Zoning Board of Appeals 2008

Town of Barnstable Zoning Board of Appeals

Minutes January 9, 2008

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday, January 9, 2008 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Arthur Traczyk, Principal Planner and Carol Puckett – Administrative Assistant. Gail Nightingale Present Ron Jansson Present Daniel Creedon III Present James Hatfield Present Sheila Geiler Absent John Norman Present Jeremy Gilmore Present Kelly Lydon Present

Chairman Gail Nightingale opens the hearing and reads a summary of the appeals being heard tonight. She then calls the/Gargan/Gallagher hearing at 7:07 PM.

Appeals 2007-081 & 103 - Continued Gargan

Both Appeals have been continued to January 9, 2008, to permit re-notice and publication of variance relief under the Gallagher’s name.

Members Originally Assigned: Ron Jansson, Sheila Geiler, James Hatfield, John Norman, Gail Nightingale Alternates Present: Jeremy Gilmore, Kelly Kevin Lydon Appeal 2007-081 Gargan Special Permit – Nonconforming Lots

Opened October 10, 2007, continued November 28, 2007, and to January 9, 2008. .

Joseph E. Gargan & Paula R. Gargan have petitioned for a special permit pursuant to Section 240-91 Nonconforming Lots. The applicants seek to transfer 2,733 sq.ft. of lot area at 621 Scudder Avenue Hyannisport, Mass., to the petitioner’s abutting lot at 49 Lafayette Avenue, Hyannisport, Mass. The subject properties are shown on Assessor’s Map 287 as parcels 047 and

Zoning Board of Appeals – Agenda – January 9, 2008

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048, commonly addressed as 621 Scudder Avenue and 49 Lafayette Avenue, Hyannisport, MA. The property is in a Residence F-1 Zoning District Appeal 2007-103 Gargan

Bulk Variance Opened November 28, 2007, continued to January 9, 2008.

Joseph E. Gargan & Paula R. Gargan have applied for a Variance to Section 240-13.E Bulk Regulations. The applicants seek to transfer 2,733 sq.ft. of lot area from an abutting undersized lot owned by Edward M. Gallagher and Susan P. Gallagher, addressed as 621 Scudder Avenue Hyannisport, MA, to their lot addressed as 49 Lafayette Avenue, Hyannisport, MA. The subject properties are shown on Assessor’s Map 287 as parcels 047 and 048, commonly addressed as 621 Scudder Avenue and 49 Lafayette Avenue, Hyannisport, MA. The property is in a Residence F-1 Zoning District.

Appeal 2008-001 – New Gallagher Bulk Variance

Edward M. Gallagher and Susan P. Gallagher have applied for a Variance to Section 240-13.E Bulk Regulations. The applicants seek to transfer 2,733 sq.ft. of lot area to an abutting lot owned by Joseph E. Gargan & Paula R. Gargan and addressed 49 Lafayette Avenue, Hyannisport, MA. The subject Gallagher lot is shown on Assessor’s Map 287 as parcel 048, commonly addressed as 621 Scudder Avenue, Hyannisport, MA. The property is in a Residence F-1 Zoning District. Members assigned: Ron Jansson, Dan Creedon, James Hatfield, John Norman, Gail Nightingale Ron Jansson indicates that the Gargans were here before and basically this for the same property. He explains that they should be called together as they are variances that run with the properties. Dan Creedon recommends, for expediency, that he be replaced with another member. Gail Nightingale assigns Kelly Lydon in place of Dan Creedon.. Members assigned: Ron Jansson, Kelly Lydon, James Hatfield, John Norman, Gail Nightingale Attorney Tracey Taylor, who is representing the Gargans, and Attorney Peter O’Keefe, who is representing the Gallaghers, are present. Attorney O’Keefe gives a brief summary of relief being sought which is a switch of a strip of land between both properties. He indicates it is subject to a P&S and contingent upon Town approval. Attorney O’Keefe gives examples of problems with the topography and indicates there is a drop off and hilly terrain. He indicates that the financial hardship would be in the transferring of the property. He also does not think it would be a detriment to the neighborhood. Attorney Taylor indicates that there are no new developable lots being derived from this. Gail Nightingale asks if there is anyone here from the public either in favor or in opposition. No one speaks either in favor or in opposition. Ron Jansson does findings.


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There are 3 appeals: 81, 103 which pertain to Joseph Gargan et ux, for property located on Scudder Avenue and Appeal 2008-001 involving Edward M. Gallager et ux and wife property located off Scudder Avenue in the village of Hyannis. The property in issue is located in a RF-1 zoning district. The Gargan property is shown as parcels 47 and 48 on Assessor’s Map 287. The Gallagher property is shown as parcel 48 on Map 287. The Gargan’s parcel of land is known as 621 Scudder Avenue in the village of Hyannisport and the Gallagher’s property is known as 49 Lafayette Avenue in the village of Hyannisport. Both of these zoning districts currently require one acre of contiguous upland and neither one of them currently comply. The Gallagher lot currently consists of basically approximately 28,000 square feet with land that has been developed with a single family dwelling together with a swimming pool. The Gargan’s piece of land consists of a dwelling, shed, and a cottage on approximately 7500 square feet. Both of these lots currently comply and continue to comply with the shape 22 factor. The applicant is before us because the Gargan’s parcel, being a smaller parcel seeks to have about 2733 square feet of land transferred from the Gallagher’s’ to the Gargans’. This piece of land is best described as no man’s land currently. There is a fence on what would be westerly boundary of this property that basically comes up to the rear/side portion of the Gallagher property and there is a significant drop-off, we have heard as testimony, of six feet running throughout this land. The 6 foot drop-off, contours, or elevation matches the contours of the Gargan property. There is, in fact, a topographical condition which currently makes this 2700 square foot parcel separate, apart, distinct, and unusable to the other parcel. Owing to this condition it would be a hardship not to let this land be transferred out to someone else who could utilize it and in essence that is what the applicants are seeking to do. In granting the relief being sought it would not be in derogation of the spirit or the intent of our zoning bylaw because they are trying to create consistency in lot shapes and sizes in this neighborhood. Also, it would correct current nonconformities that do exist on the Gargan lot with the cottage basically bordering on the current Gallagher parcel and would correct that setback deficiency. In granting the relief being sought it would be in keeping with the spirit and intent of our zoning bylaw and would not be detrimental to the neighborhood affected as it is a mutual agreement reached by the parties and works out to everyone’s advantage. Those would be his findings with reference to appeals 103 of 2007 and 001 of 2008. Kelly Lydon seconds. Jerry Gilmore suggests a finding be added indicating that it would convey the tax liability to the property in question to the people most suitable to its use where it is currently being paid by the owner. Ron Jansson accepts that finding. James Hatfield seconds that finding Vote: AYE: Kelly Lydon, James Hatfield, John Norman, Ron Jansson, Gail Nightingale NAY: None


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Ron Jansson makes a motion: Based upon the unanimous findings of the Board he moves they grant the Gallagher’s’ and Gargans’ the variance relief being sought subject to the following terms and conditions 1. This variance is granted to allow 2,733 sq.ft. of land from the Gallagher’s, 621 Scudder

Avenue lot be segmented and transferred to the Gargan’s lot located at 49 Lafayette Avenue. The land to be transferred is shown as Parcel B in a plan entitled “Plan of Land in Hyannisport, MA prepared for Joseph E. Gargan” dated June 11, 2007, as drawn by Down Cape Engineering, Inc.

2. The applicant shall apply to the Planning Board to seek an Approval Not Required Plan for the creation of these new boundaries.

3. Both the Approval Not Required Plan as finally approved by the Planning Board, should that occur in this variance and this variance shall be recorded at the Barnstable Registry of Deeds. A copy of that recorded plan together with this variance shall be submitted to the office of the Zoning Board of Appeals for this relief to be in effect.

4. If the variance and Approval Not Required Plan have not been recorded at the Barnstable Registry of Deeds within one year from the date of issue of this variance, this variance shall expire.

Both 621 Scudder Avenue and 49 Lafayette Avenue shall only be used as is currently allowed under zoning for single family use. The two structures located on the 49 Lafayette Avenue lot shall not be sold or deeded into separate ownership nor shall that lot be further divided based upon two structures under what is currently knows as chapter 240 section 81L – Subdivision Control of the State of Massachusetts that predate adoption of the subdivision control law in the Town of Barnstable Kelly Lydon seconds. Gail Nightingale asks if he should refer that when they file the variance with the Registry both lots will have to file a variance. Ron Jansson indicates that he believes they need just one that affects both lots. Attorney O’Keefe indicates that if you just have one variance granted it can be bookmarked under both the chains of title and it will go against each title. Vote: AYE: Kelly Lydon, James Hatfield, John Norman, Ron Jansson, Gail Nightingale NAY: None GRANTED WITH CONDITIONS Gail Nightingale then asks if they want to withdraw the special permit. Attorney Taylor indicates that she would like to withdraw her request for special permit 2007-081. Ron Jansson moves to withdraw this appeal without prejudice.


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Kelly Lydon seconds. Vote: AYE: Kelly Lydon, James Hatfield, John Norman, Ron Jansson, Gail Nightingale NAY: None WITHDRAWN WITHOUT PREJUDICE Gail Nightingale then asks if there is anyone here from Mass Housing. No one is here. She then calls the Limoncelli hearing. Members assigned: Dan Creedon, Ron Jansson, James Hatfield, John Norman, Gail Nightingale

Attorney Princi, who is representing the applicant, tonight at 6:45 PM before the hearing handed in materials for the Board. Appeal 2007-087 – Continued Limoncelli Appeal of the Building Commissioner

Opened October 24, 2007, continued to January 9, 2008, at request of applicant. No Members Assigned, No Testimony Taken Staff Report dated December 2, 2008 and supplemental materials are enclosed. Application materials as submitted by the Appellant were previously sent.

Susan Limoncelli has appealed the August 6, 2007 denial of a building permit by the Building Commissioner for property located at 181 School Street, Cotuit MA. The appeal was made pursuant to MGL Chapter 40A, Section 8 and 15 and Section 240-125 of the Zoning Ordinance of the Town of Barnstable. The property is addressed as 181 School Street, Cotuit, MA and is shown on Assessor’s Map 020 as parcels 090 in a Residence F Zoning District. Attorney Princi is representing the applicant. He gives a historical background of when Susan Limoncelli purchased the property in August of 2005 from Ruth Grover. He indicates that it was advertised as a main home with a guest cottage which appeared to be a garage structure on the property. Prior to purchasing, Ms. Limoncelli went to Town Hall and checked the Assessor’s record which showed, going back to at least 1989, that the property had been assessed as a 2 family/multi family lot with the garage structure being assessed separately as an apartment and the main home being assessed as the main home. He gives a history of her application process. He indicates that he tried to piece the historical perspective from 1989 through 2005. He indicates that from his facts, this property was used as a multi-family property, contained a rental unit in the garage that was continuously rented from 1981 through 2005 and comments that within 2 weeks of Ms. Limoncelli purchasing the property, she received a letter from Linda Edson indicating her that she had an unlawful rental unit.


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Dan Creedon asks if Ms. Limoncelli had put an ad in the paper after she bought it advertising it for rent. Attorney Princi indicates that he didn’t believe so but believes Ms. Edson found out from the sale of the property. Attorney Princi also indicates that his client asked the tenant at the time of the purchase of the property to vacate so that she could renovate. Attorney Princi indicates that he had presented a permit in May of 2007 and sent Mr. Perry 11 exhibits of historical perspective of the property. He indicates he has had several conversations with John McShane, Buddy Martin and Marjorie Harvey. Attorney Princi explains that Linda Edson knew it was a rental and was friends with the previous owners of the property, the Grovers. Attorney Princi then goes through the materials he had submitted and refers to Exhibit #4 and reads a letter that Linda Edson relied upon from Joe Daluz to Ruth Grover. He reads the letter. He then indicates that there wasn’t any permit in 1981 and the only thing they have is this letter. He indicates that, from the letter, he assumed a building permit was issued. He indicates that he called John McShane, who indicated that he did the construction, Ruth got the letter, Buddy Martin knew about this, went down and talked to Joe Harvey and told him to call Buddy Martin. Attorney Princi indicates that Buddy Martin indicated that they knew about the apartment for a long time. He reads a letter from Marjorie Harvey which is Exhibit 15. He then indicates that in 1989, Ruth Grover applies for another addition to the house. At that time, according to what Buddy Martin told him, Linda Edson acknowledged in conversation to his clients, and according to what Marjorie Harvey has attested to and the historical information that was provide to the buyers when she purchased the property that the apartment was there. They approved a building permit for the construction of an addition. Attorney Princi indicates that in 2007, Ms. Limoncelli applied for a building permit to do work on the main house. She then received a letter from the Building Department denying her application for a building permit because her property was noncompliant. Attorney Princi then talks about the assessing records. He then asked Ms. Limoncelli to check the outside electrical meter that has been there since 1981. John Norman indicates that the meter does not necessarily pertain to the building itself, as it could’ve been just for the wiring that was required back in 1989 which was noted for a sink and for putting wiring out there. Attorney Princi indicates that the garage was there in 1972 and not built as an apartment but a garage converted into an apartment John Norman comments that the sticker could be just be an acknowledgment for NSTAR to mount the meter for the electrical work that was done to meet code which doesn’t necessarily mean an apartment, it could’ve been for a panel to wire up some plugs for a workshop. John also comments that someone can pull a wiring permit or a plumbing permit without a building permit. Attorney Princi indicates that from Joe Daluz’s letter that a building permit issued. John Norman comments that he believes Attorney Princi referenced a sink and electric for a workshop. Attorney Princi indicates that Joe Daluz had a conversation with John McShane about that and then when the inspectors went out to inspect they found something different. He also indicates that Mr. Jenkins inspected the furnace in 1981 and at least those inspections did take place in 1981.


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Ron Jansson comments that this property is in a Residential Zoning District and that the only use is for a single family dwelling and asks for clarification on how the cottage can be allowed. Attorney Princi indicates Chapter 40A, Section 7 which he reads. Ron Jansson comments that as part of that section it states that a building permit must be presented indicating that the cottage would be allowed for which there is no permit. Dan Creedon asks Attorney Princi for clarification on Section 7 for which he is basing this appeal on. Attorney Princi indicates that the statue doesn’t say a written building permit, it says the original building permit and there was clearly permission. He indicates that Joe Daluz’s letter that a permit was applied for because inspectors went out to do inspections on work. He indicates that the implication is that John McShane might not have done the work in accordance with what he applied for, however, if Joe Daluz sat down with Jack Harvey and modified the building permit to allow the use, whether it was right or wrong and agrees at the time it was RF and probably shouldn’t been done, but if Joe Daluz did do that he had the authority to be modified for the construction that took place and had the authority to approve it whether it was right or wrong and it was a clear indication that it was approved. He indicates that Buddy Martin would attest that in fact it has been there, they have known about it, and have accepted it as an apartment. He indicates that they can conclude from inferences that a building permit did issue. Dan Creedon clarifies that it was without a stove to which Attorney Princi concurs. Attorney Prnci indicates that Marjorie Harvey was clear that Joe Daluz noted that they could have an apartment, just not a stove. Ron Jansson reads from a letter of November 6th which never authorizes the use as an apartment or anything else. He reads the letter indicating it was for a utility sink and heating a garage for an occasional use as a workshop and asks how did it go from a workshop to a cottage. Attorney Princi indicates that from what he read from the affidavit that after meeting with Mrs. Grover’s representative, he issued a compliance based upon what was done based on that permit. Ron Jansson indicates that it is not indicated if the compliance was for the use as a workshop or for an apartment. Attorney Princi indicates that Buddy Martin would say the approval was given at that time for an apartment. Dan Creedon indicates that from the records Joe Daluz noted there was a violation but nothing after as to what was done from there. The Board discusses the use versus the dwelling and read Joe Daluz’s letter. The Building Commissioner – Tom Perry speaks and indicates that they know the garage existed from at least 1972 and it appears that they put a utility sink in and some heat which would not require a building permit but they do not know what that time frame was all they do know that on November 6th a letter was issued indicating that it had beyond what was there. Attorney Princi indicates that inspections were done and are only done if there is a building permit.


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Dan Creedon asks if Mr. Daluz was ever contacted regarding this and Attorney Princi indicates he was but did not remember what happened. Tom Perry indicates that inspectors might have been there for enforcement and not necessarily there regarding a building permit. Attorney Princi references exhibit 17. John Norman indicates that on June 10, 1981, they pulled a septic permit for a 3 bedroom home 3 months prior to the letter dated November 6, 1981 and why doesn’t the septic permit reflect an overall town permit being issued for an approved apartment for 4 bedrooms on the property. John indicates that the septic permit issued is dated 06/10/81 and the only letter they have is the one dated November 6, 1981. John Norman asks if somewhere between June and November they built an apartment and asks if Attorney Princi’s contention is that the septic went in before the apartment was approved and if the building permit was issued for a single bedroom apartment to be added they would’ve required that the septic be upgraded to accommodate a 4 bedroom? Attorney Princi indicates that since 1981 the system has been updated twice, once in the mid 90’s and again around 2000. John Norman indicates that in the 1992 permit it was acknowledged because when you got to the BOH they check the assessor’s record the BOH will let you pull a permit for what is there. Gail Nightingale comments that they could consider the Amnesty Apartment Program Susan Limoncelli speaks and indicates that they purchased the property in 2005 and that there was a tenant there at that time and were told by Paul Grover that the tenant had been there for 9 plus years and had no idea there would be a problem with that. She indicates that the cottage was important to the purchase and the property was taxed as a two family. She indicates that his has been a financial hardship. Dan Creedon asks Ms. Limoncelli if they have considered the Amnesty Apartment Program. Ms. Limoncelli indicates that she would not want to because it places restrictions on her ability to rent the cottage, indicates that there are some salary restrictions but also restrictions on what they would be able to charge, they would have to pay for the utilities and it requires a deed restriction which would hamper their ability to sell the house with that in tact. Gail Nightingale indicates that they could discontinue the amnesty and then sell the house. Susan Limoncelli indicates that is not how they bought the property. She indicates that they bought it with unrestricted use, it was a rental cottage, there were no restrictions as to whom it could be rented to and for how much and no deed restriction. She indicates that if the former owner was part of the Amnesty Program they would’ve seen it in the deed restrictions. . Dan Creedon asks how much it was rented for when she purchased the property. Ms. Limoncelli indicates that, at the time, it was rented for $900 a month but was in disrepair. Dan Creedon asks what she thinks they could rent it for today if there were no restrictions. Ms. Limoncelli indicates that they could possibly get $1000-1200 per month.


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Gail Nightingale indicates that they could get that for an amnesty apartment Ms. Limoncelli indicates that then they would have to pay for the utilities, there is a deed restriction and is not how they bought the property, the tenants have to supply tax returns to validate that they meet income requirements and are not responsible for the utilities and the utilities are incorporated into the rent which would lower the rent by a couple of hundred dollars per month. Gail Nightingale asks if there is anyone here either in favor or in opposition. Penny Levert, who lives at 193 School Street, indicates she had bought her house in 1997 and is not in objection to the Board granting it as a legal apartment. Gail Nightingale indicates that they are not here to legalize the apartment, just to uphold the decision of the Building Commissioner. Attorney Princi rebuts a brief summary and asks the Board to overrule the decision of the Building Commissioner. Dan Creedon does findings

On appeal 2007-087 this is appeal of the Building Commissioner’s decision for the denial of a building permit for construction renovation of stairs in cottage according to what was submitted.

The application was submitted on June 1, 2007 with the letter from Attorney Michael Princi dated May 29, 2007 and on August 6, 2007 the Building Commissioner issued a denial of that permit.

There was a notice of an appeal timely filed and that brought the case before the Board here this evening. It was timely filed within the 30 days required by 40A.

There is a letter dated in 1981 from the then Building Commissioner - Joe Daluz stating that Mr. McShane had come to the Town and asked if he could obtain permission to install a sink and heating for an existing garage on the property to be used as an occasional workshop.

After that, on November 4th, the then Assistant Building Inspector - Alfred Martin, and John Newton, the wire inspector, made an inspection and found, according to Mr. Daluz’s letter, a garage with a stove, kitchen sink, refrigerator, bed, and what, according to Mr. Daluz in his letter, might be better described as an apartment unit and by his letter asked Mrs. Grover to come into his office within 7 days of receiving that letter and at that time a determination for compliance may be issued.

Beyond that there was nothing further in the record that has been submitted by testimony or by documentation that anything further happened with respect that letter that Mr. Daluz sent Mrs. Grover.

There has been no building permit from 1981 submitted that a search was conducted of the Town’s record and no such building permit was found. From 1981 to 2005 the property has been used as a two family.

Ron Jansson seconds. Ron Jansson asks if Dan would consider adding to the findings:


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The fact that the Building Commissioner has issued a determination that a current use on the property is not in conformity with the local zoning bylaws.

Dan Creedon accepts the additional finding. James Hatfield seconds. Vote: AYE: John Norman, Ron Jansson, Dan Creedon, James Hatfield, Gail Nightingale NAY: None Findings are upheld Based on those findings that the Board uphold the decision of Mr. Perry to deny the building permit requested by the applicant. James Hatfield seconds. Vote: AYE: John Norman, Ron Jansson, James Hatfield, Dan Creedon, Gail Nightingale NAY: None Decision of the Building Commissioner to Deny a Building Permit is Upheld. Gail Nightingale then asks to take things out of order. She indicates that the Kaschuluk appeal is being asked to be withdrawn without prejudice. Appeal 2007-073 - Continued Kaschuluk Demo/Rebuild on Nonconforming Lot

Opened August 22, 2007, continued September 12, 2007, November 7, 2007, and to January 9, 2007 Continued to allow for finalizing of architectural plans, including basement living area.

Assigned; James R. Hatfield, Sheila Geiler, John T. Norman, Kelly Kevin Lydon, Gail C. Nightingale Associates Present: Jeremy Gilmore No revised plan has been submitted and no new communication received.

Deanna Kaschuluk has petitioned for a Special Permit pursuant to Section 240-91.H(2) - Demolition Rebuilding on a Pre-existing Nonconforming Lot of Less that 10,000 Square Feet. The applicant seeks to demolish the existing structure on a lot consisting of 9,973 sq.ft. and rebuild a new single-family dwelling in conformance with current setback requirements. The subject property is addressed as 8 East Avenue, Osterville, MA and is shown on Assessor’s Map 139 as Parcel 075. It is in a Residence F-1 Zoning District Members assigned: Kelly Lydon, Jerry Gilmore, James Hatfield, John Norman, Gail Nightingale


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Gail Nightingale reads the letter from Deanna Kaschuluk indicating that because the Purchase and Sales agreement has expired, she is asking to Withdraw without Prejudice. Jerry Gilmore makes a motion to Withdraw without Prejudice. Kelly Lydon seconds. Vote: AYE: Kelly Lydon, Jerry Gilmore, James Hatfield, John Norman, Gail Nightingale NAY: None WITHDRAWN WITHOUT PREJUDICE At 8:30, Gail Nightingale announces that the Corey appeals are being continued but will wait to until they are called to do so. She then calls the HAC/YMCA appeal. Comprehensive Permit – 2006-072 Housing Assistance Corporation – YMCA Site Minor Modification Decisions

On November 7, 2007, the Board found that the October 29, 2007 request of the Applicant for a modification of the Comprehensive Permit was minor and required no public hearing. The Board and Applicant agreed that they intend to make the necessary modification to specific conditions at the public hearing of January 9, 2008.

Request for a Minor Modification of Conditions of Comprehensive Permit 2006-072 issued to Housing Assistance Corporation for the development of 28 two- and three-bedroom townhouse units on 7.2-acres located at 2239 Iyannough Road (Route 132), West Barnstable, MA. Modifications include elimination of basements in 6 of the 7 buildings, modification of site plan for grading of entrance to common storage area, change of wastewater disposal system, and clarification of rents. Members assigned: John Norman, Ron Jansson, Dan Creedon, James Hatfield, Gail Nightingale She indicates that they are just here to approve the final changes. Attorney Peter Freeman is representing the applicant. He indicates that Ruth Weil, Art Traczyk and Attorney Freeman have worked on it and they are all in accord for maybe the rental change Gail Nightingale indicates they have just been handed the proposals and would like time to read it. Attorney Freeman indicates that there was a draft on the rental limit and that they are in accord. The only question in discussions related to findings number 6 and condition #1.


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Ron Jansson indicates that he had spoken with Ruth about what it all means. He has concerns, and it has been his understanding, that the developer, and the whole purpose of the 40B is that the developer takes on the cost. Gail Nightingale indicates that she was under the impression that there wasn’t going to be anything in about the rentals and would like to hear from Ruth Weil – Town Attorney. Ruth Weil – Town Attorney indicates that this is an unusual development as this is 100% affordable and is reaching an affordability which is below the 30% of the 80% which is what is the requirement under Chapter 40B and that is a rental project and the only way they can go forward is with an incredible amount of subsidy. This has received a lot of community support and is a well designed development. She indicates that they have community preservation funds as well tax credit funds and the section 8 vouchers will be sought but it will make the development work. The reason why there is so little rental property because it is so hard to do a development without subsidy. She indicates that there is a profit limitation under 40B if they exceed it there is a monitoring agreement. The rent could not exceed 30% of the 60% as this permit was framed and the only thing they changed was the tenant share is limited to 30% of the 60% and if any of these rental subsidies are received in the future the landlord can receive the additional rent and if there is any concern about exceeding the profit limitation there is that monitoring agreement. Ron Jansson discusses the Holly Hill project indicating that affordable and subsidized were different and realizes they are doing it differently here but has concerns. Attorney Freeman indicates there is distinction because of the nature of the project. He indicates that the Holly Hill project did not have the perpetuity language and documentation and was not 100% affordable. He indicates that in that situation, the subsidy program was eliminated and there wasn’t clarity as to perpetuity. It will have the requirement of the Comprehensive Permit and Regulatory Agreement. Attorney Freeman indicates that it couldn’t take place here because they are all affordable units and that section 8 does not give a developer project eligibility to be before the Zoning Board. Ron Jansson asks for clarification as to what type of unit, market rate or affordable unit, the section 8 tenant would have to go with. Attorney Freeman indicates that all these units are affordable and that wouldn’t happen here Dan Creedon asks Attorney Freeman to quantify how it works with section 8 rents. Attorney Freeman indicates that it changes regionally and annually, HUD publishes and sets the Section 8 rents with utilities and what the HAC would receive if there is a Section 8 would be whatever the Section 8 rent is for the 2 or 3 bedroom unit. Dan asks if it is for whatever the tenant pays and Attorney Freeman indicates yes. The tenant pays no more than or it is set at 30% of their rent that is typically below the 60%. Dan asks for clarification of what the formula is. Attorney Freeman indicates that his understanding is that with section 8 vouchers, they don’t earn the 60% but they are actually paying less in dollars. Dan asks if that if every unit was section 8 tenant that would be a


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scenario where you might end up with a for-rent project over 20% profit, maybe, but that additional money would go back to the Town wouldn’t it? Attorney Freeman indicates that it is not the 10 or 20% but, typically depending on the program, on the rentals the excess goes back to the subsidizing agency. Ron Jansson reiterates his concern for people who need affordable housing but don’t’ qualify for section 8. Attorney Freeman indicates that section 8 is regional and goes to the tenant and you can’t make those distinctions under the Federal Fair Housing laws and you cannot make that segregation of what type tenants go where. Gail Nightingale then asks if they even have to modify that. Attorney Freeman indicates that the he would suggest so and reads the original condition. Gail Nightingale indicates they have a new motion on a new condition #1 under 6. Attorney Freeman indicates that it is a finding of fact #6 and a condition #1. Gail indicates then they have #9 and #12 that is being modified Dan Creedon does findings On Comprehensive Permit 2006–072 for the Housing Assistance Corporation for property located at 2239 Iyannough Road (Route 132) West Barnstable MA, on Assessor’s Map 215, Parcels 020 and 028. It is in a Residence F Zoning District. He moves that the decision be modified to find the following facts that relate to Housing Assistance Corporation development of YMCA Site A as it relates being consistent with local needs. Finding No. 6 is modified to read:

For each unit, the tenant’s share of the monthly unit rent, including utilities, is to be calculated based upon a formula under which monthly housing costs for the household residing in the unit shall not exceed 30% of 60% of the Area Median Income (AMI) of the Barnstable Metropolitan Statistical Area (MSA). Nothing herein shall preclude the landlord from receiving rental assistance to supplement the rent it receives as long as the tenant’s share of rent does not exceed 30% of 60% of the Area Median Income (AMI) of the Barnstable Metropolitan Statistical Area (MSA). James Hatfield seconds. Vote: AYE: Dan, Creedon, James Hatfield, John Norman, Gail Nightingale NAY: Ron Jansson

Based on those findings he would move to modify the Comprehensive Permit: Condition No. 1 is modified to read:


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The total number of housing units shall not exceed 10, three-bedroom and 18, two-bedroom units. All of the 28 units shall be dedicated in perpetuity as affordable rental housing units. The units shall be committed in perpetuity to affordability at 60% of the median income level to households in the Barnstable Metropolitan Statistical Area (MSA). The tenant’s share of rents for each of the units (including utilities) shall not exceed 30% of the 60% income figure as applicable and adjusted for household size in perpetuity. Nothing herein shall preclude the landlord from receiving rental assistance to supplement the rent it receives as long as the tenant’s share of rent does not exceed 30% of 60% of the Area Median Income (AMI) of the Barnstable Metropolitan Statistical Area (MSA). James Hatfield seconds. Vote: AYE: Dan Creedon, James Hatfield, John Norman, Gail Nightingale NAY: Ron Jansson Ron Jansson indicates that he doesn’t believe even if they reach the 10% of our housing goals for affordable for this Town it will be sufficient to provide for affordable housing needs as they exist in this Town. As a result, they would have to rely on subsidies beyond 40B and that would include the subsidy which is provided by section 8 housing and to allow one and both to be the same in cases like this deprives us of filling housing needs for people who truly need it.

Finding No. 8 is modified to read: Proposed structures consist of two, 4,149 sq.ft., four unit buildings. Each of these buildings contains four, two-bedroom units; the five other buildings are each 4,984 sq.ft. Each of these buildings are to house 4 units which will consist of two, two-bedrooms and two, three-bedrooms. Each two-bedroom unit is to be 1,038 sq.ft. Each three-bedroom unit is to be 1,406 sq.ft. One building, Building #5, is to have a full basement which is to facilitate unit storage for all 28 units. Also, he would move to strike the former ultimate sentence to that finding that says that all of the units are to have full basements.

Finding No. 9 is modified to read:

The plans for the development were submitted to the Site Plan Review Committee for review and comment. The site development plans are entitled “West Barnstable Communities – Site A Comprehensive Permit Application W. Barnstable, Massachusetts dated June 26, 2006, last revised on November 28, 2006, as drawn by Horsley Witten Group and later modified by a Grading & Drainage Plan with a last revised date of November 9, 2006, submitted with the October 30, 2007, modification request. The entire set of plans consists of 11 sheets. The architectural plans for the proposed structures to be built are entitled “The West Barnstable Communities proposed 28 Unit Family Housing Development – Site “A” Rte 132, West Barnstable, MA - Developed by Housing Assistance Corporation” as drawn by Brown Lindquist Fenuccio & Raber Architects, Inc., dated 7-17-


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06 and consisting of 11 sheets and later modified by a supplemental drawing with a date of issue of October 8, 2007, submitted with the October 30, 2007, modification request.

Finding No. 12 is modified to read: The proposed project will be served by public water and an on-site nitrogen reduction wastewater disposal system. The applicant’s representatives have represented to the Board that sufficient area with suitable soil has been found to accommodate the on-site septic leaching system. The original proposal was to install a F.A.S.T. Innovative Alternative system, however, that was later modified to a “Presby System”. The system will reduce the nitrogen to 19 mg/l or lower. James Hatfield seconds. Ron Jansson indicates that he will be supporting finding #9 and 12 and has very strong concerns about Finding #8 and his reason is that the demonstrated need in the community for affordable housing is for young families and when you remove the ability of these families as was initially presented to this Board for have full storage facilities under each of their units you basically deter those families from seeking this housing in this area. Vote on Finding # 9 and 12: AYE: Dan Creedon, Ron Jansson, James Hatfield, John Norman, Gail Nightingale NAY: None Gail Nightingale indicates that she is voting in favor of all of them but would’ve like to seen basements but agreed that this was a minor modification. Dan Creedon then moves to modify conditions #2 and #3 as follows:

Condition # 2 is modified to read: Development of the site shall be in conformance to the site plans presented to the Board consisting of eleven (11) plan sheets. The Title Sheet of which is entitled “West Barnstable Communities – Site A Comprehensive Permit Application W. Barnstable, Massachusetts” dated June 26, 2006, as drawn by Horsley Witten Group. However, those development plans shall be modified to reflect the last general site plan submitted dated November 29, 2006 and revised to reflect the Grading & Drainage Plan with a last revision date of November 9, 2006. That last plan cited was submitted with the modification request of October 30, 2007, to eliminate the basements in all buildings except Building #5 as shown on the plan. The intent being to consolidate all storage for the units into the one basement level of Building #5.

Condition No. 3 is modified to read:

The structure to be constructed on the site shall be in strict conformance to the architectural plans presented to the Board consisting of eleven (11) plan sheets. The Title Sheet of which is entitled “The West Barnstable Communities proposed 28 Unit Family Housing Development – Site “A” Rte 132, West Barnstable, MA - Developed by Housing Assistance Corporation” as drawn by Brown Lindquist Fenuccio & Raber Architects, Inc.,


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dated 7-17-06 and as revised by 15 sheets with a date issue of October 8, 2007. The last revision cited was submitted with the modification request of October 30, 2007, to eliminate the basements in all building but Building #5 shown on the plan. The intent of that modification being to consolidate all storage for the units into the one basement level of Building #5.

James Hatfield seconds.

The vote on the motion was as follows: AYE: Daniel M. Creedon, James R. Hatfield, John T. Norman, Gail C. Nightingale NAY: Ron S. Jansson Ron Jansson for the reasons stated. Modifications Granted. Gail calls a recess at 8:10. Meeting called back into order at 8:18. She then calls the Morin case and reads a letter from Attorney Ford requesting a 6 month extension. Variance 2006-105 Jacques N. Morin

Request for 6-Month Extension of Variances

By letter received December 13, 2007 Attorney Michael D. Ford has requested on behalf of Jacques N. Morin a 6-month extension of Variance 2006-105 issued December 20, 2006 to Mr. Morin for property addressed 1358 Falmouth Road (Route 28), Centerville, MA. The subject lot is shown on Assessor's Map 229 as parcel 099. The variance was issued to permit the development of a single-family dwelling on an undersized non-developable vacant lot that had been abandoned under zoning. Members assigned: Kelly Lydon, Jerry Gilmore, Ron Jansson, Gail Nightingale Motion is made to extend the variance for a period of 6 months. James Hatfield seconds. Ron Jansson asks if the Board has the authority since it expired prior to the expiration date. Art Traczyk checks and indicates that the request was received by the Board prior to the expiration. Board discusses. Vote:\ AYE: Ron Jansson, James Hatfield, Jerry Gilmore, Kelly Lydon, Gail Nightingale NAY: None Variance extended 6 months from December 20, 2007.


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Extension granted. Gail Nightingale then recuses herself from the Corey appeals and turns the Chair over to Ron Jansson. Ron Jansson indicates that there are several appeals for Corey. He indicates that they have only recently received a part of the peer traffic review and as was reviewed by the engineering department. Art indicates that it was only recently received. Attorney Butler indicates that the report that they received from the peer reviewer he has received copies of it and there was a conversation between their experts, VHB, and the peer reviewer to clarify some issues and he anticipates in the short term having a report both by VHB and by the peer reviewer and will be in well ahead of January30th. Ron Jansson then reads the appeals into the record. Appeal 2007-009 Conditional Use Special Permit

Donald J. Corey, Jr., has petitioned for a Special Permit pursuant to Section 240-25(C) Conditional Use in a Highway Business Zoning District. The applicant seeks to designate a 30-foot wide easement from Wequaquet Lane to property addressed as 1030 Falmouth Road (Route 28), Centerville/Hyannis, MA. The easement is to be developed as a driveway for access to and egress from a proposed commercial development of 1030 Falmouth Road. The easement and drive is to be created over land addressed as 28 and 0 Wequaquet Lane, Centerville, MA, and 0 and 1030 Falmouth Road, Centerville/Hyannis, MA. The property is shown on Assessor’s Map 250 as parcels 024, 023X02, 023X01 and 065. The land is zoned Residence D-1 and Highway Business. Appeal 2007-010 - Anew Corey

Use Variance for Driveway Donald J. Corey, Jr., has applied for Variances to Section 240-11(A) Principal Permitted Uses and Section 240-11(E) Bulk Regulations of the Residence D-1 Zoning District. The applicant seeks to designate a 30-foot wide easement from Wequaquet Lane to property addressed as 1030 Falmouth Road (Route 28), Centerville/Hyannis, MA. The easement is to be developed as a driveway for access to and egress from a proposed commercial development of 1030 Falmouth Road. The easement and drive is to be created over land addressed; 28 and 0 Wequaquet Lane, Centerville, MA, and 0 and 1030 Falmouth Road, Centerville/Hyannis, MA. The property is shown on Assessor’s Map 250 as parcels 024, 023X02, 023X01 and 065. The land is zoned Residence D-1 and Highway Business. This Appeal is being re-noticed to allow for a new public hearing if necessary. Ron Jansson asks Attorney Butler if it would it be accurate to suggest that the other applications, once these are on the board, should be withdrawn. . Attorney Butler indicates that it would be their intention to request the continuance and upon that night determine whether or not the members who sat on the original applications are all


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present. If they are all present they will proceed with those and ask then to withdraw the new applications. In the event they don’t have a full Board made up of 5 members they would proceed under the new applications and reconstitute the board the difference of course being testimony being in but it is still in and they understand they would have to re-brief the Board. Ron Jansson then indicates to Attorney Butler that they would need extensions to be signed and handed in. Attorney Butler agrees. Ron Jansson then reads appeal 2006-024 into the record. Appeal 2006-024 – Continued Corey Conditional Use in a Highway Business

Members: Ron S. Jansson, James Hatfield, Daniel M. Creedon, Kelly Kevin Lydon, John T. Norman No Alternates

Opened March 22, 2006 continued April 12, 2006, May 24, 2006, July 26, 2006, September 13, 2006, November 15, 2006, January 3, 2007, January 31, 2007, March 28, 2007, May 23, 2007, July 11, 2007, September 26, 2007, November 7, 2007, and to January 9, 2008. Continued for additional review and input, including peer review of traffic.

Donald J. Corey, Jr., has petitioned for a Special Permit pursuant to Section 240-25 (C)(1) Conditional Use in a Highway Business District and a Modification of Special Permit 1969-66 issued to Father McSwiney Associates Inc. The applicant seeks to demolish the existing Knights of Columbus Hall and redevelop the site with a 9,801 sq.ft. retail building and related site improvements. Use of the site is to be that of retail sales of liquor. The property is addressed as 1030 Falmouth Road (Route 28), Centerville/Hyannis, MA, as shown on Assessor’s record as Map 250 as parcel 065, in a Highway Business and Residence D-1 Zoning District. Ron Jansson then indicates that Attorney Butler requests that this be continued to January 30th. Ron then asks if everyone on the Board here tonight is able to be here on the 30th. Ron indicates they are not constituting the Board tonight but will on January 30, 2008. Continued to January 30, 2008 at 7:00 PM. Gail Nightingale then takes over the Chair and calls the Ruscitto Appeal 2007-064 - Continued Ruscitto Special Permit Alter Nonconforming Dwelling

Opened August 8, 2007, continued to October 10, 2007, November 28, 2007, and to January 9, 2008.

Continued to allow for review of relief, possible alternative relief application, and/or development of revised plans. No new communication has been submitted to file. Last letter of November 16, 2007 noted the applicants were working towards an as-of-right building permit.


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Robert A. Ruscitto and Bette J. Ruscitto have petitioned for a Special Permit pursuant to Section 240-92.B for the Alteration/Expansion of Nonconforming Buildings Used as Single-family Residences. The petitioners propose to expand the existing dwelling with a two-story addition. The proposed addition is located 14.2 feet off Harbor View Road and is not in conformance with the current required front yard setback of 20 feet. The property is addressed as 73 George Street, Barnstable, MA and is shown on Assessor’s Map 319 as parcel 058. It is in a Residence B Zoning District.

Members Assigned: Ron Jansson, Randolph Childs, James Hatfield, John Norman, Gail Nightingale

Alternates Present: Jeremy Gilmore, Kelly Kevin Lydon

Gail indicates that Randy Childs is no longer here and assigns Kelly Lydon in his place.

No-one is here representing the applicant and there is no correspondence in the file. Gail makes the determination to continue this to January 23, 2008 at 8:00 PM.

Continued to January 23, 2008 at 8:00 PM She then calls the Berry appeal.

Appeals 2007-107 & 108 Berry

Opened December 5, 2007, continued to January 9, 2008. Continued to allow review and input/opinion of Town Attorney’s Office on wetland area calculation under the zoning ordinance definition.

Members Previously Assigned: Ron Jansson, James Hatfield, Sheila Geiler, John Norman, Gail Nightingale Alternates Present: Jeremy Gilmore, Kelly Kevin Lydon

Appeal 2007-107 Special Permit Demo/Rebuild on Nonconforming

Lot John P. Berry and Margaret D. Berry, Trustees of Ocean Street Realty Trust have petitioned for a special permit pursuant to Section 240-91.H(2) – Developed Lot Protection, Demolition and Rebuilding. The petitioners seeks to demolish the existing nonconforming single-family dwelling located on the lot and rebuild a new single-family dwelling maintaining an existing nonconforming front yard setback of 10.7 feet. The property is addressed as 111 Ocean Drive, West Hyannisport, MA, as shown on Assessor’s Map 266 as parcel 005. It is in a Residence B Zoning District.


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Appeal 2007-108 Bulk Variance – Lot Area & Setbacks

John P. Berry and Margaret D. Berry, Trustees of Ocean Street Realty Trust has applied for a variance to Section 240-11.E Bulk Regulations, Minimum Lot Area and Minimum Front Yard Setback. The applicants seek to demolish the existing single-family dwelling located on the undersized lot consisting of less than 43,560 sq.ft. and rebuild a new single-family dwelling situated 10.7 feet off the front property line. This relief is sought in the alternative to Appeal 2007-107. The property is addressed as 111 Ocean Drive, West Hyannisport, MA, as shown on Assessor’s Map 266 as parcel 005. It is in a Residence B Zoning District. Members assigned tonight: Ron Jansson, James Hatfield, Kelly Lydon, John Norman, Gail Nightingale Kelly Lydon is assigned in place of Sheila Geiler. Attorney Eliza Cox indicates she is here with Attorney Butler to represent the applicant, Peter Brown, the architect, Lynn Hamlin who is their wetlands expert. She indicates that since the last hearing in December, they altered the footprint and floor area. They submitted revised plans on January 2nd.. In the letter of January 2nd it shows the comparative 2242 which is a reduction of about 178 square feet. The total floor area excluding the garage and the basement on the proposed 2481 square feet which is in increase of 168 square feet. These still comply with the maximum floor area and lot coverage based on t heir upland calculation that is set forth in section 240-91H. Gail Nightingale clarifies that it doesn’t include the garage and indicates it needs to be included. Attorney Cox indicates that there was a mislabeling on the architectural plans and indicates that the south was labeled east and the east elevation was labeled south and will submit the corrected plan. She also indicates that they brought the house very slightly further away from the road. Presently it is about 10.6 feet from the road, the original plans submitted showed the house 10.7 feet from the road. With this minor change they are now at 11 feet. She then indicates that this was continued for determination of wetland definition. Since that hearing they have had hearings with Rob Gatewood – Conservation Agent and Ruth Weil – Town Attorney. They continue to believe that the calculation of 16630 square feet of upland is accurate. They did receive a copy of Attorney Weil’s letter to the Board regarding the parsing. She reads Ruth Weil’s letter. She then indicates that she has a wetlands expert here. She notes that Lynn Hamlin is a wetland scientist who represented them before the Conservation Commission. Lynn Hamlin speaks and indicates that there is no Town coastal bank regarding this property and that it is determined by two factors: how the slope of the land form intersects the 100 year floor elevation and on this is an elevation of 11, and the slope of the land form up to elevation 11 is less than 18% which is the Town’s standard for a steepness of slope to constitute a coastal bank. The State’s standard is 10% and this slope is approximately 14%. She also indicates it is not subject to tidal action and is only subject to storm frequency of 1 in 100 years and is not an eroding bank. She indicates that she has emails between her and Bob Gatewood regarding this and hands them to Art Traczyk.


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Ron Jansson asks Lynn Hamlin how her determination of coastal bank comports with the outline of Attorney Weil’s memo and asks if there is any other part of this she excluded. Lynn Hamlin indicates that lowland is a very specific definition of subject to flowage or flooding during the growing season annually and its repeated annual flooding with a frequency of 1 in 100 years. She explains the terms within the definition of coastal bank. She indicates that this is a stable land form and explains the slopage. Ron Jannson then asks if Mr. Gatewood concurred with her determination of the term of wetlands. Lynn Hamlin indicates that Mr. Gatewood concurred with her that the delineation was done property for the Conservation Commission and that the coastal bank definition does not fit into the zoning definition of a coastal bank wetland either. Kelly Lydon asks if there is any danger of the house going into the wetlands. Lynn Hamlin indicates no, and that there is no danger of this shifting and the tide has no effect. John Norman indicates that on the plan there was a picture taken which showed marsh trenches and based on the land is almost a defined line. John asks where her wetland line is. She points it out on a plan and indicates that the line was delineated using plant community and soils analysis. John and Lynn discuss wet meadows and the delineation. Attorney Cox summaries the relief being sought. Gail Nightingale asks if there is anyone here either in favor or in opposition. No-one spoke either in favor or in opposition. James Hatfield does findings: The applicants are John P. Berry and Margaret D. Berry, Trustees of Ocean Street Realty Trust and the address is 111 Ocean Drive, West Hyannisport, MA, as shown on Assessor’s Map 266 as parcel 005. It is in a Residence B Zoning District. .The applicants have petitioned for a special permit to demolish the existing nonconforming single-family dwelling located on the lot and rebuild a new single-family dwelling maintaining an existing nonconforming front yard setback of 11 feet. According to the Assessor’s information, the overall lot area, including wetlands, is 0.82-acres. It is currently developed with a 1.5-story, three bedroom, single family dwelling that has a gross area of 1,703 sq.ft., and an attached deck consisting of 640 sq.ft. The applicants have had an interest in the property since 1996. The Assessor’s record cites that the current building was built in 1965. The new home that the applicants are seeking to build would have a total footprint, including the decks of 2422 square feet and a total floor area including the garage of 2772 square feet. Attorney Butler confirms that figure.


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Based on the upland area of 16630 square feet, the changes for this new structure would comply with 240-91H.1.B of the zoning code which would allow in this particular lot up to 3324 square feet of lot coverage and up to 4989 square feet of floor area. The proposed new dwelling wouldn’t be substantially detrimental to the neighborhood than the existing dwelling that is there now. The application fall within the category specifically excepted in the ordinance for a grant of a special permit.

That after an evaluation of all the evidence presented, the proposal fulfills the spirit and intent of the Zoning Ordinance and would not represent a substantial detriment to the public good or the neighborhood affected.

Kelly Lydon seconds. Vote: AYE: Ron Jansson, James Hatfield, John Norman, Kelly Lydon, Gail Nightingale NAY: None Motion: Based on the positive findings move to grant the special permit along with the following conditions: 1. Redevelopment of the property shall be as proposed in plans submitted to the Board. The

proposed site plan is entitled “Title 5 Site Plan of 111 Ocean Drive West Hyannisport prepared for John & Margaret Berry” dated September 13, 2007, last revised October 3, 2007 as drawn by Down Cape Engineering, Inc. The Architectural Plan for the proposed dwelling is entitled “Renovations to the Residence of Mr. and Mrs. John P. Berry, 111 Ocean Drive West Hyannisport Massachusetts 02672” as drawn by Peter G. Brown, Architect dated January 9, 2008 and consisting of 4 sheets (A1, A2, A3, A4) to be signed by the Chairperson.

2. The location of the proposed structure shall conform to plans cited. The proposed front yard setback is based upon the existing front yard setback which is 11 feet off Ocean Drive. The side yard setback shall conform to the minimum district requirements of 10-feet.

3. The dwelling shall be for single-family use only. 4. Construction shall comply with all applicable building and fire codes. 5. Development shall comply with any order of conditions issued by the Conservation

Commission and with any requirements of the Board of Health and the variance issued for the on-site septic system.

6. During all stages in the demolition and reconstruction of the dwelling, all vehicles, equipment and materials associated with the demolition/reconstruction shall be required to be located off the right of way of Ocean Drive except as may be required to install utilities and landscape and then only on a temporary basis.


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7. All mechanical equipment associated with the dwelling (air conditioners, electric generators, etc.) shall be located so as to conform to the minimum required setbacks for the district. All mechanical equipment shall be screened from neighboring homes and ways.

8. The development authorized by this decision shall be considered full buildout of the lot and there shall be no further construction permit including expansion of the building in terms of footprint or in terms of gross building area. Without further permission of the Zoning Board. (added)

9. This decision must be recorded at the Barnstable Registry of Deeds and a copy of that recorded document must be submitted to the Zoning Board of Appeals Office and to the Building Division before any demolition or building permit is issued. The relief authorized must be executed within one year of the filing of this decision.

Kelly Lydon seconds. Ron Jansson asks if there is another set of plans. Gail Nightingale indicates there is another site plan. Attorney Butler indicates it is Title V site plan which is updated and was originally dated September 13, 2007 and revised October 11, 2007 and December 31, 2007. Kelly Lydon seconds that. Attorney Butler requests that the condition #8 be modified to so that in the future, someone could come back and expand with the Board’s approval. Gail Nightingale concurs Kelly Lydon seconds the amendment. Vote: : AYE: Ron S. Jansson, James R. Hatfield, John T. Norman, Kelly Kevin Lydon, Gail C. Nightingale NAY: None

SPECIAL PERMIT GRANTED Attorney Cox then requests to withdraw without prejudice, the variance that they also submitted. Ron Jannson moves on appeal 2007-108 to allow the applicants to Withdraw without Prejudice. James Hatfield seconds. Vote: AYE: Ron S. Jansson, James R. Hatfield, John T. Norman, Kelly Kevin Lydon, Gail C. Nightingale NAY: None

VARIANCE IS WITHDRAWN WITHOUT PREJUDICE


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Gail Nightingale then calls the MacDonald remand appeal. Remand Appeal 2004-143 McDonald

Bulk Variance to Separate Merged Lots

Opened August 8, 2007, continued September 26, 2007, November 7, 2007, November 28, 2007, and to January 9, 2008.

Members Assigned: Ron S. Jansson, James R. Hatfield, John T. Norman, Kelly Kevin Lydon, Gail C. Nightingale - Associates Present: Jeremy Gilmore Confirmatory Memorandum dated November 27, 2007 and signed by Tom Perry, Building Commissioner has been submitted to the file documenting Commissioner’s agreement that the subject lot is a buildable lot as-of-right. Continued to allow processing at Superior Court a stipulation of dismissal of the appeal filed against the Boards decision to not grant appeal 2004-143.

By mutual agreement, Appeal 2004-143 of Thomas F. McDonald and Patricia S. McDonald has been remanded back to the Zoning Board of Appeals for a variance to Section 240-13E – Bulk Regulations, Minimum Lot Area (formerly Section 3-1.3(5) of the Zoning Ordinance). The variance seeks to divide two undersized merged lots so that each would be considered separate buildable lot under zoning. The subject lots are addressed as 242 and 244 Rolling Hitch Lane, Centerville, MA as shown on Assessor’s Map 193 as Parcels 239 and 240. The property is in a Residence C Zoning District.

Members assigned tonight: Ron Jansson, James Hatfield, John Norman, Kelly Lydon, Gail Nightingale Attorney Patrick Butler is representing the applicants. He indicates that a stipulation of dismissal with prejudice was filed in the Barnstable Superior Court based upon a written determination of the Building Commissioner. He indicates that he is orally report that this stipulation of dismissal with prejudice was filed and requests that this appeal be withdrawn with prejudice. Motion is made to withdraw with prejudice. James Hatfield seconds. Vote: AYE: Ron Jansson, James Hatfield, John Norman, Kelly Lydon, Gail Nightingale NAY: None

WITHDRAWN WITH PREJUDICE.

Gail Nightingale then gives a summary on her amnesty program tonight. One was continued and one received a 6 month extension to the DaSilva appeal.

At 10:08 she calls the Ford appeal Appeal 2007-086 – Continued Ford

Special Permit for Demo/Rebuild


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Opened October 24, 2007, continued November 28, 2007, and to January 9, 2008. Continued to allow review and input/opinion of;

• Town Attorney’s Office on wetland area calculation under the zoning ordinance definition,

• Building Commissioner on floor area ration and gross building area calculation. • Staff review of revised plans submitted at hearing

Members originally assigned: Ron Jansson, James Hatfield, John Norman, Sheila Geiler, Gail Nightingale Alternates Present: Jeremy Gilmore, Kelly Kevin Lydon William P. Ford, Jr., and Kathleen M. Ford, have petitioned for a special permit pursuant to Section 240-91.H(2) - Demolition Rebuilding on a Pre-existing Nonconforming Lot not in conformance to the required setbacks for the district. The petitioners seek to demolish the existing structure on a lot and rebuild a new larger single-family dwelling. The location of the proposed structure does not conform to the required 20-foot front yard setback off Goodview Way but is not more intrusive that the existing dwelling. The subject property is addressed as 116 Goodview Way, Barnstable, MA and is shown on Assessor’s Map 319 as parcel 086. It is in a Residence B Zoning District. Members assigned tonight: Ron Jansson, James Hatfield, John Norman, Jerry Gilmore, Gail

Nightingale Alternates Present: Kelly Kevin Lydon. She replaces Sheila Geiler with Jerry Gilmore.

Chris Childs of Patriot Builders is here representing the applicant. He indicates that following the last hearing, they have submitted a revised plan which brought the FAR into conformity. Also, on January 4th the Town Attorney had reviewed the wetland definition for the limit of upland calculation that they could use the bottom of the bank. They submitted a revised plan with additional floor area on the second floor in the hallway or loft space immediately adjacent to the garage which they have added approximately 116 square feet. The new FAR is 4074 which does conform to the FAR in the bylaw. Gail Nightingale asks if Art Traczyk confirmed the measurements which he indicates that he has not but suggests they are correct. Ron Jansson asks what the difference is in the last and new plans are. Art Traczyk indicates that the second floor is extended several feet out over the garage area on the first floor and there are slight adjustments to make the additional footage. Ron Jansson asks if it is an increase in the overall size of the house. Chris Childs indicates that they did not increase the overall size of the house they increased some floor area in a space already built and they essentially have revised the plan to eliminate two bedrooms above the garage and brought the wall back. He points it out of the plan. He indicates that when they received the determination that they had more room available so they shifted the wall to make this space more usable. It doesn’t change the roofline or exterior appearance. Ron Jansson asks how many bedrooms it will have now. Chris Childs indicates three.


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Ron Jansson asks what the existing height from the median ground to the peak of the roof. Chris Childs indicates 31.5 foot. Ron asks how high to the plate. Chris Childs believes it to be 20 or 22 feet. Ron Jansson asks what the current house height is. Chris Childs indicates it is presently a 1.5 story house and it is currently 16 or 18 feet from ground level up to the ridge line. Ron Jansson asks if the proposed footprint is larger than the existing. Chris Childs answer yes. Gail Nightingale indicates that there is a letter in the file dated January 2, 2008 from John W. & Kathleen P. Maloney, abutters on Goodview Way. She reads the letter which indicates that he had spoke at the last hearing and is still is in opposition to massing of the house on the lot. He indicates that when Mr. Ford asked the neighbors to sign the petition for the demo/rebuild he showed no plans. Chris Childs indicates that the lot is 18295 square feet and the upland consists of 13679 square feet which can be used. He then shows photos of other houses similar to what they are proposing. James Hatfield asks what the new number for the square footage is now. Chris Childs indicates the floor area is 4074 square feet which includes the garage. James Hatfield asks what it was at the last hearing. Chris Childs indicates that it was over 5000 square feet if the garage area was included. He has now eliminated the two bedrooms above the garage and vaulted the garage ceiling to eliminate that floor area and brought it into conformance. They submitted a new plan as allotted to the bottom of the coastal bank which added some square footage to take advantage of the additional square footage. Jerry Gilmore asks for clarification on what the square footage was and now is. Gail Nightingale asks about the plan for the third floor. Chris Childs indicates that there is no third floor but there is an attic space. Gail asks if he included that in the floor area. Gail Nightingale clarifies that if attic space, if livable, is included. Art Traczyk indicates that he believed it was suppose to be braced. Chris Childs points out the attic space accessible by a scuttle and is not a living space and that there is a window for aesthetics. They discuss the definition of half-story. Jerry Gilmore asks if the ridge and plate is in conformance. Chris Childs indicates that it is in conformance. Gail Nightingale indicates that the sketch shows windows. Chris Childs indicates that the plan she is referencing was done for the Old King’s Highway file. Gail Nightingale asks if he has lowered the roof since. Chris Childs indicates that Old King’s Highway was also concerned with the height and they lowered the plate and the pitch of the roof to bring the scale down.


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Gail Nightingale asks about dormers over the garage. Chris Childs indicates they have eliminated the dormers over the garage. Gail wants to know if they have a complete new set of plans. Ron Jansson indicates that the Board has a revised floor plan submitted on December 28th but no elevations. Chris Childs indicates that they did not revise the elevations. Gail Nightingale indicates that the plans dated January 8th shows windows over the garage. Chris Childs indicates there are windows in the gabled ends and did not change any exterior structure of any portion of the building. All they did is eliminated the floor area within the garage by vaulting the ceiling so that the space above the garage cannot be developed into living space and the windows in the attic above the main living space are in the gabled ends only. There were eye browed dormers which have been eliminated. Jerry Gilmore clarifies that the dormers over the garage were eliminated because of the elimination of those two bedrooms. Chris Childs answers no, the eye browed were over the main house. Jerry comments that the further development over the garage included dormers and asks if that is what he eliminated. Chris Childs answers no, the dormers over the garage are still there. Jerry comments that he thought he had just said that just the ones on the gabled ends. Chris Childs said that the windows on the gabled ends of the attic, and he was speaking about the attic. Chris Childs indicates that the eye browed dormers in a plan that was never submitted to this Board have been eliminated but the windows in the gabled ends of the attic have remained. Gail Nightingale indicates that because of the multiple plans before them they are looking at the January 8th plans and asks if the exterior has changed since. Chris Childs indicates that it is the same as was submitted in September. Ron Jansson asks Chris Childs indicates that the FAR is at .29%. Ron Jansson comments that he is concerned about consistency with the neighborhood and appreciates their attempts to comply. James Hatfield indicates that he is also concerned as it is a small neighborhood and that a smaller house would be more suitable but notes the efforts to reduce the house and would support what is being proposed. Gail Nightingale comments that the height of the house would hinder other neighbor’s views. Mr. Ford indicates that the garage is higher than what is presently there but the base is about the same. He indicates he would like a larger house in order to accommodate his family when they are here. Chris Childs indicates that the roof starts just above the second floor and lowering it anymore reduces the usable second floor area as there are sloping roofs in a lot of those rooms which makes those rooms smaller than they appear on the plan because the plan just shows the floor area which is included in the FAR. The garage roof it was a choice to leave the garage height where it is in terms of the eave line around the building it all lines up with each other and is an aesthetic choice to leave it that way. If it is lowered it may be disconnected from the main house and not be in proportion with what is there.


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James Hatfield asks what the living area is minus the garage. Chris Childs indicates it is 3507 square feet with the garage it is 4074 square feet and is not counting the attic. He understood that the attic was not counted as it was not habitable space. James Hatfield does findings: Regarding appeal 86 of 2007, the petitioner is William P. Ford, Jr., and Kathleen M. Ford. Property address is 116 Goodview Way, Barnstable, Assessor’s Map 319 as parcel 086. It is in a Residence B Zoning District. The applicants have petitioned for a special permit pursuant to Section 240-91.H(2) - Demolition Rebuilding on a Pre-existing Nonconforming Lot not in conformance to the required setbacks for the district. The applicants want to demolish the existing structure on a lot and rebuild a new larger single-family dwelling. The location of the proposed structure does not conform to the required 20 foot front yard setback off Goodview Way. The existing dwelling is situated 10.4 feet off Goodview Way to the westerly side of the lot. The subject lot has 13,203 sq.ft. of upland as measured to the top of the coastal bank. The subject lot was created by Land Court Plan 19221-A filed with the Registry of Deeds on October 26, 1944. Chris Childs interjects and indicates that it is 13,679 square feet to the bottom of the coastal bank. The existing structure dates aback to 1952. It is a one-story, 1,026 sq.ft., three-bedroom, single-family dwelling with an attached 492 sq.ft., garage and two attached decks that total 744 square feet The property is located in that area of Barnstable generally known as “Common Fields”. This area was developed with single-story seasonal cottage structures on small lots. The applicants want to replace the current home with a new, 2.5 story structure that will have a total square footage of 4074 square feet and will have 3 bedrooms plus a den and a 3 season enclosed porch. Chris Childs interjects and indicates that it is not a 3 season porch, just a screened in porch. James Hatfield asks if the elevations are the same. Chris Childs indicates yes. James Hatfield then continues and says that architectural plans shows that the building measurements to be 88 X 48 feet overall. The structure measures 32.5 feet to the highest point ridge and 19 feet to the highest roof plate. Chris Childs informs him that it should be 31.5 feet to the highest roof ridge. James Hatfield accepts the correction. The new home will be situated 12 feet off Goodview Way as that roadway borders the lot on the westerly side. That intrusion is not more detrimental than what is already there. The applicant has been before the Old King’s Highway and the proposed home was approved by them. The proposed new dwelling would not be substantially more detrimental to the neighborhood than the existing dwelling


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It falls within the category specifically excepted in the ordinance for the grant of a special permit. After evaluation of all the evidence presented it fulfills the spirit and intent of the zoning ordinance and wouldn’t represent a substantial detriment to the public good or neighborhood affected. Jerry Gilmore seconds. Vote: AYE: James Hatfield, Jerry Gilmore NAY: Ron Jansson, John Norman, Gail Nightingale Ron Jansson finds it would be substantially detrimental and this is not consistent with the overall sizes overall in the neighborhood in terms of both length and height and that a smaller house could be built on the lot to be more consistent with the overall size of the houses on Goodview and surrounding roadways. John Norman indicates that he would find that the massing on this lot would not be in keeping with the neighborhood as it exists and would create a substantial detriment to the surrounding neighborhood Jerry Gilmore indicates that he is voting in the affirmative as it comports to all regulations to height to plate, lot coverage, and living area. Gail Nightingale indicates that she is voting in the negative under 240-91-H-2 (c), as she feels the proposed new dwelling cannot comply with that and that it would be more detrimental to the neighborhood than the existing dwelling. She indicates there are 3 negative and 2 positive votes and needs a positive motion. Chris Childs asks if they could ask for a continuance at this James Hatfield moves that they grant the special permit to the applicants for the demolition and rebuilding according to section 240-91-H-2. Jerry Gilmore seconds. Vote: AYE: James Hatfield, Jerry Gilmore NAY: John Norman, Ron Jansson, Gail Nightingale Motion does not carry. Board and applicants discuss what can be done with other plans.

NOT GRANTED

Ron Jansson explains that he come back with substantial changes to the plan.

Gail Nightingale then wants everyone to review the minutes to accept the minutes.


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Motion to adjourn. Motion seconded. Meeting adjourned at 10:50 PM.



A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday, January 23, 2008 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Arthur Traczyk, Principal Planner and Carol Puckett – Administrative Assistant. Gail Nightingale Present Ron Jansson Arrives at 7:09 Daniel Creedon III Absent James Hatfield Present Sheila Geiler Present John Norman Present Jeremy Gilmore Present Kelly Lydon Present

Chairman Gail Nightingale opens the hearing and reads a summary of the appeals being heard tonight. She indicates that everyone that sat on the Centerville Gardens hearing are not here as of yet. She calls a two minute recess. At 7:04 PM she calls the Holmes & Holmes appeal Appeal 2008-002 - New Holmes & Holmes

Modification of Use Variance 1996-152

Mark S. and Austin S. Holmes have applied for a modification of Use Variance 1996-152, Condition No. 3 that restricted that variance to a Karen J. Lovasco-Sutton. The variance allowed for a studio apartment within the existing dwelling and the applicants seek to have that variance transferred to them. The subject property is shown on Assessor’s Map 270 as parcel 016, commonly addressed as 90 Dunn’s Pond Road, Hyannis, MA. The property is in a Residence B Zoning District. Members assigned: Sheila Geiler, John Norman, James Hatfield, Kelly Lydon, Gail Nightingale


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Mr. Holmes indicates that his brother and himself want to keep the variance and don’t want to rent it out to anyone. Gail Nightingale asks if they have applied for a family apartment. Mr. Holmes indicates that he talked to Art Traczyk and that they were pointed to the ZBA from Linda Edson. Gail Nightingale indicates that they could be eligible for a family apartment instead of the relief being sought. Mr. Holmes indicates that they were not aware of a variance until the tenant moved out. Gail again indicates that he should be eligible for a family apartment. Gail Nightingale recommends that we continue this to February 27th at 7:30. In the meantime, the Building Commissioner may grant a family apartment as of right. Continued to February 27, 2008 at 7:30 PM. She then calls the Duquette hearing at 7:10 PM as this is a shorter appeal. Appeal 2008-004 - New Duquette

Modification of Variance 2006-090

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Donald and Virginia Duquette have applied for a modification of Variance 2006-090, that allowed for a detached family apartment. Condition No. 5 of the variance restricted further expansion of the buildings on the property and the applicants are seeking to add a 10 foot by 12 foot addition to the main dwelling. The property is addressed as 41 Overlook Drive, Centerville, MA and is shown on Assessor’s Map 188 as parcel 086. It is in a Residence D-1 Zoning District. Members assigned: James Hatfield, Ron Jansson, Sheila Geiler, John Norman, Gail Nightingale Mr. Duquette and his wife are here and they are representing themselves. Mr. Duquette indicates that he is here to have an alteration to the dwelling and indicates that they have put in a new septic. Ron Jansson asks if the new addition will conform to the setbacks. Mr. Duquette indicates yes and gives the dimensions. Ron Jansson then asks for a site plan and indicates to Mr. Duquette that he will need a new site plan when he pulls a building permit and would like it submitted to this file. Gail Nightingale asks if there is anyone here either in favor or opposition. No one spoke. Ron Jansson does findings This is appeal 2008-004. It is an application for a modification of variance 2006-090. The petitioners are Donald and Virginia Duquette. The property is located at 41 Overlook Drive in Centerville on Assessor’s Map 188, Parcel 086 and is in the RD-1 zoning district.


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The applicants have the benefit of a variance that was granted in 2006 which a copy of that is attached to the staff report. Under the terms and conditions of the variance, the applicants were allowed to make legitimate, a detached family apartment unit. The applicants now seek to add a 10 X 12 foot addition not to the apartment unit, but to the primary family unit. The applicants understand that in all other regards that the variance that was granted in 2006 will have to be adhered to including the criteria for a family apartment. The proposed addition will not encroach into any of the setback requirements under our zoning bylaw. In view of the fact that this is a modification of a variance, this is not governed by the provision of Chapter 40A section 10 but rather the criteria that needs to be applied is whether or not the proposed modification will be substantially detrimental to the neighborhood affected and whether or not the granting of such a modification would be in derogation of the spirit and intent of the zoning bylaw. The proposed addition due to its small size would not be in derogation of the spirit nor the intent of the zoning bylaw since he could normally do this as a matter of right were it not for this condition. It would not be objectionable to the neighborhood in view of the fact that it is not encroaching into the sidelines or creating a massive building that would deter from the overall buildings already in existence. James Hatfield seconds. No discussion on the findings. Vote: AYE: James Hatfield, John Norman, Sheila Geiler, Ron Jansson, Gail Nightingale NAY: None Motion is made based on the unanimous, findings by the Board, he moves to grant the applicant the right to modify condition #5 only of the variance that was granted in appeal 2006-090 subject to the following terms and conditions. 1. This modification is granted to permit a 10 by 12-foot one-story addition only to the existing

principal dwelling as per plans submitted and to be initialed and dated by the Chairman and are entitled “New Proposed Addition Mr. and Mrs. Donald D. Duquette, 41 Overlook Drive, Centerville, Massachusetts” dated October 11, 2007 as drawn by Lloyd M. Sherwood - Architect.

2. This modification shall be recorded at the Barnstable Registry of Deeds. A copy of that recorded document shall be submitted to the office of the Zoning Board of Appeals and to the Building Division prior to the issuance of any building permit.

3. With reference to the conditions imposed in appeal 2006-090 all conditions imposed therein shall remain unmodified other than condition #5.

4. The applicant upon applying for a building permit shall submit an engineered site plan showing that the addition is in conformity with all setback requirements bearing the engineer’s or surveyor’s seal on it and will remain part of the file as well.


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5. If the variance is not recorded and a building permit for the addition applied for within one year of the filing of this variance with the Town Clerk, this variance shall expire. Any variance in terms and conditions in the grant of this relief shall be ground for this Board to rescind this modification.

James Hatfield seconds. No discussion. Vote: AYE: James Hatfield, John Norman, Sheila Geiler, Ron Jansson, Gail Nightingale NAY: None GRANTED WITH CONDITIONS Gail Nightingale calls the Ladner appeal at 7:20 PM Appeal 2008-005 - New Ladner

Bulk Variance, Minimum Front Yard Setbacks

Thomas Ladner has applied for a Variance to Section 240-11.E, Bulk Regulations, Minimum Front Yard Setbacks. The applicant seeks to maintain a recently built attached garage, mudroom and deck to remain as built located 11.3-feet off Frost Lane where a minimum 20-foot front yard setback is required. The property is addressed as 101 Frost Lane, Hyannis, MA and is shown on Assessor’s Map 289 as parcel 013. It is in a Residence B Zoning District.

Mr. Ladner is here and indicates that Mr. Leif Bottcher, who is representing the applicant, is on vacation and has asked for a continuance.

Continued to Feb 27th at 7:45 PM

Gail Nightingale and James Hatfield recuse themselves as the Centerville Gardens will now be heard. Ron Jansson takes over the chair.

Appeals 2007-99, 100 & 101 Continued Centerville Gardens Redevelopment

Opened October 24, 2007, continued December 5, 2007, and to January 23, 2008. Continued to allow for input of Growth Management Department on access way to Wequaquet Lane.

Members Assigned: Sheila Geiler, Jeremy Gilmore, Kelly Kevin Lydon, John Norman, Ron Jansson

No Alternates Present


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Appeals 2007-99 - Conditional Use in a Highway Business - Centerville Gardens, LLC, has petitioned for a Special Permit pursuant to Section 240-25 (C)(1) Conditional Use in a Highway Business District to allow for drive through banking. The applicant seeks to redevelop the site for office and banking use to include three drive-up lanes for banking. The property is addressed as 1060 & 1080 Falmouth Road (Route 28), 28 and 36 Wequaquet Lane, Centerville/Hyannis, MA, as shown on Assessor’s Map 250 as parcel 024, 023-X01, 023-X02 and 027-X02. It is in a Highway Business and Residence D-1 Zoning Districts. Appeal 2007-100 - Use Variance for Driveway -Centerville Gardens, LLC, has applied for Variances to Section 240-11(A) Principal Permitted Uses and Section 240-11(E) Bulk Regulations of the Residence D-1 Zoning District. The applicant seeks to designate a 30-foot wide easement from Wequaquet Lane to property addressed as 1060 Falmouth Road (Route 28), Centerville/Hyannis, MA. The easement is to be developed as a driveway for access to and egress from a proposed office and bank development at 1060 Falmouth Road. The easement and business driveway is to be created over land zoned for residential use only. The property is addressed as 1060 Falmouth Road (Route 28), 28 and 36 Wequaquet Lane, Centerville/Hyannis, MA, as shown on Assessor’s Map 250 as parcel 024, 023-X01, and 023-X02. It is in a Highway Business and Residence D-1 Zoning Districts. Appeal 2007-101 - Special Permit Structural Nonconformity in Site - Centerville Gardens, LLC, has petitioned for a Special Permit pursuant to Section 240-93.B Alteration Expansion of Nonconforming Building and Structure. The permit is sought to allow the continued nonconformity of the site with respect to the Groundwater Protection Overlay District requirement of 30% of the site to be retained in a natural state. The property is addressed as 1060 & 1080 Falmouth Road (Route 28), 28 and 36 Wequaquet Lane, Centerville/Hyannis, MA, as shown on Assessor’s Map 250 as parcel 024, 023-X01, 023-X02 and 027-X02. It is in a Highway Business and Residence D-1 Zoning Districts. Ron Jansson explains why this was continued and indicates that Patty Daley – Director of Growth Management Department is here and asks her to speak. Patty Daley indicates that they had been speaking informally with the proponent and the abutting proponent which is also up for development. She indicates that the Growth Management Department’s concern regarding the development of this parcel and the adjacent parcel is the congestion on Route 28 and the potential for left turning movements into those two properties on Route 28. She indicates that left turning movements often creates a necessity to stop and wait which backs up traffic which causes more congestion on the roadway. She indicates that there is a signalized intersection right near those properties that could accommodate those left turns and that they have been working with the property owners to try and come up with an alternate that would relieve the congestion. What came out of those discussions was the proposed rear driveway which is before the Board. She indicates that her department feels that by allowing this rear driveway, which is on the edge of the residential district, will significantly reduce traffic congestion on Route 28. She indicates that they have also discussed with the proponents to do interconnections through the parking lots and is aware that the prior CVS decision had made that a requirement. In looking at the way the properties are set up it didn’t seem appropriate to channel all the left hand turns through the CVS parking lot but was a better option to create this rear driveway. She indicates that they have been meeting with this proponent and the abutting proponent for several months and this was their


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recommendation for the best option for reducing congestion on Route 28 resulting from the development of this property and the neighboring property. Ron Jansson indicates that he has concerns regarding traffic flowing through a residential area and asks if there is a way that the applicant could meet with staff and consider the possibilities of right in, right out only on Route 28 and work out current access issues with the current owners. Patty Daley indicates that right in and right out is difficult to enforce and it is difficult to create a curb cut that drivers will obey. She indicates that they have been discussing a median strip with another proponent to prevent those types of movements. She also agrees with Mr. Jansson that use variances should be granted sparingly but is advocating this use variance. Ron Jansson indicates that he would find it difficult to grant a use variance under Section 10 of Chapter 40A and asks again if there is any way that staff and proponents could meet. Patty Daley indicates that they would be glad to meet further with parties involved. Sheila Geiler asks if the other proponent with whom the median strip was discussed was the abutter (Blanchard’s). Patty Daley indicates that Growth Management has been suggesting a median strip to the proponents of Blanchard’s which she indicates has not been a welcome suggestion. Sheila Geiler comments about deliveries being made in a residential area. Patty Daley indicates that if right in, right out only curb cuts for both proposed properties it would accept deliveries for right turning trucks so that only the left turning trucks would be using the rear driveway. Sheila asks if the deliveries are made to the rear of the building. Patty indicates that if she thought this was going to be a bypass road she wouldn’t recommend it and is unconcerned and that it has been discussed. Ron Jansson indicates that the applicant could put a bank and office without a drive-through as of right but because of the Route 28 traffic issue, he again suggests a meeting. Steve Miele, the applicant, indicates that the only alternative which he doesn’t believe would work, would be a joint access with Blanchard’s. However, Growth Management has already indicated to Blanchard’s that they have to find a secondary egress out which would be that driveway out the back. Therefore, he doesn’t see how that would work. He indicates that a letter in opposition from CVS regarding the traversing of traffic over the cross easement agreement which he has with them would be the only other alternative but would be a major issue. Ron Jansson gives the applicant the opportunity to work something out with staff regarding his appeal. Attorney Lawler wants two or three minutes to consult with his client.


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Steve Miele indicates that his plan would have been to have his own curb cut onto Route 28 and a cross connection with CVS but hasn’t had a chance to do that. Steve Miele asks Patty Daley if his plan would be a problem. Patty Daley indicates that she would want to think about it. Ron Jansson calls a brief recess at 7:45 in order for Mr. Lawler to consult with his clients. Ron Jansson calls the hearing back in session at 7:55 PM. Attorney Lawler indicates that another meeting may be helpful. Ron Jansson indicates that he wants to keep the public record open. Ron asks if there is anyone here from the public who would like to speak either in favor or in opposition. Paul Cooper at 46 Wequaquet Lane speaks and indicates that he lives just north of the proposed driveway. He indicates that he is concerned about the truck traffic from Phinney’s Lane to Wequaquet Lane and indicates that he was told by Mr. Lawler it would increase traffic by approximately 350 cars and believes this will impact the quality of life in this neighborhood. He indicates that it will only be about 200 feet from the CVS entrance/exit and will make it impossible with the traffic. He indicates that it could impact the safety of the children coming home from school. Penelope Psomos – attorney and member of the Greek Orthodox Church, is here to speak for the church and indicates that they are concerned about the traffic in this area. She indicates that on any given week there are weekly social groups, religious groups, classes with children, church functions, church diners, banquets, dances, private parties and also the occasional flu clinic and vote polling place at the church. She indicates that maybe the church would agree to the right in/right out and that maybe some option could be a viable solution and more acceptable to the church and welcomes any suggestion that would be helpful Leo Lordy who has lived there at 12 Wequaquet Lane, across from CVS for 30 years, speaks and indicates that in the summertime he can hear the screeching cars and traffic. He indicates that there is a lot of traffic from children going to school. He doesn’t think it is fair for the neighbors, and that this would have a terrible impact on the residential area. Chris Alex who lives of 44 Sugar Hill Drive in Harwich and is a member of the Greek Church, speaks. He is concerned with traffic. He indicates that Patty Daley assumed that the traffic would turn left but he thinks it will turn right. He indicates that it is a danger to the children and the children of the church. He thinks the traffic congestion will be dangerous. Michelle Goodwin who lives at 39 Wequaquet Lane speaks and indicates that she is the one neighbor this would abut to and would be very disappointed if this went through. She indicates that she thinks they should be held to the same standards as someone trying to build a 3 car garage in an area where it is not permitted.. No-one else speaks.


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Ron Jansson indicates that this will be continued to January 30th at 7:30 PM and be held open for public comment. CONTINUED TO JANUARY 30, 2008 at 7:30 PM. Ron then turns the chair back over to Gail Nightingale Gail Nightingale calls the Carpenter appeal Appeal 2007-093 - Continued Carpenter

Special Permit Expansion of Single Family Dwelling

Opened November 28, 2007, continued to January 23, 2008 as the applicant/representative was present at the opening of the hearing.

Samuel R. & Sharon O. Carpenter have petitioned for a Special Permit pursuant to Section 240-92.B - Alteration or Expansion of Nonconforming Buildings or Structures Used as Single- and Two-family Residence. The applicants seek to remodel and expand the existing single-family dwelling located on the property. The proposed locations of the alterations do not conform to the required setbacks. The property is addressed as 10 Clark Avenue, Centerville (Craigville), MA. It is shown on Assessor’s Map 226 as parcel 049. The property is in a Residence C Zoning District. Members assigned: Sheila Geiler, John Norman, James Hatfield, Jerry Gilmore, Gail Nightingale. Kelly Lydon is assigned as an alternate. Michael Gaspard is here representing the client and indicates that they want to bring the house back to what was originally there and bring it up to a livable standard. He indicates that that work to be done will not be going outside of the footprint. Kelly Lydon clarifies that he just wants to modernize the house and is trying to bring it up to code. Kelly asks if the septic needs to be updated. Michael Gaspard indicates that his client is not expanding bedrooms just more headroom upstairs. Kelly asks if this will be year round. Mr. Gaspard indicates that the applicants live out of state and visit here occasionally. John Norman asks if the septic is tied into the community septic system and whether this will be a problem getting a building permit prior to it being tied into the system. Mr. Gaspard indicates that this probably won’t proceed until September of 2008 and by that time it should be tied into the community septic system. Gail Nightingale asks if there is anyone here from the public either in favor or in opposition. No one speaks and Gail indicates that there are no letters in the file either in favor or in opposition.


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James Hatfield does findings Samuel R. & Sharon O. Carpenter have petitioned for a Special Permit pursuant to Section 240-92.B - Alteration or Expansion of Nonconforming Buildings or Structures Used as Single- and Two-family Residence. The applicants seek to remodel and expand the existing single-family dwelling located on the property. The proposed locations of the alterations do not conform to the required setbacks. The property is addressed as 10 Clark Avenue, Centerville (Craigville), MA. It is shown on Assessor’s Map 226 as parcel 049. The property is in a Residence C Zoning District The subject locus is a 3,792 sq.ft. lot developed with a 1,600 sq.ft.1, 2 ½ story, five-bedroom single-family dwelling. According to the Assessor’s record, the structure dates back to 1910 and is located in that historic area of Craigville commonly referred to as Christian Camp Meeting House Area. The petitioners, Samuel R. & Sharon O. Carpenter, purchased the property in July of 2003

The lot is undersized and the structure infringes into the required 20-foot front yard setbacks. The setbacks established by the structure are:

• 6.3-feet to Summerbell Avenue,

• 7.4-feet to Clark Avenue, and

• 1.0 foot to Pleasant Avenue.

The petitioners tonight are seeking to expand and alter the existing structure. They want to increase the gross area which now is 2496 square feet to 2721 square feet. This will be an increase of 225 square feet.

This addition would be within the existing footprint of the building and there will be no additional increase in the degree of nonconformity in terms of the setbacks.

This proposed alteration or expansion will not be substantially more detrimental to the neighborhood than the existing building or structure specifically for the reasons he just mentioned, basically it will be within the same footprint of the existing house and it a relatively small expansion of 225 square feet.

The granting of the special permit also requires the following finding of facts to be made by the Board:

• that the application falls within a category specifically excepted in the ordinance for a grant of a special permit,

• that after evaluation of all the evidence presented, the proposal fulfills the spirit and intent of the zoning ordinance and would not represent a substantial detriment to the public good or the neighborhood affected.

Jerry Gilmore seconds.


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No discussion.

Vote: AYE: Jerry Gilmore, James Hatfield, John Norman, Sheila Geiler, Gail Nightingale NAY: None

James Hatfield makes a motion based upon the unanimous positive findings to grant the special permit along with the following conditions:

1. The alterations and expansion of the structure shall be in accordance with plans submitted to the Board. The plot plan for the improvements is entitled “Plot Plan of Land Located at 10 Clark Avenue, Craigville, MA., prepared for: Samuel & Sharon Carpenter” dated July 9, 2007 as drawn by Yankee Land Surveyors & Consultants. The architectural elevations for the improvements area entitled Carpenter Residence 100 Clark Ave. Centerville MA and consist of 4 sheets titled Front Elevation -Pleasant Avenue, Side Elevation - Clark Avenue, Side Elevation, and Rear Elevation - Summerbell Avenue. The floor plans are entitled “Carpenter Residence 10 Clark Ave. Centerville. MA” and consist of two sheets.

2. All construction shall conform to all applicable Building Codes, Fire regulations and Board of Health requirements.

3. All exterior mechanical equipment (electrical generators, air conditioning units, etc…) shall be located to conform to the district setback requirements and shall be screened from neighbors’ views.

4. The use of the half-story (upper most level) is restricted to storage and utilities. It shall not be converted to habitable area.

5. This decision must be recorded at the Barnstable Registry of Deeds and a copy of that recorded document must be submitted to the Zoning Board of Appeals office and to the Building Division at the time a building permit application is made. The relief authorized must be executed within one year of the granting of this permit.

Jerry Gilmore seconds John Norman notes that there is a typographical error in Clark Avenue and it should be 10 Clark Avenue. Correction accepted. Jerry Gilmore asks about external generators, air conditioning within the setbacks. Michael Gaspard indicates that the applicants are not planning to do either at this time but agrees that they would have to come back before the Board if they do so plan to. Vote: AYE: Jerry Gilmore, James Hatfield, John Norman, Sheila Geiler, Gail Nightingale NAY: None Gail Nightingale reminds Mr. Gaspard that this must be executed within one year from issue.


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GRANTED WITH CONDITIONS Gail Nightingale then calls the Ruscitto hearing. Appeal 2007-064 - Continued Ruscitto Special Permit Alter Nonconforming Dwelling

Opened August 8, 2007, continued to October 10, 2007, November 28, 2007, January 9, 2008, and to January 23, 2008.

Members Assigned: Ron Jansson, Randolph Childs, James Hatfield, John Norman, Gail Nightingale

Alternates Present: Jeremy Gilmore, Kelly Kevin Lydon A letter dated January 10, 2008 from Attorney Kevin M. Kirrane has requested that this Appeal be allowed to be withdrawn. The letter cites that the plans for the expansion have been modified to conform to the requirements of zoning for a building permit to issue as of right.

Robert A. Ruscitto and Bette J. Ruscitto have petitioned for a Special Permit pursuant to Section 240-92.B for the Alteration/Expansion of Nonconforming Buildings Used as Single-family Residences. The petitioners propose to expand the existing dwelling with a two-story addition. The proposed addition is located 14.2 feet off Harbor View Road and is not in conformance with the current required front yard setback of 20 feet. The property is addressed as 73 George Street, Barnstable, MA and is shown on Assessor’s Map 319 as parcel 058. It is in a Residence B Zoning District. Gail Nightingale indicates that the Members assigned: James Hatfield, John Norman, Gail Nightingale, Kelly Lydon, Jerry Gilmore as Ron Jansson has left for the evening and Randy Childs is no longer on the Board. Gail then reads the letter from Attorney Kirrane requesting to Withdraw without Prejudice. Jerry Gilmore makes a motion to Withdraw without Prejudice. Kelly Lydon seconds. Vote: AYE: James Hatfield, John Norman, Gail Nightingale, Kelly Lydon, Jerry Gilmore NAY: None WITHDRAWN WTHOUT PREJUDICE. Gail Nightingale then talks about the minutes.


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Motion is made to approve the minutes for 2007 on the website. Jerry Gilmore seconds Minutes accepted for 2007. Motion to adjourn. Motion seconded. Meeting adjourned.



A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday, January 30, 2008 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Arthur Traczyk, Principal Planner and Carol Puckett – Administrative Assistant. Gail Nightingale Absent Ron Jansson Arrives at 7:12 Daniel Creedon III Present James Hatfield Present Sheila Geiler Present John Norman Present Jeremy Gilmore Present Kelly Lydon Present Ron Jansson arrives at 7:12 PM. He is chairing as Gail Nightingale is not present. Ron Jansson opens the hearing at 7:14 PM and gives a brief history of the proceedings up to this point on Corey/Blanchard’s. Members assigned: Ron Jansson, James Hatfield, Kelly Lydon, John Norman, Dan Creedon No alternates are sitting tonight on this appeal. He indicates that because the original five members are here it might not have been necessary to reconstitute the Board. He also indicates that we will be hearing the continued appeals of Centerville Gardens. He then calls the Corey/Blanchard’s appeals. Appeal 2006-024 – Continued Corey Conditional Use in a Highway Business


Opened March 22, 2006 continued April 12, 2006, May 24, 2006, July 26, 2006, September 13, 2006, November 15, 2006, January 3, 2007, January 31, 2007, March 28, 2007, May 23, 2007, July 11, 2007, September 26, 2007, November 7, 2007, January 9, 2008, and to January 30, 2008. Continued for additional review and input, including peer review of traffic.


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Donald J. Corey, Jr., has petitioned for a Special Permit pursuant to Section 240-25 (C)(1) Conditional Use in a Highway Business District and a Modification of Special Permit 1969-66 issued to Father McSwiney Associates Inc. The applicant seeks to demolish the existing Knights of Columbus Hall and redevelop the site with a 9,801 sq.ft. retail building and related site improvements. Use of the site is to be that of retail sales of liquor. The property is addressed as 1030 Falmouth Road (Route 28), Centerville/Hyannis, MA, as shown on Assessor’s record as Map 250 as parcel 065, in a Highway Business and Residence D-1 Zoning District. Appeals 2007-009 & 010 – Continued Corey

Opened January 31, 2007, continued March 28, 2007, May 23, 2007, July 11, 2007, September 26, 2007, November 7, 2007, January 9, 2008 and to January 30, 2008. Appeal 2007-009 Conditional Use Special Permit

Donald J. Corey, Jr., has petitioned for a Special Permit pursuant to Section 240-25(C) Conditional Use in a Highway Business Zoning District. The applicant seeks to designate a 30-foot wide easement from Wequaquet Lane to property addressed as 1030 Falmouth Road (Route 28), Centerville/Hyannis, MA. The easement is to be developed as a driveway for access to and egress from a proposed commercial development of 1030 Falmouth Road. The easement and drive is to be created over land addressed as 28 and 0 Wequaquet Lane, Centerville, MA, and 0 and 1030 Falmouth Road, Centerville/Hyannis, MA. The property is shown on Assessor’s Map 250 as parcels 024, 023X02, 023X01 and 065. The land is zoned Residence D-1 and Highway Business.

Appeal 2007-010 Use Variance for Driveway

Donald J. Corey, Jr., has applied for Variances to Section 240-11(A) Principal Permitted Uses and Section 240-11(E) Bulk Regulations of the Residence D-1 Zoning District. The applicant seeks to designate a 30-foot wide easement from Wequaquet Lane to property addressed as 1030 Falmouth Road (Route 28), Centerville/Hyannis, MA. The easement is to be developed as a driveway for access to and egress from a proposed commercial development of 1030 Falmouth Road. The easement and drive is to be created over land addressed; 28 and 0 Wequaquet Lane, Centerville, MA, and 0 and 1030 Falmouth Road, Centerville/Hyannis, MA. The property is shown on Assessor’s Map 250 as parcels 024, 023X02, 023X01 and 065. The land is zoned Residence D-1 and Highway Business.

Noticed Anew - Continued Corey

These appeals were re-noticed anew to allow for a new public hearing to be heard should it be necessary for quorum.

No Members Assigned - No Testimony taken

Opened January 9, 2008, and to January 30, 2008 Appeal 2006-024 - Anew Corey Conditional Use in a Highway Business Donald J. Corey, Jr., has petitioned for a Special Permit pursuant to Section 240-25 (C)(1) Conditional Use in a Highway Business District and a Modification of Special Permit 1969-66 issued to Father McSwiney Associates Inc. The applicant seeks to demolish the existing Knights of Columbus Hall and redevelop the


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site with a 9,801 sq.ft. retail building and related site improvements. Use of the site is to be that of retail sales of liquor. The property is addressed as 1030 Falmouth Road (Route 28), Centerville/Hyannis, MA, as shown on Assessor’s Map 250 as parcel 065. It is located in Highway Business and Residence D-1 Zoning District. This Appeal is being re-noticed to allow for a new public hearing if necessary. Appeal 2007-009 – Anew Corey

Conditional Use Special Permit

Donald J. Corey, Jr., has petitioned for a Special Permit pursuant to Section 240-25(C) Conditional Use in a Highway Business Zoning District. The applicant seeks to designate a 30-foot wide easement from Wequaquet Lane to property addressed as 1030 Falmouth Road (Route 28), Centerville/Hyannis, MA. The easement is to be developed as a driveway for access to and egress from a proposed commercial development of 1030 Falmouth Road. The easement and drive is to be created over land addressed as 28 and 0 Wequaquet Lane, Centerville, MA, and 0 and 1030 Falmouth Road, Centerville/Hyannis, MA. The property is shown on Assessor’s Map 250 as parcels 024, 023X02, 023X01 and 065. The land is zoned Residence D-1 and Highway Business. This Appeal is being re-noticed to allow for a new public hearing if necessary. Appeal 2007-010 - Anew Corey

Use Variance for Driveway Donald J. Corey, Jr., has applied for Variances to Section 240-11(A) Principal Permitted Uses and Section 240-11(E) Bulk Regulations of the Residence D-1 Zoning District. The applicant seeks to designate a 30-foot wide easement from Wequaquet Lane to property addressed as 1030 Falmouth Road (Route 28), Centerville/Hyannis, MA. The easement is to be developed as a driveway for access to and egress from a proposed commercial development of 1030 Falmouth Road. The easement and drive is to be created over land addressed; 28 and 0 Wequaquet Lane, Centerville, MA, and 0 and 1030 Falmouth Road, Centerville/Hyannis, MA. The property is shown on Assessor’s Map 250 as parcels 024, 023X02, 023X01 and 065. The land is zoned Residence D-1 and Highway Business. This Appeal is being re-noticed to allow for a new public hearing if necessary. Attorney Butler is representing the applicant and is accompanied by Attorney Eliza Cox of his office. Also present are the applicant, Mr. Corey, Randy Hart of VHB, and Peter Sullivan of Sullivan Engineering. Attorney Butler begins with a PowerPoint presentation. He indicates that he wants all the previous materials presented in previous hearings on this appeal to be incorporated into this file. Slides being shown tonight are as follows:

o Slide 1 = Title Slide (Blanchard’s Liquors Relocation and Redevelopment Project, 226 to 1030 Falmouth Road (Route 28), January 30, 2008 – Presentation to the Barnstable Zoning Board of Appeals

o History of Properties o Existing Location – 226 Falmouth Road (aerial photo) o Existing Location – Cape Cod Mall (front and side photos)


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o History of Applicant o Existing Conditions (aerial photo) o History of Existing development – Knights of Columbus Hall o Knights of Columbus (picture of building) o Basic Property Information o Redevelopment Plan (sketch) o Who Have We Talked To o Previously Proposed Rear Access Drive (sketch) o Elimination of Rear Access Drive o Zoning Relief Required o Redevelopment/Relocation o Artist rendering of Proposed Building o Traffic Submittals to Town of Barnstable o Comprehensive Review o Proposed Traffic Mitigation o Access Driveway Detail (sketch of Route 28) o Summary of Benefits o Proposed Conditions of Approval

Attorney Butler shows first slide and indicates that when the new property is built the old one will be demolished. Also, the curb cut on that property is to be sealed. Second slide shows a picture of the existing location on 226 Falmouth Road. Third slide is the existing Blanchard’s in Hyannis. Fourth slide is the history of applicant – they would have to transfer the license to the new store. He notes the Marshfield store is next to Marshfield High School. Next slide shows the existing conditions, Attorney Butler indicates that Corey wanted to expand the store but that the mall would not allow it. Next is the history of existing development – Knights of Columbus Hall which was allowed by the Zoning Board of Appeals by a special permit. Next is picture of Knights of Columbus Next is basic property information Next is the redevelopment plan. He indicates that the hashed line will be permanently restricted and not allowed for future development purposes as he has agreed to with the civic association. Next is “Who Have we Talked to” slide. Attorney Butler indicates that he has met with the principals of Barnstable High School and the Vice Principal of the Middle School as well as the Centerville Civic Association as well as the Fire Department and the Highway Department. Next slide is “Previously Proposed Rear Access Drive” which shows the denoted owned property and has no access to any other roadways, public or private. As a result they entered into an agreement with an adjacent neighbor, Centerville Gardens. Centerville Gardens has an easement agreement with CVS. It indicates that it allows for the connection of a third property only if it is not a use similar to CVS. However, they met with CVS , that owner had concerns about the overburdening of that easement. He indicates that they met with Mr. Mele and Mr. Keller and entered into plans to create a secondary access onto Wequaquet Lane and Strawberry Hill Road,


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both ingress and egress. He indicates that because of the Centerville Gardens hearing they decided to withdraw their request before the Board and use right-in and right-out and contribute to a mitigation fund of traffic impacts. Next slide is the elimination of rear access drive they are no longer requiring 2007-009 and 2007-010 and they will move to withdraw without prejudice. Next is zoning relief required which is for a special permit appeal 2006-024 for a special permit for conditional use in HB district and for the modification of petition 1966-69. Next slide is redevelopment/relocation. He shows an architectural design by Steve Shuman. He indicates it is a single floor structure consisting of 9801 square feet. He indicates it is a net increase of 1853 square feet over the existing Blanchard’s. He indicates that they are now proposing now a single exaggerated right in, right out curb cut on route 28, it will have 54 parking spaces which is 4 more than required and 70% green pervious coverage which is 20% above what is required. He also indicates that there will be a 45 foot landscape buffers both on the south to Route 28 and to the east on Earl’s Court. Next slide is artist rendering of the new building. Attorney Butler then wants to submit, for the record, a copy of a document of the precinct by precinct vote in the Town of Barnstable on question #1 in the November, 2006 statewide election. He indicates that the voters of the Commonwealth of Massachusetts, but in the case of the Town of Barnstable, every precinct voted in favor of No on question #1 which is whether or not to allow beer and wine to be sold in locations other than package stores. That “No” vote was particularly found in the precinct where this is located which was 887 = No. and 644 = Yes, and for the Town of Barnstable it was 11270 = No, and 7751 = Yes. He indicates the importance is that it creates a responsibility on the Town and businesses to make sure they provide the types of facilities to afford this type of business. Next slide is the “Proposed Traffic Mitigation” to the Town. Randy Hart from VHB speaks and indicates that they have done supplemental filings since the last hearing. He indicates that they received the latest on January 28, 2008. He indicates that they are proposing to get away from the right in and right out. They are proposing to consolidate two curb cuts on Route 28 and also eliminating the curb cut on Route 28 at the existing Blanchard’s site. He indicates that in regards as part of the monitoring of the access and the effectives of it they are committing to monitor the safety of the right in and right out on a 5 year basis so each year they will pull any accident records that occur in the area, prepare a memorandum and submit to the Town of Barnstable for record and to demonstrate that what they are putting in place is as effective as they believe it will be. Next slide is the “Access Driveway Detail”. He explains that they are trying to elongate the island in an easterly direction; it is a granite curb, 6 inches of reveal so the normal motorist cannot or will not drive over it. By elongating it they are minimizing the potential for any left hand turns. He indicates that this design has been reviewed by MassHighway, the Town and they have sat down


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with the Fire Department and while it can accommodate trucks it can accommodate fire apparatus. Attorney Butler then goes over the next slide “Summary of Benefits”. He believes that by this relocation, that it will benefit the rotary traffic situation. He believes a restriction on the remaining land is also a benefit as it relates to buffering with the adjacent neighborhood as well as the retention of vegetated cover. He indicates that there will be economic and fiscal benefits from taking a piece of property that he believes is not even on the tax roll or if it is, is assessed it as exempt property and creating that as taxable valuation. The property at the Cape Cod Mall will probably have no change from the standpoint of fiscal tax impact Next slide is the “Proposed Conditions of Approval”. He indicates that Art Traczyk has given him some proposed conditions, will look at them in detail but feels that they would be acceptable to his client. In addition he has some proposed conditions himself and quotes the first bullet on this slide regarding right-in, right-out curb cuts and has received input from the Hyannis Fire Department regarding a limited median strip in front of this site but might create more problems than it would solve. He indicates that the cost of the full median strip might be between $700,000 and $900,000 and their proposal of providing the $150,000 traffic mitigation fund could be used to investigate the viability of medians not only at this location but elsewhere on Route 28. The monitoring process will insure that it would work properly and propose the $150,000 be put into escrow for any possible expenses associated with any additional improvement that might be necessary. Attorney Butler summarizes the relief being sought. Ron Jansson comments that he is surprised with the elimination of the use variance but has not had time to examine the exaggerated right-in, right-out. Attorney Butler comments that this has been their concept on the record for awhile. Dan Creedon clarifies with Randy Hart that the date of the letter Mr. Hart indicated in his presentation was in fact the letter the Board had which was dated January 23, 2008. Randy Hart indicates it is the same letter. Dan Creedon indicates that from the letter it implicitly would indicate that Mr. Diaz hadn’t reviewed your decision to abandon the easement access onto Strawberry Hill Road and asks if that is correct. Mr. Hart indicates that Mr. Diaz hadn’t seen it. Dan asks if he thought it would’ve impacted his peer review analysis at all. Randy Hart indicates that it could and have exchanged some information to make a conclusion similar to Mr. Hart’s that it wouldn’t have a large impact. Dan comments that this is a fairly significant change to the project and would be appropriate for Mr. Diaz to comment on it and make sure it doesn’t change his conclusive analysis as set forth in this letter. Randy Hart agrees. Kelly Lydon asks about the outside lighting and whether it would be obtrusive to the neighbors. Attorney Butler indicates that they would agree to the CCC technical bulletin regarding foot candles and shielding of lights and things of that nature. Attorney Butler comments that even though the peer traffic reviewer, Mr. Diaz, hasn’t had time to look at the withdrawal of the rear access easement, as they had just made that decision in that last


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week, he thinks that based upon the public testimony heard the other night that it is an appropriate course to take. He indicates that he did ask Mr. Hart to look at the impact that would have on his traffic analysis. He believes that the traffic to be generated by this location will not result in a negative impact on the level of service at any intersections that were studied and does not change whether you have the entrance in the back or not. He indicates that what it does do is decrease the impacts on the Wequaquet Lane area and on the CVS exit onto Wequaquet Lane, that this was the one intersection where there was a potential impact on level of service which will now not be happening. Ron Jansson asks Randy Hart that even though it is an exaggerated right-in, right-out, could people still take a left hand turn into the site. Randy Hart indicates that if someone was so motivated, it could be done. Ron asks if there was any consideration for a partial median strip in those areas only for purposes of precluding that as opposed to the long lengthy median strip. Randy Hart indicates that as part of the Town Peer Review process, two plans were prepared for exhibition. One showed a full length median that would extend from Strawberry Hill Road past their driveway, the second one was created just to be presented in the area of their driveway and what they found was that the median would have to be about 6 feet wide in that area to meet the MassHighway Highway Design standard and wouldn’t be very long and would be an impediment to the flow. He indicates that it would be something that they are uncomfortable with as a design engineer. Also, when they met with Fire Department, they were unsupportive of the small median for the very reasons they stated. He indicates that people don’t expect to see a 6 foot median just appear suddenly in the middle of a two lane highway as you might see one near a signal but not in the middle of a roadway with significant volume. Ron Jansson asks how many vehicle trips per day are anticipated coming into and out of that site as the Board does not have those figures. Randy Hart indicates that over the course of a full day of operation at the facility there is about 885 coming in and 885 leaving the site, in total, 1600 vehicles. Ron asks about peak operating hours. Randy Hart indicates that the PM peak and Saturday peak hours are the general peak hours they look at as this is the time when the traffic on the roadway is at its critical level. During the PM peak hours they anticipate 95 total vehicle, 45 coming into and 50 coming out of the site and then 75 total on a Saturday. Ron asks what period of time those were based on. Randy Hart indicates that it is one hour during the PM which is generally between 4 and 6 PM and is one hour which coincides with the peak activity on route 28. Ron asks if it coincides seasonally with summer traffic flows. Randy Hart indicates that those figures are a summer estimation. Ron asks why this is an estimate and not based on actual trip counts. Randy Hart indicates the figures were based upon actual traffic data collected at 5 existing liquor stores in the area one of which is the Blanchard’s being relocated as well as several others that were requested to be include in the data source by the Town. Ron asks, if there is upwards of 45, more or less vehicles in an hour leaving, how did those vehicles enter onto 28 without causing an obstruction or a problem where it is already congested. Randy Hart indicates that the egress will be controlled by stop control which means that, by law, you have to come to a stop sign, wait for a gap in the westbound flow before you can proceed. He indicates that his analysis shows that even during the peak hour when volumes are already heavy on Route 28 that maneuver will work well. He indicates that it is left turns that you typically see that require


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additional gaps, larger duration gaps, for operations to be at acceptable levels and they don’t anticipate it to be a problem with the volumes they see. Ron Jansson then asks Mr. Hart how many delivery trucks per day will be anticipated. Mr. Hart indicates he does not have the number in front of him but believes it is between 15 and 25 per day. Ron asks how large they are. Mr. Hart indicates that the largest will be a wheelbase 40. Mr. Hart asks to get the exact figures while Attorney Butler talks about a memorandum dated November 7, 2007 addressed to Ron Jansson of the Zoning Board from Deputy Chief Dean Melanson that references the Fire Department’s concerns about the smaller median as well as it references that intersection which presently does not have Opticom© . He indicates that it is the Chief’s information to the Board that this would be a substantial improvement to public safety if considered as a possible item that could be benefited from this project which the mitigation fund could be used for. Another possibility in terms of preventing left hand turns was the use of bollards which for a long time was just dismissed by people, however, on other parts on the Cape and in CCC decisions people have been open minded about them. He gives examples of places on the Cape where they are being used and how the mitigation fund could be used to research and use them. Randy Hart again speaks and indicates that a hard number has never been put out there but indicates that Mr. Corey has indicated that on a busy day, there might be 10 delivery trucks varying in size with the largest being a WB40. This site and the circulation on site has been designed to accommodate the WB40 and fire apparatus. Ron asks what the WB40 and Mr. Hart indicates that it is the smallest, larger than a panel truck but not the size of supermarket size and can be a 12 wheeler. Kelly Lydon asks if they need a permit from the MassHighway Highway. Mr. Hart indicates yes and that they wouldn’t seek it until this process is complete but have met with them regarding the access proposal and they are in favor of what they are putting forward and anticipate it being approved. Dan Creedon asks if he is aware of this specific design being utilized anywhere else on the Cape. Mr. Hart indicates no, but there are elongated right in right out configurations and one that comes to mind is South Cape Village at the Roche Brothers Plaza and Donna’s Lane and indicates it is the same idea but not the same design as what they are proposing is more dramatic and will have more impact on the ability to not make left hand turns. Ron Jansson asks Attorney Butler if the access and exit area from the locus is illuminated overhead at night. Attorney Butler isn’t sure but thinks there is one in the area and indicates that if an additional one would be requested they would accommodate that. Attorney Butler then refers back to the question about delivery trucks from information given by Mr. Corey and indicates 10 is a peak day and there are days with no deliveries and they are willing to limit hours so that they weren’t delivery at peak hours. Ron Jansson asks about the times the store would be open


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Attorney Butler clarifies with Mr. Cory and indicates 9:00AM to 11:00PM at night John Norman comments that he would like to see the mitigation fund to stay intact as the final amount if the project is approved and then it would be available for future use if it is found that during this 5 year study there is a problem and if the Opticom© is deemed by the Board necessary then he would ask that it be included in the conditions and be paid upfront. Attorney Butler indicates that had been looking at the $150,000 as providing additional traffic benefits so when they looked at the Opticom© it was one idea of spending it. They could look at the Opticom© as a possible methodology but would have to look at the budget for the project. He indicates that the $150,000 was derived based upon different factors, one of the factors being what was the cost of construction going to be for the roadway out the back and was a partial transfer of those monies. Also, the ball park figure to do the small median strip out front was $179,000 based on the current numbers and they were trying to come close to that and have that set aside if at some point in time the Fire Department and others decided they wanted the small median or it would be their fair share for the larger median. John Norman asks who would be the first responders in case of fire. Attorney Butler indicates that he believes that the primary responder would be the Hyannis Fire Department. Mr. Corey indicates that the hours for Sundays in his present location are 12-6 but in summertime it is 12-8 and clarifies that the weekly hours are 9:00 AM to 11:00 PM. He also indicates he would like to keep the same hours in the new location. Dan Creedon asks what is planned after the current location of Blanchard’s is razed. Attorney Butler indicates that he believes that in the DRI that space was not to be included for additional expansion and that upon the termination of this tenancy was not to be reused but they of course could seek a modification of that DRI but it would be the Mall’s prerogative but is clear that the curb cut is to be closed once that use is out of there. Dan asks if there is to be any return to green space and is told by Attorney Butler that there was no language and was in the broader context in which it was giving. Dan Creedon then asks if the 45 feet of buffer to the east is a landscape buffer asks if that is currently undisturbed.. Attorney Butler indicates that his intention is to have it heavily buffered and if it requires to have more vegetation they would be willing to do that. Dan Creedon asks Mr. Hart about the existing curb cut at CVS and how it is operating. Mr. Hart indicates that there is no prevalence of accidents at that location according to accident records they have pulled. Ron Jansson asks Attorney Butler how would the 5 year study be of any benefit if there were to determine that there were significant instances of motor vehicle accidents occurring at this site. Attorney Butler indicates that first, there will be an annual report so that the Board and the Town will be receiving the report annually and, if after review, there were a series of accidents occurring there, that would allow for a conversation with other departments regarding a modification of the


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site plan or this approval which would then allow the $150,000 be allowed to be applied in some fashion and would allow this applicant or the Town to seek other sources of funding if a decision was made for instance if a longer median or bollards for the entire length were appropriate, then our monies would be available to accomplish that or other money to be applied to other sources of funding to allow for that. The other thing is that the design of the right in right out is always capable of being looked at. He shows a smaller version of it on the overhead and shows the curb and rumble strip. He explains that they have a lot more frontage and that they could expand it much further but the problems would be is if it is capable for rescue vehicles or delivery trucks to get in and out. Dan Creedon asks if this amount should be earmarked and held for at least a 5 year period and not released for other use if it going to be there for a contingency fund. Attorney Butler indicates that it was their intent but that if a problem did occur then the Town would have the discretion to use the funds. He also indicates that they are not opposed to having the monies used for immediate needs that would improve traffic flow in that area and is not opposed to it being held in escrow for that purpose. He also indicates that they are not planning on asking for the money back at the end of the 5 year period. Ron Jansson opens it up to public comment and asks Patty Daley - Interim Director of Growth Management to comment. Patty Daley then comments on several of the issues tonight:

o She believes that the DRI status on the current location of Blanchard’s presented tonight was not correct. She indicates that it is her understanding that if Filene’s were to go to a second story then the Blanchard’s site could not be developed. She indicates that she has been in contact with staff at CCC and that the Blanchard’s site will be redeveloped and that the curb cut will not be closed and that there is an active proposal to develop that site.

o She indicates that she doesn’t think that there is any benefit to the airport rotary from this project. Patty indicates that because of the no vote on the statewide referendum question and that Attorney Butler’s comment that there was a responsibility of the Town to address liquor store permits in a different way and disagrees that the failure of the passage of that vote passes the responsibility on the part of the Town in any way.

o She then indicates that Growth Management was aware of the meeting held last week regarding the proposal for Centerville Gardens pertaining to the median strip and is aware that the neighborhood was not in support of the rear access and understands that and the reason why the proponent has pulled that off the table. She indicates with the CVS site and the proposals at Centerville Gardens and Blanchard’s site with two curb cuts coming out of there now, that a full length median strip would be more beneficial. Without the cost for engineering and design it will cost about $660,000 and that the $150,000 is not going to come close to building that median as it likely need to be built if an issue. According to the applicant’s own testimony tonight is that the cost of $179.000 and then another $150,000 to do the rear access and the short median that they had proposed which is over $300,000 which she suggests is a more appropriate amount for mitigation. She indicates that if they are considering granting this that the amount of $325,000 would be a mitigation amount to consider.


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Dan Creedon asks what Growth Management’s position is on the short median. Patty Daley indicates that she is in agreement with the Fire Department and Randy Hart that it is not a good idea for a floating median in the middle of the road. Ron Jansson comments that he is concerned about the $325,000 and that this might be high for a small business. Patty Daley indicates that the developer intended to spend these monies as part his business plan anyway and would benefit from being at this location. She also feels that the taxpayer should not have to pay for traffic problems. Ron Jansson asks Patty Daley if she has had the opportunity to evaluate what has been presented tonight in view of the fact that there is a withdrawal of the use variance for the rear access to Wequaquet Lane and the impact it will have on the project overall. Patty Daley indicates that she believes that Site Plan Review has not seen the revisions minus the rear access way and she knows that Steve Seymour and John Diaz had a recent look and would actually invite them to comment on that. Ron asks if she thinks this will need to go back to Site Plan Review. Patty Daley indicates that she believes it would be up to Tom Perry, the Building Commissioner, to approve it administratively or to have another full review. Ron Jansson indicates that the Town Manager, John Klimm, in a letter dated July 14, 2006, addressed his concerns regarding this project, particularly traffic congestion along Route 28 which has been identified as problematic and is concerned with potential traffic impacts regarding a high volume package store in this portion of Route 28. In closing, basically he wanted to make sure that the safety of the traveling public was reviewed and was considered. In view of these proposed changes and the fact that they are preparing to take the rear access along Wequaquet Land off of the table and knows it hasn’t been permanently done, does this not revert back to Mr. Klimm’s concern regarding traffic in this area and what is the best way to alleviate this. Patty Daley indicates that their best way was to build a rear access out to Wequaquet Lane and to create a secondary access to get to and from that site. She is aware that the neighborhood does not support that and understands that but what they are left with is minimizing curb cuts, which has been done, preventing left turn lanes which the best of way of doing that is a full length median strip, and trying to interconnect this property and the other properties as much as possible which is typical to try and eliminate traffic. Another option is to say that this particular proposed use generates too much traffic for this stretch of roadway and deny it all together. Dan Creedon asks Patty Daley if the $179,000 is counted in the estimate to construct the rear access and is that part of what she was saying that they were committing to. Patty Daley indicates that they were committed to constructing the rear access and it is her understanding that they may also have paid a yearly fee to Mr. Mele to have that access there but does not know for sure. Additionally, they were also committed to the partial median but she thinks that came off the table because it was deemed unsafe. Patty Daley indicates that the $179,000 might not have been part of their initial business plan but was part of their recent plan. Attorney Butler indicates that they appreciate the amount of time that Growth Management has given to this project and have supported and paid for the peer review. Also, he wants to clarify a


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few points, as far as Site Plan Review is concerned, the initial plans were reviewed without the rear access and approved by Site Plan Review. He indicates that they would be happy to go back for administrative review on that issue. He indicates that the rear access was an alternative that was shown to Site Plan Review at the second visit but he thinks that at the very most it would be an administrative approval as far as the Site Plan Review criteria. He then wants to address the mitigation and cost issue. At various points in time during the past 18 months, they looked at a number of alternatives and their cost and respectfully disagrees with that, at any point in time, a combination of the $179,000 for the median strip and the cost of the rear access was a part of their business plan and that is not the case. He thinks the other aspect is that the concept of reasonable objective and fair proportionality of their impacts. In answer to Mr. Klimm’s letter, he thinks the answer is that all those various steps that Mr. Hart listed in terms of the peer review, the studies, the additional information that has all answered the question that this all can be done as to not negatively impact levels of service or provide any degradation of safety and thinks that is what has happened at this point. As to the CCC DRI, his reading after talking with the counsel for the Cape Cod Mall is that if he was representing any applicant, and notes that this is the first time he knew of anyone looking at this site, certainly from the conversation he has had with the Cape Cod Mall Management and their counsel any use of that site other than termination of that current use he believes would require a modification of the DRI. His argument that it would improve the airport rotary is merely that you have a use there that sends trips into the rotary that will no longer exist. He indicates that the major point of clarification is that he wanted to make is that at no time were they talking about incurring costs in excess of the construction of the actual roadway in the rear and some fees for the easement and that is the derivation of that $150,000. Ron Jansson asks if there is anyone here that would like to address the Board and asks if Mr. Diaz is here. John Diaz from GPI indicates that they did feel that the rear access was a good way to encourage traffic coming from the west into this site and exiting traffic that would want to make a left in addition to the right turn restriction that has been talked about on Route 28. That being off the table, he did get some analysis today but hasn’t had time to go through it to see the impacts are but looks like the operations of the signal with adjustments that Randy Hart can accommodate the traffic there. He still has some concerns and wants to take a closer look at it. Ron Jansson indicates that he would have no difficulty with Mr. Diaz taking a closer look at the impacts to which Mr. Diaz indicates he could do in a timely fashion. Mr. Diaz also comments that the concern over the left turns to and from the site and the median, again he would support along with Mr. Seymour, if there is a median it has to be substantial. He indicates that with a short median covered with snow, motorists would not be able to tell that it was there and it would need to be a substantial median. He comments that bollards do not take up any additional width which is something that, if this right turn configuration doesn’t work, could be implemented without basically reconstructing the road. Ron Jansson asks if this is something he could analyze as to whether this could be more cost effective to the applicant. Mr. Diaz indicates he believes so. Ron Jansson asks if he could put in his report the effectiveness of the bollards. Mr. Diaz indicates that it is an effective way to prevent motorists from driving over them but still allow for emergency vehicles to drive over if needed.


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John Norman comments to Mr. Diaz that he is concerned about how the median strip would affect the residents and businesses on the other side of the road. Mr. Diaz indicates that this section of Route 28 is state highway and any changes would have to go through MassHighway Highway which would be a meeting open to the public where those concerns would be aired and it might turn out not to be feasible for those very reasons that you are impacting others for the benefits of someone else. John Norman comments that this project has been going on for a considerable amount of time and that he has seen a definite attempt to mitigate the traffic safety with an exaggerated right turn and thinks that they have met enough of the safety whereas if they take it to another step it will delay this project significantly with this much more impact. He understands that Town’s and Growth Management’s recommendation on the median but thinks that it will impact the applicant’s timeline. Ron Jansson asks if this is at Region 7 and is told District 5 by Mr. Diaz. Ron comments that the Board could impose certain conditions but that the State could override it and asks what timeframes are they looking at from the State relating to curb cuts, medians or bollards. Mr. Diaz indicates that the applicant would have to file for a permit and request an approval on the plan. The district will review it and if any changes to the configuration of the right in and right out of the driveway they would have to come back to the Town for approval. He indicates that he is not aware of any conversations Mr. Hart has had with the District and does not know the timeline but that the median might cause a problem with the District. He indicates that something in the middle like the bollards where there will be no significant widening can be taken out and on a trial basis may be supported. Ron Jansson asks Steve Seymour of Growth Management if he is aware of any plans that the State, County or the Town has in reference to improvements in this area of Route 28.. Steve answers yes, the district has a preliminary thought it is a concept to be a 4 lane road. With that and the experience with Bell Tower more than likely when this gets instituted they might want to put a median in but there are no design plans for this stretch of road and doesn’t know the timeline since it is a State Highway. Dan Creedon asks Steve Seymour how much it cost to engineer, design and install the median down at Barnstable Road which they installed recently. Steve Seymour indicates that he does not have the figures with him but in this area both sides of the median, the road would have to be widened to accommodate any vehicles and emergency equipment to get by, curbing, change some sidewalks, etc. Penelope Psomas, member of the Greek Orthodox Church and an attorney representing the members of the church speaks. She indicates that the church’s position tonight is that they are glad to hear that the rear access was taken off the table by the petitioner but the church is still concerned with the traffic issues. She indicates that the church’s position is that this project would adversely affect the convenience of the members and the church community. She indicates that the church is not only used on Sundays for services but also during the week for other activities and that the impact of additional traffic during the summer peak hours is a major concern.


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Clay Scofield, an abutter, indicates that his family has lived there for 40 years. His concern is traffic congestion but his personal concern is that his bedroom overlooks the proposed parking lot and is concerned with noise and lighting. He indicates that he is a traffic engineer and feels there will be negative impacts regarding traffic and noise. He indicates the VHB report had a Level of Service of B for Route 28 and that intersection during 2006 with or without the store. They also say in 2006 the average delay is 12.5 seconds and he doesn’t see that. He indicates that traffic backs up past his house which is 800 feet in the evening and thinks it takes longer than 12. 5 seconds. Regarding crashes, he was here when the CVS debate was going on and at that time CVS had also hired Mr. Hart and his report had a 3 year average of 1.67 crashes per year which is not very much. That was between 2000 and 2002. Since CVS went in, based on the current report, the 3 year average has increased to 6 crashes which is a significant increase. He indicates that the regional policy plan indicates that 3 crashes are significant. He also requested crash records from Barnstable Police and got a different number and got a figure of 13. When he looked at VHB records and his own he had some figures that they didn’t have. He indicates that there were 3 crashes in 2005 that weren’t included which brings the average up to 7 crashes per year. Those crashes, when added to the list by adding CVS, was 419% and thinks it is something to think about and that by adding more traffic to this intersection will degrade safety. He is also concerned about the turning diagrams at Strawberry Hill and another concern was the CVS driveway which was not included in turning movement and he sees people turning left there all the time and thinks those turning movements should be considered. He also indicates that he is concerned as some of the trip generation figures at the existing store did not include trips from within the mall area Also, they looked at the transaction of the store in the winter months and came to the conclusion that there is an equal amount of business during the winter and the summer months which he doesn’t agree with. He indicates he is concerned as the trip generation rates they are assuming could be way off and could have a large impact. He is also concerned that if the $150,000 in mitigation is not enough to resolve problems and that the remainder could fall on the taxpayer. Dan Creedon asks Mr. Scofield if he looked at any of the crash data when the property was being utilized and thinks he has good concerns. Mr. Scofield indicates that the crash data was from the CVS study when the Knights of Columbus was still there. He doesn’t think it’s a less intense use than the Knights of Columbus. He can see people pulling into his driveway making u-turns and is concerned. Brad Bailey who indicates he is a direct abutter to the North indicates that he is in support and had met with Mr. Corey several times. Angie Valas, a retired high school teacher and member of the Greek Orthodox Church speaks. She indicates that she is in opposition and thinks this is too close to the middle and high school and has difficulty with what Attorney Butler said about him meeting with the principals. She is not concerned with a liquor store being in town but is concerned with it being so close to schools. Arthur Desrocher, 37 Quisset Road and President of the Quisset Homeowner’s Association is in support of this project.


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Ken Howland of Nobadeer Road and member of Quisset Homeowner’s Association has met with Mr. Corey and that he has addressed every concern with the association. Attorney Butler comments on meeting with Mr. Scofield. He points out where the parking lot is in reference to Mr. Scofield’s property. He indicates that he is willing to do additional plantings, fencing and to reduce lighting. Dan Creedon asks Attorney Butler if he would agree to any conditions pertaining to those concerns. Attorney Butler agrees. Randy Hart again speaks and indicates that they have taken a closer look at Mr. Scofields’ figures. He indicates that he went to the police department and pulled the same records and from those records he has created a collision diagram which he has and all the backup that goes with it. He indicates it does not show an increase after CVS was introduced and that in 2003 there were 7 accidents, in 2004 there were 5 accidents and in 2005 there were 6 accidents. He indicates that the specific data that Mr. Scofield referenced was not in his letter and is not sure of what the source is. Also, regarding traffic generation they have spent a large part of the 8 month period and the Town required that they do counts during the summer season which they did during July at Blanchard’s in Hyannis, Luke’s in Yarmouth and the Centerville Package Store at the specific request of the Town of Barnstable. As a result of those peak summer counts, the data was updated to a total of 5 locations. In the Hyannis location, they counted anyone who entered in the building and are in the database. Ron Jansson asks according to the data he just submitted in reference to the accidents, is he aware of any accidents that caused personal injury. Mr. Hart indicates that of the 18 accidents that happened within the 2003 to 2005 period, 8 were injury, 10 were property damage only. Ron Jansson asks if he knows how significant those injuries were and Mr. Hart indicates that he does not. Ron Jansson then asks if there is any further public comment. Robert Tucker of 63 Pleasant Street indicates that he had worked at Better Stones and Gardens previously and indicates that there weren’t that many cars over there but that the traffic was still heavy. Patty Daley – Director of Growth Management suggests that within the special permit criteria that the Board acts under the impacts on the character of the neighborhood and to look more broadly at that criteria. Attorney Butler indicates that he wanted to clarify a point made previously and that the meetings he had with the Principal of the High School and the Assistant Principal of the Middle School to be very helpful as it gave them an opportunity to discuss what impacts this would have from a traffic perspective which was not the basis initially. He indicates that one of the concerns they had was with vacant property and found it detrimental to the safety of the children and they had pointed out there was another liquor store on the West Main Street side which is much closer and the


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tendency is that the children won’t go close to the school as they are monitored. He indicates that it seems to be predominately a licensing issue. Rev. Fr. Panagiotis K. Giannakopoulos of the Greek Orthodox Church has pros and cons regarding what business would go there and that he agrees with Robert Tucker and the closest abutter regarding their concerns about the traffic. He indicates people are turning left and the stop sign at CVS is not working and that people have a tendency to speed up in order to make the traffic light. He indicates that they have older people coming in and out all the time and during their flu clinic the traffic is heavy and a concern. When CVS was here they recommended that a specific light be installed in order to get an access to the left which was not done. Also, he believes that the reason there is a discrepancy in the number of accident reports is because Route 28 is a State Highway and Strawberry Hill Road is Town owned. Ron Jansson clarifies with Father Giannakopoulos regarding a left hand turn. Father indicates there is no left hand signal and it is at your own risk. Ron asks if a left hand signal would improve the situation. Father Giannakopoulos thinks it will. Ron Jansson asks if there is anyone else here that would like to speak either in favor or in opposition. No one else speaks. Ron Jansson indicates that he would personally like to see this go back to the consultant so that he can re-evaluate and would also like to leave it open at a continuance for public comment. The Board discusses. Attorney Butler asks if this can be continued to the next available meeting.

Continued to February 13, 2008 at 7:00 PM. At 9:37 PM, Ron Jansson calls a 5 minute recess. Ron Jansson calls the meeting back in session at 9:51 PM He then calls the Centerville gardens appeal. He reads the appeal into the record. 7:30 PM Appeals 2007-99, 100 & 101 Continued Centerville Gardens Redevelopment

Opened October 24, 2007, continued December 5, 2007, January 23, 2008 and to January 30, 2008. Continued to allow for review of traffic flow options that do not rely on access over residential zoned land.

Members Assigned: Sheila Geiler, Jeremy Gilmore, Kelly Kevin Lydon, John Norman, Ron Jansson No Alternates Present


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Appeals 2007-99 - Conditional Use in a Highway Business - Centerville Gardens, LLC, has petitioned for a Special Permit pursuant to Section 240-25 (C)(1) Conditional Use in a Highway Business District to allow for drive through banking. The applicant seeks to redevelop the site for office and banking use to include three drive-up lanes for banking. The property is addressed as 1060 & 1080 Falmouth Road (Route 28), 28 and 36 Wequaquet Lane, Centerville/Hyannis, MA, as shown on Assessor’s Map 250 as parcel 024, 023-X01, 023-X02 and 027-X02. It is in a Highway Business and Residence D-1 Zoning Districts. Appeal 2007-100 - Use Variance for Driveway -Centerville Gardens, LLC, has applied for Variances to Section 240-11(A) Principal Permitted Uses and Section 240-11(E) Bulk Regulations of the Residence D-1 Zoning District. The applicant seeks to designate a 30-foot wide easement from Wequaquet Lane to property addressed as 1060 Falmouth Road (Route 28), Centerville/Hyannis, MA. The easement is to be developed as a driveway for access to and egress from a proposed office and bank development at 1060 Falmouth Road. The easement and business driveway is to be created over land zoned for residential use only. The property is addressed as 1060 Falmouth Road (Route 28), 28 and 36 Wequaquet Lane, Centerville/Hyannis, MA, as shown on Assessor’s Map 250 as parcel 024, 023-X01, and 023-X02. It is in a Highway Business and Residence D-1 Zoning Districts. Appeal 2007-101 - Special Permit Structural Nonconformity in Site - Centerville Gardens, LLC, has petitioned for a Special Permit pursuant to Section 240-93.B Alteration Expansion of Nonconforming Building and Structure. The permit is sought to allow the continued nonconformity of the site with respect to the Groundwater Protection Overlay District requirement of 30% of the site to be retained in a natural state. The property is addressed as 1060 & 1080 Falmouth Road (Route 28), 28 and 36 Wequaquet Lane, Centerville/Hyannis, MA, as shown on Assessor’s Map 250 as parcel 024, 023-X01, 023-X02 and 027-X02. It is in a Highway Business and Residence D-1 Zoning Districts. Members Assigned: Sheila Geiler, Jeremy Gilmore, Kelly Lydon, John Norman, Ron Jansson Attorney David Lawler is representing the applicant. He indicates that they had taken past comments into consideration and have just received new plans tonight and has handed them into the Board. He indicates that what they are proposing is eliminating the rear access. There has been a slight turning ratio change which he believes falls within the Fire Departments criteria. He indicates that if they go forward with the new plan tonight that they would be withdrawing their request for a variance as it would not be necessary. Ron Jansson explains to the public that what is proposed is that the office building and a bank are allowed as a matter of right in this district and there is nothing here they can do to prevent this and the only thing they are here for is a special permit for a drive through window. He needs to prove that this will not be substantially more detrimental to the neighborhood affected. Attorney Lawler shows the old plan and explains the access onto Wequaquet and Strawberry Hill Road and indicates that the change would be the elimination of that access. He indicates that they have relocated the dumpster. He then indicates that he believes this plan does not deviate and is not detrimental and is in keeping with the bylaw. He believes it is a benefit as they are giving up an access curb cut and that they will access their easement across CVS.


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Ron Jansson asks if the only access they are seeing on this plan for this parcel of land is going to be on the existing access into the CVS parking lot? Attorney Lawler indicates they have an easement across that. Ron clarifies that they are not putting in a new curb cut in at this particular point, they have eliminated that and that they are only going to use an existing curb cut to access the property. He also clarifies that they also own the rear portions of Lot 2A and parcel D. He then asks with reference to the vacant land that is left would the applicant consider a no build at this point and possibly consider donating the rest of that land to a land trust of some type. Attorney Lawler indicates that his client would like to keep that for a later use as it is a substantial piece of property. Kelly Lydon asks about the style and height of the proposed building. Attorney Lawler indicates it will be one story building and will be a Cape Cod style building. Jerry Gilmore clarifies that his client is sacrificing the curb cut for the access through CVS Attorney Lawler explains the progression of plans regarding the original proposal for the rear access and the elimination of the curb cut which they could do as of right. Ron Jansson indicates that a general concern about allowing left hand turns to occur here and do not want to see people getting broad sided. Attorney Lawler indicates that additional traffic is not going to be substantial and will not increase accidents. Ron Jansson and Attorney Lawler discuss medians and bollards. Attorney Lawler thinks that giving up the curb cut is far greater than mitigation. John Norman comments that this project has access through an easement onto CVS which has two accesses: one off Weququet Lane and one on Route 28 and finds this a positive as this applicant is utilizing this easement which will give flow without touching Route 28. He comments that on the plans submitted there is a temporary access but wonders what he is planning to do with this gravel driveway once the project is complete. Steve Mele indicates it will be planted over. John Norman asks if he is opposed to a condition indicating that he will agree to plantings. etc. Mr. Mele indicates that they will agree to a condition to that effect. Sheila Geiler asks how many lanes are being proposed for the drive through. Attorney Lawler indicates 2 teller lanes, an ATM and a travel lane to equal 4 and indicates that it is the norm for banks. Sheila clarifies that the third bay out is for the ATM. Art Traczyk wants to remark that the CVS is for right turn only but the signs are no longer there.


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Ron Jansson indicates it should be an enforcement issue to be taken care of by the Building Commissioner. Ron Jansson then asks how long it will take to complete the construction. Mr. Mele and Attorney Lawler indicate 6 to 9 months and Attorney Lawler indicates that they will plant arborvitaes or whatever over that temporary driveway. Ron Jansson asks if there is anyone here who would like to speak either in favor or in opposition. No one speaks. Ron Jansson comments that the Board had only gotten the plans tonight and would like it to be reviewed by Staff. Ron Jansson recommends a five minute recess for Art Traczyk to look over the draft decision. Ron Jansson calls a recess at 10:27 PM. Hearing called back in session at 10:38 PM. Ron Jansson does findings.

2007-099 to allow for drive through banking.

1. Appeal 2007-099 is that petition of Centerville Gardens, LLC. for a special permit pursuant to Section 240-25 (C)(1) Conditional Use in a Highway Business District to allow for drive-through banking. The applicant seeks to redevelop the site for office and banking use to include three drive-up lanes for banking. Under the Zoning ordinance, drive-through parking facilities require a special permit from the Zoning Board of Appeals. The subject property is addressed as 1060 & 1080 Falmouth Road (Route 28), 28 and 36 Wequaquet Lane, Centerville/Hyannis, MA, as shown on Assessor’s Map 250 as parcel 024, 023-X01, 023-X02 and 027-X02. It is in a Highway Business and Residence D-1 Zoning Districts.

2. The property is a 2.88 acre site shown as Parcel B and Lot 2 on a July 28 2003, Approval Not Required Plan recorded at the Barnstable Registry of Deeds in Plan Book 586 page 59. The site fronts 204 feet on Route 28 and 206 feet on Wequaquet Lane. The first 300 feet of the property that abuts Route 28 is zoned Highway Business. The remaining property, including that area that fronts on Wequaquet Lane, is zoned Residence D-1. The entire site is within a designated Groundwater Protection Overlay District.

3. The proposal is to redevelop the site with two structures. The larger building is to be a one-story 7,450 sq.ft. professional office building. The second building is to be a free standing one-story 2,500 sq.ft. bank with a three lane drive-through. The development being under 10,000 sq.ft. does not trigger Cape Cod Commission’s review as it is less than the Development of Regional Impact (DRI) threshold. On-site parking for 36 vehicles is shown on the plans. All


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buildings and parking are located on that area of the site that is zoned Highway Business and all meet setback requirements for the district. Site drainage, landscaping and lighting are to be incorporated.

4. Abutting to the north of the site is a single-family residence and directly south, across Route 28, is a mixture of single, two, and multi-family residential dwellings. Exempt, institutional use, the Greek Orthodox Church, Barnstable Middle School, and Barnstable High School also exist in close proximity. To the west is a CVS drug store, previously permitted by Special Permit 2003-072. On the east side is the site of the proposed Blanchard’s Liquor Store that is now before the Board in the Corey appeal, Appeal 2006-024 for a Conditional Use in a Highway Business.

5. The subject property is underutilized and, for the most part, vacant. There were three buildings previously on the property. The remaining buildings are a one-story commercial structure consisting of 2,350 sq.ft. addressed as 1060 Falmouth Road and a second accessory building to the rear of the lot. An older single-family dwelling has been demolished. The applicant is proposing that access to this property only be via the existing CVS entrance way which is shown on a plan of land submitted to this Board this evening. The applicant has the right to petition the Commonwealth of Massachusetts for another curb cut permit on Route 28 but the applicant has indicated that they will not in fact do so but rely solely on the curb cut permit issued to CVS as the predominate entrance and egress from the property. The applicant has also indicated that they no longer wish to go forward with the application for the use variance and is in fact withdrawing their request to seek access to the residential neighborhood and this particular area which will be conditional upon the relief granted by this Board.

6. The property is to be served by public water and by a private on-site wastewater disposal system. The property, being in a designated Groundwater Protection District, is subject to the local 330 rule and the State’s 440 nitrogen loading limitation. According to the septic plans submitted, the on-site septic system will conform to Title 5 and the local Board of Health regulations once the lots shown on the plan are united as one. The union of the lots still needs to be completed and will be part of a condition we impose upon the granting of this relief.

7. A site plan for the development has been found approvable by the Site Plan Review Committee. The fact that professional offices are low traffic generators, the access to the site will utilize an existing curb cut on Route 28, and that the applicant has modified the plans in response to neighborhood concerns and removed that proposed access drive over the residential zoned land, this development would not represent a substantial detriment to the neighborhood nor to the public good. The proposal as now modified fulfills the spirit and intent of the Zoning Ordinance

8. The public has an opportunity to be heard on this matter and have expressed their concerns at the last meeting and in view of their concerns the applicant has modified the relief being sought from the Zoning Board of Appeals by eliminating the access that would be coming onto the property from Wequaquet Lane.

Jerry Gilmore seconds. No discussion.


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Vote: AYE: Sheila Geiler, John Norman, Jerry Gilmore, Kelly Lydon, Ron Jansson NAY: None Based upon the unanimous positive findings by the Board, motion is made to grant the relief being sought subject to the following conditions:

:

1. Development of the site shall be as proposed in plans submitted to the Board. The Site Plan is entitled “Site Plan prepared for Steven Mele in Centerville/Hyannis Barnstable, MA dated July 13, 2007, last revised on 11/25/08 as drawn by Holmes and Mcgrath, Inc., consisting of 6 sheets titled; Title Plan, Layout Plan, Existing Conditions & Demolition Plan, Grading, Drainage & Septic Plan, Construction Details, and Septic System Details. To be initialed by Acting Chairman, Ron Jansson.

2. The buildings to be built shall conform to those Architectural Plans submitted entitled “Client Centerville Gardens project Title -2 Rt. 28 Centerville, MA as drawn by Brown, Lindquist, Fenuccio & Raber, Architects, Inc. as submitted to the file on October 23, 2007 and consisting of 2 sheets. Sheet A2.1 titled “Exterior Elevations- Building A” and Sheet A2.2 titled “Exterior Elevations Building B”. to be initialed by acting chairman, Ron Jansson.

3. The site shall be landscaped as per plans submitted to the Board entitled; “Mixed Use Development 1060 Falmouth Rd. (Rte. 28) in Centerville Massachusetts (Barnstable County) Centerville Gardens Landscape Plan” dated August 8, 2007, last revised 11/26/07 as drawn by BSC Group to be initialed by acting Ron Jansson. No occupancy permit shall be issued until the landscaping is installed as per plan submitted and until the temporary gravel construction way off Wequaquet Lane is permanently closed and the area landscaped prior to any occupancy permit.

4. The remainder of that land in the residential zoning district which is used in part for their Title V flows as a septic system is to remain a vegetated green area to buffer neighboring residences from the business use. It shall not be cleared of trees and the vegetation on ground shall not be fully removed with the exception of the roadway access which will be needed for the purposes of construction of the buildings. Again, once that roadway is fully utilized and completed that roadway will be removed and fully landscaped to prevent its further use. Attorney Lawler is concerned about not being able to obtain an occupancy permit if they cannot do the landscaping because of the winter months. Art Tracyzk recommends that they could accept security in place of it for the installation but wants to make sure that the roadway is impassable. Ron Jansson modifies the condition to reflect the following “upon completion of the use of the road for construction for structures in issue, the applicant shall fully secure that access way as a condition preceding to the issue of occupancy permit and the securing of that access way shall be done in such a way which meets the Zoning Board of Appeals Staff’s Principal Planner, Art Traczyk

5. Development is limited to 2 buildings only as shown on the plans and will considered full build out on this lot. The buildings are to be built on a slab without basements and consist of one-


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story only; there shall be no second level or mezzanine levels in the buildings. There shall be no other buildings, accessory structures, nor any storage units and/or trailers located on the property other than construction trailers and they shall be removed when construction is completed.

6. That property governed by this permit is shown as Parcel B, Parcel C and Lot 2 as identified on the plan sheet titled “Title Plan”, and totals approximately 2.88 acres. The property includes that area of the lot zoned Residence D-1. All three of these lots shall be merged as one lot. They are currently merged in terms of ownership and shall not be further developed.

7. The area of the property located in the Residence D-1 District, that is being used to meet the Groundwater Overlay requirements, shall meet the Groundwater Overlay District and shall remain in a natural state except as may be needed, and if granted, for a 30-foot wide driveway out to Wequaquet Lane. In no instance shall any parking of vehicles or trucks be permitted on that area of the property located in the Residence D-1 District. The area of the lot located in the residential district is to remain vegetated to act as a natural buffer between residential homes to the northeast and the business uses in the business district.

8. Access to this property from Route 28 shall be as shown on the referenced site plan. That plan shows a shared right-turn in and out only access with, and on land of, the abutting CVS development. In the event that the abutter or any other individual attempts to change the right-in right-out scope of that access that will require this permit itself to be further modified if the Board is willing to do that.

9. Building A shall not exceed 7,450 sq.ft., and shall not exceed two individual office suites. Uses in that building shall be office use only, not including medical offices. There shall be no Conditional Permitted Uses allowed in Building A without this special permit also being modified prior to the grant of any other conditional use special permit. Attorney Lawler comments that he believes that they proposed no greater than 3 office suites. Art Traczyk indicates that he will have 3 suites at the end of this because he has one office for the Bank and two office suites and that his parking number is maxed at that point. Space and parking are discussed by Art Traczyk, Ron Jansson and Attorney Lawler. Ron Jansson asks if Attorney Lawler would need more time to which Attorney Lawler indicates that he does not and will go with the condition.

10. Building B shall not exceed 2,500 sq.ft., and shall not exceed one suite. That building shall be used for a bank use as well as a drive-in window as indicated on the plan and the drive up lanes shall not be greater than 3 lanes.

11. The drive through banking shall be developed as shown in the plan and shall not exceed three lanes or stations for drive-up banking. The fourth lane, as shown on the plans shall only be used as an auto by-pass lane.

12. All drainage shall be contained on-site. Should this development cause any runoff to be shed on any public way, the applicant shall be required to make improvements to correct the situation including that shared entrance from Route 28 over the existing CVS property.

13. Should public sewers become available for the property, the development shall connect to those sewers within one year after the service becomes available.


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14. Construction shall comply with all applicable Building and Health Division requirements and all applicable fire codes.

15. During all stages of construction, all vehicles, equipment, and materials associated with the construction shall be required to be located on the property. Any construction within a public right-of-way shall be approved by the Public Works Department of the Town and/or State Highway Department as may be needed prior to any activity in the ways.

16. Outdoor lighting shall not exceed 18 feet in height and shall only be directed onto the site. It shall be so engineered it does not intrude into abutting areas. Outdoor lighting shall include a cut-off – reduced level in the illumination – after the store is closed.

17. All signage shall conform to zoning as no variance to signage shall be granted at a future date. No sign shall be interior and illuminated and all lighting shall be shielded so as not to cause glare to the motoring public.

18. Violation of any condition imposed by this permit shall be sufficient reason for the Building Commissioner to take whatever action deemed necessary to correct the violation including, but not limited to, ordering the businesses closed should written notice of such violation not cause it to be corrected within seven days of that notice.


No discussion.

Vote: AYE: Sheila Geiler, John Norman, Jerry Gilmore, Kelly Lydon, Ron Jansson NAY: None Attorney Lawler then requests to withdraw 2007-100 for a use variance Motion is made to withdraw this appeal without prejudice

Vote: AYE: Sheila Geiler, John Norman, Jerry Gilmore, Kelly Lydon, Ron Jansson NAY: None Appeal 2007-100 is Withdrawn without Prejudice Attorney Lawler requests to withdraw 2007-101 for a special permit Motion is made to withdraw this appeal without prejudice

Vote: AYE: Sheila Geiler, John Norman, Jerry Gilmore, Kelly Lydon, Ron Jansson


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NAY: None Appeal 2007-101 is Withdrawn without Prejudice Motion to adjourn Seconded. Meeting adjourned at 11:05 PM


Minutes February 13, 2008

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday, February 13, 2008 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Arthur Traczyk, Principal Planner and Carol Puckett – Administrative Assistant. Gail Nightingale Present Ron Jansson Absent Daniel Creedon III Present James Hatfield Present Sheila Geiler Present John Norman Present Jeremy Gilmore Present Kelly Lydon Absent

Gail Nightingale opens the hearing at 7:04 PM and reads a summary of the appeals into the record. She then calls the Crosby appeal. Appeal 2008-006 - New Crosby

Bulk Variance Minimum Front Yard Setbacks.

Roger M. & Jane M. Crosby have applied for a Variance to Section 240-11.E, Bulk Regulations, Minimum Front Yard Setbacks. The applicants seek to add a 2 foot by 6 foot front vestibule entrance to the existing nonconforming single-family dwelling. The location of the vestibule is 22.9 feet from the front property line and will infringe 2.6 feet more that the existing dwelling which is located 24.3 feet off the front yard setback. The property is addressed as 89 Emerson Way, Centerville, MA and is shown on Assessor’s Map 188 as parcel 021. It is in a Residence D-1 Zoning District.

Members assigned: Jerry Gilmore, James Hatfield, Dan Creedon, John Norman, Gail Nightingale Attorney Freeman is representing the applicants who are also here. He gives a brief explanation of the reason for the appeal. He submits copies of letters from abutters who are in favor

Zoning Board of Appeals – Agenda –February 13, 2008

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Gail Nightingale indicates the letters are from: Edward & Karen Rodman of 61 Emerson Way, Marja Watson of 69 Emerson Way, Margaret & Timothy Wuskell of 100 Emerson Way, Jeffrey & Lisa Zent of 99 Emerson Way, and Nancy & J. Kevin Griffin of 79 Emerson Way which are submitted to the file.

Attorney Freeman gives the details of the reason for the request for the variance. He indicates that the applicants were unaware of the zoning regulations regarding the front yard setback and proceeded to build the vestibule. He indicates that they were made aware by the building inspector of the problem; therefore, applied for a variance for the small added area. He indicates that they are close to a special permit but they can’t find the building permit to the satisfaction to show that it was legal nonconforming structure and believes it is safer to ask for the variance. He indicates that the hardship is an internal, practical reason as the swing of the door comes extremely close to the bottom of the stairs when opening. He refers to the photos submitted. He indicates that Mr. Crosby is a builder by trade. He then indicates that site plan is accurate. Attorney Freeman points out that the neighboring houses are all about the same distance from the street. Gail Nightingale asks if there is anyone here from the public either in favor or in opposition. No one speaks either in favor or in opposition. Dan Creedon does findings.

1. The applicants in Appeal 2008-006 are Roger M. & Jane M. Crosby. The subject property is addressed as 89 Emerson Way, Centerville, MA and is shown on Assessor’s Map 188 as parcel 021. It is in a Residence D-1 Zoning District. The applicants seek a variance from the minimum front yard setback in order to expand the existing dwelling with a modest one-story addition consisting of a 2-foot by 7-foot front vestibule. The existing structure is located 24.3-feet off Emerson Way and is nonconforming to the required 30-foot front yard setback. The addition will increase that degree of nonconformity in setback by 2.6 feet resulting in a new setback of 22.9 feet.

Attorney Freeman asks that it be said that the addition is to be “2-foot by 6-foot interior and 2-foot by 7-foot exterior”. Dan Creedon amends it to say “2-foot by 6-foot interior and 2-foot by 7-foot exterior”.

2. A literal enforcement of the provisions of the zoning ordinance would involve substantial hardship to the petitioner as the entrance area of the home lacks sufficient space to safely enter and leave the premises given the location of stairs in close proximity to the front door.


Vote: AYE: Jerry Gilmore, James Hatfield, Dan Creedon, John Norman, Gail Nightingale NAY: None Dan Creedon makes a motion to move to grant the variance subject to the following conditions:


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1. This variance is granted to allow for an addition of a front door vestibule that will infringe further into the nonconforming front yard setback. The infringement is limited to that shown on the proposed land survey plan submitted with the application and entitled “Plan Showing Proposed Entry at 89 Emerson Way Barnstable, (Centerville) Mass.” dated December 14, 2007, as drawn by Cape Surv. The addition is limited to that of a 7-foot wide by 2 foot deep to the interior one-story vestibule as shown in plans submitted with the application and labeled; “Crosby 89 Emerson Way, Centerville”.


Vote: AYE: Jerry Gilmore, James Hatfield, Dan Creedon, John Norman, Gail Nightingale NAY: None GRANTED WITH CONDITIONS

Gail Nightingale then recuses herself from all the Corey hearings and turns it over to Dan Creedon. Dan Creedon calls the Corey appeals. Appeal 2006-024 – Continued Corey Conditional Use in a Highway Business


Opened March 22, 2006 continued April 12, 2006, May 24, 2006, July 26, 2006, September 13, 2006, November 15, 2006, January 3, 2007, January 31, 2007, March 28, 2007, May 23, 2007, July 11, 2007, September 26, 2007, November 7, 2007, January 9, 2008, January 30, 2008, and to February 13, 2007.

Continued for Peer Consultants review of traffic and rework of conditions based upon revised plans submitted that eliminated the access roadway onto Wequaquet Lane.

Donald J. Corey, Jr., has petitioned for a Special Permit pursuant to Section 240-25 (C)(1) Conditional Use in a Highway Business District and a Modification of Special Permit 1969-66 issued to Father McSwiney Associates Inc. The applicant seeks to demolish the existing Knights of Columbus Hall and redevelop the site with a 9,801 sq.ft. retail building and related site improvements. Use of the site is to be that of retail sales of liquor. The property is addressed as 1030 Falmouth Road (Route 28), Centerville/Hyannis, MA, as shown on Assessor’s record as Map 250 as parcel 065, in a Highway Business and Residence D-1 Zoning District.

Appeals 2007-009 & 010 – Continued Corey

Opened January 31, 2007, continued March 28, 2007, May 23, 2007, July 11, 2007, September 26, 2007, November 7, 2007, January 9, 2008, January 30, 2008, and to February 13, 2007.

Given the plan changes, Staff anticipates that Appeals 2007-009 & 010 will be requested to be withdrawn.


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Appeal 2007-009 Conditional Use Special Permit

Donald J. Corey, Jr., has petitioned for a Special Permit pursuant to Section 240-25(C) Conditional Use in a Highway Business Zoning District. The applicant seeks to designate a 30-foot wide easement from Wequaquet Lane to property addressed as 1030 Falmouth Road (Route 28), Centerville/Hyannis, MA. The easement is to be developed as a driveway for access to and egress from a proposed commercial development of 1030 Falmouth Road. The easement and drive is to be created over land addressed as 28 and 0 Wequaquet Lane, Centerville, MA, and 0 and 1030 Falmouth Road, Centerville/Hyannis, MA. The property is shown on Assessor’s Map 250 as parcels 024, 023X02, 023X01 and 065. The land is zoned Residence D-1 and Highway Business. Appeal 2007-010 Use Variance for Driveway


Noticed Anew - Continued Corey Appeal 2006-024, Appeal 2007-009 and Appeal 2007-010 These appeals were also re-noticed anew to allow for a new public hearing to be heard should it be necessary for quorum. Public Notices were the same as above with the notation “This Appeal is being re-noticed to allow for a new public hearing if necessary.”

Opened January 9, 2008, continued to January 30, 2008, and to February 13, 2008. No Members Assigned - No Testimony taken Attorney Patrick Butler is representing the applicant. He recognizes that 2 of the Board members are not here and is asking for the February 27th continuance. He indicates that at the next meeting he will provide staff with report on the peer traffic review. Dan Creedon asks about signing time extensions. Attorney Butler indicates he will review the new extensions. Attorney Butler also indicates that there was a discussion the previous night by the School Committee and that they will be meeting with the Committee before the next hearing. Art Traczyk indicates that they can continue it at 7:45 on February 27, 2008. Dan Creedon continues this to February 27, 2008 at 7:45 PM. Art comments that Kelly Lydon will not be here at the February 27th hearing. The Board and Attorney Butler talk about schedules and agree to continue this to the February 27th hearing.


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CONTINUED TO FEBRUARY 27, 2008 AT 7:45 PM

At 7:22, Gail Nightingale calls the Cape Codder Resort appeals. Members assigned: Sheila Geiler, John Norman, Dan Creedon, James Hatfield, Gail Nightingale She then reads the appeals into the record. Appeal 2008-007 - New Cape Codder Resort

Expand/Alter Nonconforming Structure/Building

Cape Codder Resort has petitioned for a Special Permit pursuant to Section 240-93.B Nonconforming Buildings or Structures Not Used as Single- or Two-family Dwellings. The petitioner seeks to expand the existing structures located on the property by adding a third floor to existing and proposed new sections of the hotel and to increase the existing nonconforming lot coverage from 56.4% to 61.9%. The property is addressed as 1225 Iyannough Road (Route 132) and 0 Settlers Lane Hyannis, MA and is shown on Assessor’s Map 273 as parcels 023 and 122. The property is in the Highway Business, B Business, Residence C-1, and Groundwater Protection Overlay Zoning Districts. 7:15 PM Appeal 2008-013 - New Cape Codder Resort

Bulk Variance Maximum Building Height Cape Codder Resort has applied for a Variance to Section 240-21.E Bulk Regulation – Maximum Building Height. The applicant seeks a variance to allow for the addition of a third floor where two stories is the maximum allowed in business zoning districts. This variance is sought in the alternative to the above nonconforming special permit application in order to expand a part of the existing structure and the proposed new structure to be located on the property. The property is addressed as1225 Iyannough Road (Route 132), Hyannis, MA, and is shown on Assessor’s Map 273 as parcel 023. The property is in the Highway Business, B Business, and Groundwater Protection Overlay Zoning Districts. Appeal 2008-014 - New Cape Codder Resort

Conditional or Nonconforming Use Special Permit

Cape Codder Resort has petitioned for a Conditional Use Special Permit pursuant to Section 240-25.C, Conditional Uses in a Highway Business Zoning District, or in the alternative, an expansion of a nonconforming use pursuant to Section 240-94 – Nonconforming Use. The petitioner seeks to expand the existing hotel use of the property. A small addition of which is situated within that area of the lot zoned Highway Business that does not allow a hotel use as-of-right. The property is addressed as 1225 Iyannough Road (Route 132), Hyannis, MA and is shown on Assessor’s Map 273 as parcel 023. The property is in the Highway Business, B Business, and Groundwater Protection Overlay Zoning Districts.

Appeal 2008-015 - New Cape Codder Resort

Use Variance


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Cape Codder Resort has applied for a Variance from Section 240-14.A - Principal Permitted Uses. The applicant seeks the variance in order to use a land locked vacant parcel consisting of 0.56-acres that is zoned residential as accessory to the hotel for parking and drainage. The subject vacant parcel is addressed as 0 Settlers Lane, Hyannis, MA, and is shown on Assessor’s Map 273 as parcel 122. The property is in the Residence C-1 and Groundwater Protection Overlay Zoning District.

Attorney Michael Ford is representing the applicant. Also present are Greg Siroonian, the architect from RESCOM Architectural, and Bill Catania, whose family are the owners. Attorney Ford indicates that this is an effort to upgrade the hotel in order to be competitive. He points out a blue area on the plans and indicates that this area is currently the outdoor recreation area over which is proposed a retractable roof. He indicates that there will be additional water features proposed to be placed in that area. Currently, there is an indoor wave pool and an outdoor volleyball court and other outdoor recreational activities and it is hoped by having the retractable roof that some of those amenities will be available year round and expand some of the water facilities that currently take place inside. That particular improvement doesn’t need zoning relief but thought since it was all in the business zone, a permitted use, it obtained site plan review and has been before the CCC and received an exemption he would mention it. The portion of the project that is before the ZBA is that colored in red on the plan. That portion of the project is where the 15 new hotel units are proposed on the third level and an adjoining spa building attached to them that is also proposed to have a third level and will attached to the existing hotel building. The spa building has a new footprint but is to be constructed as part of the hotel building so that you do not have to go outside, corridors will connect into that spa building. Dan Creedon asks to clarify the elevations. Attorney Ford indicates that the site will be upgraded, a new bio-retention system and the area of the site plan in light brown is an area that is currently zoned RC-1 which abuts the hotel area and they are proposing to put parking and drainage on that parcel. He points to a new outdoor swimming pool. Dan Creedon asks where the retractable roof is going to be placed and is informed by Attorney Ford that it doesn’t need relief under the zoning bylaw. Dan Creedon asks for clarification on unit levels and is told that the units on the second floor facing the street will have two floors and that nothing will be higher than what is already out there for the building. Gail Nightingale asks if they are required to have those parking spaces or are they beyond what is required. Attorney Ford indicates there might be 5 more than needed but because of the location to the spa is the reason for locating them. He indicates that they owned the lot when it was rezoned in 2004, but that they did not have an ANR plan and therefore require a use variance. James Hatfield asks what is on the lot now. Attorney Ford indicates that it is vegetated and 70 feet wide. He indicates that they are proposing to leave 40 feet as vegetated and use 30 feet.


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Dan Creedon asks how close the nearest neighbor is. Attorney Ford indicates that he believes there is a subdivision road but no homes. Attorney Ford then goes on to give a summary of what groups and applications they had submitted and the results of those meetings. He indicates they had received a favorable DRI decision and a site plan approval letter. He indicates that they would be conducive to having the concerns of the site plan review as conditions in the decision. He then gives a history of the hotel. He indicates that 1985 was the last time improvements had been made which dealt with the HB district. In 1987 the overly district came into view with the GP zone. He suggests it predated the GP district. He suggests that the use variance in 1971 is moot but that the variance and special permit in 1985 are still in play. He suggests that the site coverage is around 59% and is seeking to increase to 61%. He indicates that he had questions because it was in the Business zone if they needed height relief but decided to bring it to the Board to see if they are pre-existing. He indicates that the height to ridge is less than 30 feet and they are not seeking to go higher than 30 feet. Attorney Ford then talks about lot coverage and the stormwater system which is in the CCC staff report for which they have gotten kudos for. Greg Siroonian, the architect, shows the elevations on the easel and the retractable roof. Attorney Ford indicates that the site is on sewer and that there is no effect on wastewater. They are in a GP zone and the hotel is switching to ozone and ultraviolet and carbon dioxide treatment system which will allow them to use less chlorine and have less chlorine on site and was suggested in their DRI exemption. They had a transportation study done and the results were that the new units would increase the vehicle trips at the site by 142, in the peak hours it is only 6 to 8 new trips, which is below the 25 new trips by the CCC and therefore they felt didn’t need any further mitigation. He then gives a summary of relief being sought and suggestions for conditions and what the Board needs to find. He indicates that through a series of permits tied into one permit that this is a unique building as to where it sits on the lot. He also indicates that they are seeking special permit relief as it pertains to the use in the HB zone. The last is the residential portion which is landlocked, unbuildable, vacant, and because there isn’t an ANR they cannot use the 30 foot incursion right under the ordinance. Gail Nightingale asks if the smaller lot is under the same ownership as the bigger lot. Attorney Ford indicates yes and indicates that the smaller lot is proposed to be part of the hotel lot and is being used for parking and is critical to their new stormwater bio-retention system. It is 70 feet in width and they are using 30 feet of it and will abide by a condition that the 40% will be left as a buffer. Gail clarifies that this is not landlocked. Attorney Ford indicates it is landlocked in a zoning manner. Gail Nightingale then asks if they have received Mass Aeronautical approval. Attorney Ford indicates that it is a condition of the site plan and that they have not gotten it as of yet. John Norman asks if the east elevation is exceeding 30 feet to the ridge. Attorney Ford indicates that the height requirement is to the plate, not ridge. Greg Siroonian indicates that the ridge height is not restricted to 30 feet. John then asks how many rental rooms there are currently and Attorney Ford indicates 258 and indicates that the proposal is for 283. Dan Creedon asks if the proposed units can be mixed and matched as the 2 bedroom unit looks like it could be rented as a regular room and a 1 bedroom suite-type. Bill Catania indicates that


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they have set it up so that there is a lock off so that one of the rooms could be separated and used as a rental. Bill Catania indicates that could be done and that 30 is the maximum lock off. John Norman asks what percentage is ground cover. Attorney Ford indicates that it will be 61% and they have included everything. Dan Creedon asks what the maximum combination of these 15 new rooms would be. Bill Catania indicates 30. Dan then asks for figures on the east side for the proposed and existing height to the ridge. Greg Siroonian indicates he doesn’t have the exact calculations but indicates that it is approximately 4 to 5 feet above the ridge. Dan asks what the height is to the ridge of the retractable roof. Greg Siroonian indicates 45 feet and shows a realistic rendering photo to the Board. The Board and Attorney Ford discuss relief regarding the third floor. Gail Nightingale asks if there are elevators and is told yes. James Hatfield asks him to go over the additional parking configurations. Greg Siroonian shows that the parking had to be reconfigured because of the spa and bio-retention area. Attorney Ford indicates that they have gone from 435 parking spaces to a total of 440 spaces. Dan Creedon asks about the spa. Bill Catania indicates that the existing spa is approximately 6,000 to 7,000 feet and that they are moving it. He indicates that the proposed spa will be 15,000 square feet. Bill also indicates that some of the existing spa is going to be made back into guest rooms and a children’s spa. Attorney Ford indicates that they would live with a condition limiting the guest rooms in this area. Attorney Ford indicates that the spa is open to the public and the new one will also be. Gail Nightingale asks if there is anyone here either in favor or in opposition. Patty Daley, Director of Growth Management, indicates that their major concerns was that it is in the Groundwater Protection Overlay District and is happy with the stormwater improvements which will increase groundwater quality. She indicates that she has also worked with the applicant regarding extending the multi-modal path which will be part of the improvements on Route132. She indicates that the applicant is willing to continue this path along the front of his property for bike and pedestrian as well as landscaping this area and is pleased. Dan Creedon asks if she has suggestions for conditions regarding this path. Patty Daley indicates that they do not have anything as of yet but suggests a general condition consistent with the Route 132 path improvements to be approved by Staff at some future point and supports their proposal. Dan Creedon asks Attorney Ford if his client is in agreement with a condition regarding the path and answers yes. Gail Nightingale then asks again if there is anyone else from the public either in favor or in opposition. No one speaks. Gail asks Art Traczyk if there are any letters in the file either in favor or in opposition and is told no. Gail Nightingale asks where the dumpsters are located. Bill Catania indicates there is one near the loading dock, another one near the laundry area that is screened, and a cardboard dumpster. He indicates he may even be able to remove it or screen it. Dan Creedon and Gail Nightingale discuss the residential subdivision plan. Dan Creedon and Art Traczyk discuss what constitutes a story according to zoning or building code. Dan indicates that he would like to defer it to the Building Commissioner but thinks that it should be better handled with a variance.


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Gail Nightingale asks if these are apartment units and not hotel rooms. Attorney Ford indicates that these are considered hotel rooms and have to be used on a transient basis and as part of the hotel. Gail asks even though they have kitchenettes? Attorney Ford indicates that the kitchen facility is a question of use and can only be used on a transient basis. He indicates that they do intend to sell tenth shares in those units for a maximum of 7 days at a time and that the 15 units will be fractional time shares. Bill Catania explains that the limit to use is 5 weeks and a maximum of 7 days at a time. Attorney Ford indicates that they will submit documents to the Building Commissioner indicating such. Attorney Ford also explains that when it is not being used for time share the hotel will rent it out as a hotel unit and managed as a hotel unit. Gail asks Art if it will be inclusionary zoning. Art indicates that he understands that because of the agreement of one week stays it won’t be. Gail Nightingale asks the Board if they are ready to vote. Dan Creedon asks Art if he has gone over the findings and conditions that Attorney Ford had submitted which he indicates that he hasn’t. At 8:39 PM, Gail calls a recess so that Art can read over the draft conditions submitted by Attorney Ford. Back in session at 8:45 PM Dan Creedon does findings: In appeals 7, 13, 14 and 15 of 2008 the petitioner is Cape Codder Resort and addressed as 1225 Iyannough Road (Route 132) and 0 Settlers Lane Hyannis, MA on Assessor’s Map 273 as parcels 023 and 122. It is in a Highway Business, Business B, Residence C-1, & Groundwater Protection Overlay Zoning Districts. The applicant has applied for a special permit under Section 240-93.B to expand existing structures by adding a third floor to part of the hotel and to increase a nonconforming lot coverage from 56.4% to 61.9%. The applicant has applied for a variance under section 240-21E Bulk Regulation Maximum Building Height to add a third floor as part of the hotel. The applicant has applied for a Conditional Use Special Permit for a hotel use in the Highway Business Zoning District and has applied for a variance under 240-14.A to use a .56 acre parcel zoned residential as accessory to the hotel for parking and drainage. Lot 23 of the property is located in the B and HB zoning district an in the GP Overlay District. A portion of the locus was formerly located in RC-1 district and in November of 2004 the locus was rezoned and most of the RC-1 locus became part of the B District. Lot 122 is a .56 acre non-buildable land locked parcel that is located in the RC-1 district.

The subject property is a 13.1 acre with a 215,124 square foot, 258-room hotel and its accessory uses and parking. Accessory uses include a restaurant, spa, function rooms, indoor pool, an outdoor tennis court, and associated landscape.

The applicant seeks to alter and expand the existing motel by adding 24,000 square feet. (a 6,000 s.f footprint) to the southeast of the main building where the spa will be relocated; in addition, 15 new hotel units (nine two-bedroom and six three-bedroom) are proposed to be


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constructed in a proposed third floor should that relief be granted; the proposal also includes the enclosure of the 19,000 square foot atrium/swimming pool area, to be used for an indoor water park. Site improvements include a new outdoor pool, expanded and adjusted on-site parking, and incorporation of landscaped bio-retention areas for collection of surface run-off.

The site, as presently developed, is nonconforming to the Groundwater Protection Overlay District regulations, because more than 50% of the site is impervious. The applicant will expand the existing footprint of the buildings as well as increase the ground pavement associated with the motel and its proposed expansion. This will extend non-conforming site coverage from 56.4% to 61.9%. The proposal includes mitigation through the adoption of and initiation of a bio-retention storm water management program that is designed to reduce the impact of impervious coverage

This property and its development had the benefits of prior zoning relief. Use Variance No. 1971-4, initially allowed for the motel use in the than Residence C-1 Zoning District part of the lot. That decision refers to 160 total units. In November 2004, the Barnstable Zoning Map was amended to rezone that portion of the property from RC-1 to Business B Zoning District where hotel use is permitted as-of-right.

In1985, Appeal 1985-33, registered with the Land Court as Document #362949-1, allowed a 95-foot front yard setback from Route 132 where 100 feet is required. The appeal also approved a one-story addition to the existing building in the Highway Business zoned portion of the property for new function rooms, an enlarged kitchen, exercise room, second lobby, and elevator. Those improvements resulted in a 22.1% building coverage (based on 11.43 acres of total lot area), 261 total units, and 350 total parking spaces referenced in the decision.

The applicant seeks relief by variance to add a third story to the existing building as well as to the new proposed building.

Cape Cod Commission’s Decision dated January 10, 2008, granted a Development of Regional Impact (DRI) Exemption, concluding that the location, character, and environmental effects of the project will prevent its having any significant impacts on the values and purposes outside the Town of Barnstable.

Applicant seeks to increase the existing nonconforming lot coverage from 59% to 61.9%. Maximum lot coverage in the GP district is 50%. The drainage plans for the expansion include nitrogen mitigation improved stormwater run-off control through the adoption of an initiation of a stormwater bio-retention program that is designed to reduce the impact of impervious coverage

The landscaping will be designed to improve stormwater management. The bio-retention areas are sized to meet or exceed the water quality storm first flush.

The enhanced filtering of the runoff by the bio-retention system will correlate to 25.9% impervious lot coverage.

The building will be on public sewer and will not have an adverse effect on public health.

The continued use of this building as a motel/hotel will not have a negative impact on the safety, welfare, comfort or convenience of the community.


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Expansion is needed to keep this property vital and competitive with other resorts in the area. The additional rooms in the hotel will generate revenues that will finance the new roof, spa, and new pool. These improvements will elevate the level of service to attract visitors to this facility.

The landscaping and parking, as shown on the plan, will improve the appearance of the property to passersby on Route 132 and to other businesses and residences in the neighborhood.

The variance is sought from section 240-21E Bulk Regulations Minimum Lot Size Requirements to permit a third story over two of the existing buildings as well as on the proposed new structure. The proposed new 3 story building will continue the hotel/motel in accessory usage. The building height will be less than 30 feet and the variance relief is sought only for the number of stories. The building already has a third level and meets the 30 foot height requirement so improvements would not generally affect the zoning district in which it is located. The additional rooms to be built in the third story of the hotel will generate revenues that will finance the new roof, spa, and new pool. The additional rooms to be built in the third story of the motel will generate revenues that will finance the new roof, spa, and new pool.

These improvements will elevate the level of services provided in this facility and establish this property as a tourism destination in the area. A literal enforcement of the provisions of the Zoning Ordinance will involve substantial hardship to the applicant by limiting the improvements that can be made to the property.

The expansion and improvements to this property will result in an attractive, well-maintained, up-to-date facility that will be an asset to the neighborhood and community without derogating from the intent or purpose of the Zoning Ordinance.

The applicant also seeks variance relief for the .56 acre parcel which Is Lot 122 which is in the District which is to be used as accessory parking, drainage and landscaping.

Lot 122 is located 488 feet from Route 132 at its closest point, and is completely landlocked

Development for parking and landscaping will enhance the appearance of this property and improved drainage will be an asset to the neighborhood and to the expansion of the motel/hotel.

A literal enforcement of the ordinance will negatively affect the applicant’s ability to expand the hotel and spa by limiting parking, impeding stormwater drainage, and detracting from the landscaping plan. This hardship results from the unique shape of the buildings on this lot, which directly affects creation of new units within the two-story limitation

Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the ordinance, in that the third story units will not exceed the 30 foot height requirement nor will they be visual to the general public as they are located behind the third level façade of the existing building. The property is already nonconforming as to the impervious coverage. The petitioner seeks to mitigate that with improved landscaping and stormwater management.


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A literal enforcement of the ordinance would also prohibit the use of Lot 122 (zoned Residential) for any purpose since the lot is currently unbuildable. This hardship results from the shape of the parcel and the fact that it is landlocked.

As a further finding, Dan Creedon would like to add that as to the request for a variance to add the third story, there is a unique condition that exists that pertains to this property which is the structures on the property and the shape of those structures and the location of the structures on the lot which would make a literal enforcement of the ordinance a hardship to the applicant.


No discussion. Gail Nightingale clarifies with Dan Creedon that these findings pertain to 2008-013, 2008-014, 2008-015 and 2008-007.

Vote: AYE: James Hatfield, Dan Creedon, John Norman, Sheila Geiler, Gail Nightingale NAY: None

Dan Creedon makes a motion based on the positive findings to grant the special permit requested under 2008-007 and that portion of the special permit that would allow the impervious coverage to increase from 56.4% to 61.9%. He would also move to grant the variance requested under 240-21E to permit the addition of a third story over an existing portion of the hotel and the third story on a proposed new story, the spa building. He would also move to grant under section 2008-014 under that section Condition Use Permit to allow a hotel use in a HB zoning district and move to grant the variance requested under 2008-015, Section 240-14A to use a .56 acre parcel zoned residential to use accessory to the hotel for parking and drainage subject to the following conditions:

1. Improvements to this lot shall be as per plans submitted and entitled: “Cape Codder Resort & Spa, 1225 Iyannough Road, Hyannis, MA” dated September 24, 2007, as prepared by Holmes and McGrath, Inc., and Rescom Architectural, Inc. The site area architectural plan set includes 12 sheets:

Title Page Plan of Existing Conditions revised 12/23/07 – Sheet 1 of 2 (Holmes & McGrath, Inc.) Site Plan of Proposed Development revised 12/23/07 – Sheet 2 0f 2 (Holmes & McGrath,

Inc.) Stormwater Management dated September 2007 – Sheet 1 of 1 (Horsley Witten Group) Existing Footprint Plan dated 09/24/07 – EX1 (Rescom Architectural, Inc.) Existing Elevations dated 09/24/07 – EX2 (Rescom Architectural, Inc.) Proposed Footprint Plan dated 09/24/07 – SP1 (Rescom Architectural, Inc.) Proposed First Floor Plan dated 10/12/07 – A1 (Rescom Architectural, Inc.) Proposed Second Floor Plan dated 10/12/07 – A2 (Rescom Architectural, Inc.) Proposed Third Floor Plan dated 10/12/07 – A3 (Rescom Architectural, Inc.) Proposed Unit Plans dated 09/24/07 – A4 (Rescom Architectural, Inc.) Proposed Lighting Plan dated 09/24/07 – LT1 (Rescom Architectural, Inc.)


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2. The applicant shall be responsible for securing approvals from Massachusetts Aeronautics Commission and Federal Aviation Administration prior to the issuance of any building permit

3. All on-site storage trailers shall not be permitted 4. The location and size of all on-site water lines will need to be provided.

Dan Creedon indicates we don’t have that in our plans right now. Attorney Ford indicates that they hadn’t been developed to that point and the Site Plan Review wanted that in there.

5. Development shall be required to meet all applicable building and fire codes. All Fire Department requirements shall be met, including but not limited to stand pipes in the stair wells in the three story sections, fire hydrant locations within 100 feet of the back of the building with connection, and interior building sprinkler system. Dan then questions where the sprinkler system is to be located. Greg Siroonian indicates that it is for the new improvements and for the existing structure supporting the new improvements. There is a discussion and Attorney Ford suggests that maybe the condition could read that the building will be sprinkled with direction from the Fire Department. Dan Creedon agrees and makes amendment as follows: “As to the safety sprinkler system shall be installed per Fire Department Code and stipulation and will be administratively reviewed for compliance therewith by the Fire Department.”

6. All on-site dumpsters shall be screened and shall meet all Board of Health regulations. 7. Chemical storage shall be separated from all electrical utilities and all pool pumping

equipment. A plan for that separation shall be developed and approved by the Fire Department and Building Division prior to the issuance of any building permit. That plan shall be fully implemented prior to the issuance of any occupancy permit for any new building area authorized in this permit.

8. The applicant shall construct a continuation of the multi-modal path and corresponding landscaping along the portion of its property adjacent to Route 132 in coordination with the Town.

Attorney Ford indicates that most of the improvements will be in the layout of the road, the state land, and so they are not necessarily involved in the construction but they are involved in the financing of it and doesn’t know what kind of permissions he will be given but they will work with the Town on that. Dan asks if they put “either will be constructed on the applicant’s property or if it is to be continued in the layout then the applicant will fund the construction of that on the state road layout or in the state road layout”. Attorney Ford agrees.

9. The area from the entrance at Bearses Way to the front of the hotel shall be designated and marked as a fire lane. A plan for the demarcation shall be developed and approved by the Fire Department prior to the issuance of a Building permit regarding improvements and shall be made prior to any occupancy permit. Any required on-site drainage improvements needed in this area shall also be completed prior to the issuance of an occupancy permit.

10. The applicant must obtain all other applicable permits, licenses, and approvals as required in addition to the relief being granted by this Board.

11. The applicant will submit a final set of plans to Site Plan Review reflecting this decision. 12. Upon completion of all work, a registered engineer or land surveyor shall submit a letter of

certification made upon knowledge and belief in accordance with professional standards that all work has been done in substantial compliance with the approved site plan (Zoning Section 240-104 (G). That document shall be submitted prior to the issuance of the final certificate of occupancy.


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13. The applicant shall comply with all conditions of the Cape Cod Commission decision which was a DRI exemption. The new 15 units to be added will be hotel units which will be used for transient use only. Total number of units resulting in the complex will not exceed 276.

14. There will be no more than 450 parking spaces. 15. The balance of the residential lot, Lot 122, that is not being developed will be maintained in its

natural state and condition.

Gail Nightingale wants to correct that to the rear 40 feet as the 30 feet is going to parking and the rear 40 is going to be in a natural state.


No discussion.

Vote: AYE: Sheila Geiler, John Norman, James Hatfield, Dan Creedon, Gail Nightingale Nay: None GRANTED WITH CONDITIONS Attorney Ford would like to withdraw 2008-007 as sought to expand the hotel to a third floor by way of a special permit. Dan Creedon makes a motion to grant the withdrawal without prejudice. James Hatfield seconds. Vote: AYE: Sheila Geiler, John Norman, James Hatfield, Dan Creedon, Gail Nightingale Nay: None PART OF APPEAL 2008-007 IS WITHDRAWN WITHOUT PREJUDICE Gail Nightingale then indicates that she would like to read the Berkshire Development/Circuit City appeals in to the record. Appeal 2008-010 - New Berkshire Development - Circuit City

Bulk Variance Min. Front Yard and Lot Coverage

Berkshire Development, LLC has applied for a Variance to Section 240-25.E Bulk Regulations, Minimum Front Yard Setback off Route 132 and Section 240-35(F)(3) Lot Coverage in the Groundwater Protection Overlay District. The applicant seeks to locate the proposed building 45 feet off Route 132 where a 100-foot front yard setback is required and to maintain the existing lot coverage that does not meet with today’s 50% maximum lot coverage by impervious surfaces. The property is addressed as 624 and 640 Iyannough Road (Route 132), Hyannis, MA. The lots are shown on Assessor’s Map 311 as parcels 012 and 013. The property is in the Highway Business, B Business, Groundwater and Wellhead Protection Overlay Zoning Districts.


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Appeal 2008-011 - New Berkshire Development - Circuit City

Highway Business Conditional Use Permit Berkshire Development, LLC has petitioned for a Special Permit pursuant to Section 240-25(C)(1) Conditional Use in the Highway Business Zoning Districts. The petitioner seeks to redevelop the site with a 23,500 sq.ft., building to be used for retail sales of electronics. The property is addressed as 624 and 640 Iyannough Road (Route 132), Hyannis, MA. The lots are shown on Assessor’s Map 311 as parcels 012 and 013. The property is in the Highway Business, B Business, Groundwater and Wellhead Protection Overlay Zoning Districts. Appeal 2008-012 - New Berkshire Development - Circuit City

Expand/Alter Nonconforming Building Structure

Berkshire Development, LLC has petitioned for a Special Permit pursuant to Section 240-93 Nonconforming Buildings or Structures Not Used as Single- or Two-family Dwellings. The petitioner seeks to redevelop the site with a 23,500 sq.ft., retail store and associated site improvements. The permit is sought to allow for the alteration and expansion of certain nonconformities on site, including impervious coverage. The property is addressed as 624 and 640 Iyannough Road (Route 132), Hyannis, MA. The lots are shown on Assessor’s Map 311 as parcels 012 and 013. The property is in the Highway Business, B Business, Groundwater and Wellhead Protection Overlay Zoning Districts.

Gail Nightingale then states that she would request that the attorney for those appeals, Attorney Michael Ford, continue these as the Cape Cod Commission had only recently approved this matter and the Zoning Board had only received copies of that approval two days prior to this hearing and that they also do not have a staff report and finds it too soon to be put on this agenda. Attorney Ford indicates he would like to confer with his clients who are here and also indicates that there are a fairly complicated set of conditions that have been set up between the Town, the Commission, and the applicant in order to allow this project to proceed. He indicates that one of those conditions requires the purchase of the Chili’s restaurant parcel which the Town Council voted last Thursday unanimously to fund not only their portion of the acquisition, but the funds to take down the building and landscape that area. He indicates that when they negotiated for the piece of the Chili’s parcel, there were tight time tables in which to perform in order to make all of this happen. Therefore, the reason that this Board was asked to place this on their agenda when you did was because they have windows of opportunity to that purchase that will be prejudice if they are off another couple of weeks. Dan Creedon asks if this is not contingent upon approval of this Board and the CCC. Attorney Ford indicates there are contingencies but there are time lines in which they have to perform regardless of the contingencies in order to keep the agreement in effect. Dan asks if the contingencies themselves have deadlines notification dates as well. Attorney Ford indicates that they do and if they are not heard for another couple of weeks it places them outside of their window and that is their dilemma and that is the reason it has been put forward.

Dan Creedon comments that this property has been vacant for approximately 3 years.


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Gail Nightingale reads them into the record and indicates that she won’t assign any members yet. Gail indicates that she is not ready to go forward as they have only received the CCC decision two days prior.

The Board and Attorney Ford discuss and agree to continue this to February 27, 2008 at 7:00 PM.

CONTINUED TO FEBRUARY 27, 2008 AT 7:00 PM

Motion to adjourn.

Motion seconded.

Meeting adjourned at 9:22 PM.


Minutes February 27, 2008

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday, February 27, 2008 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Arthur Traczyk, Principal Planner and Carol Puckett – Administrative Assistant. Gail Nightingale Present Ron Jansson Present Daniel Creedon III Absent James Hatfield Present Sheila Geiler Absent John Norman Present Jeremy Gilmore Present Kelly Lydon Absent

Gail Nightingale reads a summary of the appeals into the record. She announces that the Corey appeals will be continued. Since there are only 4 members, she announces to those with appeals. She takes a brief recess. Attorney Doug Murphy arrives and Chairman Nightingale asks Attorney Murphy if he would like to wait until the 5th member arrives. Attorney Murphy indicates that he would like to wait for the 5th member. At 7:14, Chairman Nightingale gives a summary of the amnesty apartment programs and what was granted. She then reads the Oyster Harbor appeals into the record in anticipation of Ron Jansson arriving. At 7:15 she recesses again until Ron Jansson arrives. Ron Jansson arrives at 7:20 PM and meeting is called back in session.

At 7:21, Gail Nightingale calls the Oyster Harbors Club appeal.

Appeal 2008-008 Oyster Harbor Club

Expand/Alter Nonconforming Use

Zoning Board of Appeals – Agenda – February 27, 2008

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Oyster Harbors Club, Inc. has petitioned for Special Permits pursuant to Section 240-93.B Alteration and Expansion of a Nonconforming Buildings or Structures Not Used as Single or Two-Family Dwellings; and Section 240-94.B Expansion of a Preexisting Nonconforming Use. The petitioner seeks to remodel an existing 573 sq.ft., children’s play center and to add another accessory building consisting of 1,096 sq.ft., to also be used as a children’s play center. The buildings and use is accessory to the principal nonconforming use of the property as a Club House. The subject property is located as shown on Assessor’s Map 053 as Parcel 012 Lot 001, addressed as 170 Grand Island Drive, Osterville, MA 02655, in a Residence F-1 Zoning District.

Members assigned: Ron Jansson, John Norman, James Hatfield, Jerry Gilmore, Gail Nightingale

Attorney J. Douglas Murphy is representing the applicant. Attorney Murphy gives a history of the past special permits and variances granted. He indicates that they have been before the Cape Cod Commission and have been issued a minor modification. They seek to upgrade an existing building that is used as a children’s activity center and by adding an additional building as per plans filed with this application. He then gives a history of the property since the1920’s. He indicates that the lot is approximately 12 acres, it is in a RF district, and that the club house has been found on several visits by the Board to be a legal pre-existing nonconforming use. They would like to alter by adding one small building to the northerly portion of the lot. No increase in numbers of people using the facility which is primarily a children’s center as it has limited membership. There will be no additional children over and beyond what is there. He indicates that perhaps adults could also use this addition for other functions as well as a children’s center and there is a fenced in area in conjunction with outdoor activities and will be continued. The proposed building contains handicapped restroom facilities and a ramp but did not provide a walkway. He indicates that they are prepared to provide conforming handicapped access walkway to that ramp. He indicates that it was also suggested, a handicapped access to the existing building and they are prepared to put in the necessary walkway. He indicates that they are agreeable to conditions pertaining to such.

Gail Nightingale asks if this is a new building close to the property line. Attorney Murphy answers yes. Gail asks what is going to be done with the current “Pooh’s Corner”. Attorney Murphy indicates that it will be maintained and that there are no plans to alter the footprint. Gail clarifies that both the new and existing addition will be for a children’s use. Ron Jansson if this is a licensed daycare. Attorney Murphy indicates that they are not seeking that.

John Norman asks if they ever considered expanding “Pooh’s Corner” rather than building a new addition against the property line. Attorney Murphy indicates that the building lies within the Conservation Commission jurisdiction and would also require some additional action with the Cape Cod Commission as he understand it. They went back to the CCC because they have a approval from them based upon certain plans and didn’t want to be construed as violating those including a site plan. They issued a minor modification that it required no further proceedings and continued to be an exempt use proposal from their standpoint. As far as Conservation Commission activity, the location currently would not require further filing with the Conservation Commission. He indicates that if they were to expand the existing building they would require that additional process, to his understanding.

John Norman asks about setbacks to which Mr. Peter Sullivan of Sullivan Engineering points out the areas to the Board and shows the line where the coastal bank is. He indicates the objective was to place it outside of the conservation area. Ron Jansson asks for clarification as to why


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they couldn’t place it much closer. Attorney Murphy indicates that if the proposed structure is placed closer to the existing, it would impede the use of that area.

Ron Jansson asks for clarification of what will become of the existing children’s area. Attorney Murphy indicates that it will continue as a children’s facility.

Gail Nightingale asks if there is anyone here either in favor or in opposition.

Helen Beatty Westland, whose family owns the adjacent property, speaks and gives a history of the property and indicates that the building in question was once a salon then a children’s center. She indicates she has a hard time understanding this request since there are 12 acres and thinks they could add on to the children’s center that exists. She believes that this will be an impact to her abutting property line and could be placed elsewhere.

John Norman questions her if her grandparents were ever approached by Oyster Harbors and she indicates no and had no notification.

Attorney Ed Kirk is representing the Beatty Family Trust and indicates that he has materials that he would like to pass out to the Board. He gives a history of the building and believes there wasn’t any relief granted in 1970 allowing for the expansion or an extension or change of the existing use. He indicates that the children’s activity center was not part of the lawfully protected use as it was a recent occurrence. Under the case of Chuckran and other cases that follow it the Board has to approve changes that take place if they affect the neighborhood or they are different in character or quality or if the nature of the use has changed. There is a difference between having a country club and the pace of activity and then having an outside activity, a full scale playground for children although they are children of the members. He indicates that there is an underlying assumption here that the so-called activity center is somehow a lawful nonconforming use and he is suggesting that he is not so sure it is a valid assumption. He believes that this question has to be answered. He indicates that his client’s property would be 20 feet away from this addition. He indicates that the existing children’s area is enclosed within a picket fence and indicates that they want to move that out and nearer to his client’s part of the property. He suggests it is more detrimental than what is already there and whether the bylaw exists to accommodate expansion or extension of a nonconforming use assuming that this is. He indicates that the Board needs to determine if the use of the children’s activity center is a lawful nonconforming use, that the bylaw allows the creation of a new structure to house a nonconforming use, and that this is not more detrimental.

Ron Jansson asks if this use was considered to be an accessory use, incidental to the predominate use of the club, and asks if that wouldn’t address the issue of it not having to be pre-existing, nonconforming. Attorney Kirk indicates that accessory use is a term that is applied to a principal permitted use and then do something different because it’s accessory, it has to pass the test in order to stay within the protection that you started with as in the Chuckran or the Powers test.

Gail Nightingale asks if both attorneys could submit briefs. Ron Jansson indicates that he would like to see briefs providing authority whether a legal pre-existing nonconforming use can have an accessory use. They discuss the bylaw requiring setbacks and then indicates that she would like to continue this.


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Gail Nightingale asks again if there is anyone here that would like to speak.

Jerry Gilmore asks Attorney Kirk for clarification from his memo regarding children’s activities.

Gail asks again if anyone would like to speak. No one else speaks.

Gail Nightingale asks Attorney Murphy if he would like to rebut. Attorney Murphy indicates that he would like to remind the Board that this is a country club and has been a recreational facility with children for a great number of years.

There is a discussion and it is decided to continue this.

CONTINUED TO MARCH 12th at 7:30 PM

Gail Nightingale then calls the Holmes & Holmes appeal as they are withdrawing. She reads the letter from the applicants regarding the Building Commissioner’s decision and asks to withdraw this appeal Appeal 2008-002 - Continued Holmes & Holmes

Modification of Use Variance 1996-152

Opened January 23, 2008, continued to February 27, 2008. Continued to allow for review by Building Division for an as-of-right family apartment. Letter to Building Commissioner enclosed.

From discussion with the Commissioner, Staff believes he will be allowing this unit as a family apartment as-of-right.

Members Assigned: James R. Hatfield, Sheila Geiler, John T. Norman, Kelly Kevin Lydon, Gail C. Nightingale. Associate Present: Jeremy Gilmore

Mark S. and Austin S. Holmes have applied for a modification of Use Variance 1996-152, Condition No. 3 that restricted that variance to a Karen J. Lovasco-Sutton. The variance allowed for a studio apartment within the existing dwelling and the applicants seek to have that variance transferred to them. The subject property is shown on Assessor’s Map 270 as parcel 016, commonly addressed as 90 Dunn’s Pond Road, Hyannis, MA. The property is in a Residence B Zoning District.

Gail Nightingale makes a motion is made to grant withdrawal without prejudice.


Vote AYE: James Hatfield, John Norman, Jerry Gilmore, Gail Nightingale NAY: None

Withdrawn without prejudice.

At 8:04, Gail Nightingale calls the Setterlund/Salted Realty and reads it into the record. She indicates that per Staff’s request, Attorney John Kenney, who is representing the applicant, is asking for a continuance.


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Appeal 2008-018 - New Setterlund/Salted Realty Trust

Bulk Variance Minimum Lot Area Richard Setterlund, Trustee of Salted Realty Trust, has applied for a Variance to Section 240-13.E Bulk Regulations, Minimum Lot Area. The applicant is seeking the variance for a 33,390 sq.ft., undersized non-buildable lot to be developed for zoning purposes and to construct a single-family dwelling. The property is addressed as 71 Tonela Lane Cummaquid, MA, as shown on Assessor’s Map 336 as parcel 063. It is in a Residence F-1 Zoning District.

CONTINUED TO MARCH 26th at 7:00 PM.

Gail Nightingale then turns the chair over to Ron Jansson to call the Corey appeals. Appeal 2006-024 – Continued Corey Conditional Use in a Highway Business


Opened March 22, 2006 continued April 12, 2006, May 24, 2006, July 26, 2006, September 13, 2006, November 15, 2006, January 3, 2007, January 31, 2007, March 28, 2007, May 23, 2007, July 11, 2007, September 26, 2007, November 7, 2007, January 9, 2008, January 30, 2008, February 13, 2007, and to February 27, 2008.

Continued for Peer Consultants review of traffic and rework of conditions based upon revised plans submitted that eliminated the access roadway onto Wequaquet Lane.


Opened January 31, 2007, continued March 28, 2007, May 23, 2007, July 11, 2007, September 26, 2007, November 7, 2007, January 9, 2008, January 30, 2008, February 13, 2007, and to February 27, 2008.

Given the plan changes, Staff anticipates that Appeals 2007-009 & 010 will be requested to be withdrawn. Appeal 2007-009 Conditional Use Special Permit

Donald J. Corey, Jr., has petitioned for a Special Permit pursuant to Section 240-25(C) Conditional Use in a Highway Business Zoning District. The applicant seeks to designate a 30-foot wide easement from Wequaquet Lane to property addressed as 1030 Falmouth Road (Route 28), Centerville/Hyannis, MA. The easement is to be developed as a driveway for access to and egress from a proposed commercial development of 1030 Falmouth Road. The easement and drive is to be created over land addressed as 28 and 0 Wequaquet Lane,


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Centerville, MA, and 0 and 1030 Falmouth Road, Centerville/Hyannis, MA. The property is shown on Assessor’s Map 250 as parcels 024, 023X02, 023X01 and 065. The land is zoned Residence D-1 and Highway Business.



Noticed Anew - Continued Corey Appeal 2006-024, Appeal 2007-009 and Appeal 2007-010 These appeals were also re-noticed anew to allow for a new public hearing to be heard should it be necessary for quorum. Public Notices were the same as above with the notation “This Appeal is being re-noticed to allow for a new public hearing if necessary.”

Opened January 9, 2008, continued to January 30, 2008, February 13, 2008, and to February 27, 2008. No Members Assigned - No Testimony taken

Ron Jansson notes that Attorney Butler is asking for a continuance of the Corey appeals because of a lack of quorum.

Extensions are to be signed and this will be continued

CONTINUED TO MARCH 26th at 7:45 PM

Ron Jansson then turns the Chair back over to Gail Nightingale

At 8:07 PM, Gail Nightingale calls the Sprinkle appeal. She reads it into the record. No board members are assigned. Appeal 2008-003 - New Sprinkle

Expand/Alter Nonconforming Two-Family Brad K. Sprinkle has petitioned for a Special Permit pursuant to Section 240-92.B, Expansion/Alteration of a Nonconforming Buildings or Structures Used as Single- and Two-Family Residences. The petitioner seeks to expand and alter the two existing nonconforming residential dwellings located on the property. The property is addressed as 3600 Falmouth Road (Route 28), Marstons Mills, MA, and is shown on Assessor’s Map 077 as parcel 005. It is in the Residence F Zoning and Resource Protection Overlay Districts


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Attorney David Nunheimer is representing Brad Sprinkle and indicates that he would like to ask for a continuance.

CONTINUED TO MARCH 12TH AT 7:45 PM.

At 8:09, Gail Nightingale then calls the Berkshire Development/Circuit City appeals Appeals 2008-010, 011 & 012 - Continued Berkshire Development - Circuit City Redevelopment Opened February 13, 2008, continued to February 27, 2008.

No members previously assigned and no testimony taken

Appeals 2008-010 - Bulk Variance Min. Front Yard and Lot Coverage Berkshire Development, LLC has applied for a Variance to Section 240-25.E Bulk Regulations, Minimum Front Yard Setback off Route 132 and Section 240-35(F)(3) Lot Coverage in the Groundwater Protection Overlay District. The applicant seeks to locate the proposed building 45 feet off Route 132 where a 100-foot front yard setback is required and to maintain the existing lot coverage that does not meet with today’s 50% maximum lot coverage by impervious surfaces. The property is addressed as 624 and 640 Iyannough Road (Route 132), Hyannis, MA. The lots are shown on Assessor’s Map 311 as parcels 012 and 013. The property is in the Highway Business, B Business, Groundwater and Wellhead Protection Overlay Zoning Districts. Appeal 2008-011 - Highway Business Conditional Use Permit Berkshire Development, LLC has petitioned for a Special Permit pursuant to Section 240-25(C)(1) Conditional Use in the Highway Business Zoning Districts. The petitioner seeks to redevelop the site with a 23,500 sq.ft., building to be used for retail sales of electronics. The property is addressed as 624 and 640 Iyannough Road (Route 132), Hyannis, MA. The lots are shown on Assessor’s Map 311 as parcels 012 and 013. The property is in the Highway Business, B Business, Groundwater and Wellhead Protection Overlay Zoning Districts. Appeal 2008-012 - Expand/Alter Nonconforming Building Structure Berkshire Development, LLC has petitioned for a Special Permit pursuant to Section 240-93 Nonconforming Buildings or Structures Not Used as Single- or Two-family Dwellings. The petitioner seeks to redevelop the site with a 23,500 sq.ft., retail store and associated site improvements. The permit is sought to allow for the alteration and expansion of certain nonconformities on site, including impervious coverage. The property is addressed as 624 and 640 Iyannough Road (Route 132), Hyannis, MA. The lots are shown on Assessor’s Map 311 as parcels 012 and 013. The property is in the Highway Business, B Business, Groundwater and Wellhead Protection Overlay Zoning Districts.

Members assigned: Ron Jansson, Jerry Gilmore, James Hatfield, John Norman, Gail Nightingale

Ron Jansson discloses that he has spoken to the Ethics Commission as, in the past, he had represented a competitor and did not have time to file disclosure letter because he had just


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received the opinion from the commission yesterday and indicates that he will recuse himself if anyone is in opposition. Board members indicate that they are okay with it. Attorney Michael Ford is representing the applicants and indicates that he would like a minute to confer with his clients regarding the disclosure. Attorney Ford then indicates that there is no problem. Attorney Ford then indicates he is accompanied with representative of Berkshire Development and from VHB.

Attorney Ford then gives a history of the existing property as it relates to its location and Highway Business and Business zoning district and indicates that it is also in a Groundwater Protection Overly District. Ron Jansson asks if it is also in Well Head Protection District. Attorney Ford indicates it is hard to tell but seems only a small portion. Attorney Ford describes the permits granted to the existing buildings on both parcels. He also indicates that another parcel of property involved in this petition which he will refer to as the mitigation parcel is the Chili’s parcel. This parcel exists in two parcels, one a small parcel between the rotary and the Wendy’s facility and then the Chili’s parcel itself of the other side of Route 132. Attorney Ford then goes on to describe that on the site there is a total 3 buildings and that of all 3 buildings will be removed and a new proposed single retail structure consisting of 22475 square feet to house Circuit City is proposed to be constructed there. He gives a history of the project. He indicates the Cape Cod Commission jurisdiction was invoked, the applicant applied for a change of use, a permit from the CCC deemed it a change of use which needed to be reviewed as DRI in four separate issues and the Town of Barnstable referred it to the CCC. The project in the course of the CCC review underwent detailed studies regarding stormwater, community character, transportation which was one of the central issues of the commission and also the issue before the CCC of stormwater discharge at the site as this is an area of significance under the CCC act and local ordinance. During the course of the CCC’s review, the building underwent a number of iterations in order to come into compliance with the minimum performance standards of the regional policy plan. He indicates no portion of the building longer than 50 feet can occur under their standards without there being a jog of at least 10 feet in the building; therefore as to meet the minimum performance standards for community character. Additionally, a great deal of time was spent in terms of site layout as it relates to that issue of community character and in particular, the layout of the parking on the site and the entrance to the site. The current site has two curb cuts, one for each one of the enterprises on each one of the lots. Their proposal is one curb cut. The other feature of site layout, was the parking. The CCC has a minimum standard that parking is to be to the side or rear and not in front. He indicates that the Town of Barnstable Ordinance 240-54 also requires parking to be to on the side or the rear of the structure. He indicates that because of these standards, it became impossible to meet that standard and also comply with the front yard setback in the Highway Business zone which is 100 feet for a structure. Ron Jansson quotes Section 240-54 and asks why that would have an adverse environmental impact or is infeasible due to the configuration of the site. Attorney Ford indicates that he will be addressing that issue during the rest of his presentation. He then indicates that he has two plans that comply with the front yard setback and another that does not. Attorney Ford then indicates that the alternate plan, which has been approved by the CCC, shows the structure in compliance with the front yard setback and is 119 feet off Route 132 but on the plan they are unable to get the parking for the building to the side and the rear and some of the parking is to the front of the building and this plan does not need a variance but the other one does.

He indicates that the applicant was proposing mitigation and re-striping of the rotary, there were 4 peer reviews of that proposal. The Town was not satisfied with the rotary re-striping plan


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so the town encouraged the applicant through mitigation. He indicates that there is an ongoing Hyannis Access Traffic study and the applicant was asked to look at the potential acquisition of the Chili’s parcel so that it would be undeveloped, the Town could be the title holder of that particular piece, thereby permitting the Town to have Chili’s removed, all the curb cuts associated with that parcel closed off and that property be undeveloped and no further structures on it and some portion could be used down the line for reconfigurations of the rotary area depending on what direction the Town and the State intend to take to the whole rotary as plans go forward. The applicant obtained a Purchase and Sales for Chili’s and the Town, through the Town Council, appropriated $880,000 toward that purchase, the applicants contribution will be $800,000 towards the purchase of that property and that will be the traffic mitigation and offset by the vehicle trips by the retail store on this particular site.

Ron Jansson questions how long Chili’s has been closed as the only way the restaurant could exist was by a special permit. He comments that, if in fact, the suppositions for reduction of traffic are based upon the fact that traffic from that restaurant is no longer there but it is not going to be there anyways as it has been abandoned, he has difficulty with that. Attorney Ford indicates the memo that indicates that there will be 124 fewer trips on that roadway if this store is built and Chili’s is gone, doesn’t take into consideration that they are also removing the Star City Grille and the Rogers and Gray Insurance building. He indicates that the memo sought to show the analysis of the benefits in undeveloping the Chili’s parcel versus the construction of this store without taking credit for the removal of the Star City Grille and the curb cut associated with that.

He indicates that without including Chili’s, there is an 84% reduction in waste water flows from 7300 gallons per 1175 gallons per day between Star City Grille and Rogers and Gray and the new proposed retail store. He also notes that they are on sewer. Attorney Ford indicates that water consumption will also go from 3650 gallons per day to 588 gallons per day for the retail store and don’t account for the undevelopment of the Chili’s parcel. He cites page 13 of the CCC’s DRI decision, under WR3 regarding the state-of-the-art stormwater system that is being proposed. He indicates that because of the parties involved that this is time sensitive in reference the purchase of the Chili’s property. He then gives a summary of the relief being sought.

Ron Jansson asks what the average vehicle trips are for the Star City Grille and the Rogers and Gray Insurance Company. Randy Hart, traffic engineer from VHB, speaks and indicates that he has counts that were done at the facilities and that the figures for the Star City Grille were done after it was closed but there was some activity regarding the movement of equipment, etc. He indicates that they estimated on a daily basis that if you combine the two parcels that about 250 trips would be generated in congregate, weekday mornings about 32 trips, total weekday evening about 30, Saturday about 414, Saturday midday about 58 trips and that was when Star City Grille was not in full operation. Ron Jansson indicates that he is concerned that even though right-in, right-out maybe in place, people will still try to make a left hand turn into the property. Attorney Ford asks if they are better off with right-in, right-out or what is currently is existing Ron Jansson asks for figures based on if it was still operational as a restaurant.

Ron Jansson clarifies that the figures he is looking for is what the ITE trip generation for that size restaurant generated for this site will be. Randy Hart indicates he doesn’t have an actual number because in all the analysis they gave they gave a conservative number. Ron Jansson indicates that he would still like to have figures. Randy Hart indicates that he could testify that


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the numbers will easily offset the generation numbers they are talking about for proposed facility and would include the Saturday traffic. Randy Hart indicates that he has a trip generation manual and will take a couple of minutes to figure this out.

Attorney Ford then goes on to give the criteria for meeting a special permit. He indicates that they also have to meet the general criteria for a special permit. He indicates that from the site plan, he cannot represent that the airport has approved an emergency access but has made inquiry from the Fire Department if they had adequate access. He indicates that the Board should have an email from Lieutenant Chase with respect to the Fire Department’s opinion that they are satisfied that there is adequate access for fire and safety simply coming in from Route 132. They will probably go back to the airport for emergency access approval. Attorney Ford then indicates that the building needed to be approved by the airport and if there is a navigation easement that this might interfere with and they have checked and there is no easement and does not trigger a filing under the Town ordinance with respect to the airport. He will file form 7460 as it will be required for a building permit and would agree to a condition pertaining to that.

Gail Nightingale clarifies that this is not within the airport’s approach and Attorney Ford indicates that there is no navigational easement and has checked that.

Ron Jansson asks if had spoken to the abutter, the airport, as to whether they had a problem with this project. Attorney Ford indicates that early on, the applicants representatives, got on an agenda for the airport commissioners, explained the project, talked to them about the emergency access, their concern with allowing full access off the properties off this road that at some time the Town is going to be looking for some Federal money to upgrade this for an access to the airport in reference to airport expansions but are not in the position to do so but they kept the airport commission fully informed of this project.

Attorney Ford then goes on to describe an issue on this site of pervious versus impervious coverage as they are in a recharge area, GP and WP zone, the ordinance provides that they can’t have more than 50% of the site impervious by way of pavement, buildings, and structures. Existing conditions, on the plan in a table that VHB has done, show an impervious of 61.7%. The caveat of that is that there is a hard pack gravel parking lot behind the insurance agency and a portion behind Star city which was counted in that figure as part the impervious. It is an area that does not drain and has had gravel placed over the years. Including that, they are at 61.7%. They are proposing to cover 59.5% of the site with pavement and buildings. Additionally, there are some parking spaces that because they needed them to meet the minimum parking requirements under the parking requirement but did not want to exceed the impervious cover that was there, the design is to be pervious grass pavers and are shown on the plan, C2.

Attorney Ford then gives the grounds for asking for a variance in the alternative. He indicates the GP district came in November of 1987, adopted at Town meeting. The Assessor’s record shows that the Rogers and Gray site was improved and built in 1973. The Star City Grille site was initially constructed in 1963 and expanded in 1983. to the best of his knowledge, there have not been improvements since then in the case of parking or structures on the site. Therefore, he would suggest to the Board that they could make a finding that the conditions exist that are in excess of 50% are indeed pre-existing and nonconforming.


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Gail Nightingale asks if there is any proof if the parking areas were put into that extent. Attorney Ford indicates that conferring with the owners of the Star City Grille and Rogers and Gray there hasn’t been any changes in parking or building since 1983.

Attorney Ford then informs the Board that from Mr. Bloom there has been no changes in parking since 1983 and then informs the Board that Chili’s was closed in October of 2005. He also indicates that Randy Hart has some figures for the Board regarding vehicle trips.

Attorney Ford indicates that one other issues that was raised on the staff report was regarding coverage. He indicates that Art Traczyk had taken data from the non-variance where the building is 119 feet back and took the total square footage of the pervious pavers. He then computed it into a percentage of approximately 11%, added the 59.5% that they are proposing for to be impervious and came out with a figure a little over 70% and indicated that they are short. Attorney Ford indicates that if you take the numbers from the variance plan as opposed to the non variance plan, the amount of pervious pavers is less, it’s actually 10.39% and if you add it to the 59.5% you come in at 69.7%; therefore, are in compliance with the 30% and will give the figures for the record and had them done by the site engineer. On the non-variance plan, they still are at 70.3% so they are a little short of the 30%. He indicates that there are a couple of options, which currently, if they take the lawns out, it is 8600 square feet currently or 7.8% of the site, if you add the lawns in, they are using green space, the site is right at 30% currently. If you take all the green space you are at 30%. If the Board decides to go with the variance plan they comply even adding the pervious pavers. If the Board decides not to go with the variance and grant the special permit for the non variance plan they are at 70.3% and they could get down to 70% if that is what the Board would want them to do with the elimination of two extra parking spaces that they have.

Ron Jansson asks about mature trees on the site. Attorney Ford indicates they are able to save certain trees. Steve Chouinard, P.E. from VHB, points them out on the plan.

Ron Jansson asks if there are plans for site access to McDonald’s. Attorney Ford indicates that no request was made in that regard.

Attorney Ford then indicates that they have also applied for a variance for the 100 foot front yard setback. He indicates that the Commission Staff and the Growth Management Department preferred to have the building brought closer to the road and not have parking apparent at the front of the building and have a better site plan in terms of community character. The applicant agreed to bring forward the site plan that shows the building 45 feet back with heavily vegetated areas and had to balance that with that before the Commission and the section which is the parking to the side, but, this site is a site that lies between two roads and as a result, wherever you put that building in terms of getting your setback you end up, unless you are in the setback zone, you end up having parking either in front of the building potentially in violation unless someone wants to declare that it is infeasible of 240-25E or you turn out to be in violation of the front yard setback of Route 132. The applicant, because of the unique shape of this parcel which is in part is because of its location between two major roadways and that is a condition that is applied to this particular property and use and he suggests that the Board find it unique. He indicates that it also fits with the two other prong testing for a variance.

Ron Jansson comments that other buildings are setback.


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Randy Hart of VHB indicates that he has calculated 2 peak hours, the Evening Commuter Peak Hour, the Saturday Midday and then the Weekday Daily Number as well as the Saturday Daily Number and have so for each of the three uses, the Star City Grille, Rogers and Gray, individually and in aggregate, and have also looked at the Circuit City proposal, has subtracted the 2 to give you a sense of a plus or minus based on what he has looked at.

Time Frame Star City Grille

Rogers & Gray

Total Circuit City Grand Total

Evening Commuter Peak Hour

70 vehicle trips

7 vehicle trips

77 vehicle trips

24 vehicle trips

-52 vehicle trips

Saturday Midday Peak Hour (Retail Peak)

132 vehicle trips

0 vehicle trips*

132 vehicle trips

52 vehicle trips

-80 vehicle trips

Weekday Daily Number

724 vehicle trips

47 vehicle trips

771 vehicle trips

238 vehicle trips

-533 vehicle trips

Saturday Daily Number

931 vehicle trips

0 vehicle trips

931 vehicle trips

596 vehicle trips

-335 vehicle trips

*Randy Hart indicates that he is not sure how accurate that number may be.

Attorney Ford then indicates there are a number of letters in support that were also submitted to the Cape Cod Commission and that he will submit those to the file. He reads who the letters are from. Gail Nightingale asks if they are the same ones referred to in the Cape Cod Commission’s decision and is told yes.

Ron Jansson comments to Randy Hart that the figures he has just given are not consistent with the CCC findings figures on Page 17 of their report. Ron comments that in particular, Circuit City’s figures are showing 952 vehicle trips per day, the average Saturday will be 1334 trips, the average Saturday Peak Hour will be 135 vehicle trips. Randy Hart indicates that the figures he gave this Board do not include credit for passby and other means. He indicates that the passby is the trip that is already on the roadway that happens to make a stop because the facility happens to be there. He indicates that the number he has given the Board are the fully calculated numbers which are new vehicle trips which represent the credit for passby. Ron comments that the CCC report does not distinguish between passby and everything else. Randy Hart comments that it was part of the discussion and is absolutely what they allowed them to do as well as the Town of Barnstable. He indicates that he could’ve calculated without


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the passby but chose to use the new number because it is most pertinent. He indicates that the delta between the existing and proposed condition would be the same.

At 9:30, Gail Nightingale calls for a five minute break.

**Back in session at 9:42 PM.

Attorney Ford indicates that they have an article from the Cape Cod Times September 8, 2005 that reporting the closing of Chili’s as well as the agenda from the Licensing Committee for 2004 where they were able to get their 2005 license from the Town. He also indicates that he has talked with the owner of the Star City Grille, Mr. Bloom, and they closed the month after Chili’s closed.

Gail Nightingale comments that when they put a condition on this there are two separate lots under two separate ownerships and two separate leases and they are good for twenty years and asks what happens at the end of twenty years, the area where the insurance agency is and most of the parking, if they decide not to renew that lease, they could have a building without any parking. Attorney Ford indicates that it will be a conditioned use and that it will be controlled by one entity, Berkshire Development LLC and if the Board conditions it that way then it wouldn’t be problematic.

Gail Nightingale asks if there is an amendment to the memorandum of lease for Star because the other one doesn’t say it had to be extended, that one does says it has to be extended and if not acted upon by July…she then reads from the Star Nominee Trust which indicates that “in the event of the fixed term commences on a date other than July 15, 2007, landlord and tenant shall execute an amendment to this memorandum of lease” and she hadn’t seen that. Gail indicates that the other lease doesn’t say that. Attorney Ford indicates that he will talk with the other parties involved and asks for a minute. He then comments that this is for the memorandum of lease and not for the ground leases but the ground leases are fully executed. Gail asks if they have been submitted to the file. Attorney Ford indicates that the Board could make it a condition that they file one without that in the file. Gail Nightingale clarifies that she would like to have it for reason of standing. Attorney Ford agrees and will provide something to the Board.

Gail Nightingale comments that under parking requirements, C2, it designates how many parking spaces and it says road shop, auto repair and asks if there is going to be auto repair. Steve Chouinard, P.E. from VHB, indicates that it is for the installation of sound systems in cars. Attorney Ford comments that it is a general category and that there will be no auto repair.

John Norman clarifies that the rendering drawings shown are with the 45 foot setback. John then asks about signage and is told that it will be what is allowed and is told it has not been designed as of yet.

John Norman asks if the developer could live with a condition that the rear entrance was to be utilized for construction only and that the Route 132 entrance be sealed off during construction. Attorney Ford indicates that he doesn’t believe they would have a problem with it but that they would have to get permission from the airport and would be agreeable to a condition pertaining to this.


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John Norman indicates that he would prefer the 100 foot setback as other buildings on Route 132 are also situated back from the road.

Ron Jansson asks for clarification on the access Road. Attorney Ford indicates that it is a gated road and that they would need permission from the Airport Commission in order to utilize the road and are conducive to seeking that permission.

Ron Jansson asks if the Fire Department will have enough access to the parking area for emergency purposes. Attorney Ford indicates that the Fire Department has looked at that issue and are okay with what was presented at the Site Plan Review.

Ron Jansson asks Randy Hart from VHB if the trip generation figures are based on high drawing retail stores and regular retail stores. Randy Hart indicates that there is a category for large and medium stores and there is a specific category for retail electronic stores. He indicates that he was asked to get projection figures but used the empirical figures which were conservative.

Ron Jansson asks if drainage will all be on site and is told by Attorney Ford that is correct.

Ron Jansson asks for clarification about lighting on the site and site clearance. Steve Chouinard, P.E. from VHB, goes over the lighting and then points out, on the plan which he indicates was submitted to the Zoning Board and Site Plan Review but on the Cape Cod Commission they have increased the size of the right-in right-out driveway. He indicates that they have tapered it back further and indicates it is 14 feet wide going to 16 feet wide into the site and points it out on the plan. He indicates it was done to greatly reduce the chance of anyone trying to take a left-hand turn into the site. Attorney Ford clarifies that it is C2 included in the package.

Ron Jansson asks about a proposed median strip and is told by Attorney Ford that, through the discussions with the public safety officials of the Town as well as the CCC, it presented problems.

Ron Jansson asks about the memorandum of lease, where they exceed 7 years, if they have been recorded. Attorney Ford indicates that he is unsure if they are required to be recorded and they are longer than seven years and will be recorded.

Ron Jansson inquires as to what the vote was with the Commission. Attorney Ford indicates that at the subcommittee, 3 were in favor, one opposed, and one abstention which was Ms. Kadar. The vote at the full commission was 10 in favor, 3 opposed. Ron asks why the 3 votes were in opposition. Attorney Ford indicates that Ms. Kadar’s, as well as with Elizabeth Taylor of Brewster and Allan Plak of Wellfleet, one of their concerns was economics as they were not sure of the benefits of creating jobs in a retail store such that they could find but when they got to the balancing test where the detriments outweigh the benefits, it was their concern. Attorney Ford indicates there might’ve been other reasons but cannot recall the details.

Gail Nightingale asks if there is anyone here either in favor or in opposition. Attorney Ford indicates that there are people in the audience, the owners of the property as well as people from Berkshire Development, who are in favor.


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Patty Daley, Director of Growth Management, indicates that her department has been closely monitoring this and indicates that she is satisfied with their conservative traffic analysis of the proposed Circuit City and in the reduction of traffic volume. She indicates that she also supports the funding and purchase of the Chili’s parcel and is a worthy goal. She also indicates that that parcel will be an asset in trying to address larger traffic impacts in that area. She indicates that she would ask for the interconnect to the McDonald’s parcel but is looking at long term solutions to the traffic in this area. She indicates that she would like to see the potential for utilizing the rear access but understands it is owned by the inhabitants of the Town of Barnstable but under the control of the Airport Commission. She indicates that the Growth Management Staff, local safety personnel, including both fire and police, did not support a partial median which was originally proposed by Circuit City positioned in front of their parcel. She indicates that the problem would be people trying to do U-turns which would create more chaos and feels they need a full median strip in conjunction with other major road improvements.

Ron Jansson asks if placement of bollards in the roadway has been considered. Patty Daley indicates that they have considered it. She also indicates that, in the future, Growth Management will be asking for the placement of parking to the rear and sides of the buildings instead of in the front. Ron Jansson asks about future possible road expansion in that area and if the buildings are placed closer to the road if this would create potential problems. Patty Daley indicates that they don’t see road expansion in the immediate future as they are trying to stay within the layout. Ron Jansson asks about putting agreements in place with the owners of the property for the possible expansion of Route 132. Patty Daly indicates that Growth Management would support a condition to that effect.

Gail Nightingale asks if there is anyone here either in favor or in opposition. No one speaks. Attorney Ford indicates he would answer any other questions the Board has.

Gail Nightingale asks with no exit off the rear and there was an accident in the entryway, how would vehicles, including emergency vehicles get in and out of the property. Steve Chouinard, points out on the plan, and indicates that they have provided for a driveway with a breakaway gate but do not have permission as of yet. Gail also asks about a walkway to McDonald’s. Attorney Ford indicates that there is no objection on their part and could make a request of the other property owner.

Ron Jansson asks if something could be explored to determine how this project and others can be given full access over that roadway. Attorney Ford indicates that the applicant would be agreeable to a condition regarding this.

John Norman asks why the developer prefers to be closer to the roadway. Attorney Ford indicates that Growth Management and Cape Cod Commission had suggested the building placement because of future development and they have made this their preferred design.

Gail Nightingale indicates that she couldn’t see variance conditions pertaining to the setback. Attorney Ford indicates that he would concur but because of the dilemma of the setback and the parking to the side and rear they couldn’t meet both. Attorney Ford clarifies the reasoning for the special permit and variance requests.

Ron Jansson and Attorney Ford discuss the future expansion possibilities on Route 132.


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The Board and Attorney Ford discuss and come to an agreement to continue this to a special meeting in order to do findings and make a decision. Attorney Ford then asks if this will be open to the public for comment. Gail Nightingale indicates that it will be closed to public input and continue for just a decision on March 4, 2008.

Attorney Ford asks if the only issue for the continuance is to be able to do findings and conditions or if anyone has a real problem with the issuance of the special permits. Gail indicates that it sounds like 3 of the members want it to go without a variance and want it to be placed 100 feet back, if the other 2 agree to go forward then that is how it is going to be. Attorney Ford indicates that normally, in those types of situations where the vote doesn’t add up for a variance you will generally see him ask to withdraw without prejudice on behalf of the applicant. However, given the CCC decision and a requirement that we request the variance, he thinks he would have to have the board vote on it in order to be consistent. Gail concurs.

CONTINUED TO A SPECIAL MEETING ON TUESDAY, MARCH 4, 2008. HEARING ROOM OR TO BE DETERMINED.

Gail Nightingale then calls the Ladner appeal.

Appeal 2008-005 - Continued Ladner Bulk Variance, Minimum Front Yard

Setbacks

Opened January 23, 2008, continued to February 27, 2008. Continued at request of applicant’s representative.

No Board Members assigned. Needs staff report and information to Board

Thomas Ladner has applied for a Variance to Section 240-11.E, Bulk Regulations, Minimum Front Yard Setbacks. The applicant seeks to maintain a recently built attached garage, mudroom and deck to remain as built located 11.3-feet off Frost Lane where a minimum 20-foot front yard setback is required. The property is addressed as 101 Frost Lane, Hyannis, MA and is shown on Assessor’s Map 289 as parcel 013. It is in a Residence B Zoning District.

Members assigned: Ron Jansson, Gail Nightingale, James Hatfield, John Norman, Jerry Gilmore

Gail Nightingale gives a brief summary of what had transpired leading to the request for the variance.

Mr. Ladner is here representing himself. The Board discusses and determines to do findings.

Ron Jansson does findings


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Thomas Ladner has applied for a Variance to Section 240-11.E, Bulk Regulations, Minimum Front Yard Setbacks. The applicant seeks to maintain a recently built attached garage, mudroom and deck to remain as built located 11.3 feet off Frost Lane where a minimum 20-foot front yard setback is required. The property is addressed as 101 Frost Lane, Hyannis, MA and is shown on Assessor’s Map 289 as parcel 013. It is in a Residence B Zoning District.

The applicants recently built an attached garage and a mudroom and a deck on his property and it was located, instead of 20 feet as required, was setback 11.3 feet. This was done by a mistake and it was also done with the then approval of the Building Commissioner’s department who is under the mistake regarding the setback requirements in this particular area given the fact there were dual setbacks.

According to the Assessor’s record, the subject lot is a 0.27-acre lot developed with a 1.3/4-story, three-bedroom dwelling consisting of 1,727 sq.ft. of living area. The applicant has owned the property since 1995.

In late July of 2007, the owner, through his contractor, Leif Bottcher, sought a building permit to add an addition to the existing dwelling. According to the building permit application, the addition was to accommodate a 24 by 28-foot garage and a 10 by 24 foot mudroom. Plans submitted also showed a small proposed deck to the rear of the addition.

An error occurred and the addition as described previously was built:

:9.5 feet off the side property line where 10 feet is required. A 0.5 foot infringement, and

• 13.0 feet off the front property line along Frost Lane where a 20 foot setback is required. A 7.0 foot infringement.

The construction of this addition was done with the approval of the Building Department; there was no intent to violate the zoning bylaw.

He cannot make specific all the findings under Chapter 40A Section 10 regarding soil condition, shape or topography but he would find it would be a significant financial hardship if the applicant were required to remove the structures as built and put them into conformity with the zoning bylaw.

In view of the neighborhood involved the additions as they are built would not represent any substantial detriment to the neighborhood but the additions are actually in conformity with the neighborhood


Vote: AYE: Jerry Gilmore, James Hatfield, John Norman, Ron Jansson, Gail Nightingale NAY: None

Ron Jansson makes a motion based on positive findings that the Board grant according to the following conditions:


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1. This variance is granted only to those infringements as shown in the October 18, 2007 Foundation Plan submitted as drawn by Yankee Land Surveyors & Consultants–that being for the garage and mudroom addition. All future construction, including all decks and porches, shall be required to conform to the required setback for the district.

2. That addition that infringes shall not now or in the future be further added to or expanded including the addition of any second floor level.

3. This decision must be recorded at the Barnstable County Registry of Deeds and a copy of that recorded document must be submitted to the Zoning Board of Appeals office and to the Building Division within one year of it being issued and prior to the issuance of any final occupancy permit for the addition.


Vote: AYE: Jerry Gilmore, James Hatfield, John Norman, Ron Jansson, Gail Nightingale NAY: None

GRANTED WITH CONDITIONS

Gail Nightingale then calls the McKeon appeal at 9:46 PM and reads it into the record.

Keith W. and Candace A. McKeone have petitioned for a Special Permit for a home occupation pursuant to Section 240-46.C. The petitioner is seeking a special permit to park one work truck relating to a landscaping business at his home. The property is located at 936 Wakeby Road, Marstons Mills, MA, as shown on Assessor’s Map 012 as Parcel 006. It is in the Residence F Zoning, Resource Protection Overlay, and Groundwater Protection Districts.

No members assigned. She indicates that as agreed with the applicants, she will continue this to March 12 at 7 pm.

CONTINUED TO March 12, 2008 at 7:00 PM.

Gail Nightingale then calls the Berkshire Development/Circuit City back for the remainder of the hearing. See above**.

Motion to adjourn

Meeting adjourned at 11:05 pm.


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Minutes March 4, 2008

A special meeting was duly posted for the Town of Barnstable Zoning Board of Appeals and was held on Tuesday, March 4, 2008 at 7:00 PM in the Selectman’s Conference Room at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Arthur Traczyk, Principal Planner and Carol Puckett – Administrative Assistant. Gail Nightingale Present Ron Jansson Present Daniel Creedon III Absent James Hatfield Present Sheila Geiler Absent John Norman Present Jeremy Gilmore Present Kelly Lydon Absent Also in attendance were Attorney Michael Ford, Town Manager – John Klimm, Town Attorney – Ruth Weil. Appeals 2008-010, 011 & 012 Berkshire Development - Circuit City Redevelopment

Opened February 13, 2008, continued February 27, 2008 and to March 4, 2008. Public hearing closed. Continued for Board’s Decision

Members: Ron S. Jansson, James Hatfield, John T. Norman, Jeremy Gilmore, Gail C. Nightingale No Alternates

Appeals 2008-010 - Bulk Variance Min. Front Yard and Lot Coverage Berkshire Development, LLC has applied for a Variance to Section 240-25.E Bulk Regulations, Minimum Front Yard Setback off Route 132 and Section 240-35(F)(3) Lot Coverage in the Groundwater Protection Overlay District. The applicant seeks to locate the proposed building 45 feet off Route 132 where a 100-foot front yard setback is required and to maintain the existing lot coverage that does not meet with today’s 50% maximum lot coverage by impervious surfaces. The property is addressed as 624 and 640 Iyannough Road (Route 132), Hyannis, MA. The lots are shown on Assessor’s Map 311 as parcels 012 and 013. The property is in the Highway Business, B Business, Groundwater and Wellhead Protection Overlay Zoning Districts.

Zoning Board of Appeals – Agenda – March 04, 2008

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Appeal 2008-011 - Highway Business Conditional Use Permit Berkshire Development, LLC has petitioned for a Special Permit pursuant to Section 240-25(C)(1) Conditional Use in the Highway Business Zoning Districts. The petitioner seeks to redevelop the site with a 23,500 sq.ft., building to be used for retail sales of electronics. The property is addressed as 624 and 640 Iyannough Road (Route 132), Hyannis, MA. The lots are shown on Assessor’s Map 311 as parcels 012 and 013. The property is in the Highway Business, B Business, Groundwater and Wellhead Protection Overlay Zoning Districts. Appeal 2008-012 - Expand/Alter Nonconforming Building Structure Berkshire Development, LLC has petitioned for a Special Permit pursuant to Section 240-93 Nonconforming Buildings or Structures Not Used as Single- or Two-family Dwellings. The petitioner seeks to redevelop the site with a 23,500 sq.ft., retail store and associated site improvements. The permit is sought to allow for the alteration and expansion of certain nonconformities on site, including impervious coverage. The property is addressed as 624 and 640 Iyannough Road (Route 132), Hyannis, MA. The lots are shown on Assessor’s Map 311 as parcels 012 and 013. The property is in the Highway Business, B Business, Groundwater and Wellhead Protection Overlay Zoning Districts. At 7:05 PM Gail Nightingale indicates that we are awaiting Attorney Ford. Gail Nightingale calls the hearing into order at 7:32 PM. She indicates that this hearing is for the continuance of the hearing for Berkshire Development/Circuit City which was held February 27, 2008. Gail Nightingale asks Attorney Ford if the leases were filed. Attorney Ford concurs and he did redac the financials. Gail then asks if he has obtained permission from the airport. Attorney Ford indicates that Attorney Butler received a letter from the Airport Commission and had put it on hold pending because no other permits had issued for it and as of yet, they don’t know if they have access. Ron Jansson asks if they would be agreeable to a condition stating that when this road becomes available for ingress and egress it is utilized to address the traffic concerns. Attorney Ford indicates that the proposal was to have access and is agreeable to a condition. Ron Jansson indicates that this will be two lots under separate ownership and the proposed development and will be a lease development and one is registered and one is unregistered land and knows nothing about the title history. He indicates his concern is if something should occur on the severance of one parcel falls under the control of someone else and is no long under this lease and is talking about the lot the parking is on. Attorney Ford gives Cape Cod Mall as en example and suggests they make it a condition which they are agreeable to. Ron then asks if all drainage is to be on site. Art Traczyk answers yes. Ron then asks if there inadequate lighting, Art concurs. Ron then asks about the connectivity with McDonald’s and if that has ever been addressed. Art answers no but it is not an absolute. Ron asks what is the long term regarding sidewalks. Art isn’t sure about the long term plans. Ron asks about a 20 foot easement in case the Town would, in the future, expand that roadway. Attorney Ford indicates that he has talked to Ruth Weil, Town Attorney, and John Klimm the Town Manager, and in the future 132 might be widened but will cooperate with that. Attorney Ford indicates that he is sure it could be worked out in good faith.


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Ron Jansson then asks Art Traczyk if he is comfortable with handicapped access. Art indicates yes. Ron asks about security lighting and asks Art if he thinks that security lighting in the parking lot would be sufficient. Art believes there is adequate security lighting. Ron Jansson asks about delivery trucks, and if access is to be to the rear in the future, could a contingent condition be imposed that would require delivery to occur

1. to the rear of the building to eliminate traffic from accumulating in that area 2. what the potentiality is in the mean time for restricting delivery trucks so that they don’t

occur during peak operating traffic hours

Attorney Ford indicates that first he would need approval from the Airport Commission regarding the access road. Attorney Ford then asks Theresa Cofske, representative from Berkshire Development, about deliveries and she indicates it was also a question that was addressed at the Cape Cod Commission. She indicates that Circuit City indicated that their deliveries are after hours so they would be talking about 10:00 PM at night. Ron Jansson asks for clarification about the delivery hours. Theresa Cofske indicates that it would be before the store opens at 6:00 AM and after the store closes at 10:00 PM. Attorney Ford indicates that at some point there might be an exception to that but there could be a condition that the applicant would make a good faith effort to make the deliveries within those hours. John Norman indicates that he is concerned about meeting the variance conditions for the granting of a variance under Chapter 40A, Section 10 because the ordinance and bylaws are conflicting. Ruth Weil, Town Attorney, relates the ordinance regarding the parking to the side and rear and the ordinance for the front setback and indicates and that it should be harmonious. She indicates that landscaping instead of parking to the front of the parcel is better for the public and that the Town and the Cape Cod Commission have embraced that concept. Attorney Ford indicates that the Town as well as the Cape Cod Commission preferred the variance; however, he also requests that the Board also the grant the special permit as-of-right. Gail Nightingale comments that she would be in opposition to the variance because of the size of the building on Route 132 and would find it not appealing. Attorney Ford indicates that the variance is still on the table. Jerry Gilmore asks if both a variance and a special permit can be granted. Gail Nightingale comments that if Growth Management has a strong feeling with the 100 foot setback why isn’t the ordinance changed. Ron Jansson indicates that he is favor of the project overall but is still concerned about the traffic. The Board and Attorney Ford discuss what should be decided first. They agree to do the variance first. Gail Nightingale does findings first for 2008-010.


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The applicant is Berkshire Development and it is to build 45 feet off Route 132 where a 100 foot front yard setback is required. Findings of Fact:

1. The subject property (the Property) is comprised of two separate lots, addressed 624 and 640 Iyannough Road (Route 132), Hyannis, MA. The lots are shown as parcels 012 and 013 on Assessor’s Map 311. The two lots total approximately 2.53-acres and are to be used as one for the purposes of zoning and redevelopment.

2. The lots are presently developed with a 3,996 sq.ft. professional office building and a 6,160 sq.ft., restaurant building, last licensed in 2005 for 202 seats total. Most of the Property is zoned Highway Business with a small area to the rear zoned Business B. Office use is a principal permitted use allowed as-of-right in the Highway Business District. The existing restaurant is a legally created nonconforming use in the district as it dates to 1963, and predates the rezoning along Route 132 to Highway Business. The restaurant has the benefit of Special Permit No. 1984-69 that allowed an addition to the nonconforming use and authorized a maximum capacity of 300-seats.

3. The office lot, 640 Iyannough Road, is owned by MDM Realty Trust and the restaurant lot, 624 Iyannough Road, is owned by Star Nominee Trust. Berkshire Development, LLC (the petitioner), is a Massachusetts limited liability company and Manager to Berkshire-Hyannis, LLC. Berkshire-Hyannis, LLC has executed a Ground Lease with the owners of each lot. Copies of the Leases have been submitted to the file for proof of standing. The initial term of each lease is 20 years with the option to extend them for 12 additional terms of 5-years each.

4. The Petitioner is proposing to demolish the two existing buildings on the Property and redevelop the 2.53-acre site with a new one-story, 23,500 square foot retail sales building, parking and associated site improvements. The site is to be occupied by Circuit City, Inc., an electronic “superstore” retailer, as the sole tenant of the property. Two sets of plans for the redevelopment have been submitted to the file. One set of plans entitled '"Berkshire Development Iyannough Road, Barnstable, Massachusetts” shows that the building can conform to the Highway Business Zoning District bulk regulations that require a 100-foot setback off Route 132. A second set of plans, entitled “Berkshire Development Iyannough Road, Barnstable, Massachusetts - Site Alternative'" proposes to locate the building with a reduced front yard setback of 45-feet. It is for this reduced front yard setback that the Applicant has submitted Appeal 2008-010 seeking a variance to Section 240-25.E Bulk Regulations, Min. Front Yard Setback.

5. The proposed redevelopment has been found to be a Change of Use and over the 10,000 sq.ft. gross floor area that triggered a review as a Development of Regional Impact (DRI) by the Cape Cod Commission. The Commission’s DRI review was that of a limited review to issues of Community Character, Economic Development, Transportation, and Water Resources. Ron Jansson interjects and notes the 10,000 square foot area which is added in red above. On February 7, 2008, the Commission issued its DRI Decision with conditions. In issuing that decision, the Commission recommended the redevelopment comply with the Regional Policy Plan that recommends that all commercial parking be located to the side and rear of the building and not within the front yard. To that end, the Commission, in concurrence with the Town’s Growth Management Department requested the alternative plan be drafted. That plan locates the building only 45-feet off Route 132 and the parking is situated to the side and back of the structure.


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6. Section 240-25.E of the Town’s Zoning Ordinance specifies that the minimum setback off Route 132 is 100 feet. That amendment was incorporated into the Ordinance in 1983. The intent was to lessen the implications of future expansion in the right-of-way of Route 132, should that be needed. Section 240-54 was amended into the Ordinance in 1999. That section states that "parking lots shall be located to the rear or side of a building unless such location would have an adverse environmental impact, or is infeasible due to configuration of the site." The Growth Management Department has testified that they endorse a reduced front yard setback, as that pattern of development is now more favorable to the image they are striving for along Route 132.

7. The proposed redevelopment has also been reviewed by the Town of Barnstable Site Plan Review Committee and a site plan approval letter dated February 11, 2008, has been issued with conditions.

Ron Jansson then indicates that #8 should not be read as it is for the denial of a variance.

Gail Nightingale indicates that those are the findings.


Discussion on the findings:

Ron Jansson asks about adding a finding that Route 132 is considered a gateway to downtown Hyannis; therefore is considered an important aspect of the redevelopment of the downtown Hyannis area. Jerry Gilmore indicates he believes it is incorporated in Finding #7.

Ron Jansson asks about an easement on the road. Gail Nightingale asks for clarification from Attorney Ford as she believed it would be more difficult to get an easement if it was 45 feet from the road. Attorney Ford indicates that he said that one has to look at more closely if the building ends up being much closer

Gail Nightingale reiterates that she has problems with the building being so large and so close to the roadway and that we still have the option of putting it back where it belongs because the parking doesn’t absolutely have to be to the side and rear and that the building would have an adverse environmental impact if it is placed closer to the roadway.

Ron Jansson asks Gail Nightingale if there would be a halfway point that she would feel comfortable with. Attorney Ford interjects and indicates that it wouldn’t work technically.

The Board discusses the potential widening of the roadway.

Attorney Ford suggest adding an amendment indicating that a literal enforcement of the setback requirement of the ordinance would result in the petitioner locating the parking spaces in the front of the building along Route 132 and therefore creating a hardship. This hardship is that they can’t comply with the other provision of the bylaw.

Ron Jansson comments that he doesn’t find it a hardship as the portion of the zoning bylaw does provide for exclusions from that requirement. Attorney Ford indicates that it says if not feasible.


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Board accepts the amendment.


Vote: AYE: Jerry Gilmore, John Norman, Ron Jansson, James Hatfield NAY: Gail Nightingale

Gail Nightingale as she does not feel there are variance conditions substantial to grant a variance as it can be placed 100 feet back as required.

Ron Jansson makes the following motion:

Based upon the positive findings of fact, a motion was duly made and seconded to grant Variance No. 2008-010 to allow the proposed building to be located 45-feet off Route 132, subject to all of the following conditions:

1. This variance is issued for the two lots, totaling 2.53-acre and addressed as 624 and 640 Iyannough Road (Route 132), Hyannis, MA (Assessor's Map 311, parcels 012 and 013) to be used as one for the purposes of redevelopment and use as retail store for the sales of electronics. Notices of the executed Ground Leases to the lots shall be recorded at the Barnstable Registry of Deeds and Barnstable Registry District and proof of the recording submitted to the Zoning Board Office prior to the issuance of any building permit that relies on this variance. Registry of Deeds will also mean to incorporate Registry of the District of the Land Court as one is registered and one is unregistered.

2. The redevelopment shall be limited to a one-story, 23,500 sq.ft., single-tenant building for the retail sales of electronics. The site shall be developed as per the engineered site plan submitted entitled; "Berkshire Development Iyannough Road, Barnstable, Massachusetts – Site Alternative” as prepared by VHB Vanasse Hangen Brustlin, Inc., dated February 23, 2007, and last revised February 1, 2008, showing a 45 foot setback from Route 132 . This plan is to be initialed by the Chairperson to avoid any confusion to what is granted. The exterior of the building shall be developed as shown on the elevations submitted entitled; "Berkshire Development Hyannis, MA'" as drawn by Casco Project Managers. This shall include the exterior coloration of the building (Sheets C1 through C8, SL1 and SV1).

3. The development of the variance herein, and shown on the plans approved, shall be considered full build out of the 2.54-acre site. The interior of the building shall be one-story only. It shall not be expanded by the addition of interior floors or mezzanine areas. The parking on the lot shall not be shared with any other use unless it is approved by this Board nor shall any building addition, accessory building or other use be permitted without approval of this Board. Storage units and/or trailers are prohibited on the property except during the construction of the building, and then only as permitted by the Building Commissioner as temporary, construction-related units and trailers.

4. The applicant and occupant of the property shall be responsible for assuring that the redevelopment and use of the site is in compliance with, and maintained consistent with, this variance as well as all conditions of the Cape Cod Commission's Development of Regional Impact Decision issued February 7, 2008 which is in possession of the Board. If the Commission’s DRI decision is modified, the Applicant shall be responsible for notifying the Zoning Board of Appeals Office immediately of that modification for a determination if this permit needs to be modified.


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5. The Stormwater Management System inclusive of the bio-retention basins and first flow to and over vegetated areas shall not, in the future, be circumvented by the installation of paved areas that would channel runoff directly into the catch basins. No run-off shall be diverted to Town sewers.

6. The requirements of the Cape Cod Commission, as it currently relates to the acquisition of the off-site mitigation property and transfer into the Town's ownership, shall be executed prior to the issuance of any building permit for the property. Proof of the transfer of the two lots to public ownership as well as the petitioner’s requisite contribution of the acquisition costs of 50% amount set forth in the decision of the Cape Cod Commission shall be submitted to the Zoning Board of Appeals prior to the issuance of a building permit.

Ron Jansson and Attorney Ford discuss the percentage contribution and the issuance of building permits. Ruth Weil indicates that it would be the Town’s discretion and it is their intention to close before the building permits issue. It is decided to leave #6 in but striking “prior to the issuance of the building permit”.

7. Signage shall comply with the Town of Barnstable's Zoning Ordinance. No variance from the zoning requirements for signage shall be issued from the Zoning Board of Appeals and no nonconformity in signage shall applied to the redevelopment of the property. Signage shall be substantially as represented to the Board in the illustrated building elevations submitted. There shall be no signage added to the exterior of the building, including signage adhered to the surfacing of the window placed there so as to be visible to the outside, signs that display a sale price, and/or pictorial representations of electronics that are for sale. Window display of merchandise is encouraged over signage.

8. The development shall be required to meet all applicable building and fire codes. All Fire Department requirements shall be met, including but not limited to stand pipes, fire hydrant locations and interior building sprinkler system.

9. All on-site dumpsters shall be screened and shall be located as set forth in the plans submitted to this Board and meet all Board of Health regulations. The store shall properly dispose of all waste materials and to the extent practical, recycle subject to the provisions of the Groundwater Protection Overlay District. As the property is in a Groundwater Protection Overlay District, there shall be no storage of hazardous materials.

Ron Jansson and Attorney Ford discuss the terms “hazardous materials versus hazardous waste”. Attorney Ford comments that he doesn’t want it conditioned if the electronics store is selling batteries, for instance. Art Traczyk quotes the ordinance which indicates waste. Ron Jansson and Attorney Ford agree to state for the purposes of clarification it should be subject to the provisions of the Groundwater Protection Overlay District.

10. The building shall be connected to public water and to the Town of Barnstable Wastewater Treatment Facility.

11. Upon the issuance of a building permit for the redevelopment authorized herein, Special Permit No. 1984-69, that authorizes a restaurant use on one of the subject lots shall become null and void and all rights authorized in that permit shall expire.

12. The applicant shall install no-left turn signs and appropriate road markings as determined by the Department of Public Works on Route 132 clearly identifying that the ingress to the property is a right-turn in and right-turn out only. The nature of the signage and location and road markings shall be reviewed by the Town of Barnstable prior to its installation.

13. The landscaping plan shall be implemented, or a cash bond in the amount of the proposed


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landscaping as determined by the Growth Management Department posted with the Town prior to the grant of an occupancy permit for the store. The trees that are identified on the plan as being retained shall be retained and incorporated into the landscape plan.

14. The applicant shall attempt to secure a pedestrian walkway connecting the property with the abutting McDonald’s restaurant to the west. If the access cannot be secured, the applicant shall create a walkway from their parking area out to the public way on the west side of the site exit drive in accordance with specifications as determined by the Town’s Department of Public Works. The walkway shall be installed to the specification of the Department of Public Works. The added pavement to create the pedestrian walkway shall not be included in the lot coverage as it is being requested by this Board for the convenience and safety of the public.

15. In the future, the Petitioner shall cooperate fully with the Town of Barnstable in implementing improvements to Route 132 to that portion of the property that abuts their property. To that end, should the Town of Barnstable determine that added right-of-way is necessary for improving Route 132; the Petitioner shall assent to an easement of up to 20-feet wide over the Property as it abuts Route 132.

16. The applicant shall seek Airport Commission approval to temporarily use the back entrance to the lot during the initial construction of the building and site improvements to the property for the purposes of moving construction equipment into and out of the site. Thereafter, the applicant shall seek a permanent agreement that the roadway can be used for emergency access via the roadway that abuts to the rear. Additionally, in the future should the opportunity occur, the applicant shall cooperate with the Town of Barnstable regarding vehicular access from the lot to said roadway.

17. The occupant of the building and/or applicant shall be responsible for the proper maintenance and upkeep of the landscape and property, including on-site litter control, periodic cleaning and sweeping of the parking lot, watering and irrigation of the landscape, maintaining of site lighting, annual cleaning of the catch basins, demarcation of on-site parking and circulation, and on-site traffic signage. Lighting at the access and egress portions of the property along Route 132 shall be provided as set forth in the plans and maintained as to assure maximum safety conditions for vehicles using this portion of the roadway.

18. Delivery vehicles shall, to the fullest extent possible, use the rear access to the property is available. All such deliveries to the greatest extent possible shall be made between the hours of 6:00 AM and 10:00 PM.

19. The applicant shall comply with all terms and conditions imposed by this Town’s Department of Public Works with reference to the curb cuts permits but the elongated curb cut shall not be altered without further approval from this Board.

20. All drainage shall be contained on-site and shall not be allowed to run off onto Route 132 or any abutting properties. All drainage shall be so disposed as not to overburden Town sewerage.

21. The applicant shall contribute the sum of $5,000 to the Town of Barnstable that shall be earmarked to enhanced safety on Route 132 in this segment of the roadway. The intent of this contribution is to further discourage left hand turning movements. The funds shall be contributed at the time the building permit is applied for.

22. The lighting plan submitted with the plan set referenced herein shall be implemented and maintained to assure proper safe levels of lighting at the entrance to the site as well as throughout the parking are of the Property.

23. The Petitioner shall comply with all conditions and specifications of the Department of Public Works regarding the elongated curb-cut to be installed as the entrance to the Property. It


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shall not be altered in the future without due notice to the Office of the Zoning Board of Appeals for a determination if that proposed alteration will require prior approval of the Zoning Board of Appeals.

24. The applicant shall not exercise its rights under this decision until such time as it provides the Building Commissioner with a final, fully executed and recorded decision copy of the Cape Cod Commission DRI Decision. and a recorded copy of this Special Permit Decision.


Vote:

AYE: Ron S. Jansson, James R. Hatfield, Jeremy Gilmore, John T. Norman, NAY: Gail C. Nightingale Gail Nightingale indicates that her reasons for voting in the negative are because she does not feel there are variance conditions and she does feel that the location of the parking at the rear with the building only located 45 feet back from Route 132 would have an adverse environmental impact. Gail Nightingale indicates they will now do the 2008-011 which is the Special Permit. Ron Jansson does the findings for 2008-011. With reference to appeal 2008-011, conditions #1, 2, and 4 that were set forth in the prior variance findings are incorporated without having to repeat each one of them.

New condition #4 with reference to findings. The Property is also located in the Groundwater and Wellhead Protection Overlay Zoning Districts. Those districts were imposed in 1987 and overlay the underlying zoning. The overlay district regulations, in addition to prohibiting certain uses and the storage of hazardous materials, imposed limits on the extent of impervious coverage of a lot. The current use and development of the lots predates adoption of groundwater protection and the lots do not conform to the 50% maximum impervious lot coverage.

5. The applicant/petitioner is proposing to demolish the two existing buildings on the Property and redevelop the 2.53-acre site with a new one-story, 23,500 square foot retail sales building, parking and associated site improvements. The site is to be occupied by Circuit City, Inc., an electronic “superstore” retailer as the sole tenant of the property. Plans for the redevelopment have been submitted. In addition to the redevelopment site, the applicant/petitioner has agreed to assist the Town of Barnstable in the acquisition of two lots that abut the Airport Rotary at the intersection with Route 132 – the Off-Site Mitigation Property. The two lots are the former 266-seat, nonconforming "Chili's Restaurant'" addressed as 545 Iyannough Road and the accessory employee parking lot adjoining Wendy’s addressed as 0 Iyannough Road. The restaurant closed on September 15, 2005 and has been vacant since then. The Zoning Ordinance defines abandonment as nonuse of the property for three years or more; therefore, the restaurant that was at the site has not lost its nonconforming rights. The two lots that are going to be provided in mitigation total 0.95-acres and are in the same Highway Business and Groundwater Protection Overlay Zoning Districts as the redevelopment property.


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6. The proposed redevelopment has been found to be a Change of Use as well as development that exceed 10,000 sq.ft., and triggered a review as a Development of Regional Impact (DRI) by the Cape Cod Commission. The Commission’s DRI review was that of a limited review to issues of Community Character, Economic Development, Transportation, and Water Resources. On February 7, 2008, the Commission issued its DRI Decision with conditions.

7. The proposed redevelopment has also been reviewed by the Town of Barnstable Site Plan Review Committee and a site plan approval letter dated February 11, 2008 has been issued with conditions. The site plan approval satisfies one of the three prong requirements of Section 240-125.C for the grant of a special permit.

Ron Jansson asks if we have incorporated the conditions of site plan approval in our decisions and asks if we know that for sure. Art Traczyk indicates that we can add that in there.

Ron then indicates that Finding #8 from the draft is redundant as it has been referenced it as far as the conditions.

8. The applicant/petitioner has indicated that they desire this redevelopment to be an asset to the community and an improvement over the current uses on the Property. To this end, the Applicant will be making a contributions of; $30,000.00 to Barnstable Housing Authority for affordable and workforce housing, $30,000.00 to the Cape Cod Community College for workforce training, and $10,000.00 worth of equipment to the Barnstable School System. These contributions are a part of the terms and conditions of Cape Cod Commission DRI and are incorporated by reference into this decision

9. Appeal 2008-011 is before the Zoning Board for a Special Permit pursuant to Section 240-25(C)(1) Conditional Use in the Highway Business Zoning District. The applicant/petitioner seeks to redevelop the Property for the retail sales of electronics. Section 240-25(C)(1) authorizes uses permitted in the Business B Zoning District to be located in the Highway Business Zoning District by the grant of a Conditional Use Special Permit from the Zoning Board of Appeals. Therefore, this Board has the authority to grant with conditions applicable the special permit that is being sought in this application. Retail Sales is fact a permitted use in the Business B Zoning District and therefore the Board is authorized to grant a special permit.

10. To grant the Conditional Use Special Permit requires findings to support that the use does not “substantially adversely affect the public health, safety, welfare, comfort or convenience of the community."

a. This is a business and commercial area of the Town with many of the uses along Route 132 serving Barnstable County and the Cape Cod region. The Cape’s major retail malls are in close proximity, as are other freestanding “superstores”. Most front on Route132. This area is identified in the adopted Local Comprehensive Plan as a Growth Activity Center. That designation encourages this area as a regional shopping and commercial area. The site is served by pubic water and public sewer. The location of the proposed retail store at this site can and will be adequately serviced by public utilities and town services. It is also compatible with the overall established land use patterns and the redevelopment is consistent with both the adopted as well as the recently revised draft Local Comprehensive Plan.


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b. The proposed redevelopment and off-site mitigation that we will impose as part of will reduce demand for public water and reduce wastewater flows to the Town’s Wastewater Treatment Plant. The two restaurants, with a possible total of 566 seats, represent a wastewater flow of 19,810 gallons per day. A 23,500 sq.ft. store represents a wastewater flow of only 1,175 gallons per day. A reduction of 18,635 gallons per day. Reduced flows to the public treatment plant are in the interest of the Town as it helps to address the need to extend sewers to other areas of critical concern for nitrogen loading from private on-site septic systems.

c. The redevelopment of the two lots as one, eliminates one of the existing curb-cuts on Route 132. The proposed new site entrance has been designed as an elongated right-in and right-out only driveway to provide safe egress and ingress to the property. In addition, the off-site mitigation property will also reduce curb-cuts on Route 132 and Route 28. Reduction and elimination of curb-cuts will improve traffic flow and safety.

11. The redevelopment of the Property and acquisition of the Off-site Mitigation Property has been conservatively estimated to reduce traffic flows by an estimated 514 weekday trips and 642 Saturday trips. Peak hour traffic is also projected to be reduced. The reduction is in the public interest and will enhance safety and comfort of the motoring public.

12. These factors support this Board’s contention that the proposal before us as well as information provided by the Town, Growth Management Department and others fulfills the spirit and the intent of the zoning ordinance but does not represent a substantial detriment to the public good or the neighborhood impacted provided that the conditions we are about to impose are observed. above are evidence that to grant the relief being requested, fulfills the spirit and intent of the Zoning Ordinance as overall the redevelopment will improve the quality of stormwater infiltration to groundwater, and reduce water consumption and wastewater. The granting of this permit would not represent a detriment to the public good of the commercial neighborhood in which it is located.


Vote: AYE: John Norman, Ron Jansson, James Hatfield, Jerry Gilmore, Gail Nightingale NAY: None Ron Jansson makes a motion based on the positive findings he moves that this Board grant the petitioner relief being sought in appeal 2008-011 subject to the same conditions that we have imposed in the granting of the variance. With reference to Condition #2:

2. The redevelopment shall be limited to a one-story, 23,500 sq.ft., single-tenant building for the retail sales of electronics. The site shall be developed as per the engineered site plan submitted entitled; "Berkshire Development Iyannough Road, Barnstable, Massachusetts – Site Alternative” or in the alternative as prepared by VHB Vanasse Hangen Brustlin, Inc., dated February 23, 2007, and last revised February 1, 2008, showing a 45 foot setback from Route 132 . This plan is to be initialed by the Chairperson to avoid any confusion to


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what is granted. The exterior of the building shall be developed as shown on the elevations submitted entitled; "Berkshire Development Hyannis, MA'" as drawn by Casco Project Managers. This shall include the exterior coloration of the building (Sheets C1 through C8, SL1 and SV1).

There is a discussion and it is agreed to include either plans. Ron Jansson asks Art Traczyk to come with the language indicating such.

Ron Jansson indicates that 3, 4, 5, 6 as amended, 7, as amended in the variance findings to be incorporated herein.


Vote: AYE: John Norman, Ron Jansson, James Hatfield, Jerry Gilmore, Gail Nightingale NAY: None

2008-011 Granted with Conditions

In 2008-012, Ron Jansson indicates that he would like to basically like to make the same findings of fact.

Gail Nightingale asks if there is anyway some of the paved parking areas could be made into paver parking areas so that we are bringing the percentage of impervious coverage down even more. Attorney Ford indicates that they try to keep them out of the areas of the trucks.

There is a motion on the floor to make the same findings that they have made in reference to appeal 2008-011 unless there are any additional findings.

Attorney Ford indicates there are.

In addition to the findings that we have made in reference to appeal 2008-011 we shall incorporate in this decision and make as part thereof make the following findings:

Appeal 2008-012 is before the Zoning Board for a special permit pursuant to Section 240-93 Nonconforming Buildings or Structures Not Used as Single- or Two-family Dwellings. The applicant seeks to redevelop the site with an impervious surfacing of 59.9%. Not in conformity to Groundwater and Wellhead Protection Overlay District regulations that limit lot coverage impervious surfacing to no more that 50%. The existing site is nonconforming in that 61.7% is now surfaced by buildings, pavement and gravel parking. In addition to the 50%, in order to reach that figure the applicant must show that all drainage is contained on site. The existing site does not have all drainage contained on-site and is even more nonconforming as a result. Section 240-93.B allows for alterations or expansions of a pre-existing nonconformity on the site as that term structure is defined in our zoning ordinance, only by a special permit from the Zoning Board of Appeals.


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The existing site developments on the subject property dates to 1973 for the office use on 640 Iyannough Road, and to 1963 for the restaurant use on 624 Iyannough Road. The Groundwater and Wellhead Protection Overlay District regulations that limits lot coverage to 50% by impervious surfaces was adopted in 1987. The lots as now developed predate the adoption of Groundwater and Wellhead Protection, and therefore the existing 61.7% lot coverage by parking lots surfaces, buildings and walks is a pre-existing legally-created structural nonconformity. The applicant proposes to redevelopment the site with coverage by impervious surfacing of 59.9%. Although less than that which now exists, it still does not meet today’s maximum lot coverage by impervious surfacing of 50% Therefore, the Applicant has requested this special permit for proposed alterations to the site in a manner that does not conform

To grant the Special Permit to allow that alteration requires findings that support “that the proposed repairs, alterations and/or expansion are not substantially more detrimental to the surrounding neighborhood.”

a. Most of the businesses abutting Route 132 in this area predate the adoption of Groundwater and Wellhead Protection and many of the commercial sites do not conform to the 50% impervious lot coverage now required. As most lots are nonconforming and as this redevelopment will overall improve the situation since all run-off is being contained and recharged on-site, the granting of this permit should not represent a substantial detriment to the neighborhood.

b. The redevelopment of the property is striving to properly delineate on-site parking and circulation as well as provide proper pavement, drainage and landscaping. This is an upgrade over that which now exists and as the overall commitment of lot coverage by development is being reduced from 61.7% to 59.9%, this is a benefit to protecting the groundwater resources that the ordinance strives to protect. The parking improvements are those that the public have come to expect and meet the requirements of site plan review. From that perspective, it is an improvement for the users of the area and not a detriment.

c. The applicant has incorporated a state-of-the-art “best practice” on-site drainage for dealing with surface run-off. The technique being employed diverts run-off into vegetated areas noted on the plan as bio-retention basins. The water will flow over vegetated areas and, to a degree, linger in those areas thereby allowing for a first flush to remove 90% of particulate matter and allow for natural infiltration. The bio-retention basins are vegetated so that plant material will absorb nitrogen and other nutrients rather than leaching them directly to groundwater. At a high storm event, run-off eventually flows into the catch basins and the basins function as needed to assure proper drainage that meets today’s standards.

d. The applicant has gone one step further to improve the overall situation in this recharge area to the public wells through their 50% share in the acquisition of the Off-Site Mitigation Property. The Off-Site Mitigation Property is initially to be restored as landscaped areas. The lots total 0.95 acres and will result in all of the property being rendered pervious, except as may be needed for public amenities and in the future for roadway improvements. This is an added benefit that will improve groundwater recharge to the public supply wells.

e. The proposed redevelopment and off-site mitigation reduces demand for public water and reduces wastewater flows to the Town’s Wastewater Treatment Plant by


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18,635 gallons per day. Reduced flows to the public treatment plant are in the interests of the Town.



Ron Jansson makes a motion based on the positive findings, to grant the relief being sought subject to all of the terms and conditions that we have enumerated in the granting of variance 2008-010 and the special permit 2008-011.

Jerry Gilmore seconds


Appeal 2008-012 Granted with Conditions

Motion to adjourn Meeting adjourned at 9:28


Minutes March 12, 2008

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday, March 12, 2008 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Arthur Traczyk - Principal Planner, and Carol Puckett – Administrative Assistant. Gail Nightingale Present Ron Jansson Absent Daniel Creedon III Present for Richardson appeal James Hatfield Present Sheila Geiler Present John Norman Present Jeremy Gilmore Absent Kelly Lydon Present

Gail Nightingale reads a summary of the appeals into the record. She informs that if anyone is here for the Sprinkle appeal, it is going to be withdrawn without prejudice. She then calls the Souto appeal.

Appeal 2008-019 - New Souto

Variance to Family Apartments

Gilber Souto has applied for a variance to Section 240-47.1.A, Family Apartments. The applicant seeks the variance to the provision of a family apartment to allow the apartment to exceed the 800 sq.ft. maximum permitted under zoning. The property is addressed as 196 Craigville Beach Road, Hyannis, MA, as shown on Assessor’s Map 267 as parcel 143. It is in a Residence B Zoning District.

Members assigned: John Norman, James Hatfield, Kelly Lydon, Sheila Geiler, Gail Nightingale

Gilber Souto is representing himself and his father who is also on the deed to the property. He indicates that his father purchased the house about 5 years ago for the whole family to live in the house. He indicates that because of five cars on the property, the town made an inspection of his property and indicated to him that people couldn’t live in the basement. He indicates that 3 cousins will live in the basement and that there will be 3 persons living in the main house. Gail Nightingale explains that only 2 people can live in a family apartment.


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Gilber Souto explains that his father, brother, mom and cousin live on the first floor. Gail asks if he has any plans showing the layout. Mr. Souto then approaches the Board and points out the layout to the Board. Gail indicates that she was looking for scaled plans which he does not have. Mr. Souto explains that Paul Roma had looked at the house on the previous day and took measurements. Gail indicates that she has a notice from Paul Roman indicating that he determined the unit to be 829 square feet. She indicates that the upper floor is 1148 square feet. He explains that the first floor is the same as the basement but the rooms upstairs are larger.

James Hatfield asks how many total cars will be at this house. Mr. Souto indicates 6 cars and explains how the cars are parked. Jim asks if the apartment existed when he bought the house and is told yes by Mr. Souto.

Kelly Lydon asks how many people, total, would be living there and Mr. Souto indicates 6. Kelly asks if the septic is up to grade and is told yes.

Gail Nightingale asks Building Commissioner, Tom Perry, for comments regarding this and indicates that the plans show the same amount of square footage on the first and second floors and this memo today from Robin Giangregorio indicates that this unit is 829 square feet and asks Tom Perry if he knows why there is a difference in the square footage. Tom Perry explains that maybe part of it is a furnace room. Gail indicates that the plan she has shows a mechanical room consisting of 54 square feet. Tom Perry indicates that he is not sure of the difference. Gail thinks that maybe the upstairs is bumped out some. Gail clarifies with Tom Perry that the applicant could be granted an 800 square foot family apartment by right; however, because this is larger than 800 square feet, relief is requested. Gail reads the letter indicating there are things to be done. Tom Perry explains that they need to get a permit for the paper trail and that concerns in the letter from Paul Roma would need to be done. Gail indicates that they could grant it if it is only 829 square feet, if only two people are living there. Also, she indicates that if the apartment is larger than what the Board grants this will be null and void and that they would have to come back to the Zoning Board for further relief.

Gail Nightingale asks if there is anyone here either in favor or in opposition. No one speaks.

Gail Nightingale explains that only 2 people can live in the apartment and they have to sign an affidavit certifying who is staying there, that it is their year round residence, that it is his residence and must be living live there also. Gail indicates that he must comply. Mr. Souto indicates that Paul Roma measured the apartment the day before the hearing. Gail then explains that he has to get a building permit even though he is not building anything, certify who is going to live there, only 2 people, and if there is a problem in the future with too many vehicles there that would be a sign that thee are too many people living there. Mr. Souto explains that his mom, father, cousin, brother, other cousin and his wife which is 6 people. The Board discusses with Mr. Souto that they are concerned about the amount of cars parked there. Mr. Souto explains that he has lived there for 6 years and has never had a problem before. James Hatfield asks if, during those 6 years, there were only 5 cars and is told yes by Mr. Souto.

James Hatfield does findings:

Appeal 2008-019, the petitioner is Gilber Souto, the property address is 196 Craigville Beach Road in Hyannis, Assessor’s Map 267, Parcel 143. It is in a Residence B Zoning District.


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The applicant has applied for a variance to Section 240-47.1.A, Family Apartments. The applicant seeks the variance to the provision of a family apartment to allow the apartment to exceed the 800 sq.ft. maximum permitted under zoning.

According to the Assessor’s record, the subject property is a 0.23-acre lot developed with a one story, 1,288 sq.ft. living area, six-bedroom, single-family dwelling. The property was last transferred in July of 2002 and is titled to Raul G.L. Souto and Gilber J. Souto. According to the application submitted, the petitioner states that the apartment unit existed in the lower level of the home when they purchased the property.

The drawings show 3 bedrooms on the first floor and 2 bedrooms on the lower level.

• This appeal is before us tonight as because in May of 2007, the Health Division issued a violation to the property requiring it to be upgraded to Title V.

• In August of 2007, the Building Division inspected the property as a result of a complaint that there was overcrowding. Apparently, it was during this inspection that the family apartment in the lower level was observed.

• In December of 2008, a new on-site septic system was installed. That system’s design capacity is that of a 5 bedroom dwelling. The property is in a Wellhead Protection Overlay District and the septic system was installed as an upgrade to the existing. That allowed for the grandfathering of the number of bedrooms. The new system also was granted dimensional variances from the Board of Health regulations.

Because the apartment existed in the house when the applicant purchased the house and they haven’t made any changes to the apartment that it would constitute one of the conditions for the variance.

A literal enforcement of the provisions of the zoning ordinance would involve substantial hardship, financial or otherwise to the applicants.

Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the zoning ordinance.

Kelly Lydon seconds.

No discussion on the findings.

Vote: AYE: Sheila Geiler, John Norman, James Hatfield, Kelly Lydon, Gail Nightingale NAY: None

James Hatfield makes a motion based on the positive findings to grant the relief requested subject to the following conditions:

1. No more than 6 cars parked on the lot at any one time. 2. Only 2 residents reside in the basement apartment 3. Some minor improvements maybe made inside including but not necessarily limited to

installing all switch cover plates, handrail for interior stairway and a C02 detector


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4. The proper egress windows be installed in accordance with the building code 5. A building permit should be applied for before any work begins 6. If granted, a clause allowing the Building Commissioner access if any violations are

found a hearing will be held before the Zoning Board of Appeals

Art Traczyk suggests capping the number of bedrooms and at 829 square feet apartment unit and cap the bedrooms and occupancy on the main floor to 3 bedrooms. He would cap the number of people also.

7. The maximum number of bedrooms be 5 five bedrooms in the whole house and the maximum number in the house at any given time be 6.

Board discusses. Sheila Geiler indicates that the language in #7 “at any given time” should be qualified to “inhabitants of the house who make it their legal address with automobiles registered to them, not to exceed 6, 6 people, 6 vehicles maximum”.

Tom Perry suggests a condition similar to limiting no more than 6 cars between certain hours and if they have overnight guests they will have to get rid of the excess cars. Sheila Geiler comments that this might be hard to enforce. Tom indicates that they have full cooperation from the police department and if there are complaints they will check it out.

James Hatfield comments that just to qualify what Sheila Geiler had said that 6 people residing in the house at any given time, obviously he can have guests over.

Gail indicates we have added that condition and asks for a second on that.

Kelly Lydon seconds.

Art Traczyk indicates that this can be granted under a special permit instead of a variance and asks if the Board is going to the special permit.

Gail Nightingale indicates that this will be a special permit.

Vote: AYE: Sheila Geiler, John Norman, James Hatfield, Kelly Lydon, Gail Nightingale NAY: None


Gail Nightingale then calls the McKeone appeal and indicates that it has already been read into the record. Appeal 2008-009 - Continued McKeone


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Home Occupation Special Permit Opened February 27, 2008, Continued to March 12, 2008

No Members Assigned - No Testimony taken Keith W. and Candace A. McKeone have petitioned for a Special Permit for a home occupation pursuant to Section 240-46.C. The petitioner is seeking a special permit to park one work truck relating to a landscaping business at his home. The property is located at 936 Wakeby Road, Marstons Mills, MA, as shown on Assessor’s Map 012 as Parcel 006. It is in the Residence F Zoning, Resource Protection Overlay, and

Members assigned: John Norman, James Hatfield, Kelly Lydon, Sheila Geiler, Gail Nightingale

Keith W. and Candace A. McKeone are representing themselves. They explain they are applying for home occupation special permit for their landscaping business. Mr. McKeon indicates that approximately 18 months ago this issue was brought to the town’s attention and they have been trying to get things cleared up to run under the rules and regulations of that special permit. He indicates that they have a small business and are looking to run it out of their house.

Gail Nightingale asks him how he thinks he complies with the home occupation as there are several paragraphs that they don’t comply with. Mr. McKeone indicates they have one employee who meets them at their house, they have 3 drivers, his daughter has a car, his wife has a truck, he has a truck, and they have a work truck as well as the one single axle trailer and some small landscaping equipment that they use. Gail explains that under a home occupation you are not allowed to have any exterior storage or display of equipment or materials and he does appear to have that. Mr. McKeone indicates that as far as the exterior, they were under the impression that by putting up a fence and doing some screening it would keep it out of everyone’s eye. Gail explains that the idea behind a home occupation idea is that of someone having 400 square feet of space inside their house that doesn’t show what the use is and is not visible from the outside and is more or less just for an office. She indicates that most of his equipment obviously has to be outside. She indicates that she has a problem with granting a home occupation with this type of use. Gail asks the Board if they have any questions.

James Hatfield comments that he realizes there is a need for this type of thing but because of the equipment being stored outside it is sightly and not fair to the neighbors. He reads from a list of the vehicles that are there: a Ford pickup, dump trucks, 2 drop till, gated landscape trailers with mowers and trimmers. Mr. McKeone indicates there is only one trailer and that there are 3 drivers in the house and then the work truck. Jim indicates that he knows his business requires this equipment but thinks it more appropriate to rent storage space. Mr. McKeon indicates that there isn’t enough income in the business to move into any other space. Mr. McKeon asks if it just the equipment.

Gail Nightingale reads the requirements in the ordinance for a home occupation. Gail indicates that this type of business is not something this is carried on within a building and is what she has a problem with. Mr. McKeon indicates he has letters supporting him and Gail asks him to submit them as we do not have copies of them.


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Candace McKeon indicates that she has held off getting a 10 X 15 foot which she indicates isn’t very big. She indicates that she has a desk in the house and the only thing they would be using is the shed. She indicates that she held off obtaining a shed because they wanted to go through this process before putting one on the property. She indicates that once they have the shed that a lot of these issues would not be shown as they appear to be in the pictures which Robin Giangregorio had taken. She indicates that they don’t store any kind of materials except for a little amount of fertilizer and that they return all their product to Stone Wood in Mashpee and they don’t plan on storing anything in the long term. She indicates that they haven’t added any gravel or taken down trees as they wanted to get this permitting process done.

Gail Nightingale explains that the home occupation has to be in the house and cannot be separate from the house.

Mr. McKeone explains that they are not in an association that would complain and only had complaints shortly after they moved in. He indicates that once he knew it was a problem, they scaled back and doesn’t think it’s a detriment to the neighborhood.

James Hatfield indicates that there is an anonymous letter in opposition that was sent to the Zoning Board.

Gail Nightingale asks Building Commissioner – Tom Perry for comments. Tom Perry indicates that it started shortly after they moved in and he has had a number of complaints and are still getting a number of complaints regarding the business operating out of the house. He indicates that this has been going on approximately 2 years. Tom indicates that Mr. McKeon he has a large pickup truck, 2 dump trucks and that they have seen an office trailer which they haven’t seen in quite awhile and assume it’s gone but could be in the back yard. There has been 2 trailers, there is a fertilizer drum, fork lifts for a bobcat, a bunch of miscellaneous bricks, blocks and stone on the property and isn’t a customary home occupation and that is why they are here. He indicates that there has been employees in the past and at least 2 in the summertime because there were 2 cars being parked on the dirt road beside their property but don’t know how many employees. He indicates that this is not the intent of a home occupation and is more than a home occupation. He indicates that during the day he saw two dump trucks, the pickup truck, at least one trailer and all the miscellaneous equipment in the yard and that they have made no attempt to cooperate.

Gail Nightingale asks if there is anyone here either in favor or in opposition. Gail indicates that there is a letter from David Ellis of 3 Santuit Pond Road and Randall Aronson of 6 Santuit Pond Road of Mashpee in support. She also notes the anonymous letter in opposition is in the file.

Mr. McKeone indicates that when he first moved in there were friends helping out with a project and parked in an ill advised area and haven’t since. He indicates that there is no other trailer than the single axle trailer there now. He has never owned another trailer or used another trailer. Any materials left on site are for his own personal use. He indicates that moving his small business out would be a detriment to his family.

Gail Nightingale feels that this does not come under the categories for home occupation, does not know how the other Board members feels, but she doesn’t feel we can give him a permit because he doesn’t comply with the ordinance and is asking the Board to give him something that is not in accordance with that.


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Mr. McKeone asks if the ordinance allows for a trailer, in what instance can one have a trailer.

Gail Nightingale asks if there is a bobcat there. Mr. McKeone explains that it is small machine and is not a conventional bobcat as it is 32 inches wide as well as 32 inches off the ground. Gail indicates that her feeling is that he should be asking for a use variance.

Sheila Geiler indicates that she agrees with Gail Nightingale as this is not a home occupation and explains it should be within the home. Mr. McKeone asks what business would come under those criteria which would use a one ton truck and a trailer. Sheila indicates that they are considering his business as it is being conducted and that the criteria for a home occupation and could not support this as filed.

James Hatfield comments that they can only go by what is there now and the intensity of what is there now he doesn’t feel follows the requirements for the Board to grant this.

Kelly Lydon asks if they could withdraw without prejudice and reapply for a variance.

Gail Nightingale indicates he can, but doesn’t know if he has variance conditions.

Tom Perry indicates that this has been going on for a long time and now needs enforcement action.

Sheila Geiler comments on #4 of the requirements and indicates that there is to be no outside evidence of the use but in this case, evidence is outside.

Mr. McKeone asks that if you are allowed to have a one ton truck and a tandem axle trailer but you are not allowed to have a business that utilizes those? John Norman explains that carpenters have all of their tools in a tow behind trailer, they park it in the yard and go to work the next day, the wife might do the accounting within the dwelling but you can’t tell that is the business they are running. He indicates that on March 25th he did go by the property and there were various pallets of materials, landscape equipment, a plow, irrigation or plastic tank unit and people can tell there is a business. He explains that there is a reasonable expectation that if they are buying a home within a residentially zoned that they are not next to someone who is running a business out of their house. He explains that if they build a garage they would have to maintain it within and doesn’t mean fencing and screening. Tom Perry comments that even if a garage is built, it doesn’t mean that someone can have more than one vehicle and one trailer. He indicates that they currently have 3 vehicles and at least one trailer and have seen 2 trailers on site. James Hatfield explains that the scope of what is going on is beyond a home occupation and that there are a number of people complaining. Gail Nightingale then reads part of the home occupation definition and indicates that the Board cannot grant as they don’t comply with that ordinance. Gail Nightingale asks the Board if they are ready to vote.


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James Hatfield starts to make findings. Mr. McKeon asks if they could possibly ask for a continuance to clean it up and make it into what would fall under this. Gail explains that there is no way that his type of business could fall under a home occupation use and asks Tom Perry his opinion. Tom Perry indicates that they have always interpreted that the home occupation definition was geared towards the landscapers as it allows one truck vehicle and a trailer but usually the materials are stored in a garage to keep it from the weather, but has been somewhat fuzzy. He indicates that they have never gone for enforcement on a landscaping type business but the business, per say, is the desk. However, all they should see at the house is the one truck and the one trailer and that there shouldn’t be grass clippings, extra materials, multiple vehicles, etc., but indicates that isn’t what they have here. Tom Perry indicates that they have made no effort to clean it up and have had that discussion with them. Gail Nightingale indicates it is before the Board as is and that they cannot continue it. Mrs. McKeon indicates that the only request was to move a truck and they were not asked to do any clean up. Tom Perry indicates that it has been clear what direction they were given. Mrs. McKeon indicates that she was only asked to apply for a permit. She indicates that this would be a hardship for her family and this business fully supports this family and asks for a continuance to show them what they can do with the lot. Gail asks Tom Perry if they could continue this for a month to clean it up and get the equipment out of there. Tom Perry asks what they will do with the extra trucks. Gail indicates they would have to find someplace to park them. Mr. McKeone asks what constitutes the extra truck. Tom Perry indicates that he has 3 vehicles and is only allowed one. Candace indicates that the truck she drives she only drives her children around in and asks for one more opportunity. James Hatfield feels that he is not opposed to giving them some time. Sheila Geiler suggests they withdraw under this use and work with the Building Commissioner to come to terms of agreement but that the Board cannot grant the home occupation. Mr. McKeon indicates that they cannot afford to move out and get a shop and that the business does not have the volume to support that. Gail Nightingale asks where they will put the equipment that is in the side yard. Mr. McKeon indicates in an enclosed trailer that was described or a personal shed. James Hatfield indicates that it doesn’t fall within the criteria because of the intensity of the use. Tom Perry then asks John Norman what the capacity of a 3 yard dump truck is. John indicates that the picture he has shows a dual axle 3 yard dump truck. Tom Perry indicates that there are 2 of them on the site and that they are over one ton capacity. John indicates that the one ton is the F350 and that the other one is a 3 ton. Mr. McKeon indicates that they are both F350’s and one F250. John indicates that it is the size, but there is a spring capacity. Gail Nightingale indicates that she just doesn’t feel they can grant this tonight and that they have to change the use of the property and if 6 months from now they have cleaned it up and if Tom Perry feels they comply by having one truck there, they can come back and reapply if they bring it into compliance. Tom Perry indicates that is correct but his fear is that if this gets granted there will be enforcement problems. Mr. McKeon asks again if they can continue this for one month. Gail indicates that they cannot and has no option to turn it down under the current conditions but if they go back and change the way the property is used, bring it into compliance with one truck, they could come back and apply for the home occupation. Mr. McKeon indicates that currently his wife is being prosecuted by the Town and has a criminal act against her from the Building Department. Tom Perry indicates that they are tickets. Gail


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Nightingale indicates that this Board has no control over that. Tom Perry indicates that the reason they have the tickets is that they continually don’t comply. Mr. McKeone asks again to continue this. Gail indicates that the Board cannot. James Hatfield does findings. This is appeal 2008-009. The applicants are Keith W. and Candace A. McKeon. The property address is 936 Wakeby Road in Marstons Mills, Assessor’s Map 012, parcel 006. It is in the Residential F. District. They have petitioner for a special permit for a home occupation under section 240-46C. They are seeking a special permit to park one work truck relating to a landscaping business at their home. The property is a one acre lot located at the Barnstable/Mashpee town line on Wakeby Road. It is developed with a 3 bedroom, 1224 square foot single-family dwelling. The petitioners purchased the property in May of 2006. Currently the petitioners are operating a landscaping business from the property. A number of complaints have been made to the Building Division regarding vehicle parking and on-site storage of materials. According to information submitted there is currently a work truck, a Ford F150, a single axle trailer, a bobcat MT-52, residence truck F250 and a passenger car all parked at the property The applicants do not meet the criteria for the granting of a special permit. The intensity and scope of the business that they are currently running from the home would in no way allow for the granting of a special permit. Kelly Lydon seconds. Gail Nightingale wants to add

o that they don’t comply with section 240-46C Home Occupation requirements especially as it is not limited to (their activity) to a type customarily carried on within a dwelling and is required to be located within the dwelling unit.

o That the activity is supposed to remain incidental to and subordinate to the use of the premises for residential purposes and doesn’t feel it complies with that.

o There is no exterior storage or display of materials or equipment. o Also, requires external alterations are residential in character and that there be no

outside evidence of the use and doesn’t feel it can comply with any of those. James Hatfield accepts. Sheila Geiler seconds No discussion on the findings. Vote: AYE: Sheila Geiler, John Norman, Kelly Lydon, James Hatfield, Gail Nightingale NAY: None James Hatfield makes a motion to grant the special permit under section 240-46C Home occupation to permit a work truck relating to a landscaping business to their home. Kelly seconds. No discussion


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Vote: AYE: None NAY: Kelly, James, Sheila, John, Gail DOES NOT CARRY Gail Nightingale then calls the Richardson appeal. She reads the appeal into the record. Appeal 2008-020 - New Richardson

Appeal of the Building Commissioner Michael Richardson of 99 Mountain Ash Road, Marstons Mills, MA has appealed the January 18, 2008, determination of the Building Commissioner that the Building Division has no jurisdiction with regards to wood and canoe racks located on abutting property. The appellant had requested enforcement action to compel those structures to be relocated to conform to the required 15-foot side yard setbacks. The abutting lot is owned by Thomas J. and Karen Prichard, addressed as 111 Mountain Ash Road, Marstons Mills. The parcel is shown on Assessor’s Map 124 as parcel 030 and is in a Residence F Zoning District. Members assigned: John Norman, James Hatfield, Kelly Lydon, Dan Creedon, Gail Nightingale Michael Richardson speaks and wants to note that he is not here for wood piles and canoe racks as was advertised in the newspaper. In his opinion he doesn’t know if that is prejudicing what he is here for. Gail Nightingale indicates that the Board is here to either agree or disagree with the Building Commissioner’s decision. Gail reads Mr. Richardson’s application. The Building Commissioner, Tom Perry, reads the letter which was attached with the application and the application. Tom Perry indicates that his letter addressed all three issues, the wood piles, the storage racks, and the poles with the tarps. Tom Perry indicates there were letters from September, October of 2007 and one of January, 2008. He indicates that he was responding to the January, 2008 letter. Tom Perry comments that if he just wants to talk about the spite fence that this might have to be re-advertised. Gail Nightingale then reads the letter from Mr. Perry dated January 18, 2008 and January 30, 2008 to Mr. Richardson. Gail then asks Mr. Richardson which letter he is appealing. Mr. Richardson wants to read the letter that he wrote to Mr. Perry asking for enforcement action on issues he had an issue with that he responded with the first letter from him that she just read. He personally feels that to write him a letter from the Building Commissioner written the way it was written and not within what he is bringing to issue is irresponsible and it prejudices him and wants the Board for understand why he is here. He has a presentation the Board will not hear the word wood pile and this has been going on for the past 1.5 years. He has correspondence and written complaints and has never said anything about wood piles. Dan Creedon indicates that the Board understands why he is here and thinks this might be a misinterpretation. Dan Creedon comments that he thinks this is advertised correctly and asks the Board their opinion. Gail Nightingale concurs with Dan Creedon that this is here correctly.


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Mr. Richardson indicates that approximately 1.5 years ago his abutter to the east of his property built a storage racks that he wasn’t sure what they were going to be at first but ended up being used for storing wood and these bins were about 8 feet high, 8 feet long and approximately 2 feet in depth made of 4 X 4 pressure treated lumber, had a floor and roofs on them. It started out with one, and then he added another one and then a third. There are 3 that stretch almost 24 feet long which at that time 1.5 years ago when he pointed it out to the Building Commissioner were 8 feet height. The Building Commissioner told him that if he took the roof off it would be okay. He took off the roof and shrouded the whole thing in canvas. He believes everything he is talking about are structures are they are of considerable construction. About a year ago he noticed that the abutter was putting up poles that were about 14 or 18 feet high and wasn’t sure what they were. He came home one day and he has an 8 foot privacy fence that abuts between the properties which is permitted, all he saw was rows of little boats, different colored fluorescent kayaks that looked like they were sitting on top of his fence. He noticed that what he had done was built storage racks. He has elongated members about 6 to 7 feet long bolted to these poles which now he uses to store small dingys, sailboats and all types of stuff. He complained again to the Building Commissioner about the storage racks and again was told they were simply poles and that there was nothing he could do about them. He then assumed he could do the same and was told yes. The only thing he could think of was to put lattice panels hooked them to the poles with quick release hooks to block out the view of his storage racks. Approximately last September, his abutter started with the wood structures and now he added to them and put poles on them or supports, another 4 to 6 feet above the original 8 foot height of the wood bins and shrouded it with canvas so now the wood bins are approximately 14 feet high with multi-colored canvassing. He then added more structure to that and made it approximately 18 feet high and connected all the boat racks together and hung canvas or tarps 18 feet in the air. He indicates it started out as one thing and is now something quite different. He keeps hearing the word spite fences and that comes from the Building Commissioner who sent him the literature on it. Based on what the law says, it is a spite fence. He doesn’t disagree that this is a private nuisance but the height makes them illegal because he doesn’t have a permit for them. He indicates that all these structures are within a foot of the setbacks. He also believes it is an eyesore and a safety issue. Gail Nightingale indicates they have the letter from Mr. Perry which she reads the part regarding the spite fence and that the comment that this is a private nuisance which the Building Department cannot get involved in and that he should go under Chapter 49 SS1. Mr. Richardson indicates that if the spite fence issue was the only thing he would agree but these aren’t free standing spite fences on themselves but are structures and should be taken out of the setbacks. He reads the letter that he wrote to Tom Perry dated January 4, 2008 and the original letter he wrote was in October 22, 2007 letter was about the racks themselves before the spite fence attachments were added. The November 12, 2007 letter covered the racks and the spite fences. He made a written complaint in regards to both of them together. The January 4th letter he wrote on the direction of Mr. Traczyk and it is addressed to Mr. Perry. He reads the January 4th letter. He indicates Mr. Perry’s response is the January 8th letter. Gail asks if he is here regarding the January 18th letter which Mr. Richardson answers yes. Mr. Richardson then explains the pictures he had submitted and explains them. Dan Creedon asks Mr. Richardson his opinion as to why the abutter, Mr. Pritchard, has so many boats. Mr. Richardson indicates that he does not know.


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Kelly Lydon asks if the spite fence encroaches on his property and is told no. James Hatfield asks for clarification from Mr. Richardson if he thinks that these are structures whereas the Building Commissioner feels otherwise. Gail Nightingale asks Mr. Perry for any further info. Mr. Perry indicates that in his opinion these are not structures and in light of the Leventhal case, those were determined not to need to meet setbacks. Gail Nightingale clarifies that the reason he is here is just for the structure. James Hatfield asks Mr. Perry about his opinion about structures and the Leventhal case. Mr. Perry indicates that was a series of racks and landscaping and that this went all the way to Superior Court and the court agreed that those structures did not constitute structures and did not have to meet setbacks. Dan Creedon and Tom Perry discuss the Leventhal case and explains that if something does not have a roof, it is not a structure. Tom also indicates that this is not the only complaint that he has had between these two people. Dan Creedon reads the definition in our bylaw of structures: “any production or piece of work artificially built up or composed of parts and joined together in some definite manner not including poles, fences and such minor incidental improvement”. Dan comments that he would draw a distinction to the Leventhal case and doesn’t think this is minor or incidental as it stretches 40 feet of land and in his estimation reaches up approximately 20 feet high and is located on the property line. Tom Perry indicates that 20 feet is the fence and that the 4X4 posts have plastic on them. Mr. Richardson indicates it is more than 40 feet long and is approximately 70 to 80 feet long when you encompass everything. Dan comments that he believes the ordinance was designed to protect people from things like this. Dan Creedon asks Tom Perry if he believes, under our definition, if this is considered a structure based on the Leventhal case. Tom Perry indicates no. Kelly Lydon asks if all this wood would be a health issue. Tom Perry indicates that it would have to be addressed by the Board of Health. Gail Nightingale asks if there is anyone here in favor or in opposition. Jeff Vincent, neighbor on the left, indicates that the tarps are yellow, red, brown and takes away from the neighborhood and is an eye sore. The abutter, Mr. Thomas Prichard, hands out pictures to the Board and sets up a large board with pictures. He indicates that in June of 2001, the building inspector determined that not only was Mr. Richardson’s shed in violation of zoning; his deck; his fence and pool were also. He had installed a pool heater and propane storage tanks on the neighbor’s property without any permits. He then requested a variance from ZBA and was denied and was ordered to take it all down and he believes that he holds Mr. Prichard responsible. He indicates that since then he has mounted a relentless campaign against him and his family.


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Dan Creedon indicates that if all this is assumed true and they credit that testimony as true, how does Mr. Richardson’s campaign result in bizarre things that he, himself, has erected on his property. Mr. Pritchard indicates that they are not on his property but are on Mr. Pritchard’s property. He indicates that Mr. Richardson has filed dozens of complaints with the Town. In those complaints, he has made numerous false claims that are verifiable and has failed to comply with himself. He indicates that 3 years ago he built bins for wood to keep them neat and dry. Some questions were raised because of the roofs and it being a structure. It was decided if he took the roofs off the bins it wouldn’t be a structure and could stay 10 feet away from the lot line. He indicates that the bins were modified and approved by the building and that Mr. Richardson objected. He indicates that before building the racks he met with the building division with proposed plans to insure compliance. Shortly after the first post was put in the ground, Mr. Richardson lodged complaints at Town Hall. Mr. Richardson then started building a 12 foot high spite fence with panels with red and orange reflectors facing his property. Dan Creedon clarifies that Mr. Richardson’s fence is approximately 12 to 15 feet in height and that his fence is approximately 30 feet? Mr. Pritchard indicates he is coming to that. He then indicates that Mr. Richardson installed the fence with panels and reflectors, moved his shed and put a second story on it without a permit and then added a perch. Mr. Prichard then indicates that is when the tarps went up and indicates when he gets the time and permits he plans to build a more permanent fence. He indicates that he put the tarps and approximately 30 trees to block out his neighbor. Dan Creedon asks Mr. Prichard to clarify a picture showing the fences. Dan asks Mr. Prichard to clarify that the tarps were put up after Mr. Richardson attached the lattice to his fence and Mr. Prichard answers yes. Dan then asks if what Mr. Prichard is objecting is the lattice with reflectors and comments that what he sees going on in Mr. Prichard’s yard is more objectionable than what is going on in Mr. Richardson’s yard in terms of the overall appearance of it all. Dan Creedon asks Tom Perry what the rule is on fences. Mr. Perry indicates that if less than 6 feet, no permit is needed. However, he indicates that spite fences are out of the town’s jurisdiction and that the legal department suggested it is a spite fence. John Norman believes that the question is if racks are considered structures and feels that the Building Commissioner has ruled correctly. James Hatfield asks Tom. Perry about what the legal department had said about spite fences. Mr. Perry indicates that he has asked other Building Commissioner’s and it is considered spite fences and is a private matter. Tom Perry indicates that he consulted with the legal department and they considered it a spite fence also. Dan Creedon asks Tom Perry if structure or buildings have to comply with setbacks. Dan Creedon believes it is just buildings have to comply with setbacks. John Norman then reads the Town’s definition of setbacks and that it indicates “building or structure”. Gail Nightingale thinks that the Board just needs to either agree or disagree with definition of structure. Dan Creedon comments that he thinks that the Board has to decide that whatever these things are, whether they have to comply with setbacks or whether Mr. Perry made the right decision determining that there was no jurisdiction here because they need not meet setback.


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The board again discusses the Leventhal case. Dan Creedon comments that the Town makes a shed comply with setbacks as they are considered accessory buildings but these structures do not have a roof but doesn’t think our ordinance says that structures have to meet setback. The Board discusses and thinks that this is a civil case. Gail Nightingale then asks if Mr. Richardson would like to rebut. Mr. Richardson asks for clarification in regards to the law they are pertaining to regarding buildings, and asks if it says only buildings or simply buildings? Dan Creedon comments that the ordinance, by leaving out the word structure, infers just buildings. Dan has Art Traczyk read the ordinance from Section 240-7: “Conformance to Bulk and Yard regulation - No building shall be erected or altered to exceed the height or bulk or have a narrower or smaller yard or other open space than herein required or in any other manner contrary to the provisions of this chapter”. Dan comments that there are not buildings. John Norman clarifies that they are here either to agree or disagree with definition of structure James Hatfield asks Tom Perry if the size of these boat racks were any bigger would it have any bearing on whether they are structures or not and height wise, could they be 30 feet high. Tom Perry indicates that only if it was part of a commercial operation where there is the storing of boats. Dan Creedon comments that it is more of a use. However, he indicates that a small boat rack like this, which is long and might be a nuisance, does that require a permit, does it require setbacks, Mr. Perry answers no. Dan Creedon comments to Mr. Richardson that he should file a complaint and an injunction as this Board is guided by the ordinance. If structures, they are not required to comply with setbacks. Dan Creedon does findings. Appeal 2008-020 The appellant is Michael Richardson of 99 Mountain Ash Road, Marstons Mills, MA seeking enforcement at address 111 Mountain Ash Road, Marstons Mills. The parcel is shown on Assessor’s Map 124 as parcel 030 and is in a Residence F Zoning District. Mr. Richardson appealed the decision of Mr. Perry wherein he stated to Mr. Richardson in response to his request for enforcement that the Building Division had no jurisdiction with regards to those items that Mr. Richardson was complaining about as those have been shown to this Board this evening which are boat racks, posts with tarps, and racks for holding firewood. The appellant properly filed his appeal within the appropriate statutory time period and that it came before this Board with consideration of all the testimony. Kelly Lydon seconds. No discussion on the findings. Vote:


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AYE: John Norman, James Hatfield, Dan Creedon, Kelly Lydon, Gail Nightingale NAY: None Dan Creedon makes a motion based on those findings he would move that the Board supports Mr. Perry’s decision that the Building Division has no jurisdiction over this matter. Kelly Lydon seconds. No discussion Vote: AYE: John Norman, James Hatfield, Dan Creedon, Kelly Lydon, Gail Nightingale NAY: None UPHELD THE DECISION OF THE BUILDING COMMISSIONER

Gail Nightingale then calls the Oyster Harbors Club at 9:30 PM. She indicates that because there is not a full quorum on this, the applicant’s attorney, J. Douglas Murphy, has submitted a letter asking for a continuance.

Appeal 2008-008 - Continued Oyster Harbor Club Expand/Alter Nonconforming Use

Opened February 27, 2008, Continued to March 12, 2008

Continued for Attorney briefs on the issue of accessory uses to nonconforming use and expansion/alteration of the accessory uses.


Oyster Harbors Club, Inc. has petitioned for Special Permits pursuant to Section 240-93.B Alteration and Expansion of a Nonconforming Buildings or Structures Not Used as Single or Two-Family Dwellings; and Section 240-94.B Expansion of a Preexisting Nonconforming Use. The petitioner seeks to remodel an existing 573 sq.ft., children’s play center and to add another accessory building consisting of 1,096 sq.ft., to also be used as a children’s play center. The buildings and use is accessory to the principal nonconforming use of the property as a Club House. The subject property is located as shown on Assessor’s Map 053 as Parcel 012 Lot 001, addressed as 170 Grand Island Drive, Osterville, MA 02655, in a Residence F-1 Zoning District.

CONTINUED TO APRIL 30, 2008 AT 7:30 PM

Gail Nightingale then calls the Sprinkle appeal. She indicates that the applicant’s attorney, David Nunheimer, has submitted a letter requesting to withdraw without prejudice.


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Appeal 2008-003 - Continued Sprinkle Expand/Alter Nonconforming Two-Family

Opened February 27, 2008, Continued to March 13, 2008

No Members Assigned - No Testimony taken

Brad K. Sprinkle has petitioned for a Special Permit pursuant to Section 240-92.B, Expansion/Alteration of a Nonconforming Buildings or Structures Used as Single- and Two-Family Residences. The petitioner seeks to expand and alter the two existing nonconforming residential dwellings located on the property. The property is addressed as 3600 Falmouth Road (Route 28), Marstons Mills, MA, and is shown on Assessor’s Map 077 as parcel 005. It is in the Residence F Zoning and Resource Protection Overlay Districts

Members assigned: John Norman, James Hatfield, Dan Creedon, Kelly Lydon, Gail Nightingale

Kelly Lydon makes a motion to withdraw this without prejudice.

Dan Creedon seconds.

Vote: AYE: John Norman, James Hatfield, Dan Creedon, Kelly Lydon, Gail Nightingale NAY: None

WITHDRAWN WITHOUT PREJUDICE

Motion to adjourn

Seconded.

Meeting adjourned at 9:32 PM. .


Minutes April 16, 2008

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday, April 16, 2008 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Joanne Miller-Buntich – Special Projects Coordinator, and Carol Puckett – Administrative Assistant. Gail Nightingale Present Ron Jansson Present Daniel Creedon III Present James Hatfield Present Sheila Geiler Present for Executive Session only John Norman Present Jeremy Gilmore Absent Kelly Lydon Present Gail Nightingale opens the hearing at 7:00 PM and gives a summary of the appeals being heard tonight. She asks that the Board accept the minutes from January 23, 2008 with one modification which has been made. Motion is made to accept the minutes of January 23, 2008. James Hatfield seconds. Vote: AYE: Gail Nightingale, Ron Jansson, Dan Creedon, John Norman, Kelly Lydon, Sheila Geiler, James Hatfield NAY: None Gail Nightingale then makes a motion to go into Executive Session to discuss pending litigation. She indicates that the Board will be returning after the session at which point she will be turning the Chair over to Ron Jansson as she recuses herself from the Corey/Blanchard’s appeal. Ron Jansson indicates that he will be abstaining from the Executive Session as he will not be participating.

Zoning Board of Appeals – Agenda – April 16, 2008

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Vote: AYE: Gail Nightingale, Dan Creedon, John Norman, Kelly Lydon, Sheila Geiler, James Hatfield NAY: None Back from Executive Session at 7:37 PM Ron Jansson indicates that he is taking over the chair as Gail Nightingale has recused herself from the Corey/Blanchard’s appeals..

Appeal 2006-024 – Continued Corey Conditional Use in a Highway Business


Opened March 22, 2006 continued April 12, 2006, May 24, 2006, July 26, 2006, September 13, 2006, November 15, 2006, January 3, 2007, January 31, 2007, March 28, 2007, May 23, 2007, July 11, 2007, September 26, 2007, November 7, 2007, January 9, 2008, January 30, 2008, February 13, 2007, February 27, 2008, March 26, 2008, and to April 16, 2008.

Public hearing closed - continued for Board’s deliberation and rendering of a decision. Revised possible draft Findings and Suggested Conditions are enclosed.


Members: Ron S. Jansson, James Hatfield, Daniel M. Creedon, Kelly Kevin Lydon, John T. Norman No Alternates Opened January 31, 2007, continued March 28, 2007, May 23, 2007, July 11, 2007, September 26, 2007, November 7, 2007, January 9, 2008, January 30, 2008, February 13, 2007, February 27, 2008, March 26, 2008, and to April 16, 2008

Staff anticipates that Appeals 2007-009 & 010 will be requested to be withdrawn. Appeal 2007-009 Conditional Use Special Permit

Donald J. Corey, Jr., has petitioned for a Special Permit pursuant to Section 240-25(C) Conditional Use in a Highway Business Zoning District. The applicant seeks to designate a 30-foot wide easement from Wequaquet Lane to property addressed as 1030 Falmouth Road (Route 28), Centerville/Hyannis, MA. The easement is to be developed as a driveway for access to and egress from a proposed commercial development of 1030 Falmouth Road. The easement and drive is to be created over land addressed as 28 and 0 Wequaquet Lane, Centerville, MA, and 0 and 1030 Falmouth Road, Centerville/Hyannis, MA.


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The property is shown on Assessor’s Map 250 as parcels 024, 023X02, 023X01 and 065. The land is zoned Residence D-1 and Highway Business.


Donald J. Corey, Jr., has applied for Variances to Section 240-11(A) Principal Permitted Uses and Section 240-11(E) Bulk Regulations of the Residence D-1 Zoning District. The applicant seeks to designate a 30-foot wide easement from Wequaquet Lane to property addressed as 1030 Falmouth Road (Route 28), Centerville/Hyannis, MA. The easement is to be developed as a driveway for access to and egress from a proposed commercial development of 1030 Falmouth Road. The easement and drive is to be created over land addressed; 28 and 0 Wequaquet Lane, Centerville, MA, and 0 and 1030 Falmouth Road, Centerville/Hyannis, MA. The property is shown on Assessor’s Map 250 as parcels 024, 023X02, 023X01 and 065. The land is zoned Residence D-1 and Highway Business. Ron Jansson indicates that there are several appeals that are pending before the Board: 2006-009, 2006-010, 2006-024 and appeals 2007-009, 2007-010, and 2006-024 again. He indicates that he believes through a scrivener’s error when the latter two appeals which were filed at the end/beginning of last/this year they were file for the purposes of reconstituting the Board. They weren’t assigned different numbers. As a housekeeping matter what he would like to do is move forward and have these matters that are not going to be heard tonight disposed off. He indicates he had a prior conversation with Mr. Butler who concurred. He understands that the only appeal that is going forward is 2006-024 and would like to allow the other matters to be withdrawn so that the Board can proceed with deliberations. Ron Jansson asks Attorney Butler if he would consider withdrawing appeals 2007-009, 2007-010 as well as the replicated 2007-009 and 2007-010 without prejudice. Attorney Butler indicates that it has been discussed and that the 2007-009 and 2007-010 both related only to the rear access easement request for relief and therefore they request that they be voted on to be withdrawn without prejudice. Ron Jansson clarifies that it will also cover the replicated 2007-009 and 2007-010. Attorney Butler indicates that those appeals are repetitive and would be also like to request to have them withdrawn without prejudice. Motion is made to withdraw without prejudice. Dan Creedon seconds. Ron Jansson indicates with reference to 2007-009, 2007-010 and the new applications which were filed and mis-numbered with reference to appeal 2006-024 and wants to clarify that 2006-024 is not being withdrawn without prejudice as it is going forward this evening but the most current applications for purposes of reconstituting the Board in the event an absence continued there is a motion to withdraw those also without prejudice. Vote: AYE: John Norman, Dan Creedon, James Hatfield, Kelly Lydon, Ron Jansson NAY: None


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Withdrawn without Prejudice. The only appeal they will be voting on will be 2006-024. Attorney Butler indicates that his request is to make a brief statement for the purposes of two things: First, is at the last hearing there were draft proposed findings before the board for their consideration and have received copies of those and since the date of the last hearing when the Chairman closed taking further evidence, there have been additional proposed findings that have been promulgated to you from which they have copies. Two of those findings he would like to comment on. He also asked to take judicial notice on another matter. Ron Jansson indicates that he has spoke with the Town Attorney on this and whether the Board has an objection, what they usually do when they say there will be no further comment, they basically say no further public comment. However, Attorney Butler would like to comment before the Board deliberates on the proposed staff findings and unless anyone objects he thinks he should give Attorney Butler that opportunity. The Board comments that they do not have a problem with that. Ron Jansson comments that the only problem he has with the matter regarding judicial notice is that is a nature of evidence that is coming before the Board and they have basically closed it to further public comment and defers it to the Town Attorney. Attorney Butler indicates that he believes if something is of record with the Town in terms of a town ordinance, statue or regulation that is not new evidence. As in a court of law where they ask to take judicial notice of something being in existence, he would argue it is not new evidence. He is proposing to cite a particular ordinance of the general ordinances and a particular document that is a record of the Town Clerk’s office. He will not argue them, or advocate on them just for the Board to take judicial notice. Ron Jansson defers it to the Town Attorney. Ruth Weil – Town Attorney indicates that she thinks this is a quasi-judicial proceeding and thinks that the Board has discretion to accept this or not. She indicates it is difficult to evaluate the document or ordinance without seeing it. She indicates that the record is closed and the public, who might have wanted to come and comment, were discouraged but that again the Board has discretion to hear Attorney Butler’s comments or not. Ron Jansson indicates that he will poll the Board and explains judicial notice to the Board members. Ron Jansson comments that he is concerned as the public was discouraged and defers it again to the Board members. Dan Creedon comments that he would feel most comfortable given trying to weigh the counter interest of the public not being here to give further information and Attorney Butler’s obligation to zealously advocating for his client. He indicates that if it came in as a statement and not a document relative to the findings and if he could include it in a statement it would be okay but beyond that he doesn’t think it should come in as a separate document. James Hatfield indicates that he is comfortable with having Attorney Butler submit his comments. Kelly Lydon indicates he is also comfortable.


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John Norman indicates that if an ordinance is brought to his attention he would ask that a condition be included asking for a 15 minute recess in order to read through it and understand it. Ron Jansson indicates he would vote against it because he believes they had closed the hearing to further public comment and is concerned as there were several people who expressed interest in attending this evening and that they might’ve want to point out another piece of legislation or Town ordinance and thinks it is unfair for them to allow something to come in without being able to refute it. However, he indicates that because majority rules, that Attorney Butler may comment. Attorney Butler indicates that wants to be clear as not to prejudice the record and has two items and indicates that one is a record from the Town Clerk’s office and relates to testimony already heard but he thinks he can take judicial notice of it as it is a record and the second is an ordinance that allows for the issuance of that particular document that is at the Town Clerk’s office. Ron Jansson indicates that he thinks if there is a document that is a public record they have the right to take judicial notice of public records themselves as a whole but when he refers to a specific document that is not before the board overall he thinks it takes on the appearance of straight documentary evidence so he is not quite so sure that a specific document they could judicial notice of. They could take judicial notice of a public record. Attorney Butler indicates that he believes if something is a record of the Town clerk’s office they could take judicial notice of that. Ron Jansson defers it to Ruth Weil – Town Attorney. Ruth Weil indicates that it would make this more coherent if Attorney Butler could summarize the document as she is unclear what is involved. They could proceed as the Board voted and then if there are any further inquires they could look at it after it is disclosed. Attorney Butler indicates that they are commenting on language that was provided to the Board on the draft findings subsequent to the last hearing.

Negative Finding #13, on the first paragraph there is a sentence that says “this added traffic on streets that are predominately residential roadways will substantially, adversely affect the safety of the public and degrade the comfort and convenience of the abutting residents”. He indicates that there was opinion testimony proved and they merely wanted to state for the record that, in their opinion, that is not supported by the evidence and testimony and that there was nothing in the peer review findings or statement that would support that.

Secondly, was Negative Finding #14, on the very last sentence “to grant this special permit

will generate more traffic than the previous use did and to permit it will cause the expenditure of town and state funds to address traffic mitigation from the redevelopment”. He indicates that he would argue two points.


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He believes in another finding he merely wanted to tie it in there was testimony given by his expert Mr. Hart that they used a very conservative analysis and did not take into account in their analysis any of the existing traffic and did not take credit for that. The one that they wanted to pint out is the last point out tonight is the last part of that that talks about the causation of the expenditure of town and state funds to mitigate the traffic, they do not believe that is supported by any fact, testimony or evidence provided to the Board either oral or in writing. Attorney Butler then indicates as to the judicial notice, he asks the Board to take into account General Ordinance 403-3 subpart B and has copies to submit but will not do this based on the way in which the Board wants him to do this. He indicates that this deals with kennel license and Subpart B indicates that“ in order to obtain a kennel license, the applicant must apply to Site Plan Review and then to the Zoning Board of Appeals, once the special permit is obtained then the Town Manager shall hold a public hearing following and that notification shall be sent to the Town Clerk. The other judicial notice to take notice of is tag # X8, kennel license for ten or more dogs issued on June 18, 2007 by the Town Clerk to Mr. B. Clay Schofield of 1008 Falmouth Road. Ron Jansson indicates that he would move to close the public hearings. Kelly Lydon seconds. Vote: AYE: Kelly Lydon, James Hatfield, Dan Creedon, John Norman, Ron Jansson NAY: None Public hearing is officially closed. Ron Jansson then opens the discussion to Board members before the deliberations. Dan Creedon indicates that he believes the Board should talk about the two items Attorney Butler brought up and whether the Board is going to accept them. Dan indicates he does not have a problem with the statement and pointing out the general ordinance regarding kennel licenses. However, Dan indicates he has reservations regarding the item about Mr. Schofield and whether he has a license or a permit that benefits his property and to allow it to come in without lending Mr. Schofield an opportunity to speak about it. He also thinks that it lends itself to requiring a rebuttal and he doesn’t think they are giving Mr. Schofield that opportunity and has problems with the second item coming in. Ron Jansson concurs with Dan regarding that and believes there is no reason why it was not submitted during the hearing and it is fundamental fairness and defers this question to Ruth Weil. Ruth Weil concurs with both Dan and Ron and indicates that she didn’t know it would be vivid. She indicates that in this instance where an abutter involved would’ve come if there would be further evidence. Attorney Butler indicates he wants to be clear for the reason submitting this and requesting judicial notice is not related to Mr. Schofield’s credibility nor to impeach his testimony but to take


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judicial notice of what the Town has adopted and issued as a license in conformance with a particular statue as it relates to the status of that property and thinks it is relevant to the Board’s determination as to the neighborhood affected. He indicates that Mr. Schofield actually gave him this information himself and that he didn’t ferret it out and that in the context of the findings that he reviewed it struck him that that judicial notice was appropriate for the Board to know the status of that property on the records of the Town of Barnstable. Dan Creedon comments that he takes it at face value but he still feels uncomfortable and that Mr. Schofield has been following these hearings very closely, has participated in the process and is not here this evening and was told that any further evidence would not be accepted. Attorney Butler indicates that he has met with Mr. Schofield several times and that he voluntarily gave him this information and he would make an offer of proof and withdraw the submission of this to the Board so that is on the record.. Ron Jansson clarifes with Attorney Butler that he will be withdrawing as a submission to the record. Attorney Butler indicates that he will be withdrawing his request that the Board take judicial notice and is making an offer of proof and they have ruled on it and it is now on the record. Ron Jansson indicates that the only time that he has made offers of proof is when the court has basically overruled his objection to submitting of evidence. The Board hasn’t actually done that yet and if at the particular time he doesn’t think they would have to go through an offer of proof because as you know the hearing, if there isn’t going to be an appeal, would be denolble in any event. He indicates that he will poll the Board the issue regarding the issue regarding the information about Mr. Schofield and see whether the Bard wishes to accept that information at this time. Vote: AYE: John Norman NAY: Dan Creedon, James Hatfield, Kelly Lydon, Ron Jansson Ron Jansson indicates that because the majority voted in the negative and it carries and the evidence is excluded with reference to Mr. Schofield regarding the kennel license he may have obtained. Ron Jansson then asks if the Board wants to discuss before the deliberations. Kelly Lydon indicates that regarding the judicial notice that the Board would have to take this. Ron Janssson indicates that that has already been decided. Dan Creedon comments that this was a difficult decision and thanks the Town Manager – John Klimm for his participation. He indicates that this is a balancing act between the abutter’s and the property owner’s interests as was indicated to him when he was initially appointed to the Board. Ron Jansson concurs with Dan. Ron Jansson indicates that all persons have the right to be heard as citizens and in doing so there has to be complete objectivity and fairness.


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Dan Creedon comments that he is looking at this as a retail use and anything that is different about a liquor store use should be addressed by the licensing authority for the issuance and enforcement. James Hatfield comments that he believes that the usage of what this is going to be is a concern but that any business that would be going in would be a concern. He indicates that he went to Marshfield High close to the Blanchard’s located there and it was never a problem. Kelly Lydon comments that he concurs with Dan on the licensing issues and that this is a tough call. Dan Creedon comments that the traffic issue is the major concern and believes that it is a tough position for the applicant to be in. Ron Jansson comments that irrespective of the alcohol issue some products will generate more traffic but they have to look at the location. He comments that he has seen the traffic problems and has concerns regarding the queuing of traffic at this intersection and that it could aggravate the traffic problem and make it worse. James Hatfield comments that the lot will probably not remain vacant and doesn’t see that by voting this down will keep it vacant for a long period of time and if an office building would be there, it will still generate traffic. John Norman comments that he finds it troubling when a department or Town makes statements contrary to the zoning they enacted and that they knew it was abutting a residential area and by creating this opportunity to get a special permit they were opening a window to get the special permit as long as they met the following criteria: “do not substantially adversely affect the public safety health welfare or comfort or convenience of the community” . He indicates that he kept going back to the word substantially and reading through the peer review and the applicant’s review of the traffic study and the conservative numbers they kept referring to. He indicates that he has made it a point to also drive by the area during different times of the day and week and doesn’t understand the hysteria regarding parking and traffic. He understands the traffic but didn’t find it substantial. He comments that the Town had given two applicants guidance regarding a rear access without consulting with the neighborhood. He comments that if they don’t do something with this property they could keep two curb cuts onto Route 28 as of right, but by granting a special permit would give them a say in redesigning the entrance and doing some mitigation and changing some of the light sequencing and thinks that is a better thing and does see this project as being a substantial detriment to the public health and safety. Dan Creedon does findings:

Standard Finding #1 Appeal No 2006-024 is that of Donald J. Corey, Jr., seeking a special permit pursuant to §240-25(C)(1), for a Conditional Use in the highway business zoning district and for a Modification of Special Permit 1969-66 issued to Father McSwiney Associates Inc. The appeal is sought to permit the redevelopment and


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use of the subject property for a 9,801 square foot retail liquor store known as “Blanchard’s Liquors”.

Standard Finding #2 The subject property is addressed as 1030 Falmouth Road, Centerville, and is shown on Town of Barnstable Assessor’s Map 250 as parcel 065. It is located on the north side of Route 28 (Falmouth Road) and consists of approximately 3.28 acres of land.

Standard Finding #3 The subject property is bisected by two zoning districts. The southerly portion of the property (for a depth of 300 feet) is situated within the Highway Business (“HB”) zoning district. This area was re-zoned in 1989 via Article 11 from Residence D-1 to Highway Business for a depth of 300 feet from Route 28. The remainder of the subject property is located within the Residence D-1 (“RD-1”) zoning district. The residentially zoned portion of the property is also located in the Resource Protection Overlay District (“RPOD”). The entire property is located within the Groundwater Protection (“GP”) Overlay District.

Standard Finding #4 The property is developed with an existing 3,500 square foot structure that was most recently utilized by the Knights of Columbus for its meeting hall in accordance with Special Permit Decision No. 1969-66, which was issued by this board on January 6, 1970. As indicated in that special permit, prior to the property being permitted for the Knights of Columbus, it was utilized as a commercial nursery. Based on the 1970 special permit and occupancy records from the Town, the Knights of Columbus was permitted the capability and capacity to accommodate 500 cars and 270 persons on-site.

Standard Finding #5 The subject property presently has two (2) large and undefined full-access curb-cuts on Route 28. As part of the redevelopment of the site, the applicant proposes to eliminate and close these curb-cuts and, in place thereof, proposes a single, exaggerated right-in, right-out curb-cut. The elimination of the two existing full-access curb-cuts on Route 28 represents a safety enhancement.

Standard Finding #6 The applicant is the principal owner of Blanchard’s Liquors which is presently located in leased space at 226 Falmouth Road (Route 28), Hyannis, on the south side of the Cape Cod Mall. The existing Blanchard’s Liquor store consists of 4,448 square feet. The existing location has a full-access curb-cut on Route 28, however, under Special Permit No. 1998-031 issued for the redevelopment of the Mall and its continued operation, that entrance is to be closed upon the redevelopment or reuse of this area of the Mall property. The closing of this existing full-access curb-cut on Route 28 represents a safety improvement.


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Standard Finding #7 The applicant has testified that the intent of this move and redevelopment is to provide better service and more product options to its clients, especially relating to wine selection. Testimony was given that it shall not be a discount liquor store, or a warehouse for volume sales.

Standard Finding #8 The applicant proposes to redevelop the subject property as shown on the site and architectural plans submitted by demolishing the existing structure, constructing a single, one-story building in compliance with all setback requirements, consisting of 9,801 square feet, together with 54 on-site parking spaces, a loading dock area, landscaping, associated storm-water and waste-water improvements, and with a single, exaggerated, right-in / right-out access/egress onto Route 28.

Standard Finding #9 The Board recently granted a special permit to Centerville Gardens, for the adjoining property to the west. Use of that property is to be for offices and a bank. Those uses are principal permitted uses allowed as-of-right within the Highway Business Zoning District. The special permit granted allows the proposed bank to install drive-up/drive-through tellers lanes. That is the only aspect of the banking use that is conditional in the Highway Business Zoning District. The grant of that permit differs from the situation at hand today which is the basic use of the property for retail sales. Retail sales is a conditional use requiring a special permit. Although no traffic analysis, reports, or expert testimony was provided in the Centerville Gardens matter, using the Institute of Transportation Engineers Handbook on Trip Generation one would conclude that the Centerville Gardens project with the grant of the special permit generates approximately 27 new vehicle trips during the weekday evening peak hour more that that permitted as-of-right under zoning. Access to the Centerville Gardens project will be taken from the existing curb-cut on Route 28 that now serves the existing CVS Drug Store. The shared access drive also provides a means for alternative ingress and egress onto Strawberry Hill Road via the CVS site. The existing curb-cut to be utilized on Route 28 does not include any raised curbing.

Positive Finding #10 The applicant initially proposed to construct a rear access driveway from the subject property extending across the abutting properties to the west and connecting to Wequaquet Lane, and submitted a special permit and variance application to the Board (Appeal Nos. 2007-009 and 2007-010) for that rear access drive. However, the applicant has revised the proposal to eliminate the rear access drive and those petitions (Appeal Nos. 2007-009 and 2007-010) as they are no longer needed. The sole ingress/egress from the subject property will be via the exaggerated right-in / right-out curb cut onto Route 28 that will include a monitoring program and the establishment of a mitigation fund in the amount of $150,000.

Strike


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Negative Finding #10 The applicant initially proposed to construct a rear access driveway from the subject property extending across the abutting properties to the west and connecting to Wequaquet Lane and submitted a special permit and variance application to the Board (Appeal Nos. 2007-009 and 2007-010) for that rear access drive. However, the applicant has revised the proposal to eliminate the rear access drive and those petitions (Appeal Nos. 2007-009 and 2007-010) as they are no longer needed. The sole ingress/egress from the subject property will be via the exaggerated right-in / right-out curb cut onto Route 28. Testimony has cited that the proposed exaggerated right-in/right-out curb cut is a provisionary design as Mass Highway has not yet approved it for common use along its roadways. The Applicant's transportation engineer has met on multiple occasions with representatives from Mass Highway to review and develop the proposed access configuration. However, the proposed curb cut has not been submitted to Mass Highway for approval and there are no assurances that it will be approved. Although the applicant's traffic engineer has testified that he believes there is a substantial likelihood that the proposed design would be approved, the applicant’s representative has proposed conditions that in the event the design is not approved the applicant would return to this Board for a modification of this decision.

Standard Finding #11 The proposed redevelopment and use is located solely within that portion of the property that is zoned HB and not more than 30 feet into the RD-1 portion of the property as allowed pursuant to §240-6(C)(3) of the Zoning Code. The remaining portion of the property will remain in its natural state, with additional plantings as described herein, to buffer the redevelopment from the residential abutters.

Standard Finding #12 The applicant has submitted extensive reports relating to the anticipated trip generation and traffic impacts from their traffic consultant, Mr. Randy Hart of Vanasse Hangen Brustlin Inc. (VHB), and those reports have undergone a transportation peer review at the request of the Town by Mr. John Diaz of Greenman Pedersen, Inc. (GPI). The applicant's traffic analysis was prepared with the following conservative assumptions: • No traffic credit was taken for the existing use or potential as-of-right uses on

the site. • Traffic generation rates collected for the Cape Cod database to estimate

applicable rates for the proposed store all had at least one point of full access to a major state highway. Since the proposed project will be reduced to a limited access the applicant's traffic engineer has testified that it is expected that the actual traffic generation for the redevelopment win be less than that projected for a full-access facility, yet no credit has been applied.

• Pass-by rates for retail. particularly liquor or convenience store type facilities are usually substantial with 40 to 60 percent rate applied. For the proposed use. the applicant’s traffic engineer applied a very conservative pass-by rate of 25%, consistent with EOT standards.


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Positive Finding #13 The VHB traffic reports concluded that at peak hour and peak season, the redevelopment will not degrade the Level of Service of any of the intersections within the project study area. Further, the consolidation of 2 full access curb-cuts into a single right-in, right-out configuration represents a safety enhancement for site access to this parcel along this corridor. The Town's peer reviewer did not disagree with the conclusions related to the alteration of the curb-cuts. Testimony was given and information submitted from the consultant that supports that certain LOS are improved at certain intersections and that some existing delays are further reduced in duration at other times and in cases queue lengths reduced

Negative Finding #13 The VHB traffic reports concluded that at peak hour and peak season, the redevelopment will increase traffic by 40 vehicles. There remains an issue of where this increase traffic will go and how it will traverse the area especially for reversing directions. It is apparent that the traffic will have to filter through abutting residential roadways especially Strawberry Hill Road and Wequaquet Lane to reverse direction. This added traffic on streets that are predominantly residential roadways will substantially adversely affect the safety of the public and degrade the comfort and convenience of the abutting residents.

Although testimony from VHB cited that this increase will not degrade the Level of Service at any of the intersections within the project study area, the February 12, 2008, report from GPI indicates that the level of service (LOS) along the southbound left turn on Strawberry Hill Road during Saturday midday peak deteriorates from LOS ‘C’ to a LOS ‘D’ and during the weekday evening peak hour from a LOS ‘D’ to a LOS ’E’. The option to incorporate a protected left turning arrow for the left turning movements from Strawberry Hill Road on to Route 28 has not been incorporated into the proposal as both consultants have concluded “such phasing would result in overall increased delays at the intersection.” This increase in delays would especially affect the regional roadway, Route 28.

Positive Finding #14 The applicant is proposing traffic mitigation to include: (a.) a modified,

exaggerated right-in / right-out curb cut on Route 28; (b.) timing and phasing improvements to the signalized intersection of Route 28 and Strawberry Hill Road intersection to ensure optimal operation; (c.) a contribution in the amount of $150,000 for transportation improvements; (d.) a safety monitoring of the curb cut with annual reporting to the Town for a period of 5 years; and (e.) installation of Opticom® technology at the existing signalized intersection of Route 28 and Strawberry Hill Road. The granting of the requested relief with the foregoing mitigation will off-set any transportation impacts associated with the project and will help to mitigate existing conditions on the roadways. This is an advantage


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over the as-of-right development of this parcel for use as a bank (no drive through windows} and/or as an office. Those uses together could generate significant traffic, and without the provision of any traffic mitigation.

Negative Finding #14 The applicant proposed a number of traffic mitigations which included: (a.)

a modified, exaggerated right-in / right-out curb cut on Route 28; (b.) timing and phasing improvements to the signalized intersection of Route 28 and Strawberry Hill Road intersection to ensure optimal operation; (c.) a contribution in the amount of $150,000 for transportation improvements; (d.) a safety monitoring of the curb cut with annual reporting to the Town for a period of 5 years; and (e.) installation of Opticom® technology at the existing signalized intersection of Route 28 and Strawberry Hill Road. However, the applicant has not proposed any improvements to: (a) extending the south bound and left turning lanes on Strawberry Hill Road to the north of Route 28; and (b) installation of a left turning arrow on that signal at Route 28 and Strawberry Hill to accommodate left turning movement from Strawberry Hill Road. The contribution of $150,000 is to be held for 5 years and first earmarked to correct the developer’s provisional exaggerated right-in/right out curb cut should that prove to not be effective. To grant this special permit will generate more traffic than the previous use did and to permit it will cause the expenditure of Town and State funds to address traffic mitigation from the redevelopment.

Standard Finding #15 The redevelopment results in; the elimination of 2 full-access curb cuts on Route

28, a reduction of parking as compared to the Knight’s of Columbus, economic and fiscal benefits to the Town in terms of increased assessments, aesthetic improvements, a significant vegetative buffer from Route 28, Earl’s Court and the abutting residential properties, and retention of approximately 45% of the subject property in its naturally vegetated state.

Standard Finding #16 The site plan for the proposed redevelopment of the site has been reviewed by the

Site Plan Review Committee and has been found approvable by that committee. Standard Finding #17 The liquor store use will require a liquor license (or a transfer of the existing liquor

license) from the Town of Barnstable Licensing Authority. That license is an annual license and provides that Authority with the option for an annual review. In addition to that license, the Zoning Board, as authorized in MGL Chapter 40A, also has that responsibility to promote the health, safety, convenience, morals and general welfare of the inhabitants of the Town of Barnstable, by permitting the use of land and the extent of development.

Positive Finding #18 The application for a Conditional Use falls within a category specifically excepted

for the granting of a special permit by the Zoning Board of Appeals. The evidence


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and testimony provided confirms that the granting of the relief will not substantially adversely affect the public health, safety, welfare, comfort or convenience of the community. As noted above, the redevelopment will not degrade the overall operation at any intersection within the study area and the site improvements will improve safety measures.

Negative Finding #18 The application for a Conditional Use falls within a category specifically

excepted for the granting of a special permit by the Zoning Board of Appeals. The issuing of that permit requires the finding that the proposed use will “not substantially adversely affect the public health, safety, welfare, comfort or convenience of the community.” At the March 26, 2008 public hearing testimony of Barnstable Town Manager, John C. Klimm, implored the Board to deny the special permit on the grounds that it represents a substantial detriment to the area in terms of traffic congestion and neighborhood compatibility. Testimony in opposition was also given by Janet S. Joakim, Barnstable Town Council President and Tom Rugo, Councilor from Precinct #2 in which the proposed development is located. They also cited the unresolved issues related to traffic and the incompatibility of the proposed land use with the surrounding neighborhood.

The Board is also in is receipt of a March 25, 2008 correspondence signed by four

members of the Barnstable Town Council expressing opposition to the grant of this special permit based upon the negative impacts that it would have on this already congested area of Route 28 and the compatibility of the proposed retail sale of liquor in this neighborhood. The letter is signed by; Janet S. Joakim, President, Frederick Chirigotis, Vice President, and Councilors Richard G. Barry, and Tom Rugo. The Barnstable Public Schools Committee also submitted a letter dated February 13, 2008, expressing opposition to the granting of the special permit for the use of the location for the retail sales of liquor in close proximity to the Barnstable High School and Barnstable Middle School. The two schools being located 1,900 feet and 700 feet from the proposed redevelopment. Opposition was also expressed at the public hearing from the Greek Orthodox Church of Cape Cod. Its concerns center mostly on traffic in the area and the added congestion that traffic will have. The Quissett Village Neighborhood (which is immediately adjacent to the project site) Association’s Board of Directors submitted a May 15, 2007 letter in support of the redevelopment, and several residents of the neighborhood testified in support. However, individual abutting neighbors have testified they are concerned with the increase in neighborhood traffic and disturbances associated with the operations. Some of the concerns expressed for traffic, noise and screening can be addressed in this permit. Other concerns for the health, traffic safety, and general welfare of those users in the immediate neighborhood, comfort of the users and the convenience that they have become accustom to, are left unanswered. Given the nature and extent of the proposed use, those unanswered and unresolved issues represent a substantial adverse affect on the community and the neighborhood.


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Positive Finding #19 After an evaluation of all the evidence presented, the Board finds that redevelopment fulfills the spirit and intent of the Zoning Code without substantial detriment to the public good or the neighborhood affected. The project will redevelop and improve an existing dilapidated site making the property significantly more aesthetic and visually appealing. Such redevelopment of an existing disturbed property is consistent with the Town's Local Comprehensive Plan. The use is conditionally allowed by special permit by the Zoning Board of Appeals and the applicant has submitted evidence. confirmed by the peer reviewer hired by the Town, that based on a very conservative analysis, the redevelopment will not result in an overall decrease in LOS at any intersection within the project’s study area. Further, elimination of the existing two-full access curb-cuts on the project site represents a safety enhancement. As compared to a by-right use of this commercially zoned property, this could result in the generation of significant amounts of unmitigated traffic. The mitigation proposed will off-set any congestion impacts of the project as well as help to mitigate existing congestion on the roadways caused by existing development. The Board further finds that the applicant, Mr. Donald Corey. Jr., has never had a liquor violation at his existing store in Hyannis on the Cape Cod Mall property, or at his store in Marshfield which is proximate to the Marshfield high and middle schools. Based on all the evidence submitted, the Board finds that the redevelopment will not result in substantial detriment to the public good or the neighborhood affected and that it fulfills the spirit and intent of the Zoning Code.

Negative Finding #19 The granting of the special permit requires the Board to evaluate the evidence presented, and determine if the proposal fulfills the spirit and intent of the Zoning Code without substantial detriment to the public good or the neighborhood affected. To that end, the proposed redevelopment and reuse of the property located in the Highway Business Zone does not represent what the community has come to expect in this area of the Town and along this stretch of Route 28. Therefore, the proposal does not fulfill the spirit and intent of Zoning. Encouraging this amount of traffic along Route 28 and along the neighboring roadways, that are for the most part residential in use, constitutes a substantial detriment. The abutting single and multi-family residential uses, institutional and religious use, and educational use will be adversely impacted by introducing this redevelopment and its accompanying traffic. The local comprehensive plan discourages strip development and strives to make the major traffic routes safe and convenient for travel. This proposal is not consistent with that plan. Given the overall implications of the proposed development and the inconvenience it will impose on the abutting residents and other user represents a substantial detriment to the neighborhood and to the public good.



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Vote:

AYE: Kelly Lydon, James Hatfield, Dan Creedon, John Norman

NAY: Ron Jansson

Ron Jansson indicates that he is voting in the negative as he doesn’t believe that this proposal will fulfill the spirit and intent of our zoning ordinance and that encouraging this amount of traffic along Route 28 and neighboring roadways which are for the most part residential in use will constitute a substantial detriment. Also, the abutting single and multifamily uses in the neighborhood, institutional uses, educational and religious uses will be adversely impacted by introducing significant amounts of traffic flow here He would also find that basically in granting this board the ability to grant special permits over retail uses, this board has the discretion to say yes or no over retail uses. He feels this type of retail use will be a high traffic generator and that the local comprehensive plan discourages strip development and also strives to make major traffic routes safe and convenient for travel and feels that this is not consistent with that plan.

Motion:

Dan Creedon moves to grant the Special Permit and the Modification of Special Permit subject to the following conditions:

Conditions:

This Conditional Use Special Permit is issued to allow for the redevelopment and reuse of the subject property for a retail building of 9,801 sq.ft. and related site improvements to be used for the retail sales of liquor subject to all of the following requirements and conditions:

1. Redevelopment of the site shall be as proposed in plans submitted to the Board as prepared for Donald J. Corey, Jr., dated November 8, 2005, last revised 3/7/08 entitled “Proposed Drainage and Septic Plan at 1030 Falmouth Road – Rt. 28 Barnstable (Centerville), Mass.” and “Proposed Parking Plan at 1030 Falmouth Road – Rt. 28 Barnstable (Centerville), Mass.”, as drawn by Sullivan Engineering, Inc.

2. The proposed building shall conform to those Architectural Plans submitted entitled “Blanchard’s Liquors, 1030 Falmouth Road, Centerville, Massachusetts”, dated August 2005 with a last revised date of February 24, 2006 as drawn by AKRO Associates, Architects and consisting of 3 sheets.

3. The site shall be landscaped as shown on the architectural plans submitted and cited above. In addition, the applicant shall install a staggered row of Leyland Cypress and a split rail fence (or other type of fencing approved by the Growth Management Department) along the easterly edge of the parking / development area to demarcate the work limit area and sufficiently to further screen the redevelopment from the residential property on the easterly side of Earl’s Court as shown on Assessor’s Map 250, as Parcel 028. No occupancy permit shall be issued until the landscaping and fencing has been installed in accordance with this condition. There will be a staggered double row of Leyland Cypress and shall be a minimum of 5 feet in height at the time of installation for natural


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screening.. Attorney Butler wants to change the wording from split rail to 6 foot stockade. No occupancy permit shall be issued until the landscaping and fencing has been installed in accordance with this condition provided further, however, if the season prevents the landscaping in this condition to be completed the applicant shall establish an escrow fund in the amount of (Attorney Butler interjects and suggests the 150%)150% of the estimated cost of the landscaping determined by submission by an estimate from a landscape construction company to be used to complete the landscaping at such time that the weather permits. Ron Jansson asks if he wants to add that the escrow account is to be held by Growth Management. Dan Creedon agrees to that amendment

4. Development is limited to the single 9,801 square foot building as shown on the approved plans. The building is to be built on a slab without basements and consist of one-story only. There shall be no other buildings, accessory structures, nor any storage units and/or trailers located on the property, unless further zoning relief is obtained from this Board.

5. The property governed by this permit is that of a 3.28-acre parcel shown as lot 065 on Assessor’s Map 250 as identified on the plan. The property includes that area of the lot zoned Residence D-1. However, the development of the lot shall be limited to the first 330 feet fronting along Route 28 (Falmouth Road) which is that area being zoned Highway Business plus the 30 foot extension of the zoning line as permitted under Section 240-6.C(3) of the zoning code for a lot divided by zoning districts.

6. The remaining residentially zoned portion to the rear (north) and east of the site, outside of the development area shown on the approved plans, shall not be developed nor used in conjunction with the retail sales, nor used for any parking or storage. This area is to be used only as vegetated buffer to the neighborhood as this area of the lot is accredited to the development to meet groundwater lot coverage limitations and Title 5 on-site wastewater disposal. That remaining area of the lot outside of the work limit shown on the plans shall be preserved and, where necessary, restored to a natural state as a vegetated buffer to the residential homes situated to the north and east of the property. A split rail fence shall be installed at the edge of the parking and rear driveway demarcating the commercial use of the property from that of vegetated buffer. Should vehicles be parked in the residentially zoned land or outside of the parking areas shown on the approved plans, the applicant shall be required to remove or have those vehicles towed from the property.

7. Access to the property from Route 28 shall be as shown on the referenced site plan, and shall include a raised island to direct the flow of traffic as right-turn in only and right-turn out only. Prior to the issuance of a building permit, the applicant shall apply to the Massachusetts Highway Department to permit the exaggerated right-in/right-out curb cut and island as shown on the approved plans, and a copy of the Access Permit application shall be provided to the Building Department and Zoning Board Office. Prior to the issuance of a Certificate of Occupancy by the Town of Barnstable, the applicant shall submit a copy of the approved Massachusetts Highway Department Access Permit for the exaggerated right-in/right-out curb-cut and island.

8. The applicant shall also devise a plan showing no left turn signage to be posted along Route 28 in this area. Which plan shall be incorporated with the proposed site access plan for approval by Mass Highway.

9. In the event that the Massachusetts Highway Department does not approve the exaggerated right-in / right-out curb cut and island shown on the approved plans, the applicant must apply to the Zoning


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Board for a formal modification of this decision. Alternatively, in the event that the Massachusetts Highway Department approves the permit application but requires changes affecting the right-in / right-out island and curb cut configuration, the applicant shall appear informally before the Zoning Board of Appeals for a determination as to whether such changes are likely to substantially impact its anticipated effectiveness. If the Board determines that the changes to the configuration may substantially impact the effectiveness of the island, the Board may require that the applicant apply for a formal modification of this decision.

10. The proposed building shall not exceed 9,801 sq.ft., and is limited to one retail use, that of a retail liquor store to include the sale of beer, wine, spirits, and customary accessory non-alcoholic beverages and food items as may be permitted by the Licensing Authority of the Town. The store shall not advertise itself as a “discount liquor store” nor shall the word “discount” be used in any on-site sign or on-site advertisement.

11. The one way traffic lane to the east side of the building shall be for traffic use only and shall not be used for any drive-up ordering, pick-up or loading to or from the store.

12. Should public sewer become available for the property, the development shall connect to that sewer within two years after the service becomes available.

13. Construction shall comply with all applicable Building and Health Division requirements and all applicable fire codes. All retail sales shall also comply with any licensing requirements and added conditions for the retail sales of alcohol.

14. All truck deliveries shall be made between the hours of 7:30 AM and 6:00 PM.

15. During all stages of construction, all vehicles, equipment, and materials associated with the construction shall be required to be located on the property. Any construction within a public right-of-way shall be approved by the Public Works Department of the Town and/or State Highway Department as may be needed prior to any activity in the ways.

16. Outdoor lighting shall not exceed 18 feet in height and shall only be directed onto the site. Outdoor lighting shall include a cut-off – reduced level in the illumination – after the store is closed and shall conform to the specifications set forth in the Cape Cod Commission Technical Bulletin on Exterior Lighting (No. 95-001) dated October 31, 1995 and last revised on February 21, 2002. Dan Creedon asks if there is a condition for hours of operation. Ron Jansson comments that he doesn’t recall seeing one but thinks that it is more of a licensing condition. Dan Creedon is concerned about the lighting remaining on-site and asks if there is any reason why the parking lot lights cannot be completely turned off after hours. Attorney Butler indicates it is acceptable to the applicant. Dan wants to revise this condition to say that the outdoor lighting shall be turned off after the store is closed. Attorney Butler requests that it be one half hour after the licensing closing time in order to allow employees to have lighting for departure. Dan Creedon accepts that amendment. John Norman suggests leaving it open ended as the Police Department has a little bit of say in lighting so when they drive by it doesn’t have to be brightly lit but some lighting so as to see if there is loitering or potential break-ins. Dan Creedon suggests “one half hour after license closing time all on-site lighting shall be turned off with the exception of that minimum lighting required by the Barnstable Police Department.

17. All signage shall conform to the requirements of the Zoning Code and with condition 10 herein.


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18. Prior to the issuance of a Certificate of Occupancy from the Building Department, the applicant shall implement peak hour / peak season timing and phasing improvements to the signalized Route 28 and Strawberry Hill Road intersection to ensure optimal timing. The specific modifications to the timing and phasing require approval from the Massachusetts Highway Department (“MHD”), so the applicant will work with MHD and the Town’s Growth Management Department to ensure that the peak hour/ peak season operation optimization can be implemented.

19. Prior to the issuance of a Certificate of Occupancy by the Building Department, the applicant shall submit a traffic mitigation payment in the amount of One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00) to the Growth Management Department of the Town of Barnstable (the “Traffic Mitigation Fund”). The Traffic Mitigation Fund shall be utilized only for traffic improvements in this area.

20. The applicant shall, for a period of five (5) years commencing one (1) year after the date of the Occupancy Permit, monitor the safety and effectiveness of the right-in/right out curb cut by providing annual written reports to the Growth Management Department and the Zoning Board of Appeals detailing any accidents occurring within the property or directly in front of the subject property on Route 28. If these reports indicate that the exaggerated right-in/right out curb cut is not safely regulating access to and egress from the subject property, the Town may utilize the Traffic Mitigation Fund to advance roadway improvements including, without limitation, a median in Route 28 or installation of stanchions, to further restrict site access and egress to a right-in/right out. may request of the applicant to devise an alternative entrance design and to seek the Zoning Board’s approval of that modification. The applicant agrees to reasonably cooperate with the Town to advance these improvements if necessary.

21. In the event that, after five (5) years of monitoring as provided for in Condition 19 above, the safety monitoring reports indicate that the exaggerated right-in/right out curb cut is operating safely and effectively, the Town may utilize the Traffic Mitigation Fund for any transportation improvements within the project’s study area.

21. Prior to the issuance of the Occupancy Permit by the Building Department, the applicant shall at their expense: (a) Install Opticom® technology at the existing signalized intersection of Route 28 and Strawberry Hill Road, (b) extend the south bound and left turning lanes on Strawberry Hill Road to the north of Route 28; and (c) installation of a left turning arrow on that signal at Route 28 and Strawberry Hill to accommodate left turning movement from Strawberry Hill Road modify the signal timing at Route 28 and Strawberry Hill Road intersection as necessary to improve traffic flow. In addition to those requirements imposed by Condition #19.

Ron asks if that is in addition to the $150,000 dollars. Dan Creedon indicates that it is. Dan amends that “in addition to those requirements imposed by Condition #19. Ron Jansson has a question on #19 “The Traffic Mitigation Fund shall be utilized for traffic improvements in this area” and asks if that is going to be overall traffic improvements or does he want to limit it to only traffic improvements in this area.


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Dan Creedon asks Ron to clarify. Ron indicates there is a general fund and traffic improvements and sometimes money finds its way into areas beyond traffic improvements. Ron suggests adding “only” to that. Dan Creedon accepts adding the word “for only traffic improvements”. James Hatfield seconds. John Norman refers back to #3 on the draft conditions and suggests maybe putting a season, as for some reason the construction schedule and occupancy will be by the end of the winter. Attorney Butler indicates that his client would be agreeable to some language that would provide for an escrow of landscaping cost in order to issue the occupancy permit. Dan Creedon indicates that he wouldn’t want the fence to be delayed. Dan Creedon suggests “No occupancy permit shall be issued until the landscaping and fencing has been installed in accordance with this condition provided further, however, if the season prevents the landscaping in this condition to be completed the applicant shall establish an escrow fund in the amount of (Attorney Butler interjects and suggests the 150%)150% of the estimated cost of the landscaping determined by submission by an estimate from a landscape construction company to be used to complete the landscaping at such time that the weather permits. Ron Jansson asks if he wants to add that the escrow account is to be held by Growth Management. Dan Creedon agrees to that amendment. Vote: AYE: Kelly Lydon, James Hatfield, Dan Creedon, John Norman NAY: Ron Jansson indicates for reasons as previously stated. GRANTED WITH CONDITIONS. Ron Jansson asks Staff if we have any difficulty with this permit being constructively granted and asks if we need further extensions. Joanne Miller-Buntich indicates that the law allows 90 days from the close of the public hearing to file decisions that gives him until July 16th to file a decision. Attorney Butler indicates that he had signed extensions on behalf of his client and submitted to Mr. Traczyk through to May 31st and believes they have plenty of time. Ron Jansson then turns the Chair back over to Gail Nightingale. John Norman notes that he attended the 40B and has a packet from that and there were significant changes.


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Motion to adjourn Seconded. Meeting adjourned at 8:54 PM.


Minutes June 11, 2008

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday, June 11, 2008 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was not met. Also present were Art Traczyk – Principal Planner and Carol Puckett – Administrative Assistant. Gail Nightingale Present Ron Jansson Absent Daniel Creedon III Absent James Hatfield Present Sheila Geiler Present John Norman Present Jeremy Gilmore Present Gail Nightingale opens the hearing at 7:00 and indicates that she had continued the hearings from the May 21, 2008 hearing. Gail Nightingale reads a summary of the appeals into the record. She informs the public that the Cardarelli appeals will be continued. At this time, she calls the JDJ Housing Development Comprehensive Permit. Extension of Comprehensive Permit No. 2003-90 Comprehensive Permit No. 2003-90, was issued July 9, 2004 to JDJ Housing Development for the development of the “Village Green”. In 2007 the Board granted a one-year extension of the permit to July 9, 2008. A second extension of 6 months would extend the permit to January 9, 2009. That permit was issued and later modified to permit the development of 148 rental apartment units in five (5) three-story buildings on 14.32 acres. Forty (40) units are to be affordable rental in perpetuity and eleven (11) units committed in perpetuity to “workforce housing”. The Comprehensive Permit was issued to JDJ Housing Development, LLC for property address as 770 Independence Drive, Barnstable,

Zoning Board of Appeals – Agenda – June 11, 2008

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MA as show on Assessor's Map 332, as Parcel 010-1. It is zoned Industrial and is in a Wellhead and Groundwater Protection Overlays. Members assigned: John Norman, James Hatfield, Jerry Gilmore, Sheila Geiler, Gail Nightingale Attorney Butler is representing the applicant. He indicates that the original variance was extended previously approximately one year ago. During that interim period there were ongoing negotiations with the State over the regulatory and monitoring agreements which Attorney Peter Freeman has been handling as well as discussions and actions with the Town Council and the Preservation Act Committee dealing with potential funding. Therefore, they are requesting a 6 month extension. Gail Nightingale asks if there is anyone here from the public who would like to speak either in favor or in opposition. No one speaks. Jerry Gilmore makes a motion is made to grant a six month extension. James Hatfield seconds. Vote: AYE: John Norman, James Hatfield, Jerry Gilmore, Sheila Geiler, Gail Nightingale NAY: None SIX MONTH EXTENSION GRANTED She then calls the Warren appeal and reads it into the record. Variance 2007-058 Warren


By letter received June 9, 2008 Linda A Warren has requested a 6-month extension of Variance 2007-058 issued June 29, 2007 to Richard Warren for property addressed as 0 Mid Cape Highway (West) Route 6, West Barnstable, MA. The subject lot is shown on Assessor's Map 194 as parcel 014. The variance was issued to permit the development of a single-family dwelling on a 4.5-acre lot that lacks frontage under zoning. The lot is to be accessed from an existing easement off Oak Street.

Members assigned: John Norman, James Hatfield, Jerry Gilmore, Sheila Geiler, Gail Nightingale

Gail Nightingale asks Mrs. Warren if she has anything to add to which she answers no. Gail then asks if there is anyone here from the public who would like to speak either in favor or in opposition. No one speaks.


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Jerry Gilmore makes a motion to grant the six month extension. James Hatfield seconds. Vote: AYE: John Norman, James Hatfield, Jerry Gilmore, Sheila Geiler, Gail Nightingale NAY: None SIX MONTH EXTENSION GRANTED

Gail Nightingale then calls the Childs appeal, 2008-028 and reads it into the record. Appeal 2008–028 Childs

Modification Variance No. 2000-024 & 1975-093

This appeal moved to this hearing from the May 21st meeting. An April 28, 2008 letter from Attorney Bruce P. Gilmore has requested a withdrawal without prejudice of the appeal as it was incorrectly noticed under the name of Randall E. Childs when it should have been noticed under RELD Corporation. A new application has been submitted and re-noticed for this meeting date as Appeal No.2008-037.

Randall E. Childs has applied for a Modification of Variance No. 2000-024 and 1975-093. The modification seeks to change Condition No. 1 of Variance 2000-024 that now restricts the number of office suites to four. The modification seeks to allow for six office suites in the existing building. The property is addressed as 1047 Falmouth Road (Route 28), Hyannis, MA and is shown on Assessor’s Map 250 as parcel 004. The property is in a Residence D-1 Zoning District. Gail Nightingale indicates that wants to make a declaration on her own behalf. She informs Attorney Gilmore that she is a member of the Osterville Library Board of Trustees and in December of 2007 the library’s attorney was notified by Attorney Gilmore that he is recommending to another client of his that court litigation be filed against the library’s Board of Trustees because of the dismissal of a staff member in November of 2007. As one of the 19 members of the Board of Trustees and as a member of the Zoning Board and to avoid any conflict she is asking if he feels she should recuse herself from this matter tonight because he is representing the applicant. Attorney Gilmore indicates that he does not see any conflict. He indicates that only if she is uncomfortable should she recuse herself. She indicates that she would like to recuse herself and informs him that there will be a 4 member board and asks him if he is okay with that. He agrees to a 4 member Board. James Hatfield takes over as Chair. James Hatfield indicates that he will begin with 2008-028. James Hatfield asks for a motion to withdraw without prejudice. Jerry Gilmore makes the motion.


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John Norman seconds. Vote: AYE: Sheila Geiler, John Norman, Jerry Gilmore, James Hatfield NAY: None WITHDRAWN WITHOUT PREJUDICE

James Hatfield reads 2008-037 into the record. Appeal 2008–037 RELD Corporation

Modification Variance 2000-024 & 1975-093

RELD Corporation has applied for a Modification of Variance No. 2000-024 and No. 1975-093. The modification seeks to change Condition No. 1 of Variance 2000-024 that now restricts the number of office suites to four. The modification seeks to allow for six office suites in the existing building. The property is addressed as 1047 Falmouth Road (Route 28), Hyannis, MA and is shown on Assessor’s Map 250 as parcel 004. The property is in a Residence D-1 Zoning District.

Members assigned: Sheila Geiler, John Norman, Jerry Gilmore, James Hatfield Attorney Bruce Gilmore is representing the applicant. Attorney Gilmore gives a history of the past variance and indicates that the applicant does not plan on expanding the building but inquires were made of the Building Commissioner and they have adequate parking for the 6 units. He indicates that the difficulty is in the reconfiguration of the building. He indicates that his client has lost one tenant that occupied three office spaces, the bookkeeper and the alarm company that was sold when his client retired has reduced its rental demand because of the change in its business location and relocation so that they only need half of the space that had been occupied by Mr. Childs company. He is requesting is that the number 4 be changed to 6 and change the condition regarding the chiropractor and be grandfathered in until after she leaves. John Norman asks if they have looked at the increase of traffic flow. Attorney Gilmore indicates that there is no retail and that it would be limited to office space. Jerry Gilmore asks if RELD Corporation will continue to rent to professionals. Attorney Gilmore indicates yes. James Hatfield asks if there is anyone here from the public who would like to speak either in favor or in opposition. No one speaks. John Norman does findings. In appeal 2008-037 the RELD Corporation has applied for a Modification of Variance No. 2000-024 and No. 1975-093. The modification seeks to change Condition No. 1 of Variance 2000-024 that now restricts the number of office suites to four. The modification seeks to allow for six office suites in the existing building.


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The subject lot is a 0.83 acre lot that is improved with a 5,611 sq. ft., four-office suite building and a 115 foot communication tower. The change in condition in this condition would not significantly impact or cause any detriment to the surrounding area and should be allowed at this time. Jerry Gilmore seconds. Vote: AYE: Jerry Gilmore, John Norman, Sheila Geiler, James Hatfield NAY: None Based on the positive vote on the findings a motion is made to allow Condition No. 1 of Appeal 2000-024 to be amended to read 6 unit office spaces to be allowed. Jerry Gilmore seconds. Vote: AYE: Jerry Gilmore, John Norman, Sheila Geiler, James Hatfield NAY: None MODIFICATION GRANTED James Hatfield then turns the Chair back over to Gail Nightingale. Gail then calls 2008-008 for Oyster Harbor Club which was continued from last meeting. She indicates that they have asked for a further continuance.

Appeal 2008-008 - Continued Oyster Harbor Club Expand/Alter Nonconforming Use

This appeal was moved to this hearing from the May 21st meeting.

Opened; February 27, 2008, continued; March 12, 2008, April 30, 2008, and to May 21, 2008.

Continued for Attorney Town Attorney’s Office input into the issue of building a new additional building (for an accessory use) on a lot upon which an existing preexisting nonconforming use exists (see letter of May 2, 2008, and follow-up clarification of May 8, 2008 previously transmitted to Board members). Attorneys Kirk and Murphy have requested a continuance of this appeal.


Oyster Harbors Club, Inc. has petitioned for Special Permits pursuant to Section 240-93.B Alteration and Expansion of a Nonconforming Buildings or Structures Not Used as Single or Two-Family Dwellings; and Section 240-94.B Expansion of a Preexisting Nonconforming Use. The petitioner seeks to remodel an existing 573 sq.ft., children’s play center and to add another accessory building consisting of 1,096 sq.ft.,


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to also be used as a children’s play center. The buildings and use is accessory to the principal nonconforming use of the property as a Club House. The subject property is located as shown on Assessor’s Map 053 as Parcel 012 Lot 001, addressed as 170 Grand Island Drive, Osterville, MA 02655, in a Residence F-1 Zoning District.

Continued to July 23 at 7:30 PM

Gail Nightingale then calls the Wilson appeal at 7:18 PM. She reads the appeal into the record. Appeal 2008-038 John B. Wilson and Leslie Q. Wilson, Trustees of The 155 Irving Avenue Realty Trust

Bulk Variances for Lot Division

Staff Report, Application Materials and Memorandum in support from Attorneys Butler and Cox distributed.

John B. and Leslie Q. Wilson, Trustees of The 155 Irving Avenue Realty Trust, have applied for a Variance to Section 240-13.E, Bulk Regulations, Minimum Lot Area, Minimum Side & Rear Yard Setbacks and Section 240-7.D, Lot Shape Factor Residential Districts. The variances are being requested for the proposed division of a 3.02 acre lot upon which two dwelling now exist. The resulting division separates the existing dwelling so each is on its own lot shown as Lots A & B and create two additional non-buildable lots shown as Lots C & D on a plan submitted. The proposed Lot B; is to be 0.57 acres and does not meet the one acre minimum lot area requirement, the shape factor is 25.1 and exceeds the maximum lot shape factor of 22, and the existing dwelling is located 6 feet off the side and 7 feet off the back property line where 15-foot setbacks are required. The proposed Lot A has two existing sheds located 3-feet and 5-feet off the side and rear property line where 15-foot setbacks are required. The plan notes that proposed Lots C & D are created for ‘conveyancing purposes and are not separate building lots.” The existing lot is shown on Assessor’s Map 287 as parcel 068 addressed 151 Irving Avenue, Hyannisport, MA. The property is in the Residence F-1 Zoning District. Members assigned: John Norman, James Hatfield, Jerry Gilmore, Sheila Geiler, Gail Nightingale Attorney Patrick Butler and Eliza Cox are representing the applicants. Attorney Butler indicates that he has submitted a memo dated June 5, 2008 which the Board should have. He also indicates that he has an affidavit of Elizabeth Mumford Wilson who was an abutter and whose great grandfather originally developed this property back in the early 1900’s. He indicates that the second handout is a copy of a pier permit dating to 1927 as it relates to the photograph he is displaying on the easel. He also submits a Land Court 4223-B dated August, 1925 which shows the two structures on the property that he will be pointing out to the Board members. He hands them to the Board members.


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Attorney Butler then gives a background on the proposed subdivision of land. under MGL Chapter 81 section 81L. He indicates that this says as apart of it if there are two structures on a piece of property that predate the application of the subdivision control law that the Planning Board must endorse a plan allowing for a subdivision of the lot into two lots, one for each of the structures. The lots they are talking about are depicted on the plan which he has displayed on the easel. He indicates that the entire existing parcel which consists of 3.56 acres consists of two Land Court parcels and then the balance being lots 4 and 7 on Land Court Plan 4223-I. The plan he has given to the Board is a predecessor of that plan, Land Court Plan 4223-B. The property itself has approximately 167 feet of frontage and 411 of frontage on the harbor. It is located in RF-1 zoning district and what they are proposing to do under 81L, there is an existing main house and a second dwelling with a full kitchen and multiple bedrooms and they are seeking to subdivide into Lot A (yellow lot), Lot B which would be the secondary house into a separate lot, and for the purposes of the subdivision plan they would also denote 2 nonbuildable lots, Lots C & D which are solely for the purpose of providing exclusive beach rights to each of the respective properties upon subdivision. The reason for the affidavit from Elizabeth Mumford Wilson, is that her great grandfather, in 1911, had the house that was originally at this location (he shows on the easel) moved which is where her and her husband currently reside. Her mother lived in this house at the same time that the great grandfather and mother lived in this house (he points it out). In approximately 1912, the main house was built and in approximately the late 1920’s or early 1930’s a structure was built here which consisted of stables, a garage, a kitchen, laundry facilities and bedrooms for what was then the help associated with the main house. In the early 1950’s this structure was renovated and expanded and at that time became a winter house for the McElvey’s who purchased the main house from the Taggart’s. As a result what he believes that this affidavit shows in conjunction with plan 4223-B is that the original property had a driveway that came through and is actually depicted on this plan and shows where it was moved. He indicates that this information related to the 81L in conformance with two dated, the adoption of zoning of in Barnstable in 1949 and the second structure was used for residential uses prior to 1949 and in 1962 when the subdivision control law and they meet it prior to the subdivision control law. Attorney Butler indicates that there is a Land Court case by Judge Twombly that supports the proposition that the creation of an endorsement of a plan like this by the Planning Board does not require any zoning relief to make those pre-existing, legally nonconforming uses even if the structures and the lot don’t meet current zoning requirements. However, there is also a question about that and there has never been a definitive appellate decision, so practitioners and as a Board they have had a practice to have applicants come here to seek a variance, record it with the plan and in essence legitimize which is a safety valve to ensure that everyone is clear that these are creating two legitimate lots and two legitimate uses. Attorney Butler indicates that their argument from the standpoint of the lot itself is that the original entire lot is irregular in shape and that there are a couple of aspects of topography and soil conditions that would be applicable. Additionally, he indicates that the structures are unique as there are two structures and two septic systems. He indicates that the hardship is that the statue allows them to do this subdivision and the hardship would be any lack of clarity in the title moving forward. Also, there is no detriment to the neighborhood as these lots as well as the beach lots end up being substantially larger than ones in the Hyannisport area. He would note that Lot A


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entirely conforms to all of the zoning requirements and believes that it meets the criteria for a variance. James Hatfield asks if they are proposing to sell the properties. Attorney Butler indicates they intend to put it in a trust and is anticipated in the near term and long term that it will remain in the family and there has been no discussion of sale other than intrafamily. Gail Nightingale asks if the two blue lots (as shown on the easel) on the harbor will stay in ownership with the other yellow lot. Attorney Butler indicates that the intention is that either the two blue lots will remain in fee title with the yellow lot and then the green lot will be given an easement across to the northerly lot perhaps only. The other possibility is that when this is put into trust that may be put into trust and there are going to have cross easements between the two properties and at the very most one lot stays with one house for the sole purposes of beach access. John Norman asks if, when created, would they need a driveway easement. Attorney Butler indicates yes and the green lot will grant an easement to the yellow lot to cross and does not object to a condition about that but that they would come back to the Zoning Board if need be. He shows the 1927 pier photograph which no longer exists and the reason that is relevant it shows the actual structure shown on the Land Court plan. Jerry Gilmore indicates that he is reluctant to create unbuildable lots on the water and asks what would be his feeling regarding this. Attorney Butler indicates that they currently have two abatement appeals before the appellant tax board relating to these properties but generally speaking he believes that because they will be tied in as nonbuildable and solely related to these houses he believes that once completed and recorded the assessors will create separate assessing parcels for all four and believes that there will be an analysis done if they ever put in an easement of record whereby the green lot gets the smaller beach lot they will be assessed together and therefore the green lot’s value will go up as they will have sole use to the beach lot. James Hatfield asks Attorney Butler why he is separating the beach lots. Attorney Butler indicates that if 40 years from now the Wilson’s children continue to own the yellow lot but they sell the green lot to another family it would be for the purpose of allowing the green lot to have limited access of the beach while the Wilson’s children will have exclusive use to the larger beach area. This would give in fee ownership of that northerly beach lot to the green house. . Gail Nightingale asks if there is anyone her to speak either in favor or in opposition. No one speaks. James Hatfield does findings.

The petitioners are John B. and Leslie Q. Wilson, Trustees of The 155 Irving Avenue Realty Trust, have applied for a Variance to Section 240-13.E, Bulk Regulations, Minimum Lot Area, Minimum Side & Rear Yard Setbacks and Section 240-7.D, Lot Shape Factor Residential Districts.


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The variances are being requested for the proposed division of a 3.02 acre lot upon which two dwellings now exist. The resulting division separates the existing dwelling so that each is on its own lot shown as Lots A & B and will create two additional non-buildable lots shown as Lots C & D on a plan submitted.

The proposed Lot B; is to be 0.57 acres and does not meet the one acre minimum lot area requirement, the shape factor is 25.1 and exceeds the maximum lot shape factor of 22 and the existing dwelling is located 6 feet off the side and 7 feet off the back property line where 15-foot setbacks are required. The proposed Lot A has two existing sheds located 3-feet and 5-feet off the side and rear property line where 15-foot setbacks are required. The plan notes that proposed Lots C & D are created for “conveyancing purposes and are not separate building lots.”

The subject property is a 3.02 acre lot fronting on Irving Avenue in Hyannisport. The lot borders on Hyannis Harbor and a part of the lot is an open beach area. The property is developed with two single-family detached dwellings and an in-ground pool. Land division for this lot dates to 1912. The lot, as configured today, was created in 1977 by Land Court Plan 4223-I.

The property is located in the Hyannis Port National Historic District and abuts the “Kennedy Compound” to the north. The main dwelling is known as the “Taggart House” after the original builder/owner, Indiana Senator Thomas Taggart. The dwelling dates to 1914.

The applicant is seeking to divide the lot upon which two dwellings exist into four new lots via MGL Chapter 41, Section 81L. That section allows for an ‘Approval Not Required (ANR) Plan’ division of land upon which buildings existed prior to the adoption of subdivision control law in the Town of Barnstable which is 1962.1

A draft ANR Plan has been submitted with the application. That plan shows the proposed division of the lot into four new lots.

Lots A and B are the new lots to be occupied by one of the existing dwellings. Those lots, or the structures located on them, do not fully conform to current zoning requirements and variance relief is sought. The two other new lots, Lots C & D on the plan, are to be considered un-buildable lots. The two non-buildable lots are cited as being “created for conveyancing purposes and are not separate building lots and primarily for the purposes of granting beach access to the beach and main house. While most of the proposed Lot A and B have a land elevation above 10-feet, much of Lots C & D have a land elevation of only 4 to 6 feet.

Most of Lots C & D appear to be beach area; therefore, would constitute wetland under the definition in zoning. Most of that land area also appears to have been created through natural beach accretion or fill. This fact is supported by the Land Court Plans filed over the years from 1912 to 1977 (see select Land Court Plan 4223-A to I

1 Article 52 adopted at Town Meeting March 6, 1962 Established the Planning Board and adopted subdivision control in the Town of Barnstable as provided for under MGL Chapter 41 Section 81A


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The two dwellings were built and occupied prior to zoning in Barnstable and are therefore pre-existing and nonconforming.

The main dwelling has been tagged to a 1914 construction and predates both the 1929 adoption of zoning for land use2 as well as the 1949 adoption of Hyannisport Zoning3 that included bulk regulations and the limitation of one single-family dwelling per lot.

According to the Assessor’s record, the second dwelling was built in 1955. According to a 1936 Land Court Plan 4223-C, some building did exist in that area where the second dwelling is now located. That building however may have only been used at that time as an accessory garage. It appears the use of the structure as a dwelling may not have occurred until sometime between 1945 and 1955. However, based on the affidavits received tonight and the photograph you can see basically that the second dwelling was there prior to 1949.

Owing to the circumstances relating to the shape of this lot, it is irregularly shaped, it slopes, and it is a large lot for the area, that such land or structures and especially affecting such land or structures but not affecting generally the zoning district of and meets one of the variance requirements.

A literal enforcement of the provisions of the Zoning Ordinance would involve a financial hardship if they weren’t able to subdivide this lot.

Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the Zoning Ordinance.


No discussion. Vote: AYE: Jerry Gilmore, John Norman, Sheila Geiler, James Hatfield, Gail Nightingale NAY: None

Based upon the positive unanimous findings, motion is made to grant the relief being sought with the following conditions:

1. Division of the land shall be as per plans submitted and referenced above. An Approval Not Required Plan reflective of that plan and referencing this variance shall be prepared by the applicant and submitted to the Planning Board for endorsement.

2. Lots A and B shall only be utilized for single family use in accordance with zoning.

3. The yard setback variances are applicable only to that area of the building that now infringes. Any future expansion of those buildings in terms of yard setback shall conform to that allowed in the Ordinances in Section 240-92, for the alteration/expansion of nonconforming buildings or structures used as single-family residences.

2 Article 7 adopted by Town Meeting June 14, 1929 Original Barnstable Zoning By-Law 3 Article 74 adopted by Town Meeting March 7 1949 Hyannisport Zoning


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4. The yard setback variances are granted based upon the existing structures located on the property. Should the existing structure be demolished or removed, the applicable yard setback variances granted herein shall expire.

5. Lots C and D are to be accessory lots to the house lots, Lots A and B. Lots C and D are not buildable lots nor independently developable lots. They shall not be sold or deeded into separate ownership from that of Lot A and/or Lot B. Lots C and D shall only be conveyed and transferred along with and as a part of one of the house lots shown on the plan unless they are being conveyed for conservation or public purposes.

6. Access to the four lots shall only be from a single driveway on Irving Avenue.

7. Both the Approval Not Required Plan and this variance shall be recorded at the Barnstable Registry of Deeds, Land Court Division. Proof of the recording shall be submitted to the office of the Zoning Board of Appeals for this relief to be in effect.

8. If the variance and Approval Not Required Plan have not been recorded at the Barnstable Registry of Deeds within one year from the date of issuance of this variance, this variance shall expire.


Gail Nightingale suggests that Jim read what they are granting. James Hatfield amends as follows:

Lot A

Lot A being granted a Bulk Variance to Section 240-13.E, Minimum Side and Rear Yard Setbacks of 15 feet to allow an accessory shed located 3-feet off the side property line and an existing pool shed located 5-feet off the rear property line to remain.

Lot B

Lot B being granted a Bulk Variance to Section 240-13.E, Minimum Lot Area and Section 240-7.D Lot Shape Factor to allow the 0.57-acre lot with a shape factor of 25.1 to stand alone and legal under zoning and Bulk Variance to Section 240-13.E Minimum Side and Rear Yard Setback of 15 feet to allow the existing dwelling to remain 6 feet off the side property line and 7 feet off the rear property line.

Jerry Gilmore seconds the amendments.

Vote: AYE: Jerry Gilmore, John Norman, Sheila Geiler, James Hatfield, Gail Nightingale NAY: None



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Gail Nightingale then reads the Cardarelli appeals into the record.

Appeal 2008-029 to 034 Cardarelli

These appeals all moved to this hearing from the May 21st meeting.

Review of this proposed improvements and redevelopment has been transferred to the Growth Management Department staff at 367 Main Street. A June 9th meeting with Attorney Mark Boudreau was held. Staff anticipates a request for a continuance will be made.

Appeal 2008–034 Cardarelli

Bulk Variance to Reconfiguration Lots John F. Cardarelli has applied for a Variance to Section 240-25.E, Bulk Regulations, minimum front yard setback. The variance is sought in conjunction with a reconfiguration of the subject lots in order to allow the existing nonconforming building addressed as 644 West Main Street, Hyannis MA to remain situated 53.7 feet off West Main Street when zoning requires a 60-foot front yard setback. The subject property is shown as “Lot A” on plans submitted. That lot being a part of the reconfiguration of property addressed as 644 West Main Street, 626 West Main Street and 29 Dunn’s Pond Road, Hyannis MA and is shown on Assessor’s Map 249 as parcels 133, 095 and 132. The property is zoned Highway Business and Residence B Zoning. Appeal 2008–030 Cardarelli

Conditional Use Special Permit – Restaurant John F. Cardarelli has petitioned for a Conditional Use Special Permit pursuant to Section 240-25.C of the Zoning Ordinance. The petitioner seeks the permit to allow for the operation of the existing restaurant and existing apartments located above. It is to include accessory retail sales as related to the restaurant business. The permit is for the existing building addressed as 644 West Main Street, Hyannis MA situated on the reconfigured “Lot A” shown on plans submitted. That lot being a part of the reconfiguration of property addressed as 644 West Main Street, 626 West Main Street and 29 Dunn’s Pond Road, Hyannis MA and is shown on Assessor’s Map 249 as parcels 133, 095 and 132. The property is zoned Highway Business and Residence B Zoning. Appeal 2008–031 Cardarelli

Conditional Use Special Permit – Retail Sales Seafood

John F. Cardarelli has petitioned for a Conditional Use Special Permit pursuant to Section 240-25.C of the Zoning Ordinance. The petitioner seeks the permit to allow for the redevelopment of “Lot B” shown on the plan submitted with a 7,103 sq.ft., building to be used as wholesale and retail sales of seafood, including accessory office space for the business. Lot B is a part of the reconfiguration of property addressed as 644 West Main Street, 626 West Main Street and 29 Dunn’s Pond Road, Hyannis MA and is shown on Assessor’s Map 249 as parcels 133, 095 and 132. The property is zoned Highway Business and Residence B Zoning.


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Appeal 2008–029 Cardarelli

Permit Preexisting Structural Nonconformity Lot A

John F. Cardarelli has petitioned for a Special Permit pursuant to Section 240-93.B of the Zoning Ordinance for the alterations or expansions in a pre-existing nonconforming building or structure. The petitioner seeks the permit to allow for the existing restaurant on a proposed “Lot A” and the redevelopment on proposed “Lot B” as shown on a plan submitted. The permit is sought for the accessory site improvements of parking and landscaping. The proposed improvements do not conform to the specific requirements of zoning but are no more nonconforming that the existing site conditions. They include front yard landscaping and parking requirements, and lot coverage for Lot A. The lots are a reconfiguration of property addressed as 644 West Main Street, 626 West Main Street and 29 Dunn’s Pond Road, Hyannis MA and is shown on Assessor’s Map 249 as parcels 133, 095 and 132. The property is zoned Highway Business, Residence B Zoning and is located in a Groundwater Protection Overlay District. Appeal 2008–032 Cardarelli

Permit Preexisting Structural Nonconformity Lot B

John F. Cardarelli has petitioned for a Special Permit pursuant to Section 240-93.B of the Zoning Ordinance for the alterations or expansions in a preexisting nonconforming building or structure. The petitioner seeks the permit to allow for the proposed redevelopment on a proposed “Lot B” shown on a plan submitted. The permit is sought for allow the development of the 7,103 sq.ft., building to be located 31.2 off Dunn’s Pond Road. The location being an expansion of the nonconformity of the existing building located on the property. The lot is a reconfiguration of property addressed as 644 West Main Street, 626 West Main Street and 29 Dunn’s Pond Road, Hyannis MA and is shown on Assessor’s Map 249 as parcels 133, 095 and 132. The property is zoned Highway Business, Residence B Zoning. Appeal 2008–033 Cardarelli

Bulk Variance Minimum Front Yard John F. Cardarelli has applied for a Variance to Section 240-25.E, Bulk Regulations, Minimum Front Yard setback. The variance is sought in the alternative to the above petition for a special permit to allow for the 7,103 sq.ft. building to be located on the proposed ‘Lot B’ 31.2 feet off Dunn’s Pond Road when the zoning requires a minimum front yard setback of 60 feet. The lot is a reconfiguration of property addressed as 644 West Main Street, 626 West Main Street and 29 Dunn’s Pond Road, Hyannis MA and is shown on Assessor’s Map 249 as parcels 133, 095 and 132. The property is zoned Highway Business, Residence B Zoning. Gail Nightingale indicates that she will not assign any members tonight. Attorney Mark Boudreau, who is representing the applicant, indicates that the reason why he is asking for a continuance is that he had brought some plans in which was approved by Site Plan Review in December but approximately 3 weeks ago he received a call from the Growth Management Department. He indicates that Growth Management reviewed the plans and submitted their input on how this


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should be developed. Therefore, Attorney Boudreau would also be asking for another variance and some changes. Gail Nightingale asks if he would then need to go back to Site Plan Review. Art Traczyk indicates that he believes that he should. Jerry Gilmore inquires as to what in particular needs to be addressed. Art Traczyk indicates that the functioning of the lots along with the landscaping was a suggestion as well as refinement of the development.

Continued to July 9, 2008 at 8:00 PM

Gail Nightingale then calls the Crocker appeal and reads it into the record. Appeal 2008–036 Estate of Charles F. Crocker, Jr. Appeal Issuance of Building Permit at 68 Pilots Way

This appeal moved to this hearing from May 21st meeting.

A May 21, 2008 letter from Attorneys Sarah A. Turano- Flores and Albert J. Schulz has requested that this appeal be continued to August 6, 2008. Time extension is signed. Materials previously submitted to Members.

Priscilla Dreier as Executrix of the Estate of Charles F. Crocker, Jr., has appealed the issuance of a building permit to develop a single-family dwelling at 68 Pilots Way, Barnstable, MA. The subject property is a 2.13 acre lot owned by Katie E. Gruner. It is shown on Assessor’s Map 237 as parcel 007-001. The property is in a Residence F Zoning District. Gail Nightingale indicates that there will be no members assigned as the applicant’s representative has asked for a continuance. Continued to August 6, 2008 at 7:00 PM

Minutes approved for March 26th and May21st. Motion to adjourn Seconded Meeting adjourned.


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Draft Minutes October 1, 2008

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday, October 1, 2008 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was not met. Also present were Art Traczyk – Principal Planner and Carol Puckett – Administrative Assistant.

Laura Shufelt Present James McGillen Present Craig Larson Present William Newton Present Michael Hersey Present Alex Rodolakis Present Nikolas Atsalis Present Brian Florence Present

Laura Shufelt opens the hearing at 7:05 PM. She reads a summary of the appeals into the record. She then calls the Tonero d/b/a Whiskers appeal into the record. Members assigned: Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt Attorney John Norton is representing the applicant, Holly Tonero who is also present. He gives a brief summary of their request. He indicates that there will be no overnight boarding of dogs and that dogs will only be groomed, bathed and that there will be a small retail area. James McGillen asks if he is aware of the proposed conditions. Attorney Norton is handed a copy and reads them over and indicates that he has a letter from the condominium association and that it would satisfy one of the conditions.

William Newton asks what the cubbies are for. Ms. Tonero indicates that it is for their collars and leashes when they are dropped off in the morning. Ms. Tonero indicates that the maximum number is 60 including dogs to be groomed and that there will be approximately 50 dogs in the doggy day care area. William Newton asks about noise control. Ms Tonero indicates that the building itself is separated by concrete blocks and will put in a baffled ceiling. There will be an epoxy rubber floor in some areas and a different type flooring to cut down on the noise and she will take every step possible to keep the noise down. William Newton asks if the feedback from neighbors has been good. Ms. Tonero indicates that she has met with them and has addressed their concerns too. William Newton asks Art Traczyk if there is a standard for how many dogs. Art indicates that there is no standard under zoning but might be under the Board of Health and will need a kennel license and is where that gets controlled. Attorney Norton indicates that he believes Ms. Tonero has met with almost all of the neighbors and has addressed their concerns. He submits a letter from an abutter. Craig Larson asks if the business is owned by her. Ms Tonero indicates that her existing building is being taken by the airport and that she needs to move. Brian Florence asks how many employees. Ms Tonero indicates herself, 3 full-time groomers and an office manager. She will be hiring more employees so that she has one attendant for every 10 dogs. Laura Shufelt asks if there is anyone here from the public that would like to speak Connie Bacon speaks and owns two of the other units in the same building. She has gone over Ms. Tonero’s plan and it seems that it will work very well. Jim Burkin, the owner of the building, indicates that he had visited all the neighbors. He indicates that he had spoken with Adco Tool who had visited Ms. Tonero’s business and was pleased. Laura Shufelt asks about hours of operation. Ms Tonero indicates that it will be from 7:00 AM to 6:00 PM, Monday through Friday and on Saturday from 8:00 AM to 5:00 PM and closed on Sunday except for private dog parties. Laura asks that if they changed it the hours to not earlier than 6:00 AM and no later than 8:00 PM would they be able to live with it. Ms. Tonero agrees. James McGillen makes positive findings.

1. Holly S. Tonero, d/b/a. Whiskers Pet Grooming has requested a Special Permit pursuant to Section 240-33.C (1) Conditional Uses for a Kennel. The petitioner is seeking to operate a dog grooming and doggy care business in Units 6 & 7 at 30 Perseverance Way, Barnstable, MA. The subject property is addressed 30 Perseverance Way, Barnstable, MA, and is shown on Assessor’s Map 295 as parcel 007 units 00Fand 00G. It is in the IND Industrial Zoning District.

2. The application falls within a category specifically accepted in the ordinance for the grant of special permit.

3. A site plan for the proposal has been reviewed by the Site Plan Review Committee and found approvable on July 28, 2008, subject only to the issuance of a Special Permit.

4. After evaluation of the evidence presented, and abutter testimony favoring the grant of the proposal, to grant this special permit fulfills the spirit and intent of the Zoning Ordinance and would not represent a substantial detriment to the public good or the neighborhood affected

Seconded. Vote: AYE: Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt NAY: None Motion is made to grant to the petitioner a special permit pursuant to 240-33(c)1 addressed as 30 Perseverance Way, Barnstable, MA

This permit is issued to Holly S. Tonero, d.b.a. Whiskers Pet Grooming to allow for the improvements and use of Units Nos. 6 and 7 and approximately 3,000 sq.ft., of the lot area at 30 Perseverance Way, Barnstable, MA for a dog grooming and dog daycare facility, subject to the following conditions and restrictions.

1. Improvements specified on the site plan entitled “Plot Plan of Land Located at 30 Perseverance Way, Hyannis, MA prepared for Jim Burke Properties, LLC” by Yankee Land Survey Co., Inc., dated July 17, 2008, and “as approved by the Site Plan Review Committee, shall be made prior to any occupancy permit issued for the use of the units.

2. A letter from the Liberty Building Condominium Association agreeing to the proposed use of the units for dog daycare and grooming of domesticated animals shall be submitted to the file within 14 days of the issuance of this permit and prior to any building permit being issued in reliance upon this permit.

3. Retails sales from the units shall be limited to not exceed 25% of the entire floor area of the units. Retails sales shall not include any live animals that are housed on the property.

4. The hours of operation shall be not earlier than. 6:00 AM and no later than 8:00 PM. No animals shall be kept overnight at this site. The applicant shall also be responsible for establishing and maintaining some agreement with an overnight kennel for in the event that an animal may not be picked up due to unforeseen circumstances of the owner.

5. The applicant shall be responsible for maintaining the premises in a clean, orderly, peaceful and odorless manner at all times.

6. The applicant shall be responsible for securing all necessary licenses and/or permits to operate within the Town of Barnstable.

Note that Condition #4 is amended to 6:00 AM and no later than 8:00 PM. Seconded. Vote: AYE: Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt NAY: None

GRANTED WITH CONDITIONS Laura Shufelt then calls the Merlesena Corporation and reads it into the record.

Members Assigned: Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt Attorney Peter Freeman is representing the applicant, Mr. Merlesena and hands out pictures of the site to the Board Members. He indicates that he agrees with the staff report that Art Traczyk has written. He gives a history of the parcel. He indicates that his client would like a rental apartment instead of the restaurant and the reason there is two, he thinks it might be possible to modify the existing variance but that Art Traczyk felt that they request variances to 240-21(a) 9 for the additional footage requirements of the apartment. He summarizes how the conditions will be met in reference to the variance request. He indicates that the only condition that he would like to comment on and ask them not to do is the circular driveway that was part of the drive-through and Art Traczyk suggested that a condition be placed that the driveway at one of the entrances would either be blocked off or eliminated and doesn’t think it is a good idea. Also, in the future, if to be converted they might want the drive around and if the Board feels that there should be no drive around they ask that they not have to break up the asphalt but add a split rail fence to block off one of the entrance ways. James McGillen asks about the variance findings and wants to take a brief recess in order to verify or modify conditions. Attorney Freeman hands in his memo to the file. Laura Shufelt calls a 5 minute recess to discuss. Hearing back in session. Art Traczyk indicates that it was his understanding for granting this and perhaps that they could come back, surrender the variance and do an as-of-right under the B district which is a liberal district. He comments that is one of the most business oriented district and it is a very small lot. Art indicates that they don’t need both but can issue one or the other. William Newton comments he has a problem with the small lot and with it being a residence in a commercial area. Attorney Freeman indicates that the area is zoned residential and they are not seeking a use that is prohibited and that the structure was a single family residence. He indicates that they don’t have a problem with an occupancy limit. It is a mixed use area. He indicates that it has plenty of parking spaces and that the intensity is less than what was there. James McGillen indicates that the impact will be less and wants to make sure that the conditions of the variance do not have an impact. Laura Shufelt asks if there is anyone her from the public here who would like to speak either in favor or in opposition. No one speaks. Michael Hersey asks Attorney Freeman to clarify the parking arrangements. Attorney Freeman indicates that the original plan with Pinky’s had 2 designated spaces and that Mr. Merlesena indicates that there are 3. William Newton asks if there is a separate outside entrance to the second unit. Attorney Freeman indicates yes. Attorney Freeman reiterates that they would again not like to close off the entrance of the circular drive. Michael Hersey indicates that, in his opinion, he would like to put a limit on the number of cars. Attorney Freeman asks Mr. Merlesena if he would object to limiting it to 3 cars. Mr. Merlesena indicates that the upstairs

tenant is parking to the left of the building where the drive-through starts; the downstairs unit which might have a couple of people in front of the tree is 3 and one for the drive-around. Craig Larson clarifies that Mr. Merlesena owns the warehouse next door and that there is plenty of parking there. Brian Florence comments that a restriction on that puts the tenants in a possible situation if they had guests over that they would be in defiance of the condition if they limited it but that they could indicate permanent or resident parking that they could limit them similar to that language. Brian also comments that he believes that the intensity would be less and for practical purposes that restricting the circular driveway might be a detriment. Craig Larson comments that they are at the 50 % lot coverage and asks if they eliminated the driveway would they have more unused lot? James McGillen does the findings:

1. Appeal No. 2008–059 is that of Merlesena Realty Corporation seeking to modify Variance No. 2005-008 issued to Michael and Jayne Croteau for property addressed 146 Rosary Lane, Hyannis, MA. The applicant is seeking a modification of that variance to permit the lower level of the building, which had been used as a take-out fast food service, to be converted to an apartment use thereby creating only two apartments in the building consisting of a studio and a one-bedroom unit. The subject property is shown on Assessor’s Map 345 as parcel 017. It is in a Business B Zoning District.

2. The applicant is proposing the reuse of the existing building and has not proposed any expansion. All alteration to the building will be interior only. The use of the property will rely upon that existing structure and its location on the lot as a legal pre-existing nonconformity. The proposed conversion of the property of the building to two, one bedroom apartments with conditions on the number or occupants is viewed as a less intense use of the property than that of a drive-thru food service establishment. The requirement of the additional 5000 square foot per unit is varied because of these findings.

Vote: AYE: Craig Larson, Michael Hersey, James McGillen, Laura Shufelt NAY: William Newton

Motion to grant: If the Board should find to grant the variance to the provisions of Section 240-21.A(9) Multi-family Dwellings (Apartments) more specifically to: provisions; (a) - minimum lot area ratio of 5,000 sq. ft. of lot area per each apartment unit, (d) - minimum front yard setback, (e) - minimum rear yard setbacks; and (f) - perimeter green space, it may wish to consider the following conditions:

1. This variance is granted to permit the use of the existing structure located at 146 Rosary Lane, Hyannis, MA for two, one-bedroom apartment units only. The upper apartment shall be laid out as a studio unit and the first floor unit as a one-bedroom as per layout plans submitted to the Board. A copy of which is contained in the file.

2. There shall be no expansion of the structure in footprint or in total area. The building shall remain as it is today.

3. Occupancy of the studio units shall not exceed one person. Occupancy of the one-bedroom shall not exceed two people

4. Development of the apartment units shall be required to meet all Building Division and Fire Department requirements and conform to all Board of Health Title V requirements.

Seconded.


GRANTED WITH CONDITIONS Attorney Freeman requests to withdraw without prejudice the application for a variance standing on its own. James McGillen makes the motion. Seconded. Vote: AYE: Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt NAY: None WITHDRAWN WITHOUT PREJUDICE . Laura Shufelt then reads the Mueller appeal into the record. Amy L. and Carl E. Mueller & Paramount Enterprises Inc., have appealed the Building Division’s issuance of an April 14, 2008 notice of zoning violation and order to cease and desist the operating of a landscape business in a residential zone. The notice cites that the use of the property is contrary to the permitted single-family use allowed under Section 240-11 of the Zoning Ordinance. The property is addressed as 22 Suomi Road Hyannis, MA and is shown on Assessor’s Map 269 as parcel 102. The property is in a Residence B Zoning District. Colleen Kramer is representing the applicant. She indicates that they had done further research but have decided to request to withdraw without prejudice and work with the Building Commissioner to find a solution to this as there was a defect in the original notice from the Building Division. Members assigned: William Newton, James McGillen, Laura Shufelt, Alex Rodolakis, Michael Hersey. Motion is made to withdraw without prejudice. Seconded. Vote: AYE: William Newton, James McGillen, Laura Shufelt, Alex Rodolakis, Michael Hersey NAY: None

WITHDRAWN WITHOUT PREJUDICE Laura Shufelt then calls the Ellis appeal and reads it into the record.

Susan W. Ellis has applied for a Use Variance. The applicant is seeking a variance from Section 240-11.A, Principal Permitted Uses, to allow for a second detached dwelling unit on the lot where zoning only allows one single-family dwelling unit per lot. The second dwelling is a former family apartment created within a detached accessory garage/barn structure located on the lot. The subject property is shown on Assessor’s Map 208 as parcel 121, addressed as 393 Main Street, Centerville, MA. The property is in a Residence D-1 Zoning District and a Resource Protection Overlay District. Laura Shufelt reads a letter from Attorney Patrick Butler requesting a continuance. Motion is made to continue this appeal to October 15, 2008 at 8:00 PM. Seconded. Vote: AYE: Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt AYE: None

Continued to October 15, 2008 at 8:00 PM Laura Shufelt calls a 5 minute break. Hearing is called back in session. Laura Shufelt then calls the H. Jon Gordon appeal and reads it into the record.

H. Jon Gordon, as Trustee of the 52 Stevens Street Trust has applied for a Use Variance to Section 240-11.A, Principal Permitted Uses. The applicant is seeking to develop a second residence on a lot zoned only for single family use. The second unit is to be developed within the second floor of an existing detached garage. The subject property is addressed 52 Stevens Street, Hyannis, MA, and is shown on Assessor’s Map 309 as parcel 165. It is in a Residence B Zoning Districts. Attorney Freeman is representing the applicant. Brian Florence recuses himself. Members Assigned: Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt Attorney Freeman hands out photos to the Board members regarding the property. He indicates that technically and legally it is a use variance and understands the concern. He gives a history and indicates that the upstairs of this garage is a 2 bedroom apartment. They spoke informally with the housing committee and would do it restricted as an affordable unit. They met with planning staff informally and the consensus of the Town is that they need rental apartments. The most distinguishing factor but this site which was combined with the abutting site which Mr. Gordon owns was a recipient of a comprehensive permit which has lapsed. He indicates that they could go back for another comprehensive permit and withdraw without prejudice if they couldn’t get a use variance. William Newton indicates that he has a real issue with use variances and indicates that the affordable housing program would be the better way to go.

Michael Hersey indicates that he would disagree that the 40B is a better way to go in the sense that where they would put the 10 units and thinks it would be a detriment to the neighborhood and asks Attorney Freeman if they looked at the amnesty apartment program. Attorney Freeman indicates that requirements of the amnesty apartment program was that the owner of the premises be an occupant and it might happen but did not apply because Mr. Gordon owns the property next door and may live in that property but didn’t want to do anything that was not going to happen with certainty. He indicates that before the comprehensive permit the apartment shouldn’t have been there and that was the one that he would acknowledges egregious mistake that there shouldn’t have been an apartment there was a permit for a garage which was why there was a stop work order and believes that the previous Zoning Board of Appeals’ denial of the application for the family apartment was a punishment fast on the heels of the stop work order. James McGillen indicates that he would be in opposition to any use variances in a residential district Attorney Freeman indicates that the would like to withdraw without prejudice Motion is made to withdraw without prejudice. Seconded. Vote: AYE: Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt NAY: None

WITHDRAWN WITHOUT PREJUDICE Laura Shufelt then calls another recess. Hearing is called back in session.

Laura Shufelt then calls the Cotuit Equitable Housing appeal and indicates that all the regular members are assigned as was previously and also present were Nik Atsalis and Alex Rodalakis. She reads the appeal into the record:

Cotuit Equitable Housing, LLC has requested a Modification of Comprehensive Permit No. 2005-082 issued for the development of 124 single-family dwellings on 50.44 acres. The subject property was formerly addressed as 9999 Falmouth Road (Route 28), Cotuit, MA and shown on Assessor's Map 002 as parcel 002. That parcel has recently been subdivided as per plan approved by the Board and the area now addressed as 0 to 59 Dovetail Lane, 0 to 351 Pheasant Hill Circle, 16 to 71 Spring Brook Lane, 6 to 86 Osprey Drive, and 0 to 33 Eagle Lane, Cotuit, MA. The applicant has requested a modification of the comprehensive permit to allow for an alternative permit phasing schedule of market rate units to affordable rate units, changes in house designs and in location of the affordable units, and an extension of the time frame for design and permit request for the signalization at Route 28 and Noisy Hole Road. Attorney John Kenny is representing the applicant. Brian Dacey, the owner of Bayside Building Company, is also present. He indicates that he had submitted to staff a revised site plan with the requested affordable lots highlighted in yellow. He indicates that they have broken up the affordable lots from the last time and spread them out pretty evenly throughout the subdivision. .

William Newton comments that it is an improvement and is still looking at the wastewater management area and wonders if they can move at least one more unit around the 44/45/46 area. Brian Dacey indicates that two years ago the original lots 71 and 73 were not affordable lots and currently have sold and indicates that on the plans the lots which are marked “S” are sold. William Newton suggests moving at least one unit from the 44/45/46 to around the 70 or 72 lot area. Brian Dacey indicates that the distribution is good and that the market has been difficult and would choose not to move those lots. The Board discusses affordable lot placement. William Newton indicates that he would like to move 36, 50 or 49 to Osprey or Eagle.Drive. Brian Dacey indicates they have designed a state of the art septic system and one of the most efficient systems possibly in the state. He indicates that they will be built with high standards of quality. He indicates that he has also put up a fence between lots 37 and 38 along with a barrier for plantings. He also wants to reserve the right, if possible, to perhaps change lot 36, 49 or 50 for market sales. Nik Atsalis asks about lot 37 and thinks the plan looks good as it is. Brian Florence comments that it seems to be placed very well. Michael Hersey indicates that the wastewater placement and system doesn’t concern him. William Newton suggests moving lot #50 to 66. Attorney Kenney indicates that financial conditions have affected some of their previous lot designations and have been fair in dispersing the lots. Brian Dacey indicates that you do not want to distinguish between the affordables and the market rate and would entertain affordable plans. . Laura Shufelt indicates that she thinks they did a great job but would like to move lot #50. Mr. Dacey is agreeable to moving lot 50 to 64. Laura Shufelt clarifies the affordable styles and asks which style would be on lot 37. . Brian Dacey indicates that it will be the Pheasant style on lot 37. Attorney Kenney indicates that before they were concerned about the 1.5 bathrooms and that have gone to 2 bathrooms and have withdrawn the previous Colonial plan and submitted will submit a new one. Laura Shufelt asks if there is a standard to for a change to be administratively approved. Art indicates that he had past authority to do administrative approval for simple and dimensional changes. If drastic, he would bring it back to the Board’s attention. Brian Dacey indicates that they would like to reserve the right to come back with maybe a solar panel house. Laura Shufelt asks about the 2 bedroom Herring Run style in the market type and asks if there is a need for that.

Brian Dacey indicates that they are building for single people also. Attorney Kenney asks about the suggested Condition #4 and asks to leave the choice of the mix of affordables to them. Art indicates that he didn’t want to see one style. Brian Dacey indicates that he would prefer to go with 6 Pheasant style, 4 Bayside Capes and 3 Hummocks William Newton asks if the affordable family would be able to choose. Brian Dacey indicates that he is not sure as of yet as he will attend an informational meeting with housing. James McGillen makes findings:

1. This modification This is a modification to change the design of the affordable and non-affordable units and the location of those units

2. The requests are not inconsiderable intent or designed of the initial comprehensive permit and does not result in any drastic change or substantial change to the number of units or the location of these units.

Vote:

AYE: Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt

NAY: None

James McGillen makes a motion is made to grant that part of Pat 2 of the request for Comprehensive Permit 2005-082 as it relates to a change in the design of affordable units (he wants to add “all units” as he feels there are changes to all units). and the location of those units within Phase 1. The first 52 units in the development subject to the following conditions:

1. The 13 affordable dwellings required in Phase 1 of the development shall be located on that lots identified on the subdivision plan as Lot Numbers 24, 27, 31, 36, 37, 43, 49, 52, 54, 57, 61, 68 within the subdivision shall be developed with affordable dwellings. The initial plan filed also showed lot 50 as an affordable unit and the petitioner agrees to substitute lot 64. .

2. The affordable units to be developed shall be of three building styles as per plans submitted to the Board’s office on September 25, 2008. Those affordable units are identified as;

a. “The Pheasant”, a 1.5 story Cape style three- bedroom, two-bath dwelling of 1,398 sq.ft. plus a one-car attached garage.

b. “The Bayside”, a 2 story Cape style three bedroom, two bath dwelling of 1,540 sq.ft. plus a one-car attached garage.

c. “The Hummock” a 1 story, three-bedroom, two-bath dwelling of 1,270 sq.ft. plus a one-car attached garage.

3. The three styles of affordable units shall also be made available as market rate dwellings.

4. To assure that a mixture of affordable type units are created in the development the building permits issued for the affordable units shall also follow a sequence of the Pheasant first followed by the Bayside and then the Hummock style. Art indicates that they wanted it alternated to a mixture of development being 6 Pheasant, 4 Bayside and 3 Hummocks but understands that those numbers are to be just a guideline. Laura Shufelt suggests saying that it should be worded to be that the affordable units will be a mixture of the 3 styles. James McGillen accepts and indicates that it will be the mixture of the 3 styles.

5. All other conditions of Comprehensive Permit No. 2005-082, originally issued on May 2, 2006, and/or modified prior to the modification, shall remain in full effect and force except as modified herein.

Vote: Aye: William H. Newton, Michael P. Hersey, Craig G. Larson, James F. McGillen, Laura F. Shufelt Nay: None

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Modification Granted With Conditions Laura Shufelt discusses matters with the Board. She indicates that there was an agenda from the Cape Cod Commission coming up regarding a notification of withdrawal of 131 Oceanview Avenue, Cotuit, MA. Also, Laura indicates that staff sent a letter to Mr. Scott Chad returning materials that were submitted to the ZBA office and has the letter available for any members who wish to read it. Brian Florence indicates that he has information from the Citizen’s Planner brochure and will email to everyone. Laura Shufelt asks the members to look over the tentative schedule for next year and send any comments to staff. Motion to adjourn Seconded. Adjourned at 9:20 PM.

Town of Barnstable

Zoning Board of Appeals Draft Minutes

November 19, 2008

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday, November 19, 2008 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was not met. Also present were Art Traczyk – Principal Planner and Carol Puckett – Administrative Assistant. Laura Shufelt Present James McGillen Absent Michael Hersey Present Craig Larson Present William Newton Present Alex Rodolakis Present Nikolas Atsalis Present Brian Florence Absent George Zevitas Present Laura Shufelt opens the hearing at 7:01 PM. She indicates that tonight there are two hearings, an extension as well as an executive session. She indicates that she will hear the extension first and then go into executive session. Laura Shufelt calls the Village Green Appeal 2003-090 which is requesting a 6 month extension. She indicates that the Board has received a letter requesting an extension. She reads all the previous extensions granted and indicates that this is the third and will expire in July of 2009. She indicates that they can do this administratively and that this extension request will not require a public hearing. Motion is made to grant a six month extension. Seconded

Vote: AYE: George Zevitas, Craig Larson, Michael Hersey, William Newton, Laura Shufelt Nay: None SIX MONTH EXTENSION GRANTED Laura Shufelt asks for a motion to go into executive session to discuss pending litigation and will return. Motion is made to go into executive session. Seconded Vote: AYE: George Zevitas, Nik Atsalis, Alex Rodolakis, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None Board makes a motion and votes to go back into session. AYE: George Zevitas, Nik Atsalis, Alex Rodolakis, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None Laura Shufelt then calls the Hyannis Toyota appeal and reads it into the record. Appeal No. 2008-064 Hyannis Enterprises, Inc., d/b/a Hyannis Toyota Conditional Use Highway Business

Hyannis Enterprises, Inc., d/b/a Hyannis Toyota has petitioned for a Special Permit pursuant to Section 240-25.C.(1) Conditional Uses in the Highway Business District. The petitioner is seeking the permit to allow the use of a lot addressed 1056 Iyannough Road (Route 132), Hyannis, MA for parking of new and used car sales and parking of vehicles to be serviced. The subject property is shown on Assessor’s Map 294 as Parcel 072. It is in a HB, Highway Business and Business B Zoning Districts. Members assigned: George Zevitas, Craig Larson, Michael Hersey, William Newton, Laura Shufelt Attorney Brian Wall is representing the client. He gives a brief summary of relief that they are requesting. He indicates that the applicant isn’t here to legitimize the use. He indicates that proper permits were never obtained and they are here to legitimize it. He wants to use the Swift lot

for the parking of cars for sale and is not proposing any service on the lot. They went through the site plan review successfully. The applicant is proposing a landscaping buffer. The applicant is also agreeable to the footpath as suggested in the staff report. He contends the use has continually been met as it has been used continuously for 25 years. He has looked at the conditions and the applicant is agreeable to it. Attorney Wall indicates that Andrew Garlay from Down Cape Engineering is also here to answer any questions. Laura Shufelt asks for clarification of where the pedestrian footpath is and asks where it is located. Attorney Wall indicates that the only lot before the Board tonight is the empty lot and doesn’t think the site plan shows the footpath. Art Traczyk indicates that the footpath is on both lots. He indicates that Growth Management would like an egress but they have to work something out with the Festival Plaza. Craig Larson asks how it is leased and what happens with the special permit if he sold the property. Attorney Wall explains Art Traczyk explains that the special permit goes with the applicant and not the land. Laura Shufelt asks if there is anyone here from the public who would like to speak either in favor or in opposition. No one speaks. William Newton makes positive findings.

a. The application falls within the category specifically excepted by the ordinance for a grant of a special permit

b. An evaluation of all the evidence presented at the public hearing by the petitioner and interested parties as it relates to the fulfillment of the spirit and intent of this chapter without substantial detriment to the public good or the neighborhood affected.

c. A site plan has been reviewed and found approvable. d. Such uses do not substantially adversely affect public health, safety, welfare, comfort or convenience of

the community. No discussion. Vote: AYE: George Zevitas, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None

William Newton makes motion to grant special permit 2008-064 , Hyannis Enterprises Incorporated with the following conditions as suggested by the planner on page 4, 1 through 6 but specifically under #2 with respect to the landscaping, this is to be completed within the first year. . Seconded No discussion Vote: AYE: George Zevitas, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None GRANTED WITH CONDITIONS Laura Shufelt now calls the Carpenter appeal. Members assigned: Alex Rodolakis, Craig Larson, Michael Hersey, William Newton, Laura Shufelt Michael Gaspard is here representing the applicant Michael Gaspard indicates that this appeal was approved before but he is here as the new modification is to place the doorway back to where it originally was with a covered porch. He indicates that this change does not meet the current setbacks of the zoning district. Laura Shufelt clarifies that this modification doesn’t change the setbacks or footprint. Michael Gaspard explains that the changes do not change the setbacks but alters the footprint because the covered porch is extended. Laura Shufelt asks if there is anyone here from the public who would like to speak. No one speaks Laura Shufelt asks if there is anyone here from the public who would like to speak either in favor or in opposition. No one speaks. William Newton makes a motion for the following findings of fact. 1. The modification suggested in 2008-065 modification special permit of 2007-093 are in fact minor, everything stays within the one foot setback as was proposed in the original special permit. 2. The proposed modifications are in fact in keeping with the cottage look of the surrounding homes in the area. No discussion Vote:

AYE: Alex Rodalakis, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None

William Newton makes a motion to grant the modification to special permit 2007-093 be accepted with the following conditions as outlined on Page #3. In addition to those, from 1 through 5, he would add #6 as suggested by the Planner “At the time the foundation footing for the porch are located and poured, an on-site surveyor shall be required to verify that the location of the footings are properly sited in accordance with the proposed plans. Seconded. No discussion Vote: AYE: Alex Rodalakis, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None GRANTED WITH CONDITIONS Laura Shufelt indicates that she has decisions made tonight and October 29th from the Accessory Affordable Apartment Program. Laura asks Art Traczyk to go over the procedures for this. Art indicates that the Amnesty Officer, who is Laura, when the decisions are made she has to get the decisions to the members for a 14 day review period and since they are a comprehensive permit they have a total of 40 days to get clocked in. During that 14 days, they are expected to read them and if there is a matter of law within the document that you feel has not been met, such as missing a requirement for a finding to be made, etc., it cannot be the merits of the case and is just a matter that they have missed this issue. These are the only things that they can question. In other words, they cannot question the decision being made, only if it was made properly. If they have questions they can direct it to the ZBA staff and it will be dealt with properly or they can direct it to the hearing officer. Laura Shufelt indicates that the next amnesty meeting is December 10th as well as our regular ZBA Hearing. Laura Shufelt indicates that the will be voting on the minutes at the next meeting. . Motion to adjourn Seconded All in favor. Meeting adjourned


Minutes

December 10, 2008

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday, December 10, 2008 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was not met. Also present were Art Traczyk – Principal Planner and Carol Puckett – Administrative Assistant.

Laura Shufelt Present James McGillen Present Michael Hersey Present Craig Larson Present William Newton Present Alex Rodolakis Present Nikolas Atsalis Present Brian Florence Present George Zevitas Present

Laura Shufelt opens the hearing at 7:03 PM. She reads a summary of the appeals into the record. She then calls the Cunniff appeal and reads it into the record.

Appeal 2008-069 Cunniff Variance Family Apartment Provisions

Richard M. Cunniff and Pauline A. Cunniff have applied for a Variance to Section 240-47.1.A Family Apartments. The applicants are seeking to develop and use an existing detached barn located on the property for a family apartment. The variance is requested to allow for the apartment unit to be detached and to be located in the existing structure that is nonconforming with respect to the minimum required front yard setback from Old Neck Lane. The property is addressed 2275 Main Street (Route 6A)

Zoning Board of Appeals – Agenda – December 10, 2008

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West Barnstable, MA and is shown on Assessor’s Map 237 as Parcel 033. It is in the Residence F-2 Zoning District. Members assigned: Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt Attorney Benjamin Losordo from Sandwich is representing the applicant. Also present were Bruce Devlin the designer and Bill Hughes, the builder. Mrs. Cunniff’s mother-in-law will be the occupant and has financial interest n the building. Pauline and Richard Cunniff are also here. Attorney Losordo gives a brief history of the building. He indicates that they have been through historic and it has been approved. The apartment will exactly be 800 square feet. The property has a 4 bedroom septic. The house currently has 3 bedrooms and the barn will make it 4. He explains the relief they are seeking is because the existing structure to house the apartment is detached and that they require a variance from the front yard setback. He indicates that they have a signed affidavit from the family which he submits to the Board. William Newton asks Attorney Losordo to explain how this meets the variance 3 prong test. Attorney Losordo indicates that it would be a financial hardship if the mother-in-law couldn’t move in. He indicates that they investigated moving the barn but it couldn’t be moved because of the slope it is on and would destroy the historic barn. William Newton asks if there is any provision that would prevent them from building something attached to the dwelling. Bruce Devlin indicates that the house has many rooflines and to add something that would match the rooflines would be expensive and doesn’t want to change the scope of the house. Attorney Losordo indicates that someone would view it as a house and a barn and not two dwellings. William Newton is concerned also with how close it is to the road and the potential for safety problems. Attorney Losordo indicates it is not a throughway but a driveway and that they have a right-of-way over it. James McGillen indicates that the integrity of the buildings are highly protected and they have a desire by historical to preserve the ones already in existence. He thinks there are variance conditions and that the building can be preserved. Bruce Devlin reiterates that they have approval from Old Kings Highway. Laura Shufelt asks where the driveway access is and parking for the in-law apartment. Bruce Devlin indicates that they don’t want to change any of the landscaping and will not be accessing it from Old Neck Road. Laura asks if there is anyone here from the public that would like to speak either in favor or in opposition. No one speaks. Craig Larson asks if the applicants are aware of all that is required as far as an in-law apartment and that when the family member moves out they will need to take out the kitchen. Attorney Losordo indicates that they are aware of that.


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Brian Florence asks Bruce Devlin about the topographical issues. Bruce indicates that they would have to bring in fill and doesn’t think that it would be a pretty site. James McGillen makes positive findings: Richard M. Cunniff and Pauline A. Cunniff have applied for a Variance to Section 240-47.1.A Family Apartments. The applicants are seeking to develop and use an existing detached barn located on the property for a family apartment. The variance is requested to allow for the apartment unit to be detached and to be located in the existing structure that is nonconforming with respect to the minimum required front yard setback from Old Neck Lane. The property is addressed 2275 Main Street (Route 6A) West Barnstable, MA and is shown on Assessor’s Map 237 as Parcel 033. It is in the Residence F-2 Zoning District. The variance requests using a building already in existence. In the Town there is an interest of a historical nature to keeping historical buildings. The variance would encourage an under utilized and in poor condition structure that would encourage new construction.

owing to circumstances related to soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district and historical in which it is located;

a literal enforcement of the provisions of the zoning ordinance would involve substantial hardship, financial or otherwise to the petitioner, and letters of support submitted to the file

desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the zoning

Vote: AYE: Craig Larson, Michael Hersey, James McGillen, Laura Shufelt NAY: William Newton Laura reads the letter in support from Roberta L. Cass and Mark Lapire. James McGillen asks Attorney Losordo if he is aware of the conditions as outlined in the staff report. Attorney Losordo indicates that he has seen them. Craig Larson wants to make an amendment to the conditions. Laura Shufelt indicates that he will be able to amend once the conditions are read. James McGillen makes a motion to grant the relief requested according to the conditions in the staff report:

1. The family apartment shall comply with, and be maintained, in full compliance with all other requirements of Section 240-47.1 for a family apartment as-of-right as well as all conditions in this decision.


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2. The family apartment shall be developed and maintained as a one-bedroom unit as shown in a plan submitted to the Board entitled “Barn Renovations – Cunniff Residence 2275 Route 6A, Barnstable, MA”, as drawn by Bruce Devlin Designs, and dated July, 2008.

3. The applicant shall apply for all applicable building permits for the unit. All requirements of the Building Division shall be fully complied with to assure that the unit and building meet all applicable codes, including building, fire, and health.

4. Improvements to the structure shall be in full compliance with the Barnstable Old Kings Highway Historic District Committee’s Certificate of Appropriateness.

5. The buildings located on the property shall not be further expanded nor bedrooms added until the family apartment is discontinued and there is no longer a need for this variance. At that time, this variance shall cease and the applicant or property owner shall be responsible for the removal of the kitchen and use of the building as an independent living unit. A building permit for the removal of the unit shall also be shall be required at that time.

6. All parking shall be on-site and screened from the both Route 6A and Old Neck Road.

7. Occupancy of the family apartment unit is restricted to family members of the property owners who shall also be required to reside in the principal dwelling on the property. Occupancy of the family apartment unit shall not exceed two persons. There shall be no renting of the apartment unit to non-family members and no renting of rooms (lodging) permitted during the life of this variance.

Craig Larson wants to amend. Condition #6 to read “using existing single driveway”. Seconded. Vote: Aye: Craig Larson, Michael Hersey, James McGillen, Laura Shufelt NAY: William Newton

GRANTED WITH CONDITIONS Laura Shufelt then calls the Piggot appeal and reads it into the record: Appeal 2008-068 Pigott

Special Permit Demo/Rebuild

Prudence Pigott has petitioned for a Special Permit pursuant to Section 240-91 H(2) Nonconforming Lot - Developed Lot Protection. The petitioner is seeking a Special Permit to allow for the demolition of the existing dwelling and to rebuilding of a new, 1,990 sq.ft., single-family dwelling on the undersized lot of less than 10,000 sq.ft. of upland. The location of the proposed dwelling does not conform to the required minimum yard setbacks, however they are more conforming than the established yard setbacks of the existing structure. The subject property is addressed 71 and 0 Sunset Lane, Barnstable, MA and is shown on Assessor’s Map 301 as Parcels 024 and 023. The property is in a Residence B Zoning District.


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Members assigned: Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt Attorney Kenney is representing the applicant. Also present is Steve Cook from Cotuit Bay Designs. Attorney Kenney gives a brief history of the property and indicates that they have also been before historic. He is not certain of where the cottage came from and indicates that there is no insulation and that it was not well maintained as it was used for a beach shack. There are many other cottages in the area. He gives a summary of relief requested. Steve Cook gives indicates that he designed the structure to fit the guidelines outlined. He indicates it will be a small 2 story home with attached garage in the front. It will consist of 3 small bedrooms and 2 small baths and was designed to meet Old King’s Highway guidelines and this style fits the criteria of that area. He indicates that there is a small cupola in the middle of the roof. On the rear of the building there are double sliders on the first and second floors taking advantage of the views. The house runs from Sunset Lane to the ocean and runs front to back and not side to side. The total width of the house is only 24 feet wide. Brian Florence references section 2 of Attorney Kenney’s memo and comments that they are cutting it close as far as the floor area ratio. He asks Attorney Kenney if they would have objection to a condition that says that they would certify to the Building Commissioner’s satisfaction that they haven’t exceed that. Attorney Kenney agrees. William Newton asks Steve Cook for clarification of the total square footage. Steve Cook clarifies the measurements. Michael Hersey asks Mr. Cook what is the purpose besides the obvious view and walkout from the bedrooms of the covered porch with what he assumes would be a rubber roof and a fenced off deck and asks if it is just for aesthetics. Mr. Cook indicates that it is a roof deck facing east above the screened porch and is off a hallway. Steve Cook verifies that the 1300 square feet includes the garage, porch and first floor. Laura Shufelt asks if there is anyone here from the public that would like to speak either in favor. No one speaks. William Newton makes a motion to do findings of fact: 1. Relative to appeal 2008-068, a request by Prudence Piggott for a special permit to Section 240-91.H(2)to demolish the exiting building at 71 and 0 Sunset Lane and reconstruct a new dwelling. 2. The proposal fits with the requirements of Section 240-91.H(2 for a special permit to raze the existing dwelling and construct a new single family home. The dwelling as proposed would conform to the general appearance and style of existing dwellings in the immediate area. 3. The new dwelling does not comply with current setback requirements but will improve the nonconforming yard setbacks now in place for the existing dwelling as required.


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4. Lot coverage is to be maintained at 20% and the applicant’s proposed drawings for the new dwelling indicates that the requirement has been met. 5. The maximum floor area ratio of point .30 is required and the proposal of 29.9 will be provided. 6. The building height for the area is 30 feet and this will be met by the new dwelling which is proposed at 19.5 feet. They discuss Brian Florence’s earlier comment regarding a letter addressed to the Building Commissioner and agree that it will be a condition. James McGillen makes an amendment to the findings that: The application falls within a category specifically excepted in the ordinance for a grant of a special permit

After evaluation of all the evidence presented, the proposal fulfills the spirit and intent of the zoning ordinance and would not represent a substantial detriment to the public good or the neighborhood affected as the proposed new dwelling would not be substantially more detrimental to the neighborhood than the existing dwelling.

Seconded. Vote: AYE: Craig Larson, James McGillen, William Newton, Laura Shufelt NAY: Michael Hersey Michael Hersey indicates that his personal opinion is that this is within the guidelines but is not within the spirit of the zoning ordinance. William Newton makes a motion is to grant the relief requested with the following conditions as set forth by staff and to add the condition as previously stated by Brian Florence. Seconded. Vote: AYE: Craig Larson, James McGillen, William Newton, Laura Shufelt NAY: Michael Hersey GRANTED WITH CONDITIONS Motion is made to go into executive session for pending litigation and to resume hearing once they come back. Seconded.


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Vote: AYE: George Zevitas, Nik Atsalis, Brian Florence, Alex Rodolakis, Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt NAY: None Motion is made to come back from executive session and to resume hearing. Seconded. Vote: AYE: George Zevitas, Nik Atsalis, Brian Florence, Alex Rodolakis, Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt NAY: None Back from Executive Session at 8:04 PM. Laura calls hearing back in session. Laura Shufelt reads the Oyster Harbors appeal. Appeal 2008-008 – Continued Oyster Harbor Club

Expand/Alter Nonconforming Use

Oyster Harbors Club, Inc. has petitioned for Special Permits pursuant to Section 240-93.B Alteration and Expansion of a Nonconforming Buildings or Structures Not Used as Single or Two-Family Dwellings; and Section 240-94.B Expansion of a Preexisting Nonconforming Use. The petitioner seeks to remodel an existing 573 sq.ft., children’s play center and to add another accessory building consisting of 1,096 sq.ft., to also be used as a children’s play center. The buildings and use is accessory to the principal nonconforming use of the property as a Club House. The subject property is located as shown on Assessor’s Map 053 as Parcel 012 Lot 001, addressed as 170 Grand Island Drive, Osterville, MA 02655, in a Residence F-1 Zoning District. Laura Shufelt indicates that there is a letter from Attorney Douglas Murphy asking that this be continued to March 25th at 7:30 Motion to continue this to March 25, 2008 at 7:30 PM Vote: AYE: George Zevitas, Nik Atsalis, Brian Florence, Alex Rodolakis, Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt NAY: None


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CONTINUED TO MARCH 25, 2009 at 7:30 PM.

Laura Shufelt then calls the Vages appeal:

Variance Nos. 2007-092 & 097 Vages


By letter received November 24, 2008, Thomas and Dona-Maria Vages are requesting a 6-month extension for Variance Nos. 2007-092 and 097 issued to property addressed 293 Old Craigville Road, Hyannis, MA. The subject lot is shown on Assessor’s Map 247, as parcel 104-001. The variance was issued to legalize undersized lots created by an Approval Not Required plan recorded June of 2006 and allow demolish of a cottage on Lot #1 of that plan and rebuild a new one-bedroom singe-family dwelling. Members assigned: Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt. Dona-Marie Vages is present to answer any questions from the Board. Laura Shufelt indicates that the variance issued needs to be recorded by December 18, 2008 or it will expire and any extension granted will also be recorded. Laura Shufelt asks for a motion to extend this variance for six months with the condition that the variance be recorded before December 18, 2008 as required in the original variance. Motion moved. Seconded. Vote: AYE: Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt NAY: None GRANTED WITH CONDITIONS FOR SIX MONTHS Laura Shufelt then calls the Crocker appeal and reads it into the record. Appeal 2008–036 Estate of Charles F. Crocker, Jr. Appeal of Building Permit for 68 Pilots Way

Priscilla Dreier as Executrix of the Estate of Charles F. Crocker, Jr., has appealed the issuance of a building permit to develop a single-family dwelling at 68 Pilots Way, Barnstable, MA. The subject property is a


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2.13 acre lot owned by Katie E. Gruner. It is shown on Assessor’s Map 237 as parcel 007-001. The property is in a Residence F Zoning District. Members assigned: Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt

Sarah A. Turano-Flores from Nutter McClennen and Fish is representing the applicant. Eliza Cox hands out memo and exhibits. Ms Florez gives summary of relief being sought. She indicates that it is their contention that Ms. Gruner does not have rights over Pilot’s Way which runs along their properties easterly boundary and that they own the 100% fee interest in Pilot’s Way and are asserting that Ms. Gruner and predecessor’s in title have never been deeded a legal and valid deed tile and interest and therefore have no legal frontage as defined in the Town’s bylaw. She indicates that Ms. Gruner, prior to purchasing the property in 2008, took out title insurance and that title insurance council has now defended this litigation and were hoping to settle this but has not been resolved as of yet. Attorney Florez then gives a PowerPoint presentation (see attached) and a brief history of Pilot’s Way. She indicates that the Crocker homestead has been in the family for over 100 years.

William Newton asks how they determined that they could do an ANR without access.

Attorney Florez indicates that in 1973, Mr. Crocker created the 40 foot wide subdivision way on his own property with this plan and it has always been and is private to this day. She indicates that it is a 40 foot subdivision way held in private ownership. Prior to the 1973 subdivision plan, In 1972 James Crocker Jr. received a deed from the then owner, the Helen B. Miller property at that time owned by Charles Kimball. In 1972, Charles Kimball and Charles Crocker exchanged confirmatory deeds and are in Tab 4 of the handout she gave out this evening. She indicates that the intention at the time was to confirm the bounding descriptions as they had been passed down in the Crocker family for so many years not shown on a plan of land and that bounding line became very important. The boundary line consisted of stone walls and the boundary line of the way. In 1973 they obtained approval from the Planning Board for this subdivision..

She indicates that prior to this subdivision in 1965 Mr. Crocker’s mother deeded the land to the north to one William H. Lewis and that deed is in Tab 5 of the handout. At that time in 1965, this 10 foot right-of-way extended from the north above the railroad right-of-way out to 6A and in the deed for the title for the property to the north, Charles Crocker’s mother granted William Lewis a right-of-way all over her remaining property, the Crocker Homestead, out to the King’s Highway. She indicates that she thinks that this deed, although set forth as a conveyance, is a confirmatory deed to confirm the boundary lines between the two properties.

James McGillen indicates that it not noted as a confirmatory deed and makes no reference to a prior deed and asks if this title at one time in the Crocker’s? Attorney Florez answers no but the title to the west of the Gruner parcel has always been in the Crocker family for over 100 years the title to the east has never been in the Crocker family. She indicates that in 1983, Mr. Crocker was before the Planning Board for approval for the creation of 3 lots. This ANR approval was subject to the condition that prior to the development or conveyance of any of these lots the road be fully constructed in accordance with the Subdivision Rules and Regulations. The covenant is in Tab 6 of the handout. In 1985, the land which Charles Crocker’s mother had conveyed out to William Lewis


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in 1965 was conveyed to Thomas Shields and BWC Ellis. The land is more accurately shown on Tab 7 in the handout. In the deed from Lewis to Shields & Ellis you will see that he conveyed the land shown on Tab 7 together with a right- of- way to and from the granted premises over King’s Highway which is the same language when Charles’ mother conveyed it to Mr. Lewis. However, between 1965 and 1985, Pilot’s Way had transformed from a 10 foot wide right-of-way to a 40 foot right-of-way and traversed property which was not owned by the Crocker estate and therefore the new owners of another lot sought to confirm they had right-of-way over the 10 foot wide cart path and Pilot’s Way all the way out to King’s Highway and obtained 3 deeds of easement which they recorded and are contained in Tab 9 of the handout. They were recorded on the same day but subsequent to the deed itself. It is the 3rd of these easements which leads them to the trouble in this case. It is a 1985 deed of easement from Charles F. Crocker to Thomas Shields and BWC Ellis for a right-of-way. She reads the deed. She indicates that it is Ms. Gruner’s contention and her attorney that this was a personal easement and not an easement appurtenant to the land that Ellis and Shields bought on that day and therefore they claim that Ellis and Shields had a further right to convey out an easement over Pilot’s Way to any third party. She indicates that it is their contention that this is not support by case law in Massachusetts or common sense. In Massachusetts easements are presumed to be appurtenant and not personal, i.e, they are presumed to run with the land and not to individuals who can deed them to 3rd parties. If/when an easement is created it is primarily useful or beneficial to the owner of a particular pies of land then the easement is strongly presumed to be appurtenant to that piece of land and not to be considered a personal easement. Furthermore, the nature and extent of an easement is determined by the language of the grant construed in light of the attending circumstances surrounding the conveyance. (see page 11 of PowerPoint presentation). She then goes onto pages 12 and 13 of the PowerPoint presentation.

Craig Larson asks for clarification of how Pilot’s Way was created. In 1973 Attorney Florez indicates that Pilot’s Way was created in 1973 and was not constructed to its full width. She indicates that the 1973 subdivision plan and the subsequent 1983 subdivision plan did not require that the road be constructed unless it was further subdivided which is another indication to her that the 2005 ANR endorsement was incorrect because obviously there was a further subdivision, not of this property, but the property next door increasing the use of Pilot’s Way and should’ve been constructed at that point and wasn’t. She indicates that the 1983 plan had a covenant on it that requires the construction of the ways and solicitation of municipal ways prior to the lot being built upon or conveyed.

James McGillen asks for clarification where the Kimball’s property is and that Kimball had no rights to it?.

Attorney Florez points it out and indicates that she doesn’t believe it was an ancient way and has never been established as an ancient way.

Alex Rodolakis asks about standing. Attorney Florez indicates that when Mr. Crocker died and under his will it would be equaled out in 3 shares and the executrix has authority under the will and has consent of two other siblings.

Attorney Albert Schulz speaks and indicates that he is representing Katie Gruner and her husband. Andrew Polick. He indicates that this is currently before the land court and wither the easement is


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in gross or appurtenant. Ms. Florez referred to the intent but it is what the court is going to decide. It is their position that Mr. Shields and Ellis received an unambiguous easement with rights over Pilot’s Way. In the easement there is no language that states that it is appurtenant to any particular piece of property. He reads the easement. Under Massachusetts General Law, you don’t have to state in a deed how you are deeding an appurtenant right and thinks it is important language. Also, if looking at the deed from William Lewis to Ellis & Shields there is no mention of the easement in that instrument and indicates that they already had an appurtenant statement in the deed. This is an easement in gross and thinks this is not the proper forum for this. The suit is pending and as far as tonight’s hearing, Ms. Drier, as the executrix of the estate of Charles Crocker, does not have standing to appear before the ZBA. She brought it solely as executrix of the estate and does not hold title to any real estate. The executrix’s power is to sell the property under the license or under the will and does not have any legal title and would suggest to the Board that she is not a party aggrieved. He would take issue that there is a conflict in the administration of the estate. First, she does not have standing and shouldn’t be here. Secondly, his clients have an unambiguous easement that grants them rights over Pilot’s Way to their property. He indicates that in 2005, Mr. Toennes, previous owner, appeared before the Planning Board in connection with seeking an endorsement of an ANR plan. At that time presented to the Planning Board, they discussed it and the Crocker family was there to object, was refereed to Town Council, the opinion came back that it was worded strangely but that Mr. Toennes probably had access over Pilot’s Way. The Planning Board then voted unanimously to endorse the plan. He indicates that the Crocker’s could have opposed the grant of that plan and did not. In 2007, the Toennes estate signed an agreement with Ms. Gruner to sell one of the lots, Lot #2, to her and believes that agreement was in the summer of 2007 and that shortly thereafter Ms. Gruner filed plans with OKH and appeared at several hearings. Again, the Crocker family attended and objected to her plans. In September, OKH issued and approved a certification of appropriateness. The Crocker family has allowed the building permit to issue. The Building Commissioner issued a building permit, the house has been constructed, an occupancy permit has been issued and his clients have moved into the property.

Brian Florence asks if the appeal of the Building Commissioner’s issuance of a building permit was done in a timely fashion. Attorney Schulz indicates yes.

Attorney Schulz indicates that this revolves around the fact that the Crocker’s want to subdivide their property and are under a mandate from the old approval in 1973 that they have to improve Pilot’s Way. Prior to his clients purchasing the property, they were invited to a meeting with Mr. Butler on several occasions where the Crocker family demanded that they contribute $100,000.00 to the construction of Pilot’s Way and that demand has continued to the present time. He suggests that they don’t have standing and suggests that this Board uphold the Planning Board’s endorsement but also the Building Commissioner’s of the permit in March of 2008.

Board member Michael Hersey asks if there has been any injunctive relief sought.

Attorney Schulz indicates there has been no injunctive relief sought in the Land Court case.

Laura Shufelt asks if there is anyone here from the public who would like to speak. No one speaks.

Attorney Florez responds and indicates that the title to the property is in his estate under his will and his children are the three children are the devises. Once the distribution becomes finalized and therefore that Ms. Dreier has standing. She indicates that she wrote 3 cease and desist letters


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pending the construction. They filed suit shortly after filing this building permit appeal fully intending and in fact, the complaint does contain a prayer for injunctive relief. The cease and desist letters pull them on full notification and others came from her office indicating that if they proceed it would be at their own risk. She indicates that once they filed suit the insurance company got involved and it was through an agreement that they didn’t pursue a motion for preliminary injunction. At a status conference held at the end of November they agreed that no settlement would be forthcoming. She is preparing the motion for a preliminary injunction and they are prepared to come forward and move this appeal this evening. She indicates that it is not true they are looking for money or demanded the money to line their pockets, this is a trespass and these people have no rights or interest across the property. The money is reflective not of the construction cost but of the deeded easement. They haven’t come anywhere close to terms.

Board member Brian Florence comments that as a Building Commissioner, when they issue a building permit they need to see that there is frontage on a way but they don’t need to know who has right title of ownership or who has the ability to use that they just have to make sure that what they have done is that they have frontage. Also, they do not need to know who has rights to an easement with its detail. He thinks the Building Commissioner acted properly and thinks it should be upheld and doesn’t believe it belongs here.

Michael Hersey indicates that because of received the materials just recently and because this is a complex case and is uncomfortable with making any kind of decision tonight.

William Newton is in agreement with Michael Hersey and suggests it be continued in order for council to look at this.

James McGillen believes it is a legal way and the question is whether they have access to it.

Attorney Florez indicates that the way itself is legally laid out on the subdivision plan but this is a zoning determination.

James McGillen indicates that he believes that this is a legally laid out way and the issue of whether or not they have access or legal rights is to be determined by the Land Court and would uphold the Building Commissioner’s determination on this matter.

Laura Shufelt asks for a motion to either uphold or continue.

William Newton makes a motion to continue to get input from council and staff.

Seconded.

Vote:

AYE: Craig Larson, Michael Hersey, William Newton, Laura Shufelt

NAY: James McGillen

Continued to January 28th at 7:00 PM Craig Larson asks about the Ancient Way. Attorney Schulz explains.

Ruth Weil asks the Board to frame their questions they will pose to the legal department.

Attorney Schulz asks that the question of standing be answered.

Laura Shufelt asks what their prevue in reviewing the Building Commissioner’s opinion and whether that gets into frontage and access.


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William Newton Bill wants to know what was given to the Building him in order to

Michael: Hersey asks what reasonable knowledge is required of the Building Commissioner in determining legal access before issuing a permit.

Michael Hersey also asks, in the opinion of the Town Attorney if the party has standing.

They decide to ask the Building Commissioner on standing.

Michael Hersey asks if the Building Commissioner is required to see if there is legal access on a way prior to issuing a building permit.

Brian Florence asks whether or not who has rights to use it and whether or not he is required to know that.

William Newton asks what the Planning Board members used to make their decision.

Continued to January 28, 2009 at 7:00 PM.

Laura Shufelt calls a ten minute break at 9:13 PM. Back in session at 9:24 PM.

Laura Shufelt calls the Nirvana appeal and reads it into the record. Appeal 2008-066 Nirvana Coffee Company Inc.

Coffee House Conditional Uses Special Permit

David Lancaster d/b/a Nirvana Coffee Company Inc. has petitioned for a Special Permit pursuant to Section 240-24.C(1) Conditional Uses in the VB-A Business District. The petitioner is seeking a Special Permit to allow for a coffee house, food-service establishment. The property is addressed 3206 Main Street (Route 6A) Barnstable, MA and is shown on Assessor’s Map 300 as Parcel 008. The property is in the Village Business A District. Appeal 2008-067 Nirvana Coffee Company Inc.

Reduction In Parking Special Permit David Lancaster d/b/a Nirvana Coffee Company Inc. has petitioned for a Special Permit pursuant to Section 240-57 Circumstances Warranting Reduction of Parking Requirements. The petitioner is seeking to provide eight (8) seats within the coffee house without providing the required off-street parking. The property is addressed 3206 Main Street (Route 6A) Barnstable, MA and is shown on Assessor’s Map 300 as Parcel 008. The property is in the Village Business A District.


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Members assigned: Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt Attorney John Kenney is representing the applicant. Also here is David Lancaster, who is the owner of Nirvana Coffee. He gives a brief summary of relief requested. He indicates that the business has been open since June of 2008. The first permit is regarding the conditional use in the business district. He attached a copy of the site plan. David Lancaster shows the entrance and the bathrooms and points out the foot/prep area and the burista area. Attorney Kenney indicates that they want to put in 8 seats and are not looking for tables and chairs. They will be soft chairs and there will be no individual menus or service at the tables, no ordering of special sandwiches, as everything is pre-made. He indicates that they are approved from 6:00 AM to 4:00 PM and gives the hours during the week. He indicates that this is not a destination restaurant and is there for businesses and residents in the village area and that 75% of the business is from walk-ins and about 5% are for sandwich/food delivery. He indicates that the other relief they are requesting is the reduction of parking requirements. He indicates that according to the bylaw they meet two of the critical out of 4. He reads the bylaw. He indicates that you can park on 6A and there is a letter from E. Mark Silinsky indicating that his customers can use the public county parking complex which, since the jail has moved, and that off-site parking is adequate. He indicates that the two apartments and office space are grandfathered and talks about what would be required if the building were to be built today. He talks about the deliveries and that the majority of deliveries were requested by Mr. Lancaster to be done in the early morning hours. He indicates that there is a petition signed by 372 persons that has been submitted as well as other letters in support submitted to the file. Board Member Michael Hersey asks where the 4 on-site parking spaces are. David Lancaster points them out. Michael Hersey asks about the previous history of this applicant before the Board. Attorney Kenney gives the history. Craig Larson asks if they have been before the Village Association. Attorney Kenney indicates that they had not. Craig Larson suggests that maybe they could go there and maybe suggest a 20 minute limitation on parking. Laura Shufelt indicates that there were letters submitted in favor and reads who they were from (see attached). Laura Shufelt asks if there is anyone here from the public either in favor or in opposition. Joseph Ferraro, an abutter to the General Store, indicates that there has been a parking problem for 20 years. He indicates that there is not enough parking and that granting this for 8 seats for people who would sit there longer would be a detriment. Lindy Carter Shawl represents the Walkers. The family has been there for 80 years. She is in favor and thinks that there are much more people walking in the village than people think.


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Bob Kelley represents the Dolphin restaurant and maintains 40 parking spaces. He indicates that if the applicant gets a special permit then he might get a special permit for a liquor license and is against this request as he does not have enough parking. Bob Medeiros indicates that if you are going from retail to a restaurant it is a change of use. If you have a business where someone gets a coffee and sandwich and people sit for awhile it is not a grab and go. He indicates that Attorney Kenney met 2 out of 4 criteria and those spaces on the street are full 77% of the time. Parking is an issue. With regards to the parking spaces they are required to have 15 spaces, there are 36 and they 77% of the time where are the 15 spaces going to come from to service Nirvana Coffee. People will be parking in his lot. He asks the Board that they not issue the special permit. Ann Miller of 3026 Main Street is in favor and feels it will add to the feel of the community and will be an asset and a nice addition to the neighborhood. She indicates that because most of the businesses in the area are of a professional nature the coffee shop adds a sense of community. John Field and Kirsten Bearse, owners of the building that houses Nirvana Coffee, are here to support the application on both forms of relief. John Field indicates that he has seen the abutters park their cars parallel in order to prevent people from parking in their lot presumably to go into Nirvana. Lynn Medeiros, who also owns the Country Store, is in opposition as she feels that there is not enough parking spaces and that people are parking in their parking lot. She believes even with the jail not being there that there is still a parking problem. She is for her rights for her own property. Attorney Kenney wants to clarify that 75% of the people are in the village already doing business and not necessarily walking. He indicates that regarding deliveries, he has photos which he submits of delivery trucks, UPS trucks, trash pick-up trucks delivering to the Village Store somewhat blocking 6A (see attached). He doesn’t argue their right to their own property but believes it is more about competition than parking issues. He indicates that Nirvana Coffee has done everything upfront and was granted as-of-right. He indicates that his client has been through a lengthy and costly process and that his client’s initial application was granted as-of-right and that was planning on putting in the 8 seats and was informed to reduce the seats but then requested to take out the 8 seats. He was informed that if he was going to have a two bathrooms. His client was required to put in the bathrooms because he was told that he could have the 8 seats but then told to come back at a later date for the 8 seats. The retail use got appealed and they are here now for the two special permits and nothing has changed from his client’s original application. They will not be back here for a liquor license or additional seats. William Newton asks if they would be opposed to delaying a decision in talking to the Village Association for working with the neighbors regarding parking. David Lancaster indicates that he had contacted someone in the village asking if they would be willing to rent him the spaces and was told no. He also indicated that he put up signs to be


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considerate of not parking in front of certain spots and has tried to be a good neighbor and has done everything the Town has asked in order to open. Board Member Nik Atsalis calls point of order and indicates that a previous comment that there has been a parking problem for twenty years doesn’t think that it a Nirvana issue. Mr. Ferraro indicates that if David Lancaster has 8 seats, people will be there longer. Brian Florence indicates that he believes the traffic is not going to change. Laura Shufelt comments that she doesn’t think that the 8 seats are going to intensify what is there now and asks what the Board’s feelings are. Bill Newton would like to continue this to see if they can come back with additional information. James McGillen makes a motion for findings:

1. In Appeal No. 2008-066, David Lancaster doing business as Nirvana Coffee Company Inc. has petitioned for a Special Permit pursuant to Section 240-24.C(1) Conditional Uses in the VB-A Business District. The petitioner seeks the permit to allow for a coffee house, food-service establishment. The property is addressed 3206 Main Street (Route 6A) Barnstable, MA and is shown on Assessor’s Map 300 as Parcel 008. The property is in the Village Business A District.

2. Section 240-24.C(1) states that “Restaurant or other food-service establishment, but not including drive-in restaurants” are a conditional use in the VB-A District, provided that a special permit is first obtained from the Zoning Board of Appeals subject to the provisions of § 240-125C herein and subject to the specific standards for such conditional uses as required in this section:

3. The application falls within a category specifically excepted in the ordinance for a grant of a special permit, as the application and site plan does not include a drive-in/drive-thru facility and therefore qualifies to apply for the special permit being requested for a Conditional Use as a restaurant, food-service establishment pursuant to Section 240-24.C(1).

4. In evaluating the evidence presented: This is a very small operation that involves the reuse of an existing premises of only 990 sq.ft., in an existing mixed use building. The property is located in the traditional village center zoned for business and commercial use, including restaurants by special permit. The property is connected to public water and public sewers. The Barnstable Village Center is identified as a ”Village Activity Center” in the adopted Comprehensive Plan. That plan cites loss of retail and service businesses to office uses in the village center and recommends that shift to office use be curtailed. Given these facts, this grant of a conditional use permit fulfills the spirit and intent of the zoning ordinance and would not represent a substantial detriment to the public good or the neighborhood affected nor derogate from the intent of the zoning ordinance.

5. That applicant was before the Site Plan Review Committee on October 23, 2008 and the site plan was found to be approvable. A Site Plan approval letter has been issued.


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Craig Larson wants to add that it mirrors the Comprehensive Plan and is spelled out on Page 6 of that plan Vote: AYE: James F. McGillen, William H. Newton, Craig G. Larson, Laura F. Shufelt NAY: Michael P. Hersey James McGillen makes a motion to grant the relief requested. James McGillen will wait for the second vote on conditions at this time. Seconded. Vote: AYE: James F. McGillen, William H. Newton, Craig G. Larson, Laura F. Shufelt NAY: Michael P. Hersey Special Permit for Conditional Uses has been Granted. James McGillen then does findings on 2008-067. The petitioner has also brought appeal 2008-066 (2008-067) seeking parking relief review.

Under section 240-57 that there are circumstances warranting reduction requirements on the parking provisions in this zoning district

The use of common parking areas by different uses having different peak hours of demand age or other characteristics of the occupants which reduce auto usage.

There is supplementary parking provided off premises. Under those circumstances it would not be a detriment to the zoning and that the relief to

allow 8 seats within the coffee house without providing the off-street parking should be allowed

Attorney Kenney comments that the appeal number is 2008-067 and not 2008-066. Correction accepted. Vote: AYE: James F. McGillen, William H. Newton, Craig G. Larson, Laura F. Shufelt NAY: Michael P. Hersey James McGillen asks Attorney Kenney if he has seen the proposed conditions and if his client is acceptable to the conditions. Attorney Kenney replies his clients have seen them and they are acceptable. James McGillen proposes a motion to grant the special permit subject to conditions listed in the staff report as agreed to Attorney Kenney.


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Craig Larson wants to amend two conditions. On #2, he wants to add “unless approved by ZBA”. He reads the condition: “This permit is subject to all requirements of special permit 2008-066 and is not transferable to any other business uses on the premises unless further approval from the ZBA”. Also, he would like to add a #3 bullet, if agreeable, that because there was a problem with a sign on the side of the building, that there be no signage whatsoever on that side of the building. Michael Hersey wants to add that people that are using the driveway do not impede the sidewalk and indicates that it refers to condition #4. Brian Florence comments that on both special permits the language “that the permit is not transferable to a new owner or another location without permission from the Zoning Board of Appeals” He asks that if it is the same use and they transfer ownership why would they bother the ZBA? Art Traczyk indicates it is there as to prevent it from becoming a chain such as Dunkin Donuts or Starbucks. William Newton asks if the Board would consider putting a time limit of one year and for them to come back to take a look at the situation and asks Attorney Kenney his opinion on that. Attorney Kenney indicates that his client has expended a large amount of money and has done everything properly, has had to come here twice already and asks that they not put on and has never heard of this being done. William Newton asks the Board if they would consider putting a one year limit on this in order for the applicant to show the Board what has happened regarding meeting the Village Association, etc. Art Traczyk suggests drafting a letter to Growth Management to address the parking issue in the Comprehensive Plan. Laura Shufelt asks the Board how they feel about adding a one year limit as an amendment. Craig Larson, Michael Hersey, James McGillen and Laura Shufelt comment that they would not be in favor of it. Laura Shufelt indicates there is a motion regarding the conditions on the floor. Seconded. Vote: AYE: James F. McGillen, William H. Newton, Craig G. Larson, Laura F. Shufelt NAY: Michael P. Hersey GRANTED WITH CONDITIONS


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Laura Shufelt then calls the TD BankNorth appeal and reads it into the record. Appeal No. 2008-071 TD Banknorth Pursuant to Section 240-39.M(1)(a), the Shopping Center Redevelopment Overlay District, TD Banknorth has petitioned for a Special Permit or in the alternative a Modification of Special Permit No.1998-31 issued to the Cape Cod Mall Nominee Trust. The petitioner is seeking to demolish an existing freestanding building of 4,400 sq.ft. and rebuild a new 3,000 sq.ft. bank building with three drive-thru lanes. The subject property is commonly known as a part of the Cape Cod Mall and the building is addressed as 226 Falmouth Road (Route 28) Hyannis, MA. It is shown on Assessor’s Map 293 as Parcel 043. It is in the HB, Highway Business Zoning District and in the SCROD, Shopping Center Redevelopment Overlay District. Members assigned: Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt Attorney Michael Ford is representing the applicant and Simon Corporation, owners of the mall. He indicates that with him also are Josh Bolling from Bolling Engineering, Rich Tonsey from Simon Corporation, Leo Fein, Manager of the Cape Cod Mall and Larry Squire who is representing TD Banknorth. Attorney Ford indicates that the bank is currently in the airport rotary and need to find another location because the Town is expanding the airport. Attorney Ford gives a history and indicates that TD Banknorth needs to move and were able to work out an arrangement by the terms of which TD Banknorth will be leasing this area of the mall where Blanchard’s is currently occupying. He indicates that the SCRODD was adopted in 1987 before the mall expanded in 1988 and as part of the SCRODD provisions and it provided that once a special permit was granted to the mall, and the mall exercised those rights, it would be governed by the SCRODD. That created a problem because banks with drive-thrus would not be permitted. They had to got to the Cape Cod Commission and get a modification of the DRI and have received it dated November 12, 2008 and by the terms of the minor modification they have authorized the bank reference to this site plan. They also did a traffic study which indicates that the traffic will be less than what was there. James McGillen suggests they do a modification of the special permit. Laura Shufelt asks the Board if anyone has a problem this being a modification of the special permit. No one has. Attorney Ford has no objection but indicates that in the staff report, suggested condition #5, he would like to change the word “any surface runoff” be stricken and changed to say” during the redevelopment of this area surface runoff associated with the redevelopment area”. Another words he didn’t want the TD Banknorth project to be responsible for the rest of the mall. James McGillen indicates that change is so noted. Laura Shufelt asks to be shown on the site plan the traffic flow. The Board is shown the flow.


20

William Newton makes findings are listed by staff on Pages 3 and 4. William Newton asks if Attorney Ford has seen the findings. Attorney Ford indicates that he has. Laura Shufelt indicates that this is a modification of the special permit of 1998-31. Laura asks if anyone has any amendments. No one speaks. Vote: AYE: Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt NAY: None Motion is make to grant the modification of 1998-31 with the conditions as provided by staff on page 5 as previously amended by Attorney Ford. Seconded. Vote: AYE: Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt NAY: None

MODIFICATION of SPECIAL PERMIT 1998-31 GRANTED.

Motion to adjourn Meeting adjourned at 11:13 PM.

Town of Barnstable

Zoning Board of Appeals Draft Minutes

January 14, 2009

Laura Shufelt Present James McGillen Absent Michael Hersey Present Craig Larson Present William Newton Present Alex Rodolakis Present Nikolas Atsalis Absent Brian Florence Present George Zevitas Absent

Laura Shufelt opens the hearing at 7:01 PM. She reads a summary of the appeals to be heard tonight. She takes the Mill Pond Estates out of order. She indicates that there was a request from Attorney Schulz to withdraw and indicates that the letter cites that the seller has not received final approval for cost approval from DHCD and need that in order to move forward and have standing before the Board. Comprehensive Permit No. 2005-013 Mill Pond Estates - Starboard, LLC

Request for Minor Modifications In part, this is a re-submittal of that request previously made to the Board that includes the transfer of the permit to a new owner. However, it was expanded to now include a request to modify the style of homes to be built.

By letter submitted January 7,2009, from Attorney Michael F. Schulz, Paul T. Caggiano and Brady P. Otey, as Mangers of Mill Pond Osterville Associates LLC, are seeking to modify Comprehensive Permit No. 2005-013 “Mill Pond Estates” issued to Starboard, LLC for the division of 2.81 acres into a 13 lot subdivision for the development of 11 single-family dwellings at 459

and 449 Old Mill Road, Osterville, MA. Three of the 11 dwellings are to be committed to affordable housing pursuant to MGL Chapter 40B, Section 20-23. The applicants seek;

• the transfer of the permit to “Mill Pond Osterville Associates LLC”, • to be allowed to build one ‘model home’ for the purposes of marketing the development, • to have waived the requirement for posting of securities for the completion of the subdivision until a second

building permit is sought, and • a request to change two of the three approved home designs, the “Fairview” and “Westgate” to “Walden” and

“Fair Acres” style homes. Laura Shufelt indicates that she administratively accepts the withdrawal letter. Laura Shufelt then calls the Tokarz/Walsh appeal and reads it into the record. Appeal 2009-002 - New Tokarz/Walsh

Modification Variance No. 2003-155

Deborah Tokarz as owner of 1271 Old Stage Road, Marstons Mills, MA and Richard Walsh as future owner of 1283 Old Stage Road, Marstons Mills, MA, have applied for a Modification of Variance No. 2003-155 issued to Anne St. Cyr. The applicants are requesting the removal of Condition No. 3 of that Variance requiring that the two lots to only have and share one curb cut on Old Stage Road. The subject properties are addressed as 1271 & 1283 Old Stage Road, Marstons Mills, MA and are shown on Assessor’s Map 150 as Parcels 078 & 079. The subject properties are in a Residence F Zoning District.

Members assigned: Alex Rodolakis, Michael Hersey, Craig Larson, William Newton, Laura Shufelt. Deborah Tokarz is here representing herself and indicates that she owns the land at 1283 Old Stage Road and explains why she is here. She indicates that there is a conflict with the curb cut although the driveway will be shared. She indicates that she is aware of the possible traffic conflicts. She realizes that it will not happen all the time. She indicates that Dan Ojala from Down Cape Engineering had done the engineering on the lot originally and done the easement so you can see the curb cut where one goes into one lot and the other lot. He had done that and is familiar with it. She indicates that they had him there when the Walsh’s bought the lot a couple of weeks ago and has a memo in support of this same thing. She indicates she has copies and hands them to the Board members. She indicates that because of the economy she doesn’t know when she will develop her lot. She would like a curb cut to be on her lot and situated away from the area of concern. She is not sure why she should be penalized for being the last one to build on Old Stage Road and cannot get a curb cut whereas everyone else has one. Maybe the engineering department would be better suited to place that curb cut appropriately. She talks about others on Race Lane that have curb cuts and some that have two curb cuts. Laura Shufelt asks if board members have any questions. Brian Florence asks what the issue is with the utility pole

Deborah Tokarz indicates that the utility pole is right before the driveway and the driveway was cited on that lot for that one house and not for two lots as it is now. Unless they can move the pole out of the way and doesn’t think it would be easy o move. Michael Hersey clarifies with Deborah Tokarz that only one lot has a house on it. Ms. Tokarz indicates that she has the empty lot and plans to build on it in the future. William Newton asks Kimberly Walsh about the status of her property as far as development on it. Mrs. Walsh indicates that her curb cut is to the right and is narrow and if they had to share they would have to come out and over to take a right hand turn and around the utility pole. She has to watch for traffic as it is a busy intersection. Her husband Rich Walsh hands a plan of the lots to the Board members. William Newton asks how and if they knew it was built not in conformance with that requirement Mrs. Walsh indicates that all she knew is that it was an old stipulation that was brought back years ago to have that shared cut. Mr. Walsh indicates that he believes the problem is with the utility pole and that they couldn’t put it in the middle of the two lots. William Newton indicates that there are emails between Mr. Ojala and the Town Engineer that would indicate that there was some discussion about putting that driveway in between the two pieces of property and that the Town Engineer’s opinion was that it fine but that it needed to be registered and asks if it ever got registered. William Newton reads the email from Dan Ojala regarding the recording of the easement and reads a portion of that email Mrs. Walsh indicates that in order for them to close their loan they had to record that easement. Laura Shufelt clarifies that in 2003, one of the conditions of the variance that was issued to the lots was that there only be one curb cut and at that time that condition was not appealed. Mrs. Walsh indicates that when they purchased the property they were told about it after the fact. The Board asks about a copy of the easement that was recorded Craig Larson asks staff if this is an untimely appeal of the variance. Art Traczyk explains. .

Laura Shufelt asks if there is anyone from the public who would like to speak either in favor or in opposition. Margaret Fitzgibbons of 1100 Old Stage Road, who is a direct abutter, speaks and indicates that the reason she is here is to question allowing another curb cut on this short stretch of roadway which is extremely dangerous. The reason for this is that it is a non-traffic light intersection where Old Stage, Old Falmouth Road and Race Lane meet. She indicates that it makes for an unusual traffic jam. She has a copy of her curb cut permit if the Board wishes to see it. She has counted that there are 12 curb cuts. She thinks that the traffic does not allow for any further curb cuts. She indicates that the developer of these lots, Mr. Morin, could’ve addressed this problem with the curb cut and doesn’t think they need anymore dangerous curb cuts. Mr. Walsh indicates that he thinks that it makes sense to have the curb cut down from the intersection. Laura Shufelt notes that in the previous decision it is noted that the applicant had no problem with the proposed conditions. William Newton comments he would like more information and indicates that 1283 Old Stage Road was almost immediately built on and to have that shared driveway was not followed and is not sure how it came about. Mrs. Walsh indicates that when they originally looked at the property they did not know there was a driveway issue and was notified after the fact. Alex Rodolakis has reservations on granting relief requested. Brian Florence indicates that he agrees with Alex Rodolakis. Laura Shufelt agrees with both Alex and Brian. Mrs. Walsh asks what the benefit is of one curb cut versus two. Art Traczyk indicates that every time you put a curb cut you increase the occurrence of conflicts and explains. Michael Hersey makes negative findings: He would incorporate by reference the findings of the December 3, 2003 hearing of the Barnstable Zoning Board of Appeals and that there has been no substantial change in the circumstances surrounding when the two lots from December 3, 2002 when the lots were unmerged and the variance was issued. There is no financial hardship in denying the

modification and would move that the conditions as laid down on December 3, 2002 for variance 2003-155 stand and not be altered. William Newton makes another finding that in fact when the one curb cut was put in there was agreement by both parties to the location and design Vote: AYE: Alex Rodolakis, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None Motion is made for modification as presented in 2009-002 for a modification of 2003-155 be denied. Seconded. Vote: AYE: Alex Rodolakis, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None Michael Hersey states that this be denied as there has been no substantial change in circumstances regarding the lots and no showing of undue hardship on the two lots. Vote: AYE: Alex Rodolakis, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None MODFICATION DENIED Laura Shufelt then calls the Hirsch appeal and indicates that they received a letter January 6th requesting an extension of a continuance to February 11th at 7PM Appeal No. 2009-003 - New Hirsch

Expand/Alter a Nonconforming Dwelling

The continuance is requested to allow for review of the plans for an as-of-right building permit. Copy of Attorney Kirrane’s January 6th letter and copy of staff’s letter of November 14, 2008 enclosed. No report has been completed at this time and no application materials transmitted herein.

Steven Hirsch and Steven Hirsch as Trustee of the 131 Ocean View Realty Trust has petitioned for a Special Permit pursuant to Section 240-92 Nonconforming buildings or structures used as single- and two-family residences. The petitioner is seeking to modify a single family structure with a portion of its reconstruction encroaching into a 10 foot side yard setback though no closer than existing encroachment. The subject property is addressed as 131 Ocean View Avenue, Cotuit, MA and is shown on Assessor’s Map 034 as Parcel 060. The subject property is located in a Residence F Zoning District. Motion is made to continue this appeal to February 11, 2009 at 7:00 PM. Seconded Vote: AYE: Alex Rodolakis, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None CONTINUED TO FEBRUARY 11, 2009 at 7:00 PM (at which time the Board will be fully constituted.) Laura Shufelt then calls the Burke appeal at 7:50 PM. She reads it into the record. Remand Appeal No. 2007-048 Burke

Remanded for Additional Conditions

By Agreement for Judgment, the decision issued in Appeal No. 2007-048 by the Zoning Board to Joseph H. Burke, Jr. and F. William Burke for construction and use of a timber stairs for beach access on an accessory lot has been remanded back to the Board for insertion of two additional conditions. The essence of the two added conditions are to restrict the use of the accessory lot to that of beach access only and limit the use to only that land area the Burke’s are entitled to use. The principal residential lot is addressed 242 Sea View Avenue, Osterville, MA and is shown on Assessor’s Map 138 as parcel 011. The accessory lot is addressed 249 Sea View Avenue, Osterville, MA and is shown on Assessor’s Map 138 parcel 034. Both lots are in a Residential F-1 Zoning District. Members assigned: Brian Florence, Craig Larson, Michael Hersey, William Newton, Laura Shufelt Joseph H.Burke, Jr. is here representing himself and his brother. He gives a history of how this appeal has gone from application to the ZBA and onto it being appealed. He indicates that they did agree to the conditions and that they would only use the beach for their own use. He indicates that in the original submission to the Board there were pictures if the Board so wishes to view them. He indicates that and it seems that they have all agreed to.

Board members have no questions. Darah L. Schofield of Nutter, McClennan & Fish, LLP., who is representing abutters Ms. Morrison and Mr. Jones, indicates that they have come to terms with the Burkes and that she is here in support of the additional conditions. Laura Shufelt asks if there is anyone here from the public who would like to speak either in favor or in opposition. No one else speaks. William Newton makes a motion to make a positive motion to approve the addition of these two extra conditions and would reference appeal 2007-048. The previous conditions that were noted in the original piece and to include within that two additional conditions # 8 and 9 on pages 2 and 3 of the staff’s material. William Newton reads #8 AND #9. He would incorporate those to the original findings of fact Mr. Burke suggests for the fact of clarity that the property which has been referenced as Zero Sea View Avenue in the judgment but 249 Sea View Avenue in the zoning appeal is the same and should be added. Seconded. Vote: AYE: Brian Florence, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None TWO ADDITIONAL CONDTIONS HAVE BEEN ADDED AND SPECIAL PERMIT 2007-048 HAS BEEN GRANTED Laura Shufelt then calls the Berry appeal and reads it into the record. Special Permit No. 2007-107 Berry

Request for a One-Year Extension By letter dated December 19, 2008 from Attorney Eliza Cox, John P. Berry and Margaret D. Berry have requested a one-year extension of Special Permit No. 2007-107 issued January 23, 2008 for the demolition of an existing nonconforming dwelling and rebuilding of a new dwelling maintaining the nonconforming front yard setback. The request is being made pursuant to MGL Chapter 40A, Section 9. The subject lot is addressed 111 Ocean Drive, West Hyannisport, MA and is shown on Assessor’s Map 266 as parcel 005. It is in a Residence B Zoning District.

Members assigned: Alex Rodolakis, Craig Larson, Michael Hersey, William Newton, Laura Shufelt Attorney Eliza Cox is representing the applicants and hands out a copy of “LEXSTAT MASS. ANN. LAWS-CH 40A §9”.to the Board members. She gives a summary of the relief being sought. She indicates that she disagrees with the Board not being able to extend the special permit. She indicates that she handed in a copy of Chapter 40A Section 9. She reads a paragraph from that handout. She indicates that the home rule amendment of the Massachusetts constitution states that towns can adopt local bylaws which are not inconsistent or in conflict with the state statute or any law enacted by the general court like chapter 40A, the zoning act. She indicates that on page 2, fourth paragraph it says that “zoning ordinances or bylaws may provide that certain classes of special permits, etc. Now when you contrast that with the language she has highlighted it provides that (in that paragraph) zoning ordinance or bylaws “shall” provide and so that this is not discretionary language and this requires that zoning bylaws adopt this type of language contained in this highlighted paragraph and when the statute mandates that a town adopt certain language, the town cannot deviate from that language otherwise it would be inconsistent with the state statute. In this case, the word “shall” mandates that the zoning bylaws allow for extension of special permits upon showing of good cause. In this case any interpretation of our local zoning bylaw including section 240-125(C)which is the period of validity of special permits, which prevents or prohibits the zoning board from recognizing and granting extensions of special permits upon showing of good cause, is inconsistent with the zoning act and therefore she believes cannot stand or, to put it another way, it is not a matter of what is printed in our zoning bylaw, it would be unlawful to interpret and that section would be void if it were interpreted to prevent this Board from granting extensions upon a showing of good cause. The state statue requires that the language be in zoning bylaws. She disagrees with “allows” in the staff report and refers back to the language of the statue which says “shall”. It doesn’t allow, it requires that this language be in our local zoning bylaw. She believes there is good cause in this case. She indicates that the Berry’s are selling their townhouse in Southborough to utilize the proceeds in order to allow for the reconstruction of the house authorized by the decision. The townhouse has been on the market for over 2 years and, given the current economic climate, they have not been able to sell the house. The Berry’s live in Barnstable and have worked here and they are asking for a one year extension and ask the Board’s consideration in granting this one year extension. Brian Florence believes that intent of the language is that the special permit granted not be beyond the two year period. He does not disagree that this Board does not have the authority to grant the extension notwithstanding the comments made by Attorney Cox’s argument. William Newton comments that he believes that if it says something that you can actually do, you can do it but if it is silent you cannot do that. He is not sure if he is comfortable with changing the ordinance.

Attorney Cox indicates that the local zoning act has to be consistent with the State zoning act and this requires that zoning bylaws provide for a set period of time for a special permit but it also provides that it can be extended for a showing of good cause and if you interpret your local bylaw to be inconsistent with that, that section is of your local bylaw is void because it cannot be inconsistent with the State zoning law. Alex Rodolakis comments that the Town had been asked to amend this but did not act on it and indicates that they must’ve known what the issue is and are bound by what the Town has or hasn’t done. Attorney Cox indicates that she is agreeable to continuing this in order for them to get the opinion of the Town Attorney’s office. William Newton makes a motion to take a couple of weeks in order for Town Council to weigh in on this and suggests that maybe her clients can pursue a building permit for additional time. Laura Shufelt asks if there is anyone here from the public who would like to speak either in favor or in opposition. No one speaks. Motion to continue this to February 11, 2009 in order for the Town Council to weigh in on this issue as to whether in fact this Board has the ability or not to make a change. Also, allowing Attorney Cox to pursue another way to approach this. . Seconded. Vote: AYE: Alex Rodolakis, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None CONTINUED TO FEBRUARY 11, 2009 at 7:05 PM. Laura Shufelt indicates that she will take up the minutes from November and December at the next meeting. Motion to adjourn Seconded All in favor Meeting adjourned at 8:18 PM.

Town of Barnstable

Zoning Board of Appeals Minutes

February 11, 2009

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday February 11, 2009 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Art Traczyk – Principal Planner and Carol Puckett – Administrative Assistant.

Laura Shufelt Present James McGillen Absent Michael Hersey Present Craig Larson Present William Newton Present Alex Rodolakis Present Nikolas Atsalis Present Brian Florence Absent George Zevitas Present

Laura Shufelt opens the hearing at 7:04 PM. She reads a summary of the appeals to be heard tonight. She indicates that there has been a letter 7:00 PM Appeal 2009-003 – Continued Hirsch

Expand/Alter a Nonconforming Dwelling

Opened January 14, 2009, continued to February 11, 2009 at request of the applicant. The continuance is requested to allow for review of the plans for an as-of-right building permit. As of this date, no application has been made to the Building Division.

Steven Hirsch and Steven Hirsch as Trustee of the 131 Ocean View Realty Trust has petitioned for a Special Permit pursuant to Section 240-92 Nonconforming buildings or structures used as single- and two-family residences. The petitioner is seeking to modify a single family structure with a portion of its reconstruction encroaching into a 10 foot side yard setback though no closer than existing encroachment. The subject property is addressed as 131 Ocean View Avenue, Cotuit, MA and is shown on Assessor’s Map 034 as Parcel 060. The subject property is located in a Residence F Zoning District.

Laura Shufelt reads the letter from Attorney Kirrane asking for a withdrawal.

Members assigned: Craig Larson, Michael Hersey, William Newton, George Zevitas, Laura Shufelt:

Michael Hersey makes a motion to allow the applicant to withdraw.

Seconded

Vote: AYE: Craig Larson, Michael Hersey, William Newton, George Zevitas, Laura Shufelt NAY: None

WITHDRAWN

She then calls the Berry appeal and reads a letter from the Attorney Eliza Cox asking for a continuance until April 15, 2009.

Appeal 2007-107 - Continued Berry Request for a One-Year Extension

Administrative Process discussed by the Board on January 14, 2009, continued to February 11, 2009, to allow for a review by the Town Attorney’s Office

A January 16, 2009, letter requested Town Attorney Ruth J. Weil review and input on the issue of the Board’s authority to grant extensions of special permits issued pursuant to Section 240-125.C(3) of the Zoning Ordinance. Attorney Weil review is attached.

Members Assigned: Alex Rodolakis, Craig Larson, Michael Hersey, William Newton, Laura Shufelt

By letter dated December 19, 2008 from Attorney Eliza Cox, John P. Berry and Margaret D. Berry have requested a one-year extension of Special Permit No. 2007-107 issued January 23, 2008 for the demolition of an existing nonconforming dwelling and rebuilding of a new dwelling maintaining the nonconforming front yard setback. The request is being made pursuant to MGL Chapter 40A, Section 9. The subject lot is addressed 111 Ocean Drive, West Hyannisport, MA and is shown on Assessor’s Map 266 as parcel 005. It is in a Residence B Zoning District.

Members assigned: Alex Rodolakis, Craig Larson, Michael Hersey, William Newton, Laura Shufelt

Laura Shufelt makes a motion to continue this to April 15, 2009.

Seconded

Vote: AYE: Alex Rodolakis, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None

CONTINUED TO APRIL 15, 2009 at 7:00 PM

She then gives a summary of the rest of the appeals being heard tonight. She indicates that it is not quite 7:15 and will wait until then to call the Corey appeal.

Remand Appeal No. 2006-024 Corey

Conditional Use Highway Business District

By a Joint Motion to Remand, the petition of Donald J. Corey, Jr., that sought a Special Permit pursuant to Section 240-25 (C)(1) Conditional Use in a Highway Business District and Modification of Special Permit No. 1969-66 to redevelop property for the retail sales of liquor, has been remanded back to the Zoning Board for further proceedings to consider a withdrawal of the petition. The property is addressed 1030 Falmouth Road (Route 28), Centerville/Hyannis, MA, and is shown on Assessor’s Map 250 as parcel 065. It is in a Highway Business and Residence D-1 Zoning District.

At 7:27 Laura Shufelt indicates that they will hold off on the Corey appeal until the end of the hearing.

At 7:30 Laura Shufelt calls the Cape Cod Five Cents Savings Bank appeal. She reads it into the record.

Appeal No. 2009-005 - New Cape Cod Five Cents Savings Bank Conditional Use Drive-thru Banking

.

Cape Cod Five Cents Savings Bank has petitioned for a Special Permit pursuant to Section 240-25.C(1) Conditional Use Special Permit in the Highway Business Zoning District. The petitioner is seeking to add a second drive-thru banking lane to the existing banking facility including the extension of the existing roof canopy and installation of an automatic teller machine (ATM). The property is located within the Centerville Shopping Center and is addressed 1620 Falmouth Road, Centerville, MA. It is shown on Assessor’s Map 209 as parcel 013, and zoned HB - Highway Business.

Members assigned: Craig Larson, Michael Hersey, William Newton, Nik Atsalis, Laura Shufelt

Attorney Myer Singer from Dennisport is representing the applicant. Also with him are Peter Sullivan of Sullivan Engineering, the executive vice-president and treasurer of the Cape Cod Five Cents Savings Bank, Philip Wong, Don Lonergon, the architect.

Attorney Singer indicates that they are seeking a second drive-up window at the bank and gives a summary of the relief being requested. He gives a history of when the bank was built and hands in a picture of the locus to the Board members. He points out where the current drive-up window is located. He indicates that in 1974 the bank was built and that plan showed a drive-up lane which they had not exercised that plan. They are also asking for a conditional special permit for the existing drive-up window to clear up the record for that window. He cites the reasons according to the conditions of a special permit. The existing drive-up windows have existed since 1974 and there hasn’t been any adverse effect. The number of transactions has been stable and this window is not to make it more successful but to serve customers who are waiting in line. There will be improved site circulation as the driveway goes from behind the building into the parking lot and sometimes the vehicles go the opposite way. Also, there will be additional signage, a fire lane with appropriate signage and a sign indicating that it is a one way – do not enter. He believes it will improve and ensure that the present safe conditions continue. All construction will comply with the dimensional requirements. Also, the additional roof area will be compatible with the present building. He points it out on the easel. He has seen the conditions on the staff report and has no problem with any of them except for condition #1, which they would like to mention that the new window will be used both for automatic drive up as well as pneumatic tube function. Also, condition #5 which refers back to #3, and believes #3 should be condition #4 which he believes is a typo. Art indicates that it should be #4.

William Newton asks how the deliveries functions

Attorney Singer indicates that trucks and cars can drive in and go left and go behind the Tedeski’s building.

William Newton asks if all deliveries are just through the back of the buildings

Attorney Singer indicates that he believes they some deliveries are in the front as well as the back.

William Newton asks if Attorney Singer has an issue with the second point of the Site Plan Review.

Attorney Singer explains. Philip Wong indicates that most deliveries for the bank come through the front door.

Michael Hersey comments that the Site Plan letter says that the whole plaza will get deliveries from the west end of the building and asks if that is accurate.

Attorney Singer indicates yes and that they would have to come from the east end of the plaza.

Laura Shufelt asks about the traffic coming around the corner of the bank building.

Attorney Singer indicates that the steel bollards that are coming out.

Peter Sullivan points out the new traffic pattern around the building.

Laura Shufelt asks if there is anyone here from the public who would like to speak either in favor or in opposition.

No one speaks

William Newton does positive findings.

With respect to appeal 2009-005, Cape Cod Five Cents Savings Bank requesting a Conditional Use Special Permit under

Section 240-25.C(1) Conditional Use for a Highway Business Drive-thru banking facility, the Board finds the following facts in place: 1. Section 250-25.C provides that any use permitted in the B District can be permitted as a conditional use within the Highway Business Zoning District. Banks with drive-through are permitted in the B District as-of-right. Therefore, the Board can authorized drive-though banks within the Highway Business Zone by special permit.

2 A site plan process has been completed. They have, in their hands, the approval letter and the site Plan Review Committee what is taken place in the design of this new banking facility is approvable.

3. The banking activity has been ongoing at this locus as a drive-up window since 1974. Over those 35 years the bank has served the community and the neighborhood. The addition of the second drive-thru ATM lane will not substantially add to the traffic nor will it adversely affect the health nor represent a safety issue. It is a full service bank and therefore it should add to the convenience of the community and the public who use the shopping center.

4. No letters in opposition have been received and they have not heard from the general public any adverse comments on it.

5. The location of the bank is within a designated Commercial Activity Center and the proposed addition of drive-thru lanes as accessory to a full service bank is consistent with the Comprehensive Plan’s goals for the Centerville Route 28 Commercial Center and the Centerville Village Plan sections.

Vote: AYE: Nik Atsalis, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None

William Newton make a motion that the requested grant for a special permit be approved with the following suggested conditions that are on Page 4 that he believes council has already gone through and that there has been some small issues around two conditions. The six conditions on Page 4 are the conditions that will be added to this.

Seconded.

Craig Larson wants to add on Condition #1 that the last sentence “should that use be for walk-in banking cease, this permit shall be void. If they can strike the word “walk-in” as it is accessory to the bank. He wants it to read “should that use for banking cease, this permit shall be void”.

Laura Shufelt suggests at the end of the sentence where it says “one drive-thru lane for window banking and the second for automatic banking transactions and wants to add “pneumatic tube transactions and would add that to Condition #1, also on Condition #5 should reference Condition #4 instead of Condition #3.

William Newton accepts the amendments. Vote: AYE: Nik Atsalis, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None

SPECIAL PERMIT GRANTED WITH CONDITIONS

At 7:57 Laura Shufelt calls the Fireman appeal and indicates that the attorney is asking for a continuance to March 25 at 7:15 PM Laura Shufelt reads the appeal into the record Appeal 2009-006 - New Fireman

Appeal of the Building Commissioner

Paul and Phyllis Fireman have appealed the Building Commissioner’s letter of November 19, 2008 pursuant to Section 240-125(B)(1)(a), Appeals from Administrative Official. The letter expresses the Commissioner’s opinion that 92 South Bay Road, Osterville, Mass., constitutes a single lot and that the demolition of the dwelling on the property and construction of two new dwellings on that property is not allowed under the zoning ordinance. The appellant is requesting that the Zoning Board of Appeals overturn the Building Commissioner’s November 19, 2008 letter and find that no zoning relief is required to allow for the construction of two dwelling on the 92 South Bay Road lot. The property is addressed as 92 South Bay Road, Osterville, MA and is shown on Assessor’s Map 093 as parcel 042-001. It is in a Residential F-1 Zoning District and the Resource Protection Overlay District.

William Newton makes the motion to continue this appeal to March 25, 3009 at 7:15 PM. Seconded. Vote: AYE: George Zevitas, Nik Atsalis, Alex Rodolakis, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None

CONTINUED TO MARCH 15, 2009 AT 7:15 PM

Laura Shufelt then calls the Corey remand appeal. She reads it into the record.

By a Joint Motion to Remand, the petition of Donald J. Corey, Jr., that sought a Special Permit pursuant to Section 240-25 (C)(1) Conditional Use in a Highway Business District and Modification of Special Permit No. 1969-66 to redevelop property for the retail sales of liquor, has been remanded back to the Zoning Board for further proceedings to consider a withdrawal of the petition. The property is addressed 1030 Falmouth Road (Route 28), Centerville/Hyannis, MA, and is shown on Assessor’s Map 250 as parcel 065. It is in a Highway Business and Residence D-1 Zoning District.

Members assigned: George Zevitas, Craig Larson, Michael Hersey, William Newton, Laura Shufelt

Attorney David Lawler is representing Donald Corey. He gives a brief history of how this appeal had transpired from relief that was being sought before the Zoning Board of Appeals, the appeal to the Superior Court by an abutter, and the referral to the Cape Cod Commission. He indicates that

his client has found another location for his business, Blanchard’s Liquors, and due to these reasons and others he has requested that the Superior Court matter be remanded back to the Zoning Board of Appeals and is requesting to withdraw his application without prejudice.

Laura Shufelt comments to Town Attorney, Ruth Weil, that the staff report mentions withdrawal with prejudice.

Attorney Weil indicates that in this case that it doesn’t make any difference and would agree with a withdrawal with prejudice as this is not a repetitive petition under MGL 40A section 16 where there is any prejudice as it was approved initially. She thinks that her recommendation is a reflection in the staff report and that the withdrawal be granted rendering the existing permit null and void. She thinks it resolves any issues along those lines.

Attorney Lawler comments that this would make any issues before the Cape Cod Commission moot.

William Newton makes a motion to the remand by Superior Court, that based upon the motion to remand filed with the Board and at the applicant’s request to withdraw 2006-024, he moves to grant a withdrawal with prejudice and that the decision filed by the Board on April 30, 2008 that granted a permit be hereafter null and void.

Attorney Lawler indicates that the joint request is without prejudice and that the Town did not object.

William Newton indicates that he will amend it to be a withdrawal without prejudice.

Michael Hersey seconds. Vote: AYE: George Zevitas, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None


At 8:05 Laura Shufelt opens the Lemos/Prifti appeal and reads it into the record. Appeal 2009-009 - New Lemos/Prifti

Demo/Rebuild Nonconformity to Setbacks

John A. Lemos and Veni Prifti as Trustees of Lemos Prifti Realty Trust has petitioned for a Special Permit pursuant to Section 240-91.H(2) Nonconforming Lot - Developed Lot Protection. The petitioner is seeking the permit to allow for the demolition of the existing dwelling and rebuilding of a new single-family dwelling. The location of the proposed dwelling is based upon the location of the existing dwelling and not in conformity to the required 30-foot minimum front yard setback of the zoning district. The property is addressed 19 Bay Lane, Centerville, MA and is shown on Assessor’s Map 186 as parcel 067. The property is in a Residence D-1 Zoning District.

Members assigned: George Zevitas, Craig Larson, Michael Hersey, William Newton, Laura Shufelt

Attorney Ford is representing the applicant. Also present is Michael Leddy, the builder. Attorney Ford indicates that this project is under construction and that a building permit was applied for. It was an existing single family home and was issued a demo/rebuild as-of-right. A foundation and

demo permit issued and it was thought it complied. It was only discovered after the foundation was put it that the setback did not comply. He indicates that t is an improvement by 4 feet but does not meet the current setback requirements of the district. He then indicates that Mr. Leddy was issued a stop work order because of it and consulted Michael Ford which in turn is why they are applying for a special permit. He indicates that all other requirements are met except for this one setback. He suggests that there is no more substantial detriment and that this will be in greater compliance. It has 2 bedrooms currently and they are not seeking more bedrooms.

Craig Larson asks if Attorney Ford or his client has a problem on condition #2 if they had to go to the Board of Health and Registry of Deeds to have this restricted.

Attorney Ford indicates that he doesn’t believe this is a nexus, if they record this it will permit it will be on record.

Attorney Ford indicates that they don’t have a problem with it being deed restricted.

Laura Shufelt asks if there is anyone here from the public who would like to speak either in favor or in opposition. No one speaks

Craig Larson makes findings.

John A. Lemos and Veni Prifti as Trustees of Lemos Prifti Realty Trust has petitioned for a Special Permit pursuant to Section 240-91.H(2) Nonconforming Lot - Developed Lot Protection. The petitioner is seeking a special permit to allow for the demolition of the existing dwelling and the rebuilding of a new single-family dwelling. The location of the proposed dwelling is based upon the location of the existing dwelling and not in conformance with to the required 30-foot minimum front yard setback of the zoning district. The property is addressed 19 Bay Lane, Centerville, MA and is shown on Assessor’s Map 186 as Parcel 067. The property is in a Residence D-1 Zoning District.

The locus is a 0.43-acre lot. According to the Assessor’s record it was originally developed in 1947 with a one-story, 1,239 sq.ft, two-bedroom single-family dwelling with a 308 sq.ft. attached garage.

In 2008, a building permit was sought to demolish the existing dwelling and reconstruct a new two-story, 3,119 sq.ft., two-bedroom single-family dwelling with an attached garage

Plans for the demolition and reconstruction were submitted to the Building Division and on December 11, 2008, Building Permit No. 200806635 was issued for the demolition of the existing dwelling and Building Permit No. 200806633 was issued for the construction of the new dwelling. The plans submitted with those applications conformed to the lot coverage and floor area ratio limitations

On January 21, 2009 the builder was notified of the error and instructed to halt construction on the garage area of the home and to seek relief from the Zoning Board.

Upon further review, it has been determined that the infringement is a 12 sq.ft. corner of the garage foundation which intrudes into the front yard setback area. The front yard setback of the foundation is 26.5 feet. An infringement of 3.5 feet. The applicant is now before the Board seeking a Special Permit pursuant to Section 240-91.H(2), Nonconforming Lot - Developed Lot Protection by Special Permit, to allow for the rebuilding based

upon the pre-existing, legally created nonconformity in the front yard setback of the original structure

The application falls within a category specifically excepted in the ordinance for a grant of a special permit.

Section 240-91.H of the Ordinance provides for the demolition and rebuilding of a new dwelling on pre-existing, legally-created nonconforming lot including the continuation of certain nonconformities in structure setback by special permit. Special permits under this section are to be issued in combination (demolition of the existing dwelling and rebuilding of a new dwelling). In this instance, a demolition and building permit had been issued prior to the need for this special permit being discovered. The discrepancy in the front yard setback was an honest oversight and sufficient information exists to evaluate the request.

After evaluation of all the evidence presented, the proposal fulfills the spirit and intent of the zoning ordinance and would not represent a substantial detriment to the public good or the neighborhood affected.

The need for this special permit is for only 12 sq.ft., of the building which infringes into the front yard setback. The rest of the structure conforms to all setback requirements. The 26.5 foot front yard setback is more conforming than the prior building that was located 22.7 feet off Bay Lane. Although the building is larger in gross area, the lot coverage is expanded by only 256 sq.ft. The dwelling is to remain a two bedroom dwelling and would therefore not represent an increase in nitrogen loading in this area of concern for protection of coastal embayments.

The demolition/rebuilding provision in the Ordinance is specifically designed so that the new dwelling can be located based upon the prior building. The proposal therefore fulfills the spirit and intent of the zoning ordinance and would not represent a substantial detriment to the public good or the neighborhood affected.

Vote: AYE: George Zevitas, Craig Larson, William Hersey, William Newton, Laura Shufelt NAY: None Craig Larson makes a motion that the Board grant the relief for the demolition and reconstruction of a single-family dwelling on an undersized lot not in compliance with required front yard setbacks - it may wish that they will do the following conditions: They will condition #1 through 5 with the amendment on #2 that they will supply a Board of Health deed restriction for a two bedroom house filed at the Registry of Deeds and prove to the Building Commissioner upon occupancy permit. Seconded

Vote: AYE: George Zevitas, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None

SPECIAL PERMIT GRANTED WITH CONDITIONS

Nik Atsalis leaves at 8:20 PM Laura Shufelt calls the Pendergast/Cape Cod Package Store appeal at 8:21 PM. She reads the appeal into the record. Appeal No. 2009-007 & 008 – Continued Pendergast/Cape Cod Package Store

Opened January 28, 2009, continued to February 11, 2009. Continued for additional review; including review by Attorney Ford of case laws that would allow for the Board to grant a special permit and variance to a required provision of the permit, possible improvements at Sachem, Phinney’s and Old Post intersection, and draft findings and conditions. Members Previously Assigned: William Newton, Craig Larson, Laura Shufelt, Brian Florence, George Zevitas Associate Present: Alex M. Rodolakis

Appeal No. 2009-007 Alter/Expand Nonconforming Use

Pendergast Falmouth RD Realty Trust has petitioned for a Special Permit pursuant to Section 240-93.B, Alteration or Expansion of a Pre-existing Nonconforming Building or Structure not used as a Single- or Two-family Dwellings and Section 240-94.B, Expansion of a Pre-existing Nonconforming Use. The petitioner is seeking to expand and alter an existing nonconforming building housing a nonconforming use of a liquor store, the Cape Cod Package Store. The proposal is to expand the existing building with 696 square feet of retail and 428 square feet of office space. The location of the proposed expanded building area does not conform to the required setbacks for the district. The subject property is addressed 1495 Falmouth Road (Route 28), Centerville, MA and is shown on Assessor’s Map 209 as parcel 081. It is in the HO, Highway Office Zoning District.

Appeal No. 2009-007 Variance to Special Permit Provision

Pendergast Falmouth RD Realty Trust has applied for a Variance to Section 240-94.B provision 1. That provision requires that “[a]ny proposed expansion of the [nonconforming] use shall conform to the established setbacks for the zoning district in which it is located, or such greater setbacks as the Zoning Board of Appeals may require due to the nature of the use and its impact on the neighborhood and surrounding properties.” The locations of the proposed additions are within the district’s required 45-foot front yard setback off Falmouth Road (Route 28) and Old Post Road. The subject property is addressed 1495 Falmouth Road (Route 28), Centerville, MA and is shown on Assessor’s Map 209 as parcel 081. It is in the HO, Highway Office Zoning District. Members assigned: William Newton, Craig Larson, Laura Shufelt, George Zevitas, Alex M. Rodolakis

Attorney Michael Ford is representing the applicant. Also here is Kurt E. Raber from Brown, Lindquist, Fenuccio & Raber Architects, Inc. He indicates that BSC is not here this evening. Attorney Ford comments that as indicated in tonight’s agenda, there were several issues that were to be addressed. He discussed with the Town Attorney the ability of the Board to grant a variance who he believes concurs that any provision of the ordinance is able to be varied unless it is specifically prohibited that it be varied and this one is not therefore a variance can be granted. Secondly, they met on site with Dr. Skinner who represented the neighborhood association at Sachem Drive. They met as a group and told them that what they would to see them do in addition to signage, if possible, to have a mirror installed that they would be able to see when they came to the end of the road. The mirror would be installed within the layout of Phinney’s and possibly a portion of Old Post as they intersect. After communicating and meeting with DPW officials, they were informed that the Town has a strict policy that no mirrors are allowed within Town layouts for a variety of reasons due to liability which Dr. Skinner understood. Approved signs were reviewed by Mr. Burgmann and he indicates that a sign might be able to put there but that the money for it is not in the DPW budget. Attorney Ford indicates that his client would expend the money for the sign which they would agree to as a condition of the granting of this relief. He then refers to a recent letter from Dr. Skinner which was submitted to the ZBA asking to withdraw their opposition. He also has seen proposed findings and conditions and comments that the conditions that tie their ability to get Mass Highway approvals of the closure of the curb cut and also the realignment of right-in and right-out as conditions precedent to an occupancy permit, they understand and have anticipated that those conditions. However, he would like to address condition #5 which his calculation for square footage differed from the staff report. He indicates that his calculation is 4038 square feet which includes the recycling section which was not counted which is associated with the retail sales. Also, the additional language in that sentence, they would suggest be stricken from: “the back-of-the store office and storage, accessory to the retail sales shall not exceed 1,018 sq.ft., as shown on Sheet A1.1 Proposed First Floor Plan submitted to the file.” The reason is that the first floor office is a single person real estate office. The office for the store is upstairs and so that office is not accessory to the retail as this would restrict it. His suggestion is that you cross the rest of that out and simply say after the 4, 038, “all is shown on the plans referenced in Condition #2” as in Condition #2 Art has made the permit conditional upon the plans submitted and all the elevations including the floor plans and that they can’t go beyond those. He would also suggest that the next 2 sentences stay: “Retail sales are expressly prohibited for any other area of the building. The basements shall only be used for accessory storage and utilities. However, on the third sentence: “The second floor shall only be used for accessory office and storage.” He would add “to the retail use”. He would also suggest another sentence if they feel necessary, “the first floor office will not be used as accessory to the retail business but will be used as a separate real estate office” as he thought that might clarify it. William Newton asks about site plan review and indicates there is no letter that anything has been approved and asks where they are in the process. Attorney Ford indicates the letter from Site Plan Review is the approval letter and if they need anything more he is unaware of it. He indicates that the last he had heard from either from Growth Management or Site Plan is from Ms. Buntich indicating that she would speak to the Building

Commissioner, Mr. Perry about the Site Plan Review letter and he reads that letter dated December 30, 2008 as an approval letter with two conditions. Art Traczyk indicates that he was under the impression that the Building Commissioner was leery about issuing the letter without those lease components relating to the state land and town property. Attorney Ford indicates that it was never communicated to them and that they have been before them 4 times on this project. JoAnne Miller-Buntich, Interim Director of Growth Management speaks and indicates that during the Site Plan Review process, both her and Steve Seymour have attended various sessions on this project. When this became an issue at the last ZBA hearing she discussed that issue with Attorney Ford, Growth Management staff and DPW staff and they wanted to work to address it. What they did was, the applicant had their traffic engineer from BSC group provide the Board with some information and a follow-up addendum on February 9th. Both engineers agreed that the reconfiguration, the closing of the curb cut on Route 28 and the proposed right-in and right-out only will make the impact on traffic neutral and make it better. Also, they are comfortable with the applicant’s agreeing to permit being contingent upon approval by Mass Highway. Additionally, they offer to facilitate or participate in discussions with the applicant and Mass Highway so that everyone is on the same page. As to the Site Plan Review letter, she spoke to Tom Perry, the Building Commissioner, and indicated that Growth Management was withdrawing their concerns about traffic based on what she had just spoke of. Craig Larson asks if they can condition the special permit on a satisfactory Site Plan Review letter to be submitted. Art Traczyk indicates that you can request a satisfactory letter but essentially what Site Plan Review was concerned about is in the conditions. Craig Larson asks about page 3, #6 “traffic information by applicant” and asks Art Traczyk to explain. Art Traczyk indicates that it was from Attorney Ford’s information from the first session of the hearing and is what the projection was for the peak hour. Craig and Art discuss. Laura Shufelt asks if there is anyone here from the public who would like to speak either in favor or in opposition. Mr. Polia who lives at 118 Sachem Drive in Mattakeese Village talks about the people who had signed the petition which was submitted at the last hearing and indicates that most of them don’t live in the Mattakeese Village and are not involved with the everyday traffic and wants to know what kind of signs will be there and sees people ignoring existing signs. He doesn’t know how the signs will control the traffic and is concerned about the traffic especially in the summer.

Attorney Ford comments that they went to the Centerville Civic Association and the Centerville Beautification Association and the Mattakeese Village and as a whole are satisfied and is not sure they can resolve that site line vision problem that exists on that highway. Laura Shufelt indicates she will do findings. She indicates that they have some new findings in the draft report dated February 4, 2009. She indicates that they are deleting condition #6 and condition #5 as amended by applicant. Craig Larson wants to add on #9 that the Mattakeese Village Association has submitted a letter in support. Laura Shufelt does findings. She summarizes what is written on the latest staff report dated February 9, 2009:

Appeal No. 2009-007

Special Permit pursuant to Section 240-93.B, Alteration or Expansion of a Pre-existing Nonconforming Building and Section 240-94.B, Expansion of a Pre-existing Nonconforming Use

1. In Appeal No. 2009-007 Pendergast Falmouth RD Realty Trust is seeking to expand a nonconforming retail sales business, the Cape Cod Package Store, and to alter and expand a nonconforming building by special permit. The subject lot is approximately 36,000 sq.ft. (.85 acres) and is located at 1495 Falmouth Road (Route 28) and Old Post Road in the village of Centerville. The lot is within the Highway Office Zoning District. It is developed with a single story building which houses the package store including accessory office and storage space owned and operated by the Pendergast family. The building also contains a one-room real estate office which is a principal permitted use in the district.

2. The alteration and expansion of a pre-existing, legally-created nonconforming use is permitted by special permit pursuant to Section 240-94.B of the zoning ordinance. Alteration and expansion of pre-existing, legally-created nonconforming buildings that do not increase the degree of nonconformity is allowed by special permit pursuant to Section 240-93.B. The applicant has requested the permits to allow for the expansion of the liquor store to provide 3,882 sq.ft. of retail sales area and 1,018 sq.ft. of accessory store offices and storage areas on the first floor. The existing 7,753 sq.ft. building is to be enlarged by 1,490 sq.ft. Areas of that expansion are proposed within the required front yard setbacks for the zoning district, however not increasing the degree of the infringement established by the existing building.

3. In concert with the expanded building area and use, the applicant has proposed a series of site improvements that include increasing on-site parking, closure of the easterly curb-cut on Route 28 and relocation and reconfiguring of the westerly curb-cut to function as a right-in and right-out divided driveway only. The site improvement plans have been reviewed by the site plan review committee and submitted to the Board.

4. Public testimony has been received.

5. With respect to Section 240 94.B Expansion of a Pre-existing Nonconforming Use, the retail sale of liquor was legally-created in conformity to zoning. It became nonconforming on July 6, 1998 with the rezoning of this area to Highway Office (HO) by Town Council adoption of Order No. 98-133. The rezoning to Highway Office no longer permits retail sales. The use is not expanded beyond the zoning districts in existence on the date it became nonconforming.

6. Provided certain safeguards are imposed to assure safe ingress and egress to the site that restricts left turning movements from and out to Route 28, the proposed expansion of the retail sales will not be more detrimental to the neighborhood affected or the general public.

Laura Shufelt asks if anyone has any amendments. George Zevitas comments that they were going

to add that there was a letter from the association. Laura adds the following:

7. A letter was received from the Centerville Civic Association in support of this relief.

Vote: AYE: George Zevitas, Alex Rodolakis, Craig Larson, William Newton, Laura Shufelt NAY: None

Based on those findings, Laura Shufelt moves to they grant special permit 2009-007 with the conditions as written in the staff report with the exception to #5 that will read “upon completion of the improvements the retail sales area including the walk–in cooler and vestibule area shall not exceed 4038 square feet” deleting the rest of that sentence. Also, “retail sales are expressly prohibited by any other area of the building and the basements shall only be used for accessory storage and utilities. The second floor shall only be used for accessory office and storage to the retail use. The first floor office shall not be used as accessory to the retail use.”

Attorney Ford wants to amend on the first sentence after the phrase 4038, “all is shown on the plans refereed to in Condition #2”.

Laura Shufelt accepts the amendment.

Laura Shufelt then indicates that Condition #9, will read: “the applicant shall also be responsible to assure the additional signage is installed to alert motorist to turning traffic at the intersection at Phinney’s Lane, Old Post Road, and Sachem Drive. The type and location of the signage shall be determined by the Department of Public Works and the cost of signs and installation shall be the responsibility of the applicant.”

Craig Larson seconds.



Alex Rodolakis then does the findings:

1. In Appeal No. 2009-007 Pendergast Falmouth RD Realty Trust is seeking to expand a nonconforming retail sales business, the Cape Cod Package Store, and to alter and expand a nonconforming building by special permit. The subject lot is approximately 36,000 sq.ft. (.85 acres) and is located at 1495 Falmouth Road (Route 28) and Old Post Road in the village of Centerville. The lot is within the Highway Office Zoning District. It is developed with a single story building which houses the package store including accessory office and storage space owned and operated by the Pendergast family. The building also contains a one-room real estate office which is a principal permitted use in the district.

2. The alteration and expansion of a pre-existing, legally-created nonconforming use is permitted by special permit pursuant to Section 240-94.B of the zoning ordinance. Alteration and expansion of pre-existing, legally-created nonconforming buildings that do not increase the degree of nonconformity are allowed by special permit. However, in this case the expanded areas of the building are situated in the 45 foot front yard setback. Provision 1 of the Zoning Ordinance specifies that any proposed expansion of use shall conform to the established setbacks for the zoning district in which it is located or such greater setbacks as the Zoning Board of Appeals may require due to the nature and use and its impact on the neighborhood and surrounding properties.

3. The subject lot is triangular in shape and is located at the intersection of Route 28, Phinney’s Lane and Old Post Road. The shape of the lot is unique to the zoning district in which it is located as two of its three sides require the 45-foot setback. As a direct result of the shape of the parcel, a literal enforcement of the ordinance creates a hardship as virtually no addition can be accommodated without infringing into this 45-foot setback.

4. The proposed expansion is a modest expansion of the building and when compared to the overall proposed improvements to the site and building, it would not be detrimental to the public good, nor would it be in derogation of the spirit and intent of the ordinance as the expansion will not be located any closer than the closest portion of the existing building to Route 28 and Old Post Road. In addition, much of the existing front yard area abutting Route 28 is paved and devoted to traffic and parking. That area is to be restored to a landscaped front yard area more in keeping with the objectives for yard setbacks.

5. There was opportunity for public comment on this variance and believes they did not receive any public comments.

Vote: AYE: George Zevitas, Alex Rodolakis, Michael Hersey, William Newton, Laura Shufelt NAY: None Alex Rodolakis makes a motion to grant the variance subject to the following conditions: This variance is granted to a specific provision of 240-94B and is subject to all conditions of the special permit that was issued tonight by the Zoning Board of Appeals to the applicant for the expansion of the nonconforming use and building. This variance may only be used in concert with that special permit. Shall that special permit expire, this variance shall also expire Seconded.

Vote: AYE: George Zevitas, Alex Rodolakis, Michael Hersey, William Newton, Laura Shufelt NAY: None

GRANTED WITH CONDITONS

Laura Shufelt indicates that the minutes from December 11, 2008 will be voted on at the next meeting. Board discusses when the next meeting will be which will be on March 25, 2009. Motion to adjourn Seconded All in favor Meeting adjourned at 8:57 PM

Town of Barnstable


March 25, 2009

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday March 25, 2009 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Art Traczyk – Principal Planner and Carol Puckett – Administrative Assistant.

Laura Shufelt Present James McGillen Absent Michael Hersey Present Craig Larson Present William Newton Present Alex Rodolakis Absent Nikolas Atsalis Present Brian Florence Present George Zevitas Present

Laura Shufelt opens the hearing at 7:03 PM. She reads a summary of the appeals being heard tonight. She indicates that the Fireman appeal is being continued and the Oyster Harbors appeal is being withdrawn. She then calls the Campbell appeal and reads it into the record Appeal No. 2009-010 – New Campbell

Family Apartment Variance

Matthew and Erica Campbell have applied for a Variance to Section 240-47.1.A Family Apartments. The applicant is seeking the variance in order to utilize an existing apartment located on the property in a detached accessory garage for a family apartment. The property is addressed 6 Cedar Street, Cotuit, MA and is shown on Assessor’s Map 018 as parcel 055-001. It is in the Residence F Zoning District. Members assigned: Michael Hersey, Craig Larson, William Newton, Brian Florence, Laura Shufelt

Attorney Michael Schulz is representing the applicants. He indicates that also with him tonight are Mr. Matthew Campbell and Mr. Campbell’s father-in-law, Charles Rizzio. Attorney Schulz gives a brief history of the property and the relief being requested. He indicates that the previous owner, Ms. Sequin, was informed at one point that the apartment was illegal, which in turn, she applied for an amnesty apartment/40B which was granted. Ms. Sequin had then sold the house to the Campbell’s who had received a letter that the amnesty apartment had been revoked and that they were required to act. He indicates that Mr. Rizzio rents an apartment locally and that this made sense to have a family apartment. He indicates that the issue before the board, although they are required to meet all the requirements of the family apartment, they cannot meet the requirement that it be attached to the primary residence as the garage with the apartment is detached. He indicates that the apartment has existed for some 23 years and that it provides both an economical and practical use of the structure to allow for a family apartment since the apartment already exists. The detached garage is approximately 40 feet from the main dwelling and would be a substantial hardship financially. The relative placement of the structures on the property is a topographical feature that renders it unique to the property. He also indicates that in May of 2007 a new septic system was installed for 4 bedrooms. Michael Hersey asks how many bedrooms there are in the primary dwelling. Attorney Schulz indicates it is three bedrooms in the main dwelling and one in the garage. Laura Shufelt asks if there is anyone here from the public who would like to speak either in favor or in opposition. Justin Spence of 46 Pine Ridge Road speaks. He asks what this means for the Pine Ridge Road as far as precedent in the neighborhood and for planning as his understanding was that the original was a 40B. He indicates that in the past it wasn’t used for a 40B as there was a lot of traffic and parties. He worries about Pine Ridge as a whole as this is a dirt, small road and that there is a fair amount of traffic. Their real issue is in the summertime as the level and speed of the traffic picks up. What happens is that there is a lot of pedestrian traffic, kids and cars. He asks if the Board is taking into consideration traffic and safety issues. Laura Shufelt indicates that they take every case individually with the merits before them and in this case it is a pre-existing apartment permitted in the past and will look at it to see if it is a detriment to the neighborhood. She indicates that the overall planning issue is one of private roads and how the neighborhood was set up in the first place. She indicates that if the apartment was within the house that it could’ve been granted as-of-right but since it is not that is the reason they are here. She indicates that it has been there for 23 years and was permitted previously.

William Newton asks Attorney Schulz to explain how the topography is one of the conditions of the three prong test. Attorney Schulz indicates that he believes it is the topography, the placement of the buildings on the lot itself. William Newton does findings. With respect to 2009-010 for Matthew and Erica Campbell that relates to a variance to Section 240-47.1A(3) Family Apartments.

1. The subject property is a 0.45-acre lot developed with a one-story, 1,276 sq.ft., three bedroom, single-family dwelling and a detached 1.5-story, 576 sq.ft. garage. The second floor of the garage is improved with a 544 sq.ft. studio apartment unit.

2. On March 29, 2007, the prior owner of the property, Ms. Mary Jo Seguin was granted Comprehensive Permit No. 2007-027. That permit was issued under the Amnesty Section of the Town’s Accessory Affordable Housing Program (Chapter 9, Article II, Section 9-14). That section allows for the issuance of a comprehensive permit and was granted back at that time.

3. In July 2008, Ms. Seguin sold the property to the applicants now before the Board, Matthew and Erica Campbell. Based upon that transfer, on December 11, 2008, the Board’s Hearing Officer revoked Comprehensive Permit No. 2007-027.

4. There is in relationship to whether this unit meets the requirements of the zoning bylaw we find that the apartment unit at 544 sq.ft., does not exceed 50% of the square footage of the existing single-family dwelling.

5. The structure authorized in 1985 could be considered as a nonconforming and therefore could not be compelled to be removed so that it exists as a 544 square foot apartment.

6. The unit is to be occupied by the father of Erica Campbell. (William Newton asks if they have submitted anything that would declare that. Attorney Schulz indicates that they have not but that they will procedurally go through that with the Building Division. Attorney Schulz claims that Charles Rizzio will be the occupant but indicates that Mr. Rizzio might have a significant other with him on occasion and would like to make that clear for the record. William Newton continues and indicates that “The applicant understands that the unit shall not be sublet or subleased and an annual affidavit citing the family member occupying the apartment shall be required by the Building Division.

7. Owing to the circumstances related to soil conditions, shape, or topography , he would find that with regard to shape of the unit already exists, shape relates back

to land and structure, the unit already exists and as it has been said before, it may be considered with respect to meeting setback requirements nonconforming therefore, cannot be compelled to be removed. He thinks it is in the best interest to encourage reuse existing structures.

8. The fact that the second building and the unit exists on the property and to compel the owners to now recreate an apartment within the home or as an addition would be wasteful and impractical. In those respects there is a topographic feature of the two detached building on the property that exists that establishes uniqueness in terms of structures. Also, to compel a literal enforcement of the family apartment provisions would imply a substantial financial hardship to have to duplicate what already exists on the property.

9. The detached building with a second living unit has existed and been used for over 12 years. A new septic system suitable to serve the property.

10. The apartment was only recently installed in 2007 and is up to code, he believes.

Laura Shufelt for a vote on the findings:

Vote:

AYE: Brian Florence

Craig Larson wants to make clear that the septic system was installed in 2007 and not the apartment as stated in the findings. Also, he wants to add that it will not create a substantial detriment to the neighborhood affected. William Newton accepts the amendment. Michael Hersey clarifies that the father-in-law would like to leave this open for a significant other. William Newton asks if the apartment would accommodate two people. Attorney Schulz indicates that it does. William Newton moves that the variance be granted with the following conditions those appear for the Board’s sake on page 4 of the handout material and briefly:

Variance to Section 240-47.1.A(3) to allow for a detached family apartment in an existing detached accessory building located on the property, according to the following conditions::

1. The family apartment shall comply with and be maintained in accordance with all conditions herein, as well as all applicable requirements of Section 240-47.1 for a family apartment, including that the family apartment use is nontransferable to future owners.

2. The family apartment shall be maintained as a studio unit as shown in a plan submitted to the Board entitled “Apartment Above Detached Garage (6 Cedar Street)” and as per those submitted to the Building Division in 2007.

3. The applicant shall reapply for a building permit for the unit. All requirements of the Building Division shall be fully complied with to assure that the unit and building meet all applicable codes, including building, fire, and health.

4. All parking for that unit shall be on-site.

5. Occupancy of the family apartment unit is restricted to two occupants one of which shall be a family member. There shall be no renting of the apartment unit to non-family members and no renting of rooms (lodging) permitted during the life of this variance.

6. During the life of this variance, the buildings located on the property shall not be further expanded nor bedrooms added.

7. When the family apartment is vacated or upon noncompliance with any condition or representation made, including but not limited to occupancy or ownership, the use of the apartment shall be terminated and this variance shall become null and void. At that time, this variance shall cease and the applicant or property owner shall be responsible for the removal of the kitchen and use of the building as an independent living unit. A building permit for the removal of the unit shall also be required at that time.

Attorney Schulz would like to change the language in #6 and be changed that no bedrooms be added but should they would like to add something small to the house that the Board consider to allow them to do this.

They discuss not limiting expanding the primary structure.

Art Traczyk comments that they did restrict in #2 to the second level because it says “as per plans” and you are also issuing a variance where you are suppose to attach the family apartment to the home. If they are going to expand that home why don’t they meet the ordinance and put that apartment as an attachment to the home. Part of the variance conditions are here because it exists and you want to reuse it.

Attorney Schulz indicates that at the present time the garage is where the apartment is located and being economical and reusing what is there at this point is the practical location for it and didn’t want to forgo any options in the future such as in 20 years down the road, should they be looking for more space and wanted to bump out an area of the house, which would not include a bedroom, he wanted to make sure that the language or the condition of the variance would allow for something like that and making sure that they were in compliance with the bedrooms.

Art Traczyk indicates that they could sacrifice the variance, make it null and void and remove the apartment and could expand the house to any size in compliance with zoning.

Michael Hersey comments that if they were to expand the basement they would need a permit for that which would violate the variance and lose the apartment and doesn’t think that is fair. He comments what if they have more children and need more space; he doesn’t think they should be precluded from that.

Art Traczyk recommends that the garage should not be expanded if they grant this variance and would be tempted to put a limitation onto the house as in some point in time you want it to comply with zoning which is one single family dwelling and a family apartment to be attached to the primary dwelling. He indicates that a family apartment is only supposed to be temporary.

William Newton amends condition #6 indicating that “during the life of this variance the apartment unit located within the garage structure shall not be further expanded or bedrooms added”.

Laura Shufelt indicates that she will take a vote just on that amended condition #6.

Craig Larson agrees, Michael Hersey agrees, William Newton agrees, Brian Florence agrees. Laura Shufelt does not agree.

Vote is now taken for granting of the variance:

Vote: AYE: Brian Florence, Michael Hersey, William Newton, Craig Larson, Laura Shufelt. NAY: None


Laura Shufelt then calls the Roy’s request for an extension.

By letter dated and received March 24, 2009, Attorney Paul Revere, III, on behalf of Linda H. Roy, has requested a 6-month extension of Bulk Variance No. 2008-027 issued May 13, 2008 to Ms. Roy for property addressed 9 & 29 Boulder Road, Barnstable, MA. The variance was issued to permit an undersized vacant lot addressed as 9 Boulder Road, Barnstable to be separated from the developed undersized lot it has merged with at 29 Boulder Road, Barnstable. The variance was to Section 240-13.E of the Barnstable Zoning Ordinance, Bulk Regulations, Minimum Lot Area that requires a minimum lot area of one acre. The variance was granted to both of the lots as both are under that minimum area requirement. The variance was recorded at the Barnstable Registry of Deeds in Book 22986, Page 346 on June 18, 2008.

Art Traczyk indicates that with the six month extension the new expiration date will be November 12, 2009. Laura Shufelt asks Art to read what the language is for the extension of the variance: “.If the rights authorized by a variance are not exercised within one year of the date of grant of such variance such rights shall lapse; provided, however, that the permit granting authority in its discretion and upon written application by the grantee of such rights may extend the time for exercise of such rights for a period not to exceed six months; and provided, further, that the application for such extension is filed with such permit granting authority prior to the expiration of such

one year period. If the permit granting authority does not grant such extension within thirty days of the date of application therefore, and upon the expiration of the original one year period, such rights may be reestablished only after notice and a new hearing pursuant to the provisions of this section”

Art Traczyk indicates that they would need a new variance if the Board does not grant it.

Members assigned: Nik Atsalis, Craig Larson, Michael Hersey, William Newton, Laura Shufelt

The applicant, Mrs. Roy, indicates that she had tried to sell the lot but the real estate market is slow and now wants to convey the lot to her children and just didn’t want the time frame to run out.

Michael Hersey makes a motion to grant the extension.

Seconded.


SIX MONTH EXTENSION GRANTED

Laura Shufelt calls a 5 minute recess.

Back in session.

Laura Shufelt then calls the Fireman appeal

Appeal No. 2009-006 - Continued Fireman Appeal of the Building Commissioner

Opened February 11, 2009, continued to March 25, 2009 at request of the applicant. No Members Assigned - No Testimony Taken


She indicates that the Attorney Eliza Cox has requested a continuance. Laura Shufelt indicates that this will be continued to May 20th at 7:00 PM

Motion is made to continue

Seconded

Laura Shufelt indicates that members sitting on this will be determined when they open the hearing at that time.

Vote: AYE: George Zevitas, Brian Florence, Nik Atsalis, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None

CONTINUED TO MAY 20, 2009 AT 7:00 PM

Laura Shufelt then calls the Oyster Harbor Club appeal. Appeal 2008-008 – Continued Oyster Harbor Club

Expand/Alter Nonconforming Use Originally Opened February 27, 2008, continued; March 12, 2008, April 30, 2008, May 21, 2008, June 11, 2008 and to June 23, 2008, Moved to September 10, 2008, Re-noticed Anew due to the loss in quorum and Opened October 15, 2008, continued December 10, 2008 and to March 25, 2009. 365-day Extension Filed, Decision Due May 28, 2009.

Oyster Harbors Club, Inc. has petitioned for Special Permits pursuant to Section 240-93.B Alteration and Expansion of a Nonconforming Buildings or Structures Not Used as Single or Two-Family Dwellings; and Section 240-94.B Expansion of a Pre-existing Nonconforming Use. The petitioner seeks to remodel an existing 573 sq.ft., children’s play center and to add another accessory building consisting of 1,096 sq.ft., to also be used as a children’s play center. The buildings and use is accessory to the principal nonconforming use of the property as a country club. The subject property is located as shown on Assessor’s Map 053 as Parcel 012 Lot 001, addressed 170 Grand Island Drive, Osterville, MA. It is in a Residence F-1 Zoning District. This appeal is being re-noticed anew for a complete rehearing of the petition.

Members assigned: George Zevitas, Craig Larson, Michael Hersey, William Newton, Laura Shufelt Laura Shufelt indicates that the applicant’s attorney, Douglas Murphy, has submitted a letter requesting to withdraw without prejudice. Motion is made that the request to withdrawn without prejudice be granted. Seconded Vote: AYE: George Zevitas, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None WITHDRAWN WITHOUT PREJUDICE

Laura Shufelt then calls the Ellis appeal and reads this into the appeal. Appeal No. 2009-011 - New Ellis

Family Apartment Variance

Susan W. Ellis has applied for a Variance to Section 240-47.1.A Family Apartments. The applicant is seeking a variance for a family apartment to be located in a detached accessory garage located on the property. The property is addressed 393 and 389 Main Street, Centerville, MA and is shown on Assessor’s Map 208 as parcel 121. It is in a Residence D-1 Zoning District. Members assigned: Nik Atsalis, Craig Larson, Michael Hersey, William Newton, Laura Shufelt John Ellis and Susan Ellis are here representing themselves. John Ellis indicates that they had been here in October of 2008 represented by Attorney Patrick Butler seeking the use of the detached family garage as a separate dwelling unit./ On the advise of Attorney Butler they withdrew their appeal without prejudice. He indicates that there has been a change in their family dynamics since that hearing and one of his family members is now requesting a place to stay and thus they are asking for relief for a family apartment. He indicates that Susan’s mother had occupied the apartment from 1986 until she passed away in 2007 and this apartment has its own water, cable, electric and title 5 septic system. He indicates that all permits and fees were accomplished before occupancy and no new construction is proposed by this application. They seek relief from the zoning ordinance that a family apartment be permitted. He indicates that he has a letter from Joseph and Betsy Butera which he submits to the Board. Laura Shufelt asks who will be living there. Mr. Ellis indicates that he would prefer not to disclose her identity on television. Laura Shufelt asks Mr. Ellis if he is aware that it has to be that person’s primary residence and there is a yearly affidavit that must be done. Mr. Ellis indicates he is aware since he had done it for 23 years for his mother-in-law. She then asks if there is anyone here from the public who would like to speak either in favor or in opposition. No one speaks. Laura Shufelt reads the letter from the Butera’s into the record. (See attached). Michael Hersey clarifies that this apartment has its own title 5 septic system. William Newton does findings.

Susan W. Ellis has applied for a Variance to Section 240-47.1.A Family Apartments

1. The applicant is seeking a variance for a family apartment to be located in a detached accessory garage located on the property.

2. The accessory structure is a separate dwelling unit on the lot via a variance of variance from Section 240-14.A - Principal Permitted Uses. That use variance was withdrawn without prejudice upon request of the applicant’s representative sometime back.

3. The subject property is a 0.58-acre lot developed with a principal building and a detached accessory building. According to the Assessor’s record, the principal building was constructed in the 1850’s. It is a 1.5-story, three-bedroom, single-family dwelling of 1,973 sq.ft. The accessory building is a 1.5-story structure that contains an 808 sq.ft., two-bedroom dwelling unit and garage.

4. In 1986, the principal dwelling was issued a septic repair permit for a four bedroom dwelling. The systems installed rely upon cesspools for leaching and are grandfathered systems not in conformity to current Title 5 or local Board of Health requirements.

5. In the case of the family apartment, it was created legally by a special permit issued in 1986. There is no new construction being proposed by this application. The apartment unit at 808 sq.ft., does not exceed 50% requirement of existing square footage existing single-family dwelling. The family apartment complies with the setback requirements for the Residence D-1 Zoning District in which it is located. This apartment will be occupied by one person who is a daughter (unnamed).

6. Owing to circumstances related to soil conditions, shape, or topography with respect to the shape he thinks that again as previous, the unit does exist, has been there for some time and that shape and that requirement meets the requirements of the shape factor.

7. A literal enforcement of the provisions of the zoning ordinance would involve substantial hardship.

8. The second building has existed on the property for over 100 years. Use of the family apartment was legally created by special permit and has existed for 23 years. The present family apartment provision does not allow detached units. This fact affects this owner of the property but generally does not affect other lots in the zoning district.

9. To now compel a literal enforcement of the family apartment provisions would imply a substantial financial hardship on the applicants because the unit already exists on the property as a detached structure.

10. The desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the zoning ordinance.

11. The use continues as a family apartment it should not constitute a substantial detriment to the public good without nullifying or substantially derogating from the intent or purpose of the zoning ordinance. It has been there, it is there today, and will continue to be used as such.


William Newton makes a motion to grant the variance to Section 240-47.1.A Family Apartments with the following conditions as listed on Page 5 of the Staff Report and reads them:

1. The family apartment shall comply with, and be maintained, in full compliance with all other requirements of Section 240-47.1 for a family apartment as-of-right as well as all conditions in this decision.

2. The family apartment shall be maintained as a one bedroom plus loft as per the plan submitted to the Board in 1986 with Appeal No. 1986- 012, that originally authorized the family apartment. A copy of that plans has also been entered into this file and are so noted in the file.

3. The applicant shall reapply for a building permit for the unit. All requirements of the Building Division shall be fully complied with to assure that the unit and building meet all applicable codes, including building, fire, and health, as well as the condition imposed in this decision.

4. All parking shall be on-site.

5. Occupancy of the family apartment unit is restricted to family member(s), and this case, a daughter, only as their primary residency. There shall be no renting of the apartment unit to non-family members and no renting of rooms (lodging) permitted during the life of this variance.

6. During the life of this variance, the apartment and the garage in which it is located on the property shall not be further expanded nor bedrooms added.

7. When the family apartment is vacated, or upon noncompliance with any condition or representation made including, but not limited to, occupancy or ownership, the use of the apartment shall be terminated and this variance shall become null and void. At that time, this variance shall cease and the applicant or property owner shall be responsible for the removal of the kitchen and use of the building as an independent living unit. A building permit for the removal of the unit shall also be required at that time.

Seconded

They discuss how many family members can be in the apartment unit. Laura Shufelt asks Mr. Ellis as to how many occupants. They discuss and change it to two members.



At 8:02, Laura Shufelt calls the next appeal:

Appeal No. 2009-022 – New 4 Our Fathers LLC – Joseph P. Dunn, Manager

Modification Special Permits 2003-60 & 2007-44

4 Our Fathers LLC, Joseph P. Dunn, Manager, has petitioned for a modification of Special Permit Nos. 2003-060 and 2007-044 issued to Buksport, Inc., d/b/a Keeper’s Restaurant. The modification is sought to allow for the transfer of the special permits from Buksport, Inc., to 4 Our Fathers LLC as prospective new owners of the business. The subject property is addressed as 330 West Bay Road, Osterville, MA and is shown on Assessor’s Map 116 as parcel 013. It is in a Marine Business A2 Zoning District. Members assigned: Brian Florence, Craig Larson, Michael Hersey, William Newton, Laura Shufelt Attorney Matthew Spillane is representing the applicant. He gives a brief summary of the relief being requested. He indicates that there might be a suggested condition that may not be applicable at this time as a new state-of-the-art exhaust fan was installed and thinks that this might obviate the need for it to be carried over as a condition. He indicates that the applicant had spoken with an abutter and thinks that he had addressed his concern. He indicates that Joe Dunn is going to be the manager and has an interest in the LLC and is the owner of the Island Merchant and is a strong restaurateur. He indicates that Mr. Dunn would be an asset by running this restaurant and that by having this restaurant would be an asset to this area. They are not looking to do anything further or request any changes.

Laura Shufelt asks the Board if they have any questions. George Zevitas asks why this is to be heard before the Board. Art Traczyk explains that in the special permit it was a condition that any transfer would need to come back before the Zoning Board. Also, if they decided to grant this to this new operation, you may want to look at Condition #8 that carries that language forward and makes it applicable to this applicant. Laura Shufelt asks if there is anyone here from the public who would like to speak either in favor or in opposition. Brian Florence makes findings: In the matter of Appeal 2009-022, 4 Our Fathers LLC, Joseph P. Dunn, Manager, has petitioned for a modification of Special Permit Nos. 2003-060 and 2007-044. 4 Our Fathers LLC, Joseph P. Dunn, Manager, has established standing to be before the Board requesting transfer of special permits by virtue of a signed and valid Asset Purchase and Sales agreement between Bucksport Inc., and Joe Dunn dated February 17, 2009 and the addendum submitted with the application that it commits Mr. Dunn to assign the agreement to 4 Our Fathers, LLC.

Further, special 2003-060 and 2007-044 were issued pursuant to today’s Section 240-94.B of the Zoning Ordinance, Expansion/Alteration of a Nonconforming Use. MGL Chapter 40A Section 14, Powers of the Zoning Board of Appeals, empowers the Board with the authority to modify any decision it makes. In addition, the permits issued specify that they are transferable to future owners by permission from the Board. Therefore, the Board is authorized to act on the request before them.

This application before the Board is only seeking a transfer of the prior permits issued for the restaurant use to a new corporate identity and manager. It is not seeking any other modification of the prior conditions and restrictions imposed or an intensification of the use. Therefore, the proposed modification does not represent a change from what has been occurring on the site since 2001 and to grant the modification would not represent a substantial detriment to the public good or the neighborhood affected and would not derogate from the intent of the bylaw.

The application before the Board does not propose any alteration of modification to the property and site. The new applicant is to operate the business and maintain the site as the prior applicant has and therefore there is no need for an updated site plan review. Vote: AYE: Brian Florence, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None Brian Florence makes a motion to issue a new single special permit with Conditions #1 through #7 as stated in the Staff Report.

Seconded. They discuss Condition #4 and agree to remove it pertaining to the baffles and sound insulation material so that the noise reduction devices be maintained. Laura Shufelt asks Attorney Spillane if he is agreeable to the language. He agrees. Vote: AYE: Brian Florence, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None

GRANTED WITH CONDITIONS Laura Shufelt indicates that she had not had time to review the previous minutes and will do so at the next meeting. Motion to adjourn Seconded Meeting adjourned at 8:17 PM.

Town of Barnstable


April 15, 2009

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday April 15, 2009 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Art Traczyk – Principal Planner and Carol Puckett – Administrative Assistant.

Laura Shufelt Present James McGillen Absent Michael Hersey Present Craig Larson Present William Newton Present Alex Rodolakis Present Nikolas Atsalis Absent Brian Florence Present George Zevitas Present

Laura Shufelt opens the hearing at 7:02 PM. She introduces the board and indicates that there are 3 appeals and one extension request. She reads a summary of the appeals being heard tonight. She then calls the Berry appeal and reads it into the record. Appeal No. 2007-107 - Continued Berry Request for a One-Year Extension

This was continued to allow for legislative action to consider amending of the Zoning Ordinance to clarify the Board’s authority to extend special permits. A proposed amendment to Section 240-125.C, that would provide for extensions of special permits, has been drafted. It is scheduled for a joint Town Council and Planning Board public hearing on May 7, 2009.

By letter dated December 19, 2008 from Attorney Eliza Cox, John P. Berry and Margaret D. Berry have requested a one-year extension of Special Permit No. 2007-107 issued January 23, 2008 for the demolition of an existing nonconforming dwelling and rebuilding of a new dwelling maintaining the nonconforming front yard setback. The request is being made pursuant to MGL Chapter 40A, Section 9. The subject lot is addressed 111 Ocean Drive, West Hyannisport, MA and is shown on Assessor’s Map 266 as parcel 005. It is in a Residence B Zoning District.

Members assigned: Alex Rodolakis, Craig Larson, Michael Hersey, William Newton, Laura Shufelt

Attorney Eliza Cox is representing the applicant and indicates that she had submitted a letter dated April 13, 2009 requesting an additional extension of this request. She indicates that she has been working with the Town Attorney on a draft zoning amendment to extend special permits and a retroactive provision that would pertain to this particular case. It was opened by Town Council on March 19th and will be heard on May 7th.. She indicates that assuming it gets approved that night, it will be effective 30 days after that and is asking for a second extension which at that time may be able to withdraw this request.

Motion to continue this to June 17, 2009 at 7:00 PM

Seconded.

Vote: AYE: Alex Rodolakis, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None

CONTINUED TO JUNE 17, 2009 AT 7:00 PM

Laura Shufelt then calls the JDJ Housing Development. She reads it into the record.

Comp. Permit No. 2003-090 JDJ Housing Development – Village Green 6-Month Extension Request A letter from Attorney Eliza Cox, JDJ Housing Development LLC, has requested an additional 6-month extension of time for implementing Comprehensive Permit No. 2003-090 issued for the development of the “Village Green”. 760 CMR 56.07 (12) provides for a comprehensive permit to be administratively extended without the need for a public hearing. Comprehensive Permit No. 2003-90, was issued July 9, 2004. Prior to the expiration of the permit the Board granted a one-year extension of the permit to July 9, 2008, a second extension of 6-months to January 9, 2009, and third extension to July 9, 2009.

Comprehensive Permit No. 2003-090 as modified authorized development of 148 rental apartment units in five (5) three-story buildings on 14.32 acres. Forty (40) units are to be affordable rental and eleven (11) units committed to “workforce housing”. The Comprehensive Permit was issued to JDJ Housing Development, LLC for property addressed as 770 Independence Drive, Barnstable, MA as shown on Assessor's Map 332, as Parcel 010-1. It is zoned Industrial and is in a Wellhead and Groundwater Protection Overlay Districts. Laura Shufelt indicates that it has been brought to her attention that opponents of this project believe that she has a conflict of interest sitting on this. As she stated, the last time this came up for an extension she did seek an opinion from the State Ethics Commission and according to them she does not have a conflict of interest. Therefore, she will not be recusing herself from this and will be sitting on this. Laura Shufelt asks Attorney Cox if she had anything else to add to her letter. Attorney Cox indicates that she knows that they typically do this administratively but has submitted a request dated April 1, 2009 for a 6 month extension of this comprehensive permit. She supplemented that correspondence with a letter dated today and faxed it to Mr. Traczyk. She indicates that the 760 CMR 56.00 are the regulations that govern the issuance of comprehensive permits, specifically 5.12.(c) thereof relates to how these permits can be extended for good cause and that such extensions shall not be unreasonably denied. The regulations also make clear that these requests for extensions are not substantial changes and are to be handled administratively by the Board without a public hearing. She indicates that because of the economic crisis, which in particular is felt within the affordable housing market, is making it impossible to obtain financing for these projects. The applicant had previously made arrangements with the lender for the project but that lender is not currently lending in this market. The applicant is continuing to work with the Town Attorney and the Town Manager on this project. She indicates that the inability to move forward is good cause to grant this 6 month extension for a project of this size which has already been permitted and start the compliance required under the comprehensive permit and asks that the Board grants this request. Laura Shufelt indicates that at this time she would like Art Traczyk to go over his email, for the record, he gave to the Board regarding the 40B regulations as it relates to extensions. Art Traczyk reads 760 CMR 56.05 12(C). He also indicates that the letter that the Board has references financing and indicates that it is up to the subsidizing agency. He suggests that this be handled purely administratively by the Board for the extension. Laura Shufelt indicates that the initial letter did not have a reason for an extension and will only allow public comment relating to the topic of cause. Attorney Joseph Berlandi introduces himself and indicates that he is here representing the Cummaquid Heights Association in this area with over 200 homeowners who are in opposition to this extension. He does not believe that this applicant shows good cause and that the law indicates that they must show good cause. He indicates that it goes beyond what Mr. Traczyk had said,

includes financial feasibility, and since day one that project has not been and that the law clearly states that the developer must have good cause which must include financial feasibility. Laura Shufelt indicates to Attorney Berlandi that she will not allow him to discuss financial feasibility as that is not the issue before the Board. Attorney Berlandi indicates that he is requesting that the Board deny this request for an extension until the developer submits supporting documentation and evidence for delay. Bud Bergstrom of 73 Indian Hill Road speaks and indicates that he has been involved with an organization that has opposed this from the beginning. He wants to refer to the statute that Mr. Traczyk read but indicates that there were some parts that he did not read and wants to read it. He reads it and asks what is “good cause” and “or approval required for the project”. He comments that if the attorney indicates that they are awaiting approval results of an appeal, then according to the statute, it would then be good cause. He doesn’t see anything here in the statute indicating that they can wait until the finances get better. Also, this project was approved 5 years ago and the developer said that it was financially right on the precipice. He indicates that it doesn’t seem good cause according to the statute. Michael Hersey asks Attorney Cox why it has taken 5 years to secure financing. Attorney Cox indicates that her applicant has been pursuing various financing mechanisms, had a commitment from a bank previously, and that the bank is not presently lending at this moment. Also, he pursued some grant monies from the Town and that didn’t follow through either. There is also a series of permits that were required and easements for the sewer construction, those are now in place. Michael Hersey attempts to ask more about finances. Laura Shufelt indicates that the Board can’t ask questions about finances. Michael Hersey indicates that Attorney Cox is asking for, and her good cause, is finances. Attorney Cox indicates that it is not the finances of the project, it is their inability to get construction financing at the moment. Michael Hersey asks if there is a period they should add on for the tolling of the statute while they are awaiting some type of permit. Attorney Cox indicates that she believes that the tolling period has passed and is typical in permits. Also, the tolling language refers to the 3 year initial grant. It doesn’t refer to the Board’s ability to grant a further extension of the permit.

William Newton asks what is going to happen 6 months from now or 6 months from the end of this current extension. Attorney Cox indicates that hopefully they will start construction within that time period. There are some grants and tax credits that might be forthcoming that might help and move this project and that the applicant has spent a lot of time and money, has commenced with starting the compliance project with several of the conditions of the permit and wants to move forward. Also, the land on which the project is proposed on is owned by the Cobb Trust and the proceeds of that trust will benefit the children of the Town of Barnstable. Art Traczyk indicates that the land has already been transferred into the name of JDJ Development Corporation as the lease has been filed. Michael Hersey asks Art Traczyk that if they were not to grant the extension, what would the recourse be, could they re-file? Art Traczyk comments that he would suspect that they would go to the State and give them the extension and that the State would overrule the Board. Craig Larson asks if the Board is more or less tied to this. Laura Shufelt indicates that the regulation is clear that an extension may not be unreasonably denied and if they came back for a modification they would have to look at whether it would be a substantial or insubstantial modification. Craig Larson so moves. Seconded. Laura Shufelt indicates that they hadn’t assigned anyone yet and then asks for a vote. Vote: AYE: Alex Rodolakis, Brian Florence, Craig Larson, Laura Shufelt, William Newton NAY: George Zevitas, Michael Hersey, Motion passes. 6 MONTH EXTENSION GRANTED Laura Shufelt calls a ten minute recess. Back in session at 7:30. Laura Shufelt calls the Seltzer appeal. She reads it into the record.

Appeal No. 2009-028 Seltzer Alteration/Expansion Nonconforming Building Mark W. Seltzer & Barbara Bengen-Seltzer have petitioned for a Special Permit pursuant to Section 240-92B - Alteration or Expansion of a Nonconforming buildings or structures used as single- and two-family residences. The petitioners are seeking the permit to allow for an addition that encroaches into the 100-foot setback requirement off Route 28. The property is located at 1 Vermeer Court, Osterville, MA. It is shown on Assessor’s Map 145 as Parcel 082. It is in a Residence C Zoning District. Members assigned: Craig Larson, Michael Hersey, William Newton, Alex Rodolakis, Laura Shufelt Barbara Bengen-Seltzer is here representing herself and her husband and is accompanied by the builders, Robert Gremo and Chuck Sorrento. She indicates that when they purchased the house the boundary was 20 feet and that it is now 100 feet. She indicates that they have a fence and that they are asking permission to go into the 100 feet setback in order to build their addition. She indicates that there is a fence and they wouldn’t be touching the fence and it will be well within the fence. William Newton clarifies that the fence is intact and asks if there is room, if need be, for fire personnel to access the lot between the fence and where the addition would be. Robert Gremo, the builder, indicates that it won’t be a problem and that the deck will have stairs coming down to that section of lawn which will be from the right side of the addition to the fence. William Newton asks if there is anything in their proposal about expanding the deck. Mr. Gremo indicates that the deck currently is about 8 feet to the right of the house and they will take another 10 feet to cover the whole back of the family room width. William Newton asks if it would be any closer to Route 28 than the extension itself. Mr. Gremo answers no. William Newton then asks what is going to be the use of the second floor addition. Mr. Gremo indicates that it will be for walk-in storage area and some unfinished area and that there will be a bank of closets only accessible by that bedroom. Michael Hersey clarifies that Mr. Gremo and Mr. Sorrento are the contractors. Michael Hersey indicates that there is a lot of study and bedrooms and wants to know how they will convince him that this will stay a 3 bedroom dwelling. The contractors explain the setup of the rooms. Mr. Gremo has interior views and that they are taking the whole wall and that the room cannot be a bedroom.

Michael Hersey asks if the TV room could be a bedroom. Mrs. Seltzer replies that, in theory, it could. Mr. Hersey comments that he is concerned that this could potentially become a 4 or 5 bedroom house with very little effort. Alex Rodolakis comments that he is concerned about the setbacks and that this would be within 20 feet of the road and thinks they are allowing overbuilding on the road and would not be in favor of granting this permit. Mr. Gremo comments that if you look at the site plan, that the original plans for the house had placement to accommodate a garage, which they don’t have any use for but that it makes the 20 foot setback which was, at the time of construction, legal. George Zevitas comments that it was difficult to get around that dead end area as there were lots of cars and if the house was expanded then there would be more cars which could create a problem. Mrs. Seltzer indicates that they haven’t had a problem with parking and has just 2 cars and has no plans for anymore cars Laura Shufelt asks if there is anyone here from the public who would like to speak either in favor or in opposition. No one speaks. William Newton asks for clarification of what the placement of the addition is and asks how high above Route 28 it sits. Mr. Gremo indicates approximately 10 feet. They discuss how high the lot sits in reference to Route 28. Mrs. Seltzer indicates that the reason they are building the addition is to have more public space as they have no place to entertain, they need to enlarge the kitchen and dining room area and a small portion of that to be a TV room which will be open, and that they are not looking for more bedrooms. William Newton wants to provide positive findings: On Appeal 2009-028 - Mark W. Seltzer & Barbara Bengen-Seltzer for a Special Permit under Section 240-92.B, Alteration/Expansion of a Nonconforming Single-family Dwelling to allow for an addition to encroach into the 100-foot setback requirement off Route 28.

1. The applicant

2. s are proposing an 18 by 22 foot, 1.5-story addition to the south of the dwelling located at 1 Vermeer Court, Osterville. This request is consistent with the provisions of Section 240-92 (B).

3. The addition, estimated at approximately 600 sq.ft., is to be used as a 396 sq.ft. family room opened to the existing kitchen and dining area on the first floor. The second floor of the addition is connected to an existing bedroom and is to be used for storage.

4. The existing building is situated 38.3-feet off Route 28. The proposed addition is to be located 20.4-feet off Route 28 right-of-way, 46 feet from its paved surface, and 20 feet above the road. Some of the planned expansion will cause the dwelling to intrude an additional 18 feet closer to Route 28.

5. Board of Health in its interim regulations with respect to nitrogen loading and is presently limited by that interim regulation to a maximum of 3 bedrooms and there is one bedroom, even if there was an additional 2, you would still be within the 3.

6. The proposed alteration or expansion will not be substantially more detrimental to the neighborhood than the existing building or structure.

7. The application is consistent with zoning provisions for the alteration and expansion of a nonconforming dwelling

8. The proposal fulfills the spirit and intent of the Town’s zoning and would not represent a detriment to the public good or the neighborhood.

No discussion

Vote: AYE: Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: Alex Rodolakis William Newton makes a motion to grant the special permit subject to the following conditions: He would direct the Board’s attention to pages 4 and 5 of the Staff Report. William Newton reads them as follows:

1. Redevelopment of the property shall be as proposed in plans submitted to the Board. The proposed engineered site plan is entitled: “Proposed Plot Plan Barnstable, Mass # 1 Vermeer Court, Osterville” as drawn by Sweetser Engineering, dated 10/22/08. The addition shall be built as per building layout and elevation plans submitted to the file, entitled “Vermeer Court, Osterville”, as drawn by R.P. Gremo and consisting of 5 sheets (A1 through A5).

2. The addition to the dwelling is limited to that 18 by 22 foot, 1.5-story addition shown on the plans.

3. The existing fence will be maintained in its current location with sufficient space provided for the movement around the side of the structure by fire personnel.

4. The total number of bedrooms shall not exceed three (3)

5. The use of the property shall be that of one single-family dwelling in full conformance to the uses permitted in the Residence C Zoning District.

6. Construction shall comply with all applicable building and fire codes.

7. Development shall comply with any order of conditions issued by the Conservation Commission and with any requirements of the Board of Health.

8. This decision must be recorded at the Barnstable Registry of Deeds and a copy of that recorded document must be submitted to the Zoning Board of Appeals Office and to the Building Division before any building permit is issued for the addition. The relief authorized must be executed as authorized in Section 240-125.C(3) of the ordinance.

Seconded.

Laura Shufelt asks the Board if they have any additions or amendments.

No additions or amendments. Vote: AYE: Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: Alex Rodolakis

GRANTED WITH CONDITIONS At 7:51, Laura Shufelt calls the Rubin Hyannis, LLC appeal. She reads it into the record. Appeal No. 2009-027 Rubin Hyannis LLC. Modification or New Conditional Use Permit Rubin Hyannis LLC., has petitioned for a Modification of Conditional Use Special Permit No. 1994-082 issued to John F. Cabana or, in the alternative, a new Conditional Use Special Permit pursuant to Section 240-25.C to allow an expansion of a retail furniture gallery and store. The petitioner proposes to remodel the interior of the existing furniture gallery and convert approximately 6,900 square feet of gross floor area within the basement from storage to a showroom. The property is located at 20 Airport Road, Hyannis, MA and is presently occupied by a Bernie & Phyl’s Furniture Store. It is shown on Assessor’s Map 294 as Parcel 010. It is zoned BH - Highway Business, B - Business, and Ind - Industrial. Appeal No. 2009-026 Rubin Hyannis LLC. Modification or New Parking Special Permit Rubin Hyannis LLC., has petitioned for a Modification of Special Permit No. 1994-081 issued to John F. Cabana or, in the alternative, a new Special Permit pursuant to Section 240-57 - Circumstances Warranting Reduction of Parking Requirements. The petition seeks to maintain 37 on-site parking spaces for the remodeled and expanded furniture gallery retails sales and storage area that would under the zoning ordinance now require 103 on-site parking spaces. The property is located at 20

Airport Road, Hyannis, MA and is presently occupied by a Bernie & Phyl’s Furniture Store. It is shown on Assessor’s Map 294 as Parcel 010. It is zoned BH - Highway Business, B - Business, and Ind – Industrial Members assigned: George Zevitas, Craig Larson, Michael Hersey, William Newton, Laura Shufelt Attorney Eliza Cox is representing the applicant. Also with her is John Wyatt, Director of facilities for Bernie & Phyl’s. Attorney Cox gives a PowerPoint presentation. She indicates that there is one curb cut and some gravel parking spaces and that there are 37 parking spaces on the site. She gives a history of the prior ZBA relief. She explains the relief being requested and indicates that they are looking to convert 6900 square feet of storage in the lower level to a furniture showroom. They will be building a new stairwell in an expanded lobby area on the main level providing customer access to the lower level. She indicates that the applicant is willing to replace the gravel parking with pervious pavers and that no other changes are proposed for the exterior of the building. She indicates that in addition to meeting the Architectural Board Access regulations, an Elevette® chairlift is also proposed providing access to the proposed showroom on the lower level. . William Newton indicates that he has no concern about issuing a special permit for an expansion of the furniture gallery but has an issue with parking. He doesn’t know if he can take a survey seriously done in October of 2008, with the slump in retail sales and can’t believe the numbers or the onsite observation of it. Also, he comments that the applicant still maintains that 37 spaces are more than adequate as the parking had been reduced previously. He suggests that in looking at the site plan, they could, with some redesign, provide additional parking. He is assuming that maybe there would be a spillover in the Kmart Plaza. Also, he asks what is the ratio to parking spaces for their other stores. John Wyatt indicates it varies from town to town. In their Saugus store, the town requires one parking space per 1000 square feet of space. Nashua, New Hampshire requires one parking space per 1000 square feet of retail space. Nashua, New Hampshire is a 3 story building with about 87,000 square feet of retail. Westborough has 55,000 square feet of retail space and they require 3 parking spots per 1000 square feet of retail space. He indicates that in order to satisfy the Westborough requirements, their back lot was needed but is overgrown with weeds and never used. He indicates that in Hyannis they could expand the parking by converting the turnaround they have for trailer trucks which they don’t utilize. He indicates that they can increase the amount of parking or do another study. Attorney Cox indicates that they can get the other ratios from other Bernie & Phyl’s stores. William Newton asks if they have arranged anything with the shopping plaza across the street for overflow.

John Wyatt indicates that they are willing to have the employee’s park off-site which would free up more space for the public. He indicates that also, they do not deliver from the Hyannis store as their furniture is delivered from their Norton warehouse. Alex Rodolakis asks about the restriction regarding a condition about if the building is sold, or leased and thinks it needs to be tightened. Craig Larson comments that maybe they can define gallery showroom as long as it is not a cash-and-carry or discount store. Laura Shufelt comments that the existing special permit is for 38 spaces and cannot find 38 spaces on the site. Attorney Cox indicates that they could squeeze one more parking space but could modify this for 37 spaces. Art Traczyk thinks they should be new permits. Laura Shufelt asks if there is anyone from the public who would like to speak either in favor or in opposition. No one speaks. William Newton comments that he is prepared to vote on the showroom but not on the parking and would like to see figures of other stores and their parking figures. Attorney Cox indicates that she would be happy to do surveys regarding their other stores. She comments that she is not sure about the overflow to the other shopping plaza as there is another furniture store in the plaza and thinks that the employees could park in the truck trailer turnaround. William Newton asks if they would be opposed to coming back with the figures from the parking and whether the shopping plaza across the road would be willing to do anything. Art Traczyk suggests continuing to May 6th at 7:00 PM. They discuss if they want to vote tonight or wait. They decide to continue it to May 6, 2009 at 7:00 PM. Motion to continue Seconded Vote AYE: George Zevitas, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None

CONTINUED TO MAY 5, 2009 AT 7:00 PM Laura Shufelt indicates that there are zoning amendments going before the council on May 7th. One is for the special permit extension. Also there are two ordinances regarding signs. Art Traczyk indicates that this Board will meet again on May 6th which is before the council meets to vote and asks the members to vote to either support these ordinances or not. He will then write a quick letter for input to the council. They discuss doing findings. Laura Shufelt indicates that they are trying to get a workshop on 40B’s and a workshop on ethics scheduled for the members to attend. Motion to adjourn Seconded All in favor. Meeting is adjourned at 8:45 PM.

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Minutes May 6, 2009

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday May 6, 2009 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Art Traczyk – Regulatory Review Design Planner and Carol Puckett – Administrative Assistant.

Laura Shufelt Present James McGillen Present Michael Hersey Absent Craig Larson Present William Newton Present Alex Rodolakis Present Nikolas Atsalis Present Brian Florence Present George Zevitas Present

Laura Shufelt opens the hearing at 7:02 PM. She reads a summary of appeals being heard tonight. She then calls Najarian appeal. Appeal No. 2009-033 - New Najarian Modification of Special Permit 1985-54

Robert A. Najarian, Trustee of Najarian Nominee Trust has petitioned for a modification of Special Permit 1985-54. The petitioner seeks to modify that condition of the permit that restricted the use of a second floor apartment unit to that of the property owner only. The proposed modification requests that use of the apartment be allowed to a person who holds an ownership interest in the licensee of the restaurant located on the first floor of the building. The property is addressed as 167 Sea Street, Hyannis, MA and is shown on Assessor’s Map 307 as parcel 046. It is in a Residence B Zoning District. Members assigned: Craig Larson, James McGillen, William Newton, George Zevitas, Laura Shufelt Attorney Steven J. Pizzuti is representing the applicant. Attorney Pizzuti indicates that the applicant purchased the property in 2005. He indicates that it is a small restaurant with a two bedroom apartment

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on the second floor which the previous Zoning Board had allowed with the exception of a caveat that it had to be occupied by the owner, the question became what owner. He indicates that the building inspector had interpreted it that the owner of the property had to occupy the apartment. In 2007, Dr. Robert A. Najarian brought a modification of the special permit before the Zoning Board and what he sought was to modify the special permit to include the property owner or lessee or owner of the restaurant. He indicates that during that meeting a motion was made and the person who made the motion decided to exclude any employees of the restaurant from residing in the apartment. Three of the members decided to vote against it as they found it too restricted. Those three members brought a motion forward to allow the owner of the restaurant to utilize the apartment. The parties that wanted the restriction had thought it would allow employees to utilize the apartment and they voted against it. It was clear that the Board wanted the owner of the restaurant to utilize it but they got caught up in semantics. Currently, he is seeking to allow “/and owner of the licensee” and the family members of course, which is not in the original petition, but is willing to restrict it to 3 persons. Brian Florence asks if this has been before the Planning Board. Attorney Pizzuti answers not for the modification. James McGillen indicates that it is his opinion as there has been a question of whether this is a repetitive petition, as he reads the previous vote, he finds that it is not an unfavorable vote. They had 2 people on a positive motion voting no because it was too restrictive. He indicates that it is not the standard by which you would vote no on a special permit. He asks if the petitioner, at the previous hearing, get a fair hearing and was the original petition ever before the Board? He doesn’t think that what they asked for was before the Board. He indicates that when the conditions were presented it then because a problem. He would make a motion that this is not a repetitive petition and that they can go forward tonight. Seconded. Laura Shufelt asks if there are any more questions from the Board. William Newton asks if the question is to transfer from the owner of the building to whoever is leasing the business? Attorney Pizzuti indicates no, that they are focusing on the licensee of the restaurant and/owner of the licensee can occupy the apartment on the second floor. He doesn’t think it is repetitive, as the original petition specified the lessee of the premises, who might not be the licensee of the restaurant. It said the owner which could be the owner of the property or the restaurant. He wants to make it clear and to the taxpayer. He indicates that currently it is vacant and the building inspector had determined that it should be the owner of the property. James McGillen asks if the restaurant is in operation now? Attorney Pizzuti indicates no, but Dr. Najarian is in the process of executing the lease and understands that this will be open year round.

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Laura Shufelt asks if there is anyone here from the public who would like to comment. James McGillen makes a motion that this is not a repetitive petition and that it is an initial petition and that they can act on it tonight for the reasons that he has stated Seconded Vote: AYE: George Zevitas, Craig Larson, James McGillen, William Newton, Laura Shufelt NAY: None Laura Shufelt asks for findings or any comment to changing the condition to allow for the owner/licensee of the restaurant to occupy. William Newton asks what ownership interest is as it sounds like to him that it is open to whomever is willing to buy into some piece of that and therefore it opens it up to a wide range of whoever. It becomes basically a rental unit and has concerns about that. He is wondering whether something in terms of a person who owns or holds a majority ownership interest would be a compromise that they would consider. An interest, as he can see, is undefined. Attorney Pizzuti comments that this is a small mom and pop operation and is it possible that they could have several children that might have a 10th or 20th percent interest or 5 people that each has a 20% interest who could occupy the apartment with their spouse and their child or children, it is possible. That 20% interest holder would not have a majority. He comments that it certainly maybe someone having more than 10 or 20%, or something along those lines. He doesn’t want to foreclose for the future, a family coming in with children. Craig Larson asks if he would be happy with the same entity maintaining one lease for the apartment and the restaurant downstairs. Attorney Pizzuti motions to Dr. Najarian and then indicates that he would agree to that. Craig Larson clarifies that it would mean that the licensee of the restaurant, whether he owns 10% or 99%, would be the apartment owner and the manager would be the tenant of the apartment, correct? He comments that it would be much more controllable because they have a license to lose. He comments that they can skip the ownership and just stick with the licensee. Craig Larson asks Attorney Pizzuti if that is fair. Attorney Pizzuti asks Dr. Najarian who agrees. Craig Larson indicates that they could change the language of the condition. Craig comments that it could read that the licensee would be the same entity that would run the restaurant would have the apartment. William Newton comments that there was a question in the past regarding employees and how are they dealing with that. Craig Larson comments that he believes they are going to have one lease. Dr. Najarian speaks and indicates that he wants to lease the whole building and has someone right now that wants to run a family-style restaurant and he is actually by himself right now but

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has a 16 year old daughter that might come and live with him. It all hinges as to whether he can live up there or not, if he can’t, he wouldn’t go through with it. Craig Larson comments that he is comfortable if they can language that in and asks Dr. Najarian if that is fair. Dr. Najarian answers yes Craig Larson does findings: It is the findings of this Board that the original conditions were to assure that the commercial use of the property would be respectful of the neighborhood residences by limiting the use of the above apartment to the owner. By extending the use of the apartment to the employees or licensee of the business below would maintain the original intentions of the permit. After hearing the public testimony it is the findings of the Board that the special permit may be modified to include manager/licensee of the business below to occupy the apartment above with the condition of not more than 3. Laura Shufelt suggests adding that granting of this would not be a substantial detriment. Craig Larson adds that the granting of this would not be a detriment to the neighborhood or the intent of the bylaw. Vote: AYE: George Zevitas, Craig Larson, James McGillen, William Newton, Laura Shufelt NAY: None Craig Larson makes a motion to grant the request to modify special permit #2000-003 and to grant to modify the permit to have the conditions, it would be a licensee/manager occupy the apartment and with not more than 3 person to occupy the apartment above. Seconded. Vote: AYE: George Zevitas, Craig Larson, James McGillen, William Newton, Laura Shufelt NAY: None

MODIFIED WITH RESTRICTIONS Laura Shufelt then calls Rubin Hyannis, LLC., and read the appeal into the record. Appeal Nos. 2009-027 & 026 Rubin Hyannis LLC.

Opened April 15, continued to May 6, 2009

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Continued for; additional information on parking ratios at other Bernie & Phyl’s Furniture Stores, exploring options for employee parking both on- and off-site, and for draft findings and additional condition to assure quality furniture stores and excluding cash & carry outlets.

Members Assigned: William H. Newton, Michael P. Hersey, Craig G. Larson, George T. Zevitas, Laura F. Shufelt Associates Present: Alex M. Rodolakis, Brian Florence

Appeal No. 2009-027 - Continued Modification or New Conditional Use Permit

Rubin Hyannis LLC., has petitioned for a Modification of Conditional Use Special Permit No. 1994-082 issued to John F. Cabana or, in the alternative, a new Conditional Use Special Permit pursuant to Section 240-25.C to allow an expansion of a retail furniture gallery and store. The petitioner proposes to remodel the interior of the existing furniture gallery and convert approximately 6,900 square feet of gross floor area within the basement from storage to a showroom. The property is located at 20 Airport Road, Hyannis, MA and is presently occupied by a Bernie & Phyl’s Furniture Store. It is shown on Assessor’s Map 294 as Parcel 010. It is zoned BH - Highway Business, B - Business, and Ind - Industrial. Appeal No. 2009-026 - Continued Modification or New Parking Special Permit Rubin Hyannis LLC., has petitioned for a Modification of Special Permit No. 1994-081 issued to John F. Cabana or, in the alternative, a new Special Permit pursuant to Section 240-57 - Circumstances Warranting Reduction of Parking Requirements. The petition seeks to maintain 37 on-site parking spaces for the remodeled and expanded furniture gallery retails sales and storage area that would under the zoning ordinance now require 103 on-site parking spaces. The property is located at 20 Airport Road, Hyannis, MA and is presently occupied by a Bernie & Phyl’s Furniture Store. It is shown on Assessor’s Map 294 as Parcel 010. It is zoned BH - Highway Business, B - Business, and Ind - Industrial. Members assigned tonight: Craig Larson, William Newton, George Zevitas, Alex Rodolakis, Laura Shufelt Attorney Cox is representing the applicant. Also with her tonight is John Wyatt, Director of facilities at Bernie & Phyl’s. She indicates that she submitted a memorandum dated May 1, 2009 with exhibits and walks the Board through that information. She indicates that in Exhibit A is a traffic study by an engineer who had provided the study that they had walked through at the last hearing. Back in 2004 that engineer had done some parking analysis at their Nashua, New Hampshire and Westborough, Massachusetts locations. She gives the figures. She indicates that she had compared those to the Hyannis store figures. Also, she looked at other zoning bylaws from 5 towns on the Cape that range from one space per 800 square feet of gross floor area to one space per 700 square feet of floor space area and if they applied either of those figures to this store you would require either 30 or 34 spaces. She also hands out a site plan that was slightly updated to the Board. She indicates that they had adjusted the plans based on the comments from the last hearing. She indicates that in the northeast corner is a turnaround which isn’t required for the operation of Bernie & Phyl’s at this location and that they could stack 4 employee’s cars there instead if necessary. Craig Larson and Brian Florence comment that they are happy with the proposed changes. Laura Shufelt asks if there is anyone from the public who would like to speak either in favor or in opposition. No one speaks. William Newton comments that one of the towns that was left out was Falmouth and that they are similar to Barnstable. He comments that he is happy that they have supplied options but is still concerned about the 38 spaces as they are increasing the showroom and still has reservations

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about the future when the economy comes back and people can buy, as it might change. He thinks there could be potential for a spill over but has reservations about the parking. Attorney Cox indicates that through the GPI reports and ITE parking manuals that it is not appropriate to apply a retail category to this type of use. She indicates that basing this on the one per 200 square feet, when bylaws are more specific to a furniture store use, it is not a retail use, it is a separate use that generates a separate amount of parking unlike going into a retail store where you may go more often and that you don’t do it that often for furniture shopping. If need to, they might be able to squeeze in more parking if it was ever a problem. Laura Shufelt asks if someone wants to do some findings and that Attorney Cox has also submitted some draft findings. Craig Larson does positive findings: In this appeal 2009-027, Rubin Hyannis, LLC, owner of the subject property has applied for a new use special permit to Section 240-25(C) of the zoning ordinance to convert approximately 6900 square feet of storage space in the lower level of the existing building to the showroom. Numbers 2 through 21. Laura Shufelt asks for any amendments or additions to those findings. Vote: AYE: George Zevitas, Alex Rodolakis, Craig Larson, William Newton, Laura Shufelt NAY: None Craig Larson makes a motion to approve for the special permit appeal #2009-027 with conditions as presented on draft conditions 1 & 2. Seconded. Vote: AYE: George Zevitas, Alex Rodolakis, Craig Larson, William Newton, Laura Shufelt NAY: None Craig Larson makes positive findings on 2009-036, special permit of Section 240-57 Reduction of Parking Requirements, he moves to approve 37 on-site parking spots as presented on the plan submitted to the Board. Findings 1 through 21. Vote: AYE: George Zevitas, Alex Rodolakis, Craig Larson, William Newton, Laura Shufelt NAY: None Craig Larson makes a motion to approve 2009-026 as presented with conditions 1 through 3. Seconded.

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They discuss condition #4 Craig Larson adds: that #4 in the conditions would be subject to the plan that was submitted by Kelly Engineering Group dated 05-01-09. Vote: AYE: George Zevitas, Alex Rodolakis, Craig Larson, William Newton, Laura Shufelt NAY: None BOTH APPEALS GRANTED WITH CONDITONS Laura Shufelt then calls Guarino appeal and reads it into the record. . Open Variance No. 2008-026 Guarino/Trustees for JGMG Realty Trust


Extension of a variance is provided for in MGL Chapter 40A, Section 10. That section authorizes the Zoning Board of Appeals to grant one extension of a variance for up to 6 months without public notice or a public hearing.

By letter received April 23, 2009, Joseph J. and Claire L. Guarino/Trustees for JGMG Realty Trust have requested a 6-month extension of Variance No. 2008-026 issued to them for property addressed as 31 and 30 Holiday Lane, West Hyannis Port, MA. The subject lot is shown on Assessor's Map 267 as parcel 185 and 186. The variance was issued to permit the development of un-buildable adjoining lots that had merged due to common ownership. The development of the resulting undersized lot was granted to permit the building of a single-family dwelling in accordance with the Residence B Zoning District regulations.

Members assigned: Nik Atsalis, Craig Larson, James McGillen, William Newton, Laura Shufelt,

Laura Shufelt asks if there is anyone here representing the Guarino’s. No one comes forward.

Art Traczyk explains that the applicants have a building permit and have started building and that this extension is not needed.

Craig Larson comments that they had asked for it and that it would not hurt if they granted it.

Craig Larson makes a motion to grant the extension

Seconded.

Vote: AYE: Nik Atsalis, Craig Larson, James McGillen, William Newton, Laura Shufelt NAY: None

SIX MONTH EXTENSION GRANTED

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Laura Shufelt then calls the Mill Pond Estates appeal and reads it into the record.

Comprehensive Permit No. 2005-013 Mill Pond Estates - Starboard, LLC

Request for Minor Modifications

By letter submitted April 29, 2009, from Attorney Michael F. Schulz, Mill Pond Osterville Associates LLC, are seeking to modify Comprehensive Permit No. 2005-013 “Mill Pond Estates” issued to Starboard, LLC for the division of 2.81 acres into a 13 lot subdivision for the development of 11 single-family dwellings at 459 and 449 Old Mill Road, Osterville, MA. Three of the 11 dwellings are to be committed to affordable housing pursuant to MGL Chapter 40B, Section 20-23. The applicant seeks;

the transfer of the permit to “Mill Pond Osterville Associates LLC”, amend Condition No. 21(b) to allow the Department of Housing and Community Development (DHCD) to be the Monitoring

Agent, remove Condition No. 21(c) that requires an escrow account to be created and funded prior to the accounting certification for

the development, amend Condition No. 40 that requires DHCD approval prior to the issuance of any building permit to provide only for necessary

approval from DHCD, modify Conditions Nos. 23, 30 and 32 to allow for the building of one ‘model home’ for the purposes of marketing the

development, waive Condition No. 31 that requires posting of securities for the completion of the subdivision until a second building permit

is sought, and

modify Conditions Nos. 5 and 6 to permit a change in the three approved home designs. Members assigned: Craig Larson, James McGillen, William Newton, Brian Florence, Laura Shufelt Attorney Michael Schulz is representing the applicants: Paul Caggiano and Brian Otey. Attorney Schulz indicates that he submitted a letter dated April 29, 2009 requesting minor modifications. The letter enumerated 7 requests: the first being, transferring the comprehensive permit, and then #’s 2, 3 and 4 making slight changes according to the comprehensive permit to bring them current with LIP guidelines and regulations. He indicates that #5 is to construct the model home and #6 is to the waiver of securities until the second building permit is sought. Also, #7 is for the ability to change the style of the currently permitted homes. He indicates that after reading the staff report he thinks that some things could be handled administratively and namely requests that #’s 2, 3, 4 and possibly #6 could be handled that way and wants the Board’s feelings on this and if they concur that they can handle those aspects administratively and handle #7 as a separate issue. Laura Shufelt indicates that she thinks that this Board needs to see if the request is substantial or insubstantial as it pertains to the comprehensive permit and thinks that the transfer of the permit is typically an insubstantial modification and that the Board can handle that. She believes that #2, 3 and 4 might have to be discussed. She believes #7 would be a substantial modification. She thinks that how she would like to proceed is to have him either go forward as a substantial as they would have to take it as a whole and is her recommendation to the Board. Also, they would set a public hearing date and go forward or it could be his option to modify this request so that they could deal with the insubstantial amendments that he has asked for. Attorney Schulz asks about bifurcating the issues.

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Laura Shufelt indicates that according to regulations for an insubstantial modification they cannot continue the hearing, therefore, they have to make the determination tonight. Either they rule it as substantial or substantial or rule on all the requests as a whole. Attorney Schulz thinks that in reading the regulations maybe they can modify so that they can hear the transfer and then #’s 2, 3 and 4 requests, 1, 2 3 and 4 as a insubstantial change and then withdraw 5, 6, and 7 without prejudice and have that heard at the next available hearing. Laura Shufelt indicates that is what she would like to see happen. Attorney Schulz clarifies with his clients that this is okay. The Board has no objections. Art Traczyk clarifies that he is asking to withdraw 5, 6 and 7 now without prejudice. Craig Larson makes a motion to withdraw request #’s 5, 6 and 7 without prejudice. Seconded Vote: AYE: Craig Larson, James McGillen, William Newton, Brian Florence, Laura Shufelt NAY: None Attorney Schulz indicates that request #1 is to transfer the comprehensive permit from Starboard LLC to Mill Pond Osterville Associates LLC. He indicates that a Purchase and Sales Agreement was executed in September of 2008 and that in October of 2008, DHCD approved of the transfer based upon two conditions: that Starboard LLC submit a final cost certification that was approved by DHCD so that

they did not exceed the 20% threshold in profit that the regulatory agreement be recorded within ten days, which it was.

In March of 2009, the seller was able to submit a final cost certification to DHCD which they reviewed, approved and submitted a letter on March 6, 2009. In April in 2009 the P&S was amended and the price was reduced accordingly. Attorney Schulz indicates that also included in his material is a pro forma, a final cost certification and a chart showing the market rate units that Starboard LLC had listed and what is currently being proposed by the applicant. He indicates that the applicant will abide by all the regulations and this is insubstantial and requests that the Board vote favorably. Attorney Schulz then gives a summary of the rest of the changes being requested. Laura Shufelt comments that regarding the last request, she would recommend take the funding out and then it would be current. Laura Shufelt asks if there is anyone here from the public who would like to speak in favor or in opposition.

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No one speaks Laura Shufelt asks for a finding that these requests are insubstantial James McGillen makes findings.

1. Pursuant to 760 CMR, he finds that comprehensive permit be transferred from Starboard LLC to Mill Pond Osterville Associates LLC

2. The amend condition #21(b) to allow DHCD to be the monitoring agent

3. Remove condition #21(c) which requires an escrow account to be created and funded prior to the accounting certification for the development

4. To amend condition #40 which requires DHCD prior to the issuance of any building permit to provide only for the necessary approval from DHCD

5. in the current condition to strike the word funding

6. Said request to amend insubstantial and minor modification to the comprehensive permit

Seconded. Vote: AYE: Craig Larson, James McGillen, William Newton, Brian Florence, Laura Shufelt NAY: None Laura Shufelt makes an amendment that the motion is to include the 5 conditions as listed in the staff report. She asks Attorney Schulz if he has looked over the conditions. Laura Shufelt reads the conditions to Attorney Schulz from the staff report. Attorney Schulz agrees to them. Vote: AYE: Craig Larson, James McGillen, William Newton, Brian Florence, Laura Shufelt NAY: None Laura Shufelt indicates that this is granted to the insubstantial requests and that Attorney Schulz will be coming back for another hearing on the substantial requests. INSUBSTANTIAL MODIFICATION GRANTED SUBSTANTIAL REQUEST SCHEDULED FOR MAY 20, 2009

At 8:10 PM, Laura Shufelt calls the Cotuit Oyster appeal and reads it into the record.

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Remand & New Applications Cotuit Oyster Co.

Remand Appeal No. 2003-094 Cotuit Oyster Co. Bulk and Parking Variances By a Stipulation for Remand and Stay, Barnstable Superior Court has remanded to the Zoning Board of Appeals for a new and full public hearing of Appeal No. 2003-094. In that appeal Cotuit Oyster Co., Inc., had applied for variances to Section 3-1.4(5) Bulk Regulations Minimum Setback Requirements (today’s Section 240-14.E), and Section 4-2.9 Schedule of Off-Site Parking Requirements (today’s Section 240-56). The relief is sought for construction of a pile supported one-story work building and a pier not in conformance to the 15-foot minimum side yard setback for the district, and for a reduction in the required on-site parking. The property is addressed 26 Little River Road, Cotuit, MA, and is shown on Assessor’s Map 053 as parcel 009. It is in a Residential F Zoning District.

Remand Appeal No. 2003-110 Cotuit Oyster Co.

Exempt Use Modification Permit By a Stipulation for Remand and Stay, Barnstable Superior Court has remanded to the Zoning Board of Appeals for a new and full public hearing of Appeal No. 2003-110. In that appeal Cotuit Oyster Co., Inc., had applied for a Modification Permit in accordance with Section 2-4.3(B) Exempt Uses (today’ Section 240-8.A(3)). The modification permit is sought to allow for the construction of a building and a pier not in conformance to the minimum yard setbacks and for a reduction in required on-site parking. The property is addressed 26 Little River Road, Cotuit, MA, and is shown on Assessor’s Map 053 as parcel 009. It is in a Residential F Zoning District. Remand Appeal No. 2003-137 Cotuit Oyster Co.

Variance to Exempt Use Provisions By a Stipulation for Remand and Stay, Barnstable Superior Court has remanded to the Zoning Board of Appeals for a new and full public hearing of Appeal No. 2003-137. In that appeal, Cotuit Oyster Co., Inc. had applied for variances to provision (B) and the last paragraph of Section 2-4.4, Exempt Uses (today’s Section 240-8.A(4)(b) and 240-8.B). Those variances are to allow for an aquaculture use to employ up to 5 persons and to construct a building and pier within the required 25-foot yard setback imposed by the exempt use section of the Ordinance. The property is addressed 26 Little River Road, Cotuit, MA, and is shown on Assessor’s Map 053 as parcel 009. It is in a Residential F Zoning District.

Remand Appeal No. 2004-075 Cotuit Oyster Co.

Special Permits for Nonconformities By a Stipulation for Remand and Stay, Barnstable Superior Court has remanded to the Zoning Board of Appeals for a new and full public hearing of Appeal No. 2004-075. In that appeal, Cotuit Oyster Company, Inc., had applied for Special Permits in accordance with Section 4-4.4(2) Expansion of a Pre-existing Nonconforming Building or Structure Not Used as Single or Two-Family Dwelling (today’s Section 240-93.B), Section 4-4.5(2) Expansion of a Pre-Existing Nonconforming Use (today’s Section 240-94.B), and Section 4-4.6(1) Re-Establishment of Damaged or Destroyed Nonconforming Use or Building or Structure (today’s Section 240-95). The applicant seeks to locate, expand and alter the shellfish harvesting business including the construction of a pile-supported work building and a pier not in conformity to the districts required setbacks. The property is addressed 26 Little River Road, Cotuit, MA, and is shown on Assessor’s Map 053 as parcel 009. It is in a Residential F Zoning District.

Appeal No. 2009-031 - New Cotuit Oyster Co., Inc. Special Permit Reduction in Parking Cotuit Oyster Company, Inc., had applied for a Special Permit pursuant to Section 240-57 Circumstances Warranting Reduction of [Parking] Requirements. The applicant seeks a reduction in the required on-site parking due to factors that reduce the need for that parking. The property is addressed 26 Little River Road, Cotuit, MA, and is shown on Assessor’s Map 053 as parcel 009. It is in a Residential F Zoning District.

Appeal No. 2009-032 - New Cotuit Oyster Co., Inc. Use Variance

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Cotuit Oyster Company, Inc., had applied for a Variance to Section 240-14.A, Principal Permitted Uses in the Residence F Zoning District. In this appeal, the applicant seeks authorization to use the property for a commercial shellfish business, the Cotuit Oyster Company. This use variance application is made in the alternative to that part of the Remand of Appeal No. 2004-075 that seeks an Expansion of a Pre-Existing Nonconforming Use. The property is addressed 26 Little River Road, Cotuit, MA, and is shown on Assessor’s Map 053 as parcel 009. It is in a Residential F Zoning District. Members assigned: Craig Larson, James McGillen, William Newton, Brian Florence, Laura Shufelt Attorney Marielise Kelly from Gargiulo and Rudnick, LLP is representing the applicant. She indicates that Mr. Christopher Gargiulo, president of Cotuit Oyster and Arlene Wilson from A.M. Wilson Associates, Inc. are also here with her. She indicates that they are proposing to build a small work building structure and a pier on property at 26 Little River Road. She indicates that Cotuit Oyster Company has 33 grants that are leased from the Town of Barnstable to Cotuit Oyster. She indicates that they are here after litigation with the Superior Court of the Town of Barnstable and lengthy mediation sessions between objecting abutters which the Town participated in and that mediation was before Judge Rudolph Cass. There was a settlement agreement which is part of the application materials they have submitted to the Board. The settlement resulted in substantial modifications to the proposal that was previously before the Board. In brief summary, it included shortening the proposed pier, reducing the height of the pier, reducing the height of the building, restrictions on the hours of operation, the noise of the operation and aesthetic things such as lighting and planting. She indicates that for the purposes of simplicity they will focus on the issue of special permit relief because of pre-existing nonconforming use. Also, they will speak to the issue of variance and so limiting their presentation they are not waiving the other types of relief but are trying to be time efficient. Also, procedurally they have received approval from Conservation, a septic variance from the Board of Health and have received site plan review. As a result, this is their last step for seeking a building permit for the project. She will also tell the Board briefly about the business operations of Cotuit Oyster at Little River Road. Laura Shufelt informs Attorney Kelly that this is a new Board and that they are hear to listen but nobody here has been able to observe this and that they only recently received this but will take testimony and public comment but that all this material is a lot to digest. Attorney Kelly apologizes but wants to walk them through the most important elements. She indicates that Arlene Wilson will also give a presentation. Attorney Kelly then speaks of the current operation of the business. She indicates that as part of the operations, it takes seed oysters, develops them, puts them into the grants, then harvests and brings them back to 26 Little River Road to be prepared for market. She indicates that the operation has some equipment. There is also a flupsy float which is a nursery for seeds. She indicates that there is no building on-site at #26 Little River Road since the hurricane of 1938 and what they are operating out of is a metal truck. She indicates that this is a 12 month operation but that they do not have bathroom facilities nor storage. Part of her goal is to provide that the proposed operation would house the current use with storage and be aesthetically pleasing. She then talks about the history of the pre-existing, nonconforming use of the property. She gives a presentation of the history of the property and surrounding area according to a bound booklet that was submitted to the Board

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and goes through the history. She then indicates that Arlene Wilson is here to answer any questions the Board may have. George Zevitas asks if the pier at #28 Little River Road is being used Attorney Kelly indicates that the pier doesn’t exist, and that after the Nelson’s lost the lease it was in disrepair and as it exists today, there is no pier. George asks if it goes across the street. Attorney Kelly indicates that #35 and #28 are in common ownership Arlene Wilson speaks and discusses the specifications of the plans that were given to the Board. Almost all of the site has been altered over time. The lot has a number of wetland zones. She talks about floor velocity zone and flood zones. There are oddly shaped coastal banks on this lot. She indicates that the proposed plan shows the structure elevated on piles open underneath and will be enclosed with lattice work for storage. On the platform will be the one story building reminiscent of the old oyster shanties. The platform is setback 65 feet back from the road. The lot is only 35 feet wide. It cannot meet side yard setback and has designed the building to small as practical and is smaller than the building at #28 Little River Road. She talks about the access to the building on both ends. The scissor lift does not use regular hydraulic liquid but does use a fluid with vegetable oil as its base. She talks about the interior. She indicates that there will be a small office space and bathrooms which will have incinerating toilets. There is a floating pier to be replaced by a permanent pier with a ramp and two floats. There is an order of conditions on this and that permit is in place and has not been appealed. She indicates that there will be 4 parking spaces at the front end of the building which 1 will be at the loading area. She indicates that all of the surfaces are shell and gravel and that there is no paving on this proposed site. Whatever drainage is produced is handled in a catch basin under the building in the East end of the building and is out of sight. She talks about the landscaping and the height of the building. William Newton asks if the business continues as of today. Arlene Wilson answers yes. William Newton asks for clarification on what they are trying to do under the special permit. Attorney Kelly explains that the use may be expanded to include the structure of a building and has cited a case regarding Cumberland Farms, an agricultural operation, which sought to expand a use to include a new barn and the argument against it was that expanding a use doesn’t allow you to build a new structure. The Supreme Judicial Court disagreed with that and said that expanding a use, although in that case an exempt use, allowed for the construction of a new building. Having said that, there is no case specific on point but thinks it is well within the purview of their ability to find that the construction of the new building is a permissible expansion of an existing nonconforming use on lot #26. Craig Larson wants to confirm the conditions from the Conservation Commission as the Board does not have those conditions. Arlene Wilson indicates that she will get a copy for the Board and indicates that both the Board of Health and the Conservation Commission have required that if this property is no longer used for commercial aquaculture, the building comes down, everything goes away, the lot gets

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restored and it is open space. She also indicates that they do not have the disposal works permit but that they have the variance from Board of Health. William Newton asks about the parking reduction. Arlene Wilson clarifies that there are 4 parking spaces on the lot and that they do sell a small amount of product retail but the people have to call ahead and place an order and pick it up. She indicates that the maximum number of employees at one time was 5 and even when that was happening, people would come to the site in one car because it was a family operation. Also there is a town landing with 8 or 10 spaces as an alternative. Attorney Kelly talks about the expansion of the use and the benefits to the health and safety of the neighborhood and the conditions as pertains to the legal elements of the variance. She then talks about the issue of a variance for parking and setbacks. William Newton asks Attorney Kelly to briefly tell him about the 2004 issue in terms of denying those requests. Attorney Kelly explains Laura Shufelt calls a 10 minute break at 9:25 PM. Back in session at 9:40 PM Laura Shufelt asks Assistant Town Attorney, Charlie McLaughlin, to talk about pre-existing nonconforming use on the property and the litigation that has occurred. Attorney McLaughlin indicates that this case was contentious and they were happy to work through a process of mediation with Judge Rudolph Cass. They were cognizant of efforts of all negotiations. There was a settlement agreement but Mrs. Haseck had passed away during the mediation. On the issue Mr. Newton had raised on the prior litigation, he would concur with Attorney Kelly’s synopsis of it but the matter dealt with aquaculture versus agricultural and whether there was any exemption. As to the pre-existing nonconforming, there were findings that the prior Board made and would agree they were concerned about whether the subsequent process applied by the Board and whether or not it could be successfully defended as to the findings. He indicates that he is pleased to see that this has come back for a full and clear new presentation for this Board to hear the evidence to make that determination as to whether it is pre-exiting nonconforming. He talks about the Gifford Brothers Sand & Gravel case and the legal affect of it indicating that in 1929, if you had a commercial use, then it would be protected and everything else would be residential. Laura Shufelt asks if there is anyone here from the public who would like to speak either in favor or in opposition. Chris Gargiulo, who is the current owner of the Cotuit Oyster Company, indicates that having a building and pier at this lot is important for keeping the historical use of this property. They

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want to continue, keep and preserve the historic use of this site and asks that the Board look at this information in the book they submitted. Alex Rodolakis asks Mr. Gargiulo when they harvest. Chris Gargiulo indicates that they typically harvest year round but that the oysters go dormant in the winter months. Alex Rodolakis asks when the peak season for staffing. Chris Gargiulo indicates primarily summer and fall. Richard Nelson, former owner/operator of Cotuit Oyster Company from 1973 to 2003, indicates that he would like to back up the importance of the historical nature of this operation. He indicates, as operators for 30 years, had worked with the community and tried to be good neighbors and thanks the Board for their consideration. William Newton asks Mr. Nelson what was going on with lot #28 as it does not have a home on it. Mr. Nelson indicates in 1973, they leased #24, 26 and 28. Along the way they dropped the lease on #24 in the early 80’s and was able to purchase #26. They operated largely out of the building on #28 (Gifford shanty) but used #26 extensively during that time. During the clambake years they had to vacate the premises at #28 for the summer and worked off the beach on #26 for about 3 months during the summer and then went back in after Labor Day. Albert Surprenant of Osterville speaks and indicates that he has known the Cotuit Oyster Company for 50 years and that they have been a good neighbor, an excellent operation and that growing oysters helps the environment, taking out the nitrogen and is 100% in favor of this project. Richard Kraus of West Barnstable indicates that he has been in the shell fishing business and supports their application and the future viability of the Cotuit Oyster Company. Councilor Richard Barry from Precinct 7 speaks and asks for the Board’s support. He indicates that he had submitted a letter to the Board. He indicates that the shape of the lot is a variance condition and that in reference to the special permit that this would not be a detriment. He reads a paragraph from a book entitled “Cotuit/and Santuit” by James Gould and Jesssica Rapp. He comments that Cotuit Oyster is actually helping the environment. He has also spoken with Stu Goodwin and that it is his understanding that they have written a letter in support for this project. Steve Wright, President for Massachusetts Aquaculture Association and who is with Chatham Shell fishing Company, indicates that he has a letter in support of the building and pier.

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David Ryan of Cotuit, who has also worked in the shell fishing field, asks for them to support the structure and pier on lot #26. Attorney Douglas Murphy, who represents the executor of Janet Haseck’s estate, speaks. He appears on their behalf in opposition to the relief being requested as the property and the business don’t qualify for the relief being requested. He indicates that they need either a special permit or a variance and they have acknowledged to the Board the fact that there has never existed, for practical and zoning purposes, that there has never been a building on the lot in question. So, what they have is a new structure being created onto which the petitioner would have you believe that this somehow constitutes an alteration or an intensification of a use. The zoning ordinance deals with 3 aspects of nonconformities dealing with uses, lots and buildings and there is a reason for that as they treat each differently. He indicates that what the petitioner would like the Board to do is to Ignore the limitations and restrictions that apply to altering, expanding or intensifying a building and let’s just call it a use instead and pretend that the use is a building and change that use to create a building. He comments that even if the Board gets beyond that hurdle you will have to conclude that the result will not be any substantially detrimental to the neighborhood that what exists there at present. What exists there at present is a vacant lot. There are a series of 3 small lots starting at the town landing, then the Haseck’s property, the lot in question, and the lot to the north. They are being asked to find that the vacant lot is unique, somehow attributable to either the soil conditions or the topography or the lot shape and are different from the lots in the zoning district. He indicates that there is nothing unique about the shape of the lots. He indicates that the soil characteristics are no different from the other lots and that the topographical features are the same. He doesn’t think that the lot meets the threshold criteria to get a variance as there is not one of those characteristics that are unique within the zoning district. This is a residential zoning district and not a business zone. He indicates that the Haseck’s house was designed to overlook the harbor but if the abutter constructs a commercial building they will be obstructing the view, building a flupsy, an actively managed process, in view of the residential home. He comments that he doesn’t know what the hours of the operation would be except that this will be a year round operation. He indicates that the structure and equipment will be visible and thinks that the pier and flupsy will obstruct the Haseck’s property and subsequent owners from obtaining a dock or pier permits. Also, there will be noise, unloading oysters to the processing shack, trucks coming and going and odor from the nature of the operation of the business, and increase in traffic because of some retail business being conducted. He asks the Board if they will continue this in order to review the large amount of materials which were given to the Board. Also, he suggests that there will be a signification diminution in the value of the Haseck’s property if this is allowed to go forward. He also asks that the Board to continue this as he has not been given the opportunity to review the large amount of materials that Attorney Kelly has submitted to the Board and would like to submit a memorandum or brief to the Board in opposition. Also, his client would like the opportunity to have an appraiser review to provide the estate of what would be the diminution of what the value of the property would be if this proposal is to go forward Nik Atsalis asks Attorney Murphy to point out the Haseck’s home.

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Sandra Nelson speaks and indicates that she, with her husband, were past owners of the Cotuit Oyster Company. She wants to correct two statements that were just previously made. First, the underwater property in front of the Haseck’s house is a Cotuit Oyster Company grant and, secondly, for the purposes of taxation, the Town of Barnstable classifies this property as commercial. Richard Nelson indicates that Mrs. Haseck never objected to anything they did there. Attorney Kelly points out provisions in the settlement agreement Paragraph E points out parking. This settlement limits to parking onsite to 4 spaces maximum and to other times of the year 3 at maximum and parking will not be increased. In perpetuity they cannot have anymore than 4 spaces. Also, paragraph J to the settlement agreement addresses the hours of operation, as recorded as a deed restriction. William Newton asks Attorney Kelly about odor. Attorney Kelly indicates that it is a common misconception in reference to this operation. They are taking whole shellfish off site. It is fresh and does not smell. There are salt marshes and low tide issues in that impact this area. Craig Larson asks if this ceases to exist will this revert? Attorney Kelly indicates that should the Cotuit Oyster Company cease to exist, this cannot become private residential or Spanky’s Clam Shack, it can only have limited uses as defined in the settlement agreement and the restrictions from the Conservation Commission. Laura Shufelt asks Chris Gargiulo about the flupsy and reads from the settlement agreement. She asks if there is any noise produced from the flupsies. Chris Gargiulo answers no but basically is powered by an electric motor underwater and that you will not hear the noise of the upweller while it is in the water. All it is doing is circulating water underneath the dock which is drawing plankton into the oyster. Assistant Town Attorney, Charlie McLaughlin, indicates that they should do site visits on their own to avoid open meeting law issues. Motion to continue to June 10, 2009 at 7:00 PM Seconded Everyone in favor. CONTINUED TO JUNE 10, 2009 AT 7:00 PM Laura Shufelt then indicates that at next meeting they will approve minutes Motion to adjourn. Seconded

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Meeting adjourned at 10:30 PM

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Minutes May 20, 2009

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday May 20, 2009 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Art Traczyk – Regulatory Review Design Planner and Carol Puckett – Administrative Assistant.

Laura Shufelt Present James McGillen Present Michael Hersey Present Craig Larson Absent William Newton Present Alex Rodolakis Absent Nikolas Atsalis Absent Brian Florence Present George Zevitas Present

Laura Shufelt opens the hearing at 7:05 PM. She informs the public that they are going into Executive Session and then will be hearing 2009-006 which they are expecting to be continued, Kohler, EAC Disposal and Baker. Motion to go into Executive Session for purposes of litigation. Seconded Vote: AYE: George Zevitas, Brian Florence, Michael Hersey, James McGillen, William Newton, Laura Shufelt NAY: None Since the Selectman’s Conference room is occupied, they clear the hearing room to have the Executive Session. Laura Shufelt makes a motion to go back into regular session. Motion to come back into session.

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Back in session at 7:24 PM. Vote: AYE: George Zevitas, Brian Florence, Michael Hersey, James McGillen, William Newton, Laura Shufelt NAY: None Laura Shufelt then indicates that they will be approving minutes from December 10, 2008, January 14, 2009, January 28th, February 11, March 25th, April 1st and April 15th. Motion to approve minutes Seconded Minutes approved James McGillen clarifies that he will only be voting on the December minutes as he was not present for the other hearing. All in favor

Laura Shufelt then calls the Fireman appeal and indicates that there is a letter that was submitted from Eliza Cox, Esq asking for a continuance to June 17th at 7:00 PM. Appeal No. 2009-006 - Continued Fireman


Opened February 11, 2009, continued to March 25, 2009 and to May 20, 2009, at request of the applicant. No Members Assigned - No Testimony Taken On May 7, 2009 Town Council voted to amend Section 240-91.H Developed Lot Protection; Demolition and Rebuilding on Nonconforming Lots. That amendment should address the issues in this appeal. That amendment is to take effect June 8, 2009. A copy of Town Council Item 2009-099 and its rational is enclosed.


Laura Shufelt moves to continue this to June 17, 2009 at 7:00 PM Seconded All in favor.

CONTINUED TO JUNE 17, 2009 at 7:00 PM

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At 7:27, Laura calls the Kohler appeal. She reads it into the record.

Appeal No. 2009-004 – Continued Kohler Appeal of Building Commissioner & Seeks Enforcement

Opened January 28, 2009, continued April 1, 2009 and to May 20, 2009. This Appeal was continued for additional information and input from the Town Attorney’s Office and Building Commissioner.

Members Previously Assigned: William H. Newton, Michael T. Hersey, Alex Rodolakis, Brian Florence, Laura F. Shufelt - Associates Members Present: Nikolas J. Atsalis, George T. Zevitas

Updated Materials Enclosed: April 2, 2009 Staff Letter to Ruth Weil/Charles McLaughlin Town Attorneys April 3, 2009 Staff Letter to Martin MacNeely COMM Fire Department April 3, 2009 Staff Letter to Tomas Perry, Building Commissioner April 13, 2009 Staff Letter to Attorney Charles M. Sabatt April 24, 2009 Transmittal Letter from Francis J. Hurley April 27, 2009 Staff Letter to Gannon & Hurley on process Copy of a May 8, 2009 Letter to Building Commissioner Perry from Francis J. Hurley May 11, 2009 Response Letter from Martin MacNeely COMM Fire Department Copy of May 12, 2009 e-mail correspondence from Gary Lopez to Thomas McKean Health Director

Peter and Rose Kohler have appealed the decision of the Building Commissioner issued September 22, 2008 regarding EAC Disposal d/b/a Cape Resources Company. The appellants are appealing the Building Commissioner’s determination that no enforcement action is needed with respects to the activities being carried on by Cape Resources Company at 280 Old Falmouth Road, Marstons Mills, MA. The property at issue is shown on Assessor’s Map 100 as parcel 008. The appeal is being made pursuant to MGL Chapter 40A, Section 15 and is seeking the enforcement of the terms and conditions of the Zoning Board of Appeals Decision issued in Appeal No. 1996-014. The subject property is in a Residence F Zoning District and a GP Groundwater Protection Overlay District. Laura Shufelt indicates that Alex Rodolakis is not here tonight and that George Zevitas will be replacing him tonight as one of the Board Members hearing this appeal.

Members assigned tonight: William Newton, Michael Hersey, George Zevitas, Brian Florence, Laura. Shufelt

Mr. John Flynn is here representing the Kohler’s. He indicates that he will defer comments until after Tom Perry speaks. Tom Perry, Building Commissioner, indicates that it is an ongoing battle with him since 2002. He indicates since then there have been many meetings with neighbors and EAC. In those years he feels that they have come into compliance. In reference to the hours of operation he found no violations and never found violations with regards to the height of the piles. He indicates that the chipper building location, which is not in compliance, is being worked on in site plan to straighten that situation out. He indicates that the chipper building location has been there before he became Building Commissioner. For years they asked the complainants for proof that the odors and dust were from EAC or the landfill and has never been proven that they are coming from EAC. He indicates that the fire road is presently not in accordance to plan but that in case of emergency they feel they have adequate access to the site.

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William Newton indicates that there was an allegation that he authorized beyond his authority. Tom Perry indicates that activities were going on before he was the Building Commissioner and that the operation is better today than it was in the past. . James McGillen asks when the last a complaint was received. Tom Perry indicates two weeks ago was the latest regarding the delivery of mulch but that the business is permitted to do that. He indicates that it is allowed under the original variance. James McGillen asks before the complaint about the mulch, when was the latest complaint. Tom Perry indicates that his standard way of ending a letter is to indicate that the complainant has the right to appeal this decision and is standard practice. William Newton clarifies that it was not until now that they appealed. Mr. Flynn redirects his comments to Mr. Perry’s comments and the presentation of what was suppose to be there and what is that is not in compliance. Also, there is a summarized list in the memo by the Kohler’s and neighbors. He indicates that the plan EAC submitted was one way but didn’t build it that way. When they submitted these requests to Mr. Perry, first, they were looking for a finding of a violation and to revoke under the ZBA, but, in any event Mr. Perry has the obligation to enforce the zoning codes which includes the ZBA’s decision, secondly, they were seeking relief. Mr. Flynn then reads part of Tom Perry’s deposition. He also reads part of the letter from Fire Department about access to the fire road dated May 11, 2009. He comments that when the Board issues a plan, does it have to be that way or can Mr. Perry allow it to exist or does he have an obligation to go in and look and comply? He will get a copy of Mr. Perry’s deposition where he admits that they were in violation. William Newton indicates that from Mr. Perry’s letter there has been many meetings and asks why they haven’t they chosen to do this until now? Mr. Flynn indicates that all those meetings were taken place based on the presumption that it was built right and that an as-built plan was never done. During the course of the litigation against EAC, they had the opportunity to have aerial photos taken and when Mr. Hurley and he compared the photos to the plans, it was not built the way they said they were going to build it. He indicates they met with Town Council and the Planning Board on a number of occasion prior to filing mitigation and asked make them to build it the way they were suppose to and they will go away (he indicates that he didn’t actually say the words “will go away” that and comments that he would like to take that back) build it and they didn’t get anywhere. He indicates that letters had been sent to Mr. Perry at times when they saw things and to show when they did not do things right. He indicates that their case they filed with the State was dismissed at the current action was premature as it was governed by zoning enforcement bylaws. He then reads

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MGL Chapter 40A Section 8. He indicates that in the action which is in appeal on the EAC case, the jury did find that a public nuisance existed but did not award any damages because the Zoning Board had first ruling on it. Charlie McLaughlin, from the Town Attorney’s office, indicates that the law is clear that the Building Commissioner does not have authority to revoke and as to the question of what his options are at that point, the litigation is demonstrated and that this project has taken an extraordinary amount of time. First the judge did determine that this complaint that was filed against the town sounded in the nature of zoning, not tort, and as a result as a failure to appeal to this Board as they could’ve done all along, One of the critical issues they involved themselves in litigation was as to whether or not any literal noncompliance, if that equates to a violation, whether or not it is a material violation that warrants litigation to shut the project down. He thinks that the Board faces that question and thinks it appropriate. William Newton indicates that the contention was that there was a design for that development and that it was never built according to the plans and asks for certification to insure it was done according to plan and what do they know about that aspect of it. Charlie McLaughlin indicates that the Town Attorney’s office never had. the benefit of the as-built either from EAC or the Kohler’s and their attorney but had evidence presented of aerials from the Kohler’s. Tom Perry indicates that the location of anything didn’t come up until 2007, the building was not where it should be and the bin was turned 90 degrees as it was because of the way the operation worked. As to The reports of fires, they haven’t had one in 8 years and it was only during one summer and they had DEP with them. He believes that there hasn’t been any complaints of fire since 2001 and had fire watches. Laura Shufelt asks about an engineered site plan and asks if it was ever done or that Mr. Perry has never seen it. Tom Perry indicates that he never saw it. Laura asks if it was EAC’S obligation to get it done and whose obligation for oversight is it. Charlie McLaughlin answers that it is up to the Building Commissioner. Tom Perry indicates that typically he requires an engineer’s letter, they go out and check it and before it could either be occupied or put into operation. Tom Perry and the Board discuss the yellow hatch area and the berms. Laura Shufelt clarifies that Mr. Perry has no as-builts. Brian Florence comments that he doesn’t think it would be inappropriate for an as-built and it would not be appropriate to uphold the Building Commissioner about standardized information that this site is causing the problem as to noise, dust and smoke coming from this site.

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Attorney Sabatt speaks and thinks that he heard Mr. Flynn say that the jury found that this was a public nuisance and indicates that they did not find it was a public nuisance, nor did they find it a private nuisance. He indicates that in the trial where the Kohler’s were seeking damages from EAC that the court make a ruling that they could not do in the absence of an adjudicated zoning violation and they were precluded from doing that. When they sued the Town of Barnstable also seeking money damages, the court advised them that they hadn’t exhausted their administrative remedies and in they didn’t follow the proper steps. He indicates that they want the Board to make a finding that there is a violation so that they can take this and proceed against EAC for money damages. He indicates that earlier, Mr. Flynn indicated that the statement about him taking back the words “will go away” was because they won’t go away. What they want are money damages. He indicates that they are complaining about is the location of a building on a 22 acre site that is further away from them than it should be. The purpose of the building was to deaden the sound of the grinding machine in use at that time and has accomplished that purpose and was further away from the Kohler’s. He talks about the central berm and the fire road which have served their purpose. He indicates that this site is always open to be viewed and inspected and is inspected annually by OSHA and has gotten a sharp designation Brian Florence asks if his clients would be able to provide for a certified as-built. Attorney Sabatt indicates that he will consult with his clients and if the Building Commissioner asks that they will comply with that request. The Board discusses. Charlie McLaughlin indicates that time is clicking and they have until June 29th. Mr. Flynn rebuts and talks about a landscaping plan in 1996 and a letter regarding this from the previous Building Commissioner at that time, Mr. Crossen. He will get a copy of the letter. Mr. Sabatt indicates that they admit that the building is about 60 or 70 feet south from where it should be and that the plan they filed with respect to the modification does show existing conditions on it. Laura Shufelt asks if there is anyone from the public who would like to speak. Terry Maloney who is a direct abutter to Cape Resources speaks. He indicates that several times they have had managers that were trying to be helpful but that the company isn’t wiling to spend the money to do the things that need doing to back the manager up. He indicates that they have installed better back up beepers that are less noisy. He indicates that recently he heard the noise level rise, he walked by and the misters were not working. He indicates that there was a bulldozer which makes more noise than the other machines. Kathy Maloney speaks and indicates that there is a constant noise and dust. In 1996 those conditions were allowed to let them operate in a residential zone without being out of character. Over the weekend the noise was very loud and they can’t plan gatherings on Saturdays is because of the dust and noise.

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Peter Kohler speaks and indicates that it is upsetting to be here 13 years after this has begun. He can’t enjoy his yard on Saturdays. He shows a picture from 1994 and a picture from 2009. He believes that on Route 28 there is a 100 foot buffer and the machines are parked there. There are 29 stipulations in that variance and it is the Building Commissioner’s responsibility to make it comply. The noise and dust is always there. The machinery is the problem, the piles which don’t have a cover. He doesn’t know why that isn’t enforced. The berm wasn’t done for 11 years. The plan that the previous Board put in place did not get put in place for 11 years. Brian Florence asks Mr. Kohler questions regarding the site plan. The Board discusses. Brian Florence makes a motion to have an as-built. Seconded. Charlie McLaughlin asks for clarification on the motion as he is not sure that the Town is in a position or should be put to that expense. Brian Florence moves to compel the Building Commissioner to request of the property owner a certified as-built showing that the site is built in accordance with the plans submitted at the time of the variance. Seconded Art Traczyk explains that the Board also has the ability to hire an outside consultant. The Board discusses. Mr. Flynn indicates that they are wiling to extend the time limits. Vote: AYE: George Zevitas, Brian Florence, Michael Hersey, William Newton, Laura Shufelt NAY: None Motion to continue to July 8, 2009 AT 7:00 pm Seconded. Vote: AYE: George Zevitas, Brian Florence, Michael Hersey, William Newton, Laura Shufelt NAY: None Charlie McLaughlin reminds the Board that there is an agreement of time on the record and to get an extension of time from the applicant.

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Laura Shufelt clarifies that Mr. Flynn is offering more information from neighbors regarding noise and dust. . Brian Florence asks if it is certified. Mr. Flynn indicates that is circumstantial but that they have had an engineering firm that did studies on Kohler’s property and can get that information to the board.

CONTINUED TO JULY 8, 2009 at 7:00 PM Laura Shufelt calls a 5 minute recess. Back in session at 9:06 PM. Laura Shufelt then calls the EAC Disposal appeal and reads it into the record. Appeal No. 2009-025 - Continued EAC Disposal, Inc.

Modification of Variance No. 1996-14

Opened April 1, 2009, continued to May 20, 2009.

Members previously assigned: William H. Newton, Michael T. Hersey, Alex Rodolakis, Brian Florence, Laura F. Shufelt - Associates Members Present: Nikolas J. Atsalis, George T. Zevitas

EAC Disposal, Inc., d/b/a Cape Resources Company has applied for a Modification of Variance No. 1996-14. The modification is sought to allow for revisions to the site that include a new wood processor and staging area, alteration to interior site circulation, and additions and alterations to screening berms and landscape. The property is addressed 280 Old Falmouth Road, Marstons Mills, MA as shown on Assessor’s Map 100 as parcel 008. The lot is in a Residence F Zoning District. Attorney Charles Sabatt is asking for a continuance as they are re-thinking the design of the plan regarding the wood processor and staging area. Laura Shufelt asks about August 5th. Mr. Sabatt concurs with that date and will sign an extension at the next meeting. Motion to move to August 5, 2009 at 7pm Seconded All in favor.

CONTINUED TO AUGUST 5, 2009 at 7:00 PM Laura Shufelt then calls the Baker appeal. She indicates that they are reopening this appeal and reads it into the record.

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Appeal Nos. 2009-023 & 024 - Continued Baker

Opened April 1, 2009, continued to May 20, 2009. Continued to allow for the review of standing issues. Members previously assigned: William H. Newton, Michael T. Hersey, Alex Rodolakis, George T. Zevitas, Laura F. Shufelt - Associate Member Present: Brian Florence

Appeal No. 2009-023 Bulk Variance for Merged Lots

Newton S. Baker Jr., and David R. Baker, acting in behalf of Ester S. Baker, have applied for a Variance to Section 240.13.E, Bulk Regulations and Section 240-36 Resource Protection Overlay District, Minimum Lot Area. The applicants seek to un-merge an undersized vacant lot of 35,000 sq.ft., from an abutting developed lot and to develop the lot with a single-family dwelling. The two undersized abutting lots having merged due to common ownership. The vacant lot is addressed 22 Curry Lane, Osterville, MA and the developed lot is addressed 44 Curry Lane, Osterville, MA. They are shown on Assessor’s Map 142 as parcels 152 and 072. The lots are in a Residence C Zoning District and a Resource Protection Overlay District.

Appeal No. 2009-024 Special Permit Section 240.91.F, Nonconforming Lots

Newton S. Baker Jr., and David R. Baker, acting in behalf of Ester S. Baker, have petitioned for a Special Permit pursuant to Section 240.91.F, Nonconforming Lots, Merged Lots. The applicants seek to unmerge an undersized vacant lot of 35,000 sq.ft., from an abutting developed lot and to develop the lot with a single-family dwelling. The vacant lot is addressed 22 Curry Lane, Osterville, MA and is shown on Assessor’s Map 142 as parcel 152. The vacant lot is addressed 22 Curry Lane, Osterville, MA and the developed lot is addressed 44 Curry Lane, Osterville, MA. They are shown on Assessor’s Map 142 as parcels 152 and 072. The lots are in a Residence C Zoning District and a Resource Protection Overlay District.

Laura Shufelt indicates that they are reconstituting the Board.

Members assigned tonight: Brian Florence, Michael Hersey, James McGillen, William Newton, Laura Shufelt

Attorney Albert Schulz is representing the Baker’s. He gives a summary of the relief being requested. He indicates that the applicants are the residuary legatees of the will of their mother, Esther Baker. In 1967 the lots were created by the land court plan and gives dimensions of the lots. He indicates that neither lots are near wetlands nor within any well head protection district and that the undeveloped lot is the only one is Oyster Hills. In 1990 they merged as they did not build or transfer ownership. He gives the 3 tests of a variance. He gives a definition of topography and that it includes the physical features of the lot. The location of that lot is a topographical feature and is unique to any in the subdivision. That results in a side yard that is almost an acre in area and under the Marashlian case it would not be economically feasible for this portion of the lot to be built for regular appurtenances that might be built on a large lot of this size such as a swimming pool or tennis court. None of those lots in the subdivision have a swimming pool or tennis court. This portion of the lot is relegated to open space. The literal enforcement of the ordinance of the combined lot would involve a substantial hardship, financial detriment to the applicants. The vacant lot is assessed and has been as a buildable lot. The applicants are wiling to limit the construction on Lot 72 to 3 bedrooms, conform to Title 5 without variance, limit it to gross living area 3000 square feet, a shed limited to 120 square feet and will landscape on the perimeter, especially on the side of the yard to where the abutter, who is here tonight to object, lives. They would be happy that this will be full build out. .

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Laura Shufelt asks Attorney Schulz if he has seen the correspondence about the special permit and variance from the Town Attorney. Mr. Schulz indicates that he has read it.

Art Traczyk hands Attorney Schulz a letter dated today regarding variances.

Attorney Schulz indicates that the position of the existing building on the lot relative to the side line creates a topographical condition.

Laura Shufelt asks if there is anyone from the public who would like to speak either in favor or in opposition.

Attorney Michael Ford speaks and indicates that he is here representing Jeff Eshbaugh. He indicates that his client’s family owns the property which immediately abuts the subject lot and that the Jeff Eshbaugh has owned the property since 2001 which he rents occasionally during the summer. He indicates that the Eshbaugh’s were under the impression that this lot had merged and become unbuildable. He indicates that they were to take it out of common ownership and that the Town gave them 5 years to do something and it appeared to his client that it merged and treated it as open space. Since 1990, it has merged and since then there has been another zoning change to make it 2 acre zoning in this area and that it still doesn’t meet the new zoning requirement of 2 acres. He indicates that his clients believe that construction of a house on this parcel will contribute to traffic congestion and noise. Attorney Ford indicates that the 3 prong test is conjunctive and you have to meet all 3 requirements of it. He respectfully disagrees with Attorney Schulz that this creates a topographical condition. With respect to the shape, the shape of this lot is similar to other lots in the neighborhood and there is nothing unique about it. Shape has no nexus with the application of the bylaw to generate hardship. He talks about the Ellis v. Town of Barnstable case which summarizes that the merger was a conveyancing error. He would suggest that when you can’t meet the test you can’t grant the variance. He asks that there are no variance conditions on this lot and that the variance be denied.

Laura Shufelt asks if there is anyone from the public

Newton Baker Jr., speaks and looks at the aerial view and indicates that it does show Mr. Eshbaugh’s lot set back on Ancient Way. From the time that his mother and father purchased the lots they have paid taxes as a buildable lot and were one of the first families in Oyster Hills. It is one of the largest lots in Oyster Hills and there is room to construct a home. He wants to be able to sell the lot like his parents bought many years ago. He indicates that putting the lots in separate ownership had been overlooked. It is the last lot in the neighborhood and asks the Board to let this variance go through.

Laura Shufelt indicates that there is one letter from Nancy Wilder Boudreau and reads it into the record.

Newton Baker indicates that Nancy moved in after his mother and father moved in and that there is an email from David Stepanis who had driven them to medical appointments He indicates that the email indicates that his mother had said that the lot had always belonged to her boys.

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William Newton would like to hear the case regarding the special permit.

Attorney Schulz gives the argument for the special permit. He indicates that he had read Town Attorney Weil’s letter and suggests that is not the only interpretation and thinks that they have to look at all the words in the statute. They had two lots and are not asking for any more lots and this is his interpretation. He suggests that this is the section of the bylaw for people like the Baker’s who failed to transfer their property in separate ownership.

William Newton talks about Weil’s letter regarding adjusting the lot lines.

Attorney Schulz doesn’t see that as the intent in the statute.

James McGillen gives his reason why he doesn’t think this meets the standards.

Attorney Schulz doesn’t think that the Ellis case is applicable.

Attorney Ford comments that where you have lots that have merged but to redraw the lot line you need a variance. He suggests that when a bylaw or ordinance is ambiguous and its taken away a right of a property owner then the cases seem to suggest that you interpret it favorably to the property owner who is losing the rights, but in this case, this is not a section that takes away rights but this is a grandfathering clause that purports to give rights to a limited class of lots. He doesn’t believe special permit relief is available in this particular case for those reasons.

Newton Baker Jr., speaks again and indicates that his dad bought one lot first and then 5 years after that bought the other one and has paid taxes for many years separately as a buildable lot.

The Board discusses.

Brian Florence does negative findings:

In the matter of Newton S. Baker Jr., and David R. Baker, acting in behalf of Ester S. Baker relative to variance to Section 240-13(E) Bulk Regulations and Section 240-36 Resource Protection Overlay District Minimum Lot Coverage he would find that the unmerging of the lot would not be in keeping with the intent of the bylaw and further that the petitioner has not demonstrated unique hardship based on shape, topography or soil conditions. Also, the unmerging of the lots would create a nuisance and congestion to the neighborhood.

Vote: AYE: Brian Florence, Michael Hersey, James McGillen, Laura Shufelt NAY: William Newton

Brian Florence makes a motion:

In the matter of Newton S. Baker Jr., and David R. Baker, acting in behalf of Ester S. Baker he would vote to deny the variance for the reasons set forth in his findings.

Seconded.


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VARIANCE DENIED

James McGillen comments that it seems to him that Mrs. Baker, wanted to keep this as long as they possibly could. Had she created this in a trust or separate portion, he doesn’t’ want anyone to be concerned that it might have separated the title. He talks about the Serena case and separation would not have necessarily protected the two Baker brothers.

James McGillen does findings on the special permit.

On Appeal No. 2009-024, Special Permit Request Section 240.91.F, Nonconforming Lots. This is an application to unmerge an undersized vacant lot of 35,000 square feet from an abutting developed lot and to develop the lot with a single family dwelling. The vacant lot is addressed 22 Curry Lane, Osterville, MA and is shown on Assessor’s Map 142 as parcel 152. Additionally the statute cited dates categorically that thee is no additional buildable lot to be generated under this section.


James McGillen makes a motion to deny this special permit.

Seconded Vote: AYE; Brian Florence, Michael Hersey, James McGillen, Laura Shufelt NAY: William Newton

SPECIAL PERMIT DENIED

Laura Shufelt indicates to the Board that the next meeting is June 10th.

Motion to adjourn

Seconded

Vote:

All in Favor

Meeting adjourned at 10:13 PM

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Minutes

June 10, 2009

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday June 10, 2009 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Art Traczyk – Regulatory Review Design Planner and Carol Puckett – Administrative Assistant.

Laura Shufelt Present James McGillen Present Michael Hersey Absent Craig Larson Present William Newton Present Alex Rodolakis Present Nikolas Atsalis Present Brian Florence Present George Zevitas Present

Laura Shufelt opens the hearing at 7:02 PM. She reads a summary of the appeals being heard tonight. She calls the appeals for Cotuit Oyster. Continued Appeals Cotuit Oyster Co., Inc.

Members previously assigned; James F. McGillen, William H. Newton, Craig G. Larson, Brian Florence, Laura F. Shufelt Associates Present; Nikolas J. Atsalis, Alex M. Rodolakis, George T. Zevitas

Remand Appeal No. 2003-094 Cotuit Oyster Co., Inc. Bulk and Parking Variances By a Stipulation for Remand and Stay, Barnstable Superior Court has remanded to the Zoning Board of Appeals for a new and full public hearing of Appeal No. 2003-094. In that appeal Cotuit Oyster Co., Inc., had applied for variances to Section 3-1.4(5) Bulk Regulations Minimum Setback Requirements (today’s Section 240-14.E), and Section 4-2.9 Schedule of Off-Site Parking Requirements (today’s Section 240-56). The relief is sought for construction of a pile supported one-story work building and a pier not in conformance to the 15-foot minimum side yard setback for the district, and for a reduction in the required on-site parking. The property is addressed 26 Little River Road, Cotuit, MA, and is shown on Assessor’s Map 053 as parcel 009. It is in a Residential F Zoning District.

Remand Appeal No. 2003-110 Cotuit Oyster Co., Inc.

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Exempt Use Modification Permit By a Stipulation for Remand and Stay, Barnstable Superior Court has remanded to the Zoning Board of Appeals for a new and full public hearing of Appeal No. 2003-110. In that appeal Cotuit Oyster Co., Inc., had applied for a Modification Permit in accordance with Section 2-4.3(B) Exempt Uses (today’ Section 240-8.A(3)). The modification permit is sought to allow for the construction of a building and a pier not in conformance to the minimum yard setbacks and for a reduction in required on-site parking. The property is addressed 26 Little River Road, Cotuit, MA, and is shown on Assessor’s Map 053 as parcel 009. It is in a Residential F Zoning District.

Remand Appeal No. 2003-137 Cotuit Oyster Co., Inc. Variance to Exempt Use Provisions

By a Stipulation for Remand and Stay, Barnstable Superior Court has remanded to the Zoning Board of Appeals for a new and full public hearing of Appeal No. 2003-137. In that appeal, Cotuit Oyster Co., Inc. had applied for variances to provision (B) and the last paragraph of Section 2-4.4, Exempt Uses (today’s Section 240-8.A(4)(b) and 240-8.B). Those variances are to allow for an aquaculture use to employ up to 5 persons and to construct a building and pier within the required 25-foot yard setback imposed by the exempt use section of the Ordinance. The property is addressed 26 Little River Road, Cotuit, MA, and is shown on Assessor’s Map 053 as parcel 009. It is in a Residential F Zoning District.

Remand Appeal No. 2004-075 Cotuit Oyster Co., Inc. Special Permits for Nonconformities

By a Stipulation for Remand and Stay, Barnstable Superior Court has remanded to the Zoning Board of Appeals for a new and full public hearing of Appeal No. 2004-075. In that appeal, Cotuit Oyster Company, Inc., had applied for Special Permits in accordance with Section 4-4.4(2) Expansion of a Pre-existing Nonconforming Building or Structure Not Used as Single or Two-Family Dwelling (today’s Section 240-93.B), Section 4-4.5(2) Expansion of a Pre-Existing Nonconforming Use (today’s Section 240-94.B), and Section 4-4.6(1) Re-Establishment of Damaged or Destroyed Nonconforming Use or Building or Structure (today’s Section 240-95). The applicant seeks to locate, expand and alter the shellfish harvesting business including the construction of a pile-supported work building and a pier not in conformity to the districts required setbacks. The property is addressed 26 Little River Road, Cotuit, MA, and is shown on Assessor’s Map 053 as parcel 009. It is in a Residential F Zoning District.

Appeal No. 2009-031 Cotuit Oyster Co., Inc. Special Permit Reduction in Parking Cotuit Oyster Company, Inc., had applied for a Special Permit pursuant to Section 240-57 Circumstances Warranting Reduction of [Parking] Requirements. The applicant seeks a reduction in the required on-site parking due to factors that reduce the need for that parking. The property is addressed 26 Little River Road, Cotuit, MA, and is shown on Assessor’s Map 053 as parcel 009. It is in a Residential F Zoning District.

Appeal No. 2009-032 Cotuit Oyster Co., Inc. Use Variance Cotuit Oyster Company, Inc., had applied for a Variance to Section 240-14.A, Principal Permitted Uses in the Residence F Zoning District. In this appeal, the applicant seeks authorization to use the property for a commercial shellfish business, the Cotuit Oyster Company. This use variance application is made in the alternative to that part of the Remand of Appeal No. 2004-075 that seeks an Expansion of a Pre-Existing Nonconforming Use. The property is addressed 26 Little River Road, Cotuit, MA, and is shown on Assessor’s Map 053 as parcel 009. It is in a Residential F Zoning District.

Laura Shufelt indicates that she has received a letter from Attorney J. Douglas Murphy requesting that this might be continued as he is not ready to be here tonight. She would suggest, with the consent of the Board, to accept testimony from the applicant but then continue this to hearing from opposing counsel and then render a decision. James McGillen has no problems and asks that Attorney Murphy gets a copy of tonight’s hearing. Attorney Marielise Kelly is here representing the applicant. Also present are Chris Gargiulo, his wife, the Nelsons and Arlene Wilson from Wilson Associates. She indicates that she will continue

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from the last hearing. She quotes the bylaw and the conditions for granting relief as it pertains to her client. . She indicates that most neighbors were in support except for Janet Haseck and would like to rebut some of the arguments from her attorney, J. Douglas Murphy. First, that this Board, in reading it’s bylaws should not construe the pre-existing nonconforming use provision to allow the expansion of the use into the construction of the building and she respectfully suggests that it is the seminole legal issue that is before them in terms of whether the use can be transformed into the construction of the building. Also, Mr. Murphy’s argument was predicated on the bylaw. She reads part of section 240-94.B. She would ask the Board to focus on the language regarding intensification as the Town of Barnstable has taken steps to define it in the definition section of the bylaws. She suggests that the definition section is depositive of whether a use can be expanded to include construction and specifically at Section 240-125 intensification of use, and reads it. An intensification of use includes any new construction and they need to rely on the definition of the bylaw. Also, another issue was variances and they presented, that in part, Cotuit Oyster met because this is unique both in shape and size. She believes that Attorney Murphy’s contention is that 26, 24 and 28 Little River Road were substantially identical in size and shape and is why they did not meet the shape criteria. She indicates that Arlene Wilson will point out the lots. She believes the shape is unique to have a lot of this size with nothing on it. She then points out grant #3 of Cotuit Oyster. In front of #24 Little River Road, the grant has been there for over 100 years. Also, as to if the Haseck’s view would be obstructed, she indicates that the Haseck’s dwelling was created n the 90’s with a view of being lived next to an existing oyster facility. She shows pictures of the Haseck’s house without the windows. She indicates that there was a statement made that the proposed construction would devaluate and she believes it is an opinion unless presented by an expert. She has retained a real estate expert and will produce a record and that it is more aesthetically pleasing and that buyers would seek it out and will. James McGillen asks about grant #3. Attorney Kelly indicates that the GIS map might not be an accurate depiction. Brian Florence asks about 240-94B and how did he get there as related to setbacks. Ms. Kelly reads it about additional conditions that must be met. Arlene Wilson speaks and indicates that she has copies of the Assessor’s cards on the Estate of Janet Haseck as well as the cards for #26 and #28 which has the building on it until the oyster company lost its lease. In yellow are the properties that are referred to last week as the only ones in the district that were similar in shape to the Cotuit Oyster lot. She talks about water dependency and Section 240-7(G) which she reads part of. She explains that a pier is a water dependent structure. When the design was done the building was set 52 feet of the wetland. The elevated deck on the water-side is excluded from the setback as are the stairs which are closer than 50 feet. The second issue of concern was the issue of compliance with FEMA. The oyster company is in an A zone. She talks about flood requirements for the A zone and options for construction. Attorney Kelly wants to reserve anymore presentation until Attorney. Murphy can respond Laura Shufelt asks about off-site parking and what the need is for what time of year.

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Attorney Kelly refers to the settlement agreement which narrowly restricts the off-site parking which they can implement on this site and therefore unnecessarily restricts what they are looking for from the Board. She indicates that there is a minimum of 5 parking spaces and that they have contractually agreed with the neighbors not to use 5 spaces. She reads from the agreement on Page 3 indicating it is limited to 4 spaces. Laura Shufelt asks about off-site parking. Attorney Kelly indicates that there is parking at the Town Landing for the purposes of the public and that she does not anticipate it being used for employees. They are also limited to 5 employees and can carpool. Craig Larson asks what has been the historical number of employees. Attorney Kelly indicates that there is a maximum of 5 anytime. Chris Gargiulo indicates that the employees haven’t used that Town Landing parking space. Craig Larson asks for any comments regarding if the Board were to limit the parking, about deliveries during the day and if they are going to remove the truck that is there. Chris Gargiulo indicates that according to the settlement agreement that they are limited to parking, the truck will be gone and that there is a company that picks up the product during the day. Attorney Kelly indicates that in the settlement agreement are limitations as to hours, frequency of deliveries, etc., and that they are regulated by it. William Newton asks about retail sales and what provision will there be for parking. Attorney Kelly explains that it is constituted by appointment. Laura Shufelt asks about retail sales and if this building meets the American with Disabilities Act. Attorney Kelly indicates that this project is not on federal property and does not believe that there is any federal funding involved and indicates that she is not sure. She believes that regardless she believes that they would be in compliance. She indicates that the architect who had designed this, Steve Shuman, is familiar with the codes and standards. James McGillen comments that during the winter there is no one else around in that area. William Newton asks if Janet Haseck had an opportunity to be involved in the agreement.

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Attorney Kelly indicates that she was invited through Mr. Murphy in 2007 and that before the last session she died and did not become a party to the settlement agreement.

Charles McLaughlin talks about the ADA requirements and whether there is any record of conditioning He wants Tom Perry to weigh in on that and indicates that we are not an enforcement agency regarding that and wants to look into the history about the ADA. They discuss when to continue this. Motion to continue this to July 8th at 7:00 PM They talk about getting time extensions signed. Seconded Vote: All in favor CONTINUED TO JULY 8, 2009 at 7:00 PM

At 8:03, Laura Shufelt calls the Mill Pond appeal.

Comprehensive Permit No. 2005-013 Mill Pond Estates Modify House Designs & Allow Model Unit

Mill Pond Osterville Associates LLC, has requested a modification of Comprehensive Permit No. 2005-013 issued pursuant to MGL Chapter 40B for the development of 11 single-family dwellings. The modifications seek to change the design of the homes authorized for the development and permission to build one model home for the purposes of marketing the development. The property is addressed as 459 and 449 Old Mill Road, Osterville, MA and is shown on Assessor’s Map 166 as parcel 001 and on Assessor’s Map 143 as parcel 040. It is in a Residence C Zoning District.

Laura Shufelt indicates that there is a letter asking to continue to June 17, 2009 at 7:00. Seconded Vote: All in favor.

CONTINUED TO JUNE 17, 2009 at 7:00 PM Motion to adjourn Seconded. Vote: All in favor.

6



Minutes July 22, 2009 - 7:00 PM

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday July 22, 2009 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Art Traczyk – Regulatory Review Design Planner and Carol Puckett – Administrative Assistant.

Laura Shufelt Present James McGillen Present Michael Hersey Present Craig Larson Present William Newton Present Alex Rodolakis Present Nikolas Atsalis Absent Brian Florence Present George Zevitas Present

Laura Shufelt opens the hearing at 7:05 PM. She reads a summary of appeals being heard tonight. She reads the Estate of Allen Mikkonen/Hazard appeals into the record. Appeal Nos. 2009-034 & 35 - Continued Estate of Allen Mikkonen/ Hazard

Opened June 17, 2009, continued July 22, 2009 - Continued to allow an application for additional relief related to the continuing use of a cottage as an independent living unit (Appeal 2009-042). Members Assigned: Michael P. Hersey, Craig G. Larson, James F. McGillen, William H. Newton, Laura F. Shufelt – Associates Present: Nikolas J. Atsalis, Brian Florence, George T. Zevitas Appeal Nos.2009-034 & 035 Staff Report and Application Materials previously transmitted to Board

Appeal No. 2009-034 - Continued Estate of Allen Mikkonen Bulk Variance to Adjust Lot Lines Marla Rocha as Administratrix of the Estate of Allen Mikkonen has applied for a variance to Section 240-13.E, Bulk Regulations, Minimum Lot Area for a proposed “Lot 2” of 62,598 sq.ft., shown on a plan submitted and not in conformity to the 2-acre minimum lot area requirement for the Resource Protection Overlay District. The proposed Lot 2 is to be created by combining 52,466 sq.ft., of the existing lot addressed 540 Old Stage Road, Centerville, MA with 10,132 sq.ft., of the

abutting lot addressed 530 Old Stage Road, Centerville, MA. The subject lots are shown on Assessor’s Map 190 as parcels 074-001 and 074-002. They are in a Residence C Zoning District and a Resource Protection Overlay District. Appeal No. 2009-035 – Continued Seth & Kristina Hazard Bulk Variance to Adjust Lot Lines Seth W. & Kristina I. Hazard have applied for a variance to Section 240-13.E, Bulk Regulations, Minimum Lot Area for a proposed “Lot 1” of 47,044 sq.ft., shown on a plan submitted and not in conformity to the 2-acre minimum lot area requirement for the Resource Protection Overlay District. The proposed Lot 1 is to be created by combining 36,288 sq.ft., of the existing lot addressed 522 Old Stage Road, Centerville, MA with 7,289 sq.ft., of the abutting lot addressed 530 Old Stage Road, Centerville, MA and 3,467 sq.ft., of the abutting lot addressed 540 Old Stage Road, Centerville, MA. The subject lots are shown on Assessor’s Map 190 as parcels 074-003, 074-002 and 074-001. They are in a Residence C Zoning District and a Resource Protection Overlay District. Appeal No. 2009-042 - New Hazard & Estate of Allen Mikkonen Variance – Principal Permitted Use Seth W. & Kristina I. Hazard and Maria Rocha as Administratrix of the Estate of Allen Mikkonen have applied for a variance to Section 240-13.A, Principal Permitted Uses. The applicants are requesting the variance for a proposed reconfigured lot shown on a plan submitted as Lot #2. Lot #2 is to be a combination of parts of two existing developed lots and once reconfigured, will result in two single-family dwellings on the new Lot #2. The Variance is requested to permit the continuation of the two dwellings on the single lot. The subject property is a combination of parts of the existing parcels addressed 540 and 530 Old Stage Road, Centerville, MA, and shown on Assessor’s Map 190 as parcels 074-001 and 074-002. They are in a Residence C Zoning District and a Resource Protection Overlay District. Members assigned tonight: Craig Larson, Michael Hersey, William Newton, James McGillen, Laura Shufelt Attorney Stuart Rapp is representing the Estate of Allen Mikkonen. Also with him are the Hazards. He refers to 540 Old Stage Road. He gives a summary of what had existed on the site. The cottage has been traditionally used as a rental cottage. Mr. Mikkonen has passed away and part of the estate is to sell. There is a driveway that goes over the cottaged lot which is now owned by Seth & Kristina Hazard. The driveway would be required if it were to be left as is, reconfigured to take off the cottaged lot. The family would like to avoid the possibility of a future building being built on the cottaged lot. What the family decided was to divide the cottaged lot to allow a buffer for the Hazard’s and as well to provide for the cottage to go with the home farm. He gives a summary of what is being sought for relief. He indicates that the hardship would be the reconfiguration, the cost and the diminished value if the cottage is not allowed to be rented to a stranger. James McGillen asks if he has read the conditions. Attorney Rapp indicates that he has no problems with the conditions. The Board discusses one of the conditions concerning the expansion as it applies to the principal buildings. William Newton points out the intended division on a plan from Attorney Rapp and suggests another configuration. .

Attorney Rapp indicates that the consensus of the family is to provide the Hazards with a buffer and indicates that there is also a slope of the lot. Laura Shufelt asks if there is anyone from the public who would like to speak either in favor or in opposition. No one speaks. James McGillen does findings: from the staff report

On Appeal No. 2009-034 the estate of Allen Mikkonen Bulk Variance to adjust lot lines. Marla Rocha as Administratrix of the Estate of Allen Mikkonen has applied for a variance to Section 240-13.E, Bulk Regulations, Minimum Lot Area for a proposed “Lot 2” of 62,598 sq.ft., shown on a plan submitted and not in conformity to the 2-acre minimum lot area requirement for the Resource Protection Overlay District. The proposed Lot 2 is to be created by combining 52,466 sq.ft., of the existing lot addressed 540 Old Stage Road, Centerville, MA with 10,132 sq.ft., of the abutting lot addressed 530 Old Stage Road, Centerville, MA. The subject lots are shown on Assessor’s Map 190 as parcels 074-001 and 074-002. They are in a Residence C Zoning District and a Resource Protection Overlay District.

Appeal No. 2009-035 - Hazard - Seth W. & Kristina I. Hazard have applied for a variance to Section 240-13.E, Bulk Regulations, Minimum Lot Area for a proposed “Lot 1” of 47,044 sq.ft., shown on a plan submitted and not in conformity to the 2-acre minimum lot area requirement for the Resource Protection Overlay District. The proposed Lot 1 is to be created by combining 36,288 sq.ft., of the existing lot addressed 522 Old Stage Road, Centerville, MA with 7,289 sq.ft., of the abutting lot addressed 530 Old Stage Road, Centerville, MA and 3,467 sq.ft., of the abutting lot addressed 540 Old Stage Road, Centerville, MA. The subject lots are shown on Assessor’s Map 190 as parcels 074-003, 074-002 and 074-001. They are in a Residence C Zoning District and a Resource Protection Overlay District. Appeal No. 2009-042 Seth W. & Kristina I. Hazard and Maria Rocha as Administratrix of the Estate of Allen Mikkonen have applied for a variance to Section 240-13.A, Principal Permitted Uses. The applicants are requesting the variance for a proposed reconfigured lot shown on a plan submitted as Lot #2. Lot #2 is to be a combination of parts of two existing developed lots and once reconfigured, will result in two single-family dwellings on the new Lot #2. The variance is requested to permit the continuation of the two dwellings on the single lot. The subject property is a combination of parts of the existing parcels addressed 540 and 530 Old Stage Road, Centerville, MA, and shown on Assessor’s Map 190 as parcels 074-001 and 074-002. They are in a Residence C Zoning District and a Resource Protection Overlay District. James McGillen makes the following findings:

1. The proposed petitions reduces 3 lots into 2 lots each exceeding one acre and the frontage on Old Stage Road for both lots is increased on each of the two remaining lots

2. Owing to the shape of Lot 2 and 3, especially with an existing lot between them and the topography sloping and the topography existing on the location of the existing buildings that this conditions especially affects said lots and does not affect generally the zoning district in which they are located

3. Only dimensional and use variances are involved and that a literal enforcement of the provisions of the law would create a hardship of expense and difficulty in moving a building. Hardship is also established in the bylaw where it creates an undue burden on ownace of developed lots, adjusting lot lines that do not substantially derogate from the intent of the zoning law or does not affect the abutting property. Hardship is not self imposed by the petitioners

4. The desirable relief results in both lots to be in excess of one acre as nonconforming lots and maybe be granted without substantial detriment to the public good. It does not nullify or substantially derogate from the intent of the zoning bylaw.

5. The allowance of the two existing long established residence on a single lot present no greater burden to the property or results in no detriment to the public good and does not substantially derogate from the intent of the zoning bylaw


Based on those positive findings, James McGillen makes the motion as to the individual petition and will read the conditions only once.

Motion that Appeal No. 2009-034 be granted in a variance issued subject to the following conditions: The use variance and the bulk variances be granted to allow 2 independent single-family dwellings to exist on a single lot and two lots of 47,044 sq. ft and 62,598 sq.ft., be granted subject to the following conditions:

1. The referenced approved Approval Not Required (ANR) plan shall have a note on it that states ‘Lot #2 is subject to the grant of Use Variance No. 2009-042 to allow two single-family dwellings on that lot subject to restrictions’. The ANR Plan shall then be submitted to the Barnstable Planning Board for endorsement and thereafter the plan and this variance shall be recorded at the Barnstable Registry of Deeds.

2. Any further expansion of the principal buildings located on Lot #2 shall require Zoning Board of Appeals approval prior to any building permit applications. Expansion shall include building footprint, gross building area and number of bedrooms.

3. There shall not be more that two curb-cuts on Old Stage Road for Lot #2.

4. The relief authorized in this decision must be executed within one year by recording this decision at the Barnstable Registry of Deeds with the endorsed Approval Not Required Plan. A copy of the recorded plan and variance must be submitted to the Zoning Board of Appeals Office for the relief authorized herein to be in effect and implemented.

Seconded.

Vote: AYE: Craig Larson, Michael Hersey, James McGillen, Laura Shufelt NAY: William Newton James McGillen makes a motion that Appeal 2009-035 variance be approved subject to the afore mentioned conditions Seconded. Vote: AYE: Craig Larson, Michael Hersey, James McGillen, Laura Shufelt NAY: William Newton James McGillen makes a motion that Appeal 2009-042 be granted for the reconfiguration and placement of two principal buildings subject to the afore mentioned conditions. Seconded. Vote: AYE: Craig Larson, Michael Hersey, James McGillen, Laura Shufelt NAY: William Newton GRANTED WITH CONDITIONS

Laura Shufelt then calls the Mill Pond Estates and indicates there is a letter from Attorney Schulz requesting a continuance to August 5th at 7PM Comprehensive Permit No. 2005-013 - Continued Mill Pond Estates

Modify House Designs & Allow Model Unit

Opened June 10, 2009, continued June 17, 2009, and to July 22, 2009 No Members Assigned - No Testimony Taken

Mill Pond Osterville Associates LLC, has requested a modification of Comprehensive Permit No. 2005-013 issued pursuant to MGL Chapter 40B for the development of 11 single-family dwellings. The modifications seek to change the design of the homes authorized for the development and permission to build one model home for the purposes of marketing the development. The property is addressed as 459 and 449 Old Mill Road, Osterville, MA and is shown on Assessor’s Map 166 as parcel 001 and on Assessor’s Map 143 as parcel 040. It is in a Residence C Zoning District. Motion is made to continue this to August 5, 2009 at 7:00 PM Seconded Vote: AYE: Craig Larson, Michael Hersey, James McGillen, William Newton Laura Shufelt NAY: None

CONTINUED TO AUGUST 5, 2009 AT 7:00 PM

Laura Shufelt then calls the Joyce Realty Acquisitions I, LLC. appeal. Laura reads them into the record Appeal Nos. 2009-036 & 037 – New Joyce Realty Acquisition I, LLC. Appeal No. 2009-036 - New Joyce Realty Acquisition I, LLC. Modification of Variance No. 1998-16 Joyce Realty Acquisition I, LLC, d/b/a/ Joyce Landscaping Inc., has applied for a modification of Variance No. 1998-16. The applicant is requesting the modification to permit development and use of the property in accordance with a new site plan submitted and to allow; the storage of additional materials, employment of more than twenty (20) persons, include landscape masonry work from the site, provide for heavy duty equipment at the site and allow for more tractor trailer deliveries to the site. The subject property is addressed 68 and 50 Flint Street, Marstons Mills, MA, and is shown on Assessor’s Map 123 as parcels 004-006 and 004-007. It is zoned Residential F and in a Groundwater Protection Overlay District. Appeal No. 2009-037 - New Joyce Realty Acquisition I, LLC. Appeal of Administrative Official Joyce Realty Acquisition I, LLC, d/b/a/ Joyce Landscaping Inc., has appealed a May 13, 2009 Notice of Zoning Ordinance Violation(s) and Order to Cease, Desist and Abate issued by the Building Division. The appeal cites that the applicant has filed for a modification of Variance No. 1998-16 as requested in the order and that the other activities cited in the order are exempt as agricultural use. The subject property is addressed 68 and 50 Flint Street, Marstons Mills, MA, and is shown on Assessor’s Map 123 as parcels 004-006 and 004-007. It is zoned Residential F and in a Groundwater Protection Overlay District. Laura Shufelt indicates that the is a letter from Attorney John Kenney for a continuance to October 21, 2009 at 7:00 PM Motion to continue to October 21, 2009 at 7:00 PM Seconded Vote: AYE: Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt NAY: None CONTINUED TO OCTOBER 21, 2009 AT 7:00 PM

Laura Shufelt then calls the Laugharn appeal and reads it into the record.

Appeal No. 2009-039 - New Laugharn Demo/Rebuild Nonconformity to Setbacks

James and Justine Laugharn have applied for a Special Permit pursuant to Section 240-91.H(2) Nonconforming Lot – Developed Lot Protection. The petitioner is seeking a special permit to allow for the demolition of the existing dwelling and the rebuilding of a new single-family dwelling on the undersized lot. The location of the proposed dwelling is based upon the location of the existing structure and does not conform to the required front yard setback off the Way situated to the west of the lot. The property is addressed as 100 Bay View Road, Barnstable, MA, and is shown on Assessor’s Map 319 as parcel 030. It is in a Residence B zoning district Members assigned: Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt Chris Childs from Patriot Builders is here representing the applicants. He gives a summary of relief being requested. He indicates that all dimensional requirements are being met and that Old King’s Highway recently approved the change of 12 inches and he has submitted plans to this Board. William Newton asks where the access is to the property. Chris Childs indicates that there is a right of way and at the southwest corner is where it is accessed and they are proposing a driveway off the 10 foot way and will apply for the road opening permit when they get the building permit. Craig Larson asks why they can’t make the building conform to the setbacks. Chris Childs indicates that there is an Order of Conditions from Conservation that moving to adhere to the 20 foot setback would impinge on the wetlands. Chris indicates that previously it was proposed to be a second floor addition to maintain the existing structure, put two additions on the south side and a second floor. It was then decided that they would build the exact same design as the additions as a new structure and received approvals. He indicated to the Laugharn’s that they needed a special permit. Art Traczyk comments that Conservation is strict in having them move closer to the wetland area. They discuss problems with moving it away from the right of way and closer to the conservation area. Laura Shufelt asks if the is anyone here from the public who would like to speak Jeanette Ennis of 72 Bay View Road speaks and indicates that she has been there since 1970. She indicates that the house being demolished was going to be modified but that it interferes with their deeded beach rights. She is concerned about the changes to the right of way. She is also concerned about the utility pole, guy wires and removal of trees. She wants to know about her deeded beach rights and asks if they are going to put a driveway across the deeded beach right of way.

William Newton asks Ms. Ennis how the people who had lived there got in and out. Ms Ennis indicates it was an unwritten thing and that they would drive over the right of way into their grassed driveway. Michael Hersey indicates that the footprint is proposed to be the same and asks if her objection is access to the lot. Ms. Ennis indicates that they will be removing trees and relocating the utility pole. Brian Florence comments that the construction will be after the summer months and could be conditioned. He also indicates that the utility pole and the right of way concerns could be conditioned to the satisfaction of the Town Engineer.. Chris Childs indicates that the utility pole was something Verizon petitioned the Town as they were planning on taking it down and moving because it is unsafe. He has documentation that reflects correspondence prior to Patriot Builders being involved with the project. Also, there is a tree where a limb would need to be taken off and have spoken with Mr. & Mrs. Cataldo about the tree. Mrs. Cataldo who lives at 279 Sunset Lane speaks and indicates they haven’t given permission to do anything to the tree yet. She indicates that the tree is partly supporting the pole and is concerned about the new placement of the pole and guy wires. Laura Shufelt then reads the letter from abutters, the Gruhn’s, into the record asking that the replanting in the conservation part of the property in question be kept low as not to interfere with their view of Sandy Neck. Laura asks if Chris Childs wants to address this. Chris Childs indicates that the plantings will have to be approved by Conservation, which hasn’t been done yet, and that the applicants aren’t planning on putting anything there unless they are told to by Conservation Art Traczyk comments that the Conservation Committee wants it partially vegetated and that he did put a suggested condition with a limit of less than 2 feet. William Newton asks about the garage and access. Mr. Childs indicates that the applicants will ask engineering about it and that he plans to use that access to get in and out of the property. Mike Hersey asks what they will do to restore preserve the right of way. Mr. Childs that the applicants would like approval for gravel and, if not, they will put grass. Art Traczyk indicates that it is a public way and any improvements in the right of way need to be addressed by the Town. Chris Childs indicates that he would be happy to initiate with the Town Engineer what they could to improve that area before they move forward.

The Board discusses making a condition pertaining that all improvements within the public right of way must be approved by the Town Engineer prior to any changes or alterations. Chris Childs then suggests making a condition regarding the planting in that area to protect the abutter’s view it be based on prior approval by the Conservation Committee not necessarily restricting heights or exact number or dimensions of plants as the planting is not part of what he would be doing on this project as it would be up to the applicants. Laura Shufelt comments that what they had proposed was a condition regarding revegetating the border of the wetland area the applicant in consultation with the Conservation agent shall select those approved species from the ConComm;s adopted list of tress and shrubs, etc., using those identified as law shrubs on that list. Chris Childs indicates that is okay. Art Traczyk indicates that he had talked with Fred Stepanis of ConComm who had it approved by him. James McGillen makes positive findings. On Appeal 2009-039 regarding Laugharn petition to demo/rebuild a nonconformity to setbacks, James and Justine Laugharn have applied for a Special Permit pursuant to Section 240-91.H(2) Nonconforming Lot – Developed Lot Protection. The petitioner is seeking a special permit to allow for the demolition of the existing dwelling and the rebuilding of a new single-family dwelling on the undersized lot. The location of the proposed dwelling is based upon the location of the existing structure and does not conform to the required front yard setback off the Way situated to the west of the lot. The property is addressed as 100 Bay View Road, Barnstable, MA, and is shown on Assessor’s Map 319 as parcel 030. It is in a Residence B Zoning District.

1. The lot coverage by all building and structures does not exceed 20 percent of the existing lot coverage, whichever is greater.

2. The Floor Area Ratio does not exceed .30 or the existing Floor Area Ratio of the structure being demolished and being rebuilt, whichever is greater.

2. The height of the building does not exceed 30 feet to the highest plate and does not contain more than 2 ½ stories.

3. The proposed new dwelling, although not complying with the setback is equal to the setback of the existing building.

4. The proposed new dwelling would not be substantially more detrimental to the neighborhood than the existing dwelling.

Vote: AYE: Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt NAY: None

Michael Hersey makes a motion to grant 2009-039 subject to the current terms and conditions previously outlined by Mr. McGillen.

James McGillen amends it that adding the additional conditions of that they proposed. Laura indicates conditions 1 through 8 and another condition regarding the right of way as previously stated by Art. Art Traczyk indicates that the condition shall state that all improvements within the public right of way must be approved by the Town Engineer prior to any changes or alterations. Craig Larson indicates that the plan also has been revised and the date should reflect 06-29-09. Seconded. Vote: AYE: Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt NAY: None

GRANTED WITH CONDITIONS Laura Shufelt calls a 5 minute break. Back in session at 8:23 PM. Laura reads the JDJ appeal into the record. Comprehensive Permit No. 2003-090 JDJ Housing Development – Village Green Minor Modification Request To Transfer Permit

A July 9, 2009, letter from Joseph Keller, Manager of JDJ Housing Development LLC, has requested the Board approve Dakota Partners, Inc., acquisition of JDJ Housing Development LLC and its assets, inclusive of Comprehensive Permit No. 2003-090 and all modifications and extensions issued for the development of the “Village Green”. Comprehensive Permit No. 2003-090 as modified authorized development of 148 rental apartment units in five (5) three-story buildings on 14.32 acres. A minimum of forty (40) units are to be affordable rental and eleven (11) units committed to “workforce housing”. The subject property is addresses 0 Independence Drive (a/k/a 770 Independence Drive), Barnstable, MA and is shown on Assessor's Map 332, as Parcel 010-1. It is zoned Industrial and is in a Wellhead and Groundwater Protection Overlay Districts. Members assigned: Craig Larson, Michael Hersey, James McGillen, Laura Shufelt, William Newton Laura Shufelt indicates that this is informational rather than a substantive change. In a Chapter 40B there is typically a condition that any transfer of the permit requires the applicant to come back and ask for approval and they would also have to get approval from whomever the subsidizing agent is. In this case, the formal Board added not only the transfer of the permit

but the transfer of any interest or interest in the applicant so that the LLC, if transferred, was required and that the applicant come back to the Board and it’s purely informational. By transferring the interest they don’t have to go back to the subsiding agency and that is why they do not have a letter as the permit is not being transferred. JDJ Development is still the holder of the permit and it is just the interest that is being changed. What is before the Board is information and not a substantial change. She talks about communication from Mr. Berlandi and wants to address his concerns as well as his clients regarding their concerns about not allowing public comment. She indicates that when it is informational there is no public hearing and is not required. She quotes CMR 760.56. and what constitutes substantive and insubstantial changes. She talks about cost certification and that finances are under the subsidizing agency. She indicates that this Board can only review the financial statements and the viability as it stands for profitability as to when they wish to impose a condition that the developer comments would make their project uneconomical. She explains again what is in the purview of this Board and the subsidizing agency. James McGillen comments that this is a change of beneficiaries. Joseph Keller from Osterville, principal of JDJ Development, speaks and wants to introduce the people from Dakota Partners. He felt it was better to turn over the development to people more familiar with this area and who more about it. He gives a background on Dakota Partners. Michael Hersey asks why they would need to hear from Dakota Partners management if public comments are not also allowed. Laura Shufelt explains that this is just for informational purposes. Steve Kominski and Roberto Arista, principals from Dakota Partners introduces themselves. Steve Kominski clarifies that they hare here for a minor modification. George Zevitas asks Laura Shufelt to explain again. Laura Shufelt indicates that the permit is not being transferred, it is a transfer within. Laura explains.. Art Traczyk explains what had transpired in other transfers versus this case. Bud Bergstrom, from the audience, asks if there is going to be public comment. Laura Shufelt indicates that there will be no public comment James McGillen makes a motion that the modification is insubstantial based on the statutory provisions Seconded. George Zevitas asks if the person from the audience could have public comment.

Laura Shufelt indicates that there is a motion on the floor and that there was no public comment as once it is determined insubstantial there is no public comment. James McGillen explains how this is insubstantial. Vote: AYE: Craig Larson, Michael Hersey, James McGillen, William Newton, Laura Shufelt Nay: None

INSUBSTANTIAL CHANGE GRANTED – TRANSFER GRANTED Motion to adjourn Seconded Meeting adjourned at 8:40 PM


Minutes August 5, 2009

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday August 5, 2009 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Art Traczyk – Regulatory Review Design Planner and Carol Puckett – Administrative Assistant.

Laura Shufelt Present James McGillen Present Michael Hersey Absent Craig Larson Present William Newton Present Alex Rodolakis Present Nikolas Atsalis Present Brian Florence Absent George Zevitas Present

Laura Shufelt opens the hearing at 7:02 PM. She reads a summary of the appeals to be heard tonight. She indicates that several of the appeals are either being continued or withdrawn and will call one appeal out of order. She then calls the Mill Pond Estates appeal. Comprehensive Permit No. 2005-013 – Continued Mill Pond Estates

Modify House Designs & Allow Model Unit

Opened June 10, 2009, continued June 17, 2009, July 22, 2009, and to August 5, 2009

Mill Pond Osterville Associates LLC, has requested a modification of Comprehensive Permit No. 2005-013 issued pursuant to MGL Chapter 40B for the development of 11 single-family dwellings. The modifications seek to change the design of the homes authorized for the development and permission to build one model home for the purposes of marketing the development. The property is addressed as 459 and 449 Old Mill Road, Osterville, MA and is shown on Assessor’s Map 166 as parcel 001 and on Assessor’s Map 143 as parcel 040. It is in a Residence C Zoning District. Members assigned: Craig Larson, James McGillen, William Newton, Nik Atsalis, Laura Shufelt Attorney Michael Schulz is representing the applicants. He indicates that Mr. Caggiano is unable to make this but had submitted a request to change the style of the homes and the ability to construct a model home. He indicates that they would like to withdraw their request

to build a model home as they have pre-sold one unit under agreement that can be used as the model home for the development. Laura Shufelt indicates that they can now take a motion to withdraw the request for the construction of the model home. James McGillen makes a motion to withdraw the request for the model home. Seconded. Vote: All in favor. Attorney Schulz then presents his request for the modification of the permit to change the styles of the homes as outlined in the staff report. As shown on the revised site plans the affordable units will remain on lots 2, 7 and 11 as in the original comprehensive permit and that they will be indistinguishable from the market rate homes. He indicates that the reason for the change of style is because it will be more cost effective as the homes will now be smaller in size and the prices are more in-line with the financial times of today. They are priced anywhere from $399,000 to $450,000 rather than $695,000 to $740,000. All contain 3 bedrooms instead of 4 bedrooms which will be easier for owners to heat which will also make it more environmentally sound. The applicant appeared before the Housing Committee on June 16, 2009 and there is a letter appended to the staff report as to them receiving approval. He asks that the Board grant the modification to accept the new house styles. Laura Shufelt comments that, in the site plan, there seems to her that there are no additional waivers being sought than the original permit. Attorney Schulz answers that it correct. Laura Shufelt indicates that based on the current regulations of 40B, the plans would need to be signed by an architect. She asks if the Board could live with the condition that prior to a building permit they would be submitting plans that would be signed by an architect. She explains for single family homes the Town doesn’t usually require plans singed by an architect but for 40B’s if it 5 units or more, even though they are single family homes. James McGillen makes a motion that this is an insignificant modification of a 40B permit. Seconded. Vote: All in favor The Board discusses adding the condition regarding the stamped architectural plans be submitted to the Board prior to the issuance of a building permit.

James McGillen moves that the petitioners request for permission to change the styles of the dwellings including the reduction of the previous 4 bedrooms units to 3 bedroom dwellings be approved subject to the conditions as stated. Seconded. Vote: AYE: Craig Larson, James McGillen, William Newton, Nik Atsalis, Laura Shufelt NAY: None Laura Shufelt informs Attorney Schulz that it was voted an insubstantial modification is in effect immediately and does not require an appeal period. GRANTED WITH CONDITIONS Laura Shufelt then calls the EAC appeal. Appeal No. 2009-025 - Continued EAC Disposal, Inc.


Opened April 1, 2009, continued, May 20, 2009 and to August 5, 2009. This Appeal was continued at the request of the applicant to allow for further plan review and update, as well as additional information. Staff anticipates that no action will be taken on this application other than a continuation of it to the hearing of September 23, 2009.

Members Assigned: William H. Newton, Michael T. Hersey, Alex Rodolakis, Brian Florence, Laura F. Shufelt - Associates Members Present: Nikolas J. Atsalis, George T. Zevitas

EAC Disposal, Inc., d/b/a Cape Resources Company has applied for a Modification of Variance No. 1996-14. The modification is sought to allow for revisions to the site that include a new wood processor and staging area, alteration to interior site circulation, and additions and alterations to screening berms and landscape. The property is addressed 280 Old Falmouth Road, Marstons Mills, MA as shown on Assessor’s Map 100 as parcel 008. The lot is in a Residence F Zoning District. She indicates that it was opened and is going to be continued to September 23, 2009 at 7:00 PM. Motion to continue to September 23, 2009 at 7:00 PM Vote: All in favor CONTINUED TO SEPTEMBER 23, 2009 AT 7:00 PM

Laura Shufelt then calls the Waldron/Northeast Marketing Group appeals and reads it into the record. Appeal No. 2009-041 - New Waldron/Northeast Marketing Group


Timothy J. Waldron, Trustee of Northeast Marketing Group Realty Trust has appealed the May 19, 2009 decision of the Building Commissioner that the subject property, 1330 Phinney’s Lane, Hyannis, MA, does not have the zoning benefits of the Medical Services Overlay District (MSOD) as it is zoned Residence F-1. The appellant had requested the Board confirm that its property is included within the Medical Services Overlay District and that it is located within its boundaries and subject to, and benefited by, the provisions of that overlay district. The property is addressed as 1330 Phinney’s Lane, Hyannis, MA. It is shown on Assessor’s Map 274 as parcel 016/X02. It is in a Residence F-1 Zoning District. Appeal No. 2009-045 - New Waldron/Northeast Marketing Group

Modification of Use Variance No. 1995-109 Timothy J. Waldron, Trustee of Northeast Marketing Group Realty Trust has petitioned for a modification of Condition No. 2 of Use Variance No. 1995-109. The petitioner is requesting that Condition No. 2 be changed to include the use of the building for medical offices (including, without limitation, offices for physical therapy and chiropractic services) and/or dental offices as allowed for in Medical Services Overly District (MSOD). The property is addressed as 1330 Phinney’s Lane, Hyannis, MA. It is shown on Assessor’s Map 274 as parcel 016/X02. It is in a Residence F-1 Zoning District. Laura Shufelt indicates that Attorney Eliza Cox has submitted a letter today, August 5, 2009, asking for a continuance to September 16, 2009 Motion to continue September 16 Seconded Vote: All in favor CONTINUED TO SEPTEMBER 16, 2009 AT 7:00 PM Laura Shufelt then calls the Stuborn Limited Partnership appeal and reads it into the record. Appeal No. 2009-043 - New Stuborn Limited Partnership


An August 4, 2009 Agreement for “Stipulation of Voluntary Withdrawal of [this] Appeal without Prejudice”, signed by Stuart Bornstein on behalf of Stuborn Limited Partnership, the Appellant, and Thomas Perry, Barnstable’s Building Commissioner has been entered into the file. Based upon that agreement, this Appeal will be administratively withdrawn without prejudice as requested.

Stuborn Limited Partnership has appealed the May 28, 2009 decision of the Building Commissioner pursuant to Section 240-125(B)(1)(a), Appeals from Administrative Official. The appellant is appealing that decision from the Building Commissioner that stated the residential use of the property could not be reestablished as-of-right as that residential use has been discontinued for more that three years. The appellant is appealing that decision on the basis that the Commissioner had no authority to issue the decision and if the Commissioner had the authority that the Board overrule the decision and reverse it. The property is addressed 153 Freezer Road, Barnstable, MA. It is shown on Assessor’s Map 301 as parcel 006. It is in a Marine Business-B Zoning District. Members assigned: Craig Larson, James McGillen, William Newton, George Zevitas, Laura Shufelt

Laura Shufelt indicates that there is an agreement/ stipulation of voluntary withdrawal without prejudice which was submitted and signed by Mr. Bornstein, the Assistant Town Attorney and Tom Perry – Building Commissioner. She reads the letter into the record. Motion to withdraw without prejudice. Seconded Vote: All in favor Laura Shufelt asks if they want to approve the minutes from May 6, 2009, May 20, 2009 & June 10, 2009 Motion is made to approve the minutes. Seconded Vote: All in favor Laura Shufelt then talks about the schedule and that the next hearing is August 19th.. Art Traczyk indicates that it will only be an administrative process and that he needs only one person to be here. He anticipates that there will not be a regular hearing. James McGillen indicates that he will be here and nobody else has to be. Laura then indicates that we are canceling September 2nd and would like to add a special meeting for August 26th for training on Chapter 40B. She indicates that Attorney Ruth Weil will be giving that training and that this, if the room is available, will be held in the Selectman’s Conference Room. Then in September there will be a meeting on the 16th and 23rd. They discuss the times for August 26th. They agree to 6:00 PM. Motion to adjourn Seconded Vote: All in favor. Meeting adjourned at 7:22 PM

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Minutes August 19, 2009

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday August 19, 2009 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Art Traczyk – Regulatory Review Design Planner and Carol Puckett – Administrative Assistant.

Laura Shufelt Absent James McGillen Present Michael Hersey Absent Craig Larson Absent William Newton Absent Alex Rodolakis Absent Nikolas Atsalis Absent Brian Florence Absent George Zevitas Absent

James McGillen – Vice Chair, opens the hearing at 7:00 PM. He gives a summary of the appeals tonight and indicates that the applicant/petitioner’s representative, Attorney Marielise Kelly, has sent a letter dated August 17, 2009. This letter is a request for an administrative withdrawal of the following applications. Remand Appeal No. 2003-094 –Part 2 Cotuit Oyster Co., Inc. Parking Variance By a Stipulation for Remand and Stay, Barnstable Superior Court remanded to the Zoning Board of Appeals, Appeal No. 2003-094. Part 2 of that appeal that sought a variance to Section 4-2.9 Schedule of Off-Site Parking Requirements, for a reduction in the required on-site parking Remand Appeal No. 2003-110 Cotuit Oyster Co., Inc.

Exempt Use Modification Permit By a Stipulation for Remand and Stay, Barnstable Superior Court has remanded to the Zoning Board of Appeals, Appeal No. 2003-110. In that appeal Cotuit Oyster Co., Inc., had applied for a Modification Permit in accordance with Section 2-4.3(B) Exempt Uses (today’ Section 240-8.A(3)). The modification permit is sought to allow for the

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construction of a building and a pier not in conformance to the minimum yard setbacks and for a reduction in required on-site parking. Remand Appeal No. 2003-137 Cotuit Oyster Co., Inc.

Variance to Exempt Use Provisions By a Stipulation for Remand and Stay, Barnstable Superior Court has remanded to the Zoning Board of Appeals, Appeal No. 2003-137. In that appeal, Cotuit Oyster Co., Inc. had applied for variances to provision (B) and the last paragraph of Section 2-4.4, Exempt Uses (today’s Section 240-8.A(4)(b) and 240-8.B). Those variances were requested to allow for an aquaculture use to employ up to 5 persons and to construct a building and pier within the required 25-foot yard setback imposed by the exempt use section of the Ordinance. Remand Appeal No. 2004-075-Part 2 Cotuit Oyster Co., Inc.

Special Permits for Nonconformities By a Stipulation for Remand and Stay, Barnstable Superior Court has remanded to the Zoning Board of Appeals, Appeal No. 2004-075. Part 2 of that appeal sought Special Permits in accordance with Section 4-4.4(2) Expansion of a Pre-existing Nonconforming Building or Structure Not Used as Single or Two-Family Dwelling (today’s Section 240-93.B), and Section 4-4.6(1) Re-Establishment of Damaged or Destroyed Nonconforming Use or Building or Structure (today’s Section 240-95). Appeal No. 2009-032 Cotuit Oyster Co., Inc. Use Variance Cotuit Oyster Company, Inc., has applied for a Variance to Section 240-14.A, Principal Permitted Uses in the Residence F Zoning District. In this appeal, the applicant seeks authorization to use the property for a commercial shellfish business, the Cotuit Oyster Company. James McGillen adjourns the meeting at 7: 04 PM


Minutes September 16, 2009

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday September 16, 2009 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Art Traczyk – Regulatory Review Design Planner and Carol Puckett – Administrative Assistant.

Laura Shufelt Present James McGillen Present Michael Hersey Present Craig Larson Present William Newton Absent Alex Rodolakis Present Nikolas Atsalis Absent Brian Florence Present George Zevitas Present

Laura Shufelt opens the hearing at 7:02 PM. She gives a summary of the appeals being heard tonight. She reads both appeals into the record: Appeal No. 2009-041 – Continued Waldron/Northeast Marketing Group

Appeal of the Building Commissioner Opened August 5, 2009, continued to September 16, 2009, at the request of the applicant.

. Timothy J. Waldron, Trustee of Northeast Marketing Group Realty Trust has appealed the May 19, 2009 decision of the Building Commissioner that the subject property, 1330 Phinney’s Lane, Hyannis, MA, does not have the zoning benefits of the Medical Services Overlay District (MSOD) as it is zoned Residence F-1. The appellant had requested the Board confirm that its property is included within the Medical Services Overlay District and that it is located within its boundaries and subject to, and benefited by, the provisions of that overlay district. The property is addressed as 1330 Phinney’s Lane, Hyannis, MA. It is shown on Assessor’s Map 274 as parcel 016/X02. It is in a Residence F-1 Zoning District.

Appeal No. 2009-045 – Continued Waldron/Northeast Marketing Group

Modification of Use Variance No. 1995-109

Opened August 5, 2009, continued to September 16, 2009, at the request of the applicant.

Timothy J. Waldron, Trustee of Northeast Marketing Group Realty Trust has petitioned for a modification of Condition No. 2 of Use Variance No. 1995-109. The petitioner is requesting that Condition No. 2 be changed to include the use of the building for medical offices (including, without limitation, offices for physical therapy and chiropractic services) and/or dental offices as allowed for in Medical Services Overly District (MSOD). The property is addressed as 1330 Phinney’s Lane, Hyannis, MA. It is shown on Assessor’s Map 274 as parcel 016/X02. It is in a Residence F-1 Zoning District.

Members assigned: James McGillen, Craig Larson, Michael Hersey, Brian Florence, Laura Shufelt Attorney Eliza Cox is representing the applicant. Attorney Cox indicates that also here tonight are Mr. Chris Coy and Mr. Mike Degnan who are principals of the entity who own the subject property. Also, Attorney John Kenney is here representing the potential purchaser, Dr. Lucia McNabb who is also here. Attorney Cox indicates that she would like to proceed with the use variance and if granted, they would be prepared to withdraw without prejudice the other petition. Attorney Cox shows a PowerPoint presentation (see attached) and gives the particulars of the property in regards to location. . She indicates that Realty Executives presently occupies the building and that there will be no alteration as proposed to the exterior. She shows pictures of the property on the presentation. She then goes over the use variance: 1995-109. She shows a MSOD slide and explains its definition. She then talks about the roadway improvements sine the granting of the use variance. She then hands out proposed conditions to the Board Members. Laura Shufelt then asks if the Board Members have any questions. James McGillen comments that he doesn’t have a problem with the petition but as to the MSOD it states in the bylaw that it overlays an industrial zoning district. He thinks that there would be a lot of bulk restriction problems that need to be varied. He is concerned about the parking for the potential 3 offices. Attorney Cox indicates that in the proposed conditions was a limitation on full-time physicians or dentists that would be operating from this building and were proposing 6 which would allow Dr. McNabb to expand her use when she took the full office building for medical purposes. James McGillen asks if it would 6 in one office. Attorney Cox consults with Attorney Kenney and answers yes.

Michael Hersey asks how many full-time employees as opposed to full-time doctors to be proposed on-site. If they are talking licensed MD’s would there be nurse practioners, are they excluded from that? Attorney Cox consults with Attorney Kenney and Dr. McNabb and states that presently Dr. McNabb operates by herself but has estimated that there would be 12 people total (up to 6 physicians, 2 medical assistants, plus 4 staff). The medial assistants would not see patients individually but prep them for the doctor. James McGillen asks for further clarification. Attorney Cox consults with Attorney Kenney and states that Dr. McNabb would like the ability to have up to 3 different tenants using the building and would estimate that it would be up to 15 people spread out over the 3 tenants and that the 12 would not be just in here suite, it would 15 spread out throughout the building. James McGillen asks if they Board made a restriction limiting it to 15 people if that would be a problem. Attorney Kenney speaks and indicates that they are just estimating and that they don’t know how it is going to evolve. He indicates that Dr. McNabb would like to grow her own practice and would like to sublease out to other doctors. He indicates that they meet the criteria for parking and asks the Board to consider that. The Board discusses. Attorney Kenney asks the Board if it would be limited to 15 employees, doctors and staff. James McGillen indicates that he is not suggesting any number but recommends talking with staff as to how many patients will transpire in and out of the facility on a daily basis. . Michael Hersey asks if there were part-time real estate employees and part-time doctors, would the cap still apply? Mr. Coy and Mr. Degnan signal yes. Art Traczyk asks if this is broken up into 3 suites currently. Attorney Cox indicates that presently they are not. Art Traczyk asks if they look at this as in terms of 15 maximum employees with 5 in each suite. Attorney Kenney is concerned that the units are not defined right now and they could have one larger suite.

They discuss parking. Laura Shufelt asks if there is anyone here from the public who would like to speak. No one speaks. Laura has a question about proposed condition #3 about medical/dental offices and where the definition came from. Attorney Cox indicates that she took the reference regarding medical/dental officers from the Hyannis Village Business/GIZ area. Laura Shufelt asks if there is a definition in the MSOD. Attorney Cox indicates that she could not find one. Craig Larson asks about site plan review. Attorney Cox reads the definition of the site plan review and that this had gone before Site Plan Review in 1999. Craig Larson does findings on 2009-045.

Appeal No. 2009-045 Timothy J. Waldron, Trustee of Northeast Marketing Group Realty Trust has petitioned for a modification of Condition No. 2 of Use Variance No. 1995-109. The petitioner is requesting that Condition No. 2 be changed to include the use of the building for medical offices (including, without limitation, offices for physical therapy and chiropractic services) and/or dental offices as allowed for in Medical Services Overly District (MSOD). The property is addressed as 1330 Phinney’s Lane, Hyannis, MA. It is shown on Assessor’s Map 274 as parcel 016/X02. It is in a Residence F-1 Zoning District.

This application is seeking to modify the existing use variance to allow for medical offices in addition to the existing use permitted by Use Variance No. 1995-109. More specifically the proposed modification of Condition No. 2 is to read:

” Use of the proposed building shall be limited to professional offices and/or licensed real estate broker’s offices, medical offices (including, without limitation, offices for physical therapy and chiropractic services) and/or dental offices. At no time shall more than three separate businesses be located in - or operate from - this building.”

It is the findings of this Board that this modification variance will be modified subject to these findings.

The subject premises is addressed as 1330 Phinney’s Lane, Hyannis, MA. It is shown on Assessor’s Map 274 as parcel 016/X02.

The property consists of 1.34 acres of land and located in a Residence F-1 Zoning District.

Since the granting of the use variance in 1999, there have been significant changes in the immediate vicinity of the subject property. These changes include: completing construction of

Attucks Lane Extension, adopting the Medical Services Overlay District, signalizing the intersection of Phinney’s Lane and Attucks Lane Extension, and the Route 132 Improvements, including the upgraded signalization with dedicated left turn lanes at the intersection of Route 132 and Phinney’s Lane.

In Appeal No. 1995-109, the Board has already found that owing to unique conditions of the locus, that a literal enforcement of the ordinance would result in a substantial hardship because a “residential use can not be made of the property.”

As a result of the changes to the area and roadways which have occurred since the use variance was originally granted, the Board finds that the modification requested by the applicant may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the purpose or intent of the Zoning Ordinance, subject to the conditions contained herein.

Seconded

Vote: AYE: Brian Florence, Craig Larson, James McGillen, Michael Hersey, Laura Shufelt NAY: None

Craig Larson makes a motion to grant the modification of use variance 2009-045 in favor of the findings that were presented with the conditions as presented by Attorney Eliza Cox., #1 through 4 with # 4 being amended to 6 full-time equivalent FTE. doctors or dentists and 9 support staff. He asks if that is correct. Laura believes that is what they agreed to.

Seconded

Art Traczyk asks for clarification on 6 full-time equivalent doctors or 6 doctors.

Craig Larson amends #4 on the conditions to read that the maximum of 15 employees for the entire building as presented.

They discuss.

Craig amends #4 again to read that it will be 15 employees on premise explaining that it could be 10 medical employees and 5 real estate employees.

Seconded



Appeal No. 2009-041 Timothy J. Waldron, Trustee of Northeast Marketing Group Realty Trust has appealed the May 19, 2009 decision of the Building Commissioner that the subject property, 1330 Phinney’s Lane, Hyannis, MA, does not have the zoning benefits of the Medical Services Overlay District (MSOD) as it is zoned Residence F-1. The appellant had requested the Board confirm that its property is included within the Medical Services Overlay District and that it is located within its boundaries and subject to, and benefited by, the provisions of that overlay district. The property is addressed as 1330 Phinney’s Lane, Hyannis, MA. It is shown on Assessor’s Map 274 as parcel 016/X02. It is in a Residence F-1 Zoning District.

Attorney Eliza Cox then requests a withdrawal without prejudice of appeal 2009-041.

Motion is made to withdraw without prejudice.

Seconded



Laura Shufelt then calls the Sweeney/Mullaly appeal at 7:50 PM. She reads it into the record. Appeal No. 2009-044 - New Sweeney/Mullaly

Alter/Expand Nonconforming Use

Karen I. Mullaly-Sweeney and Michael Sweeney have applied for a Special Permit pursuant to Section 240-92(B) Nonconforming Buildings or Structures Used as Single and Two-Family Residences and Section 240-94(B) Expansion of a Nonconforming Use. The applicants are seeking relief in order to alter and expand the existing nonconforming two-family use by constructing a new cottage to rear of property and converting the existing cottage structure into a garage. The property is addressed 4364 Falmouth Road (Route 28), Cotuit, MA. It is shown on Assessor’s Map 024 as parcel 025 and is zoned Residence F.

Members assigned: Craig Larson, Michael Hersey, James McGillen, Alex Rodolakis, Laura Shufelt Karen Mullally-Sweeney and Michael Sweeney are here representing themselves. Michael Sweeney speaks and explains the history of the property. He gives a summary of the relief being requested. James McGillen asks if there is anyway they can move the garage 3.7 feet of the property line. Mr. Sweeney says that they were hoping to use the existing slab as the foundation of the garage but if they have to move it they will. James McGillen asks if it would impede on the septic system.

Mr. Sweeney indicates that they are proposing to upgrade the septic system and will be moved to accommodate the cottage. Laura Shufelt asks if there is anyone from the public who would like to speak. No one speaks. Laura asks if they are agreeable to the conditions as outlined in the staff report. Mr. Sweeney indicates that they are okay with them and if they have to move the proposed building 10 feet, that they will do it. The Board discusses suggested condition #1. They agree to strike out part of #1 of the suggested conditions: Laura Shufelt asks about the tenant and the applicants indicate that the tenant was aware of what they were proposing but will have first preference after it is complete. Craig Larson makes findings: Karen I. Mullaly-Sweeney and Michael Sweeney have applied for a special permit pursuant to Section 240-92(B) Nonconforming Buildings or Structures used as Single and Two-Family Residences and Section 240-94(B) Expansion of a Nonconforming Use. The applicants are seeking relief in order to alter and expand the existing nonconforming two-family use by constructing a new cottage to the rear of the property and to convert the existing cottage structure into a garage. The property is addressed 4364 Falmouth Road (Route 28), Cotuit, MA. It is shown on Assessor’s Map 024 as parcel 025 and is zoned Residence F.

The subject property is a 0.98-acre lot developed with two residential structures. The principal dwelling is a 2,038 sq.ft., one-story, three-bedroom, single-family dwelling. The second dwelling is one-story, one-bedroom cottage of 624 gross sq.ft.1 According to the Assessor’s record, both structures date to 19552.

In addition to the nonconforming two-family use, the cottage structure is nonconforming to the required 15-foot side yard setback and both the principal and cottage buildings are nonconforming to the required 100-foot front yard setback off Route 28. According to the engineered plan submitted, the cottage now sits 76.8 feet off Route 29 and 6.3 feet off the westerly property line.

The applicants are seeking to alter and expand the nonconforming use of property by:

building a new one-story, one-bedroom cottage structure of 624 gross sq.ft., located to the rear of the property in conformity to the required setbacks for the districts, and

1 The 624 gross building area was taken from the engineered plan submitted. 2 Note – From a search of past deeds, it appears that structures existed on the lot prior to 1949.

demolish the existing cottage structure and rebuild a new 624 sq.ft., two-car garage in the exact nonconforming location as the existing cottage.

That the application falls within a category specifically excepted in the ordinance for a grant of a special permit,

That after evaluation of all the evidence presented, the proposal fulfills the spirit and intent of the zoning ordinance and would not represent a substantial detriment to the public good or the neighborhood affected.

Seconded

Vote: AYE: Craig Larson, Michael Hersey, James McGillen, Alex Rodolakis, Laura Shufelt NAY: None

Craig Larson makes a motion to grant appeal 2009-044 with the following conditions:

1. The alterations and expansion of the structure shall be in accordance with plans submitted to the Board. The plot plan for the additions is titled “Plan of Land at 4364 Falmouth Road, Cotuit, Massachusetts; Prepared for Michael Sweeney, et ux;” as drawn by Baxter Nye Engineering & Surveying dated 10-20-08, Page C-1, with the exception that the proposed new garage shall be relocated no closed than 10-feet off the westerly property line and 76.8-feet off Route 28.

2. The cottage dwelling to be rebuilt on the property shall be limited to a one-bedroom, one-story dwelling not to exceed 624 gross sq.ft. and shall be developed substantially in conformity to plans submitted entitled “One Bedroom Cottage for; Mike and Karen Sweeney” as drawn by Kenneth Sadler, Jr., consisting of four pages (A100, A200, A400, A500) with a revision date of 6/11/07

3. The accessory garage to be added to the property shall not exceed one-story, 28 feet by 24 feet and shall be built substantially in conformity to plans submitted entitled “New Two Car Garage for; Mike and Karen Sweeney” as drawn by Kenneth Sadler, Jr., consisting of two pages (A100, A500) with a revision date of 6/8/07

4. The property shall not be divided nor shall the cottage dwelling be sold or transferred into separate ownership.

5. The total number of bedrooms on the property shall not exceed four. 6. There shall only be one curb-cut on Route 28. 7. All construction shall conform to all applicable building codes, fire regulations and health

requirements. 8. This decision must be recorded at the Barnstable County Registry of Deeds and a copy of that

recorded document must be submitted to the Zoning Board of Appeals office and to the Building Division at the time a building permit application is made. The relief authorized must be initiated within two year of the granting of this permit.

Seconded.

Vote: AYE: Craig Larson, Michael Hersey, James McGillen, Alex Rodolakis, Laura Shufelt NAY: None

GRANTED WITH CONDITIONS Laura Shufelt then calls appeal 2009-058 and reads it into the record. Appeal No. 2009-058 MetroPCS Massachusetts, LLC.

Modification Variance No’s. 2004-044 & 2000-031

MetroPCS Massachusetts, LLC, as lessee, has applied for a modification of Variance No’s. 2004-044 and 2000-031. The modification seeks to operate additional Personal Wireless Communication on the existing communications tower and provide for the installation of additional antennas and necessary ground equipment at the base of the tower. The property is addressed 1047 Falmouth Road (Route 28), Hyannis, MA and is shown on Assessor’s Map 250 as parcel 004. The property is zoned Residential D-1 and is within a Groundwater Protection Overlay District. Members assigned: Craig Larson, Michael Hersey, James McGillen, George Zevitas, Laura Shufelt Gerry Squires is here representing the applicant. He indicates that with him is Brian Asons who is a radio frequency engineer who can answer more technical questions. Gerry Squires then gives a background of the existing variances. Laura Shufelt asks if this is the tower that has the osprey nest on top. Gerry Squires indicates that he is not positive but knows that there is a certain time when they can do work on the towers and asks if they are okay with that, which they are. Laura Shufelt asks if they saw the conditions setbacks from the cesspools etc. Gerry Squires indicates that they would comply with those conditions. Laura Shufelt notes that there is no one from the public here t speak either in favor or in opposition.

James McGillen does findings:

The applicant is here asking representing MetroPCS Massachusetts, LLC, as lessee, asking for relief in order to modify has Variance No’s. 2004-044 and 2000-031. The modification seeks to operate additional Personal Wireless Communication on the existing communications tower and provide for the installation of additional antennas and necessary ground equipment at the base of the tower. The property is addressed 1047 Falmouth Road (Route 28), Hyannis, MA and is shown on Assessor’s Map 250 as parcel 004. The property is zoned Residential D-1 and is within a Groundwater Protection Overlay District. The petitioner seeks to add additional antennas to an existing tower and does not propose to add any additional towers or base site area at the foot of the tower. This relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance. Vote: AYE: Craig Larson, Michael Hersey, James McGillen, George Zevitas, Laura Shufelt NAY: None James McGillen makes a motion to grant the modifications subject to the following conditions: This modification of Variances No. 2004-044 and No. 2000-031 is granted to MetroPCS Massachusetts, LLC for the co-location and operation of communication facilities on the existing tower at 1047 Falmouth Road (Route 28), Hyannis, MA subject to the following:

The installation and operation is limited to that of three flush mounted communication antennas, including installation of associated ground equipment and a GPS antenna as shown on plans submitted and approved by the Site Plan Review Committee entitled “metroPCS Unlimit Yourself HYN0016A Crown 875052 Hyannis 1047 Falmouth Road Hyannis, Massachusetts 02601 Barnstable County” consisting of 7 sheets as drawn by AEG Advanced Engineering Group, P.C. last dated 8/5/09.

Condition 8 of the variances is changed to read: 8) There shall be no more than nine (9) antennas from Sprint Spectrum, LLP, two (2) whip

antennas, three (3) T-Mobile flush mounted antennas and three (3) MetroPCS flush mounted antennas mounted to the Tower.

All other conditions of Variance No. 2000-031 shall remain in full effect and the following added conditions imposed:

9) The location of any new concrete pad(s) shall maintain a 10-foot setback from all cesspools and leeching fields.

Seconded AYE: Craig Larson, Michael Hersey, James McGillen, George Zevitas, Laura Shufelt NAY: None

GRANTED WITH CONDITIONS Motion to adjourn Seconded All in favor. Open – Chairman’s Discussion

Town of Barnstable


February 24, 2010

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday February 24, 2010 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Art Traczyk – Principal Planner and Carol Puckett – Administrative Assistant.

Laura Shufelt Present James McGillen Absent Michael Hersey Absent Craig Larson Absent William Newton Absent Alex Rodolakis Absent Nikolas Atsalis Absent Brian Florence Absent George Zevitas Absent

Laura Shufelt opens the hearing at 7:01 PM. She reads a summary of the appeals being heard tonight. She indicates that the hearings scheduled tonight will be handled administratively. She then calls the Tonsberg appeal. Appeal No. 2009-068 - Continued Tonsberg

Special Permit Demo/Rebuild on Nonconforming Lots Opened, November 18, 2009, continued to February 10, 2009 and moved to February 24, 2010. The Applicant has requested a continuance of this appeal to April 14, 2010. Decision on this appeal must be filed with the Town Clerk no later than May 27, 2010.

This appeal has been continued in order to allow for processing of a Cape Cod Commission Hardship Exemption from the District of Critical Planning Concern Centerville Beach Nomination. Staff recommends this Appeal be continued to April 14, 2010 as requested by the Applicant. No Members Assigned, No Testimony Given Frederick and Roberta Tonsberg have petitioned for a Special Permit pursuant to Section 240-91.H(2), Developed Lot Protection, Demolition and Rebuilding on Nonconforming Lots. The petitioner seeks to demolish the existing dwelling located on the property and reconstruct a new dwelling not in compliance with current setback requirements for the district. The property is addressed as 2 Short Beach Road, Centerville, MA and is shown on Assessor’s Map 206 as parcel 044. The property is in a Residence D-1 Zoning District.

Laura Shufelt indicates that the applicant has requested a continuance to April 14, 2010.

CONTINUED to APRIL 14, 2010 at 7:00 PM She then reads the Wallace, Lampi, Lampi & Bumpus appeal and indicates that the attorney, J. Alexander Watt, has sent a letter asking to withdraw without prejudice. She reads the letter into the record. Based on that letter she would grant an administrative to withdraw without prejudice. Appeal No. 2009-060- Continued Wallace, Lampi, Lampi & Bumpus Bulk Variance, Minimum Lot Frontage Opened October 7, 2009, continued October 21, 2009, December 9, 2009, February 10, 2010 and moved to February 24, 2010. A January 14, 2010 letter from Attorney J. Alexander Watt has been received requesting that this appeal be withdrawn without prejudice. Staff would recommend administrative grant of the request. Members previously assigned: William H. Newton, Michael P. Hersey, Craig G. Larson, Alex M. Rodolakis Laura F. Shufelt - Associates Present: Brian Florence, George T. Zevitas Joan M. Wallace, Irene Lampi, Derwin Lampi and Gordon Bumpus have applied for relief from Section 240-14.E Bulk Regulations, Minimum Lot Frontage. The applicants are seeking relief from the required 150 feet of frontage. The subject property is a 5.9 acre lot accessed over a 40-foot easement from Wayside Lane. The property is addressed as 0 High Street, West Barnstable, MA and is shown on Assessor’s Map 110 as Parcel 007. It is in a Residence F Zoning District and the Resource Protection Overlay District.

WITHDRAWN WITHOUT PREJUDICE She then calls the EAC appeal and that this will be re-noticed due to the closure of town hall. This will be continued to March 24, 2010 at 7:00 PM. Appeal No. 2009-025 – Re-Notice EAC Disposal, Inc.


Opened April 1, 2009, continued, May 20, 2009, August 5, 2009, September 23, 2009, November 4, 2009 December 9, 2009, February 10, 2010 and moved to February 24, 2010. Staff recommends no testimony be taken on this Appeal. It has been re-noticed for the March 24, 2010 meeting of that Board. The Re-notice is recommended due to the interruption caused by the weather closure of Town Hall on the evening of February 10, 2010.

EAC Disposal, Inc., d/b/a Cape Resources Company has applied for a Modification of Variance No. 1996-14. The modification is sought to allow for revisions to the site that include a new wood processor and staging area, alteration to interior site circulation, and additions and alterations to screening berms and landscape. The property is addressed 280 Old Falmouth Road, Marstons Mills, MA as shown on Assessor’s Map 100 as parcel 008. The lot is in a Residence F Zoning District

RE-NOTICED FOR MARCH 24, 2010 AT 7:00 PM Meeting adjourned at 7:05 PM.

Town of Barnstable


March 10, 2010

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday March 10, 2010 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Art Traczyk – Principal Planner and Carol Puckett – Administrative Assistant.

Laura Shufelt Present James McGillen Absent Michael Hersey Present Craig Larson Present William Newton Present Alex Rodolakis Present Brian Florence Absent George Zevitas Present

Laura Shufelt opens the hearing at 7:02 PM. She reads a summary of the appeals to be heard tonight. She then calls the Olsen appeal and reads the appeal into the record. Appeal No. 2010-002 - Continued Olsen Bulk Variance for an Undersized Lot Opened January 13, 2010, continued to March 10, 2010 No Members Assigned – No Testimony Taken Christopher J. & Carol J. Olsen have applied for a Variance to Section 240-14.E - Bulk Regulations and to Section 240-36 - Resource Protection Overlay District to allow for the construction of a single-family dwelling on a lot with 0.92-acres of upland when zoning now requires a minimum lot area of 2-acres of upland. The property is addressed 26 Trudy Lane, Cotuit, MA. It is shown on Assessor’s Map 021 as parcel 104. It is in a Residence F Zoning District and in the Resource Protection Overlay District

Members assigned tonight: William Newton, Michael Hersey, Craig Larson, George Zevitas, Laura Shufelt

Attorney John Kenney is here representing the Olsen’s. He indicates that he had previously represented the original applicant’s, the Cadzow’s. The original variance has expired and the Cadzow’s want to sell this lot to the Olsen’s. He gives the background of the lot and a history of the zoning changes up to today. He indicates that over the history of it being a vacant lot, it became a dumping ground and was subsequently cleaned up. He indicates that in 1983 the zoning change made it a nonconforming unbuildable lot and there is no other land that can be acquired to make this a conforming lot. All neighboring lots have been built upon. He indicates that as in the hearing of 2003, the cedar swamp that juts into Lot #8 is a topographical condition that directly affects this lot and relates to a variance condition. The lot is similar in size to other lots and would not be a detriment to the neighborhood. There is no more land to add to it for it to become conforming and that the conditions so stated in the previous relief granted in 2003 are the same. He indicates that it would be used for a single family residential dwelling. He gives a summary of the house specifics of what the Olsen’s want to build. William Newton wants to verify if it meets all the requirements of Title V. Attorney Kenney indicates that it does conform and that they could build a 4 bedroom but only want a 3 bedroom house. Laura Shufelt asks if there is anyone from the public who would like to speak either in favor or in opposition. No one speaks. William Newton makes findings:

With respect to the variance request for minimum lot size at 26 Trudy Lane:

1. The lot was created as a buildable lot and that it was being taxed as a buildable lot.

2. All the neighboring lots are developed and there is no surplus land available to add to the lot to make it conform to the two-acre requirement.

3. The lot is similar in area to neighboring lots and it can be developed in conformance to all other zoning requirements

4. The variance conditions were found it terms of topography as a portion of the lot was encumbered with wetlands and that fact created the hardship.

5. That the proposed dwelling can be located on the lot to conform to all other zoning requirements.

6. The improvements are all located outside of 100 feet to wetlands and therefore should be possible without an Order of Conditions from the Conservation Commission.

7. The proposed on-site septic appears to conform to all Board of Health Regulations and Title 5.

Vote:

AYE: George Zevitas, Craig Larson, Michael Hersey, William Newton

Laura Shufelt wants to amend the findings to remove the finding about it being taxed as a buildable lot and that it be omitted.

They Board discusses and agree to omit that finding.

Vote: AYE: George Zevitas, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None

William Newton makes a motion to grant the variance for Bulk Regulation in Section 240-14.E and 240-36 for the lot at 26 Trudy Lane in Cotuit, Massachusetts subject to the following conditions:

1. This variance is granted only to the minimum lot area requirements of Section 240-14.E, Bulk Regulations and Section 240-36, Resource Protection Overlay District. All other zoning regulations shall apply.

2. The lot shall be developed in substantial conformance with the plans submitted to the Board entitled “Plans for Christopher and Carol Olsen 26 Trudy Lane, Cotuit, MA 02635”, dated October 2009 and consisting of 8 sheets.

3. Construction shall comply with all applicable Building Division and Conservation Commission requirements and shall comply with Board of Health Title 5 requirements without variance.

4. All mechanical equipment associated with the dwelling, including; air conditioners, electric generators, etc., shall be located so as to conform to the required setbacks for the district and screened from neighboring homes and the public right-of-way.

Seconded.

Vote: AYE: George Zevitas, Michael Hersey, William Newton, Craig Larson, Laura Shufelt NAY: None

GRANTED WITH CONDITIONS Laura then calls the Gregory appeal and indicates that there is a letter from Attorney Albert Schulz requesting that this be continued to April 14, 2010 at 7:00 PM Appeal No. 2010-003 - Continued Gregory Expand Nonconforming Structure & Accessory Uses

Opened January 27, 2010, continued to March 10, 2010 No Members Assigned – No Testimony Taken Nathaniel A. Gregory has petitioned for a Special Permit pursuant to Section 240-93 B – Alteration or Expansion of a Pre-existing Nonconforming Structure and a Special Permit pursuant to Section 240-44 A – Accessory Uses. According to the application submitted,

the petitioner seeks the “construction of a pier to replace a prior pier” on an accessory lot located across the road from the principal lot on which the single-family dwelling it serves is located. The principal residential lot is addressed 428 Wianno Avenue, Osterville, MA and is shown on Assessor’s Map 163 as Parcel 024. The accessory lot is addressed 320 East Bay Road, Osterville, MA and is shown on Assessor’s Map 163 as Parcel 020. Both lots are in a Residential F-1 Zoning District.

Laura Shufelt makes a motion to continue this to April 14, 2010 at 7:00 PM Vote: All in favor

CONTINUED TO APRIL 14, 2010 at 7:00 PM Laura Shufelt then calls the Curley appeals and reads them into the record. Appeal No. 2010-004 - Continued Curley Variance Bulk Regulations, Yard Setbacks Opened January 27, 2010, continued to March 10, 2010. This appeal was continued to allow for a second bulk variance application to correct the infringement of the existing garage. James P. Curley and Stacey A. Curley have applied for a Variance to Section 240.11 (E) – Bulk Regulations – Yard Setbacks. The applicants seek to construct an addition to the existing dwelling that will have a 19.3-foot setback off Maple Road where zoning requires a 30-foot setback. The property is addressed 287 Fuller Road, Centerville, MA and is shown on Assessor’s Map 189 as parcel 084. It is in a Residence D-1 Zoning District. Members assigned tonight: George Zevitas, Alex Rodolakis, Craig Larson, Laura Shufelt Laura Shufelt informs Mr. Curley that there are only 4 members that can hear this and asks him if he would like to go forward. Mr. Curley chooses to go forward with 4 members. The board discusses and then decides to open the garage variance before deciding the addition variance. Laura Shufelt then calls 2010-006 and reads it into the record: James P. Curley and Stacey A. Curley have applied for a Variance to Section 240.11 (E) – Bulk Regulations – Yard Setbacks. The applicants are seeking relief from the front yard setback for an existing garage that has a 26.3-foot setback off Fuller Road where zoning requires a 30-foot setback. The property is addressed 287 Fuller Road, Centerville, MA and is shown on Assessor’s Map 189 as parcel 084. It is in a Residence D-1 Zoning District

Members assigned: George Zevitas, Alex Rodolakis, Craig Larson, Michael Hersey, Laura Shufelt Mr. Curley speaks and indicates that they didn’t know there was a mistake with the setbacks of the garage and that they wouldn’t have found it out if they didn’t get a new site plan. He indicates that if they have to move the garage it would be a financial hardship and that it would not be a detriment where it is currently as they have not had any complaints in 6 years. He indicates that he also has a

neighbor here to support them in this request. . Also, if they had to move the garage back, besides the other hardships, that his yard dips down. No questions from the Board to the applicant. Craig Larson makes findings: In Appeal 2010-006, James P. Curley and Stacey A. Curley have applied for a Variance to Section 240.11 (E) – Bulk Regulations – Yard Setbacks. The applicants are seeking relief from the front yard setback for an existing garage that has a 26.3-foot setback off Fuller Road where zoning requires a 30-foot setback. The property is addressed 287 Fuller Road, Centerville, MA and is shown on Assessor’s Map 189 as parcel 084. It is in a Residence D-1 Zoning District 1. The garage has existed in this location for over 6 years without any objection or complaint being

filed; therefore, it could be assumed that there is no substantial detriment to the public good. 2. And, the 3.7-foot infringement into the required 30-foot front yard setback does not substantially

derogate from the intent or purpose of the bulk regulations. 3. And owing to circumstances relating to the soil conditions, shape, or topography of such land or

structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.

Vote: AYE: George Zevitas, Alex Rodolakis, Craig Larson, Michael Hersey, Laura Shufelt Nay: None

Craig Larson makes a motion that this Board approve 2010-006 with the following conditions:

1. This variance is granted to allow for an existing detached garage built in 2004 to remain as an infringement into the required 30-foot front yard setback off Fuller Road by 3.7 feet.

2. There shall be no further expansion of the garage structure without permission from the Board. 3. Use of the garage is limited to that as accessory to the dwelling. No area of the garage

structure shall be converted to a sleeping area. 4. Within one year from the issuance of this variance it shall be recorded at the Barnstable

Registry of Deeds and proof of the recorded submitted to the Zoning Board of Appeals Office and the Building Division. No building permit shall be issued to the property until proof of the recording is submitted.

Seconded.



Laura Shufelt then goes onto the request for the addition.

Mr. Curley gives reasons for why this needs to be placed where proposed. They would have to move the driveway and to move would not be economically feasible and that this would not be a detriment to the neighborhood. Topographically, there is no other place to move it. He indicates that they have also submitted 4 letters in support from neighbors.

Laura Shufelt indicates that she is gong to re-open the last appeal for the garage as she did not ask for public comment. She reads the appeal into the record again.

She re-assigns: George Zevitas, Alex Rodolakis, Michael Hersey, Laura Shufelt

She then asks if there is anyone here from the public who would like to speak either in favor in opposition. No one speaks.

Laura indicates that based on the previously voted findings and conditions the Board would grant the variance for the garage.

Laura then goes back to 2010-004 and asks for any public comment.

Mr. Finbarr Phelan of 187 Old Stage Road, who is an abutter, is in support of the Curley’s request for a variance.

Craig Larson makes findings:

James P. Curley and Stacey A. Curley have applied for a Variance to Section 240.11 (E) – Bulk Regulations – Yard Setbacks. The applicants seek to construct an addition to the existing dwelling that will have a 19.3-foot setback off Maple Road where zoning requires a 30-foot setback. The property is addressed 287 Fuller Road, Centerville, MA and is shown on Assessor’s Map 189 as parcel 084. It is in a Residence D-1 Zoning District.

This application, seeks a bulk variance to expand the existing dwelling with an addition that measures 36 feet by 14 feet. The proposed location of the addition infringes into the required 30-foot front yard setback off Maple Street by 10.7 feet.

According to information submitted, the addition is to accommodate a master bedroom and bath. No elevations were submitted with the application, and the Board should confirm the height, number of stories, and the total gross area to be added.

According to the Assessor’s record, the existing dwelling is a four-bedroom 1.5 story dwelling with a living area of 1,296 sq.ft. that dates to 1953. The property also has a 900 sq.ft. detached garage and an accessory shed.

Maple Street is a developed way with a right of way the measures 40-feet wide

1. Owing to circumstances related to soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located; mainly the frontage on two streets

2. A literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship, financial or otherwise to the petitioner, and

3. Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the Zoning Ordinance


Craig Larson makes a motion that this Board grant Appeal 2010-004 subject to the following conditions:

1. This variance is granted to allow for an addition to the existing dwelling that will infringe into the required 30-foot front yard setback off Maple Street by 10.7 feet. The addition shall be located as per a proposed site plan submitted and entitled Variance Plan as drawn by hs&t group, inc., dated 12-10-09.

2. The addition is limited to no more that 1.5-stories. 3. The on-site septic system shall conform to all requirements of Title 5.

Seconded



Laura Shufelt then calls Appeal 2005-054 & 2008-055 – Shallow Pond Nominee & Sixty North Street Realty Trust request for time extension and reads it into the record: Special Permits Nos. 2008-054 & 2008-055 Requests for a One-Year Extension

Shallow Pond Nominee/Sixty North Street Realty Trust

By a letter dated February 11, 2010, Attorney Peter L. Freeman has requested a one-year extension of Special Permits Nos. 2008-054 and 2008-055, issued to Shallow Pond Nominee Trust and Sixty North Street Realty Trust. The Conditional Use Permit (No. 2008-054) authorized a proposed bank development to include drive through banking. The other Special Permit (No. 2008-055) allowed for a reduction in the required on-site parking from 59 to 52 spaces.

The subject property is addressed 1555 and 1573 Iyannough Road (Route 132), Hyannis, MA. It is shown on Assessor’s Map 253 as

parcels 016, 019-B00 and 019-T00. It is zoned Highway Business.

The existing 2008 permits have been retroactively extended to October 8, 2010 as provided for in Section 240-125.C(3)(b). This request is made pursuant to Section 240-125.C(3)(a) of the Zoning Ordinance that provides for an additional one year extension of a special permit (to October 8, 2011 “upon a showing of good cause”. Laura Shufelt indicates that Mr. Freeman had sent a memo detailing his assertions for good cause relating to financial/economic difficulties. William Newton moves to grant the one year extension for Special Permits 2008-054 & 055 and that they be granted pursuant to what is allowed within the zoning bylaw provisions and in support of that they find that to this point in time the market remains soft and the credit crisis continues and it is proven virtually impossible to proceed with financing such as the building proposal going forward.. Seconded Vote: All in favor.

EXTENSION GRANTED Minutes to be approved for November 18, 2009, December 2, 2009, December 9, 2009, December 30, 2009, January 13, 2010 and January 27, 2010. Motion to approve the minutes Seconded. Vote: All in favor Laura Shufelt then indicates that Councilor Rugo and Barry are the new ZBA liaisons. Also, she indicates that the members should’ve received a memo for the Citizen Planner to be held in Worcester and believes the town will pay tuition but not travel cost. Motion to adjourn Seconded Meeting adjourned at 8:40.

Town of Barnstable


March 24, 2010

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday March 24, 2010 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. Present at the meeting were Board Members William H. Newton, Michael P. Hersey, and Laura F. Shufelt and Associate Members Alex M. Rodolakis, Brian Florence, and George T. Zevitas

A quorum was met. Also present were Art Traczyk – Principal Planner and Marjorie Watson – Administrative Assistant.

Laura Shufelt Present James McGillen Absent Michael Hersey Present Craig Larson Absent William Newton Present Alex Rodolakis Present Brian Florence Present George Zevitas Present

Laura Shufelt opened the hearing at 7:07 pm. Ms. Shufelt then read Appeal No. 2009-025 into record. Appeal No. 2009-025 – Re-Notice EAC Disposal, Inc.


Opened April 1, 2009, continued, May 20, 2009, August 5, 2009, September 23, 2009, November 4, 2009 December 9, 2009, February 10, 2010 and moved to February 24, 2010. Re-noticed due to the interruption caused by the weather closure of Town Hall on the evening of February 10, 2010. EAC Disposal, Inc., d/b/a Cape Resources Company has applied for a Modification of Variance No. 1996-14. The modification is sought to allow for revisions to the site that include a new wood processor and staging

area, alteration to interior site circulation, and additions and alterations to screening berms and landscape. The property is addressed 280 Old Falmouth Road, Marstons Mills, MA as shown on Assessor’s Map 100 as parcel 008. The lot is in a Residence F Zoning District. Members assigned: William Newton, Michael Hersey, Alex Rodolakis, Brian Florence, and Laura Shufelt. Attorney Charles Sabatt is present to represent EAC Disposal Inc. dba Cape Resources Company with their request to further modify the existing variance granted in 1996. Atty Sabatt explained that the essence of the modification lies in the layout of the site and then detailed the three specific changes being requested in terms of the written provisions of the variance. He entered into record a chart illustrating these changes. Atty Sabatt stressed that there is no change to product being processed, hours of operation or other limitations as was placed in 1996. Atty Sabatt detailed the major modifications to the new plan, the intent of which is to move the operations southerly away from the residents to the north. The current placement of the center berm necessitated that machines and trucks would have to travel around the center berm to access material stored north of it which resulted in creation of dust from the movement of the trucks. EAC desires to move the operation southerly away from the residential neighborhood. The proposal is to remove the center berm, level off the southerly area of the site and reinforce, reconstruct and extend a northerly berm and construct a third berm on the east, adding a second layer of internal insulation. The work area will be southerly of the new interior berm and will remain in the yellow hatched area.

At this point, Atty Sabatt stated that Brian Yergatian of BSC Engineering, Site Plan Engineer and Will Conrad, Manager for Cape Resources, were also present. Atty Sabatt said that the proposed plan will confine customer traffic to the southeasterly portion of the site. In addition, after product is processed through the building, subsequent processing will also be confined to the southerly end of the property. The fire road will be leveled and graded and a locked gate, accessible only by key held by the Fire Department, will be installed. A drainage basin will be installed in the southerly end and water will be retained and dissipated in the basin. Atty Sabatt completed his presentation to the board. Ms. Shufelt opened up the meeting to questions from the board. Brian Florence asked Atty Sabatt if his client has spoken to the neighbors for input. Atty Sabatt responded that they had not but would be willing to do so. Mr. Florence also asked what testing models and standards had been used to validate the proposed plan. Brian Yergation stated that no specific standards had been used. Mr. Florence then asked if the client would have any objection to an independent peer review. Atty Sabatt stated that they would be agreeable but would like to have input as to who is chosen and an estimate of cost. The board members then asked several more questions on specific details of the plan. Ms. Shufelt then opened the meeting for public comment. Summary of comments is below: Peter Kohler – 150 Chuckles Way, Marstons Mills

Mr. Kohler stated that he does not believe there has ever been an as built of the previous plan and questions if the plan submitted today is an as built plan. Before moving forward, we should take the overlay of the yellow hatched area and overlay it to this plan. We need a cleaner, more detailed plan as to what exists today. Mr. Kohler stated that item 10 of the original variance states that there should be a 100’ vegetated buffer around the property; this does not exist. Mr. Kohler does not believe the existing northerly berm is 75’; the original 1996 plan shows that there should be a 90’ berm. He would like to see this addressed. What will happen to material that is stockpiled? If it remains where it is, it should be vegetated to prevent it from blowing into the neighborhood. Misters don’t serve any purpose; they are a waste of water. He would like the opportunity to meet with Cape Resources. Are there standards for noise and dust for an operation of this size? The operation does not change much from 1996; it was found to be a nuisance in the courts. The permit is supposed to be for our protection and we would like to make sure that we can work through it to make sure that we don’t have to deal with the nuisance going forward. The plan is missing detail and information. We were given the same type of plan in 1996 and the 26 assurances in that plan were never met. Kathy Maloney – 16 Braddock Drive, Marstons Mills There are issues that have not changed over the years and need to be dealt with. There needs to be specific ways to monitor noise, odor, dust; Ms. Maloney asks the ZBA to require these monitors. Ms. Maloney referred to the site plan review comments regarding DEP and EPA standards. DEP informed Ms. Maloney that DEP standards were not applicable to this site as it was located in a residential area, which was not typical for this type of operation. She asked that the best practices be appropriate for a residential area. Ms. Maloney also requested that changes to the northerly berm be made in the off season to minimize the effects of dust and debris on the neighborhood. Ms. Maloney stated that a row of arborvitae will not look like natural topography. Terry Maloney – 16 Braddock Drive, Marstons Mills Mr. Maloney stated that he likes the idea of working with Cape Resources, although he said that this was done before and the original plan was never followed. This is his concern after 14 years working on this. Mr. Maloney would like to see some monitoring of the process. Mr. Maloney stated that over the years the company has been sold and each time the use becomes intensified. He asks that the building inspector come out once a year for a formal visit. He also suggests an operations plan that is updated by Cape Resources on a regular basis including a list of complaints and how they are addressed. He also suggested that a copy of the variance be displayed in the Cape Resource office. Mr. Maloney then thanked the board for their attention to this matter. End of public comment.

The board members agreed to a site visit on Tuesday, May 18, 2010 at noon. A discussion followed regarding the hiring of an outside consultant to assist the board in evaluating the proposal in terms of noise, dust, and odor levels. Town staff will meet with the applicants to discuss the scope of service. A motion was then made by William Newton, seconded by Brian Florence, to authorize the hiring of outside counsel to assist the board in evaluating this proposal. All in favor. Laura Shufelt requested that the final proposed plan label and quantify the buffer for the entire site. Ms. Shufelt also asked that the applicant provide, for the next meeting, the calculation of the square feet of work area excluding the berms (both existing and proposed) and labeling of the number, type and height of landscape materials. Atty Sabatt will provide a list for the board of items that are being asked to be waived. A motion was made by Brian Florence, seconded by Bill Newton, to continue this to April 14, 2010, at 7 pm. Motion to adjourn; seconded. All in favor. Meeting adjourned at 8:45 pm.

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Town of Barnstable


April 14, 2010

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday April 14, 2010 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Art Traczyk – Principal Planner, Elizabeth Jenkins – Principal Planner and Carol Puckett – Administrative Assistant.

Laura Shufelt Present James McGillen Present Michael Hersey Absent Craig Larson Absent William Newton Present Alex Rodolakis Present Brian Florence Present George Zevitas Present

Laura Shufelt opens the hearing at 7:07 PM. She reads a summary of the appeals to be heard tonight. She indicates that they will take the Tonsberg case first and that there is an email requesting a continuance of this matter. Laura Shufelt makes a motion to continue to May 12, 2010 at 7:00 PM. William Newton seconds. Vote: All in favor.

Appeal No. 2009-068 - Continued Tonsberg Special Permit Demo/Rebuild on Nonconforming Lots

Opened, November 18, 2009, continued to February 10, 2009, moved to February 24, 2010 and continued to April 14, 2010 per applicant’s request. This appeal has been continued in order to allow for processing of a Cape Cod Commission Hardship Exemption from the District of Critical Planning Concern Centerville Beach Nomination.

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No Members Assigned, No Testimony Given Decision Due: May 17, 2010 Frederick and Roberta Tonsberg have petitioned for a Special Permit pursuant to Section 240-91.H(2), Developed Lot Protection, Demolition and Rebuilding on Nonconforming Lots. The petitioner seeks to demolish the existing dwelling located on the property and reconstruct a new dwelling not in compliance with current setback requirements for the district. The property is addressed as 2 Short Beach Road, Centerville, MA and is shown on Assessor’s Map 206 as parcel 044. The property is in a Residence D-1 Zoning District.

CONTINUED TO MAY 12, 2010 AT 7: 00 PM Laura Shufelt then calls the Gregory appeal and reads it into the record. Appeal No. 2010-003 - Continued Gregory Expand Nonconforming Structure & Accessory Uses

Opened January 27, 2010, continued to March 10, 2010 and to April 14, 2010 per applicant’s request. Decision Due: July 22, 2010 Nathaniel A. Gregory has petitioned for a Special Permit pursuant to Section 240-93 B – Alteration or Expansion of a Pre-existing Nonconforming Structure and a Special Permit pursuant to Section 240-44 A – Accessory Uses. According to the application submitted, the petitioner seeks the “construction of a pier to replace a prior pier” on an accessory lot located across the road from the principal lot on which the single-family dwelling it serves is located. The principal residential lot is addressed 428 Wianno Avenue, Osterville, MA and is shown on Assessor’s Map 163 as Parcel 024. The accessory lot is addressed 320 East Bay Road, Osterville, MA and is shown on Assessor’s Map 163 as Parcel 020. Both lots are in a Residential F-1 Zoning District.

Members assigned tonight: William Newton, James McGillen, Brian Florence, Alex Rodolakis, Laura Shufelt Attorney Albert Schulz is here representing the applicant. Also with him tonight is Mr. O’Day from Sullivan Engineering. Attorney Schulz gives a summary of the relief being sought. He has filed a memorandum and the plan is Exhibit 2 which he is showing on the easel which shows 9 lots. He indicates that the proposed pier is 75 X 4 foot from mean high water and there is a 14X3 foot ramp and a 16X8 foot float and the total structure is approximately 100 feet from mean high water. He gives a background on the neighborhood. He gives the dimensions of the pier that was on Lot 8 and how the lots were conveyed. He hands out copies of the deeds to the Board: which is Land Court Document #130762. He indicates that the lots were conveyed according to restrictions. He indicates that according to the ordinance the lot has to be either adjoining or immediately opposite and across the road. He indicates that the issue here is whether lot 8 is immediately opposite from Lot #3. He gives a definition from Black’s Law dictionary of immediately. He would suggest that lot #8 is directly opposite from lot #3. He has done research with regard to East Bay Road and with speaking to engineering and clerk’s office that East Bay Road was never taken, the fee was never taken, and is a public way by reason by a laying out in the late 1800’s. The laying out of the road accomplished a public easement in East Bay Road. Therefore, Mr. Gregory still owns the fee to the midpoint of East Bay Road and lot #3 extends to the midpoint of East Bay Road. Secondly, is the definition of “immediately”. He indicates that there was a case in Land Court off of Coddington Road in Centerville which was the Padula case. He indicates that the Board found it was not adjacent and that it was appealed in 1994 to the Land Court and was heard by Judge Kilborne. He passes out a copy of that decision to the Board Members. He would suggest that the 1995 amendment was not a change at all but an intent to make sure that the lot was in the vicinity of the residential principal use. The distance between lot #3 and #8

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is approximately 209 feet. He gives a picture to the Board members. He would suggest that 200 feet is a short distance for purposes of this bylaw. The present pier is approx 100 feet long as opposed to the previous pier that was there which is 1/3 of the size and occupies 30% of the area occupied by the previous pier. CONCOMM determined that the most sensitive manner in which to access East Bay was via a pier instead of dragging dinghy’s up through the marsh. They did limit the use to non motorized vessels so that no boats can be moored at the pier. James McGillen clarifies the distance with lot #3 to lot #8. Attorney Schulz indicates about 200 feet. Brian Florence asks if there is any portion of the old pier evident. Attorney Schulz has searched and cannot find any evidence. Alex Rodolakis does not find the Padula case supported of his application. Attorney Schulz indicates that he quoted it as far as the legislative history that was quoted in the decision it was the intent of the Planning Board that sponsored it that one lot should be in the “immediate vicinity” then he is suggesting that the addition of the language in the new bylaw that requires “immediately opposite” really doesn’t add anything. Art Traczyk comments that the Padula case was based upon the language before the present language in the ordinance and that the present language came from that case in order to tighten it up as to how close these lots had to be to each other. Laura Shufelt asks if there is anyone from the public who would like to speak. No one speaks. William Newton suggests continuing this for staff to go over and doesn’t understand fully as to what has happened in the past and with the presentation of the Padula case as it pertains to this. Brian Florence is prepared to make findings. Alex Rodolakis has a problem with the road in general which gives him pause about the distance from the lot Laura Shufelt comments that she doesn’t think it meets the letter of the ordinance. Attorney Schulz is agreeable to continuing this if the Board members need to review this. The board discusses. Motion is made by Laura Shufelt and seconded by William Newton for a continuance to ask for legal opinion from Town Attorney’s office. Vote: AYE: Alex Rodolakis, William Newton, Laura Shufelt NAY: Brian Florence, James McGillen Continued for legal opinion of Town Attorney

CONTINUED TO MAY 12, 2010 TO 7:00 PM

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Laura Shufelt calls EAC appeal and reads it into the record.

Appeal No. 2009-025 – Continued EAC Disposal, Inc.


Opened April 1, 2009, continued, May 20, 2009, August 5, 2009, September 23, 2009, November 4, 2009 December 9, 2009, February 10, 2010, moved to February 24, 2010, and continued to April 14, 2010. This has been continued to this date for an update on Hiring of an Outside Consultant for the Board.

A proposed Scope of Services is enclosed for Members review and comment.

Board Members Previously Assigned: William H. Newton, Michael P. Hersey, Brian Florence, Alex M. Rodolakis, Laura F. Shufelt

Associate Member Present: George T. Zevitas

Decision Due: June 18, 2010


Members assigned tonight: William Newton, Brian Florence, Alex Rodolakis, George Zevitas, Laura Shufelt Attorney Charles Sabatt is here representing the applicant. He indicates that he has thoughts regarding the hiring of the outside consultant in terms of the consultation and goes over Section One. He indicates that after the bullets, there is a paragraph about EPA concerns. He is not sure there is any such thing with respects to operations of this matter. He recommends that the consultant determine whether there are Massachusetts Department of Environmental Affairs concerns and if there are determine how to comply with those. Then in terms of #2 and 3, he wants to be diplomatic but thinks that this his client has presented a plan that is intended to make his operation more efficiently and to make the premises more compatible with the immediate neighbors and the reason for the new interior berm and expanded exterior berm. One of the things he asked the engineer to calculate is the reduction of the berm by approximately 25%. Also, he indicates that if they were coming in with a proposal to expand or change the operation or expand the product line, increase the hours, etc., then he could fully understand that the Board would be looking toward a regime of monitoring in the future with increased regulation and criteria. However, they are coming here with none of those things and are only coming here with a plan to improve the relationship with the neighbors. In general, he would like to be on record as saying, for the moment he can’t say don’t look at #2 or 3, but cannot say he agrees with them either. He thinks those are to be areas of significant discussion as they move forward. Finally, he would hope that there is methodology about the consultant and would like to see that the consultant would meet with his client and engineer and discuss his/her recommendations and thinks that should be put into the language. William Newton asks if they would object to having residents involved to also discuss the proposal and findings and would like to see the residents as part of the process Attorney Sabatt does not have a problem with that and his client is willing to do that. His concern is if the residents will meet with his client.

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Laura Shufelt indicates that without measurable methods it protects everyone. They discuss the meeting with the consultant and dates for a continuance Laura Shufelt makes a motion to continue this to May 26, 2010. Brian Florence seconds. Vote: AYE: William Newton, Brian Florence, Alex Rodolakis, George Zevitas, Laura Shufelt NAY: None

CONTINUED TO MAY 26, 2010 AT 7:00 PM

Laura Shufelt then calls the Levesque appeals and reads them into the record. Appeal No. 2010-007 – New Levesque

Bulk Variance to Divide a Lot with Two Structures

.Daniel P. Levesque has applied for a Variance to Section 240-14.E Bulk Regulations, Minimum Lot Area, Minimum Front and Side Yard Setbacks, Minimum Lot Frontage, and Section 240-36 Resource Protection Overlay District Minimum Lot Area. The applicant seeks to divide a lot upon which two dwellings exist. The resulting division would create two new lots, neither of which would conform to the required minimum lot area of 2-acres of upland (87,120 square feet). Lot #1 is proposed at 18,937 square feet of upland and Lot #2 as 22,363 square feet of upland. Lot #1 is shown with 126.29 feet of frontage where zoning requires 150 feet. Each of the new lots would contain an existing dwelling. The building on Lot #1 would result in a 10-foot side yard setback where 15 feet is required. The building on Lot #2 would result in a 12-foot side yard setback where 15 feet is required, and the established 8.6-foot front yard setback would remain nonconforming to the 30 foot requirement. The property is addressed 25 River Road, Marstons Mills, MA and is shown on Assessor’s Map 078 as parcel 002. It is in a Residence F Zoning District.

Appeal No. 2010-008 - New Levesque

Special Permit to Alter a Nonconforming Use

Daniel P. Levesque has petitioned for a Special Permit pursuant to Section 240-94.B Expansion of a Pre-existing Non-Conforming Use. The applicant seeks relief in conjunction with Variance No. 2010-007 to allow for the alteration of the lot upon which the nonconforming use exists. The permit is sought to retain the pre-existing nonconforming two-family use of that dwelling on the proposed new Lot #1 where zoning only permits one single-family residential unit on a lot. The property is addressed 25 River Road, Marstons Mills, MA and is shown on Assessor’s Map 078 as parcel 002. It is in a Residence F. Zoning District.

Members assigned tonight: William Newton, James McGillen, Brian Florence, George Zevitas, Laura Shufelt Attorney Kevin Kirrane is representing the applicant. He quotes 81L and that the applicant has a statutory right to create lots around buildings that predate the adoption of the subdivision control law in the Town of Barnstable. Under those circumstances, there is a statutory right to create two lots, one building sitting on each one of these lots. In doing so, however, the lots are not in conformance with current zoning and is not convinced under the lot that they have to be. However, when these things occur they do create conveyancing nightmares. They will also have setback problems that do not conform to current zoning. There are 3 residential units on this property and, as a result, the use of this

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single lot is nonconforming. One building will have two units in it. They have proposed a driveway for the second structure and if not approved they will accept that. Each lot will be owned by different people. Brian Florence asks how long the open accessory structure has been there. Attorney Kirrane indicates that they are wiling to take it down if necessary. Laura Shufelt asks why the proposed lot line doesn’t follow the stone wall. Attorney Kirrane indicates that there is a septic system there and that they will be going to the Board of Health for a separate septic for the building upon which it is not located. Laura Shufelt asks if there is anyone here from the public who would like to speak either in favor or in opposition. James McGillen asks if Attorney Kirrane has checked with title companies about ANR plan under 81L. Attorney Kirrane indicates that is really not a subdivision but has to be done pursuant to an ANR plan and that they would have to submit a plan for their endorsement and doesn’t believe they would have a problem. Kevin Galvin of 71 Route 149 is an abutter and director of the Marstons Mills River Watershed Association. He indicates that he had sent a letter to the Board and summaries the letter as it pertains to the nitrogen loading. He indicates that the Marstons Mills River is a major contributor to the excess nitrogen there. Their concern is that any increase in septic or other development will increase the nitrogen levels. James McGillen asks Mr. Galvin how he thinks it would be an increase as the structures already exist and that a new septic would be more modern. Mr. Galvin indicates that any installation of a septic would possibly increase problems. Kevin Barry, with his wife Lynn who live at 55 River Road, indicates that he is familiar with this area and there is very few places to put a new septic system and wants the Board to talk to CONCOMM about the septic. He doesn’t think there is another place to put the septic besides the driveway where it is currently. In his opinion he doesn’t think it meets the 3 prong test for a variance. If you consider the total property, he doesn’t meet the requirement about lot size. As far as the financial factor, he indicates that this is not a primary residence for the applicant and if approved would create a problem by adversely affecting their property values. Also, he doesn’t believer you can approve without a detriment to the neighborhood affected. He sees no logical reason other than a financial windfall for Mr. Levesque why this property needs to be subdivided. In his opinion none of the 3 requirements have been met and asks the Board to deny both permits. This is also in a single family residential zoning district. He also submits a note from a neighbor. George Zevitas asks who lives in 3 properties now. Mr. Barry believes that it is all rented and that the garage has been rented to an antique dealer. George Zevitas asks how long the barn has been used for commercial. Mr. Barry thinks about a year.

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Kathy Dowling and her husband, who live at 5 River Road also object. . Attorney Kirrane thinks he his client has a statutory right to draw this line and the variance relief is to avoid issues during conveyance. He indicates that Mr. Levesque has spent a lot of money renovating this property. William Newton asks if Attorney Kirrane has a problem with Condition #4. Attorney Kirrane answers no. Attorney Kirrane indicates that there is a shared system currently and if they could they would utilize the existing system as they would should the Board determine that they would prefer one drive instead of two, they would have cross easements for the parking area and use of the septic system as well. Brian Florence asks what the variance conditions are. Attorney Kirrane indicate that the hardship is the location of the structures on the site. George Zevitas asks how they would address about the business presently being carried on and how long has it been there. Attorney Kirrane believes that it was a carriage business that goes way back. Mr. Levesque indicates that right now it is being used as storage and that there is no business operating out of there. George Zevitas comments that he an abutter indicated otherwise. Mr. Levesque indicates that the woman using it for storage of antiques has once in the last 8 months had one yard sale. They discuss past businesses and home occupations George Zevitas asks if he gets money from her. Mr. Levesque answers yes. Art Traczyk indicates that there were home occupations there in the past and were not transferable to another person. Attorney Kirrane indicates that there will be no zoning violation there. Art indicates that it is in violation now Brian Florence asks if the rental of that facility can be stopped now. Mr. Levesque indicates that he could try. Laura Shufelt indicates that the letter submitted by Mr. Barry from Gail & Todd Loveland of 1 River Road objects to the variance without specifics.. Art Traczyk explains that they need a variance for setback and that they need it for 2 acres of zoning. Kevin Barry asks to comment Laura Shufelt indicates that public comment is closed. Art Traczyk explains why they need the variance.

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The Board and Attorney Kirrane discuss statutory rights in reference to 81L. Brian Florence does findings:

IN the matter of Appeal No. 2010-007 - Bulk Variance to Divide a Lot with Two Structures

Daniel P. Levesque has applied for a Variance to Section 240-14.E Bulk Regulations; specifically Mr. Levesque is seeking a variance for Minimum Lot Area, Minimum Front and Side Yard Setbacks, Minimum Lot Frontage. The petitioner is also seeking to vary from Section 240-36 Resource Protection Overlay District Minimum Lot Area. The applicant seeks to divide a lot upon which two dwellings exist. The resulting division would create two new lots, neither of which would conform to the required minimum lot area for the district as described in the public notice dated April 7, 2010. The property is addressed 25 River Road, Marstons Mills, MA and is shown on Assessor’s Map 078 as parcel 002. It is in a Residence F Zoning District.

The lot and two principal structures therein predates the Town’s adoption of subdivision control

The boundaries of the subject lots, #1 and 2, were established by an ANR Plan that was approved by the Planning Board on September 11, 1989 and a special permit exists for a home occupation on Lot #2.

He would find that the details outlined and the specific dimensional relief requested is outlined in the staff report dated April 7, 2010 on page 3.

Owing to circumstances related to soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located;

A literal enforcement of the provisions of the zoning ordinance would involve substantial hardship, financial or otherwise to the petitioner;

Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the zoning ordinance.

Vote: AYE: George Zevitas, Brian Florence, James McGillen, William Newton, Laura Shufelt NAY: None

Brian Florence makes a motion to approve the application before them and grant the variance to the petitioner based on the thoughts and reasons as outlined in the findings and that owing to circumstances related to soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located and that a literal enforcement of the provisions of the zoning ordinance would involve substantial hardship, financial or otherwise to the petitioner and that a variance may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the zoning ordinance.

Motion includes the variance conditions #1 through #8 as outlined in the staff report dated April 7, 2010 and reads them into the record as follows:

1. The division of the lot shall be as shown on a plan presented to the Board and entitled; “Plan of Land in Barnstable, MA located at 25 River Road Marstons Mills, MA prepared for Dan Levesque” and dated January 25, 2010.

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2. An Approval Not Required (ANR) plan shall be prepared based upon said plan and shall incorporate a reference to this variance and notation that the lots are subject to compliance with all conditions of that variance.

3. That Approval Not Required (ANR) plan shall be submitted to the Planning Board for endorsement and thereafter recorded at the Registry of Deeds along with the recording of this variance. Copies of the recorded ANR Plan and this decision shall be submitted to the Zoning Board of Appeal’s file within one year of the grant of this decision.

4. The number of bedrooms authorized on each of the lot shall be restricted to the number that now exists; four (4) on Lot #1 and two (2) on Lot #2.

5. The use of Lot #2 shall be limited to one single family dwelling and its accessory uses as permitted in the zoning district.

6. Access to Lots #1 and #2 shall be from a common driveway located over Lot #2 and sharing a single curb cut on River Road.

7. Any demolition of the dwellings shall require the new dwelling to conform to the required setbacks unless a modification of this variance is requested and granted. Any new construction shall be required to meet all Title 5 and Board of Health requirements for the on-site septic system without variance and as new construction.

8. The relief authorized herein must be executed within one year of the grant of this variance. In this instance, execution is the recording of the ANR plan and this decision thereby allowing division of the lot into two.

9. The removal or location of the shed structure located on the lot with benefit of a building permit.

10. No commercial activity shall continue or occur on the site without the proper permits.

James McGillen seconds.

Vote: AYE: George Zevitas, Brian Florence, James McGillen, William Newton NAY: Laura Shufelt

Brian Florence does findings for the special permit:

Appeal No. 2010-008 – Special Permit to Alter a Nonconforming Use

Daniel P. Levesque has petitioned for a Special Permit pursuant to Section 240-94.B Expansion of a Pre-Existing Non-Conforming Use specifically the applicant wishes to retain the pre-existing nonconforming two-family use of that dwelling on the proposed new Lot #1 where only a single family dwelling is permitted currently under zoning. The property is addressed 25 River Road, Marstons Mills, MA and is shown on Assessor’s Map 078 as parcel 002. It is in a Residence F Zoning District.

He would find that according to Section 240-125.C.2 – Standards for Granting Special Permits that the use of the two family dwelling is allowed by special permit under 240-94.B and that the proposed use fulfills the spirit and intent of the zoning ordinance and would not represent a substantial detriment to the public good or the neighborhood affected. Vote: AYE: George Zevitas, Brian Florence, James McGillen, William Newton, Laura Shufelt NAY: None

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Brian Florence makes a motion to grant the special permit based upon their thoughts and reasons as outlined in the findings and upon special permit conditions as described in the staff report of April 7, 2010. Laura Shufelt indicates that he need not read them. Laura Shufelt asks about the shed. Brain Florence wants to amend and add another condition: The shed type structures as a condition will be removed or relocated on the site, complying with zoning with benefit of a building permit. James McGillen seconds. Vote: AYE: George Zevitas, Brian Florence, James McGillen, William Newton, Laura Shufelt NAY: None

This permit is issued to allow the continued nonconforming use of the existing structure on Lot #1 as shown on the plan cited herein as a two-family dwelling subject to the following conditions:

1. This permit shall apply to Lot #1 as shown on a plan presented to the Board and entitled; “Plan of Land in Barnstable, MA located at 25 River Road Marstons Mills, MA prepared for Dan Levesque” and dated January 25, 2010.

2. The primary structure on Lot #1 shall be permitted to be used as a two-family residence, but in no case shall additional dwelling units be permitted on the lot. The total number of bedrooms on the lot shall not exceed four unless connected to a common or public wastewater treatment system.

3. Lot #1 shall not be further divided nor shall the dwelling units be sold or transferred into separate ownership from each other. The dwellings and property shall remain in single ownership.

4. Access to Lot #1 shall be from a common driveway located over Lot #2 and sharing a single curb cut on River Road.

5. Any demolition of the dwelling shall require the new dwelling to conform to the required setbacks unless a modification of this variance is requested and granted. Any new construction shall be required to meet all Title 5 and Board of Health requirements for the on-site septic system without variance and as new construction.

6. This decision must be recorded at the Barnstable County Registry of Deeds and a copy of that recorded document must be submitted to the Zoning Board of Appeals office and to the Building Division within one year and at that time when Variance No. 2010-007 is also recorded and submitted to the Zoning Board of Appeals file.

The shed type structures as a condition will be removed or relocated on the site, complying with zoning with benefit of a building permit. Vote: AYE: George Zevitas, Brian Florence, James McGillen, William Newton, Laura Shufelt NAY: None

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VARIANCE GRANTED WITH CONDITIONS SPECIAL PERMIT GRANTED WITH CONDITONS Attorney Kirrane asks if the driveway becomes an issued if they could they come back Art Traczyk indicates that they had approved it as one curb cut and that to come back in an untimely appeal of this decision. The Board discusses re-opening the appeals. Brian Florence indicates that until DPW and the engineers look at it he doesn’t have a problem with it. Brian Florence asks Attorney Kirrane if there is a problem if this could be conditioned with reference to the curb cut. Attorney Kirrane indicates that he has no problem with it. Laura Shufelt tasks if anyone from Growth Management looked at the driveway issue. Art is not sure. Brian Florence asks how they would condition it since they didn’t close the special permit. Brian Florence wants to amend #6 of the variance and #4 of the special permit that no more than one driveway pet lot be located and that they must be done with the approval of the Town engineer and DPW Seconded. Vote: AYE: George Zevitas, Brian Florence, James McGillen, William Newton NAY: Laura Shufelt Chairman’s Discussion She reminds them of the ethics test and that minutes will be voted upon at the next meeting. She indicates that they are still down one associate member and reminds members of the reappointments forms for those that are near their expiration date. Laura Shufelt discusses the 3 year extension of special permits Brian Florence indicates that the state has just signed the bill and that permits issued between 2008 and 2011 can be extended such as building permits, special permits, etc. They discuss. Brian Florence makes a motion to adjourn James McGillen seconds. All in favor Meeting adjourned at 8:55 PM

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Town of Barnstable


April 28, 2010

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday April 28, 2010 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Art Traczyk – Principal Planner, Elizabeth Jenkins – Principal Planner, JoAnne Miller Buntich - Director, Growth Management, and Carol Puckett – Administrative Assistant.

Laura Shufelt Present James McGillen Present Michael Hersey Present Craig Larson Present William Newton Present Alex Rodolakis Present Brian Florence Absent George Zevitas Present

Laura Shufelt opens the hearing at 7:03 PM. She reads a summary of the appeals being heard tonight. She then calls the Reed appeal and reads it into the record. Appeal No. 2010-009 - New Reed Appeal of the Building Commissioner

Carol Anne Reed has appealed the Building Commissioner’s February 12, 2010 denial of a building permit to construct a single family dwelling on a lot addressed as 1175 Shootflying Hill Road, Centerville, MA. The appeal is being made pursuant to Section 8 of MGL Chapter 40A and is requesting that the Board overrule the Commissioner and find that the lot is a legally-created, pre-existing undersized nonconforming lot that is independently buildable. The subject property is shown on Map 190 as parcel 218, and addressed 1175 Shootflying Hill Road, Centerville, MA. The lot is in a Residence D-1 and Residence C Zoning District and in the Resource Protection Overlay District.

Members assigned: James McGillen, Michael Hersey, Craig Larson, William Newton, Laura Shufelt

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Attorney Duane Landreth is representing the applicant. He is expecting Ms. Reed to arrive soon. He hands in two exhibits; one is the Assessor’s Map showing the subject property highlighted and the other a copy of the ANR plan. He gives a brief description of the lot and that it was created and endorsed by the Planning Board in October 2, 1975 for the then owner Barbara Newton. He gives the Book and Page numbers. When the Planning Board endorsed the plan, the requirements in that district for that lot area were 21,700 plus feet and RC required 15,000 square feet. It had the necessary width and no frontage was required but later on it was a 20 foot requirement which was imposed which this lot has. At the time it was endorsed on the ANR it was a conforming lot. He indicates that it was worth noting that the staff comments seem to draw a distinction between lots that were created by a subdivision plan and those created by an ANR plan as outlined on Page 3 of the Staff Report. There is one distinction, an approved subdivision lot because they have to comply wit with the zoning bylaw at the time of endorsement of approval, and roads and utilities require substantial amount of investment. Under 40A §6, those lots are protected from any zoning change for a period of 8 years. With regard to an ANR plan they only plan freeze that you get is the 3 year use protection and they are not relying upon anything which relates to how this lot was created. He indicates that the dimensional requirement to 1 acre was passed on February 23, 1985 with frontage requirements which Lot #11 still meets. It became nonconforming at that time because it was undersized. At that time Lot #1 on the ANR plan was approved with a single family house which the Assessor’s card said was built in 1900. The lot directly to the east, which is 460 Old Stage Road, was built with a single family house which the Assessor’s card indicates both were built in 1900. He wants to address staff report on page 3 about a 1977 ordinance change about lots with less than 50 feet of frontage which comply with shape factor shall not be created from the principal way to a depth greater than two lots. He indicates that the staff report argues that since Lot #11 is three lots deep that the 1977 bylaw made it undevelopable and thinks that this is wrong on the plain language of the bylaw which is perspective and applies to lots created after 1977 and this was created in 1976. He gives a definition of “created” from Webster’s dictionary and this lot was in existence before 1977 and doesn’t think this has any application. He hands in copies of the bylaw and reads it. He indicates that the ANR plan was endorsed two months before January 1, 1976 it conforms. He reads 240-91. and indicates that what this means is that when the bylaw was changed on February 23, 1985, Lot #11 had to be severed from common ownership before February 23, 1990 which was the five year period. In the present case, Ms. Newton conveyed Lot #11 to another person in June 1989 within the fiver year period. At that point Lot #11 became a protected lot. As to the later RPOD bylaw requirement, Lot #11 would have the benefit of the piggy back clause, essentially 240-91.G, Section 1.6 which says it is protected by 91.B and C. which that provision doesn’t apply. The staff memo makes reference to a case on Page 5 which was a summary judgment reconsideration from Judge O’Neill from Barnstable Superior Court but it dealt with that part of subsection C of 91 that said “or the building of a residence” which he believes concerns a different set of facts, He quotes Jude O’Neill. He indicates that there is no way this case can apply.

James McGillen asks “ Is 460 Old Stage Road not an adjoining lot:”

Attorney Landreth answers yes and thinks that 91C applies to unbuilt lots.

James McGillen thinks they have 4 lots here. His opinion is that there are 4 adjoining lots and that 91 would not apply.

William Newton asks about subdivision with staff to get an understanding whether he is correct in his assumption.

Attorney Landreth explains that the Building Commissioner denied the permit. Also, he indicates that he went to the Town Attorney and shared the draft letter, was sent in the direction of another case which he thought had no applicability.

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Laura Shufelt asks if there is anyone here from the public who would like to either speak in favor or in opposition.

Leslie Walters (Schreiter) owns an abutting property. She indicates that if a home is built her concern is regarding sewerage as her home is on the bottom on a steep hill. She indicates that she has a copy of the site and sewerage plan.

Laura Shufelt comments that right now they are discussing the denial of the building permit.

JoAnne Buntich comments that they are just here for the matter of law and they understand her concerns and explains that she could go to the Board of Health and the Building Department.

John Newton of 1171 Shootflying Hill Road is an abutter to this property and one of the former owners of this lot and wants to speak in favor of this appeal. He indicates that there are no other lots in this area that are as large as this and wants to point out that the Town has put a burden as it is assessed at full market value for several years. He received an abatement one year but denied the following year.

Craig Larson wants to clarify with Attorney Landreth that on October 15, 2008 his client took title to Lot #11, Lot #1 and 464 Old Stage Road. Attorney Landreth answers yes. Craig Larson asks if he’s saying those weren’t in common ownership at that time. Attorney Landreth indicates that the rights vested at the time and under the time the application vested in 1989 when the lots went into separate ownership and a later transfer of the property did not cause a merger. Craig Larson asks if there is a structure on 480 Old Stage Road. Attorney Landreth answers yes and that the Assessor’s map shows the structure. Craig Larson asks if it is habitable and if anyone is living there currently. Attorney Landreth indicates he doesn’t believe anyone is living there and is asked if it is abandoned. Attorney Landreth indicates that it is owned in common ownership with the owner of Lot #1 and the property is not abandoned but currently not inhabited. Craig Larson asks if what Attorney Landreth is saying is that the vesting rights aren’t distinguished when the lots are remerged. Attorney Landreth answers yes and that his position is that after the recombination of the lots it did not affect the merger.

William Newton comments that he is not moved to make a decision on this at this time.

Attorney Lnndreth indicates that his client would be willing to have a continuance and asks for a continuance for guidance on this to allow either an amended application or one that could be consolidated with this one.

Art Traczyk indicates that they would need one month and that the Town Attorney’s office is very busy.

Art Traczyk suggests July 14th.

Laura Shufelt makes a motion is made to continue to July 14, 2010 at 7:00 PM.

Seconded

Vote:

All in favor

CONTINUED TO JULY 14, 2010 AT 7:00 PM

Laura Shufelt then calls the Sousa appeal and reads it into the record:

Appeal No. 2010-010- New Sousa & Sousa Modification of Special Permit No. 1990-031

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Joseph J. Sousa and Lorraine A. Sousa have applied for a Modification of Special Permit No. 1990-031 issued to Marathon Enterprise, Inc., for a conditional use of a convenience store and to alter a nonconforming use of a gas station. The modification is sought to alter the area upon which the special permit applies from a 7.88-acre lot to a new lot of 1.86 acres. The new lot is shown as Parcel 1 on a plan submitted. The subject property is shown on Assessor’s Map 290 as parcel 101-001, addressed 125 West Main Street, Hyannis, MA. It is in the Highway Business and Residence B Zoning Districts.

Members assigned: James McGillen, Craig Larson, Michael Hersey, William Newton, Laura Shufelt

Attorney Michael Ford is representing the applicants. Attorney Ford indicates that this is a technical request and that in 1990, a special permit was issued for the entire acreage for the gas station and retail store. There were findings with respect to the nonconforming nature of the gas station. They are seeking the special permit to be attached to a new lot (lot #1) instead of to the whole parcel. There was some question if a modification was needed but given the language regarding the entire parcel, it was needed. He lists the zoning districts (3) which the parcel is located in. He indicates that the whole parcel is located in the Wellhead Overlay Protection area that makes it nonconforming. Parcel one meets dimensional requirements and coverage and use requirements. They seek no modification of the conditions and they have no problems with recording the ANR plan.

Laura Shufelt comments that there are monitoring wells from the gas station and asks if any of them will be on parcel #2

Attorney Ford doesn’t know the answer to that question as to whether all the monitoring wells are on parcel #1. Attorney Ford would suggest that currently the property is under one ownership and if the Board requires that the monitoring wells, if they exist off-site and are necessary for monitoring the gas station on parcel #1, that they be permitted to continue on parcel #2 and doesn’t think it is a condition that would not be problematic.

Laura Shufelt asks that if there was any monitoring that would have to happen that the cost would be borne by whoever was the owner of parcel #1. Attorney Ford answers yes, to the extent that monitoring is required.

James McGillen comments that as a condition, if sold, they would have to monitor

Attorney Ford indicates that if there is a monitoring condition it would have to be complied with.

George Zevitas asks if there is still an auto repair facility operating on the premises.

Attorney Ford indicates that there is no repair facility on site and that the gas station side has been closed for 15 months.

Laura Shufelt asks if here is anyone here from the public who would like to speak

Richard Murphy is an abutter at 30 Arbor Way. He is interested if this change is allowed and what will be the zoning of the new lot separate from the gas station and asks if a single family house would be allowed.

Art Traczyk indicates that all of the new lot is in the RB which is single family

Richard Murphy asks if someone could put 6 buildings on that parcel.

Art Traczyk indicates that that it could be a subdivision and could be a total of 4 single residential lots.

Richard Murphy wants to know if it could be larger. Art Traczyk indicates that someone could ask for a variance or it could become a 40B complex.

Craig Larson comments that the original permit was the entire parcel but now, if approved, it will only pertain to the front and there will be no special permit on the back lot.

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Richard Murphy indicates that when he originally moved to Arbor Way and Hastings Meadows came along, it didn’t become housing for the elderly which was proposed and is concerned about what will be on this new parcel.

William Hoagland at 10 Arbor Way has lived there since the 60’s and is concerned as he believes that there is more than one reason why they want to separate the properties and wants to express his concerns about future uses of the property. He indicates that there is a large amount of wildlife and a brook. He asks what the original special permit allowed them to do.

Laura Shufelt explains that back in 1990 what the special permit allowed them to do.

Mr. Hoagland asks if they do divide what will become of that back lot.

Laura Shufelt indicates that they are not aware of what will be done with the back lot.

Art Traczyk wants to add that there are exempt uses allowed also.

Mr. Hoagland has a concern about the creek and asks about the curb cut and is told that it would have to go to ConComm.

Attorney Ford is not seeking any rezoning and the commercial portion of the lot and is confining it to parcel #1.

Craig Larson does findings:

1. Joseph J. Sousa and Lorraine A. Sousa have applied for a Modification of Special Permit No. 1990-031 issued to Marathon Enterprise, Inc., for a conditional use of a convenience store and to alter a nonconforming use of a gas station. The modification is sought to alter the area upon which the special permit applies from a 7.88-acre lot to a new lot of 1.86 acres. The new lot is shown as Parcel 1 on a plan submitted. The subject property is shown on Assessor’s Map 290 as parcel 101-001, addressed 125 West Main Street, Hyannis, MA. It is in the Highway Business and Residence B Zoning Districts.

2. On June 6, 1990, the Zoning Board issued Special Permit 1990-031 to Marathon Enterprise, Inc. The permit was issued to allow for the expansion and alteration of a nonconforming use of a gas station in the Groundwater Protection Overlay District and for a conditional use, a “Mini Mart”, for retail sales in the Highway Business Zoning District.

3. Today, the applicant is seeking to modify the special permit to have it apply only to a proposed new lot of 1.86-acres to be created from the existing larger lot. The proposed new lot is shown on a 2005 Approval Not Required (ANR) plan endorsed by the Planning Board on March 23, 2005.

He moves that this Board modify Special Permit 1990-031 as presented by the applicant with the following conditions:

Special Permit No. 1990-031 is hereby modified to now apply to a new lot of 1.86 acres to be created from the original 7.88-acre lot. That new lot is shown as Parcel 1 on a plan submitted and entitled Plan of Land prepared for Joseph J. Sousa Barnstable, (Hyannis) Mass as drawn by CapeSurv and dated March 12, 2005 and endorsed by the Planning Board of the Town on March 23, 2005.

This modification and that plan referenced above shall be recorded at the Barnstable Registry of Deeds and proof of that recording shall be submitted to the Board’s file for the modification to be in effect.

All other conditions of Special Permit No. 1990-031 shall remain in full force and effect except that it shall hereafter apply only to the reduced lot of 1.86 acres.

William Newton seconds.

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James McGillen wants to amend the findings. The relief requested is in harmony with the general purposes and intent of the zoning ordinances and would have no adverse effect.

Craig Larson accepts the amendment. Vote: AYE: James McGillen, Craig Larson, Michael Hersey, William Newton, Laura Shufelt NAY: None

MODIFICATION HAS BEEN APPROVED

Laura Shufelt then calls the Old Post Road, LLC., appeal and reads it into the record:

Appeal No. 2010-011 - New Old Post Road, LLC & Law Bulk Variance to Exchange Equal Land Area

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Old Post Road, LLC and Donald F. Law, Jr., Trustee of the 595 Old Post Road Realty Trust have applied for a variance to Section 240-14.E Bulk Regulations, Minimum Lot Area and Section 240-36, Resource Protection Overlay District. Both sections require all single-family lots recorded after November of 2000 to have a minimum lot area of 2 acres. The subject lots are developed and the petitioners seek the variance to allow for an equal exchange of 2,152 sq.ft., between the two lots. The subject properties are shown on Assessor’s Map 054 as parcels 017 and 016 addressed 581 and 595 Old Post Road, Cotuit, MA. The lots are in the Residence F Zoning District and the Resource Protection Overlay District.

Members assigned: James McGillen, Michael Hersey, Craig Larson, William Newton, Laura Shufelt

Attorney Sarah Alger is representing the applicant and gives a brief summary of the relief being sought. She indicates that these two parcels are in the RF and RPOD, both lots have a single family dwelling, a shed and garage and were both created in 1927. 595 Old Stage Road is the smaller lot was improved with a single family dwelling in 1930. The larger lot, 581 Old Post Road, was improved in 1938. 581 Old Post Road is nonconforming as to area and contains almost 61000 square feet where 2 acres is required and is currently improved by a residence that violates the 15 required setback and have just over 14 feet of setback and has a resident that violates the setback. If this relief is granted is, it will be relocated and will conform. That dwelling has 3 bedrooms and no additional bedrooms are proposed. At 595 Old Post Road is a 5 bedroom dwelling and is the smaller of the two in lot area and is also nonconforming as to frontage having only 103.5 feet where 150 is required. The setback is not met on the east, shape factor and area. The proposal is to swap equal areas of 2,152 square feet. They want to swap area. She indicates that if not swapped it could be a financial detriment and thinks there is no substantial detriment to the neighborhood nor concern and thinks that the soil/topography is a hard one to argue. She states that if the Board grants this variance they would prepare an ANR plan for endorsement by the Planning Board to be recorded along with the decision.

Craig Larson asks if they can condition the decision to require that the house be moved.

Attorney Alger indicates that it would need to be moved as the area they are proposing to swap is currently where the house is and has talked to Building Commissioner, Tom Perry, about a foundation permit. She states that she does not have a problem with the decision stating that they have to move the house.

Laura Shufelt asks about 595 Old Post Road and asks if there is an addition? Attorney Alger indicates yes, but, there will be no additional bedrooms and is okay with conditioning the decision to that effect.

Michael Hersey asks about the lot line

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Attorney Alger indicates that the house is shown on its relocated position on the plan.

Laura Shufelt asks if he is anyone here from the public who would like to speak either in favor or in opposition. No one speaks

Art Traczyk thinks it might be limited by the Board of Health under the current regulations as to how many bedrooms are allowed.

James McGillen asks if there is a problem with a total of 5 bedrooms on both lots.

Attorney Alger has no problem with that.

Craig Larson does findings

Old Post Road, LLC and Donald F. Law, Jr., Trustee of the 595 Old Post Road Realty Trust have applied for a variance to Section 240-14.E Bulk Regulations, Minimum Lot Area and Section 240-36, Resource Protection Overlay District. Both sections require all single-family lots recorded after November of 2000 to have a minimum lot area of 2 acres. The subject lots are developed and the petitioners seek the variance to allow for an equal exchange of 2,152 sq.ft., between the two lots. The subject properties are shown on Assessor’s Map 054 as parcels 017 and 016 addressed 581 and 595 Old Post Road, Cotuit, MA. The lots are in the Residence F Zoning District and the Resource Protection Overlay District.

1. Owing to circumstances related to soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located;

2. A literal enforcement of the provisions of the zoning ordinance would involve substantial hardship, financial or otherwise to the petitioner, and

3. Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the zoning ordinance.

James McGillen seconds.

Vote: AYE: James McGillen, Michael Hersey, Craig Larson, William Newton, Laura Shufelt NAY: None

Craig Larson makes a motion to grant 2010-011 with the following conditions:

1. The variance is granted to permit an exchange of parcels as shown on the plan entitled: “581 & 595

Old Post Road, Cotuit, MA prepared for Donald Law” dated March 25, 2010 as drawn by Field Resources, Inc.

2. An Approval Not Required (ANR) plan shall be prepared based upon said plan and shall incorporate a reference to this variance and notation that the lots are subject to compliance with all conditions of the variance.

3. The Approval Not Required (ANR) plan shall be submitted to the Planning Board for endorsement and thereafter recorded at the Registry of Deeds along with the recording of this variance. Copies of the recorded ANR plan and this decision shall be submitted to the Zoning Board of Appeal’s file for this variance to be in effect.

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4. If the variance and Approval Not Required (ANR) plan have not been recorded at the Barnstable Registry of Deeds within one year from the date of issue of this variance, this variance shall expire.

5. Present House or building at 585 Old Post Road shall be removed or moved as per plan.

6. 581 and 595 Old Post Road shall have a maximum of up to 5 bedrooms each

James McGillen seconds Vote: AYE: James McGillen, Michael Hersey, Craig Larson, William Newton, Laura Shufelt NAY: None GRANTED WITH CONDITIONS

William Newton makes motion to approve minutes from February 24, 2010, March 10, 2010 & March 24, 2010.

Michael Hersey seconds.

Minutes are approved.

Motion to adjourn.

Seconded.


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Town of Barnstable


May 12, 2010

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday May 12, 2010 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Art Traczyk – Principal Planner– Elizabeth Jenkins, Principal Planner, Thomas Perry – Building Commissioner, and Carol Puckett – Administrative Assistant.

Laura Shufelt Present James McGillen Present Michael Hersey Absent Craig Larson Present William Newton Present Alex Rodolakis Present Brian Florence Present George Zevitas Present

Laura Shufelt opens the hearing at 7:04 PM. Laura Shufelt indicates that the first appeal being heard tonight is the Tonsberg appeal. She indicates that Roberto DiMarco, Esq., has sent a letter on behalf of his clients, Roberta & Frederick Tonsberg asking to withdraw without prejudice.

Appeal No. 2009-068 - Continued Tonsberg

Special Permit Demo/Rebuild on Nonconforming Lots Opened, November 18, 2009, continued February 10, 2009, moved to February 24, 2010, continued April 14, 2010, and to May 12, 2010, at request of applicant. This appeal has been continued in order to allow for processing of a Cape Cod Commission Hardship Exemption from the District of Critical Planning Concern Centerville Beach Nomination. No Members Assigned, No Testimony Given Decision Due: May 27, 2010

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Frederick and Roberta Tonsberg have petitioned for a Special Permit pursuant to Section 240-91.H(2), Developed Lot Protection, Demolition and Rebuilding on Nonconforming Lots. The petitioner seeks to demolish the existing dwelling located on the property and reconstruct a new dwelling not in compliance with current setback requirements for the district. The property is addressed as 2 Short Beach Road, Centerville, MA and is shown on Assessor’s Map 206 as parcel 044. The property is in a Residence D-1 Zoning District. Motion is made to withdraw without prejudice Seconded by James McGillen Members assigned tonight: William Newton, James McGillen, Craig Larson, Brian Florence, Laura Shufelt Vote: All in favor


Appeal No. 2010-003 - Continued Gregory Expand Nonconforming Structure & Accessory Uses

Opened January 27, 2010, continued to March 10, 2010, April 14, 2010, and to May 12, 2010. This was continued to allow for the review and input of the Town Attorney’s Office. Members Assigned: William H. Newton, Brian Florence, Alex M. Rodolakis, James F. McGillen, Laura F. Shufelt Decision Due: July 22, 2010 Nathaniel A. Gregory has petitioned for a Special Permit pursuant to Section 240-93 B – Alteration or Expansion of a Pre-existing Nonconforming Structure and a Special Permit pursuant to Section 240-44 A – Accessory Uses. According to the application submitted, the petitioner seeks the “construction of a pier to replace a prior pier” on an accessory lot located across the road from the principal lot on which the single-family dwelling it serves is located. The principal residential lot is addressed 428 Wianno Avenue, Osterville, MA and is shown on Assessor’s Map 163 as Parcel 024. The accessory lot is addressed 320 East Bay Road, Osterville, MA and is shown on Assessor’s Map 163 as Parcel 020. Both lots are in a Residential F-1 Zoning District. Members assigned tonight: William Newton, Brian Florence, Alex Rodolakis, James McGillen, Laura Shufelt Art Traczyk indicates that Attorney Schulz requests a June 9th continuance. Laura Shufelt makes a motion to continue this to June 9, 2010 William Newton seconds. Vote: All in favor

CONTINUED TO JUNE 9TH AT 7:00 PM

Laura Shufelt then calls the Rivera appeal and reads it into the record:

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Appeal No. 2010-017 - New Rivera Special Permit for a 1,200 sq.ft. Family Apartment

. Mauro O. Rivera and Aida G. Rivera have petitioned for a Special Permit pursuant to Section 240-47.1.A(1) Family Apartments in order to allow a family apartment located in the main dwelling to exceed 800 square feet but not more than 1200 square feet. The subject property is shown on Assessor’s Map 246 as Parcel 070 and addressed 34 Strawberry Hill Road, Centerville, MA. The lot is in a Residence B Zoning District. Members assigned tonight: William Newton, James McGillen, Craig Larson, Alex Rodolakis, Laura Shufelt Mauro Rivera is here representing himself and is accompanied by his son, Daniel. . Daniel Rivera explains that he lives with his parents at 34 Strawberry Hill Road. He states that it is a one family house and that his father is trying to make it a family house. Daniel indicates that he recently got accepted into the nursing program, doesn’t have money for an apartment and that his sister and himself would like to live in the apartment. Laura Shufelt states that it was previously an amnesty apartment unit. She asks if indeed the previous tenants left. Mr. Rivera answers yes. Laura clarifies that his son and daughter with her child will be living in the apartment. Laura clarifies that Mr. Rivera lives there and that this is his primary residence. Craig Larson asks Art Traczyk if under amnesty there were any problems with this property. . Art Traczyk answers no. James McGillen clarifies that Daniel, the son, will be living there with his sister and her child who is currently two years old. Laura Shufelt asks Mr. Rivera about the fence and states that one of the conditions is that the fence doesn’t meet site clearance and will be a condition of the variance. Mr. Rivera indicates that he has already put the new fence in. Laura Shufelt asks if there is anyone here from the public who would like to speak either in favor or in opposition. Steve Tenaglia is here representing his parents, Rocco & Carolyn Tenaglia who live at 5 Patricia Street. He indicates that his father is with him tonight and that the property in question has been used as a rental unit in the past and that there have been 4 or 6 cars at any one given time. There is also a home based business and that there are two fairly large landscape trucks with 20 foot trailers and a temporary structure that houses one of the trailers. He indicates that the deck is used for storage for all types of landscaping equipment. Also, a new driveway on the side was cut in and the fence was knocked down so that now there are two driveways. He asks that if family members moving in, will they also be employed in the business that would bring another truck and 20 foot trailer and cars? The Assessor’s card shows the house as a 5 bedroom and the plans that they have seen from the Building Department shows that they are looking for 6 bedrooms. In January of 2009, his parents thought about selling their home and upgraded their septic and when they came in front of the Board of Health they were told there was a new floor plain map that required them to have a less dense lot and were made

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to sign a deed restriction that the home would never be greater than the 3 bedroom home. He indicates that there are many times during the night that the overflow of cars are parked on Chadwick Avenue which he believes hurts property values as this house is the very first house in the residential neighborhood and has changed the character significantly. He believes there are more than 3 or 4 people living there. He would like the Board to take a look at it and thinks there are more violations with not only the fences or parking. Eleanor Simpson of 45 Patricia Street has been there since 1960 and thinks that Mr. Tenaglia has spoken to the issue very well. It is disheartening to see this in this area as there are multiple vehicles, a lot of tools and doesn’t think it is zoned for business. She indicates that the fence has been a problem for years. Also, she is concerned as she believes that these family members are already living there and asks if he can rent rooms as well and is told no. Craig Larson asks if the fence has been lowered. Ms Simpson indicates that they have been working on it but hasn’t noticed a difference. Danny Rivera indicates that the fence was lowered by the regulations. Also, there were be no more additional vehicles to be brought in and that his father has moved some vehicles to another site along West Main. Street. Daniel Rivera indicates that there is an electrician who lives near them who has trucks and a boat also. Craig Larson asks how many trucks and what size. Mr. Rivera indicates he has a pick up truck, a dump truck which he has moved to another location. He indicates that the lawnmowers are kept in a trailer. He indicates that his wife, himself and his two children are the only ones who live there. James McGillen asks how many bedrooms there are. Mr. Rivera indicates that there are 3 up and 3 down. Laura Shufelt indicates that the septic is approved for 6 bedrooms. Art Traczyk indicates that there is a permit from 2005 for 6 bedrooms. James McGillen asks Mr. Tenaglia and Ms. Simpson if they are aware that the applicant is not asking for an increase in bedrooms as he already has approval for 6 bedrooms. Mr. Tenaglis indicates that he believes there are more than 6 people living there and asks if there is still a requirement to list the people living there yearly. The Board indicates yes. . William Newton asks if they need the kitchen on the lower floor. Daniel Rivera states that they can’t always be upstairs. William Newton makes findings: With respect to 2010-017 for a special permit pursuant to section 240-47.1A(1) Family Apartments, the applicants, Mauro O. Rivera and Aida G. Rivera have petitioned for a Special Permit in order to allow a family apartment located in the main dwelling to exceed 800 square feet but not more than 1200 square feet. The subject property is shown on Assessor’s Map 246 as Parcel 070 and addressed 34 Strawberry Hill Road, Centerville, MA.

1. Since issued, the comprehensive permit in 2002 an accessory affordable apartment has occupied the lower level.

2. The Rivera’s wish to change this designation now to a family apartment for use by two family members that needs to be modified because an infant child who is to occupy this also

3. The existing apartment space exceeds the allowable 1200 square feet by less than 1%, a small difference that is inconsequential to the intended use

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4. The fence surrounding the front and side yards of the lot is not in conformance with the vision clearance for corner lots and must be revised which will be a condition

Vote: AYE: Alex Rodolakis, Craig Larson, James McGillen, William Newton, Laura Shufelt NAY: None

William Newton makes a motion in regards to appeal 2010-017 for the approval of the granting for the special with the following conditions as indicates in pages 2 and 3 of the staff report:

1. The area of the family apartment is limited to the existing lower level apartment unit.

2. Occupancy of the family apartment is limited to 2 family members and a child only.

3. The apartment shall comply with, and be maintained, in full compliance with all other requirements of Section 240-47.1 for a family apartment as-of-right as well as all conditions in this decision.

4. Any, and all requirements of the Building Division, shall be fully complied with to assure that the unit and building meets all applicable codes including building, fire, and health.

5. All parking shall be on-site and not within 10 feet of neighboring properties.

6. Occupancy of the dwelling and the family apartment unit is restricted to family members only and there shall be no renting of the unit or rooms to non-family members.

7. During the term of this special permit, there shall be no expansion of the building and no addition of bedrooms to the property.

8. The existing Comprehensive Permit shall be rescinded prior to this permit being executed.

9. The existing fence located on the property shall be required to be brought into conformance with § 240-41 - Vision Clearance on Corner Lots prior to the execution of this permit.

Seconded by James McGillen Vote: AYE: Alex Rodolakis, Craig Larson, James McGillen, William Newton, Laura Shufelt NAY: None

GRANTED WITH CONDITIONS Thomas Perry indica4es that the applicant will have to have a building permit for the paper trail Laura Shufelt calls Mr. Rivera up to explain the process. They re-open to amend the conditions to include that a building permit needs to be applied for. William Newton wants to add Tom Perry’s concern that a building permit must be executed before they have the 10. A building permit is required prior to the occupancy of the apartment unit. That permit can only be issued when this decision is finalized and filed with the Registry of Deeds.

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Motion to amend Seconded Vote: AYE: Alex Rodolakis, Craig Larson, James McGillen, William Newton, Laura Shufelt NAY: None

GRANTED WITH CONDITIONS Laura Shufelt then calls the Vinagre appeal and reads it into the record: Appeal No. 2010-018 - New Vinagre

Variance for a Detached Family Apartment Norberto H. Vinagre has applied for a Variance to Section 240-47.1. Family Apartments. The applicant seeks a variance to allow for an existing apartment unit that is located in a detached structure to be utilized as a family apartment. The subject property is shown on Assessor’s Map 209 as Parcel 071 and addressed 122 Old Stage Road, Centerville, MA. It is in a Residential D-1 and a Residential C Zoning Districts. Attorney Michael Schulz is representing the applicant and indicates that this is a short sale which has liens on the property which they need to rectify. He indicates that because one of the lien holders will not agree to accept anything less than full value, there is a delay and therefore they are asking for a continuance. Laura Shufelt makes a motion to continue to June 9, 2010. James McGillen seconds. Vote: All in favor.

CONTINUED TO JUNE 9, 2010 AT 7:00 PM

Laura Shufelt then calls the Osterville Historical appeal and reads it into the record. Appeal No. 2010-019 – New Osterville Historical Society, Inc.

Appeal of the Building Commissioner Osterville Historical Society, Inc., has appealed the Building Commissioner’s determination that the operation of a part-time, seasonal farmer’s market is not primarily or dominantly related to the educational purpose of the Osterville Historical Society and is therefore not permitted as a part of the exempt use of the property at 155 West Bay Road, Osterville, MA. The appellant is seeking the Zoning Board’s reversal of the Commissioner’s determination. The subject property is shown on Assessor’s Map 116 as Parcel 86, addressed 115 West Bay Road, Osterville, MA. It is in a Residential C Zoning Districts.

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Members assigned tonight: James McGillen, Craig Larson, George Zevitas, William Newton, Laura Shufelt Attorney Michael Schulz is representing the applicant. With him tonight is Cynthia Hall, Executive Director of the Osterville Historical Society to answer any questions. Attorney Schulz gives a summary of the relief being sought. He thinks that limited operation of five hours, one day per week from June to September is primarily or dominantly related to the education purposes of the Osterville Historical Society. He cites Chapter 40A §3 and reads part of it. He also indicates that Massachusetts Case law has boiled it down into a two prong test:

1. That the land be used for the educational purposes must be owned or leased by the educational non-profit organization

2. That the primary or dominant purpose of the use must be for educational purposes. He indicates that OHS was organized as nonprofit education in 1956. In 1960, OHS received a letter from the IRS that recognized that OHS was organized exclusively educational purposes. He indicates that the letter is appended to his letter dated March 18th as Exhibit #2 and that the letter is in full force and effect. For over 50 years OHS has been in Osterville with various exhibits, children educational programs and adult educational programs and structured tours within the OHS campus, etc. In 2009, the Historical Society opened its door to the public for free. He believes that with it meets the first prong of that test. He indicates that they depend on long term membership for contributions and asks how do you create an awareness of the educational opportunities? He indicates that they do mailings, but that the farmer’s market was done to bridge this gap by giving a reason to current and new members to explore this campus. During the market the entire campus is open free of charge to those who attend. He indicates that OHS had a net profit of approximately $8.00 in 2009 and that in short, the farmer’s market is an awareness creator and not a commercial enterprise and wants it to stay that way. Brian Florence asks about the educational components as to who is taught and what is the curriculum? Cynthia Hall indicates that the farmer’s market last year was an educational outreach program and that people learn what is not in season. She indicates that they also had a vendor there that they partnered with who did lectures on maritime history and will continue doing that this year. Brian Florence asks if there is any educational component to the farmer’s market. Cynthia Hall indicates that they didn’t get involved in asking them about specific people coming up to their booth but because of the nature of some of their products such as holistic soaps that are made from organic substances, invariably, people would ask them how they are made. There was an educational component to that but again it wasn’t something that OHS and the museum generated. Brian Florence asks where the produce is grown. Attorney Schulz indicates that he believes they are all grown off-site. Cynthia Hall indicates that OHS does not have a farm but has an herb garden which they teach children about. Craig Larson asks Cynthia to list the general vendors. Cynthia Hall indicates there is a woman who makes soaps in her garage, another grows lavender and makes product from it, another woman who makes laundry soap from berries, a baker, and three different produce vendors of which one is a certified organic grower who all grow on and off Cape.

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Craig Larson clarifies that the vendors have a booth and inform the customer how things are being made, produced, etc. Cynthia Hall states that this year they are creating an entranceway in order for people to pick up information about the agriculture and organic products, etc. Brian Florence asks Attorney Schulz if the vendors make a profit. Attorney Schulz answers yes. Building Commissioner, Tom Perry, states that the reason it was denied is that it is no more different than a retail store selling vegetable, organic or not. He doesn’t see where answering questions by the vendors is educational. He indicates that this past year they have had at least six farmer’s market requests and does not have a problem with it if it is in a commercially zoned area but is concerned about one being held in a residential area as it is retail. He states that it has to be connected to an educational organization He indicates that case law is very specific as to what incorporates a 501.C.3 ,an educational exemption, as it has to be connected. He talks about the case in Newton about the church that was doing counseling while the religious use was the predominant use and this was a side business. The courts upheld the Building Inspector saying he was correct in saying this was not part of the exempt use. The Board and Tom Perry discuss what can be sold and the Newton case. James McGillen talks about the Dover amendment. The Board discusses their feelings on farmer’s markets. Laura Shufelt asks if there is anyone from the public who would like to speak either in favor or in opposition. Sarah Wyatt can see the museum from her home, has shopped there and asks if they reinstated Captain Parker’s farm if it would make a difference to keep the farmer’s market there. William Newton makes a motion to support and uphold the application of the Osterville Historical Society and that the denial by the Building Commissioner be refused. George Zevitas seconds. Laura Shufelt addresses the motion. She disagrees with the majority and sees it similar to how Brian Florence and Mr. Perry feel and that the farmer’s market may be a seemingly benign use in a residential zone but it is an intensification of the use. Also, if the purpose is to bring attention to the museum then they could do a carnival but doesn’t think that the neighborhood or the Board would want to see that. She believes that there is a correlation to that and doesn’t see the correlation between the farmer’s market and the Historical Society. Craig Larson comments that they still have to comply by bulk regulations and thinks that some of this is controllable. Vote: AYE: George Zevitas, Craig Larson, James McGillen, William Newton NAY: Laura Shufelt .

BUILIDNG COMMISSIONER’S DECISION HAS BEEN OVERTURNED.

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Motion to adjourn Seconded All in favor Meeting adjourned at 8:22 PM.

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Minutes May 26, 2010

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday May 26, 2010 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Art Traczyk – Principal Planner– Elizabeth Jenkins, Principal Planner, and Carol Puckett – Administrative Assistant.

Laura Shufelt Present James McGillen Present Michael Hersey Present Craig Larson Present William Newton Present Alex Rodolakis Present Brian Florence Present George Zevitas Present

Laura Shufelt opens the hearing at 7:06PM. She reads a summary of the appeals being heard tonight. Craig Larson leaves the hearing room. She then calls EAC and reads it into the record. Appeal No. 2009-025 – Continued EAC Disposal, Inc.


Opened April 1, 2009, continued, May 20, 2009, August 5, 2009, September 23, 2009, November 4, 2009 December 9, 2009, February 10, 2010, moved to February 24, 2010, April 14, 2010 and continued to May 26, 2010. Continued for an update on Hiring of an Outside Consultant for the Board. Board Members Assigned: William H. Newton, George T. Zevitas, Brian Florence, Alex M. Rodolakis, Laura F. Shufelt Decision Due: June 18, 2010 EAC Disposal, Inc., d/b/a Cape Resources Company has applied for a Modification of Variance No. 1996-14. The modification is sought to allow for revisions to the site that include a new wood processor and staging area, alteration to interior site circulation, and additions and alterations to screening berms and landscape. The property is addressed 280 Old Falmouth Road, Marstons Mills, MA as shown on Assessor’s Map 100 as parcel 008. The lot is in a Residence F Zoning District Members assigned tonight: William Newton, George Zevitas, Brian Florence, Alex Rodolakis, Laura Shufelt Attorney Sabatt indicates that he understood that they would review the progress of the hiring of the outside consultant. Art Traczyk indicates that the RPF went out May 17th and the deadline is June 8th. He hopes they could do a review between the 9th and 15th and discuss with the consultant and then send out on the 15th who they selected. They also need a deposit for the projected amount as before they do that they must have the

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money in the account. He is thinking about a continuance to July 14th if that is acceptable to the Board. James McGillen asks if there is a time extension initiated. Art Traczyk answers yes. William Newton asks Attorney Sabatt if there is anything on the plan that has changed. Attorney Sabatt indicates no. Art Traczyk indicates that he has photos of the site visit and can show them on July 14th. The board is agreeable to that. William Newton makes a motion to continue to July 14, 2010 Alex Rodolakis seconds Vote: All in favor.

Craig Larson returns to the hearing room. Laura Shufelt then calls the Centerville Building Corporation appeal and reads it into the record:

Appeal No. 2010-020 - New Centerville Building Corporation Modification of Special Permit No. 1985-119

Centerville Building Corporation, formerly known as Fraternal Lodge Building Corporation, has petitioned for a Modification of Special Permit No. 1985-119 issued to Fraternal Lodge, A.F. & A.M. in order to allow a seasonal farmer’s market to be conducted on the premises. The subject lot is addressed as 1989 Falmouth Road (Route 28), Centerville, MA. It is shown on Assessor’s Map 189 as Parcel 002-001. The lot is in Residence C and Residence B-1 Zoning Districts

Members assigned tonight: James McGillen, Michael Hersey, Craig Larson, William Newton, Laura Shufelt

Bill Elkins, a member of the Centerville Building Corporation and a member of the lodge speaks and indicates that also with him tonight are Mr. Pelletier and David Konigsburg who are both members of the lodge and the corporation. Also, Patience Thomas who handles the agricultural market. He indicates that the reason they are here is to see if they can do the farmer’s market during the season for one day a week. He is not sure if there are any objections from the neighbors and is here to answer any questions.

Laura Shufelt asks if they have seen the staff report. Ms. Thomas indicates that no one had received it. Art Traczyk indicates that it was sent out and emailed but gives them a copy in order for them to read it.

Laura Shufelt calls a 10 minute recess so that the applicants can read the staff report.

Bill Elkins speaks and indicates that is a nonconforming use. However, it is a nonprofit situation and the market will be paying income and rent to the lodge. The question came about in the staff report about the traffic situation and is okay with them to have a policeman on duty. The question is whether they can have this use on the property and is best made by this board.

Craig Larson asks if they went to Site Plan Review and if they can do this without going to Site Plan Review.

Art Traczyk states that he believes that it was approved by Site Plan Review and Patience Thomas concurs that they were approved by the Site Plan Review Committee.

William Newton claries that the plan and parking for the vendors has been approved and asks how they are going to deal with the traffic on Route 28.

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Mr. Elkins indicates that they believe it will be handled by a police officer directing traffic at the expense of the applicant.

William Newton asks if they would consider a different time period to get away from peak traffic times.

Patience Thomas indicates that they can change the hours and that a policeman will be paid for.

Mr. Elkins thinks there clearly should be a policeman on duty to handle the traffic.

Michael Hersey asks Patience Thomas to give more detail as to her relationship to the lodge as it pertains to non–profit.

Ms. Thomas indicates that she was approached by the Masonic Lodge to consider having a farmer’s market as a way for them to raise money for scholarships and that it was the recommendation of Tom McKean from the Board of Health to approach it this way. She indicates that she thought it would be a good way for the Masonic Lodge to raise additional revenue.

Michael Hersey asks for an estimated amount of funds that will be made during the market.

Ms. Thomas indicates that it would depend on how many vendors but it would be a few thousand dollars during the course of the season.

Michael Hersey asks where the money would be used for.

Mr. Elkins indicates that this is a non-profit, fraternal organization worldwide and they do everything from Masonic hospitals to scholarship funds, photos and fingerprinting children and that it is a non-profit organization and mainly made up of volunteers. It is approximately 130 years old.

Laura Shufelt asks if the vendors are for profit and that this is a for profit venture.

Patience Thomas answers yes.

Laura Shufelt claries that the proposed use is a retail use which is different from the fraternal lodge.

James McGillen claries that this is a non-profit and is not an exempt use as the Board had dealt with previously.

William Newton asks what other events has the lodge had organized and asks for results from that.

Mr. Elkins indicates that they had not had any other events like this and that maybe they had yard sales in the past.

Laura Shufelt asks if there is anyone here from the public who would like to speak either in favor or in opposition.

Gary Johnson from Woodbridge Drive speaks and commends what the organization does but would like farmer’s market defined and asks if this is going to turn into a flea market. Also, they have had to listen to loud bands over the weekends for the past two or three years and kids screeching tires and are concerned.

Mrs. Johnson is concerned that it could be a flea market also or a carnival and is concerned about the noise. The organization had a pig roast last year which was noisy and wants to know how farmer’s market is defined.

Laura Shufelt reads a letter from the file from Sandy Jones Fitzgerald in support and reads it into the record.

Laura Shufelt also indicates that there is a letter which was also received from JoAnne Buntich detailing her meeting with Ms. Thomas going over where farmer’s markets could be done by right and pointed out to Ms. Thomas that this would be another nonconforming use.

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Mr. Elkins isn’t sure about what people are talking about with noise and clearly he has a pig roast but the fraternal lodge is primarily not used for outdoor functions. He knows that the German American Club meets on Sunday mornings.

Patience Thomas explains that farmer’s markets are local producers of vegetables, fruits, preserves, breads, etc., and that every product that comes to market needs to be locally produced. They are not flea market items. They have a complete list and procedure to go through but occasionally they allow non-food products such as soaps made locally. Framer’s markets also run a certain amount of time and that is why they are no more than 5 hours due to spoilage.

The Board discusses.

William Newton asks Patience Thomas if she will be there supervising this on a daily basis.

Patience Thomas indicates that she will be the designated manager of the market and will take charge of the vendors as they first have to apply and are then selected and have to go through the Board of Health.

Neil Pelletier wants to address the abutter’s concerns and admits that in some cases parties might’ve got out of hand and they are beyond doing that for charitable interests and that the farmer’s market will not be late at night.

Laura Shufelt comments that she believes that the ZBA doesn’t have the authority to authorize this.

The board discusses.

William Newton makes findings:

With respect to Appeal No. 2010-020 Centerville Building Corporation regarding a modification of special permit 1985-119, he finds the following findings:

1. The proposed farmer’s market does not constitute a second nonconforming use of the property

2. It is keeping with the original intent of the board’s restriction of the use of the property that of the property of the non-profit social charitable organization

3. The modification will not adversely affect traffic flows along Route 28 and does not pose a safety issue that would be a substantial detriment to the public good and the neighborhood

Vote: AYE: Craig Larson, Michael Hersey, William Newton NAY: James McGillen, Laura Shufelt

Motion to grant is made by William Newton to approve 1985-119 with the conditions and indicates that there are 9 conditions and will put off reading them until after the vote.

Craig Larson wants to hear the conditions. William Newton reads them as follows:

1. The farmer’s market shall be limited to an open air market to be conducted only on Mondays from 10:30 AM to 3:30 PM, for 14 consecutive weeks from June 14th to September 13th. 2010. Vendors shall be provided an additional 2 hours before 12:00 noon and 2 hours after 5:00 PM to assemble and disassemble stands. During those additional hours, no products shall be sold.

2. Signage, if any, shall conform to zoning and may only be displayed during the operation of the market from 10:30 AM to 3:30. PM

3. There shall be no more that 24 vendors selling farm produce raised and harvested by a farmer/grower and products made by a farmer/grower. Products sold may include fruits and vegetables, herbs, preserves, fresh-cut or dried flowers, fresh cider, dairy products, meats, poultry, and/or seafood. Home produced soaps and baked goods are permitted provided the majority of the

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ingredients are produced by the vendor. Vendors shall be limited to farmers and growers and those who buy products directly from farmers or growers in Barnstable, Dukes, Nantucket or Plymouth County, transports it to the farmer’s market and resells it to the consumer.

4. Non-food items such as: crafts, housewares, utensils, tableware, clothing, jewelry or other similar manufactured products, prepared food such as take-away meals and snacks, nursery stock and plants, and third party reselling are prohibited

5. All products sold, and all site activities are subject to all applicable Board of Health regulations and licensing requirements. All scales utilized at the farmer’s markets must be inspected and sealed annually by the Sealer of Weights and Measures.

6. Only products certified by the Northeast Organic Farmers’ Association (NOFA) as organic may be labeled “organic”.

7. All requirements of the Centerville Osterville Marstons Mills Fire Department and the Building Division if any shall be complied with.

8. The applicant shall make provisions for on-site trash receptacles and for cleaning of the site after each market. The existing on-site dumpster shall meet all Board of Health regulations including screening prior to the first market.

9. The applicant shall be responsible for assuring that a police officer is on-site to direct traffic at the entrance to the site. The officer shall be present from the time the vendors start arriving (2-hours before) until the vendors have left the site (2-hours after the market). Should the Barnstable Police determine that the posting of an officer at this location is too dangerous, they can refuse to provide that service in which case the market shall not be permitted.

Michael Hersey wants to amend to add that this modification be reviewed in one year.

William Newton accepts the amendment.

VOTE: AYE: Craig Larson, Michael Hersey, William Newton NAY: James McGillen, Laura Shufelt Motion does not carry.

NOT GRANTED Motion to adjourn Seconded Vote: All in favor Hearing adjourned at 7:55 PM.

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Minutes June 9, 2010

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday June 9, 2010 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were JoAnne Buntich – Director of Growth Management, Charlie McLaughlin – Assistant Town Attorney, Art Traczyk – Principal Planner– Elizabeth Jenkins, Principal Planner, and Carol Puckett – Administrative Assistant.

Laura Shufelt Present James McGillen Present Michael Hersey Absent Craig Larson Present William Newton Present Alex Rodolakis Present Brian Florence Absent George Zevitas Present

Laura Shufelt opens the hearing at 7:13 PM. She reads a summary of the appeals being heard tonight. She then calls the Gregory appeal and reads it into the record: Appeal No. 2010-003 - Continued Gregory Expand Nonconforming Structure & Accessory Uses

Opened January 27, 2010, continued to March 10, 2010, April 14, 2010, May 12, 2010 and to June 9, 2010. This was continued to allow for the review and input of the Town Attorney’s Office. Members Assigned: William H. Newton, Brian Florence, Alex M. Rodolakis, James F. McGillen, Laura F. Shufelt Decision Due: July 22, 2010 Nathaniel A. Gregory has petitioned for a Special Permit pursuant to Section 240-93 B – Alteration or Expansion of a Pre-existing Nonconforming Structure and a Special Permit pursuant to Section 240-44 A – Accessory Uses. According to the application submitted, the petitioner seeks the “construction of a pier to replace a prior pier” on an accessory lot located across the road from the principal lot on which the single-family dwelling it serves is located. The principal residential lot is addressed 428 Wianno Avenue, Osterville, MA and is shown on Assessor’s Map 163 as Parcel 024. The accessory lot is addressed 320 East Bay Road, Osterville, MA and is shown on Assessor’s Map 163 as Parcel 020. Both lots are in a Residential F-1 Zoning District. Attorney Albert Schulz is representing the applicant. Also with him is John O’Day from Sullivan Engineering.

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Members assigned tonight: William Newton, Alex Rodolakis, James McGillen, George Zevitas, Laura Shufelt (George Zevitas is replacing Brian Florence who is not present tonight) Laura Shufelt indicates that since the last meeting there was a letter from Charlie McLaughlin and also something today from Attorney Schulz which she hasn’t had time to read. Attorney Schulz asks that this be continued to the next available hearing Laura Shufelt indicates that she would like it to go forward tonight. They discuss when it can be continued until. Art Traczyk requests an extension be done. Motion to continue this to July 14th at 7:00 PM Seconded Vote: All in favor

CONTINUED TO JULY 14, 2010 AT 7:00 PM

James McGillen leaves. Laura Shufelt then calls the Vinagre appeal and reads it into the record: Laura indicates that Attorney Michael Schulz has requested that this be continued. Appeal No. 2010-018 - Continued Vinagre

Variance for a Detached Family Apartment Opened, May 12, 2010, continued to June 9, 2010 at request of the applicant. No Members Assigned, No Testimony Given Staff Report and Application Materials previously distributed to the Board. Decision Due: July 9, 2010 Norberto H. Vinagre has applied for a Variance to Section 240-47.1. Family Apartments. The applicant seeks a variance to allow for an existing apartment unit that is located in a detached structure to be utilized as a family apartment. The subject property is shown on Assessor’s Map 209 as Parcel 071 and addressed 122 Old Stage Road, Centerville, MA. It is in a Residential D-1 and a Residential C Zoning Districts. Attorney Albert Schulz is here for his son Attorney Michael Schulz and requests that it be continued. Motion to continue to July 14th at 7:00 PM Seconded Vote: All in favor CONTINUED TO JULY 14, 2010 AT 7:00 PM Laura then calls the Balise appeals and reads them into the record: Appeal No. 2010-021 - New Balise Automotive Realty, LP

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Conditional Use Special Permit - Automobile Dealership .

Balise Automotive Realty, LP has petitioned for a Conditional Use Special Permit pursuant to Section 240-25.C(1), Conditional Uses in the Highway Business Zoning District to allow for the display of vehicles as a part of the Balise Automobile Dealership. The subject lots are addressed as 516 and 528 Bearses Way, Hyannis, MA and are shown on Assessor’s Map 293 as Parcels 008 & 009. The lots are in the Highway Business and Business Zoning Districts.

Appeal No. 2010-022 - New Balise Automotive Realty, LP

Special Permit Nonconforming Buildings or Structures Balise Automotive Realty, LP has petitioned for a Special Permit pursuant to Section 240-93.B, Nonconforming Buildings or Structures. The petitioner is seeking to demolish the existing buildings and redevelop the site for display of vehicles. The redeveloped site will not conform to current required landscape buffers and the permit is sought to allow the redevelopment based upon the existing nonconformities in the lots. The subject lots are addressed as 516 and 528 Bearses Way, Hyannis, MA and are shown on Assessor’s Map 293 as Parcels 008 & 009. The lots are Members assigned tonight: William Newton, Craig Larson, Alex Rodolakis, George Zevitas, Laura Shufelt Attorney Michael Ford is here representing the applicant. Also with him is Matt Eddy site engineer from Baxter & Nye who has prepared the plans with this application, and the principal of Balise Automotive Realty, Mr. Jeff Balise. He gives a summary of the relief being requested. He gives a brief history of the location and project. He indicates that the first lot (516) is immediately on the corner and site of a car wash that is closed. The proposal also includes an adjoining parcel on 528 which currently has a vacant structure on it. There are two curb cuts that serve those parcels. Both lots are in HB and one also in B but both have been treated as they are in the HB. They are in AP overlay district which is the least restrictive of the groundwater districts. Both the car wash and retail store has been closed. They would like to raze both structures. The proposal is to redevelop the site and the lots would be combined and in place of those structures is a vehicle display area in conjunction with the adjoining Ford dealership. One of the curb cuts will be closed as indicated in Site Plan Review. A landscape buffer will be established for the first time. It is proposed to be treed and the Town Warden had some input as to what type of trees that they were looking for in order to improve the area. The second curb cut (furthest away from Bearses Way) will be narrowed to 24 feet and will be limited. Also, as part of this redevelopment further down on Bearses Way, which is currently a vehicle display area and storage area, there will be a car wash constructed which Site Plan Review has seen and anticipate that this will be approved. It is in the Business zone and didn’t need relief and also in the AP zone. The carwash will be open to the public and available to the dealership. He walks through the criteria for special permits. He indicates that an approval letter was issued today from Site Plan Review. Also, on the second permit under 240-94B, the reason they need it is that there is one portion that doesn’t comply which is the landscape buffer. He believes they are making the condition better and is more beneficial as they are improving the conditions. He would like to address the Board on the suggested conditions. First is the one involving the curb cut on Bearses Way. Also, there is a provision in there that suggests that there should be fencing and he is suggesting some language which he hands to the Board. He clarifies that he is referring to the split rail fencing. He had a discussion with Art Traczyk this afternoon and he understood that the intent was to not have cars parked out on the grass. He discussed it with Mr. Balise who has not done it at any of his other dealerships. He suggest new language which would be “Parked vehicles shall be prevented from parking on or overhanging into the green area by the placement of vehicle stops to delineate and protect the

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green buffer from the interior parking area and that the fence requirement be eliminated” The other concern he has is #5 of the condition of the first special use permit. His proposed language would be to order the applicant to limit the use of the curb cut consistent with the condition as opposed to simply ordering it to be closed causing them to coming before them to appeal it. His proposed language would be “Should that curb cut become one of common use to enter or exit the dealership, the Building Commissioner can request and order that the applicant take steps to limit the use of the curb cut consistent with this condition”. Alex Rodolakis doesn’t think that the stops would be enough and there would be uniformity with a fence. He would be more in favor of a fence. Attorney Ford’s concern is that anything that partially obstructs is counter productive and the goal is to have the vehicles seen and a fence would not be conducive to that. Craig Larson suggests maybe a single split rail. Attorney Ford comments that this is just for the inventory of the cars and agrees with Alex Rodolakis as he has seen a dealership with cars on the lawn who have been conditioned not to. Craig Larson asks what will happen with the other building Attorney Ford indicates that they own other parcels but that this area needed immediate attention and is the first step in cleaning up the area. Jo Anne Buntich indicates that this is a very busy intersection and the State has just completed a safety survey of the intersection and they are looking to make some improvements. Additionally, the Town is preparing imminently to do streetscape and pavement upgrades to Corporation and Enterprise Roads. She was satisfied that this was the best solution to this project. They had a lot of conversation about the buffer and wanted the green area and feels that the applicant has accomplished that. Craig Larson asks what would happen if these lots were sold off. Art Traczyk indicates that if it was converted to a parking lot that it would have to be upgraded and that they would have to come back to the ZBA for permission. Jo Anne Buntich indicates that this could be handled with a finding. Laura Shufelt asks about delineation of where the vehicles are to be placed. Matt Eddy indicates that it is not stripped parking as it is not designed to be a parking area and pointes out the defined areas. Alex Rodolakis asks about restriction about ramps or the ability to cars being on platforms. Art Traczyk indicates that they had not put that into the conditions. Attorney Ford has asked for a recess to consult with his client. Laura Shufelt calls a ten minute recess. Laura calls the hearing back in session at 8:08 PM.

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Attorney Ford indicates that he has had an opportunity to discuss this with Mr. Balise and that Mr. Balise is okay with no ramps or platforms. As to the second issue, he would ask the Board hear directly from Mr. Balise. Mr. Balise speaks and indicates that they now have 19 dealerships and the setback issue exists in almost every town they operate in. He indicates that they do not have a facility in any town where they have had an issue. The curb stop of cement is placed back two feet from the berm and it would almost be impossible to drive over a curb stop and then a berm. His concern is that they want a beautiful dealership and landscape and the fence would detract from the cars and the landscape itself. William Newton asks what dictated what they provided on the plan in regards to the buffer. Mr. Balise wanted to maximize the number of spaces and stay with curb aisles that would work. They came up this through negotiation with Growth Management. William Newton asks if they would be agreeable to green space at least off Route 28 and asks if they could get to 20. Mr. Balise indicates that they would lose a whole row and would lose 28 cars and by constructing the car wash they are trading space. They discuss the fence versus the cement stops. Attorney Ford suggests that Mr. Balise can use the stops and if they violate it that they would then have to put in a fence. Laura Shufelt asks if there is anyone here from the public who would like to comment. No one speaks. Laura asks for a recess to put some findings together. Laura Shufelt calls the hearing back in session. Craig Larson makes findings for both appeals:

In Appeal Nos. 2010 – 021 and 022, the petitioner is seeking to redevelop two Assessor’s parcels1 located at the intersection of Route 28 and Bearses Way in Hyannis. The two parcels total 52,557 sq.ft. in area (1.2 acres). The proposal is to remove the existing structures and improve the lots for the outdoor display of automobiles associated with the principal use of Balise Ford of Cape Cod. The 516 and 528 Bearses Way parcels, that are the subject locus for the permits, are developed with a 4,749 sq.ft. car wash building that has been closed for sometime and a 3,310 sq.ft. specialty retail commercial building that is vacant. The developments on both of the lots do not conform to today’s setback regulations or to today’s site development standards. Virtually all of the locus is zoned Highway Business and now permits only offices and banks as-of-right. The use of the lots predates the 1985 rezoning to Highway Business and the uses are pre-existing nonconforming uses.

In Appeal #2010-021 it is the findings of this Board that:

The application falls within a category specifically accepted in the ordinance for a grant of a special permit.

That a site plan has been reviewed by the Site Plan Review Committee and found approvable.

1 The two parcels are Assessor’s parcel numbers 008 & 009. Together those parcels constitute five lots, Lot Nos. 1 & 2 on Land Court Plan 18367-C and Parcels Nos. 1, 2 and 3 on a Plan of Land filed withy the Barnstable Registry of Deeds in Plan Book 305, page 77.

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And, after an evaluation of all the evidence presented, the proposal fulfills the spirit and intent of the Zoning Ordinance and would not represent a substantial detriment to the public good or the neighborhood affected. In fact, it improves the area and traffic, safety by closing a number of curb cuts.


Craig Larson makes a motion to approve 2010-021 with the following conditions:

For Appeal 2010-021 – the Conditional Use Special Permit

1. This conditional use special permit is issued to Balise Automotive Realty, LP for the use of the parcels addressed as 516 and 528 Bearses Way, Hyannis, MA to be used for the display of vehicles for retail sales accessory to the abutting automobile dealership and service garage located at 322 Falmouth Road, Hyannis.

2. The subject parcels (addressed as 516 and 528 Bearses Way, Hyannis, MA) shall be developed as shown on plans submitted and entitled “Balise Automotive Group 516, 528 and 574 Bearses Way 57 Corporation Street Hyannis Massachusetts” dated 5-06-10 with a last revised date of 5-24-10 as prepared by Baxter Nye Engineering & Surveying and consisting of 16 sheets.

3. The maximum number of display vehicles permitted in this display lot (516 and 528 Bearses Way) is 111.

4. All signage shall conform to the zoning regulations. No variance from the sign code is permitted during the duration of this permit as the use authorized herein is to be accessory to the dealership located at 322 Falmouth Road.

5. The curb cut onto Bearses Way shall be indicated with signage as an entry to the dealership. It is intended only for the use by vehicles that are for sale being taken out to, or being returned from “test drives”. The exit shall be signed “right-turn only”. Should that curb cut become one of common use to enter and/or exit the dealership, the Building Commissioner can request and order the applicant to take steps to limit the use for the curb cut consistent with this condition.

6. The display lot shall not now or in the future be fenced in along Route 28 and Bearses Way by chain link fencing.

7. Lighting of the lot shall conform to the Lighting Standards of the Cape Cod Commission. The height of the light standards shall not exceed 26 feet. All lighting shall be shielded and shall not glare onto abutting properties or onto surrounding public ways.

8. Raised display areas, ramps, or other such devices are hereby prohibited.

William Newton seconds.

Laura Shufelt wants to make sure Condition #5 that it says “shall not be indicated with sign to the entrance” which Craig had left out.

Amendment accepted. Vote: AYE: George Zevitas, Alex Rodolakis, Craig Larson, William Newton, Laura Shufelt NAY: None

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Craig Larson does findings for Appeal #2010-022:

1. The proposal before the Board represents an improvement over which exists

2. The front yard landscape area is now zero will be increased to an average of 10 to 11 feet

3. The same findings that the applicant falls within the category specifically excepted in the ordinance for the granting of a special permit

4. The site plan has been reviewed by the Site Plan Review Committee and found approval

5. After an evaluation of all the evidence presented, the proposal fulfills the spirit and intent of the Zoning Ordinance and would not represent a substantial detriment to the public good or the neighborhood affected.

Seconded. Vote: AYE: George Zevitas, Alex Rodolakis, Craig Larson, William Newton, Laura Shufelt NAY: None Craig Larson makes a motion to approval Appeal #2010-022 with the following conditions:

1. The subject parcels addressed as 516 and 528 Bearses Way, Hyannis, MA shall be developed as shown on plans submitted and entitled “Balise Automotive Group 516, 528 and 574 Bearses Way 57 Corporation Street Hyannis Massachusetts” dated 5-06-10 with a last revised date of 5-24-10 as prepared by Baxter Nye Engineering & Surveying and consisting of 16 sheets.

2. The proposed 11.75-foot wide front yard landscape area abutting Route 28 and Bearses Way shall not be used for the parking of any vehicles it shall be maintained as green space. Parked Vehicles shall be prevented from parking on or overhanging into that green area by the placement of vehicle stops and for the maintenance of a split rail fence to delineate and protect the green buffer from the interior parking area.

3. The lot shall be properly drained as per plans submitted. The engineer, as a part of the as-built plan, shall certify that the lot is properly drained as per plan and no area of standing water exists.

4. Any future alteration to the locus shall only be permitted provided the alteration made is more conforming to then applicable zoning requirements.

5. No part of the site shall be used as a parking lot for the general public unless the site is changed to comply with zoning requirements for parking lots.

Seconded

They discuss.

Amendment to #2, that not only will there be concrete stops there will be a Cape Cod berm along around the edge as indicated on the plans.

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Laura Shufelt asks about the sidewalk easement and comments that she didn’t see as a condition but that it is on the plan. They discuss and Craig Larson agrees to amend the decision with another condition that “All conditions as per Site Plan Review”.

Accepted Vote: AYE: George Zevitas, Alex Rodolakis, Craig Larson, William Newton, Laura Shufelt NAY: None

GRANTED WITH CONDTIONS.

Chairman’s Discussion

Laura Shufelt indicates that there will be no meeting on June 23, 2010 for the ZBA.

Art Traczyk indicates that there is a package put together for the Board members sitting on EAC regarding proposals submitted and asks that the members review and contact him with any questions.

Motion to adjourn

Seconded

Vote:

All in favor


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Minutes July 14, 2010

A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday July 14, 2010 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Art Traczyk – Principal Planner– Elizabeth Jenkins, Principal Planner, and Carol Puckett – Administrative Assistant.

Laura Shufelt Present James McGillen Present leaves at 7:10 PM Michael Hersey Present Craig Larson Present William Newton Absent Alex Rodolakis Present Brian Florence Present George Zevitas Present

Laura Shufelt opens the hearing at: 7:10 PM. She gives a summary of the appeals being heard tonight.

7:00PM Appeal No. 2009-025 – Continued EAC Disposal, Inc. Modification of Variance No. 1996-14

Opened April 1, 2009, continued, May 20, 2009, August 5, 2009, September 23, 2009, November 4, 2009 December 9, 2009, February 10, 2010, moved to February 24, 2010, April 14, 2010, May 26, 2010, and continued to July 14, 2010.

Continued for an update on Outside Consultant for the Board.

Board Members Assigned: William H. Newton, George T. Zevitas, Brian Florence, Alex M. Rodolakis, Laura F. Shufelt

Decision Due: June 18, 2011


Attorney Charles Sabatt is here representing the applicant. He indicates that the Town has notified them that they have selected a consultant and that the fee is to be posted by his client. He indicates

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that currently, the key decision makers are on vacation and will be back next week and therefore is asking for a continuance. Motion is made by Michael Hersey and seconded by Brian Florence to continue this to August 11, 2010 at 7:20 PM Vote: All in favor

CONTINUED TO AUGUST 11, 2010 at 7:20 PM At 7:12 Laura Shufelt calls the Reed appeal. She indicates that a letter requesting a continuance has been submitted by the applicant’s attorney, Duane Landreth in order to apply for alternative relief. 7:10 PM Appeal No. 2010-009 – Continued Reed Appeal of the Building Commissioner

Opened April 28, 2009, continued to July 14, 2010.

Continued for review and input of the Town Attorney’s Office.

Board Members Assigned: William H. Newton, James F. McGillen, Michael P. Hersey, Craig G. Larson, Laura F. Shufelt - Associates Present: George T. Zevitas, Alex M. Rodolakis

Decision Due: September 30, 2010

A July 9th letter from Attorney Duane P. Landreth has requested a continuance to allow for an application for alternative relief (a variance) to be submitted

Recommend continuance to September 15th @ 7:10 P.M.

Carol Anne Reed has appealed the Building Commissioner’s February 12, 2010 denial of a building permit to construct a single family dwelling on a lot addressed as 1175 Shootflying Hill Road, Centerville, MA. The appeal is being made pursuant to Section 8 of MGL Chapter 40A and is requesting that the Board overrule the Commissioner and find that the lot is a legally-created, pre-existing undersized nonconforming lot that is independently buildable. The subject property is shown on Map 190 as parcel 218, and addressed 1175 Shootflying Hill Road, Centerville, MA. The lot is in a Residence D-1 and Residence C Zoning District and in the Resource Protection Overlay District. Laura Shufelt indicates that because of the new Open Meeting Law that it must be time certain and suggests continuing this to September 15, 2010 at 7:15 PM Motion is made by Michael Hersey and seconded by Brian Florence to continue this to September 15, 2010 at 7:15 PM Vote: All in favor.

CONTINUED TO SEPTEMBER 15, 2010 AT 7:15 PM

Laura Shufelt calls a brief recess until 7:20 PM.

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Back in session at 7:20 PM.

7:20 PM Appeal No. 2010-003 - Continued Gregory Expand Nonconforming Structure & Accessory Use

Opened January 27, 2010, continued to March 10, 2010, April 14, 2010, May 12, 2010, June 9, 2010 and to July 14, 2010.

Continued to allow for the Board’s review of information submitted.

Members Assigned: William H. Newton, Brian Florence, Alex M. Rodolakis, James F. McGillen, Laura F. Shufelt - Associate Present: George T. Zevitas

Decision Due: September 20, 2010

Nathaniel A. Gregory has petitioned for a Special Permit pursuant to Section 240-93 B – Alteration or Expansion of a Pre-existing Nonconforming Structure and a Special Permit pursuant to Section 240-44 A – Accessory Uses. According to the application submitted, the petitioner seeks the “construction of a pier to replace a prior pier” on an accessory lot located across the road from the principal lot on which the single-family dwelling it serves is located. The principal residential lot is addressed 428 Wianno Avenue, Osterville, MA and is shown on Assessor’s Map 163 as Parcel 024. The accessory lot is addressed 320 East Bay Road, Osterville, MA and is shown on Assessor’s Map 163 as Parcel 020

An abutting neighbor to Vinagre asks about the process while the Board is in recess and is told that the attorney will be asking for a continuance. At 7: 20, Laura Shufelt calls the Gregory appeal. Attorney Michael Schulz is here on his father’s behalf who is the attorney for Gregory and indicates that they are requesting a continuance. Motion is made by Laura Shufelt and seconded by Michael Hersey to continue this to August 25, 2010 at 7:00 PM Vote: All in favor

CONTINUED TO AUGUST 25, 2010 AT 7:00 PM At 7:30 PM, Laura Shufelt calls the Vinagre appeal. 7:30 PM Appeal No. 2010-018 – Continued Vinagre

Variance for a Detached Family Aartment

Opened, May 12, 2010, continued June 9, 2010, and to July 14, 2010 at request of the applicant.

No Members Assigned, No Testimony Given

Staff Report and Application Materials previously distributed to the Board.

Decision Due: October 7, 2010

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Norberto H. Vinagre has applied for a Variance to Section 240-47.1. Family Apartments. The applicant seeks a variance to allow for an existing apartment unit that is located in a detached structure to be utilized as a family apartment. The subject property is shown on Assessor’s Map 209 as Parcel 071 and addressed 122 Old Stage Road, Centerville, MA. It is in a Residential D-1 and a Residential C Zoning Districts.

Attorney Michael Schulz is here representing the applicant and indicates that they are requesting a continuance as the applicant is not able to be here. A motion is made by Laura Shufelt and seconded by Brian Florence to continue this to August 11, 2010 at 7:25 PM Vote: All in favor CONTINUED TO AUGUST 11, 2010 AT 7:25 PM Chairman’s Discussion Laura Shufelt reminds everyone that they are subject to the new Open Meeting Laws which were sent to them in their packages. Motion is made by Michael Hersey and seconded by Brian Florence to adjourn. Vote: All in favor Meeting adjourned at 7:32 PM.

Documents

Zoning Board of Appeals 2008