HomeMy WebLinkAboutSR-2023-042 Baker and Moir 240 and 250 Windswept Way OST appeal of Building Permit
Town of Barnstable
Planning and Development Department
Elizabeth Jenkins, Director
Staff Report
Appeal No. 2023-042 – Baker and Moir
Appeal of Building Commissioners Issuance of a Building Permit
Date: January 11, 2024
To: Zoning Board of Appeals
From: Anna Brigham, Principal Planner
Appellants: Patricia Baker and David Moir
43 Sunset Pt, and 220 Windswept Way, Osterville, MA
Property Owner: Janet Holian, Trustee of Holian Family Realty Tr.
Subject Property: 240 and 250 Windswept Way, Osterville, MA
Assessor's Map/Parcel: 051/012
Zoning: Residence F-1 (RF-1)
Filed: November 29, 2023 Hearing: January 24, 2024 Decision Due: March 8, 2024
Copy of Notice
Patricia Baker and David D. Moir, as Appellants, are appealing the issuance of Building Permit BLDR-
23-780 issued on November 1, 2023 to EJ Jaxtimer for the construction of a 3,100 sq. ft., 3-bedroom
home for Janet Holian, Trustee of Holian Family Realty Tr. The subject property is located at 240
Windswept Way, Osterville, MA and 250 Windswept Way, Osterville, MA as shown on Assessor’s Map
051 as Parcel 012-001 and 012-000, respectively. It is located in the Residence F-1 (RF-1) and the
Resource Protection Overlay District (RPOD).
Appeal
This matter involves an appeal of Building Permit BLDR-23-780 for the construction of a Single Family
Dwelling at 240 Windswept Way dated November 1, 2023.
According to the Appeal, the argument is that without relief from the Zoning Board of Appeals to rescind
the building permit, the Appellants will suffer harms in subject areas which the Zoning Ordinance and
the Subdivision Rules and Regulations intend to protect abutting property owners and residents
against. The relevant protections include:
Chapter 240-2 Purpose
Chapter 240-128 Definitions
Chapter 13 District Regulations
Chapter 240-7 (C) Exclude wetlands from Lot Area Calculations
Chapter 240-7 (D) and 128 and Subdivision Regulations Chapter 801-20
Chapter 240-36 RPOD
Chapter 240-118 Growth Management/Determination of Buildability
Subdivision Regs Chapter 801-2 Purpose
Subdivision Regs Chapter 801-3 Definition of Frontage
Subdivision Regs Chapter 801-12 B Standards of Adequacy for Existing Ways
Subdivision Regs Chapter 801-19 (A) (11) Requirements that applicant provide evidence of
right of access
Zoning Board of Appeals – Planning and Development Department Staff Report
Appeal No. 2023-042 – Baker and Moir
2
The Conclusion of the Appeal states that for the reasons stated, the Appellant’s request that the Zoning
Board of Appeals rescind the Building Permit issued to the Permit Holder.
Background
The parcel addressed as 240 Windswept Way was divided by an Approval Not Required plan (ANR)
from 250 Windswept Way in June 2022. At the Planning Board hearing, the ANR was approved and
the proposed division of land did not require Zoning Board of Appeals action.
Procedural Review
This appeal was filed with the Town Clerk’s office and the Planning and Development Department,
Zoning Board of Appeals Office on November 29, 2023. The Building Permit is dated November 1,
2023.
Findings
The Board shall make findings when either voting to uphold or overrule the Building Commissioner’s
issuance of a Building Permit. It is the Board’s responsibility to determine if the Building Commissioner
properly issued the Building Permit and did not violate the Zoning Ordinance.
Should the Board wish to uphold the Building Commissioner’s decision to issue a Building Permit, the
Board should consider the following finding:
1. The Board affirms the Building Commissioner’s issuance of BLDR-23-780 for the construction
of a single family dwelling at 240 Windswept Way, Osterville does not violate the Zoning
Ordinance.
Should the Board wish to overrule the Building Commissioner’s decision to issue a Building Permit,
below is a draft finding for the Board’s potential consideration.
1. The Board finds that the issuance of BLDR-23-780 is in violation of the Zoning Ordinance.
Procedural Information
Upon making findings, the Board may choose to vote to:
• Uphold the Building Commissioner’s issuance of Building Permit BLDR-23-780; or
• Overrule the Building Commissioner’s issuance of Building Permit BLDR-23-780,
A vote of 4 members of the Board is required to overrule the Building Commissioner’s decision.
CC: Appellant (c/o Attorney Tymann)
Attachments: Appeal