 40 feet of frontage)."
Prior to 1958,16t 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 1995,
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 1pt 29 merged with the.
"Although I acknowledge DiCicco as precedent, 1 also recognize the unfortunate outcome
of the creation of a unbuiidable lot from the remainder of the*abutting parcel used to bring the
improved lot into zoning conformance.
13
CTOO mri rivauc og ZZLOTLLOOS M SC:ST T" 00/TO/TT
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-(sce
attached diagram). This conclusion 's 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.
Caryn Faith Scheier
Justice
Dated: October 9, 1996
14
�TOI�j AM Iivduanou ZZLOTLL802 Yvd SC:ST Q" 00/TO/TT
COMMONWEALTH OF MASSACHUSETTS
LAND COURT
DEPARTMENT OF THE TRIAL COURT
BARNSTABLE, SS. MISCELLANEOUS CASE
NO. 163151
DAVID SCOTT HORGAN, )
Plaintiff )
V. i)
DEXTER BLISS,ELIZABETH } .
NILSSON,BRUCE BURLINGAME. )
LUKE LALL"Y,and GENE BURMAN, )
as the are the Town of
y )
Barnstable Zoning Board of )
Appeals,PAUL BROWN and )
EDWIN GOURLEY, )
Defendants )
JUDGMENT
This case came to be heard on Plaintiff David Scott Horgan's Motion for Summary
Judgment and a decision of today's date was entered. In accordance with that decision,it is:
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.
By the Court(Scheier,J.).
Attest_
Charles W.Trombly,Jr.
Recorder
ATRUECOTY
Dated: October 9,1996 a.rEST
S'i �v�� lft/ ���.�'�,may' , I'- •
LTOO MV'I fiv mcnoia MOTLL809 M 9C:2T M 00/TO/TT
�ay I 1
IKE
BABNSTABLE, • ... ,
659.
Town of Barnstable A '
Zoning Board of Appeals
Decision and Notice
Appeal Number'1999-1261127A'= Maher
Variance to Section.3-1.1(5) Bulk Regulations
Summary: Granted
Applicants: Charles L. &Evelyn M. Maher.
Property Address: 87&97 Scudder Bay Circle, Centerville. : -
Assessor's Map/Parcel: Map 187, Parcels 007&035
Area. Parcel 007-0.41 acre,Parcel 035 0.43 acre '
Zoning: RD-1 Residential D-1 Zoning District
Groundwater Overlay: AP Aquifer Protection District
Background:
The property that is the subject of this appeal consists of two vacant lots commonly addressed as 87 and
97 Scudder Bay Circle, Centerville. It is located in an RD-1 Residential Zoning District which requires a,
minimum lot area of one acre; a minimum frontage of 20 feet and a minimum lot width,of 125 feet.
The property was subdivided in 1957. At that time,,it was zoned RB-1 which required a minimum lot size
of 10,000 sq. ft. In 1.958, the property-was rezoned to an RD-1 District which required a minimum lot size
of 20,000 sq. ft. (ATM 3/4/58, Art. 49). Finally, in 1985,the minimum lot size was increased to one acre
(STM 2/28/85, Art. 1). The six'lots.located between White Pine Lane and Hill Creek Road are owned by
either Charles L. Maher, Evelyn M. Maher or both. Presently, only Parcel 036 is developed with a single-
family dwelling which is where the applicants reside. Parcels 00.7 and 035 have merged under.zoning.,
The applicants are seeking.a Variance to Section 3-1.1(5) of the Zoning Ordinance- Bulk Regulations, to
permit the subject lots,which are undersized, to be considered separate buildable lots for the construction
of a single-family residence'on each of the lots:
Procedural Summary:'
Appeal Number 1999-126 and Appeal Number 1999-127 were filed at the-Town Clerk's Office and at the
Office of the Zoning Board of Appeals on August 1,9, 1999.. A 60 day extension of time for holding the
hearing and for filing.of the decision was executed between the applicant and the Board Chairman. A
public hearing before the Zoning Board,of Appeals was duly advertised and notices sent to all abutters in
accordance with MGL Chapter40A. The hearing was opened October 27, 1999, at which time the Board
denied the applicants' requests in,Appeal Nos. 1999-126 and.1999-127, but granted lesser relief to allow
--- -�-
Parcels 007 and 035'to be combined,into one buildable lot.
Hearing Summary:
- Board Members hearing these.appeals were Ron Jansson, Richard Boy, Gene Burman, Ralph Copeland,
and Chairman Emmett Glynn. Attorney John Kenney represented the applicants, Charles and Evelyn
Maher, who were present.. Although Appeal No. 1999-126 and Appeal No. 1999-127 are for different
owners and different parcels, they are companion requests and as'such Attorney Kenney asked that they
be heard together. The Board agreed to have these appeals heard together. "
Attorney Kenney gave a brief history of the two lots in issue. 'Appeal Number 1999-126 deals with Parcel
07[Assessor's Map 187] and is shown on the 1,957 subdivision',plan as Lot 20.. Appeal Number 1999-127
deals with Parcel 35 [Assessor's Map 187] and is shown on the 1957 subdivision plan as Lot 19. When
Town of Barnstable-..Zoning Board of Appeals-Decision and Notice
.� Appeal Number 1999-126/127A-Maher-
Variance to Section 3-1.1(5)Bulk Regulations
created, the minimum requirement was 10,000 square feet and both lots met all the requirements of the
zoning district. In 1958, zoning in this area changed to a minimum lot size of 20,000 square feet with both
of these lots being less than that in size. The lots were not checkerboarded by the previous owners.
When the applicants bought the lots, they were unaware that the lots had already merged and had lost
their nonconforming status.` They paid fair market value for each lot. The applicants also own Lots 18
and 21 -which also have merged: Their home sits on tot 18 and their yard is on Lot 21.
Attorney-.Kenney gave the history of these lots and the surrounding lots owned by the applicants (as
outlined in his memorandum). The applicants acquired.Lots 18 and 21 for the construction of their own
home. They acquired Lot 19 and put it in Evelyn Maher's name and Lot 20 in Charles Maher's name the
whole time believing both lots were buildable lots. When they acquired title to Lots 19 and 20 it was with
the intent of holding these lots and selling them at some time in the future and using the money for
retirement purposes. They also acquired these lots to protect the privacy of their own home.until such
time as they decided to sell these lots for retirement reasons. Now that Mr. Maher has decided to sell Lot
20 he has discovered that it is considered to be merged with Lot 19 and is not separately buildable. The
lots continue to this day to be taxed as buildable lots:
Pursuant to MGL Chapter 40A, Section 10, the topographical condition unique to these lots is that they
are both corner lots impacted by two roads with each road having an unusual,layout requiring a width_of
50 (fifty) feet rather than the standard'40 (forty)feet similar to most of the streets in this area. If not for
these layouts, these lots would be buildable today. To require the applicant to conform to a different lot .
size than many of the lots in-the neighborhood would impose a hardship upon the applicants. Because
many of the lots in the area are of similar size, the granting of the relief to allow the construction of a
dwelling on both vacant parcels would not be in derogation of the spirit and intent of the Zoning Ordinance
and would not cause substantial detriment to the neighborhood. Even if the two lots in issue were
combined they would still total less than.one acre. If these lots were built upon in the 1970s or 1980s, this
-would not have been a problem.
When asked, Attorney Kenney indicated the average lot in this area would have an asking price of
$80,000 to$100,000 per lot which is again over what was originally paid for the lots:.
Attorney Kenney stressed the applicants bought these.lots for their retirement"nest egg". They invested
in good faith and thought they had buildable lots and at a later time found out they were not buildable,
even after paying taxes all these years for buildable lots.
The Board discussed the possibility of joining the_.two vacant lots together and then the Board may be.
more inclined to grant relief for one buildable lot-not two separate buildable lots:
Public Comment: No one spoke in favor or in opposition to this appeal. There are four.letters of support
and one letter in opposition in the.file.
Findings of Fact:
At the hearing of October 27, 1999, the Board voted on the following findings of fact as related.to Appeal
No. 1999-126/127A:
1. Appeal Number 1999-126/127A is a combination of Appeal Number.1999-126 and Appeal Number
1999-127:
2. The first property in issue is addressed as 97.Scudder Bay Circle, Centerville, MA, as shown on
Assessor's Map 187, Parcel 035, consisting of 0.43 acres and owned by Evelyn M. Maher.' The other
property in issue is addressed as 87 Scudder Bay Circle; Centerville,MA, as shown on Assessor's
Map 187, Parcel 007,consisting of 0.41 acres and owned by Charles Maher. .
3. Both parcels are Iodated in the RID-1 Residential D-1 Zoning.District.which requires,.among other
things, a minimum lot area of one acre to be construed a buildable lot under the Zoning Ordinance:
The two lots combined do not total one acre in size..The two lots combined are approximately'36,590
square feet in area or..0.84 acres less than the required one acre in size:
2"
Town of Barnstable Zoning Board of ApNs als=Decision and"Notice
Appeal Number 1999-126/127A Maher"
Variance to Section 3-1.1(5)Bulk Regulations
4. The petitioners bought both of these lots several years ago and have been paying taxes on both of.
these lots.. To not allow these two lots; as they stand together,to be merged into one buildable lot
would be a substantial detriment to the petitioner and result in a financial hardship:
5. Pursuant.to MGL Chapter 40A, Section 10, no Variance findings are made.
The Vote was as follows:
AYE:,- Gene Burman, Richard Boy, Ron J.ansson, and Chairman Emmett Glynn
NAY: Ralph Copeland,
Decision:
Based on the findings of facts, a motion was duly made.and seconded to allow for the zoning merger of
Parcel 007 and Parcel 035 on.Assessor's Map 187 to form one buildable lot.
The Vote was as follows:
AYE: Gene Burman Richard Boy, Ron`Jansson, and Chairman Emmett Glynn
NAY: Ralph Copeland,
Mr. Copeland voted in the negative on procedural grounds.
Order:
Variance Number 1999-1261127A has been"Granted.
This decision must be recorded at the Registry of Deeds for it tote in effect. The relief authorized by this
decision'.must be exercised.in one year.
Appeals of this decision, if any, shall be made pursuant to.MGL Chapter 40A,Section 17, within twenty
(20) days after the date of the filing of this decision. A copy of which must be filed in the office of the
Town Clerk.
Emmett Glynn, Chairman Date Signed
I Linda Hutchenrider, Clerk of the Town of Barnstable; Barnstable County, Massachusetts, hereby certify
that twenty (20) days have elapsed since the Zoning Board of Appeals filed this decision and that no
appeal of the decision has been filed in the office of the Town Clerk.
Signed and sealed this r,�(� dayof ,� under the.pains and penalties of
perjury. ;
Lin a Hutchenrider, Town Clerk
. - 3
RefNo mappar ownerl owner2 : addr city state zip,
126
187 005 MAHER, EVELYN M 18 WHITE PINE LANE CENTERVILLE MA 02632,
187 006 MAHER, CHARLES L & EVELYN M 18 WHITE PINE LANE CENTERVILLE MA 02632
187 007 MAHER, CHARLES L 18 WHITE PINE 'LN CENTERVILLE MA 02632'
187 008 CONWAY, BRIAN J & BARBARA D 31 WHITE PINE LANE CENTERVILLE MA 02632
187 009 BOUNDY; WILLIAM B &' JEAN & SWEENEY, MARY 26 RIDERS RUN NEWTOWN SQUARE PA 19073
187 010 OMALLEY, AUSTIN F & PATRICIA J 28:BAYVIEW TERRACE CENTERVILLE MA 02632
187 016 CALLAHAN, RITA M 35_.HOLLY HILL RD, CENTERVILLE MA 02632
187 017 CUMMINGS, MARJORIE B' i27,,HOLLY HILL ROAD CENTERVILLE MA 02632
187 020 DOWLING, ROBERT.'G MARY JA DOWLING .,132 SCUDDER BAY CIRCLE CENTERVILLE MA 02632
187 021 BRADFORD, .BEVERLY G 116 SCUDDER BAY CIRCLE CENTERVILLE MA 02632
187 023 MORRIS; PATRICIA A TRS PATRICIA A MORRIS REV TR ' `73 SCUDDER BAY CIRCLE CENTERVILLE -MA 02632
r
187 024, PAJOLEK, MICHAEL C & LISA G 16 HILL CREEK RD CENTERVILLE MA 02632
f
187.035 MAHER, EVELYN M ?: - 18. WHITE PINE'LANE� CENTERVILLE MA' 02632
187 036 MAHER, CHARLES L &'EVELYN M_ '18 WHITE PINE,LANE CENTERVILLE. MA 02632-
187 037 ..CHARLES L 18 WHITE PINE LANE. CENTERVILLE MA_ 02632
187 040 MCALPINE,. JOHN D MCALPINE, M DENISE 106 SCUDDER BAY.CIR CENTERVILLE MA, 02632
187 041 DEPEW, RICHARD LEE.& KATY A 72 SCUDDER BAY CIR. CENTERVILLE MA .02632
187 044 FIELDS POINT LIMITED PTNR %MASHPEE COMMONS LMTD PRTN P O BOX 1530 MASHPEE MA 02649
187. .045 FIELDS POINT LIMITED PTNR 'kMASHPEE COMMONS.LMTD.PTNR P 0 BOX 1530 MASHPEE MA 02649
188 099 SCHILLER,.,PHILIP S 65 SCUDDER BAY CR CENTERVILLE MA 02632 .
188 100 THEODOS, VICTOR A & ANNE ,M 46-SCUDDER BAY-CIR:. CENTERVILLE MA .02632 .'
RetNo mappar ownerl owner2 addr city state zip
127
187 005 MAHER, EVELYN M - 18.WHITE -PINE LANE CENTERVILLE MA 02632
187 006 MAHER, CHARLES L & EVELYN:M 16 WHITE PINE LANE CENTERVILLE MA 02632,:;.
187 007 MAHER, CHARLES L 18WHITE PINE LN CENTERVILLE MA 02632
187 008 'CONWAY, BRIAN J & BARBARA D 31..:WHITE PINE LANE CENTERVILLE MA 02632
" 187 009 BOUNDY, WILLIAM B & JEAN & SWEENEY, MARY 26 RIDERS RUN NEWTOWN:SQUARE PA 1907.3.
187 016 CALLAHANi RITA M 35,HOLLY HILL.RD CENTERVILLE MA 02632,
187 017; CUNNINGS, MARJORIE B 27 HOLLY HILL ROAD CENTERVILLE MA 02632-
187 021' BRADFORD, BEVERLY G 116 SCUDDER BAY CIRCLE CENTERVILLE MA 02632` '
187 023• MORRIS,. PATRICIA A' TRS PATRICIA A MORRIS. REV TR 73' S.CUDDER BAY CIRCLE CENTERVILLE MA 02632,
187 024f PAJOLEK, MICHAEL C & LISA.G. 16 HILL CREEK,RD CENTERVILLE MA 02632
187 035 MAHER, EVELYN M.- 18 WHITE PINE LANE : CENTERVILLE MA 02632
187 036 MAHER, CHARLES L. &.EVELYN M - 18 WHITE PINE LANE CENTERVILLE MA ..02632
187 037 MAHER" L '18 WHITE PINE LANE ; ' , CENTERVILLE MA 02632
187 040 MCALPINE, JOHN D MCALPINE, M DENISE 106 :SCUDDER BAY CIR ,l v CENTERVILLE MA 02632'
187 .041 DEPEW,. .RICHARD LEE_& KATY A 72. SCUDDER BAY CIR CENTERVILLE MA 02632
187 044 FIELDS POINT LIMITED PTNR %MASHPEE COMMONS.,LMTD.PRTN P 0 BOX, 1530 MASHPEE MA 02649
187 045 FIELDS POINT LIMITED 'PTNR'' %MASHPEE COMMONS LMTD PTNR, P-O BOX 1530 - MASHPEE MA 02649 '
187 051 GIOVANNONE, LOUIS.A .609 BAY LANE _ CENTERVILLE MA 02632.
187. 052 CALLAHAN•, EDWARD P & ALICE %AAC RE TRUST 565 BAY,LN CENTERVILLE. MA 02632 `
188 084 PICKUL, STEPHEN ,F &,STGEORGE, %PICKUL, STEPHEN F 87.OVERLOOK DR CENTERVILLE MA 02632
188 099 SCHILLER,• PHILIP S 65 SCUDDER BAY CR CENTERVILLE MA 02632
188 100 THEODOS, VICTOR A & ANNE M 46',SCUDDER BAY CIR CENTERVILLE MA 02632
188 122' MICKUNAS, .CHESTER C IRENA MICKUNAS 94 OVERLOOK DR CENTERVILLE MA 02632',
188 123 MORRISON, BRIAN A & SUSAN B' 5,'PARADISE RD BRONXVILLE- NY: '10708
.5
. . Proof of Publication
0
"Taiwn of Barnstable Zo Board of Appeals ning
# ;Notice of Public Nearing f" i the 2pning O�dinanee ;r
for October 27, 1999
To all per ins interested in or affected Wy the Board of Appeals under Sec_11 of Chapter
40A:of,the General Laws of the!Commonwealth of:Massachusetts and,all amendments
thereto you are hereby�notified that: -
7.35 p.M. Pike Appeal Number 1999 123
WilliamD Pike haspetitionedtotheZoningBoard_ofAppealsforaSpecialPermit for aFamily
Apartment pursuant to Section 3-1.1 (3)(D)of the Zoning Ordinance.The property is shown
on Assessor's N1ap 061;Parcel Ot3.003 and is commonly addressed as 190 FlumeAvenue
Marstons Mills„MA in a:RF ResidentialF Zoning Distnct.
7 45 R,M White Appeal Number 1999-124
Daniel'J White and J:"Griffin White have applied'to the Zonnng Board of Appeals for A
-Regulatos toperit ool" hichwcorrectly placedVariance to Section31 4(5)Bulk m n
at 107°from ttie property Une""where a 15 foot setbll.ack is required.The property is shown.
on Assessors Map 109 Parcel 082 and'is commonlyaddressed as 611 Cedar Street,West
Barnstable MA in an RF Residential F Zoning District.
8 00 P.M Omnipoint Appeal Number 1999-12.5
Omnipoint Communications has petitioned to the Zoning Board of Appeals fora Modification
to Special Permit 1998-1<16 Condition#2„The Petitionerseeks tochange Condition#2.from
"The proposed antennas shall not exceed the presentheight of the ublitypole which is,shown.
on the submitted site plan to be 65.7 feet high"to'The proposed antennas shalfhot xceed
a height of 66:9'feet high: The'property is`showribnAssessors Map,099 Rarcel059 and
is commonly addressed;as 224 Cammett Road,Marstons Ivlilis in'an RF Residential F Zoning
Distnct.
B 15 P:M Maher. Appeal Number 1999 126
Charles L Maher has applied to'the Zoning Board of Appeals for a Vanance to Section`3
1.1(5)Bulk Regulations:The Petitioner seeks relief rom the minimum lot'size of`one acre and
such regulations as tnay oe deemed applicable to allow:forthe creation of one(1)single
family building"lot The-property is shown on Assessors Map 187, Parcel,..007 and is
commonly addressed.as 87 Scudder Bay Circle,Centerville,MA in an.RD 1 ResidentialD-
1 Zoning Distnct
8 20 R.M Mader Appeal Number 9,99 12T
Evelyn°M MaFier has applied to'the Zoning Board of Appeals for a Variance to'Section 3
Bulk Regulations..The Petitionerseeks relief from the minimum I`ot size of one acre and
such regulations as may be deemed applicable, to allow forthe creation of one(1)single
family.;building.'lot The.'property is shown on Assessors [Nap 187;. Parcel f and is
commonly addressed as 9TScudder Bay Crcle,"Centerville,MA in an;9 1 Residential D-
1 Zoning District
8.45,P:M Fld'retlge,' : . Appea[Number.:999 128':
James C.Eldredge has applied to,the Zoning Board ofAppeals for a Use,Vanance to Section
3 1.1(1)Principal Permitted Uses in the.RB Residential B Zoning District and a anonce to
Section 3-3.1(00) Principal Pe'rrinitted uses •"Multi-family dwellings and Section" 3.
2.1(J)(b)(d)(e)(1)Multi-family dwelling conditions in the B Business District The.Petitioner has -
erroneously"usedthe propeftyps amulti family dwelling s4nce'.1989 and seij,sU reducethe .
units-fr6m 4 to 3 and legalize the current usage.The property is shown on Assessoes.Map
327, Parcel 043"and is eornmonly addressed as 10 Stua4,Stre et;Hyannis MA)n both the
RB Residential B Zoning;Drstrict`and the B Business Distnct.
9 00 R.M Christy s of Cape Cod AppeahNumber 1999 129'
Chnsty's of Cape Cod h.as petitioned to the Zoning'Board of Appeals for a Special Permit:
pursuant to Section 3 3.6(3)W)Conditional Uses in the HB:HighwayBusmess,District.,The
petitioner is seeking a Special Permit to construct and.operate convenience store and,self-
service fuel station The`locus of this appeal is a part of the-property shown on Assessors
Map'250 andconsisting of the various parcels. Parcel 023HOO.is addressed as'36
Wequaquet Lane Hyannis Parcel 023T00 is addressed as 36 Wequaquet Lane Center-
ville,'Parcel 024;is addressed as~28 Wequaquet Lane Cent"er ille,Parce1025.is'addressed
as 10 Wequaquet Lane;.Centervil,le, Parcel 27HOO::is addressed asi1072 Falmouth,R;gad
(Route,28)and Parce1027T00,is addressed as 1076 Falmouth Road(Route 28);Centerville.
The property is located in the HB Highway Business Zonng Distnct and RD-1 Residential D-
1 Zoning District!
These Public Hearings will be he(d in the'He.wring Room Second Floor;New Town Hall:367
Main Street,.Hyannis. Massachusetts"pin.Wednesday, October 27,,1999 All plans,a"nd
applications maybe reviewed at the Zoning Board of Appeals Office,Town of.Barns table,
Planning Depaitment,230 South''Streef;;Hyannis, MA
Emmett Glynn;Chairman
Zoning Board of Appeals
The Barnstable Patriot
October 7 8 October 14. 1999
THIS DOCUMENT HAS
NOT BEEN RECORDED
FILE COPY ONLY! " P
Town of Barnstable
Zoning Board of Appeals
Decision and Notice
Appeal Number 1999-126-Maher
Variance to Section 3-1.1(5)Bulk Regulations
Summary: Denied
Applicant: Charles L. Maher
Property Address: 87 Scudder Bay Circle,Centerville
Assessors Map/Parcel: Map 187, Parcel 007
Area: 0.41 acre
Zoning: RD-1 Residential D-1 Zoning District
Groundwater Overlay: AP Aquifer Protection District
Background:
The property that is the subject of this appeal is a vacant lot consisting of 0.41 of an acre(approximately
17,860 sq. ft.)and is commonly addressed as 87 Scudder Bay Circle,`Centerville. It is located in an RD-1
Residential Zoning District which requires a minimum lot area of one acre, a minimum frontage of 20 feet
and a minimum lot width of 126 feet
The property was subdivided in 1957. At that time, it was zoned RB-1 which required a minimum lot size
of 10,000 sq. ft. In 1958, the property was rezoned to an RD-1 District which required a minimum lot size
of 20,000 sq. ft. (ATM 3/4/58, Art. 49). Finally, in 1985,the minimum lot size was increased to one acre
(STM 2/28/85,Art. 1). The applicant has owned the property for the past 23 years, according to the
application. The six lots located between White Pine Lane and Hill Creek Road are owned by either
Charles L. Maher, Evelyn M. Maher or both. Presently, only Parcel 036 is developed with a single-family
dwelling which is where the applicant resides. Because these properties are under common control and
ownership, Parcel 007 has merged with the abutting property under zoning. -
The applicant is seeking a Variance to Section 3-1.1(5)of the Zoning Ordinance-Bulk Regulations, to
permit the subject lot, which is undersized, to be considered a separate buildable lot for the construction
of a single-family residence. The subject lot meets the minimum frontage and lot width requirements.
Procedural Summary:
This appeal was filed at the Town Clerk's Office and at the Office of the Zoning Board of Appeals on
August 19, 1999. A 60 day extension of time for holding the hearing and for filing of the decision was
executed between the applicant and the Board Chairman. A public hearing before the Zoning Board of
Appeals was duly advertised and notices sent to all abutters in accordance.with MGL Chapter 40A. The
hearing was opened October 27, 1999, at which time the Board denied the applicant's request but granted
lesser relief to allow.Parcels 007 and 035 to be combined into one buildable lot(see Appeal No. 1999-
126/127A).
Hearing Summary:
Board Members hearing this appeal were Ron Jansson, Richard Boy, Gene Burman, Ralph Copeland,
and Chairman Emmett Glynn. Attorney John Kenney represented the applicants, Charles and Evelyn
Maher, who were present.. Although Appeal No. 1999-126 and Appeal No. 1999-127 are for different
owners and different parcels, they are companion requests and as such Attorney Kenney asked that they
be heard together. The Board agreed to have these appeals heard together.
Town of Barnstable-Zoning Board of Appeals Decision and Notice
Appeal Number 1999-126-Maher
Variance to Section 3-1.1(5)Bulk Regulations
Attorney Kenney gave a brief history of the two lots in issue. Appeal Number 1999-126 deals with Parcel
07[Assessor's Map 187]and is shown on the 1957 subdivision plan as Lot 20. Appeal Number 1999-127
deals with Parcel 35[Assessor's Map 187]and is shown on the 1957 subdivision plan as Lot 19. When
created, the minimum requirement was 10,000 square feet and both lots met all the requirements of the
zoning district. In 1958,zoning in this area changed to a minimum lot size of 20,000 square feet with both
of these lots being less than that in size. The.lots were not checkerboarded by the previous owners.
When the applicants bought the lots, they were unaware that the lots had already merged and had lost
their nonconforming status. They paid fair market value for each lot. The applicants also own Lots 18
and 21 -which also have merged. Their home sits on Lot 18 and their yard is on Lot 21.
Attorney Kenney gave the history of these lots and the surrounding lots owned by the applicants(as
outlined in his memorandum). The applicants acquired Lots 18 and 21 for the construction of their own
home. They acquired Lot 19 and put it in Evelyn Maher's name and Lot 20 in Charles Maher's name the
whole time believing both lots were buildable lots. When they acquired title to Lots 19 and 20 it was with
the intent of holding these lots and selling them at some time in the future and using the money for
retirement purposes. They also acquired these lots to protect the privacy of their own home until such
time as they decided to sell these lots for retirement reasons. Now that Mr. Maher has decided to sell Lot
20 he has discovered that it is considered to be merged with Lot 19 and is not separately buildable. The
lots continue to this day to be taxed as buildable lots.
Pursuant to MGL Chapter 40A, Section 10, the topographical condition unique to these lots is that they
are both comer lots impacted by two roads with each road having an unusual layout requiring a width of
50(fifty)feet rather than the standard 40(forty)feet similar to most of the streets in this area. If not for
these layouts, these lots would be buildable today. To require the applicant to conform to a different lot
size than many of the lots in the neighborhood would impose a hardship upon the applicants. Because
many of the lots in the area are of similar size, the granting of the relief to allow the construction of a
dwelling on both vacant parcels would not be in derogation of the spirit and intent of the Zoning Ordinance
and would not cause substantial detriment to the neighborhood. Even if the two lots in issue were
combined they would still total less than one acre. If these lots were built upon in the 1970s or 1980s, this
would not have been a problem.
When asked,Attorney Kenney indicated the average lot in this area would have an asking price-of
$80,000 to$100,000 per lot which is a gain over what was originally paid for the lots.
Attorney Kenney stressed the applicants bought these lots for their retirement"nest egg". They invested
in good faith and thought they had buildable lots and at a later time found out they were not buildable,
even after paying taxes all these years for buildable lots.
The Board discussed the possibility of joining the two vacant lots together and then the Board may be
more inclined to grant relief for one buildable lot-not two.separate buildable lots.
Public Comment: No one spoke in favor or in opposition to this appeal. There are four letters of support
and one letter in opposition in the file.
Findings of Fact:
At the hearing of October 27, 1999, the Board voted on the following findings of fact as related to Appeal
No. 1999-126: 4
1. The applicant is Charles L. Maher. The property in issue is addressed as 87 Scudder Bay Circle,
Centerville, MA, as shown on Assessor's Map 187, Parcel 007 and consists of 0.41 acres of land.
2. The site is located in an RD-1 Residential Zoning District which requires a minimum lot area of one
acre, a minimum frontage of 20 feet and a minimum lot width of 125 feet.
3. The property is abutted by other lots which are owned by either the petitioner or the petitioner's wife or
both in common.
4. At the time the petitioner purchased the property, the property had already merged with the adjoining
lot-this was a matter of record.
2
Town of Barnstable-Zoning Board of Appeals-Decision and Notice
Appeal Number 1999-126-Maher
Variance to Section 3-1.1(5)Bulk Regulations
5. The petitioner and the petitioner's wife own six(6) lots that are immediately adjoining each other in
this particular area.
6. One lot-irrespective of the size in this area-would return a significant sum of money, by virtue of the
testimony of the applicants attorney, in the amount of approximately$80,000 to$100,000 on sale.
The petitioners paid significantly less for the one lot involved.
7. Pursuant to MGL Chapter 40A, Section 10, no Variance conditions have been established which
would warrant the granting of the relief the petitioner is seeking.
The Vote was as follows:
AYE: Richard Boy, Ron Jansson, Ralph Copeland, and Chairman Emmett Glynn
NAY: Gene Burman
Decision:
A motion was duly made and seconded to grant the relief being sought in Appeal Number 1999-126.
The Vote was as follows:
AYE: Gene Burman
NAY: Richard Boy, Ron Jansson, Ralph Copeland, and Chairman Emmett Glynn
Order:
Appeal Number 1999-126 has been Denied (See Appeal Number 1999-1261127A).
Appeals of this decision, if any, shall be made pursuant to MGL Chapter 40A, Section 17,within twenty
(20) days after the date of the filing of this decision. A copy of which must be filed in the office of the
Town Clerk.
��- �- Ff
Emmett Glynn, Chairman. Date Signed
I Linda Hutchenrider, Clerk of the Town of Barnstable, Barnstable County, Massachusetts, hereby certify
that twenty (20)days have elapsed since the Zoning Board of Appeals filed this decision and that no
appeal of the decision.has been filed in the office of the Town Clerk.
Signed and sealed this day of �;�� under the pains and penalties of
perjury. ,-
Linda Hutchenrider,`Town Clerk
3
RefNo mappar ownerl owner2 addr city state zip i
126
187 005 MAHER, EVELYN M 18 WHITE PINE LANE CENTERVILLE MA 02632
187 006 MAHER, CHARLES L & EVELYN M 18 WHITE PINE LANE CENTERVILLE MA 02632
187 007 MAHER, CHARLES L 18 WHITE PINE LN CENTERVILLE MA 02632
187 008 CONWAY, BRIAN J & BARBARA D 31 WHITE PINE LANE CENTERVILLE MA 02632
187 009 BOUNDY, WILLIAM B & JEAN & SWEENEY, MARY 26 RIDERS RUN NEWTOWN SQUARE PA 19073
187 010 OMALLEY, AUSTIN F & PATRICIA J 28 BAYVIEW TERRACE CENTERVILLE MA 02632
187 016 CALLAHAN, RITA M 35 HOLLY HILL RD CENTERVILLE MA 02632
187 017 CUMMINGS, MARJORIE B 27 HOLLY HILL ROAD CENTERVILLE MA 02632
187 020 DOWLING, ROBERT G MARY JA DOWLING 132 SCUDDER BAY CIRCLE CENTERVILLE MA 02632
187 021 BRADFORD, BEVERLY G 116 SCUDDER BAY CIRCLE CENTERVILLE MA, 02632
187 023 MORRIS, PATRICIA A TRS PATRICIA A MORRIS REV TR 73 SCUDDER BAY CIRCLE CENTERVILLE MA 02632
187 024 PAJOLEK, "MICHAEL C & LISA G 16 HILL CREEK RD CENTERVILLE MA 02632
187 035 MAHER, EVELYN M 18 WHITE PINE LANE' CENTERVILLE MA 02632
7 0 MAHER CHARLES L 'EVELYN M 18 36 & 18 WHITE PINE LANE CENTERVILLE MA 02632
187 037 MAHER, CHARLES L _ 18 WHITE PINE LANE CENTERVILLE MA 02632
197 040 MCALPINE,. JOHN D MCALPINE, M DENISE 106 SCUDDER BAY CIR CENTERVILLE MA 02632
187 041 DEPEW, RICHARD LEE & KATY A 72 SCUDDER BAY CIR CENTERVILLE MA 02632
187 044 FIELDS POINT LIMITED PTNR %MASHPEE COMMONS LMTD PRTN P O BOX 1530 MASHPEE MA 02649
187 045 FIELDS POINT LIMITED PTNR 4MASHPEE COMMONS LMTD PTNR P O BOX 1530 MASHPEE MA 02649
188 099 SCHILLER, PHILIP S 65 SCUDDER BAY CR CENTERVILLE MA 02632
188 100 THEODOS, VICTOR A & ANNE M 46 SCUDDER BAY-CIR CENTERVILLE MA 02632
4
Progf of Publication
LEGAL NOTICES
Fawn Q#. instable aArn9 4vard 00 Appeals
Noll 0 of Public Flearr^9 Under The 2c011ng Ordinance
tiot4ber 27. 1999
To all persorts intgrgstin jor affected by the Board of Appeals under Sec.11 of Chapter
of the General Laws of the.Commonwealth of:Mdssachusetts.and all amendments
thereto you are hereby notified that:
7:35 P.M. Pike Appeal Number 1999-123
William D.Pike has petitioned_to the Zoning Board of Appeals fora Special Permitfora Family
Apartment pursuant to Section 3-1.1 (3)(D)of the Zcpi Ordinance.The properly is shown
on Assessor's Map 061,Parcel 013.003 and is commonly addressed as 190 Flume Avenue.
Ivlarstons.Mills,MA in a RF Residential F Zoning District.
7:45 P.M. White Appeal Number 1999.124
Daniel J. White and J. Griffin White have applied to the Zoning Board of Appeals for A
Variance to Section 3=1_R(5)Bulk Regulations to pgrmit a pool which was incorrectly placed
at 107'from the.property;line Where q.15 foot setbo.gk is required:The property is shown
on Assessor's Map 109i Parcel 082 and is commonlyaddressed as 611 Cedar Street,West
Barnstable.MA in an RF Residential F Zoning District.
0:00 P.M. Omnipoint _ Appeal Number 1999.125
Omnipoint Communications has petitioned to the Zoning Board of Appeals fora Modification
to Special Kermit 19913 116 Condition#2.The Petitioner seeks to chan9e Condition#2 from
`The proposed antennas shelf not exceed the present height of the utility pole which is shown
on the submitted site plan to be 65.7 feet high'to'The proposed antennas shall.not exceed
a height of 66.9 feet high.'-The property is shown on Assessor's Map 099,Parcel 059 and
is corn nonlyaddressed as 224 Camrnett Road,Morstons Mills in an RF Residential FZoriing
District.
8:IS P.M. Maher, eal Number t 90W 126, .
Charles L.Maher has applied to the Zoning Board of Appeals for a Variant:to Section 3-
1.1(5)Bulk Regulations.The Petitioner seeks relief from the minimum lot size of one acre and
such re
gulations as may be-deemed applicable,to allow for the Creation of one(1)single
family building lot. The property is shown on Assessor's Map. 187,.Parcel 007 and is
commonly addressed as 87 Scudder Bay Circle:Centerville.MA in an RD-t Residential D-
1 Zoning.District..
8:20 P.M Maher Appeal Number 1999-127
Evelyn M.Maher has applied to the Zoning Board of Appeals for a Variance to Section 3-
1.1(5)Bulk Regulations.The Petitionerseeks relief from the minimum lot size of one acre and
such regulations as.may.be deemed applicable,to allow for the creation ot.one(1)single i
family.bulic6rlg tot The pro is shown on Assessor's Map 187. Parcel.035 and is
commonly addressed as 97 Scudder Bay Circle.Centerville,MA in an RD-1 Residential D-
1 Zoning District.
8:45 P.M., Eldredge Appeal Number 1999-120
James C.Eldredge has applied to the Zoning Board of Appeals fora Use Variance to Section
3-1.10)Principal permitted Use. in the RB Residential B Zoning District and a Variance to
Section 3.3.10 0) Principal Permitted uses Multi-family dwellings and Section 3-
2.1(J)(b)(d)(e)(I)Multi-family dwelling conditions in the B Business District.The.Petitioner has
erroneously usedthe property as a multi-family dwelling since 1989 and seeks to reduce the .
units from 4 to 3 and legalize the current usage.The property is shown on Assessor's Map
327.Parcel 043 and is commonly addressed as 10 Stuart Street.Hyannis,MA in both the
RO Residential B Zoning District and the B Business District.
9:00 P.M. Christy's of Cape Cod Appeal Number 1999-129
Christy s of Cape Cod has petitioned to the Zoning Board of Appeals for a Spatial Permit
pursuant to Section 3-3.6(3HA)Conditional Uses in the HB Highway[Business District.The
petitioner is Seeking a special Permit to construct and operate convenience gtore and self
service fuel station.-The focus of this appeal is a part of the property shown on Assessor's
Map 250 and consisting of the various parcels. Parcel 023HOO is addressed as 36
Wequaquet Lame,Hyannis,Parcel 02MO is addressed as 36 Wequaquet Lane,Center-
ville,Parcel 024,is addressed as 28 Wequaquet Lane,Centerville,Parcel 025 is addressed
as 10 Wequaquet Lane,Centerville, Parcel 27HOO is addressed as 1072 Falmouth Road
(Route 28)and Parcel 027TOO is addressed as 1076 Falmouth Road(Route 28),Centerville.
The property is located in the HB Highway Business Zoning District and RD-1 Residential D-
1 Zoning District.
These Public Hearings will be held in the Hearing Room;Second Floor.New Town Hall,367
Main Street, Hyannis. Massachusetts on Wednesday, October 27. 1999. All plans and
applications may be reviewed at the Zoning Board of Appeals Office,Town of Barnstable,
Planning Department.230 South Street,Hyannis,MA.
Emmett Glynn,Chairman
Zoning Board of Appeals
The Barnstable Patriot
October 7 8 October 14, 1999
p
6�
Town of.Barnstable
Planning Department
Staff Report
Appeal Number 1999-126-Maher
Variance to Section 3-1.1(5) Bulk Regulations
Date: October 14, 1999
To: Zoning B r of ppeals
From:
Approved By: Robert P. Sc ernig,AICP, Planning Director
Reviewed By: Art Traczyk, Principal Planner
Drafted By: Alan Twarog,AICP,Associate Planner
Applicant: Charles L.Maher
Property Address: _87 Scudder Bay Circle,Centerville
Assessor's Map/Parcel: Map 187,_Parcel007`- - --
Area: 0.41 acre
Zoning: RD-1 Residential D-1 Zoning District
Groundwater Overlay: _ AP.Aquifer Protection.District
Filed:August 19, 1999 Hearing:October 27,1999 Decision Due:January.24,2000(includes:a'60 day extension)
Background:
The property that is the subject of this appeal is a vacant lot consisting of 0.41 of an acre(approximately.
17,860 sq. ft.)and is commonly addressed as 87 Scudder Bay Circle, Centerville. It is located in an RD-1
Residential Zoning District which requires a minimum lot area of one acre, a minimum frontage of 20 feet
and a minimum lot width of 125 feet.
The property was subdivided in 1957(see attached Plan of Land). At that time, it was zoned RB-1 which
required a minimum lot size of 10,000 sq. ft. In 1958,the property was rezoned to an RD-1 District which
required a minimum lot size of 20,000 sq.ft. (ATM 3/4/58,Art. 49). Finally, in 1985, the minimum lot size
was increased to one acre(STM 2/28/85, Art. 1). The applicant has owned the property for the past 23
years, according to the application. The six lots located between White Pine Lane and Hill Creek Road
are owned by either Charles L. Maher, Evelyn M. Maher or both. Ownership of these six parcels, as listed
by assessor's records, are as follows:
• Parcel 007-Charles L. Maher
• Parcel 037-Charles L. Maher
• Parcel 006-Charles L. & Evelyn M. Maher
• Parcel 036-Charles L. &Evelyn M. Maher
• Parcel 005-Evelyn M. Maher
• Parcel 035-Evelyn M. Maher
Presently, only Parcel 036 is developed with a single-family dwelling which is where the applicant resides.
Because these properties are under common control and ownership, Parcel 007 has merged with the
abutting property under zoning.
The applicant is seeking a Variance to Section 3-1.1(5)of the Zoning Ordinance-Bulk Regulations, to
permit the subject lot,which is undersized, to be considered a separate buildable lot for the construction
of a single-family residence. The subject lot meets the minimum frontage and lot width requirements.
y 'aG
Town of Barnstable-Planning Department-Staff Report
Appeal Number 1999-126-Maher
Variance to Section 3-1.1(5)Bulk Regulations
Staff Review:
This area of town is made up of lots of varying sizes. Many of the lots in the immediate vicinity are under
the one acre minimum lot size requirement. Some of the these lots are an equivalent size as that being
proposed by the applicant(see attached assessor's map).
The property fronts onto both Scudder Bay Circle and Hill Creek Road. Scudder Bay Circle is a paved
Town owned way and Hill Creek Road is a partially improved private way. Hill Creek Road consists of a
dirt,gravel surface which extends approximately 30 feet past the subject lot. Staff suggests as a condition
of approval, should the Board find to grant.the requested Variance,that access be from Scudder Bay
Circle only.
Variance Findings:
In consideration-for the Variance,the petitioner must substantiate those conditions unique to this lot that
justify the granting of the relief being sought. In granting of the Variance the Board must find that:
• unique conditions exist that affect the locus but not the zoning district in which it is located,
• a literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship,
financial or otherwise to the petitioner,and
• the relief may,be granted without substantial detriment to the public good and without nullifying or
'substantially derogating from the intent or purpose.of the Zoning Ordinance.
Suggested Conditions:
If the Board should find to grant the requested Variance;they may wish to consider the following
conditions.-
1. Access to the property shall be from Scudder Bay Circle,only:
2. The locus shall comply with all State Building Code,Town of Barnstable Board of Health and State
Fire Prevention Regulations.
Attachments: Application Copies: Petitioner/Applicant
GIS Map
Assessor's Map
1957 Plan of Land
Quitclaim Deed
2
r •8�
TOWN OF BARNSTASLE �OAO
Zca�ag`$carc ,•af Appeals �
Applica4t on to Petit aa:;for a variance �?®r^A0,
G �
Date Received For office Use only:
Town Clerk Office Appeal # �
ti Hearing Date O
Decision:Due.
The undersigned hereby app to th TQ B, of Appeals for a variance from
the .Zoning ordinance, in d'ft5i the' re sons hereinafter set forth
r
s N/A
Petitioner Name: CYIa es , Phone
-. q
Petitioner Address: 18 e�I;ane Centerville MA 02632
Property Location: 9 Scudder Bay Circle, Centerville, MA 02632
Property Owner: Charles L. Maher Phone N/A
18. Wtri to P' r. terville, MA. 02632_------
Address--of-owner:--. _. _..._. --- ---
If petitioner differs from owner, state nature of interest:
Same
23
Number of Years owned:
Assessor's_Map/Parcel. Number: 187 7
Zoning District: RD-1
AP
Groundwater overlay District: '
variance Requested: 3-1.1(5) RD-1 Residential District - Bulk Regulations
cite section a Title of the Zoning ordinance
Description of variance Requested: Petitioner seeks relief from Section 3-1.1(5)
Bulk Regulations requiring a minimum lot size of one acre'and gilch nt-bar_ .regulations as
may be deemed applicable, to allow for the creation: of one (1) single: famijy building lot..
Description.'of the Reason and/or Need for the variance: Petitioner acquired this__lot.
in 1976. Under Zoning Ordinance it is merged with abutting property, Petitioner seeks to
have the-lot recognized as a. separate building lot.- It would not meet current Bulk
Regulations
Disc ription of Construction Activity (if applicable) : None currently
proposed but if Variance is granted it would result in construction of one (1) single
family residence.
Existing Level of Development of the Property - Number of Buildings: 0-
vacant land N/A ft.
-Ptesent Use(s) : Gross Floor Area: s q•
Proposed Gross Floor Area to be Added: N/A , Altered: N/A
Is this property subject to any other relief (variance or special Permit) from
the Zoning Board of Appeals? Yes (] No
If Yes, please list appeal numbers or applicants name
Application to Petition for a variance
rs the property within a Historic District? Yes [] No TT.'
_ rs the property a Designated Landmark? Yes LJ. No." j; _
For Historic Department LTseLOnly:
Not.Applicable ................... (]
OIM Plan Review Number
Date Approved
Signature':
Have. you applied for a building permit? Yes IJ No I :
Has the Building Inspector refused a permit? Yes [] No [] .
All applications for a variance which proposes a change in'use, new ,
-- cons-truction-,-reconstruction,-alterations or expansion, except for single
or two-family dwellings, will require as approvd e site Plan (see section
- 7.3 of the Zoning ordinance) . That process should be completed prior to
submitting this application to the .Zoning Board of Appeals.,,
For Building Department Use Only:
Not Required .. . . .. . . ... .. . . .. []
Site Plan Review Number
Date Approved
Signature:
The followings information must be submitted with the Petition at the time .
of filing, without such information the Board of Appeals may deny your
request:
Three (3) copies of the completed Application Form, each with
original signatures. ,
Five (5) copies of a certified property survey (plot plan) showing
the dimensions of the land, all wetlands, water bodies, surrounding
.roadways and the location of the existing improvements on the land.
All proposed development activities, except+single and two-family
housing development, will require five (5) copies of a proposed site
~ improvements plan approved by the Site Plan Review committee. This
plan must show the exact location of all proposed improvements and
alterations on the land and to structures. see -contents of Site
Plan:- section 4-7.5 of the Zoning ordinance, for detail
requirements.
The petitioner may submit any additional supporting documents to
assist the Board in making its determination.
Signature: 04 Date: f�
Petitioner4orAjintS APl
ature
1550 Falmouth Road Suite 12
Agents Address: Centerville, MA. 02632 Phone: (508) 771-9300
Fax No. (508) 775-6 29
Properly Location: 9 SCUDDER BAY CIR MAP ID: 197/007/
Vision M. 12630 Other ID: > Bldg#: 1 Card 1 of 1 Print Date:10/14/1999
MEW m,
�DDescription Mae ASSeJS6a Value
8 WHITE PINE LN ' 35,501 801
ENTERVILLE,MA 02632 Barnstable 2000,MA .
a .
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Life Estate VISION
DL 1 LOT 20 Notes:
DL 2
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sass value r. o e ass a ue
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Year ,typelvescriplion moun R, e Description Nunwer AnWUn1 M17L Int.
Appraised Bldg.Value.(Card) j 0
Appraised XF(B)Value(Bldg) 0
Appraised O Valujg)o �Vsluee
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Special Land Value
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Total Appraised Card Value i 35,50
Total Appraised Parcel Value 35,50
Valuation Method: ! Cost/Market Valuatio
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ermit 7D, Issue Date lype vescriplwn AHWUnt Insp.Date We comp. Date Comp. Toninems vale W Cd. Furposemesulf
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roperty Location: 9 SCUDDER BAY CIR MAP ID: 187/007///
Won ID:12630 Other ID: Bldg M l Card 1 of l Print Date:10/14/19"
Element Descnptton Commercial DWa-EMments --
1-yreeTType -7VacantLin ement escr ption
lodel 00 Vacant Heat&AC
Trade Frame Type
Baths/Plumbing
tones
iccupancyCeiling/Wall
RoonWPrtns
xterior Wall 1 /o Common Wall l
2 Wall Height
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.00f Cover
itcrior Wall 1
2Element Lode cnp ton Factor
tterior Floor 1 omp ex
2 qoor Adj
nit Location
leafing Fuel
[eating Type qumber of Units
.0 Type gumber of Levels
/o Ownership
edrooms
athrooms
otal Rooms ase
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ath T ein de(Q)Index .00
YP -Base Rate .00
itchen Style g.Value Newr BuiltYear Builtl Physcl Depcn)Obslncn Obslnc
pecl.Cond.Code
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Vac Lana JIM Cond.
eprec.Bldg Value
ode scnptton nt unit ce A Rt o pr. a ue
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QUITCLAIM UELD
-..L. :' I J•: MA'11:.:':::. 1:ulr C COP-] nWyal' na, .,. ..
under the laws of Rhode Island, and 'having a usual place of -iusiness
in Providence, Rhode Island, for consieeraticn paid of
Grants to:
CHARLES L. NAHER of 18 White Pine Lane,
Centerville, Barnstable County, ':assac:.usetts
with QUITCLAIM COVENANTS, a parcel of land situated in %arnstaLde
(Centerville) , Barnstable County, Massachusetts, described as follows-.
Northwesterly by Scudder Bay Circle, eighty-seven and 95/100
(87.95) feet;
yortherly by the junction of said Circle and Hill Creek .Foad,
thirty and 11/100 (30.I1) feet;Easterly -by:said- Foad-,-ona-hundred fEy=nine ant_43710-0
(159.45) feet;
Southerly by a portion of Lot 21, one _hundred fourteen and
88/100 (114.88) feet; and
westerly by Lot 19, one hundred forty (140) feet.
All of said boundaries are determined by the Court to be located.as shown
on Plan 27801-l' (Sneet 1) dated April 4, 1957, drawn by. Earle r: Dunham,-' .
Sr., Surveyor, as modified and approved by the Court, and filed in the
Land registration Office at Boston, a copy of a portion of which is._.i_Cd.
in Barnstable County Registry of Deeds in Land Registration Book 19.9
Page 19 with Certificate of Title No. 25959, said land is shown thereon
as LOT 20.
Said land is subject to an easement as set forth in a grant made by
'Fields Point T•tanufacturing Corporation'to-the�`lope &-Vineyard ffectric�
Company and the Vew England Telephone and Telegraph Company dated
April 25, 1957 duly recorded in Book 972 Page 30.
Said land is subject to and has the benefit of easements and restrictions
granted and reserved in a deed given by said Fields Point Manufacturing
Corporation to Harold L. Wilcox et ux dated September 2, 1958 duly
recorded in Book 1014 Page 104, as affected by two instruments executed
by said Fields Point Manufacturing Corporation; one dated February 16,
1960 duly recorded in Book 1073 Page 2i5 and the other dated Aug,!st 31,
.1960 duly recorded in Hook 1088 Page 394.
For title, see Certificate of Title No. 66 vv y .
For corporate -authority, see VOTE recistered"--as Document Iur*er 186191,
Barnstable Registry District.
IN WITNESS WHEREOF the said FIELDS POINT MANUFACTURING CORPORATION has
caused its corporate seal to be hereto affixed and these presents to be
signed, acknowledged and delivered in its name and behalf by
!T0rM P(d A. 0ht',Jd&a, its�7lsst.-Tjeasurar;ancd Christopher Suzcre`ri, its
Vice President, hereto duly authorized, this 16th day of January, 19?6.
FIELDS POINT p1AVtiFACTUfiING CORPORATION
By
i Vice P esident .. ....
W.:
PLAN OF LAND IN BARNSTABLE
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MEMORANDUM ETOINWGW
21 1 ,9To: Zoning Board of Appeals
F BARhSTABLEFrom: John W. Kenney, Esquire 0ARDOFAPPE4
Subject : Appeal No. 1999-126, Charles -L. Maher
Date : October 27, 1999
Applicant : Charles L. Maher
Property Address : 87 Scudder Bay Circle
Centerville, MA
Assessor' s Map: Map 187 Parcel 7, being shown as Lot 20
on Land Court Plan 27801-A Sheet 2
Lot Size : . 41 acres (18, 000 square feet)
Zoning: RD-1 Residential D-1 Zoning District.
Groundwater Overlay,
District : AP - Aquifer Protection District
Relief Requested: Variance from Section 3-1 . 1 (5) -
Bulk Regulations
BACKGROUND
The subject premises is shown as Lot 7 on Assessor' s Map 187 and as
Lot 20 on a plan recorded in the Land Court Division of the
Barnstable County Registry of Deeds as Land Court Plan 27801-A
(Sheet 2) . The subdivision plan is dated April 4 , 1957 . A copy of
the Assessor' s Map and the subdivision plan are attached hereto for
your review. The Petitioner acquired title to this property from
Fields Point Manufacturing Corp. by a deed dated January 16, 1976 .
This deed is recorded in the Land Court Division of the Barnstable
County Registry of Deeds as Document No. 216, 373 . The Petitioner
has held title to this lot in his own name since the date of the
deed into him. A copy of the deed is attached hereto for your
review.
Prior to acquiring title to Lot 20, the Petitioner and his wife,
Evelyn Maher, had acquired title to the three (3) abutting lots
shown as Lots 18, 19, and 21 on Land Court Plan 27801-A. The first
lot acquired by the Petitioner and his wife in this area was Lot
18 . The Petitioner and his wife acquired title to Lot 18 from
Fields Point Manufacturing Corp. by a deed dated November 27, 1964 .
Lot 18 contains 22 , 500 square feet . By a deed dated March 29, 1965
and recorded on April 15, 1965 Charles and Evelyn Maher acquired
title to Lot 19 . . Lot 19 contains 18 , 700 square feet . Mr. and Mrs .
Maher conveyed title to Lot 19 to Evelyn M. Maher by a deed dated
and recorded July 11, 1972 . Since that time Mrs . Maher has owned
title to Lot 19 in her own name. This lot is also subject to a.
request for a Variance from the bulk regulations . The Mahers
acquired title to Lot 21 from Fields Point Manufacturing Corp. by
a deed dated and recorded on June 21, 1965 . Lot 21 contains 22, 700
Zoning Board of Appeals
October 27, 1999
Page 2
square feet and is held in the names of Charles and Evelyn Maher.
The Mahers private residence is constructed on Lots 18 and 21 .
Lots 18 and 21 are merged as one (1) lot .
The Mahers acquired Lots 18 and 21 for the construction of their
own home . They acquired Lot 19 and put it in Evelyn Maher' s name
and Lot 20 in Charles Maher' s name for two reasons . The first
reason is that the Mahers recognized this neighborhood as a
desirable neighborhood and they saw an opportunity to make an
investment which would help secure their future retirement . When
they acquired title to Lots 19 and 20 it was with the intent of
holding these lots and selling them at some time in the future and
use the money for retirement purposes . The second reason for
acquiring these lots was to protect the privacy in their own home
until such time as they decided to sell these lots for retirement
reasons . Now that Mr. Maher has decided to sell Lot 20 he has
discovered that it is considered to be merged with Lot 19 and is
not separately buildable .
ZONING BACKGROUND
In 1956 the zoning district in which Lot 20 is located was changed
to RB-1 Zoning District . This district required 10, 000 square feet
of land with a width of 100 feet for each lot . The subdivision
plan which created Lot 20 is dated April 4 , 1957 . At the time of
creation of Lot 20 it met all requirements of the RB-1 Zoning
District .
Shortly after the subdivision plan creating Lot 20 was approved the
zoning district in which this lot lies was changed. In 1958 the
district was changed to RD-1 and required 20, 000 square feet of
land with a width of 125 feet . Lot 20 contains only 18, 000 square
feet . Abutting Lot 19 contains only 18, 700 square feet . Fields
Point Manufacturing Corp. held title to Lot 20 and Lot 19 at the
time of their creation in 1957 until Lot 19 was deeded to Charles
and Evelyn Maher in 1965 as stated hereinabove Fields Point
Manufacturing Corp. continued to own Lot 20 until 1976 when it was
deeded to Charles Maher. Since the seven (7) year plan protection
period under M.G.L. c . 40A Section 6 expired in 1964, Lots 19 and
20 merged prior to the Mahers acquiring title to either lot .
In 1985 the zoning in this district was changed again. The zoning
requirements in a RD-1 District was changed to require one (1) acre
of land with 20 feet of frontage and 125 feet of width. Finally,
the zoning was changed in this area again in 1996 . The RD-1
Zoning Board of Appeals
October 27, 1999
Page 3
District was changed to require one (1) acre of land, 20 feet of
frontage, 125 feet of width, and setbacks of 30 feet in the front
yard and 10 feet in the side and rear yards .
FINDINGS
Despite the merger of Lot 20 with abutting Lot 19 at the expiration
of the- plan protection period for these lots in 1964, the Town of
Barnstable continued to, and does to this day, assess the premises
as a separate buildable lot (see copy of Assessor' s records
attached hereto) . When Mr. Maher acquired title to the property in
1976 he paid fair market value for the lot at that time . He paid
fair market value for the lot under the assumption that it was a
buildable lot at the time he acquired it . There are numerous lots
in the vicinity of locus which are of similar size (see copy of
Assessor' s Map attached hereto) . The nearest abutter and party who
would be most affected if the zoning relief requested is granted is
the Applicant .
The topographical condition unique to this lot is that it is a
corner lot impacted by two roads with each road having an usual
layout requiring a width of 50 feet . To require the Applicant to
conform to a different lot size than many of the lots in the
neighborhood in this development would impose a hardship upon the
Applicant . Because many of the lots in the area are of similar
size, the granting of the relief to allow the construction of a
dwelling on the vacant parcel would not be in derogation of the
spirit and intent of the zoning ordinances and would not cause
substantial detriment to the neighborhood.
RespeAtfully sub itted,
John W. Kenney
Attorney for Peti ioner
JWK/wlj
Enclosures
cc : Charles L. Maher
TOWN OF 8AI
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QLITCLAIM DEED
under tae laws of Rhode Island, and 'having a usual place of�iusiness
in Providence, Rhode Island, for consideraticn naic of 51 ,:';; •
Grants to: ---' --
CHARLES L. NAHER of 18 Whitc Pine Lane,
Centerville, P.arnstable County, ':assac::usetts
with ?UITCLAIM COVENANTS, a parcel of land situated in %arnstai•le
(Centerville) , Barnstable County, Massachusetts, described as follows:
Uort'uwesterly by Scudder Say Circle, eighty-seven and 95/100
(87.95) feet;
Northerly by the junction of said Circle and tiill Creek Foad,
thirty and 11/100 (30.11) feet;
--
Easterly by said Road, one hundred fifty-nine--and 43%100—
(159.49) feet;
Southerly by a portion of Lot 21, one hundred fourteen and
88/106 (114.88) feet; and
westerly by Lot 19, one hundred forty (140) feet.
All of said boundaries are determined by the Court to be located as sncwn
on Plan 27801-T (Sneet 1) dated April 4, 1957, drawn by Earle r. Dunham,
Sr. , Surveyor, as modified and approved by the Court, and filed in the
Land Registration Office at Boston, a copy of a portion of which is f�Icd
in Barnstable County Registry of Deeds in Land Registration Book 199.
Page 19 with Certificate of Title :Jo, 25959, said land is shown thereon
as LOT 20.
Said land is subject to an easement as set forth in a grant made by
'Fields Point Manufacturing TorporaEion-to-.he 'C77ape "s Vineyard Llectric�
Company and the Vew England Telephone and Telegraph Company dated
April 25, 1957 duly recorded in Book 972 Page 30.
Said land is subject to and has the benefit of easements and restrictions
granted and reserved in a deed given by said Fields Point Manufacturing
Corporation to Harold L. Wilcox et ux dated September 2, 1958 duly
recorded in Book 1014 Page 104, as affected by two instruments executed
by said Fields Point Manufacturing Cornoration; one gated February 16 ,
1960 duly recorded in Book 1073 Page 215 and the other dated Aug,'.st 31,
.1960 duly recorded in Book 1088 Page .394.
For title, see Certificate of Title .4o. 66 yo-7
For corporate .authority, see VOTE registered' as Document Nurwer 186191,
Barnstable registry District.
IN WITNESS 1411EREOF the said FIELDS POINT MANUFACTURINC CORPORATION has
caused its corporate seal to be hereto affixed and these presents to be
signed, acknowledged and delivered in its name and behalf by
Vo£41E1id 1!. IIlrc?iarne, its'7ls'st.-Tieasurer,anu Christopher Sure; its
Vice President, hereto duly authorized, this 16th day of January, 1976.
FIELDS POINT :1ANUFACTURIVG CORPORATZC1i
7
,• ; Vice P esidcnt ;cC
REAL ESTATE FOR FISCAL 1990 TAX YEAR 07/01/1998 TO 06/30/1999 _ REAL ESTATE FOR FISCAL 1999 TAX YEAR 07/01/1998 TO 06/30/1999
PROPERTY/OWNER CLASS CUSTOMER •-------- VALUES ---------• CHARGE TAX PROPERTY/OWNER CLASS CUSTOMER -------- VALUES --------___________________________________________________________________________________________________________. _`___-___________________---- 94578_____,_______�D___-_______-_________
309-185 1010 99066 LAND 22,000 HYFDRE 279.03 228-113-004 72,6
MAKER, ALICE C BUILDING 56,600 RE TAX 967.57 MAHER, JOHN W & LENICE G BUILDING 145,3�
. %MURPHY & MURPHY TOTAL-VALUE 78,600 TOT ACTUAL 1,246.60 31 CEDAR POINT CIRCLE TOTAL VALUE 217,9i
i P O BOX H DEFERMENT 0 PRELIM TAX 589.90 CENTERVILLE, MA 02632 DEFERMENT
' HYANNZS, MA 02601 EXEMPTION 0 NET ACTUAL 656.70 EXEMPTION
NET VALUE 78,600 NET VALUE - 217,91
i LOC: 96 WINTER STREET LOC: 31 CEDAR POINT CIRCLE
BILL NO BOOR/PAGE DEED DATE ACRES BILL NO BOOK/PAGE DEED DATE ACRES '
----17151 97P12/ 10/02/1997 25.00 17162 C9682/ 06/15/1984 1.20
____________________________ _______________________________________________________-________________.
022-129 1010 52661 LAND 67,700 CTFDRE 619.16 064-026 1010 88686 LAND 32,91
MAKER, CHARLES A & SHARON BUILDING 159,100 RE TAX 2,791.91 MAHER, KEVIN D & MICHELLE M BUILDING 71,81
lMAAER, SHAIION TOTAL VALUE 226,800 TOT ACTUAL 3,411.07 26 TRAILSIDE WAY TOTAL VALUE 104,71
31 SCREECHAM WAY - DEFERMENT 0 PRELIM TAX 1,602.35 - WESTWOOD, MA 02090 DEFERMENT
EXEMPTION 0 NET ACTUAL 1,808.72 EXEMPTION
COTUIT, MA 02635-3128 NET VALUE 226,800 NET VALUE 104,71
LOC: 31 SCREECHAM WAY - LOC: 24 MATTHEW WAY "
BILL NO BOOR/PAGE DEED DATE ACRES - BILL NO BOOR/PAGE. DEED DATE ACRES
17152 4088/310 04/15/1984 1.27 - 17163 C1150/ 08/15/1980 87.00
---------_________________________________________________.-____________-_______._____ - _-_..-__________________________________________________ -----------------
187-007 1300 9353 LAND 35,500 COMFDRE 60.00 188-159 1010 74973 LAND 34,O1
MAKER, CHARLES L BUILDING 0 RE TAX 437.01 MAKER, LEO A & MARIE V TRS - BUILDING 86,1(
18 WHITE PINE LN TOTAL VALUE 35,500 TOT ACTUAL 497.01 %MAHER, MARIE V TOTAL VALUE 120,11
DEFERMENT 0 PRELIM TAX 237.32 53 VALLEY BROOK RD - DEFERMENT
CENTERVILLE, MA 02632-3351 EXEMPTION 0 NET ACTUAL 259.69 EXEMPTION
NET VALUE 35,500 CENTERVILLE, MA 02632-3180 NET VALUE 120,1(
LOC: 87 SCUDDER BAY CIRCLE LOC: 53 VALLEY BROOK ROAD
BILL NO BOOR/PAGE DEED DATE ACRES BILL NO BOOR/PAGE DEED DATE ACRES
17153 C6960/ 41.00 17164 C1165/ 01/15/1989 35.00
------------------_-----------------------------------------------------------------------------------------
_______________________________________-_________________________________
187-037 - . 1300 92959 LAND _ 43,500 COMFDRE 73.52 1 250.003 1010 95588 LAND 30,OC
MAKER, CHARLES L BUILDING 0 RE TAX 535.49 MAHER, MICHELLE BUILDING 82,4C
18 WHITE PINE LANE TOTAL VALUE 43,500 TOT ACTUAL 609.01 2 BLACKBERRY LANE TOTAL VALUE 112,4(
CENTERVILLE, MA 02632 DEFERMENT 0 PRELIM TAX 290.80 HYANNIS, MA 02601 DEFERMENT
EXEMPTION 0 NET ACTUAL 318.21 EXEMPTION
LOB: 40 WHITE PINE LANE
NET VALUE 43,500 NET VALUE 112,4C
LOC: 2 BLACKBERRY LANE
BILL NO BOOR/PAGE DEED DATE ACRES BILL NO BOOK/PAGE DEED DATE ACRES
17154 C4228/ 50.00 17165 8635/197 06/15/1993 50.00
____________________________________________________________________________________________________________ _____________________________________________________________-___________
187-006 1300 92945 LAND 31,500 COMFDRE 53.24 1 047-153 1010 88250 LAND 29,10
MAKER, CHARLES L & EVELYN M BUILDING 0 RE TAX 387.77 MAKER, ROBERT & JEAN BUILDING 80,60
18 WHITE PINE LANE TOTAL VALUE 31,500 TOT ACTUAL 441.01 %MAHER, ROBERT N ET AL TOTAL VALUE 109,70
CENTERVILLE, MA 02632 DEFERMENT 0 PRELIM TAX 210.58 221 CAMELBACK RD DEFERMENT
EXEMPTION 0 NET ACTUAL 230.43 MARSTONS MILLS, MA 02648 EXEMPTION
NET VALUE 31,500 NET VALUE 109,70
LOB: 25 HILL CREEK ROAD LOC: 221 CAMELBACK ROAD
BILL NO BOOR/PAGE DEED DATE ACRES BILL NO BOOK/PAGE DEED DATE ACRES
17155 C3531/ 57.00 17166 C1292/ 02/15/1993 65.00
864
---------------------------------------------------------------------------------------------------- ------
187-036 1010 92945 LAND 41,200 COMFDRE 440.75 -----_--------------------------------------------------------------------
MAHER, CHARLES L & EVELYN M BUILDING 219,600 RE TAX 3,210.45 101-009 1010 89353 LAND 94,900
18 WHITE PINE LANE TOTAL VALUE 260,800 TOT ACTUAL 3,651.20 MAHER, SHIRLEY A BUILDING 108,300
CENTERVILLE, MA 02632 DEFERMENT 0 PRELIM TAX 1,743.46 %MAHER, SHIRLEY A TR TOTAL VALUE 203,200
EXEMPTION 0 NET ACTUAL 1,907.74 466 FEDERAL FURNACE RD DEFERMENT 0
NET VALUE 260,800 PLYMOUTH, MA 02360 EXEMPTION 0
LOC: 18 WHITE PINE LANE - NET VALUE 203,200
BILL NO BOOR/PAGE DEED DATE ACRES LOC: 630 ROUTE 149 -
17156 C3404/ 42.00 BILL NO BOOK/PAGE DEED DATE ACRES
__________________________________________________________________________________________________________. 17161 5159/174 06/15/1986 4.48
165-103 1300 92111 LAND 58,800 COMFDRE 99.37 ----------------------------------------------------- --------------------
MAHER, EDWARD C & DOW, CLIFFOR BUILDING 0 RE TAX 723.83 170-236 1010 8609 LAND 30,600
lGWOZDZ, RONALD E & CAROL E TOTAL VALUE 58,800 TOT ACTUAL 823.20 MAHER, STEVEN J & COLETTE J BUILDING 62,300
334 BOSTON POST RD DEFERMENT 0 PRELIM TAX 393.09 249 AMES WAY - TOTAL VALUE 92,900
WESTON, MA 02493 EXEMPTION 0 NET ACTUAL 430.11 DEFERMENT 0
NET VALUE 58,800 CENTERVILLE, MA 02632-2821 EXEMPTION 0
LOC: III STURBRIDGE DRIVE NET VALUE 92,900
BILL NO BOOK/PAGE DEED DATE ACRES LOC: 249 AMES NAY
17157 C3442/ 24.00 BILL NO BOOR/PAGE DEED DATE ACRES
ti __________________________________________________________________________________________________________- 17167 9306/076 08/15/1994 36.00
• 187-005 2300 92944 LAND 29,500 COM FDRE 49.86 --------------------------------------------------------------------------
MAHER, EVELYN M BUILDING O RE TAX 363.15 206-053 1040 93795 LAND 147:100
18 WHITE PINE LANE TOTAL VALUE 29,500 TOT ACTUAL 413.01 MAHER, THOMAS F & MAHER, ROBER BUILDING 92900
CENTERVILLE, MA 02632 DEFERMENT 0 PRELIM TAX 197.21 P 0 BOX 1270 TOTAL VALUE 240,000
EXEMPTION 0 NET ACTUAL 215.80 CENTERVILLE, MA 02632 DEFERMENT 0
NET VALUE 29,500 EXEMPTION 0