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HomeMy WebLinkAbout6-10-2024 Letter Tymann to Barnstable Planning Board Opposing ANR Plan45 Bromfield Street 6th Floor Boston, MA 02108 617.933.9490 Benjamin B. Tymann Tel.: 617.933.9490 btymann@tddlegal.com June 10, 2024 BY EMAIL (karen.pina@town.barnstable.ma.us) Stephen Robichaud, Chair Barnstable Planning Board 367 Main Street Hyannis, MA 02641 ATTN: Karen Pina, Principal Assistant Re: 250 Windswept Way – Proposed ANR Plan Dear Chair Robichaud and Members of the Board: I represent David Moir, owner of 220 Windswept Way, and Patricia Baker, owner of 43 Sunset Point, each of whom is a direct abutter to 250 Windswept Way, the subject property for a proposed Approval Not Required (ANR)Plan, dated May 14, 2024 (“New Proposed ANR Plan”), currently before the Planning Board. The New Proposed ANR Plan seeks to create a new buildable lot, “Parcel A,” to the north of the portion of 250 Windswept Way currently improved with a single-family house and several outbuildings, which tract is called “Parcel B” under the plan. I. Summary of My Clients’ Position As the Board may be aware, in March 2024 the Building Department suspended the Building Permit it had issued in November 2023 for the construction of a single-family house on “Parcel A,” which was called “240 Windswept Way” under that permit. The issuance of that Building Permit was based on an ANR Plan for this property that the Board endorsed in July 2022 (“July 2022 ANR Plan”). My clients appealed that Building Permit to the Zoning Board of Appeals, on three primary grounds, each discussed below. Following my clients’ ZBA appeal filing, the property owner, Ms. Holian, conceded the July 2022 ANR Plan was invalid; in turn, the Building Department suspended the Building Permit. Now Ms. Holian is before you again seeking endorsement of the New Proposed ANR Plan. But this new plan only attempts to cure one of the three material defects in the July 2022 ANR Plan: Lot Shape Factor (“LSF”). The New Proposed ANR Plan makes no attempt to remedy the other two deficiencies that make Parcel A a non- buildable lot: its lack of legal frontage and its insufficient lot area. Parcel A does not have legal frontage because it has no access to the way it claims as its frontage, Sunset Point. Massachusetts case law, as well as Barnstable’s Subdivision Regulations specifically (at §§ 801-12(A), -12(F) & -19(A)(11)), both unequivocally require a buildable lot to have access to its frontage. Barnstable Zoning Board of Appeals June 10, 2024 2 Further, Parcel A fails the Zoning By-laws’ Lot Area minimum of 87,120 SF for buildable lots in the Residence F-1 (RF-1) Zoning District and the Resource Protection Overlay District (RPOD). Under the New Proposed ANR Plan, Parcel A purports to have a countable Lot Area of 87,139 SF – just 19 SF over the minimum – once taking LSF and wetlands exclusions into account. But approximately 9,400 SF of that land lies on a road, Windswept Way, or on the other side of that road. See New Proposed ANR Plan annotated by Daniel E. Merrikin, P.E., attached hereto at Exhibit A. This land cannot be counted as part of the same “Lot” under Barnstable’s Zoning By- laws. A “Lot” is “[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.” Zoning By-laws, § 240-128 (emphasis added). Accordingly, approximately 9,400 SF must be excluded as countable Lot Area for Parcel A, which brings its countable Lot Area down to approximately 77,700 SF and rendering it non-buildable. For either one of these reasons – Parcel A’s lack of legal frontage and/or its insufficient lot area – the New Proposed ANR Plan cannot lawfully be endorsed by the Planning Board. II. Procedural History in Brief This New Proposed ANR Plan is at least the fourth version of an ANR plan for 250 Windswept Way that its owner Ms. Holian has been put before the Board in the last two years in her effort to create a new building lot that Massachusetts and Barnstable law does not allow. In 2022, the owner’s representatives, over multiple sessions before this Board, submitted various revised plans to try to indicate compliance with LSF. Then, a determination was apparently made by the owner’s development team that LSF 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 the ZBA for a variance on LSF. 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 the LSF problem and, before the ZBA could hear or take action on the variance application, withdrew it. This Board, on or about July 13, 2022, then endorsed what at that point was at least the third version of an ANR Plan that purported to comply with LSF and other requirements for Parcel A and Parcel B. The rest of the relevant procedural history,1 in short, is as follows: • On November 1, 2023, the Building Department issued a Building Permit for the construction of an approximately 3,100 SF single-family home, among other improvements, on Parcel A. • On November 29, 2023, this office, on behalf of Mr. Moir and Ms. Baker, filed a timely appeal with the ZBA. The appeal identified the three major 1 The permits and approvals sought and sometimes issued for “Parcel A”/240 Windswept Way, and for the built portions of 250 Windswept Way (i.e., “Parcel B” under the ANR Plans), are extensive. For example, Building Department records indicate that two building permits issued in 2023 for house and outbuilding construction on 250 Windswept Way (a/k/a “Parcel B”), in addition to associated plumbing and gas permits, have been “Stopped” by the Department. See permit portal printout for BLDR-23-777 and BLDR 23-781, attached hereto at Exhibit C. I have tried in the body of this letter to cover just those parts of this property’s procedural history directly relevant to the New Proposed ANR Plan presently before the Board. Barnstable Zoning Board of Appeals June 10, 2024 3 reasons Parcel A was not – notwithstanding the endorsed July 2022 ANR Plan – a legally buildable lot: (1) lack of legal frontage; (2) insufficient lot area; and (3) incorrectly-calculated and insufficient LSF. See Moir/Baker ZBA Appeal Application attached hereto at Exhibit D. • In February 2024, in advance of what was expected to be the first substantive ZBA hearing session on the Moir/Baker Appeal, they filed detailed letters from me and Mr. Merrikin further detailing why Parcel A cannot qualify as a buildable lot and the ZBA should therefore revoke the Building Permit. See my and Mr. Merrikin’s letters to ZBA, both dated February 23, 2024, and attached hereto at Exhibits E & F, respectively. Mr. Merrikin’s letter pointed out, among other plan defects, that Ms. Holian’s LSF calculations were not based on the correct wetlands delineations on the property. • In March 2024, following a further ZBA continuance requested by Ms. Holian’s counsel, Michael Ford, and agreed to by my clients, Attorney Ford notified the Building Department that his client recognized LSF had been incorrectly calculated – thus conceding the same LSF defect that the Moir/Baker Appeal called out. Attorney Ford did not, on the other hand, address the other two defects (frontage and lot area) underlying the Building Permit. • On or about March 25, 2024, Deputy Building Commissioner Jeff Carter suspended the Building Permit based on the LSF defect. See Deputy Commissioner Carter Letter to EJ Jaxtimer, attached hereto at Exhibit G. The frontage and lot area defects were not presented to Deputy Commissioner Carter and were therefore unaddressed in his suspension letter. • With the Building Permit that is the subject of the Moir/Baker Appeal being suspended, the ZBA continued the hearing on that appeal pending Ms. Holian’s attempt to obtain this Board’s endorsement on the New Proposed ANR Plan. III. 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 Regulations, which is the applicable standard for determining whether or not an ANR Lot has legal frontage. Barnstable Zoning Board of Appeals June 10, 2024 4 A. Parcel A has no access to Sunset Point In Form A to her ANR Plan application, Ms. Holian indicated as follows: See Exhibit H attached hereto. But unfortunately, it is untrue that Sunset Point “provides adequate access” to Parcel A. In fact, it provides no access at all. Parcel A accesses Windswept Way, not Sunset Point. This is clearly shown on the New Proposed ANR Plan itself (Exhibit A - New Proposed ANR Plan, annotated), and is also obvious on the ground. 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 (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. Barnstable Zoning Board of Appeals June 10, 2024 5 B. Windswept Way also cannot provide Parcel A with 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, stricter than – Massachusetts law. See, e.g., Tessier v. Frattaroli, 2022 WL 2180167 (Mass. Land Ct. June 16, 2022) (Foster, J.), 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, 1962.2 Second, as the New Proposed ANR Plan itself concedes in its approximation of Windswept Way’s 20-foot width, that 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] 2 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 June 10, 2024 6 § 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’s right-of-way (ROW) is, at most, 20 feet wide, not 33. See Exhibit A. It is a dirt and gravel road where it abuts Parcel A, so fails Surface Type. Its Surface Width (i.e., the portion that is used for driving surface), if measuring the drivable dirt/gravel surface, is approximately 10- 11 feet based on the ANR plan and certainly no more than 15 feet.3 IV. Parcel A has insufficient lot area Barnstable’s Zoning Ordinance 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 street.” Section 240-128. This means that the substantial amounts of land in Parcel A that rest either on Windswept Way, or on the other side of it, cannot be part of the same “Lot” as the rest of proposed Parcel A. As shown on Mr. Merrikin’s annotated New Proposed ANR Plan at Exhibit A, the required subtraction of this excluded land from Parcel A puts it far below the required Lot Area of 87,120 for this zoning district. The New Proposed ANR Plan claims Parcel A’s countable area as just 19 SF above the minimum threshold.4 The excluded land on Windswept Way, or on the other side of it, is approximately 9,400 SF according to Mr. Merrikin’s calculations. This puts the countable lot area for Parcel A at approximately 77,700 SF or less. Accordingly, Parcel A fails the Lot Area requirement as well. It is not a buildable lot and, as a result, the Board should not endorse the New Proposed ANR Plan. 3 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. 4 The New Proposed ANR Plan has left Parcel B with a claimed LSF of 21.98. That is just .02 below the LSF limit of 22. This is an additional concern because, in addition to the razor-thin claimed margin of compliance, this New Proposed ANR Plan appears to be using the same wetland line delineated in 2021 that changed in 2023. As a result, this Board cannot reasonably ascertain if LSF for Parcel B is actually met. Ms. Holian should be required to seek written confirmation from the Conservation Commission on the current wetland line on Parcel B, which in turn would clarify whether or not Parcel B’s LSF under the New Proposed ANR Plan is more or less than 22. Barnstable Zoning Board of Appeals June 10, 2024 7 V. Conclusion For the reasons stated herein, direct abutters Mr. Moir and Ms. Baker respectfully request that the Board vote not to endorse the New Proposed ANR Plan. Thank you for your attention to these materials. I look forward to answering any questions the Board may have about my clients’ position at your meeting on this application. Sincerely, Benjamin B. Tymann Enclosures cc: Zoning Board of Appeals c/o Anna Brigham, Principal Planner Jeff Carter, Deputy Building Commissioner Michael Ford, Esq. Daniel Merrikin, P.E.