HomeMy WebLinkAboutAtty Letter 03102023LAW OFFICE OF JOHN W.KENNEY
ATI ORNEV A1 LAW
1550 FALMOHTH ROAD.SUITE 12
CENTERVILLE,MASSACHUSETTS 02632
building dept.
MAR I 0 2023
TOWN OF BARNSTABLE
PHONE:508-771-9300
FAX:508-775-6029
John W.Kenney,Esquire Patrick R.Nickerson, Esquire
Email:iohn@i\vkesq.com Email: patrick@iwkesq.com
Via E-mail:Brian.FIorence@.town.barnstable.ma.us
and Hand Delivery
March 10,2023
Mr.Brian Florence
Building Commissioner/Director of Inspectional Services
Town of Bamstable
200 Main Street
Hyannis,MA 02601
Re: 364 Wiaimo Avenue (a/k/a 271 East Bay Road),Osterville,Massachusetts 02655
Dear Mr.Florence:
I am writing on behalfof myclient,LauraBethTrust,Trustee of the364 Wianno Ave.Realty
Trust. Ms. Trust, as Trustee,is the owner of 364 Wianno Avenue;also known as 271 East Bay
Road, Osterville, Massachusetts 02655 (the "property")-I am writing regarding the property's
status asathree(3)family dwelling.This correspondence servesasa follow-up to our meeting
to discuss theproperty's statusandyour request toprovide additional information.Based on the
following,I respectfully submitthe property is a lawful pre-existing three-family useunder
M.G.L. c. 40A § 7 and respectfully request your concurrence on the same.
According to M.G.L.c. 40A §7,"If real property hasbeen improved and usedin accordance
withthe terms of theoriginalbuilding permit,no criminal or civilaction intended to compel the
abandonment,limitation or modification of the use allowedby the permit or the removal,
alteration or relocation of a structure erected in reliance upon the permit by reason of an alleged
violation of thischapteror ofan ordinance or by-law adopted underthis chaptershallbe
maintained unless the action, suit or proceeding is commenced and notice of the action, suit or
proceeding is recorded in the registry of deeds for each county or district in which the land lies
or,inthecaseof registered land,the noticeisfiledinthe registry districtinwhichthelandlies
within6 years of the commencementof the alleged violation".
The statute fiirther provides that,"If real property has been improved by the erection or alteration
of 1 or more structures and the structures or alterations have been in existence for a period of at
least 10 years and no notice ofan action,suit or proceeding astoan alleged violation ofthis
chapter orofan ordinance or by-law adopted under this chapter has been recorded in the registry
of deeds for the county or district in which the real estate is located or,inthe case of registered
land,has been filed inthe registry district in which the land is located within a period of 10 years
from the date the structures were erected, then the structures shall be deemed, for zoning
purposes, to be legally non-conforming structures subject to section 6 and any local ordinance or
by-law relating to non-conforming structures".
The property consists of four parcels of registered land. Edwin R.Trafton purchased two of the
lots in 1966.The remaining two lots were acquired by Mr.Trafton and his wife, Hilda Trafton,
in 1970.Mr.Trafton conveyed the lots purchased in 1966 to himself and his wife,Hilda,in 1971,
putting title to all four lots in their names.
The Traftons owned a summer home in Marstons Mills prior to purchasing the land in Osterville.
At some point in time between 1966 and 1971, the Traftons moved a carriage house type
structure from Marstons Mills to the property. The carriage house had one apartment with a
kitchenon one end. A second apartment with a kitchen was later added. See Affidavit of Nancy
Trafton attached hereto as Exhibit 1.
In approximately 1970,the Traftons hired an architect to prepare plans for the main house on the
property. I have shown you the full-size set of plans prepared and stamped by Richard Sears
Gallagher,Architect,dated July,1970.I have the plans in my possession and can show them to
you upon request.
Next, the Traftons engaged a local builder (Arthur Williams upon information and belief) to
build the main house.Construction was completed in 1971 per the Town of Bamstable
Assessor's records. The Assessor's Office inspected the interior of both the main house and the
garage/guest house in November,1972.See copy of Assessor's Card attached hereto as Exhibit
2.
(I have beenunableto locatea buildingpermit for the main house. However, upon completion of
1 the house,the Assessor's Office visited the property to assess it.Upon information and belief,
the Assessor's Office would not visit the property imless the building permit had been forwarded
1 to it by the Building Department.
Your office was able to find a permit for renovation of the apartment,but I have not seen it. I do
note that on the 1972 Assessor's Card,the assessor noted that "All Exterior Refmished Gar
moved to Present Loc &Guesthouse was Remod."It seems logical that the garage/guesthouse
.i was remodeled at approximately the same time as the main house was constructed.
Aesthetically,this makes the most sense and ties into the assessor's observations.I find it
inconceivable that the Trafton's (Mr.Trafton was an attorney)could/would move a garage from
Marstons Mills to the property;hire an architect to design the main house;hire a well-known
^local builder;renovate the garage/guesthouse;and construct the main house,without permits.
O Further,construction of the main house required use ofa crane to install the mantel above the
fireplace in the main house! See Exhibit 1.
The Traftons were active in the social community in town. In particular,they were avid tennis
players. They used the guesthouse for guests (oftentimes vising tennis players) and family. See
Exhibit 1.
Mr.Trafton pre-deceased Mrs. Traflon.After the death of Mr.Trafton,around 1979-1980,a
family friend from off-Cape was appointed Fire Chief in Mashpee. The Chief occupied one
apartment.He looked out for Mrs.Trafton while livingthere. The second apartmentwas used
for family and friends.See Exhibit 1.
In 1981,the property was sold by Mrs. Trafton to the Copeland family. Nancy Trafton, the
Affiant in Exhibit 1, was involved with the listing and sale of the property.The property
consisted of the main house with the garage and an apartment on each end of the garage. Each
apartment had a kitchen.
The Copelandfamily used the compound as a summer retreat.Mr. and Mrs. Copelandoccupied
the main house during summers. When they first acquired the property, a Mr. Turner occupied
oneapartmentrent free in exchange forproviding caretakerservices. The other apartment was
used for family and friends. After Mr. Turner vacated his apartment two of the Copeland's
daughters occupiedthem during the summers. SeeAffidavit of Todd Copelandattachedhereto
as Exhibit 3.
The Copeland family sold the property to my client n 2019.At the time of transfer, the
Centerville-Osterville-Marstons Mills Fire Department required the new owner to post three
different address numbers and issued three Certificates of Compliance for Smoke Detectors and
Carbon Monoxide Detectors.Sec Exhibits 4-1, 4-2,and 4-3.
The main houseand two apartmentsremain on the property. All three residencesneed
significant repairs.My client prefers to demolish the existing structures and replace themwith
new buildings.
Attachedarccopies of Assessor Records from 1986 and 2023 (see Exhibits 5 and 6). The
Assessors Records show the property as multi-family.
Basedon the foregoing, I respectfully submitthat the three family use at the propertyhas existed
and beenallowedto continually existaccordingto the earliestrecords of the Town of Bamstable
Assessing Departmentand Building Departmentpermits forthe main house and one apartment
forwelloversixyears,and apparently withouta building permitforthe second apartment for
wellovertenyears, without appeal,and shouldtherefor be considereda lawfulpre-existing
nonconforming use under G.L. c.40A §7.
Please do not hesitate to contact me should have any questions.
Very truly yours,
ohn W.Kenney,Esq.
JWK/mmc
Enclosures
Exbil^tl
AFFIDAVIT
I,Nancy Trafton,being first duly sworn on oath depose and state that:
1.I am a resident of the Town of Bamstable and have lived in the town for thirty years. I
have lived year-round on Cape Cod since 1970.1visited or summered on the Cape every
year of my childhood.
2.Hilda Trafton and Edwin R.Trafton were my aunt and uncle.
3. My aunt and uncle had a summer home in Marstons Mills that I visited as a child.
4. They purchased property in Osterville located at 364 Wianno Avenue (a/k/a 271 East Bay
Road)(the "property")in the 1970's.
5. My aunt and uncle acquired and moved a carriage house type structure to their Osterville
property.
6. The structure had several garage stalls and an apartment,with a kitchen,on one end. I do
not remember if there was a second apartment attached to the carriage house when it was
moved to Osterville.My best recollection is there was only one apartment at the time.
7. In the early 1970's,my aunt and uncle built the main house on the property. I remember
my aunt telling a story of how they had to bring a crane on-site to install the fireplace
mantel because it was so big.
8. At some point in time, a second apartment was added to the garage. My recollection is
that it contained a kitchen.
9. My aunt and uncle were very active in the tennis community in Osterville. In particular,
my Uncle Ed and his son Tom were avid tennis players. During college, Tom was the
Assistant Pro at the Wianno Tennis Club.
10.My aunt and uncle used the apartments on the property for family and friends visiting.
They often housed visiting tennis players.
11.After my uncle died in the late 1970's,a friend of the family from the Brookline, MA Fire
Departmentmovedon Cape. He stayed in one of the apartmentsand lookedout for my
aunt. He later became Chief of the Mashpee Fire Department.The other apartment
continued to be used by family and friends who visited.
12.Myaunt sold the propertyto the Copelandfamilyin 1981.1was involvedwiththe listing
and sale of the property. Whenthe property was transferred, it consisted of the main