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HomeMy WebLinkAbout0428 COMMERCE ROAD - Health �I a 8 Comm��. 12Dad. Ejt}rnsd�n.btQ. �317- Oa)-Oo �, - \ 7 September- 22 19.78 x Nlr: William Weller`. ; 139 Indian,-Memorial Drive -South Yarmouth, Massachu;setts '02664 _ Dear Mr. -We ller µ You- -are granted. a-variance to• install. a sewage leaching pit 75 - fee from .wetlands at 'Lo 10; Route 6A� :'Commerce .Road Barnstable, in lieu of 'the the required, 100 feet ,jai th,: the following conditions: The,,sewage. system must be 'gravity, flow. x No �3umps are F authorized without--prior approval` of Environmental Quality Engineering. k, The"system must be, installed : n strict accordance with the`, designing. engineer's plan.., (31, The designing engineer`must'supervise construction- of - D the `system ands certify, in writing; to the "Board of ; Heilth that- his design.has been .compl ed with prior -to issuance of- a compliance- or occupancy permit. `- (4Y ' Prior to any- construction., the applicant must, ,receive : . approval:• of the Conservation Commission. All other .provisions contained ,in- Title ` ..Environmental Code :and Town of-Barnstable Health. R_egu- -lations" must be strictly adhered to. (6) ,Thea dwelling :is limited to three bedrooms. No-'additions , R will be authorized. r (7) -This var ance :expires. November 1, .1979 Very truly yours _ Ann Jane E au Chairman' _ Y. Ro ert. L.yChilds r 4 aridelsthm, M. D. BOARD OF HEALTH - ..cc Conservation .Commission '.Dan_,.Fern � y i r DOWN CAPE ENGINEERING m ' , Piccadilly Square Lffo (D Route 6A LETTER YARMOUTH, MA 02675 Phone 362-4541 Date z To G ''��®..._®2 sr? � ..... . .. Subject ✓_. � f .,. ,'J 7 .ems _. ....... ...................................... ElPlease reply ElNo reply necessary /G4 21 FORM 186-2 Available from ees Inc.,Townsend,Mass.01469 r TOWN OF BARNSTABLE Offlac of own eounaeC 397 MAIN STREET, P. 0. BOX 368 HYANNIS, MASSACHUSETTS 02601 TELEPHONE 617-775-1120 EXT. 755`IR.ECEIVED' BARNSTABLE CONSERVATION COMMISSION August 2 , 1978 Arlene M. Wilson, Chairman AUG. $` Town of Barnstable Conservation. Commission 397 Main Street _ Hyannis , MA 02601 - RE: Appeal File 3-344 - Davenport Realty Trust Dear Mrs . Wilson: In response to your letter dated July 21, 1978 regarding the above- captioned matter, I submit the following opinion. This opinion is predicated upon information represented by Attorney Daniel Fern who stated that the lot in question appears on a sub- division plan either approved or recorded in 1976 at the earliest, thereby obtaining a three-year grace period from the operation of any increase in lot area sizes . Therefore , the provision of Sec. J of the Town of Barnstable Zoning By-Laws which requires 70% upland to enable a lot to be buildable , could be complied with if the lot as it existed in 1976 contained 70% contiguous upland. I am advised that in 1976 this lot was in a 20, 000 sq. ft . minimum lot size area which means that if there are 14, 000 sq. ft. of contiguous upland, it will comply with the 70% requirement. Based upon these facts , I would conclude that 14, 000 sq. ft. is the minimum contiguous upland that could be present to comply with this particular requirement of the Zoning By-Law. I understand from my conversations with Mr. Fern that the petitioner is prepared to file a new plan and submit to a new hearing to obtain the Commission' s determination with respect to certain alterations in the location of the proposed dwelling so I would gather that the _ second question .you-pose is somewhat moot . If I may further clarify either of these points , please give me a call and I shall do my best to comply. Sincerely, 94) CI,4444A�cv J. Douglas Murphy Assistant Town Counsel JDM: lr FERN, ANDERS❑N, DONAHUE & JONES ATTORNEYS AT LAW DANIEL J. FERN P. 0. BOX 51B RICHARD C. ANDERSON 436 MAIN STREET f n '� ROBERT J. DONAHUE HYANNIS. MASSACHbSETTS 02601 STEPHEN C. JONES AREA CODE 61�7 77'C}'75625. CHARLES M. SABATT V: •.N .l�ii August 1, 1978 AN Down Cape - Engineering 0.26 Main Street Yarmouth, , YA 02675 Attention: N1r.Weller Gentlemen: In connection. with the Conservation Commission application of Davenport to construct a dwelling at the intersection of Corrmerce Road and Route GA, Barnstable, I finally did confer yesterday with :assistant Tovn Counsel of Barnstable. He assured me on the telephone that my view of the zoning requirements for this lot were correct and that since the lot was required to have 70;01 of 20, 000 square feet of upland (rather than 70% of one acre for upland) , we can satisfy local require- ments in that respect. He stated that he was somewhat uncertain whether changing the location of the house to turn it on its 0 axis so that one end is closer to the street than the previous sketch shm..ed will require a new hearing. In those circumstances, it probably would be quicker and easier for all concerned to submit a new applica- tion showing the new location to the Conservation Commission. While I note that you have dug'the test hole in the location designed to satisfy the Conservation _ Commission, there is still the matter of obtaining a Board of Health variancs to permit the installation of the Septic system less than 100 feet from the vet area., Please let me know whether you are looking into this question or whether you wish me to do so.` In any event, I am now waiting for your new sketch showing the new locations of the house etc. , so that a new application to the local Conservation Commission might be filed and the appeal withdrawn. � r I am sending a copy of this letter to F.rs .Arlene v;,ilson at the Conservation Commission and to PSr.Davenport so that both will understand our position. Very truly yours , djf/rm Daniel J.Fern cc/cc,jrd e 0`711ET� —I. � DDD i BAHI]TAHL S D MAY�' • TOWN OFFICES 397 MAIN STREET (617)•775-1120 Ex. 12e-I29 HYANNIS, MASS. 02601 . f July 21, 1978 Mr. Douglas Murphy . Assistant Town Counsel • Town of Barnstable Hyannis, Mass. 02601 Re: Appeal File 3-344, Davenport 'Realty Trust Dear Mr. Murphy; As I mentioned to you the other' day, an appeal has been' ente'red to the Conservation Commission Order of Condition denying permission to do work at property at the northeast corner of the intersection of Commerce Way and Route 6A in Barnstable Village *(Order attached) . A viewing has been made by an agent of D.E•Q.E. , Mr. .John Lawrence. At that viewing, several questions arose relative to the applicability of section "J" of the zoning By-Law, -the so-called 70% upland rule, and the Town's Wetland Protection By-law (Art. XXVIII) '•to the lot and the decision. Attorney Daniel Fern stated that the land was not subdivided until 1976. The Commission had understood it was sub- divided in 1971. This -point is presented in #1, of Mr. Fern's letter (attached) . Mr. Fern also expressed the view that plan revisions would not necessi- tate rehearing under Article XXVIII.- I stated that' I felt re-hearing would be necessary since the original Order was an outright denial and, therefore, no local permit to do work exists now, nor would it exist even if D.E.Q.E, issued a Superseding Order allowing work. It would be very helpful if you could render an opinion relative to the application of the 70% upland rule, and the necessity for re-hearing under the local Wetlands By-Law, relative to this case, It is my understanding that D.E.Q•E. would like this information before they make a decision on the pending appeal. Sincerely, Arlene M. Wilson Chairman encl, letter from Atty. Fern cc: Atty. Daniel Fern ' DEQE t FERN, ANDERSON, DONAHUE & JONES ATTORNEYS AT LAW D,ANIEL J. FERN P.0.BOX SIB RICHARD C.ANDERSON 43S MAIN STREET ROBERT J. DONAHUE HYANNIS.MASSACHUSETTS 02601 STEPHEN C. JONES AREA CODE 517 775-S62S CHARLES M. SABATT ' July 11, 1978 Mrs.Arlene M.Wilson Conservation Commission - Town Office Hyannis MA 02601 Dear Mrs .Wilson: This will confirm our conversations of yes terday relating to the application made by Davenport to construct a dwelling on..-premises at the intersection of Commerce Road and Route 6A, Barnstable. - Arrangements have been made to dig the desired test hole at the northwest corner of locus in order to satisfy one of the questions raised by the Commission, and your office has been or will be notified in sufficient time to be present and inspect the premises . The local Board of Health will be asked to consider issuing a variance to permit the , installation of the septic system at a distance somewhat less than 100 feet from the wet area. That distance appears to be slightly over 80 feet and I would expect that the Board of Health should not raise any special objections to this compara- tively small waiver. Some consideration is being given to turning the proposed dwelling slightly on its axis, so that the southerly portion of the proposed dwelling will be closer to Commerce Road and therefore an equivalent distance farther away from the wet area. Such a development should accomplish some benefits to the owner as well as to the community by making the dwelling that much more protected. 6 la Although it is still uncertain just what position will ultimately be taken, it is requested that you explore the following problems : 1. The 'receritly furnished information relating to the subdivision in 1976, immediately prior to the adoption of one acre zoning, and the- resulting - requirement of only 14,000 square feet of contiguous upland for building purposes . .Prior to that, it was thought that considerably more contiguous upland would be needed but it appears that the statute affords a minimum of three years ' protection for such a subdivision and therefore such protection will not expire until 1979. If .the::. acting Town Counsel agrees, then one of the problems previously presented will have been overcome. 2 . The act of turning the proposed dwelling slightly on its axis so that the southerly portion is somewhat nearer Commerce Road appears to present a most insub- stantial change and one which will not create any significant additional burdens on the Town or on the program which the Conservation Commission ib. charged with enforcing. ; It is clear to me at least, that a change in the location of one portion of a proposed dwelling can have only beneficial effects insofar as the Conservation Commission is concerned, and I would hope that no new and additional public hearings would have to be called on that account. Just as soon as any new locations are adopted by the engineer, he will furnish me with copies of such sketches and one will be furnished to both you and to the local department of Environmental Quality Engineering. Very truly yours, dj f/rm cc/seqe Daniel J.F n wgw/cc ....... I THE i BARNSTSBLE, Maas Gf/GLD%Z `C�fi7n��72��ZO/J7 • Epp 3639. TOWN OFFICES 397 MAIN STREET (617) 775-1120 Ex. 128-129 HYANNIS, MASS. 02601 DEQE Appeal Viewing - Davenport #3-344 11:00 A.M. - July 10, 1978 In Attendance: Mr. and Mrs. Galbraith ) Daniel Fern, -Esquire ).- for petitioner William Weller (Down Cape Engineering)Joseph Joseph F. Moran, Jr. Ph.D. ) Arlene M. Wilson ) Barnstable Conservation Commission Bernie Wilber -. J John Lawrence - DEQE Mr. Fern indicated, that the lot in question had been subdivided in 1976 and, therefore, was protected as to area and would need approximately 14,000 sq. feet of upland to comply with zoning. . This information was not available from Town records, nor was it available at the hearing. It was. agreed that this was a matter to be straightened out locally. A report will be made to Mr. Lawrence. Dr. Moran had been hired by the petitioner to investigate the extent of the wetland on the lot. He gave_ out copies of. his report. Based on that report Mr. Weller had drawn a wetland line on a plan. The .wetland extended 20 to. 25 feet to the west of the ditch shown on the plan on"file with the Conservation Commission. Mrs. Wilson pointed out that, according to the new plan, the house would be approximately 15 feet from the wetland, and the septic system about 80 feet. This meant the project would need a variance from the Board of Health, as their regulations required 100 feet separation between wetlands and septic systems. Mr. Wilber volunteered that the Board of Health frequently gave variances to 75 feet. Mr. Wilber left the meeting before the lot itself was viewed. Mrs. Wilson, Dr. Moran, and Mr. Lawrence walked over portions of the lot: Dr. Moran pointed out the ash trees he had used as a guide to locating the extent of the wetland. He also pointed out several different mosses and other vegetation. Surveyor.-s tape tied to tree branches and on a stake indicated the house. - There was some discussion about relocating the house to get it thirty feet from the wetland, and about whether the wetland indicated a flood plain for the ditch. If it is a flood plain, then it should be the seasonal high water mark for septic system design purposes. There was also discussion of the existence of the Town By-law, and the possible need for a new hearing and permit under that By-law. Arlene M. Wilson cc: Doug Murphy • l �G� oy 9To July 6, 1978 Foxwood Drive Eastham, Mass. Daniel J, Fern, Esquire, Fern, Anderson, - Donahue and Jones P.O. Box 518 435 Main Street Hyannis Mass 02601 Dear -1W. Ferns In resPonse .to the request of the Davenport Realty Trust of So uth Yarmouth, I have visited the Comm©rce Road and Route 6A site to define the eartent of the wetlands area Preser{t. As you know, I III;.visited the site with you, k r. Davenport and � . Weller of Down CaPe Engineering for an. overview, on June 22, 1978. I visited" the site again on June 26, 1978 with an associate James Doimey (a botanist and entomologist by training) to collect and identify Plant species Present on the lot since §.L. ChaP.131, sec. 40 lists specifics plants as typical of wetlands. The term freshwater wetlands as defined by G.L. Chap.131 sec. 40 ,would include the drainage ditch 'shown on the Plan dated May, 1978, and signed by James-H. Bowman, P.E. (This plan is Part of DEQE File SE 3-344) since it is an urea where flowing surface drainage water most Probably Provides significant support for the bordering plant oommunity. The drainage ditch banks are aPProximately two feet high (elevation :24.0 southerly, to 19.0 northerly] ditch bottom) The .ditch contr.ns much det;ris (rocks, branches', etc ) hud had no flowing eater orpuddles on-6/22 and 6/28/78 when I emamined the site. The bottom wasdamp. c&;°th&set13.bes. There had been no rain of consequence during the prior three -Meeks. The "wetland" plant community bordering the drainage ditch is located ftthin the area defined in "a" below and includes the 11wetlsnd" Plants identified under G.L. Chap. 130, 13ec.30 in "b", "Cog and "d" below. _ (a. ) The "wetland" plants described below are located within an area aPProxi.nately 41) feet in an easterly direction and, lt �feet in a westerly direction and from 20 to '200 feet-in a northerly direction along the ditch from Pt 6A. (b. ) Ashes (Fraxinus) Mixed sPecies of ashes border the ditch and .include black ash (F. ni, ra) and white ash (F. mm i na). .jfany specimens are 6" to 12 in diameter and several are about two feet .in:diameter. ' They border the drainage ditch and roughly define the Oxtent of the "wetland" vegetation. (Danl el Fern, continued ) 2. 1 (c.d Elm, (U_ lmus amerioan scattered specimens in the area ' described above, about 2-3 inches in diameter. The elms . are a minor Part of this plant community. (d. ) ,Skunk cabbage, (Symplocarpus foetidus ) An occasional 180litary specimen was found scattered along the edge. of the drainage ditch. Vo more than six specimens were found, The area described in "a" above also contained a significant cover of mixed mosses under the ground litter. Two types were found and subsequent microcopie examination Positively. identified both to be true mosses. They were not the Sphagnum moss typical Of wetland plant habitat8 described in H.L. Chap.131 sec 40. -The scattered juvenile maple trees Present were no Tway maple (Ace platinoides ) and no the red maple typical of wetland vegetation. Significant amounts of Jewel weed (Balsominaceae) were found inthe area described in "a" above and approximately 10 feet beyond the westerly -limits described. This is a Plant typically found in wet woods and kionot among the vegetational types described in a•L.. Chap. 130, sec. 40. The flood Plain of the drainage ditch *aPPears to spread about 20-25 feet on the westerly side of the ditch and less than 10 feet on the more steeply sloped easterly side. Perhaps the culvert near the northerly end of the lot described by Mr. Weller limits water flow. There is much evidence of Prior "clearing 'and/or domestication" of the lot including many large trees described above and many other plants which were introduced or have "escaped". These include mock. orange (Philadelphius ), honeysuckle, (lunicera), Japanese barberry Berberis , privet (Li ustrum), grape vines, woodbine, poison S`vy and abundant large - 0 Chinese tree of heaven (Ailanthus: altissima). One honeysuckle is entwined in a rusting Piece of ornamental fencing located near the SE corner of -the Proposed structure. If you have an.* further questions Please do not hesitate and . contact me. Sincerely, Joseph F. Moran, Jr., .Ph.D. Professor of Biology ope 0/-9elha"menl ol V*E 1% �p 4 EARNSTAB�E CONSERVA116) Joud"d �P¢ca� cOMMISSION DAVaD STANDLEY Commissioner PAUL T.ANDERSON Regional Environmental Engineer JUN, June 21 , 1978 f1 Barnstable Conservation Commission RE: BARNSTABLE Hyannis Wetlands' - File No. SE 3-344 Massachusetts 02601 Davenport Realty Trust Gentlemen: Please be advised that the Department of Environmental Quality Engineering has received an appeal to the Order of Conditions issued on the above-referenced file and that, in accordance with General Laws, Chapter 131 , Section 40, the Department of Environmental Quality Engineering will make a determination on whether the area on which the proposed work is to be done is significant to public or private water supply, to the ground water supply, to flood control, to storm damage prevention, to prevention of pollution, to protection of land containing shellfish or to the protection of fisheries . After making such determination, the Department of Environmental Quality Engineering will issue a Superseding Order imposing such conditions as will contribute to the protection of the interests described herein. No work, as proposed in the Notice of Intent for the above-referenced file, shall be undertaken until the final Order is issued by the Department of Environmental Quality Engineering, and all appeal periods have elapsed. Very truly yours ., - For the Commissioner 6. Paul T. Anderson, P.E. Regi anal Environmental Engineer A/j t/R vVK cc: Daniel J. Fern, Esq. P.O. Box 518 436 Main Street Hyannis , Massachusetts 02601 ,. VitWING - - GALBRAITH PROPERTY, Corner 6A and Commerce Vay, Barnstable May 1, 1978 - In Attendance: William Weller - Down Cape Engineering Paul Murray - Board of Health Arlene Wilson - Conservation Commission representative of Davenport Real Estate construction personnel Three test holes had been dug on the Commerce Way side of the-lot. The first, approximately 20 ft. east of the road and approximately 200 ft. north of 6A. The hole was approximately 14 ft. deep and dry. There was a pronounced, bright rust line approximately 5-6 ft. below surface. Above the rust, sand was reddish and mixed with fines. The sides of the hole were smeared with a gray deposit _ from 4 ft. to 8 ft. down. Below 9 ft. there was white medium sand., (beach type deposits) , and the hole was caving in the medium sand. The second hole was approximately 20 ft. east and 40 ft. south of hole #1, and approximately 70 ft. from ditch with running water. Hole was 12-14 ft. deep with medium sand uniformly throughout. Perc test was taken at 4 to 5 feet. Hole appeared red where water had been standing for the test. There was no water at the bottom of the test pit. Ground elevation was approximately 4 ft. below test #1. The third hole was approximately 20 .)ft. east and 30 ft. south of hole #2. Ground surface approximately 4 ft. below that at hole #2. There was approximately 3 ft. of heavy black organic soil with fine to medium brown sand, with fines to the bottom of the hole 10-12 ft. down. Water was weeping from the easterly end of the hole at about 7 to 8 ft. down, and was standing in the bottom of the hole and, obviously, rising. Arlene M. Wilson AMW/dm i /i 1 S G r To O X ,co✓.i GA�".Cr./ n/o TE : �?c C9��9►7 ifr �^i G L �.� Q 3S.o v• ,O'-13 o r _ •,� moo• Ec. - ZS.S J� o -- o----c l.�iTyiy/ A ,�i9,a/cJS of /o S.q••�Oy- Go•+-v ,� o T 3z /000 o f.2p M Tf/E CE.Sr ,?7�7` o fit,.3Z•SU SEp7�C e. l• onj Ze 3Z 25 ?mac �`',00 �i'75 -Al sc,O�.9 C E GaJ�Ty c'cEA�/ . n 2C. 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