HomeMy WebLinkAbout0016 ORCHARD ROAD - BUILDABILITY - MISC STREET FILE LEGAL DEPARTMENT, TOWN OF BARNSTABLE
INTCIR=11FFICE Ddein4pr:mia41viin
DATE: October 11, 1996.
TO: DEBBIE LAVOIE, ZONING BOARD OF APPEALS
FROM: ROBERT D. SMITH, Town Attorney
RUTH J. WEIL, Assistant Town Attorney
RE: (1) Horgan, III, Frank L. v. Barn. Conservation Commission, et al, etc.
Our File Ref: #91-0146
(2) Horgan, David Scott v. Barn. Conservation Cmsn, et al, etc.
Our File Ref: #91-0145
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We are delighted to attach a copy of the Order for Summary Judgment
and Judgment rendered by the Land Court (J. Scheier) on October 9, 1996 in
favor of the Defendant, Barnstable Zoning Board of Appeals, in the above
matter.
Would you please see that each of the Board members receive their
respective copies, with thanks.
RDS/RJW:cg
Atchmt.
i
[91-0145&91-014611memform]
1• -
COMMONWEALTH OF MASSACHUSETTS
LAND COURT
DEPARTMENT OF THE TRIAL COURT
BARNSTABLE, SS.
MISCELLANEOUS CASE
FRANK L. HORGAN, III, ) NO. 163150
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
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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 tht
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
to build a single-family house on lot 30-31. In case no. 163151, Plaintiff David Scott Horgan
appealed the Board's 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. 163150;
on November 15, 1995, David Scott Horgan moved for summary judgment in case no. 163151.
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, III's building permit because it claimed a merger of lots 29 and part of 30
rendered Plaintiff s 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
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affidavit of David Scott Horgan' and the affidavit of Shirley Crocker, Clerk of the Barnstable Board
of Assessors. Frank L. Horgan, III, 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:
1. Plaintiff Frank L. Horgan, III, lives at 59 Isalene Street and Plaintiff David
Scott Horgan lives at 53 Elm Street, both in Hyannis,Massachusetts.
' affidavits of David Scott Horgan filed for both cases are identical. The David Scott an Hor
The
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affidavit was filed on January 16, 1996, in case no. 163150,and on November 15, 1995, in case no.
163151.
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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, Centerville.
4. In September 1927, a plan of land was recorded with the Barnstable Registry"
of Deeds'in Plan Book 21,at Page 133, fora 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) are the
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.
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6. By deed dated October 17, 1945, and recorded in Book 635, at Page 411,
I
Benjamin F. Teel conveyed to.Frank 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.
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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
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-I 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-1 to RD-1. 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,
'The 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.
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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 30I;
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.6 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 61/100 (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."
'Me 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.
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SOUTHWESTERLY by the corner of Orchard Road and Park Avenue, Sixty-three
and 11/100 (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 art of Lot 33, as shown on plan of land entitled
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"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.
Together with a right-of-way over Orchard Road and Park Avenue, as shown on said
Plan, in common with others entitled thereto, to and from the Public street!
17. From 1945 through 1989,the lots were assessed by the Town as one parcel,
first 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. Horgan. 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, III. At the time of their conveyances, none of these lots individually met the
'This description is taken from the deed of Frank 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.
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dimensional requirements of one-acre zoning under the By-law, in effect since February 28, 1985.
19. In April 1990,the Commissioner issued a buildingpermit to Frank L.Horgan,
Pe an g
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." 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,
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.
'Attached 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
14 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
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, (section
6)and section 4-4.5 of the By-law(section 4-4.5),which control so-called grandfather protection for
nonconforming 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 oifor 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. Ipswich, 395 Mass. 757(1985),the court construed the fast sentence of the fourth
paragraph of section 6 and concluded the word"recording"in the statute means the recording of any
instrument,plan or deed;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 instruments show it held in common with adjoining
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land. This analysis has been applied to the second sentence of section 6, paragraph 4, as well. Sr&
Baldiga v. Board of Appeals of Uxbridge, 395 Mass. 829, 833 (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
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.
Falcone v. Zoning Board of Appeals of Brockton. 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 period'. 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 4-4.5 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
F .
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.
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
the grandfather protection within five years from the date of the zoning change which rendered the
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 44.5 (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 least 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. I find lot 29 did merge with adjoining lots, with
10Plaintiff 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 argument attempts to impermissibly"parlay one dispensation into another." Tsag-r�onis_
v. Board of Anneals of Wareham, 33 Mass. App. Ct. 55, 60(1992), reversed on other grounds, 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."
Ferzoco v. Board of Appeals of Falmouth, 29 Mass. App. Ct. 986, 987 (1990), fu her appellate
review denied,409 Mass. 1102 (1991).
11
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 Wellesley, 345 Mass. 348(1963),and Bobrowski v. Board
of Appeals of Beverly. Misc. Case No. 153543 (Land Court Feb. 26, 1992) (Kilborn, J.), art
instructive, particularly in the context of the so-called law of merger. �=AIM Alley v. Building
Inspector of Danvers, 354 Mass. 6 (1968); Bouffard v. City of Peabody Zoning Board of Anneals,
3 LCR 230 (1995).
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." a at 353. The court reasoned,
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.
(Citation omitted).
In Bobrowski, the plaintiff's 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 merger of lots -more
particularly,the policy of minimizing non-conformities -that apply to vacant lots ......
12
The law of merger in a zoning context also is helpful in resolving the instant issue.
"The usual construction of the word `lot' in a zoning context ignores the manner in which the
components of a total given area have been assembled and concentrates instead on the question
whether the sum of the components meets the requirements of the by-law." Becket v. Building
Inspector of Marblehead,6 Mass.App. Ct. 96, 104, further appellate review denied. 375 Mass. 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 the nonconforming lot to the extent necessary
to achieve compliance with the area ... requirements of the zoning ordinance at the.time of the
transfer." DiCicco v. Berwick, 27 Mass. App. Ct. 312, 314 (1989)(citations omitted) (the merger
in DiCicco resulted in a remainder lot consisting of 1000 square feet with 40 feet of frontage)."
Prior to 1958, lot 29 consisted of 12,240 square feet. To satisfy the 20,000 square
foot requirement of the 1958 By-law amendment(when all the lots were owned by Frank L.Horgan,
Sr.), 7,760 square feet of lot 30 merged with lot 29 to form a conforming lot (lot 29-30). The
remaining neighboring lots -- lots 31, 32, 33, and the remainder of lot 30 (approximately 4,900
square feet)were not affected by this merger. However, further merger occurred in February 1985,
when the By-law was amended to increase minimum.lot size from 20,000 to 43,560 square feet. In
February 1985,Frank L. Horgan, Jr., Trustee owned all the lots. He had the opportunity to reduce
the nonconformity; alternatively, he had five years to act to preserve his rights under section 6 and
section 4-4.5, yet he did not. Therefore, the law of merger took effect and lot 29 merged with the
"Although I acknowledge as precedent, I also recognize the unfortunate outcome
g g DiCicco P g
of the creation of a unbuildable lot from the remainder of the abutting parcel used to bring the
improved lot into zoning conformance. '
13
adjoining parcels to the extent necessary to satisfy the new minimum lot area requirements. Thus,
lot 29 merged with lots 30, 31 and 32 -- to the extent necessary to meet one acre zoning--with the
unfortunate result of leaving an unbuildable remainder lot comprised of lots 33 and part of 32(4,885
square feet of lot 32).
I conclude the building on lot 29 exhausted any future right to build on the adjoining
lots, to the extent necessary to bring lot 29 into minimum size compliance under the By-law(see
attached diagram). This conclusion is consistent with the policy of minimizing zoning
nonconformities. Indeed,the conveyances of lots 30 through 33 out of a common owner after the
1985 amendment only exacerbated the nonconformity as to lot 29. To allow a landowner to sidestep.
local zoning in a way that creates a nonconformity would promote inefficient land use. I therefore
uphold both decisions of the Board and grant summary judgment in both cases in favor of
Defendants.
Judgment accordingly.
aryn Faith Scheier
Justice
Dated: October 9, 1996
14
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4
COMMONWEALTH OF MASSACHUSETTS
LAND COURT
DEPARTMENT OF THE TRIAL COURT
BARNSTABLE, SS. MISCELLANEOUS CASE
NO. 163150
FRANK L. HORGAN, III, )
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 )
JUDGMENT
This case came to be heard on Defendant Barnstable Zoning Board of Appeals' 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
30-31 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.
y the Court(Scheier, J.).
Tr
Attest:
Charles W. Trombly, Jr.
Recorder
Dated: October 9, 1996 ATRUECOPY
ATTEST:
iA-
F'�
Town of Barnstable 0�_
Zoning Board of Appeals T'
Enforcement Appeal
Decision and Notice MAN
------------------------------------------------------------
Appeal No . 1991 -11
Petitioner Frank L. Horgan
------------------------------------------------------------
At a regularly scheduled hearing of the Barnstable Zoning
. Board of Appeals , held on April 25 , 1991 , and having been
continued from March 14 , 1991 , notice of which was duly
published in the Barnstable Patriot , and notice of which was
forwarded to all interested parties pursuant to
Massachusetts General Law (MGL) , Chapter 40A, the
petitioner , Frank L. Horgan , represented by Attorney Nancy
Loeb , appealed to the Board a decision of the Building
Commissioner to deny a building permit for construction of a
single-family dwelling , pursuant to the Town of - Barnstable
Zoning Ordinance , Section. 5-3 .,2 ( 1 ) , "Enforcement/Appeal " and
MGL Chapter 40A, Section 8 .
The petitioner ' s site is shown on Assessor ' s. Map/Parcel
Number 207/021 , lot areas number 2 and 3 combined , and more
commonly addressed- as 20 Orchard Road , Centerville , MA and
is zoned RD-1 , Residence D-1 District .
The petitioner , aggrieved with the Building Commissioner 's
determination to revoke an earlier building permit ,
requested that the Zoning Board of Appeals override that
decision and cause to be granted that building permit for
the construction - of a single-family home on a parcel created
by the combination of two lot areas as identified above . .
Summary of Procedure:
At the meeting of March 14 , 1991 , the Zoning Board of
Appeals heard this appeal and Appeal # 1991 -12 concurrently
due to : the nature and relationship of the two appeals
being the subject of the same land area , the April 04 , 1990
issuance of two (2 ) building permits by the Building
Commissioner for the site and the subsequent December 18 ,
1990 , action of the Building Commissioner to withdraws one of
those permits and to uphold only the issuance of the other
building permit .
Appeal #1991 -12 , that of Paul Brown et al , is aggrieved with
the Building Commissioner ' s determination to uphold and
issue one building permit for the construction of a single-
family dwelling on the site in question and in combination
with lot areas identified as Assessor ' s Map/Parcel Number
207/021 , lot areas number 1 and 4 . Paul Brown et al was
represented by Attorney Michael Ford .
Both representatives agreed to the concurrent hearing of the
appeals and agreed with the procedures outlined by the Board
Chairman .
The petitioner ' s request was heard by Board members : Dexter
Bliss , Elizabeth Nilsson , Bruce Burlingame , Gene Burman and
Chairman Luke Lally . Board members selected to decided on
the case were agreeable to both attorneys .
Summary of Evidence:
The following materials were submitted to Zoning Board of
Appeals File # 1991 -11 :
January 17 , 1991 , Town of Barnstable ZBA Application
for Appeal #1991 -11 ;
List of abutters , certified by Robert D. Whitty ,
Director of Assessing , dated , January 25 , 1991 ;
Copy of March 14, 1991 , Notice of Public Hearing ;
January 18 , 1991 (Fax date ) , of "Petition in support of
Frank L. Hogan , III . . . " filed with Zoning Board of
Appeals containing names of individuals supportive of
the construction of two ( 2 ) single-family homes on the
site ;
January 24 , 1991 , letter from Nancy H . Loeb to Mr .
Robert Schernig , Director of Department of Planning and
Development verifying the desire to schedule the
hearing for both Appeal #1991 - 11 and 12 on the same
evening ;
January 29 , 1991 letter to ZBA Office related to the
scheduling of the appeals simultaneously and extension
of time for acting on the appeal ;
Copy of the September 17 , 1990 , letter from Michael D.
Ford to Joseph DaLuz summarizing the reasoning why no
building permits should not be issued on the site ;
March 01 , 1991 , Department of Planning and Development
Background Information submitted to The Zoning Board of
Appeals ;
March 13 , 1991 , letter from Richard Anderson. to Zoning
Board of Appeals expressing his views that commonly
held adjoining , undersized lots have a history of
receiving building permits ;
4 -
March 14, 1991 , Submittal from Nancy H . Loeb to Zoning
Board of Appeals presenting case background , discussion
and conclusion supporting that two ( 2 ) new buildable
lots exist within the site ;
Select letters in support of the construction of two
homes on the site and in support of Appeal #1991 -11
presented to the Board on March 14 , 1991 such letters
from the following ; Mr . & Mrs . Brent Thorn , Mrs .
Jocelyn Sickes , Dianne Horgan , Eleanor N . Horgan ,
Bernard W. Klotz , Robert 0. Anthony , Joseph and Robert
Deburro ;
Two 12 ) Layout Plans and Front Elevations , Titled
"Scott Horgan Residence & Property , Lots 32 & 33" , the
other titled "Frank Horgan III , Residence & Property ,
Lots 30 & 31 " , both drawn by Deane Lawrence , Landscape
Architect , dated March 11 , 1991 ; and
March 26 , 1991 , Memorandum from ZBA Chairman Lally
requesting the input of the Town Attorney ' s Office on
the subject of Appeals #1991711 and 12 .
At the meeting of March 14 , 1991 , Both attorneys Loeb and
Ford presented their case and materials substantiating their
respective positions .
1•
Attorney Loeb presented opinions as to the rights afforded
the Hogans to have two ( 2 ) new buildable lots within the
site in question and further claimed that the use and
location of a multi -family apartment structure did not have
a bearing on this Appeal .
Attorney Ford presented the opinion that those rights
afforded protection of the lots had in fact expired and the
lots have all merged including that area occupied by the
multi -family apartment structure . Under this opinion , no
building permit should be afforded the locus in question .
Attorney Ford went on to explain that protection under MGL
Chapter 40A, Section. 6 , applies only to lots for single and
two-family dwellings , and that this locus being occupied
with a multi -family apartment structure does not afford
itself such protection . Furthermore , no plans have ever
been recorded as to the conveyance of lots since the
original 1927 subdivision or the 1945 construction of the
multi -family dwelling and lard ownership has in essence been
that of a single control , the Horgan family .
Attorney Ford presented his findings in a paper dated March
14, 1991 and titled "Appeal of the Decision of Barnstable
Building Inspector by Paul Brown et al " , a copy of which is
contained in Appeal File 1991 -12 .
The Board read into the records , letters submitted to the
file in consideration for this case and requested public
input . The following persons spoke in favor of this appeal
to have issued two building permits for the lots in
question ; Larry Horgan , Frank Horgan , Mary Law, Diane Horgan
James , Bill O 'Toole , George Hammond , Alan Grandy , Dan James
and Mr . Russell . Paul Brown speaking in favor of his appeal
(#1991 -12 ) was opposed to this Appeal #1991 -11 .
The public hearing was closed on March 14 , 1991 and the
matter of both appeals was taken under consideration by the
Board to allow the members to review the information
presented and to seek the input of the Town Attorney ' s
Office . Both appeals were subsequently taken up by the
Board at its meeting of April 25 , 1991 at which time the
Board formulated its findings and Decision .
Finding of Facts :
At the meeting of April 25 , 1991 , the Zoning Board of.
Appeals made the following finding of facts as related to
Appeal No 1991 -11 :
1 . Or. December 18 , 1989 , the Barnstable Planning Board
denied the endorsement of an Approva'I Not Required
Plan (ANR) for the subject site ;
2 . P�four (4 }_ uni t meal t i -farm Iy dwelling , bui I t in_19_4.5_,
exist s o n t h e s i t e a n d"t-h-e}-d-,rie-l-l-i-n-g a n d—lo t s in
question have been assessed as one lot (map 207 ,
parcel 021 } for several years ;
3 . The total area of the site , being between 1 . 37 and
1 . 39 acres , is not sufficient to create two (2 ) new
one-acre buildable lots in addition to retaining a
lot area for the multi -family structure ;
P
4 . In February , q i ..85 the lot area requirements for or the
zoning district was increased to one ( 1 ) acre , and
there is no plan on record as of 1985 which shows
or
describes the site as containing five ( 5 ) lots in.
existence at that time . In effect , all lots have
been under common ownership ( control ) by Frank L.
Horgan as owner/ trustee since 1945 ; and
5 . The owner of this property is not afforded the five
( 5 ) ye,ars of protection for lot size increase (which
occurred in 1985 ) and which is provided for in MGL
Chapter 40 A, Section 6 due to the fact that multi -
family dwellings ( greater that two (2 ) units ) are
exempt from such protection .
The vote on the - finding of facts was as follows :
Ayes : Dexter Bliss , Elizabeth Nilsson , Bruce Burlingame
and Chairman Luke Lally .
Nays : Gene Burman
Decision :
At the meeting of April 25 , 1991 , a motion was duly made and
seconded to find that the issuance of a single building
permit for this site is in error and that the appeal for a
second permit is not in keeping with the Zoning Ordinance of
the Town of Barnstable and the decision of the Building
Commissioner to not issue a second permit is upheld .
The vote was as follows :
Ayes : Dexter Bliss , Elizabeth Nilsson , Bruce Burlingame
and Chairman Luke Lally .
Nays : Gene Burman.
Appeal No . #1991-11 , requesting the Board to override the
decision of the Building commissioner and force the issuance
of a building,-permit is denied . '�
Any person-aggrieved by this decision may appeal to the Barnstable
Superior Court, as described in Section 17 of Chapter 40A of the
General Laws of the Commonwealth of Massachusetts by brin 'n .
action within twenty days after the decision has been filed-i a nthe
office of the Town Clerk.
(� ,
Chairman
77
I' Clerk.of the' Town of Barnstable,
Barnstable County, Massachusetts, hereby certify .that twenty (20) days
have elapsed since the Board of Appeals rendered its decision in the
above entitled petition and that no appeal of said decision has been
filed in the office of the Town Clerk.
Signed and Sealed this day of 19 under the
pains and penalties of perjury.
Distribution:
Property Owner
Town Clerk Town Clerk
Applicant
Persons Interested
Building Inspector
Public Information
Board of Appeals
COMMONWEALTH OF MASSACHUSETTS
LAND COURT
DEPARTMENT OF THE TRIAL COURT
BARNSTABLE, ss. Case No. 05 Misc. 313538
DANIEL C. WOOD and )
DAVID SCOTT HORGAN, )
Plaintiffs )
VS.
NOTICE OF ACTION'NN Z j `
RON S. JANSSON RANDOLPH
CHILDS, GAIL NIGHTINGALE, ) M
JAMES HATFIELD and JEREMY )
GILMORE as they are members of )
cal s �
the TOWN OF BARNSTABLE
ZONING BOARD OF APPEALS, and )
THE TOWN OF BARNSTABLE, )
Defendants )
Pursuant to M.G.L. c. 40A, s. 17, Plaintiffs,DANIEL C. WOOD and DAVID SCOTT
HORGAN,hereby provide notice that an action has been commenced appealing the decision of
the Town of Barnstable Zoning Board of Appeals' affirming a decision of the Town of
Barnstable Building Inspector by the attached Complaint.
DANIEL C. WOOD and
DAVID SCOTT HORGAN,
Plaintiffs,
By their attorney,
Albert J. Schul sq uire
7 Parker Road
Osterville, MA 02655
Telephone: (508) 428-0950
Dated: September 20,2005 BBO No. 447720
j
COMMONWEALTH OF MASSACHUSETTS
LAND COURT
DEPARTMENT OF THE TRIAL COURT ` ' ` ' ` 0
BARNSTABLE, ss. Miscellaneous Case No. 05 Misc. 313538
DANIEL C. WOOD and
DAVID SCOTT HORGAN, )
Plaintiffs )
COMPLAINT PURSUANT TO
vs. ) M.G.L. CHAPTER 40A, SEC. 17
and
RON S. JANSSON, RANDOLPH ) M.G.L. CHAPTER 2409 SEC.14A
CHILDS, GAIL NIGHTINGALE,
JAMES HATFIELD and JEREMY )
GILMORE as they are members of )
the TOWN OF BARNSTABLE )
ZONING BOARD OF APPEALS, and )
THE TOWN OF BARNSTABLE, )
Defendants )
PARTIES
I. Plaintiff,DANIEL C. WOOD, ("Wood")resides at 38 Evelyn
Circle, Barnstable (Centerville), Barnstable County, Massachusetts 02632.
2. Plaintiff, DAVID SCOTT HORGAN, ("Horgan") resides at 41
Baxter's Neck Road, Barnstable (Marstons Mills), Barnstable County,
Massachusetts 02648.
3. Defendant, RON S. JANSSON, is Acting Chairman of the
Barnstable Zoning Board of Appeals, maintaining offices at Barnstable Town
Hall, 200 Main Street, Barnstable (Hyannis), Barnstable County, Massachusetts
02601.
1
4. Defendant, RANDOLPH CHILDS, is a member of the Barnstable
Zoning Board of Appeals, maintaining offices at Barnstable Town Hall, 200 Main
Street, Hyannis, Barnstable County, Massachusetts 02601.
5. Defendant, GAIL NIGHTINGALE, is a member of the Barnstable
Zoning Board of Appeals, maintaining offices at Barnstable Town Hall, 200 Main
Street, Barnstable (Hyannis), Barnstable County, Massachusetts 0260E
6. Defendant, JAMES HATFIELD, is a member of the Barnstable
Zoning Board of Appeals, maintaining offices at Barnstable Town Hall, 200 Main
Street, Barnstable (Hyannis), Barnstable County, Massachusetts 02601.
7. Defendant, JEREMY GILMORE, is a member of the Barnstable
Zoning Board of Appeals, maintaining offices at Barnstable Town Hall, 200 Main
Street, Barnstable (Hyannis), Barnstable County, Massachusetts 02601.
8. Defendant, TOWN OF BARNSTABLE, is a municipal corporation
with a principal place of business at 367 Main Street, Barnstable (Hyannis),
Barnstable County, Massachusetts.
JURISDICTION
9. This action contains two (2) counts. Count I is a zoning appeal
pursuant to Massachusetts General Laws, Chapter 40A, Section 17. Count II is a
petition pursuant to Massachusetts General Laws, Chapter 240, Section 14A, for
judicial determination of the validity of Section 4.4 of the Town of Barnstable
2
Zoning Ordinance. Court Department of the Trial Court has jurisdiction
Zo d ance. The Land o
g P J
over both Counts.
FACTS
10. At all times material to this'Complaint, Horgan was the owner of a
vacant parcel of land located at 40 Orchard Road, Centerville, Massachusetts,
under a deed from Frank L. Horgan, Jr., dated October 19, 1989, recorded in Book
6928, Page 192 ("Locus").
11. Locus contains 23,100 square feet of contiguous upland and is
shown as Lot 32 and a portion of Lot 33 on a plan of land recorded in Plan Book
21, Page 133. Locus is also shown as Parcel 21-4 on Assessors Map 207.
12. Locus was created in 1927 by the recording of the plan in Plan Book
21, Page 133.
13. Locus is located in an RD-1 residential zoning district.
14. Single family dwellings are the principal permitted use in an RD-1
zoning district.
15. Locus conformed to applicable zoning requirements as of January 1,
1976.
16. Locus has been held in separate ownership from any adjoining lot at
all times from October 19, 1989 until the present time.
3
17. On or about June 5, 2004, Horgan, as Seller, and Wood, as Buyer,
executed a Purchase and Sale Agreement whereby Horgan agreed to sell and
Wood agreed to purchase Locus for $295,000.00.
18. On August 13,2004, Wood filed an application with the Town of
Barnstable Building Commissioner seeking a permit to construct a 4-bedroom
residence on Locus.
19. The proposed dwelling on Locus satisfied all of the dimensional
requirements in the RD-1 district in which Locus was located, with the exception
of minimum lot size, which was covered by the grandfather provision of Section
4-4 of the Zoning Ordinance, which became effective on December 3, 1995.
20. By letter dated September 23, 2004, the Building Commissioner of
the Town of Barnstable denied Wood's application. A copy of said denial is
attached hereto as Exhibit "1".
21. The Building Commissioner's denial of Wood's application was
based solely on his belief that two (2) decisions of the Land Court (Scheier, J.) in
Miscellaneous Case No. 163,150, and Miscellaneous 163,151, declared Locus
unbuildable.
22. On October 12, 2004, Wood filed an appeal of the Building
Commissioner's decision to the Defendant Zoning Board of Appeals ("Board").
23. A public hearing before the Board was duly advertised and notice
was sent to all interested parties in accordance with M.G.L. Chapter 40A.
4
24. The public hearing was opened on November 17, 2004, and
continued to January 19, 2005, February 9, 2005, April 27, 2005, June 22, 2005,
August 10, 2005, and August 24, 2005.
25. On August 24, 2005, the Board voted unanimously to deny Wood's
appeal on the ground that decisions of the Land Court (Scheier, J.) in
Miscellaneous Case No. 163,150 and Case No. 163,151 precluded Wood's
application for a building permit.
26. A true and attested co of the Boards decision;dated September 7
PY P
2005, is attached hereto as Exhibit "2".
27. The Board's Decision was duly filed with the Town Clerk on
September 7, 2005.
COUNT
(Appeal Pursuant to M.G.L. Chapter 40A, Section 17A)
28. Plaintiffs repeat and reassert the allegations set forth in Paragraphs 1
through 27 and incorporate the same herein.
29. Wood is aggrieved b the Boards decision within the meaning of
Y l;l� �
General Laws, Chapter 40A, Section 17.
30. The Board's decision exceeds the authority of the Board.
5
31. The Board's decision is based on a legally untenable ground in that
the Board ruled that the doctrine of"claim preclusion" bars not only "issues" that
were raised in the Land Court case, but those that could have been raised.
32. The Board's decision is based on a legally untenable ground that the
Board ruled that"Res Judicata" and "claim preclusion"barred Wood from
seeking a building permit for Locus.
33. The Board's decision is based on a legally untenable ground in that
the Board ruled that Wood was barred from applying for a building permit by the
Land Court's decisions is Miscellaneous Case No. 163, 150 and Miscellaneous
Case No. 163,151.
34. In addition, the Board's decision was defective on its face, arbitrary
and capricious and not based on substantial evidence.
COUNT II
(Petition Pursuant to M.G.L. Chapter 240, Section 14A)
35. Plaintiffs repeat and reassert the allegations set forth in Paragraphs 1
through 27 and incorporate the same herein.
36. In pertinent part, Section 4.4 of the Town of Barnstable Zoning
Ordinance, which was enacted on November 3, 1995, reads as follows:
6
4-4 Nonconformities
4-4.1 Intent:
It is the intent of this section (i) to protect property
rights of owners of pre-existing legally created
nonconforming lots, uses and buildings or structures
and(ii) to provide regulation structures, building and
uses.
2) Common Lot Protection:
Any increase in the area,frontage, width,yard or
depth requirement of the Zoning Ordinance shall not
apply for a period of 5 years from the effective date of
the change, to a lot for single or two-family residential
use that:
A) is held in common ownership with not more
than 2 adjoining lots; and
B) had a minimum of 7,500 sq.ft. in area and 75
feet of frontage or the minimum frontage
requirement for the zoning district in which it is
located; and
C) was recorded or endorsed on a plan that
conformed to zoning when legally created; and
D) conformed to applicable zoning requirements as
of January 1, 1976.
The protection afforded by this paragraph shall
become.vested upon the sale or transfer of the lot so
protected into ownership separate from that of
adjoining lots or the building thereon of a residence.
37. Section 4.4, entitled "Non-conformities" ("New Section 4-4"),
which passed by unanimous vote of the Barnstable Town Council on November 3,
("Old Section 44").
7
38. New Section 4-4 became effective on December 3, 1995, which date
was thirty (30) days after its enactment.
39. The applicability of New Section 4-4 was discussed by the
Defendant Board in Wood's Appeal (No. 2004-153), but no findings were made
by the Defendant Board concerning the applicability of New section 4-4.
40. Horgan desires this Court to determine that New Section 4-4 is
applicable to the proposed dwelling on Locus.
WHEREFORE, Plaintiff requests that this Court:
A. Annul the decision of the Town of Barnstable Zoning Board of
Appeals, dated September 23, 2004, which affirmed the decision of
the Building Commissioner, dated September 23, 2004;
B. Reverse the decision of the Building Commissioner, dated
September 23, 2004, or in the alternative, remand the matter to the
Defendant Board with instructions to reverse the Building
Commissioner's decision dated September 23, 2004;
C. Retain jurisdiction over the matter until the proper relief is granted
by the Defendant Board;
D. Determine whether Section 4-4 of the Town of Barnstable Zoning
Ordinance, as enacted on November 3, 1995, is applicable to the
proposed construction of a new single family dwelling on the land at
8
40 Orchard Lane, Barnstable (Centerville), Barnstable County,
Massachusetts; and,
E. Grant said further relief as this Court deems meet and proper.
Daniel C. Wood and
David Scott Horgan,
Plaintiffs,
By their attorney,
Albert J. Sc lz, Esq. (BB #447720)
7 Parker Road
Osterville, MA 02655-2034
Telephone: (508) 428-0950
Dated: September 16, 2005
9
EXHIBIT 1
FINE► Town of Barnstable
ti
Regulatory Services.
9 WSW
Thomas F. Geiler,Director
Building Division
Thomas Perry,Building Commissioner
200 Main Street, Hyannis,MA 02601
www.town.barustable.maxs
Office: 508-862-4038 Fax: 508-790-6230
September 23, 2004
Kilroy&Warren,P.C.
Attn:Bernard T.Kilroy
67 School St.
PO Box 960
Hyannis,MA 02601
RE: 40 Orchard Rd., Centerville,Map 207 Parcel 021004
Dear Atty.Kilroy: -
I am writing in response to your letter of September 7,2004 on the above referenced lot.I
do agree with you that permits have been issued in the past for lots that were beyond the
five years of protection. In most cases this is because the abutting lots were"either built
upon or were conveyed into separate ownership.. The lot in question is unique in that it
has already been declared unbuildable because of a court decision. A subsequent zoning
ordinance,.in my opinion,is not going to change this lot's status.
In view of this I will have to deny the building permit application for 40 Orchard Rd.,
Centerville which was received by my office on September 7, 2004.
Sincerel
.Thomas 5-Thoma Perry
Building Commissioner
TP/AW
EXHIBIT 2
q,21(P
„ .� �. _ i is d t • v m e 1
i wwsree�e.�
Town of Barnstable
Zoning Board of Appeals
Decision and Notice
Appeal 2004-153 - Wood
Appeal of Building Commissioner
Summary: Upheld September 23,2004 Building Commissioner decision that the lot is not buildable.
Petitioner: Daniel Wood r_.,
Property Address: 40 Orchard Road,Centerville,MA
Assessor's Map/Parcel: Map 207 Parce1021-004 r..�
Zoning: Residence D-1 Zoning District L
Relief Requested &Background:
In this case,the applicant Daniel Wood is appealing the Building Commissioner's decision of September 23 �-
2004 in which the Commissioner denied a building permit for a lot addressed as 40 Orchard Road
Centerville,MA as shown on Assessor's Map 207 as Parcel 021-004. The Commissioner, in his denial,' co
letter, cited that the lot in question has already been declared unbuildable in a court decision and that 4n
opinion, the subsequent zoning amendments have not changed that status.
Procedural & Hearing Summary:
This appeal was filed at the Town Clerk's Office and at the Office of the Zoning Board of Appeals on
October-12, 2004. An Extension of the Time Limits for holding the public hearing and for the filing of the 4=1;
decision was executed between the applicant and the Board Chairman. A public hearing before the Zoning _;
Board of Appeals was duly advertised and notice sent to all abutters in accordance with MGL Chapter 40A.
The hearing was opened November 17,2004, and continued to January 19,2005,February 9,2005,April
27, 2005,June 22,2005,August 10, 2005,and to August 24,2005,at which time the Board found to uphold
the decision of the Building Commissioner.Board Members deciding this appeal were: Gail Nightingale, 7 4
Randolph Childs,James R.Hatfield, Jeremy Gilmore, and Acting Chairman Ron S.Jansson.
During the hearing,Attorney Albert J. Schulz represented the applicant. Mr. Schulz stated that the locus is
Lot 32 and a portion of Lot 33 as shown on a September 1927 plan recorded at the Registry of Deeds. The
subject land is presently owned by David Scott Horgan,who acquired the property from Frank L.Horgan.
At the time that Frank Horgan owned the locus; he also owned the adjacent properties in common
ownership. Mr. Schulz noted that a 1996 Land Court Decision determined that the properties had merged
and thus the court declared the locus"unbuildable". However,Mr. Schulz stated that he believed that a
subsequent zoning ordinance changed that status and now the locus is buildable under Section 4-4.2(2),
Common Lot Protection.
Mr. Schulz explained that the court decision that determined this locus "unbuildable"was based on the 1985
amended'Section 4-4 which required that for merger protection to be afforded a lot one had to build upon the
property within the five-year protection period. He noted that a section of the Ordinance was amended in
1995 and that amendment afforded additional protection in that it provided protection from merger by
conveyance of the lot into separate ownership within the five-year protection period. Mr. Schulz stated that
the intent of the 1995 amendment was to apply retroactive, and therefore,the protection of the locus became
vested in 1989, when Frank Horgan conveyed the locus to David Scott Horgan.
The Board cited the Land Court Case noting Justice Scheier's decision that the results of merger of"lots 29
merging with lots 30, 31 and 32—to the extent necessary to meet one-acre zoning— [had] the unfortunate
result of leaving an unbuildable remainder lot composed of lots 33 and part of 32." The Board questioned if
the intent of the 1995 amendment was to retroactively render the otherwise unbuildable lots as buildable.
Public comment was requested and Attorney Bruce Gilmore,214 Park Ave representing himself and abutters
stated that during 1985, at the time when lot area was increased to one-acre, either Frank Horgan Sr. or
Frank Horgan Jr. or the Trust owned all the lots numbered 29 through 33. The deed of these lots dates back
to 1931 and described the property in one single metes and bounds description. In 1948,Frank L. Horgan,
Sr. built a multi-family structure containing three residential units on Lot 29. Mr. Gilmore stated that after
the passage of the one-acre zoning,Mr.Horgan had the opportunity to reduce the non-conformity and had
five years,yet he did not. Therefore, the law of merger took effect and lot 29 merged with 30, 31,and a part
of 32 to the extent necessary to meet the required one acre zoning. This merger left Lot 33 and the
remaining part of Lot 32 unbuildable. Mr. Gilmore stated that 1996 decision of the Land Court is a final
decision and the applicant is precluded from today pursuing the issue
Mr.Paul Brown, 27 Orchard Road, Centerville, stated that the lot has already been declared unbuildable by
a court decision and that he agrees with the Building Commission to deny a building permit. Richard A.
Liguori,49 Bacon Lane,Centerville spoke in opposition overturning the Building Commissioner's decision.
He noted that he had relied upon the Court's decision when he purchased his home with the understanding
that the lot would not be built upon.
The Chairman noted that letters in opposition to overruling the Commissioner were submitted to the file
from Robert M. and Joan M.D'Ambrosia,43 Bacon Lane, Centerville,Sue Curran,69 Bacon Lane,
Centerville,and John G.Holbrook,Arborist,Holbrook Tree and Lumber Service. An Affidavit dated
November 17,2004, of Steven M. Shuman,Architect and member of the Town of Barnstable Planning
Board was submitted by Mr. Schultz and entered,into the file in support of the Board overturning the
decision of the Building Commissioner.
The Board continued this matter requesting that Mr. Schulz and Mr. Gilmore respond with a memorandum.
to support there positions as well as address the issue of Res judicata and claim preclusion. At the
continuance, the Board noted the issue raised was with respect to past litigation,Frank L. Horgan,III v.
Town of Barnstable,Zoning Board of Appeals,Land Court No. 163150 and David Scott Horgan v.Town of
Barnstable Zoning Board of Appeals,Land Court No. 163151.
The Board decided to continue the appeal in order to seek the Town Attorney's Office advice on the issue.
At that continuance,Robert Smith,Town Attorney addressed the Board. He stated that when Judge Scheier
made her decision regarding the Horgan's nonconforming lots, the vesting of rights was in effect at the time
that the case was argued. Her decision declared that all lots had merged into one; effectively and
permanently merged. Mr. Smith stated that it is fairly clear that we are not dealing with a different claim
than the claim before the Board. He concludes that when Judge Scheier made her decision stating that lots
had merged, it was permanent and the issue could not be reopened again.
The Board concluded that it had been litigated and decided and now could not be brought up again. Mr.
Smith confirmed that to be the case.
2
Mr. Smith stated that there is no material changes in the facts between the two cases. When the local law
changed,this should have and could have been brought to court at that time during the litigation.
The appeal was continued to August 24,2005 to allow the Board to review all of the material submitted to
date.and to render a decision.
Findings of Fact:
At the hearing of August 24,2005,the Board unanimously made the following findings of fact:
1. Appeal 2004-153 is that of Daniel Wood seeking to appeal the Building Commissioner's Decision
of September 23, 2004 not to issue a building permit for the development of a single-family
dwelling on the undersized lot. The lot at issue is addressed 40 Orchard Road, Centerville,MA and
is shown on Assessor's Map 207,Parcel 021-004. It is in a Residential D-1 Zoning District.
2. There was litigation previously generated and decided in the Land Court,Miscellaneous Case No.
163150 and No. 163151;Frank L.Horgan,III, and David Scott Horgan,Plaintiffs v.Town of
Barnstable Zoning Board of Appeals et al. The two cases were consolidated and resolved by a
decision rendered October 9, 1996.
3. That case was decided against the Plaintiffs,Frank L. Horgan,III and David Scott Horgan by Justice
Karyn Faith Scheier who rendered the decision stating:
"In February 1985,Frank L.Horgan,Jr.,Trustee owned all the lots. He had the opportunity to
reduce the nonconformity, alternatively,he had five years to act to preserve his rights under section
6 and section 4-4.5,yet he did not. Therefore,the law of merger took effect and lot 29 merged with
the adjoining parcels to the extent necessary to satisfy the new minimum lot area requirement.
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."
The"unbuildable remainder lot comprised of lots 33 and part of 32"is the subject lot in this appeal.
Justice Schemer had determined that the lots have merged and are not buildable. Justice Scheier's
ruling was a final decision.
4. In 1995, while the Horgans' Land Court litigation was proceeding,Section 4-4,Nonconformities of
the Town of Barnstable Zoning Ordinance was amended and changed. The applicants could have
raised the issue of the amended nonconforming section during the litigation but they failed to do so.
5 The Building Commissioner based his September 23, 2004 decision to refuse a building permit for
the subject lot citing that"the lot in question ... has already been declared unbuildable because of a
court decision." That court decision being Land Cases No. 163150 and 16315 -cases that had
already been heard and decided on its merits. The appeal today requests the Board to overturn not
only the Building Commissioner's decision,but also to overturn the Land Court decision.
3
1
6. Res judicata and claim preclusion bars the applicant from now being heard before the Board despite
the fact that the issue of the by-law change was never raised prior to the final decision of Land Court
Cases No. 163150 and 163151. The doctrine of claim preclusion bars not only those issues that
were raised,but those that could have been raised from being relitigated again. In view of the fact
that the petitioners could have raised the issue of the by-law change prior to the final decision of the
Land Court,they are precluded from raising that issue today.
7. The Building Commissioner acted correctly in denying a building permit to the applicant and his
decision is upheld.
Decision:
Based on the findings of fact, a motion was duly made and seconded to uphold the Building Commissioner's
decision of September 23, 2004 in which the Commissioner denied a building permit for a lot addressed as
40 Orchard Road Centerville,MA as shown on Assessor's Map 207 as Parcel 021-004.
The vote was as follows:
AYE: Randolph Childs,Jeremy Gilmore, Gail Nightingale,James Hatfield, and Ron S.Janson -
NAY: None
Ordered:
In Appeal 2004-153 the Building Commissioner's decision not to issue a building permit is upheld. 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.
1611m
Ron Jansso ,Acting Chairman Date Signed
1;Linda_11%chenrider,Clerk of the Town of Barnstable,Barnstable County,Maesacrusetts,hereby certify
that twenty(20)`day have elapsed since the Zoning Board of Appea:19111ed this decision and that no appeal
of the decision has been ftied-in die office of,the Town'Clerk.
Signed and sealed this day of under the pains and penalties of perjury.
Linda Hutchenrider,Town Clerk
A TRUE COPY ATTEST
�J
Town Clerk
BARNSTABLE
4
Abutters within 300' of Map 207 Parcel 021-004
This list by itself does NOT constitute a certified list of abutters and is provided only as an aid to the determination of abutters. The requestor of this
list is responsible for ensuring the correct notification of abutters. Owner and address data taken from the Town of Barnstable Assessor's database
on 10/20/2004
Mappar Ownerl Owner2 Address 1 Address 2 City State Zip Country
207009 NEEDS,EVA JANE P 0 BOX 671 CENTERVILLE IMA 02632 USA
207010 BROWN,L PHILLIPS 611 MAIN ST CENTERVILLE IMA 02632
207013 BROWN,L PHILLIPS 610 MAIN ST CENTERVILLE IMA 02632
207015 BAGSHAW,ROBERT E JR 186 WEST BOSTON MA 102118 USA
SPRINGFIELD
ST#1
207016 MANOOG,NANCY J 112 MAIN ST CENTERVILLE MA 02632
207017 . LAW,RICHARD 25 BACON IN CENTERVILLE IMA 02632
207018 DAMBROSIA,ROBERT M&JOAN 43 BACON CENTERVILLE MA 102362 USA J.
LANE I VV
207019 HAYDEN,LESLYN A %LIGUORI,RICHARD A& ROY,ANDREA J.
AVE 43,BROOKSIDE BELMONT rA �02478 USA
207020 CURRAN,JOHN P&SUE M 69 BACON IN CENTERVILLE IMA 02632
207021001 HORGAN,FRANK L JR . 180 PARK AVENUE CENTERVILLE r
02632 USA
207/21/02 �HORGAN,FRANK L 111 180 PARK AVET CENTERVILLE IMA 02632 USA
207021003 IHORGAN,FRANK L III 180 PARK AVE CENTERVILLE rA 02632 USA --
r '1
r021004 HORGAN,DAVID SCOTT C/O FRANK L HORGAN 180 PARK AVE CENTERVILLE MA 02632 USA
207022001 MCGILLIS,WADE RANDALL JR 41 ORCHARD CENTERVILLE MA 02632 USA
IRD
207022002 BROWN,PAUL C&GERTRUDE D 127 ORCHARD CENTERVILLE MA 02632 USA
RD
r07038 DEDECKO,ANTHONY W BOX 367 CENTERVILLE MA 02632 USA
207039 ANTHONY,DAVID W&ELAINE M 56 BACON IN CENTERVILLE MA 02632
Thursday,October 21,2004 Page 1 of 2
Mappar Ownerl Owner2 Address 1 Address 2 City State Zip Country -
207040 MILLER,SARA K SWAN TR& GILDEA,MARGARET E TR 43 YALE ST MAPLEWOOD J 07040
207041 FAIR,GERALDINE K 3 FAIRWAY CIR rICK IMA 101760 USA
-F 207105 ]RIVERVIEW SCHOOL,INC 551 ROUTE 6A EAST SANDWICH MA 02537
207136 GILMORE,BRUCE.P.&GAEL B T
214 PARK AVE CENTERVILLE MA 02632 USA
207143 HORGAN,FRANK L JR AVE CENTERVILLE IMA 02632 USA180P
207144 HORGAN,FRANK L JR LINDA H HORGAN 180 PARK AVE CENTERVILLE IMA 02632 USA
207145 BROWN,PAUL C&GERTRUDE D 27 ORCHARD CENTERVILLE MA 02632 USA
IRD
207146 DEDECKO,ANTHONY W TR BOX 367 CENTERVILLE MA 02632 USA
207147 DEDECKO,ANTHONY W TR BOX 367 CENTERVILLE IMA 102632 USA
G
207148 MCELLIGOTT,LETHA M TRS& STEARNS,PATRICIA M 20 MAPLE AVE CENTERVILLE IMA �02632 USA n0
ly
207150 LAW,RICHARD&MARK B TRS ORCHARD STREET TRUST 51 ORCHARD CENTERVILLE MA 02632 USA
RD
n I'
f—
Page 2 of 2
Thursday,October 21,2004
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