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HomeMy WebLinkAbout2024.07.22 Letter Tymann to Barnstable ZBA in Support of Bldg Permit Appeal45 Bromfield Street 6th Floor Boston, MA 02108 617.933.9490 Benjamin B. Tymann Tel.: 617.933.9490 btymann@tddlegal.com July 22, 2024 BY EMAIL (Genevey.Ziino@town.barnstable.ma.us) Jake Dewey, Chair Barnstable Zoning Board of Appeals 367 Main Street Hyannis, MA 02641 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. The locus is owned by Janet Holian. 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). As the board knows, this appeal has been continued on multiple occasions to enable Ms. Holian to return to the Planning Board to obtain endorsement of a new ANR Plan. Ms. Holian’s counsel recognized that the former ANR Plan incorrectly calculated Lot Shape Factor (“LSF”), a fact that this appeal brought to light. See previously-filed Letter from Daniel J. Merrikin, P.E., dated Feb. 23, 2024 (a copy of which is attached hereto at Exhibit 1), at 2 (“the Parcel A Shape Factor based on the actual approved wetland boundary line yields … a Shape Factor of approximately 22.3, neither of which comply with the requirements of the Zoning Bylaw” (emphasis in original)). The Building Department suspended the Building Permit in March 2024 as a result. Now Ms. Holian has obtained a new ANR Plan endorsement and the Building Department reinstated the Building Permit on or about July 19, 2024. But as my clients’ appeal has made clear from the outset, Parcel A is not a legally buildable lot, and thus the Building Permit is not legally valid, primarily for three reasons. None of these reasons pertains to LSF, and none of them has been cured. The Building Permit must be annulled because (1) Parcel A lacks sufficient legal frontage; (2) Parcel A lacks sufficient Lot Area after excluding land the law and 250 Windswept Way’s deed requires be excluded; and (3) the creation of Parcel A worsened zoning non-conformities of the 250 Windswept Way land that was left behind, now called Parcel B. See Addendum A to original appeal application, dated Nov. 29, 2023 (a copy of which is attached hereto at Exhibit 2) and my previously-filed letter to this board dated Feb. 23, 2024 (a copy of which is attached hereto at Exhibit 3). Barnstable Zoning Board of Appeals July 22, 2024 2 As our appeal to this board has also always made clear from the outset, the endorsement of an ANR Plan by a planning board does not include an evaluation of zoning compliance. That’s why every ANR Plan, including this new one obtained by Ms. Holian, comes with the disclaimer, “No determination as to compliance with the Zoning Ordinance requirements has been made or intended by the above endorsement.” The Planning Board did not decide whether Parcel A is a buildable lot. That’s the job of the ZBA in this instance. In short, Ms. Holian’s renewed receipt of an endorsed ANR Plan and the unsuspended Building Permit simply put us back where we started when my clients first filed this appeal last Fall. I respectfully ask the board members to re-read the previously-submitted materials attached hereto at Exhibit 1, 2 & 3. They lay out the reasons why this Building Permit cannot withstand legal scrutiny – and those reasons have not been meaningfully changed by Ms. Holian’s obtaining of a new ANR Plan. In my presentation to the board on Wednesday evening, July 24, 2024, my clients and I will amplify several of these points. We appreciate your consideration. Sincerely, Benjamin B. Tymann Enclosures cc: Michael Ford, Esq. EXHIBIT 1 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 2 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. EXHIBIT 3 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. Barnstable Zoning Board of Appeals February 23, 2024 7 Enclosures cc: Michael Ford, Esq.