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Town of Barnstable
Regulatory Services
Thomas F. Geiler,Director
HAM
2639. Building Division
A
Tom Perry,Building Commissioner
200 Main Street, Hyannis, MA 02601
Office: 508-862-4038 Fax: 508-790-6230
July 10,2006
Paul Tardif,Esq.
490 Main St.
Yarmouthport,MA 02675
Re:36 Deacon Court,Barnstable MA
Dear Atty.Tardif:
Your request for determination of buildability for the above lot was received by this office. Unfortunately,
we do not issue those determinations. We do,however,require a determination letter along with the
supporting documentation from an attorney at the submittal of a building permit application.
Please contact this office if there is anything further that we can help you with.
Sincere
Thomas Perry
Building Commissioner
TP/DB
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LAW OFFICES OF
PAUL R. TARDIF5 ESQ.
490 MAIN STREET , 'S� l'ii (� �*'9
YARMOUTH PORT,MA 02675
(508)362-7799
(508)362-7199 fax __. ... _
Ptardif ,tardiflaw.com
Refer to File No.
June 20, 2006
Thomas Perry
Building Commissioner
Town of Barnstable
200 Main Street
Hyannis, MA 02601
Re: 36 Deacon Court, Barnstable, MA
Map 300, Parcel 54
Current Owners: Mark R. Fazio, John M. Fazio, and Cheryl Fazio
Dear Mr. Perry:
Please be advised that this office represents Mark R. Fazio, John M. Fazio, and Cheryl
Fazio, the owners of the property at 36 Deacon Court, Barnstable, Massachusetts. (the
"Property"). The Property is denoted as Lot 52 on Land Court Plan 17994K, a copy of which is
attached for your review. I have also attached a subdivision plan of land entitled "Cobb's Cove,
Barnstable Village, Rte 6A, Cape Cod, Mass., Henry J. Studley Associates", prepared between
June 1, 1972 and July 31, 1973. The Property is denoted as Lot 19 on the Cobb's Cove plan and
contains approximately 75,000 square feet of area and is currently unimproved. I have enclosed
copy of my client's deed to the Property for your records.
The adjacent property, known as 14 Deacon Court, is located to the southwest of the
Property and is shown as Lot 50 on the Land Court Plan and Lot 17 on the Cobb's Cove Plan.
This parcel contains approximately 50,300 square feet of area and is currently improved with a
single family dwelling. This lot is currently owned by Marie C. Fazio pursuant to a deed
recorded in the Land Court Division of the Barnstable County Registry of Deeds as Document
849425, a copy of which is attached.
My clients are seeking to secure an easement over the parcel owned by Mrs. Fazio in
order"to access their lot and to construct a single-family structure thereon. After reviewing the
title history of the Property, and having reviewed the various zoning changes to the Barnstable
Zoning Bylaw over the years, it is my opinion that the Property has the benefit of a "zoning
freeze" and is a buildable lot, which entitles my client to a building permit by right. I am writing
to determine whether, based on the information presented herein, you concur.
i
36 Deacon Court:
Title to the Property is derived pursuant to a deed recorded in the Land Court Division of the
Barnstable County Registry of Deeds as Document 331131, dated March 13, 1984. Title to the
property is derived from a deed from Neworld Bank for Savings to Mark R. Fazio, John M.
Fazio, and Cheryl Fazio, dated March 13, 1984, recorded in the Land Court Division of the
Barnstable County Registry of Deeds as Document 331131.
The total area of the Sea Street property is approximately 75,025 square feet. As a
whole,the Sea Street Property contains 160 feet of frontage on Deacon Court.
The Property is located in the RF-1 zoning district, which mandates the following current
minimum bulk requirements for a single family use:
Minimum Lot Area: 43,560 sf
Minimum Frontage: 20 ft
Front Yard Setback: 30 ft
Side Setback: 15 ft
Rear Setback: 15 ft
The Barnstable,Zoning Bylaw addresses the buildability of a single lot. Specifically, Section
240-91, entitled, "Nonconforming lot" states as follows:
A. Separate Lot Exemption. Any increase in area, frontage width, yard or
depth requirement of this chapter shall not apply to a lot for single or two
family residential use which at the time of recording or.endorsement:
(1) Was not held in common ownership with any adjoining land; and
(2) had a-minimum of 5,000 square feet of area and 50 feet of frontage or
the minimum frontage requirement for the zoning district in which it is
located; and
(3) conformed to the existing zoning if any when legally created; and
(4) was separately owned at the time of every zoning change which made
it nonconforming.
In this case, the Property exceeds the minimum lot area for current lots in the RF-1 Zoning
District. In addition, the Property meets all other requirements recited above. This is significant
for the reason that the Property also lies in the Aquifer Protection Overlay District, which as of
November 16, 2000, requires a minimum lot area of 87,120 square feet. Section 240-91
addresses this situation as follows:
G. Any increase in area, frontage width, yard or depth requirement of the
Resource Protection Overlay District shall not apply to a lot for single or
two family residential use which immediately prior to November 16, 2000,
either:
(a) Conformed to the applicable bulk requirements of this chapter
immediately prior to November 16, 2000: or
2
(b) Immediately prior to (on the effective date of this chapter) was
protected from the applicable bulk requirements of this subsection
by the provisions of§240-91A, B, C, D or E of this chapter.
As such, and because the Property conformed to the applicable bulk requirements prior to
November 16, 2000, the lot must be considered buildable.
The only remaining issue is whether or not the lot, which contains wetlands, conforms to
the upland calculation provision of the building requirement. As you know, the upland area
requirements for a lot were introduced within the Town of Barnstable Zoning Ordinance in 1973.
On June 15, 1973, Article 156 was approved by the Attorney General's Office. That article
required 70% of the minimum lot area to be upland. On February 4, 1984, Article 8-13 was
approved that further increased the upland area of a lot to 100%upland.
The subdivision plan of lard.was commenced by Henry J. Studley Associates
approximately 1 year prior to the institution of the 70% rule. I have contacted Arthur Traczyk
of the Planning Division of the Town of Barnstable who has confirmed that a preliminary plan
was filed prior to the zoning change referenced above. The filing of this plan acted to freeze the
zoning, pursuant to M.G.L. c. 40A, § 6. See also Kindercare Learning Center v. Town of
Westford, 62 Mass. App. Ct. 924 (2004);Massachusetts Broken Stone Company v. Town of
Weston, 723 N.E.2d 7 (2000).
Finally, I will discuss the actual location of the easement over the abutting property and
will submit this to you prior to proceeding with the Conservation Commission. I have conveyed
your preference to have the-easement located near the existing driveway, so as to maintain the
existing address on Deacon's Court.
If you need anything further, do not hesitate to contact me, or speak with Arthur Traczyk
re arding the PI in ivision's file. I thank you for your assistance.
V ry Tr o rs,
ardi
cc: Mark R. Fazio
John M. Fazio
Cheryl Fazio
Ed Stone
3
I1
1
1
NEWORLD BANK FOR SAVINGS, a banking corporation au,y
established under the laws of the Commonwealth of
Massachusetts, having its usual place of business at 55 Summer
Street, Boston, Massachusetts 02110, (see Certificate of
Consolidation, Bass River Savings Bank and Neworld Bank for
Savings, Barnstable County Document No. 303 ,991) , in
consideration of THIRTEEN THOUSAND and 00/100 ($13,000.00)
DOLLARS paid, grants to MARK R. FAZIO, JOHN M. FAZIO and CHERYL
ANN FAZIO, as joint tenants with the right of survivorship, all
of 26 Judith Ann Road, Dennis, Massachusetts 02638, with
QUITCLAIM COVENANTS, the land situated in Barnstable,
Barnstable County, Massachusetts, bounded and described as
follows:
NORTHWESTERLY by Deacon Court, as shown on hereinafter
mentioned plan, One Hundred Sixty and
00/100 (160.00) feet;
NORTHEASTERLY by Lot 53, as shown on said plan,
Eighty-Three and 99/100 (83.99) .feet;
NORTHERLY by Lot 53, as shown on said plan, One
Hundred Seventy-Eight and 00/100 (178.00)
feet;
EASTERLY by land now or formerly of Clifford B.
Belknap, as shown on said plan, Two Hundred
Sixty-Seven and 14/100 (267. 14) feet;
SOUTHERLY by Lot 51, as shown on said plan, Two
Hundred Twenty and 00/100 (220.00) feet;
WESTERLY by Lot 50, as shown on said plan., One
Hundred Thirty and 00/100 (130.001 feet;
and
SOUTHWESTERLY by Lot 50, as shown on said plan, Two
Hundred Five and 02/100 (205.02) feet.
Being LOT 52 as shown on subdivision plan 17994-K (Sheet 1)
dated July 33, 1973, dram by Briggs Engineering and Testing
Co. , Inc. , George F. Reekie, Surveyor, and filed in the Land
Registration Office at Boston, a copy of which is filed in
`1AYES&HAYES Barnstable County Registry of Deeds in Land Registration Book
AT'CANEYS ArLAW PC- 449 Page 95 with Certificate of Title No. 56065.
2;EAST MAW STREET
NVA•NNA MA 02WI
qei n?TS-QOEO
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Reserving to the grantor the right to grant easements _`cr
uti
lities over and under Powder Hill Road and Deacon Cour* , as
li
shown on said plan, and over the extension of Powder Hill Road
to Route 6A. Reserving also to the grantor the right to grant
easements over said .streets and ways as appurtenant to said lot
for ingress and egress from and to the State Highway, being
Route 6A.
Said land is subject to an easement in favor of the Town
of Barnstable set forth in a deed by Gaspar G. Bacon, et al,
surviving Trustees, to said Town of Barnstable dated December
7, 1939 duly recorded in Book 564 Page 16.
Said land is subject to the rights granted in an easement
given to the New England Telephone and Telegraph Company et al,
dated August 15, 1973 being Document No. 178, 108 .
This conveyance is subject to the following restrictions
which are, by the acceptance of this deed, adopted as personal
covenants of the grantee with the grantor, or its successors or
assigns:
1 . SUBDIVISION:
No iot shall be further subdivided so as to create two or
more building sites.
2. RESIDENTIAL USE:
No residential structure other than one single-family
dwelling shall be erected or placed on any lot. Attached or
detached garages for not more than three cars, together with
accessory non-residential structures such as boathouses,
greenhouses, .tool sheds, pools and fences shall be permitted.
3. LOCATION OF STRUCTURES ON LOT:
No building shall be erected or placed within 40 feet of
the front (street) property line, nor within 25 feet of any side
or rear property line.
4. USE OF PREMISES:
The premises shall not be used for business or industrial
purposes, except that the use of a room or rooms as a profes-
sional office or studio by a person residing thereon shall be
permitted. No storage of materials or public display of goods
for sale shall be made, nor shall any advertising display be
HAVES&HAVES permitted. In no event shall the premises be used for any
AT T QRNE YS AT LAW.DC purpose which might be or become detrimental to the neighborhood
21 EA57 MAIN STREET as a desirable residential area.
N:AM%"5 MA 02W
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5. BUILDING APPROVAL:
No building or other structures shall be commenced,
erected, placed, maintained or moved nor shall any additions to
or exterior change or exterior alteration be made unti the
architectural and site plans have been approved in writing by
the grantor or its designated agent.ent. I
ro g t is the intent of this
provision to require that
q structures be in good taste, in
harmony with the quality of nearby structures, and that they
fit the site. All dwellings constructed must have atleast a
one-car garage, attached or detached. Certificate of
Comp xance is to be furnished by lot owner.
6. INCOMPLETE DWELLINGS:
The exterior of any building erected on any lot and the
landscaping and grading in connection therewith shall be
finished and completed with{? six (6) months after commncement.
No dwelling shall be occupied as a residence until it is
completed, and no temporary building shall be so occupied on
any lot.
7. LOC_ ATION OF UTILITIES:
All house service cables for electricity,. cable television,
telephones and any other utility hookup wires, cables and pipes
shall be installed underground.
8. ROADS:
Appurtenant to each lot shall be the right to use all
roads, lanes and avenues located on the aforementioned plans of
land.
9. TREES
F
No live trees of more than four inches in diameter at a
four-foot height shall be removed without approval of the
grantor except as necessary for building construction.
10. BOATS AUTOMOBILESt AND COMMERCIAL VEHICLES:
No boats over 18 feet in length and no unregistered
automobiles shall be placed 'or stored .on or about any lot unless
garaged and unexposed to public view, nor shall any boat or
automobile parts be publicly displayed. No commercial vehicles
of any kind shall be parked in the open overnight.
HAYES 6 HAVES
ATTORNEYS AT LAW.PC
23 EAST MAH4 STRFET
HVANNIS AAA 02W,
C /l l75._'pe0 .i
- 3
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ll . ANIMALS: '
No animals or fowl, except the common household pets
i
quartered within the dwelling house at night, shall be kept
the granted premises without the written permission of the
unreasonable amount of noise, or to become a nuisanc
grantor. No domestic animal or bird shall be allowed to make
e.
12. TRASH AND LAUNDRY:
All garbage, trash and rubbish placed outdoors shall be
kept in covered containers screened from public view. No
garbage, trash or rubbish shall be burned on any lot, outside of
the confines of any building.
All exterior laundry drying facilities shall be screened I
from public view by suitable enclosures, screens or a planting.
13. NUISANCES:
No rubbish or debris of any kind shall be placed or
permitted to accumulate upon or adjacent to any property and no
odors ,shall be permitted to arise therefrom, so as to render any
such property or any portion thereof unsanitar
offensive or detrimental to an other y• unsightly,
d no
structure or device shall be construed,�rbuiltyornmaintainedity,
which is or may be offensive or detrimental to any other
property in the vicinity thereof or to its occupants.
14. MAINTENANCE:
Each lot and each home, together with accessory structures
and grounds, shall be maintained in a neat appearing manner by
the owner.
15. DURATION:
The restrictions of this declaration shall run with and
bind the land, and shall inure to the benefit of the grantor,
its successors and assigns, and shall continue in full force and
effect until December 31, 2001.
16. SEVERABILITY:
Invalidation of any one :of these restrictions by judgment
or court order shall in no way affect any other.provisions which
shall remain in full force and effect.
HAVES&HAVES
ATTOR#W Y&AT LAW PC
t3 EAST MAIN STREET
M Y411N(S MA azoo1
6 +71 i0olO
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17. APPURTENANCES: i
Fences, screening structures or hedges shall not be erected
or planted until written approval has been obtained by the f
grantor, its successors or assigns. Ei
18. SIGNS:
One sign may be erected upon the premises (each lot) nct
larger than one square foot in size, with the name cf the owner
and house only.
19. ENFORCEMENT:
The grantor may appoint or delegate an agent, agents,
corporation or association to carry out any and all of the
foregoing restrictions as to enforcement, approval, privileges,
other matters said
rights
and appointment to be in writing duly
recorded in the Barnstable County Registry of Deeds.
20. WAIVERS:
The grantor, or its duly authorized delegate, as provided
in the preceding paragraph, shall have the right to waive, alter
or amend any of the foregoing restrictions in the event it
becomes necessary or equitable to do so, and the grantor or its
delegate shall be the sole judge as to the properness of such
waiver, alteration or amendment.
21. HUNTING AND USE OF FIREARMS:
There is to be no hunting and no use of firearms within the
limits of Cobb's Cove.
HAYES 6 MAYES
AT TCfV4E Y S AT LAW.PC
23 FA5 i MAN1 STREET
HYANNIS.MA 02WI .
t67) 15-0000 .
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For grantors title see Certificate of Title No. 66750. i
For Corporate Authority see Vote recorded in. Barnstable
Land Registration Office as Document No. 303,991 .
IN WITNESS WHEREOF, the said Neworld Bank for Savings has
caused its corporate seal to be hereto affixed and these
presents to be signed, in its name and behalf by
Thomas C. Graham its Vice President
this 13th day of March 1984.
NEWORLD BANK FOR 5Avl�if��-
Ay:
� Gr a ham, V ZLes:dent_
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss. March 13, 1984
Then personally appeared the above named
Thomas C. Graham, Vice President,
and acknowledged the foregoing instrument to be the free act
and deed of the Neworld Bank for Savings, before me, '
Notary Public
My commission -expires:
Aag—
HAYE-S&HAYES �• "
AT T0ftNE V S,AT LAW.CC
23 EAsT MAIN STREET
NVANNIS.MA 0ZW1
(61h 775-0000
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Ctf#:163334
BARNSTABLE LAND COURT; REGISTRY
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Deed
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7
We, Domenic J. Fazio and Marie C. Fazio Trustees of Fazio Realty Trust
under a Declaration of Trust dated June 24, 1998 and recorded in document
Number 731886
of 14 Deacon Court, Barnstable, MA 02630
in consideration of $1.00
grant to Domenic J. Fazio and Marie C. Fazio, Husband and 1kife, as
Tenants by the Entirety
of 14 Deacon Court, BARNSTABLE, Massachusetts 02630 with quitclaim
covenants
The land with buildings thereon now known and numbered as 1$ Deacon
Court, Barnstable, Barnstable County, Commonwealth of Massachusetts:
Said premises are shown as Lot Number 50 on a plan recorded in the
Barnstable County Registry of Deeds, Land Court Plan 17994-R (Sheet 1) .
Subject to a mortgage to Advantage Mortgage Corp. dated June 4, 11998 and
registered in Document 'Number 729183.
Said premises are conveyed subject to and with the benefit of easements,
restrictions, reservations and rights of way of record so far as:the same
are now in force and applicable.
Meaning and intending to convey and hereby conveying with Quitclain
Covenants the premises conveyed to the Grantors by Deed dated loune 24,
1998 and recorded in Document Number 731886 and see Certificate;of Title
Number 149208.
Executed as a sealed instrument this First day of November. 2001
10
Domenic J. azi Trustee Marie C. Fazio, Trustee
Commonwealth of Massachusetts
Plymouth, so First day of Kovem4r, 2001
Then personally appeared the above-named , and acknowledged the foregoing
to be his/her/their free act and deed before me.
.............4 .. ............................... ..
..... .(goal)
. —Nobly PAk -
My Commission Expires:
I
Helen P.Burgess
NOTARY PUBLIC
My commission expires Oct.21,2005
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65�.�}
Baron,Burgess&TrOo,LLP
One Park Plaoe,Second Floor
Plymouth,Mass. 02300
FAZIO REALTY .-TRUST
The undersigned hereby certifies as follows:
i
1. The undersigned, Domenic J. Fazio and Marie C. Fazio the
Trustees of Fazio Realty Trust u/d/t dated 6/24/98, recorded
at the Barnstable County Registry of Deeds, as Document Number
731886.
i a
2. The Declaration of Trust is in full force and effect according
to its terms and has not been amended or modified as of the
date hereof.
3. The undersigned have full power and authority to execute and
deliver on behalf of the Trust, all documents, agreements, or
undertakings, including without limitation, a Deed to Domenic
J. Fazio and Marie C. Fazio, husband and wife, Tenants by the
Entirety.
4. Any document, agreement or undertaking, including the
refinance documents, executed by said trustees in connection
with such transaction has been authorized by the owners of all
of the beneficial interest of the Trust, shall be binding upon
the Trust, and may be relied upon by third parties. A11 the
beneficiaries are of full legal .age and competent.
5. There is no litigation pending ,or threatened restricting or
enjoining or in an manner questioning or affectingthe
Y qu 9
validity or enforceability of the Deed, or the authority of
the Trust or its Trustees to execute and deliver same. :
6. No beneficiary is a minor, a corporation selling all or
substantially all its Massachusetts assets, or personal
representative of an estate subject to estate tax liens,'
or is not deceased or under any legal disability.
IN WITNESS WHEREOF, the undersigned has executed this Certificate
under seal as of the JgJ day of November, 2001.
Domenic J. F zio, %r-V6tee as aforesaid
Marie C. Fazio, Tr tee as aforesaid
t
COMMONWEALTH OF MAgSACHUgETTS
i
Plymouth, .ss: November 1, 2001
Then personally appeared the above named Domenic J. Fazio, Trustee
as aforesaid and Marie C. Fazio, Trustee as aforesaid and
acknowledged the foregoing instrument to be the free act and deed
of Fazio Realty Trust, before me
4-
Notary Pub 'c:
My commission expires:
Helen P.Burgess
NOTARY PUBLIC
My commission expires Oct.21,2005
BARNSTABLE REGISTRY OF DEEDS
SUBDIVISION PLAN OF LAND IN BARNSTABLL
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BriE-�;s En`;inBeriri And ^e - ting Co . , ?nca SHEE7- / Or 2
Ccorge F. Pce; lcie ; Surveyor
July 31 P 1973
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SUB-DIVI ION OF
LOT 13 ASSESSMENT CAP 317 &3F3
LOT 65 2�9&310
SCALE I"_ 00'
HENRY J. STUDLEY ASSO rl,'VTrS
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CNVIRONMENTAi SCIENCES ENGINEERS
I CERTIFY THAT TrrllS ACTUAL SURVEY WAS SADDLE RIVc R , NEVJ J[RSEY
MADE ON THE GROUND IN ACCORDANCE WITH BARNSTADLE MASSACidUSETTS
THE LAND COURT INSTF,UCTIONS OF 1071 ON
OR DET1VEEN JUNE 1,1972 AMD JULY 2i.12-73
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