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HomeMy WebLinkAboutLegacy Engineering Letter dan@legacy-ce.com 508-376-8883(o) 508-868-8353(c) 730 Main Street Suite 2C Millis, MA 02054 February 23, 2024 Zoning Board of Appeals Town Hall 367 Main Street Hyannis, MA 02601 Ref: 250 Windswept Way Appeal of Building Inspector’s Determination Dear Members of the Board: I am writing to provide our opinion regarding the status of Parcels A and B as referenced on a plan entitled “Plan Showing Lot Division at 250 Windswept Way, Barnstable (Oyster Harbors) MA” prepared by CapeSurv, dated June 16, 2022 and recorded in the Registry of Deeds in Plan Book 696, Page 92 (the “ANR Plan”). The proposed development of Parcel A is depicted on a plan entitled “Site Plan, Proposed Site Improvements at 250 Windswept Way, Barnstable (Oyster Harbors) MA” prepared by CapeSurv and dated January 24, 2023 (the “Site Plan”). Note that the Site Plan is referenced in the Order of Conditions issued by the Conservation Commission dated February 22, 2023. As background to our conclusions below, we note the following requirements of the Zoning Bylaw: ¾ Because the site is in the RPOD District, Sections 240-13.E and 240-36.D require a minimum lot area of 87,120 s.f. ¾ Sections 240-7.C and 240-7.E require that the minimum Lot Area consist entirely of contiguous land that is not wetland. ¾ Section 240-7.D requires that Shape Factor (as defined), not exceed a numeric value of 22. ¾ Section 240-128 defines the term “Lot” as “A single area of land in one ownership defined by metes and bounds or boundary lines, no portion of which is bisected by a street1” ¾ Section 240-128 defines the term “Shape Factor (Lot Shape Factor)” partially as “The numerical value resulting from: … B. Division of the square of the perimeter in feet of that portion of a lot intended as the site for building by the area in square feet thereof.” 1 Emphasis added Zoning Board of Appeals February 23, 2024 Page 2 of 3 dan@legacy-ce.com 508-376-8883(o) 508-868-8353(c) 730 Main Street Suite 2C Millis, MA 02054 Note that as part of our analysis, we have reproduced the Parcel boundaries from the ANR Plan in a CAD program to form our opinion as to whether they meet the various requirements of the Zoning Bylaw as noted above. In this instance, the Applicant purports to meet the Shape Factor requirement with lines that are not identical to the lot line boundaries (per part B of Section 240-128, definition of Shape Factor (Lot Shape Factor). Those supplemental Shape Factor lines are depicted on the ANR Plan. Our conclusions regarding Shape Factor for Parcel A are as follows: ¾ Regarding the required upland area (i.e. non-wetland area): o The 2022 ANR Plan depicts a wetland boundary noted “Wetland Line as Flagged 11/2021” and the stated Adjusted Shape Factor Area of 87,567 +/- s.f. and Shape Factor of 21.85 appear consistent with the use of the 2021 wetland boundary. o The 2023 Site Plan references identical Shape Factor areas and values. However, the 2023 depicts a new wetland boundary line labeled “Edge of Wetlands by Brad Hall 01- 24-2023.” The buffer zones and setbacks to wetlands on the Conservation Commission approved plan all refer to this new wetland delineation, which is as much as 30 feet further upslope from the 2021 wetland line. Since the Conservation Commission issued an Order of Conditions based on the 2023 wetland boundary, it is the approved wetland boundary and the definitive determination of the extent of “wetlands” on the site. The portion of the lot that is purported to meet Lot Shape Factor is required to provide at least 87,120 s.f. of lot area outside of wetlands. o Our calculation of the Parcel A Shape Factor based on the actual approved wetland boundary line yields an area of approximately 85,518 s.f. and a Shape Factor of approximately 22.3, neither of which comply with the requirements of the Zoning Bylaw. ¾ Regarding the “20’ Wide – Right Of Way” that passes through Parcel A: o The definition of “Lot” specifically excludes area bisected by a street. Curiously, the property owners followed this requirement relative to Sunset Point (which they claim to be their frontage), and ignored it relative to the “20’ Wide – Right Of Way” that passes through the northerly portion of Parcel A. This private way is part of a continuous private way system otherwise known as Windswept Way that provides driving access to more than a dozen developed properties along it. It is our view that this private way is a street in the context of the Zoning Bylaw and Subdivision Regulations and that it should be excluded from calculations associated with Lot Area and Lot Shape Factor, as should the land to the north of it, because it is not contiguous with the portion of Parcel A to the south of it. o Section 240-7.D “Lot shape factor/residential districts and the associated definition found in Section 240-128 stipulate that a portion of the lot may be used for Lot shape factor where such portion is “that portion of a lot intended as the site for building”2 2 Section 240-128, definition of Shape Factor (Lot Shape Factor). Zoning Board of Appeals February 23, 2024 Page 3 of 3 dan@legacy-ce.com 508-376-8883(o) 508-868-8353(c) 730 Main Street Suite 2C Millis, MA 02054 and where “the proposed building site is located on a portion of a lot that itself meets the minimum lot area requirement and has a shape factor not exceeding 22...”3 A private way that is used as a street by many surrounding property owners is not buildable and not available to be used as the site for building. This secondary stipulation reinforces our conclusions above that the private way should be excluded from calculations associated with Lot Area and Lot Shape Factor, as should the land to the north of it, because it is not contiguous with the portion of Parcel A to the south of it. o Excluding the northerly private way from these calculations yields a total available lot area of approximately 76,511 s.f., well short of the required 87,120 s.f. Do not hesitate to contact me should you have any questions or comments. With Appreciation, LEGACY ENGINEERING LLC Daniel J. Merrikin, P.E. President 3 Section 240-7.D, Lot shape factor/residential districts. Digitally signed by Daniel J. Merrikin, P.E. Date: 2024.02.23 09:05:58 -05'00'