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HomeMy WebLinkAboutAP-2023-042 Narrative45 Bromfield Street 6th Floor Boston, MA 02108 617.933.9490 Benjamin B. Tymann Tel.: 617.933.9490 btymann@tddlegal.com February 23, 2024 BY EMAIL (Genevey.Ziino@town.barnstable.ma.us) Jake Dewey, Chair Barnstable Zoning Board of Appeals 367 Main Street Hyannis, MA 02641 ATTN: Genna Ziino, Clerk Re: Moir/Baker Appeal – No. 2023-042 Dear Chair Dewey and Members of the Board: I represent David Moir and Patricia Baker, the co-petitioners in this administrative appeal of Building Permit No. BLDR-23-780 (the “Building Permit”) for construction of a single-family residence and other structures and improvements on “Parcel A” of 250 Windswept Way, Osterville, which parcel has also been referred to by the owner as 250A Windswept Way or 240 Windswept Way. Mr. Moir owns 220 Windswept Way and Ms. Baker owns 43 Sunset Point. Both are abutters to the locus. The locus is in the Residence F-1 (RF-1) Zoning District and the Resource Protection Overlay District (RPOD). My clients challenge the Building Permit on three (3) primary grounds. Each ground finds support in the Town’s Zoning Ordinance as well as Massachusetts law, and any one of the grounds makes Parcel A an unbuildable lot due to non-compliance with applicable zoning. First, Parcel A does not have legal frontage. Second, Parcel A does not meet the Lot Area minimum. Third, Parcel A fails Lot Shape Factor. This letter discusses, and we believe demonstrates conclusively, Parcel A’s lack of legal frontage. As detailed in Section II below, Parcel A lacks legal frontage because it has no access to the way it claims as its frontage, Sunset Point, and the law unequivocally requires a buildable lot to have access to its frontage. Furthermore, the only way to which Parcel A does have access, Windswept Way, is not a “way in existence when the Subdivision Control Law became effective which meets the standards of adequate access” under Barnstable’s Subdivision Rules and Regulations, which is the applicable standard for determining whether or not an ANR Lot has legal frontage. As to Parcel A’s other major zoning non-compliances, the letter from the petitioners’ Registered Professional Engineer, Daniel J. Merrikin, P.E., dated February 23, 2023, and Barnstable Zoning Board of Appeals February 23, 2024 2 submitted herewith, discusses and demonstrates Parcel A’s non-compliance with Lot Area and Lot Shape Factor.1 I. Background on ANR Plans and the Procedural History of this Matter On or about July 13, 2022, the owner of 250 Windswept Way received the Barnstable Planning Board Chair’s endorsement of an Approval Not Required (ANR) Plan. See Exhibit A (the “250 Windswept ANR Plan”) attached hereto. By way of background, ANR Plans are a creature of the state’s Subdivision Control Law, at M.G.L. c. 41, § 81P; see Tessier v. Frattaroli, 2022 WL 2180167 (Mass. Land Ct. June 16, 2022), at *1 (“if an owner wishes to record a plan dividing a parcel into lots with frontage on an existing way, it must be endorsed by the planning board as ‘approval not required under the Subdivision Control Law’ before it can be recorded”). Endorsed ANR Plans carry no weight of zoning compliance, including with respect to whether a new lot on such plan actually has legal frontage. Corrigan v. Board of Appeals of Brewster, 35 Mass. App. Ct. 514, 517 (1993) (ANR Plan “endorsement does not give a lot any standing under the zoning by-law,” including whether legal frontage exists, and “[i]n acting under [M.G.L. c. 41,] § 81P, a planning board’s judgment is confined to determining whether a plan shows a subdivision”) (internal citations and quotations omitted). Indeed, like most ANR Plans, the 250 Windswept ANR Plan therefore bears the disclaimer, “No determination as to compliance with the Zoning Ordinance requirements has been made or intended by the above endorsement.” See Exhibit A. It is also notable that the law does not require abutters to be notified of an ANR Plan endorsement. Because ANR Plans do not create zoning compliance, they do not create buildable lots. This has long been recognized by Massachusetts case law. See, e.g., Lee v. Bd. of Appeals of Harwich, 11 Mass. App. Ct. 148, 152 (1981) (“An [ANR] endorsement under § 81P does not mean that the lots within the endorsed plan are buildable lots”). Whether a lot shown on an ANR Plan is actually buildable is a zoning question. That question of zoning compliance first becomes ripe if and when a lot owner seeks a building permit for such lot. If the permit is issued, that is when aggrieved parties, such as abutters, may appropriately bring a petition to the zoning board of appeals, which at that stage must analyze and decide the question of the lot’s compliance with zoning. See M.G.L., c. 40A, §§ 8 & 15; Barnstable Zoning Ordinance § 240-88; Tessier, at *1. This is what has happened in today’s case before the Board. Specifically:  The 250 Windswept ANR Plan – creating a new unimproved “Parcel A” by subdividing it from the remainder of 250 Windswept Way 2 – was endorsed in July 2022 (and, consistent with law, abutters were not notified); 1 There are other grounds supporting the Board’s annulment of the Building Permit. These include (a) the apparent worsening of zoning nonconformities on the remainder of 250 Windswept Way, the so-called “Parcel B” under an ANR Plan where an existing house and compound stand, see Petitioners’ Appeal of Building Permit No. BLDR-23- 780, Add. A, dated Nov. 29, 2023; and (b) the apparent lack of stamped construction drawings, see pp. 3-4 of this letter. These other grounds will be amplified by Petitioners at the Board’s hearing but are not the focus of this letter. 2 250 Windswept Way is improved with a single-family residence and multiple other structures. Under the 250 Windswept ANR Plan, those buildings are now on “Parcel B.” Barnstable Zoning Board of Appeals February 23, 2024 3  That endorsement carried no legal significance as to whether Parcel A was actually a buildable lot;  On or about June 6, 2023, 250 Windswept Way’s owner applied for a building permit to construct a single-family house, among other structures, on “250A Windswept Way” (i.e., Parcel A), which the owner has also alternatively labeled as “240 Windswept Way”;3  On or about November 1, 2023, 250 Windswept’s owner received a Building Permit for Parcel A.  Direct abutters to Parcel A, my clients David Moir (at 220 Windswept Way) and Patricia Baker (at 43 Sunset Point), learned of the Building Permit’s issuance and filed a timely appeal with this Board on November 29, 2023. “Parcel A” was recognized, at least twice, as not being a buildable lot It is unclear what zoning analysis the Building Department undertook before ultimately issuing the Building Permit in November 2023. But what the record for this property does clearly show is that, on at least two occasions, Town officials and/or the owner’s development team regarded Parcel A as not meeting requirements for a buildable lot. First, during the ANR process before the Planning Board in 2022, the 250 Windswept owner’s representatives submitted a series of different plans to try to indicate compliance with Lot Shape Factor. Apparently, a determination was made within the development team that this compliance could not be achieved – either for Parcel A itself or for what would become Parcel B (the existing house and buildings at 250 Windswept), or both – and so the owner applied to this Board for a variance on Lot Shape Factor. See Exhibit B (Staff Report on Variance Application 22-018). However, after some “creative” adjustments of boundary lines, the owner’s representatives took the position that they had eliminated their Lot Shape Factor problem and, before this Board heard or took action on the variance application, withdrew it. Second, on or about June 26, 2023, approximately three weeks after the owner filed her application for a Building Permit, Inspector Pereira denied the application. See Exhibit C (Letter from Inspector Pereira to Mr. Jaxtimer, the owner’s builder). Inspector Pereira stated two grounds for the denial, as follows in pertinent part: 1) Incomplete Application … The construction documents shall include documentation that is prepared and sealed by a registered design professional that the design and methods of construction to be used meet the applicable criteria of this section 3 Following the owner’s initial application, the Building Department denied the application. This is detailed in the section of this letter below. Barnstable Zoning Board of Appeals February 23, 2024 4 2) Proposed project does not comply with the Town of Barnstable Zoning Ordinance 240-7 Application of District Regulations. Section F (Number of buildings allowed per lot) Subsection (1) Residential districts: Unless otherwise specifically provided for herein, within residential districts, only one principal permitted building shall be located on a single lot. Building Department records do not reveal to what extent these deficiencies were ever remedied in the eyes of that Department. As to the absence of a registered design professional’s seal, the original set of plans filed with the application, dated May 5, 2023 (see Exhibit D), lack any seals, stamps, or other endorsements by an engineer, architect, or other design professional. But the revised set of plans that the Building Department apparently approved, dated August 20, 2023, also bear no design professional’s seal, stamp, or endorsement, except on the structural plans. See Exhibit E.4 As to the second ground for Inspector Pereira’s initial denial of the Building Permit application, noncompliance with Zoning Ordinance restrictions on number of buildings allowed per lot in this zoning district, he was correct. Parcel A is not a lawful separate buildable lot. The remainder of this letter explains one reason why: it fails frontage requirements. Mr. Merrikin, will demonstrate two other reasons: its non-compliance with Lot Area and with Lot Shape Factor. II. Parcel A does not have legal frontage Parcel A lacks legal frontage under Town of Barnstable and Massachusetts law. This is for two reasons. First, Parcel A has no access to the way it claims as its frontage, Sunset Point, and the law unambiguously requires a buildable lot to have access to its purported frontage. Second, the way to which Parcel A does have access, Windswept Way, is not a “way in existence when the Subdivision Control Law became effective which meets the standards of adequate access” under Barnstable’s Subdivision Rules and Regulations, which is the applicable standard for determining whether or not an ANR Lot has legal frontage. A. Parcel A has no access to Sunset Point As is clearly shown on the 250 Windswept Way ANR Plan, Parcel A is not accessible from Sunset Point, the way that Parcel A’s owner claims provides the tract with frontage. See Exhibit A. But Massachusetts case law has firmly established in case after case that a frontage road must, at minimum, “provide acceptable physical access” to the lot in question. Ball v. Planning Bd. of Leverett, 58 Mass. App. Ct. 513, 517-18 (2003). See also, e.g., Gifford v. Planning Bd. of Nantucket, 376 Mass. 801, 807 (1978) (notwithstanding technical compliance with § 81L frontage requirement, no buildable ANR lot where plan featuring numerous rat tail and pork chop lots was so convoluted that “the main portions of some of the lots were practically inaccessible from their ... borders on a public way”); Gates v. Planning Board of Dighton, 48 Mass. App. Ct. 394, 400 4 I obtained a copy of the 240-250 Windswept Way filed from the Building Department. If a stamped set of full construction plans and drawings is in the Building Department’s records but I missed it, the owner’s representatives can correct me. Barnstable Zoning Board of Appeals February 23, 2024 5 (2000) (interposition of large swath of wetlands at front of lots rendered present practical access from public way non-existent); and Jaxtimer v. Planning Bd. of Nantucket, 38 Mass. App. Ct. 23, 24 (1995) (to be buildable, an ANR lot must have “sufficient footage on a way” that has “adequate access for fire trucks and emergency vehicles”). Barnstable’s definition of “Frontage” under its Subdivision Rules and Regulations also requires “access.” Id. § 801-3 (“Frontage: The distance between the side boundaries of a lot, measured along the exterior line of whatever way or street serves as legal and practical access to the buildable portion of the lot”). Put very simply, Parcel A’s access to Sunset Point does not exist on the ground, nor will it exist under the owner’s building plans. Access there is wholly illusory and cannot provide legal frontage for Parcel A. B. Windswept Way cannot provide legal frontage because it is not a qualifying “way in existence” under Town of Barnstable law A way qualifies as legal frontage for an ANR Lot in one of three ways, i.e., if the way is: (a) A public way which the Town Clerk certifies is maintained and used as a public way; (b) A way shown on a plan previously approved and endorsed under the Subdivision Control Law which has been fully constructed in compliance with the Subdivision Rules and Regulations in effect at that time; or (c) A way in existence when the Subdivision Control Law became effective which meets the standards of adequate access established by § 801-12B of these rules and regulations Subdivision Rules and Regulations, § 801-3 (“Subdivision” definition). These three categories of establishing a way sufficient for frontage follow – but in Barnstable are, permissibly, more strict than – Massachusetts law. See, e.g., Tessier, at *14, citing M.G.L. c. 41, § 81L. There is no dispute that the first two of the three categories – public way and a previously- approved subdivision roadway – are not relevant to this case. The only inquiry that applies is whether the way to which parcel A has access, Windswept Way, meets the third category of a “way in existence.” It does not, for two reasons: First, there is no evidence that Windswept Way was “a way in existence when the Subdivision Control Law became effective” on November 20, 1962.5 5 See https://townofbarnstable.us/departments/regulatoryreview/Planning-Board-Subdivision-Rules-and- Regulations-Archive.asp (stating date Barnstable adopted the Subdivision Control Law). Barnstable Zoning Board of Appeals February 23, 2024 6 Second, as the 250 Windswept ANR Plan itself concedes, Windswept Way plainly does not “meet the standards of adequate access established by § 801-12B” of the Subdivision Rules and Regulations. Those Standards of Adequacy establish the following basic requirement: Existing ways providing access to the streets within a subdivision, or providing access to lots said not to be within a subdivision, shall be considered to provide adequate access only if there is assurance that prior to construction on any lots, access will be in compliance with the following [standards based on total number of dwelling units served by the way] § 801-12B. Windswept Way is governed by the “5-10 Total No. of Dwelling Units” category and possibly by the “11-49” category. To be conservative, I will use the 5-10 category, which has the following Standards of Adequacy: Total No. of Dwelling Units 5-10 Minimum ROW width (feet) 33 Surface type 3 inches bit. con. Surface width (feet) 18 Minimum sight distance (feet) 250 Maximum grade 10% There is no reasonable dispute that Windswept Way fails to meet these Standards of Adequacy. It is, at most, 20 feet wide, not 33. See 250 Windswept ANR Plan (Exhibit A). It is a dirt and gravel road where it abuts Parcel A, so fails Surface Type. Its Surface Width, if measuring the drivable dirt/gravel surface, is no more than 15 feet.6 Engineering analysis may also confirm it fails to meet the other criteria as well, but it must meet all of the criteria. III. Conclusion For the reasons stated herein, in the letter of Daniel J. Merrikin, P.E., and in the Petitioners’ application, direct abutters Mr. Moir and Ms. Baker respectfully request that the Board grant their appeal of the Building Permit and order it annulled. Thank you for your attention to these materials. Mr. Merrikin and I look forward to answering the Board’s questions on February 28, 2024. Sincerely, Benjamin B. Tymann 6 Sunset Point also fails these Standards of Adequacy but, as discussed already, it is ineligible as frontage because Parcel A cannot be accessed from Sunset Point. Barnstable Zoning Board of Appeals February 23, 2024 7 Enclosures cc: Michael Ford, Esq.