HomeMy WebLinkAbout6-10-2024 Exhibt to Tymann Lt Exs. A-H to PB LtrEXHIBIT A
NOTE: THIS IS A MARKUP OF A RECORDPLAN PROVIDED FOR ILLUSTRATIONPURPOSES ONLY
PORTIONS OF 20'RIGHT-OF-WAYWITHIN PARCEL A
PORTIONS OFPARCEL A SEPARATEDBY RIGHT-OF-WAY
EXHIBIT B
EXHIBIT C
250 WINDSWEPT WAY, Osterville, MA 02655
Records Details
Property Owner
HOLIAN, JANET TR HOLIAN FAMILY REALTY TRUST
250 WINDSWEPT WAY
OSTERVILLE, MA 02655
Records
Record #Record Type Status
BLDR-23-781 Building Permit - Residential Stopped
BLDR-23-777 Building Permit - Residential Stopped
157833 VP - Gas Permit - Historical Permit Stopped
126826 VP - Plumbing Permit - Historical Permit Stopped
126813 VP - Gas Permit - Historical Permit Stopped
95067 VP - Gas Permit - Historical Permit Stopped
GAS-23-675 Gas Permit Active
Record #Record Type Status
ELEC-23-1053 Electrical Permit Active
BLDR-23-573 Building Permit - Residential Active
ELEC-23-944 Electrical Permit Active
DSCP-23-34 Disposal System Construction Permit Active
BLDR-22-1676 Building Permit - Residential Active
ELEC-22-1061 Electrical Permit Active
ELEC-22-1041 Electrical Permit Active
GAS-22-574 Gas Permit Active
ELEC-22-819 Electrical Permit Active
ELEC-22-768 Electrical Permit Active
ELEC-22-767 Electrical Permit Active
ELEC-22-757 Electrical Permit Active
BLDR-21-1385 Building Permit - Residential Active
BLDR-21-1384 Building Permit - Residential Active
BLDR-21-1348 Building Permit - Residential Active
BLDR-21-1130 Building Permit - Residential Active
ELEC-21-1891 Electrical Permit Active
BLDR-21-550 Building Permit - Residential Active
ELEC-22-2600 Electrical Permit Complete
PERC-22-196 Percolation Test Complete
ELEC-22-930 Electrical Permit Complete
GAS-22-615 Gas Permit Complete
GAS-22-520 Gas Permit Complete
GAS-22-519 Gas Permit Complete
PLUM-22-385 Plumbing Permit Complete
PLUM-22-384 Plumbing Permit Complete
PLUM-22-383 Plumbing Permit Complete
GAS-22-142 Gas Permit Complete
Record #Record Type Status
ELEC-21-2702 Electrical Permit Complete
PLUM-21-1370 Plumbing Permit Complete
ELEC-21-2397 Electrical Permit Complete
BLDR-21-1347 Building Permit - Residential Complete
PERC-21-180 Percolation Test Complete
ELEC-21-1401 Electrical Permit Complete
PLUM-21-676 Plumbing Permit Complete
EXPR-21-741 Expedited Building Permit - Residential Complete
ELEC-21-530 Electrical Permit Complete
BLDR-20-3692 Building Permit - Residential Complete
95059 VP - Building Permit - Historical Permit Complete
95046 VP - Electrical Permit - Historical Permit Complete
87117 VP - Building Permit - Historical Permit Complete
87101 VP - Plumbing Permit - Historical Permit Complete
86864 VP - Building Permit - Historical Permit Complete
86871 VP - Electrical Permit - Historical Permit Complete
86840 VP - Electrical Permit - Historical Permit Complete
85947 VP - Gas Permit - Historical Permit Complete
85411 VP - Gas Permit - Historical Permit Complete
85397 VP - Plumbing Permit - Historical Permit Complete
85394 VP - Electrical Permit - Historical Permit Complete
85410 VP - Building Permit - Historical Permit Complete
77508 VP - Gas Permit - Historical Permit Complete
Town of Barnstable, MA
Your Profile
Your Records (/dashboard/records)
Portal powered by OpenGov
Resources
Search for Records (/search)
Claim a Record (/claimRecord)
Employee Login (https://barnstablema.workflow.opengov.com)
EXHIBIT D
Tab A
Nov. 29, 2023
Appeal of Building Permit No. BLDR-23-780
1
ADDENDUM A
to Application for Other Powers (“Application”) to Barnstable Zoning Board of Appeals
Pursuant to Barnstable Zoning By-law § 240-88 and Mass. Gen. L. c. 40A, §§ 8 & 15
Appeal of Building Permit No. BLDR-23-780 (240-250 Windswept Way, Osterville)
I. Introduction
This is an appeal brought to the Barnstable Zoning Board of Appeals (“ZBA”) under
Barnstable Zoning By-law (“Zoning By-law”) § 240-88, Mass. Gen. L. c. 40A, §§ 8 & 15,
challenging the issuance, on November 1, 2023, by the Building Department of the Town of
Barnstable (“Town”) of Building Permit No. BLDR-23-780 (the “Building Permit”) to EJ
Jaxtimer, General Contractor for Janet Holian, Trustee of the Holain Family Realty Trust
(collectively, the “Permit Holder”) for the construction of a 3100 square foot, 3-bedroom, 3-
bathroom single-family residence with detached garage, septic system, and driveway (the
“Project”) at 240-250 Windswept Way, Osterville (the “Holian Property” or the “Locus”).
The Building Permit, a true copy of which is attached as Addendum B to the Application,
purports to authorize the Project at “240 Windswept Way” a/k/a “Parcel A” on an Approval Not
required (“ANR”) Plan, dated June 16, 2022, and endorsed by a Barnstable Planning Board
representative on July 13, 2022. A true copy of the ANR Plan is attached to the Application at
Addendum C.
This is appeal is brought by direct abutters to the Holian Property, i.e.: David D. Moir,
resident of 220 Windswept Way and Trustee of the property’s owner, Sandy House Realty Trust,
and Patricia Baker, resident of 43 Sunset Point and Trustee of the property’s owner, Sunset Point
Realty Trust.
II. Applicants’ Standing and Relevant Zoning By-law and Subdivision Regulation
Provisions
The Applicants are each direct abutters to the Holian Property and are aggrieved by the
Project’s impacts, further delineated below. As direct abutters, Applicants hold a rebuttable
presumption of standing under Massachusetts law. Murchison v. Zoning Bd. of Appeals of
Sherborn, 485 Mass. 209, 213 (2020) (direct abutters “enjoy a rebuttable presumption that they
are ‘persons aggrieved’ by the board's decision affirming the grant of a foundation permit to the
defendants” (internal citations omitted)).
Without relief from the ZBA to rescind the unlawfully-issued Building Permit, the
Applicants and their respective properties will suffer particularized harms in subject areas which
the Zoning By-law and the Town’s Subdivision Regulations intend to protect abutting property
owners and residents against. The relevant protections that the Town affords property owners
include, without limitation:
Nov. 29, 2023
Appeal of Building Permit No. BLDR-23-780
2
• Zoning By-law, § 240-2 (Purpose): “The purpose of this chapter is to promote the
health, safety, convenience, … and general welfare of the inhabitants of the Town
of Barnstable, to protect and conserve the value of the property within the Town,
… and to secure safety from seasonal or periodic flooding, fire, congestion or
confusion, all in accord with the General Laws, Chapter 40A, as amended. For this
purpose, the height, number of stories, size of buildings and structures, size and
width of lots, the percentage of lot that may be occupied, the size of yards, courts
and other open spaces, the density of population and the location and use of
buildings, structures and land for … residence or other purposes are regulated
within the Town of Barnstable as hereinafter provided.”
• Zoning By-law, § 240-128, including, without limitation, the definition of “Lot”:
“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.” See also Subdivision Regulations,
§ 801-3 (“An area of land delineated by lot boundary lines in one ownership and
not divided by a public or private way").
• Zoning By-law, § 240-13 (RF-1 District Regulations), including, without
limitation, Minimum Lot Area and Minimum Lot Frontage.
• Zoning By-law, § 240-7(C): exclusion of all wetlands from Lot Area calculations
• Zoning By-law, § 240-7(D) & -128 and Subdivision Regulations, § 801-20: Lot
Shape Factor to restrict construction on irregularly shaped lots.
• Zoning By-law, § 240-36 (Resource Protection Overlay District), including,
without limitations, its specified protections against (a) “nitrogen contamination by
reducing impacts from septic systems, fertilizers, and runoff from impervious
surfaces;” (b) deterioration of water quality; (c) groundwater contamination; and
(d) over-development.
• Zoning By-law, § 240-118 (Growth Management/Determination of
Buildability): “The Town Manager shall establish a procedure for issuance of
determinations of buildability to establish the residential development potential of
a lot or lots. Such procedure shall include consultation with the Planning Board if
such lot or lots are included in an … approval-not-required plan. Other boards and
officials may be consulted to determine potential limitations on development.”
• Subdivision Regulations, § 801-2 (Purpose), including, without limitation, its
protections concerning “the provision of adequate access to … lots … by ways that
will be safe and convenient for travel; for lessening congestion on such ways and
in the adjacent public ways; for reducing danger to life and limb in the operation of
motor vehicles; for securing safety in the case of fire, flood, panic and other
Nov. 29, 2023
Appeal of Building Permit No. BLDR-23-780
3
emergencies; [and] for ensuring compliance with the applicable zoning
ordinances.”
• Subdivision Regulations, § 801-3, including its definition of “Frontage,” as
follows: “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.” (emphasis added).
• Subdivision Regulations, § 801-3, including its definition of “Subdivision” and
its requirement that “every lot within said tract has frontage in compliance with the
Zoning [By-law] on … (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.” (emphasis added); see also Mass. Gen.
L. c. 41, § 81L (“Subdivision” definition).
• Subdivision Regulations, § 801-12B (as referenced in § 801-3’s Subdivision
definition): Standards of Adequacy for Existing Ways.
• Subdivision Regulations, § 801-19(A)(11): requirement that ANR Plan applicant
provide “[e]vidence of right of access over a private way that provides access and
frontage.”
III. Summary Grounds for Appeal
The endorsement of this ANR Plan, like most such endorsements in Massachusetts, bears
the disclaimer: “No determination as to compliance with the Zoning Ordinance requirements has
been made or intended by the above endorsement.” Such ANR Plan disclaimers are wholly
appropriate because, as the Massachusetts courts have stated repeatedly (and by way of example
in the two Land Court decisions excerpted below):
[A]n ANR plan alone cannot establish as a matter of law that the planning board
made the determination that the [right of way] was adequate for frontage under
the ordinance…. [T]he Appeals Court [has] rejected the proposition that an
ANR plan, by itself, was proof that the planning board had concluded that the
plan came within the exception set out in G.L. c. 41, § 81L [i.e., determination
of “way in existence” for frontage].
Tessier v. Frattaroli, 2022 WL 2180167, at *14 (Mass. Land Ct. June 16, 2022), citing Corrigan
v. Board of Appeals of Brewster, 35 Mass. App. Ct. 514, 518 (1993).
- and –
It is important to note that many other significant issues may be preserved for
future consideration because of the limited import of an ANR endorsement. The
Nov. 29, 2023
Appeal of Building Permit No. BLDR-23-780
4
mere fact that a plan has an ANR endorsement does not guarantee the issuance
of a building permit. “An endorsement under § 81P [for ANR plans] does not
mean that the lots within the endorsed plan are buildable lots.”
Haszard v. Planning Bd. of Town of Boxford, 2005 WL 2592686, at *4 (Oct. 14, 2005), quoting
Lee v. Bd. of Appeals of Harwich, 11 Mass. App. Ct. 148, 152 (1981).
In this appeal of the Building Permit, the Applicants intend to demonstrate during the ZBA
hearing a range of zoning violations that, notwithstanding the existence of the ANR Plan, render
Parcel A of the Holian Property a non-buildable lot. These violations include, without limitation:
1. Insufficient Frontage
The Locus lacks legal frontage. The “way” that the Permit Holder asserted during the
Planning Board’s ANR Plan proceedings was a way providing frontage, Sunset Point, cannot
provide frontage because there is no access to that way from the Locus, and no access to the Locus
from that way. Sunset Point access is truly illusory, as demonstrated even on the ANR Plan itself.
The notion of Sunset Point providing access or frontage is also wholly at odds with all credible
historical plans, including, critically, the registered Land Court Plan set 15354-A, filed in 1933.
The only theoretical frontage for the Locus is Windswept Way, which is depicted on
the ANR Plan as the “20’ Wide – Right of Way” at the Locus’s northern boundary. But Windswept
Way is legally insufficient frontage for the Locus because it fails both the retrospective test of
being a qualifying “way in existence” when the Town adopted the Subdivision Control Law in
1962 (see Subdivision Regulations, § 801-3 (Subdivision/Frontage definition)) as well as the
current-day test of meeting the Standards of Adequacy for Existing Ways (see § 801-12B). Sunset
Point, already disqualified because the Locus does not access it, also fails these dual tests for a
way in existence sufficient for frontage.
2. Insufficient Lot Area
The Permit Holder materially understated the amount of excludable wetlands on the
Holian Property for purposes of determining Buildable Lot Area under Zoning By-law, § 240-7(C).
The Permit Holder also failed to show the amount of excludable land in Windswept Way and
unbuildable land cut off by that way. As the Applicants in this appeal intend to demonstrate
through expert testimony, a correct calculation results in Parcel A falling below Minimum Lot Area
in a RF-1/RPOD zone of 87,120 square feet.
3. Non-compliant Lot Shape Factor
During the Planning Board’s ANR Plan proceedings, the Permit Holder and their
consultants created several iterations of their plan to try to transform both Parcel A, as well as the
newly-created “Parcel B” on which the Holian’s existing residential compound is sited, in such a
way to make them compliant with Lot Shape Factor under the Zoning By-laws. As the Applicants
Nov. 29, 2023
Appeal of Building Permit No. BLDR-23-780
5
in this appeal intend to demonstrate through expert testimony, this effort by the Permit Holder was
unsuccessful. Neither Parcel A nor Parcel B complies with Lot Shape Factor.
4. Worsening non-conformities on “Parcel B”
In order to create Parcel A as a purportedly buildable lot (which, as stated above, it is
not), the Permit Holder has worsened the pre-existing non-conformities of new “Parcel B” (a/k/a
250 Windswept Way). These worsened and/or new non-conformities include, but are not limited
to, Lot Shape Factor as well as setback and lot coverage problems for structures on “Parcel B.”
IV. Conclusion
For these and other reasons to be amplified at the hearing on this matter,1 the Applicants
respectfully request that the ZBA rescind the Building Permit issued to the Permit Holder.
1 In accordance with the ZBA’s rules and guidelines, the Applicants intend to file supplemental materials
(e.g., further legal briefing; submissions from consulting engineers, surveyors, or other qualified
professionals) prior to the opening of the ZBA’s hearing on this appeal, as well as during the course of the
hearing if it proceeds to more than one session.
Tab B
11/7/23, 2:31 PM about:blank
about:blank 1/2
Town of Barnstable Building
PermitPost This Card So That it is Visible From the Street - Approved Plans Must be Retained on Job and this Card Must be Kept
Posted Until Final Inspection Has Been Made.
Where a Certificate of Occupancy is Required, such Building shall Not be Occupied until a Final Inspection has been made.
Permit No. BLDR-23-780 Applicant Name: EJ Jaxtimer
Approvals
Structure
Foundation:
Sheathing:
Framing 1:
Framing 2:
Chimney
Insulation
Final
Plumbing/Gas
Rough Plumbing:
Final Plumbing:
Rough Gas:
Final Gas:
Electrical
Service:
Rough:
Final:
Low Voltage Rough:
Low Voltage Final:
Health
Final:
Fire Department
Final:
Date Issued: November 1, 2023 Current Use: Single Family Dwelling
Permit Type: New Construction Expiration Date: May 1, 2024
Location: 240 WINDSWEPT WAY Osterville Map/Lot: 051-012-001
Owner of Record: HOLIAN, JANET TR HOLIAN FAMILY REALTY TRUST Zoning:RF-1
Address:OSTERVILLE , MA 02655
Contractor Name: ERNEST J JAXTIMER
E J JAXTIMER BUILDER INC.
Description: Construct 3100 s.f. 3 bedroom home
Contractor License: CS-003251
110609
Project Review
Request:
Certified foundation as-built with top of foundation
elevation required before frame.Est. Project Cost: 1,375,200
Date:November 1, 2023
____________________________________________________________________________________________________________________
This permit shall be deemed abandoned and invalid unless the work authorized by this permit is commenced within six months after issuance. All
work authorized by this permit shall conform to the approved application and the approved construction documents for which this permit has
been granted. All construction, alterations and changes of use of any building and structures shall be in compliance with the local zoning by-laws
and codes. This permit shall be displayed in a location clearly visible from access street or road and shall be maintained open for public
inspection for the entire duration of the work until the completion of the same. The Certificate of Occupancy will not be issued until all applicable
signatures by the Building and Fire Officials are provided on this permit. Minimum of Five Call Inspections Required for All Construction Work
The Certificate of Occupancy will not be issued until all applicable signatures by the Building and Fire Officials are provided on this permit.
Minimum of Five Call Inspections Required for All Construction Work:
1. Foundation or Footing
2. Sheathing Inspection
3. All Fireplaces must be inspected at the throat level before firest flue lining is installed
4. Wiring & Plumbing Inspections to be completed prior to Frame Inspection
5. Prior to Covering Structural Members (Frame Inspection)
6. Insulation
7. Final Inspection before Occupancy Electrical, Plumbing, and Mechanical Installations.
____________________________________________________________________________________________________________________
Where applicable, separate permits are required for
Persons contracting with unregistered contractors do not have access to the guaranty fund" (as set forth in MGL c.142A).
BCurrent Use:BCurrent Use:Single Family Dwelling BSingle Family Dwelling
Expiration Date:BExpiration Date:May 1, 2024 BMay 1, 2024
Map/Lot: BMap/Lot: 051-012-001 B051-012-001
HOLIAN, JANET TR HOLIAN FAMILY REALTY TRUST BHOLIAN, JANET TR HOLIAN FAMILY REALTY TRUST Zoning:BZoning:RF-1BRF-1
Contractor Name:BContractor Name:ERNEST J JAXTIMERBERNEST J JAXTIMER
E J JAXTIMER BUILDER INC.BE J JAXTIMER BUILDER INC.
Contractor License:BContractor License:CS-003251BCS-003251
110609B110609
ed foundation as-built with top of foundationBed foundation as-built with top of foundation Est. Project Cost:BEst. Project Cost: 1,375,200 B 1,375,200
Date:BDate:November 1, 2023BNovember 1, 2023
B B____________________________________________________________________________________________________________________B____________________________________________________________________________________________________________________
This permit shall be deemed abandoned and invalid unless the work authorized bBThis permit shall be deemed abandoned and invalid unless the work authorized by this permit is commenced within six months after issuance. AllBy this permit is commenced within six months after issuance. All
work authorized by this permit shall conform to the approved application and the approved construction documents for which this permit hasBwork authorized by this permit shall conform to the approved application and the approved construction documents for which this permit has
been granted. All construction, alterations and changes of use of any building and structures shall be in compliance with the local zoning by-lawsBbeen granted. All construction, alterations and changes of use of any building and structures shall be in compliance with the local zoning by-laws
and codes. This permit shall be displayed in a location clearly visible frBand codes. This permit shall be displayed in a location clearly visible from access street or road and shall be maintained open for publicBom access street or road and shall be maintained open for public
inspection for the entire duration of the work until the completion of the same. The CertiBinspection for the entire duration of the work until the completion of the same. The CertiBfiBficate of Occupancy will not be issued until all applicableBcate of Occupancy will not be issued until all applicable
cials are provided on this permit. Minimum of Five Call Inspections Required for All Construction WorkBcials are provided on this permit. Minimum of Five Call Inspections Required for All Construction Work
cate of Occupancy will not be issued until all applicable signaturBcate of Occupancy will not be issued until all applicable signatures by the Building and Fire OBes by the Building and Fire OffiBfficials are provided on this permit.Bcials are provided on this permit.
11/7/23, 2:31 PM about:blank
about:blank 2/2
Building plans are to be available on site:
All Permit Cards are the property of the APPLICANT-ISSUED RECIPIENT
Tab C
EXHIBIT E
45 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.
Sincerely,
Barnstable Zoning Board of Appeals
February 23, 2024
7
Enclosures
cc: Michael Ford, Esq.
EXHIBIT F
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'
EXHIBIT G
EXHIBIT H