Memo from Att Schulz 4 8 22 SCHULZ LAW OFFICES, LLC
THE SAMUEL ISHAM HOUSE
1340 MAIN STREET
OSTERVILLE, MASSACHUSETTS 02655-1542
TELEPHONE(508)426-0050
FACSIMILE(508)420-1536
ALBEHT J. SCHULZ MICHAEL F. SCHULZ
a schulzo.chulzlawoffices.com mschulz@schulzlawoffices.com
April 8, 2022
Jacob Dewey, Chair
Zoning Board of Appeals
Town of Barnstable
200 Main Street
Hyannis, Massachusetts 02601
Via Email: anna.briaham a town.barnstable.ma.us
Re: Robin A. Brown, Trustee of Robin A. Brown Living Trust and Marcia S. Brown,
Trustee of Marcia S. Brown Living Trust
250 Smoke Valley Road, Osterville, MA
Anneal Nos, 2022-014
Dear Chair Dewey and Members of the Board:
Robin A. Brown, Trustee of Robin A. Brown Living 'Trust and Marcia S. Brown, Trustee
of Marcia S. Brown Living "Trust ("Applicants"), the owners of 250 Smoke Valley Road,
Osterville, Massachusetts 02655 (the "Property"), have applied for a special permit under Appeal
No. 2022-014 to allow for transfer of the cooking element (kitchen) from the boat house to the
proposed pool house. This petition is scheduled for a hearing before the Zoning Board of
Appeals (the "Board") on the April 13, 2022 hearing agenda.
I. The Property
The property which is the subject of this petition is a single-family home located at 250
Smoke Valley Road in the Village of Osterville. The Property is shown on the Town of
Barnstable Assessor's Map 097 as Parcel 002 and is comprised of approximately 5.84 acres
situated within the RF Zoning District, Aquifer Protection District, and Resource Protection
Overlay District (RPOD). The Property is presently improved with a single-family dwelling, a
boat house and foundation for a pool house. See Exhibit 1. The existence of two dwelling units
at the Property is a preexisting nonconforming use as determined by the former Building
Commissioner and Chief Zoning Officer Tom Perry in 2012 prior to the Browns' redevelopment
of the Property, and confirmed with the issuance of the demolition/rebuild permit for the boat
house in 2017. See Exhibits 2 and 5. The structures at the Property are consistent with the rest
of the neighborhood in terms of size and setbacks on the lot. See Exhibit 3.
1 � Page
II. Permitting History and Proposed Pool House
The Applicants purchased the Property in 2011 which possessed two dwelling units (a
three bedroom main residence and two bedroom boathouse). A comprehensive ten (10)
bedroom innovative septic system was installed in 2014 to service the main residence, boat
j house and proposed pool house. See Exhibit 4. The boat house was demolished and rebuilt in
2017 under Permit#16-1247 and 1248. See Exhibit 5. The pool house foundation was installed
in 2017, but due to the contractor (Dunhill) filing for bankruptcy during construction, the pool
house project was put on hold. See Exhibit 6.
Prior to appearing before the Zoning Board of Appeals on the present petition for the
proposed pool house,the Applicants received approval from the Conservation Commission on
September 8, 2021 reflecting the revised footprint. As shown on the site plan prepared by
Sullivan Engineering & Consulting, Inc. (Sullivan) and elevations prepared by Walter Yarosh
(Yarosh), the Applicants are proposing to construct a pool house, which plans reflect the
permanent transfer of the existing cooking element (kitchen) from the boat house to the pool
house. See Exhibits 1 and 7. Due to the transfer of the cooking element (kitchen) from the
boat house to the proposed pool house, the Building Commissioner referred the Applicants to
this Board for an alteration/extension of a preexisting nonconforming use.
III. Appeal No. 2022-014 (Alteration/Extension)
Under G.L. c. 40A § 6, pre-existing nonconforming uses may be extended or altered,
provided, that no such extension or alteration shall be permitted unless there is a finding by the
permit granting authority designated by the ordinance or by-law that the change, extension or
alteration is not substantially more detrimental than the existing nonconforming use to the
neighborhood. See Exhibit 8 (annendin-a M.G.L. c. 40A & 6 (2022)). Based on the following
facts, the Applicants respectfully submit that Appeal 2022-014 fulfills the spirit and intent of the
Ordinance and satisfies the requirements for the issuance of a special permit by the Board:
[1] The Town of Barnstable Zoning Board of Appeals is the special permit
granting authority designated by the ordinance or bylaw. Pursuant to § 240-125 the Board is
designated by the ordinance to issue special permits.
[2] The change, extension or alteration is not substantially more detrimental
than the existing nonconforming use to the neighborhood. The Applicants respectfully
submit that permanently removing the kitchen from the boat house and transferring it to the pool
house is not substantially more detrimental than the existing nonconforming use to the
neighborhood because the number of dwelling units will remain the same (2) at the Property.
Additionally, the nature of the use of the proposed pool house will remain the same as the current
boat house, which is purely for overflow guest use while the Browns are in residence at the
Properly. The nature of the use is important because it remains incidental and subordinate to the
principal residence. Finally, the proposed alteration/extension has the full support of the
neighborhood as evidenced by the letters of support from the Staniars (236 Smoke Valley Road),
211' age
the Callas (300 Smoke Valley Road), the Buckleys (235 Smoke Valley Road) and the Condrins
(270 Smoke Valley Road). See Exhibit 9.
IV. Appeal No. 2022-014 (to be considered in the alternative if needed)
In the alternative, the Applicants respectfully submit that Appeal 2022-014 fulfills the
spirit and intent of the Ordinance and satisfies the requirements for the issuance of a special
permit by the Board under § 240-9313:
[11 The Application falls within the category specifically excepted in the
ordinance for the grant of a special permit.
Section 240-94B of the ordinance allows for the issuance of a special permit provided the
Board makes the required findings set forth in said section.
[21 The proposal is not substantially more detrimental to the neighborhood than
the existing dwelling.
See Section III[2], Supra.
[31 §240-9413 - Expansion of a Nonconforming Use
[a] The proposed expansion of the use shall conform to the established
setbacks for the zoning district in which it is located. As shown on the plans prepared by
Sullivan and Yarosh, the proposed pool house meets the front/side/rear setbacks for the RF
District. See Exhibits 1 and 7.
[b] The proposed use and expansion is on the same lot as occupied by the
nonconforming use on the date it became nonconforming. The proposed use and expansion
are located on the same lot, Lot 28 on Land Court Plan 5725-13, which has not changed since it
was created. See Exhibit 1.
[c] The proposed new use is not expanded beyond the zoning district in
existence on the date it became nonconforming. The use (second dwelling unit) remains on
the same lot (Lot 28, LCP 5725) and has not expanded beyond the zoning district on the date it
became nonconforming.
Conclusion
Based on the foregoing facts, the Applicants respectfully request that the Board grant the
special permit as it fulfills the spirit and intent of the ordinance without substantial detriment to
the public good or neighborhood affected.
3 1 P a g e
As always, please do not hesitate to contact my office with any questions. Thank you for
your consideration in the foregoing,
Very truly yours
M chael F. Schulz
Schulz Law Offices, LLC
cc: Robin and Marcia Brown
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Michael Schulz
From: Robin Brown <robin brown @spotonventures.com>
Sent: Thursday, February 24, 2022 4:19 PM
To: John O'Dea
Cc: Michael Schulz, w.yarosh@yarosharchitects.com
Subject: FW: 250 Smoke Valley Road, Osterville
Attachments: MX-2300N 20120627_154224.pdf,ATT00001.htm
From: Robin A Brown
Sent: Thursday,June 28, 2012 8:41 AM
To: Brown Marcia <marciabrown24@comcast.net>
Subject: Fwd: 250 Smoke Valley Road, Osterville
Sent from my !Phone
Robin Brown
Spoton Ventures
Cell 617 775 6789
Begin forwarded message:
From: A. M. Wilson Associates <amwilsonassocRamwilsonassociates.com>
Date:June 27, 2012 4:36:10 PM EDT
To: Robin A Brown <robinbrown(@spotonventures.com>
Subject: 250 Smoke Valley Road, Osterville
Robin—
Attached is a copy of septic/site plan for the boathouse and guesthouse.
A couple of issues need to be finalized.
First, do you want to provide a set of stairs down the slope from the house to the guesthouse,
or do you just want to use the existing path?
Second, I've just met with the Building Commissioner. He said in light of some recent case
he has decided to snake "use" be the determinative factor in what is a kitchen, rather than
the appliance list. Consequently, if the building plans show nothing resembling the
skeleton of a kitchen—no appliances, sink or cabinets—he will give you a permit for the
second guesthouse without zoning relief. He doesn't care how many bedrooms, bathrooms,
living rooms or other non-kitchen spaces there are.
If you want a wet bar or kitchenette in the new guesthouse he will send the project to the
ZBA as a Special Permit request for an expansion of a pre-existing nonconforming use as the
site currently has two dwelling units.
1
As to the boathouse/cottage, he is fine with elevating the structure, adding a second story,
keeping/improving the kitchen and adding bedrooms or bathrooms so long as we keep the
same footprint excepting access stairs. He will not require any zoning relief for that work.
If you want to build the new guesthouse now and decide on the kitchen later, the space
could be shown as a laundry, which would allow you a sink, 220 electric service and
cabinets so that you wouldn't need to replumb or rewire if you wanted to go the ZBA later to
change the space to a kitchen.
I need to know how you want to do this because if you need zoning relief I need to file with
the ZBA at the same time as we file with Con Com.
-Arlene
A. M.Wilson Associates, Inc.
20 Rascally Rabbit Road-Unit 3
Marstons Mills, MA 02648
508-420-9792
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Health Division �,, } / NMp� Date Issued
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Lot Size_ Z•Zk Acrcll� Grandfathered: ❑Yes ❑No If yes, attach supporting documentation.
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Dwelling Type: Single Family Two Family ❑ Multi-Family(#units)
Age of Existing Structure Historic House: Q Yesjt No On Old King's Highway: ❑Yes Q No
Basement Typo: Q Full Crawl Q Walkout ❑Other
Q Basement Flnished Area(sq,ft.) Basement Unfinished Area(sq.ft) �
0 Number of Baths: Full: existing_._new Half:existing I new U
Number of Bedrooms: 1 existing Z,now
Total Room Count(not including baths):existing __tJ_new_4,__/__First Floor Room Count
l ` Heat Type and Fuels ❑Oil ❑Electric ❑Other
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Current Use 17 f` ,.1Tr& Proposed Use 2_< YY f
-APPLICANT INFORMATION
11 ` 11 (BUILDER OR HOMEOWNER)
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Basement Finished Area(sq.ft.) Basement Unfinished Area(sq.ft) 14
Number of of Baths: Full:existing_,t� new Half:existing aJ I M now
Number of Bedrooms', 0 lA- existing—now
Total Room Count(not Including baths):existing _41—nio-_First Floor Room Count
Heat Type and Fuel: ❑Gas ❑Oil ❑Electric r❑Other
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Zoning Board of Appeals Authorization ❑ Appeal# 1 Recorded❑
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Current Use 111� Proposed Use o.i,,
APPLICANT INFORMATION 1
A, (BUILDER OR HOMEOWNER)
Name N,6I.J�.L Telephone Number ^ri n it, �1 2-0 - 9
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ALLCONSTRUC I N BRIS RESULTING FROM THIS PROJECT WILL BE TAKEN TO
SIGNATUR DATF
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it
III Page
i
ZONING 40A § 6
3 6. Existing structures, uses, or permits; certain subdivision plans; appli-
cation of chapter
Except as hereinafter provided, a zoning ordinance or by-law shall not apply
to structures or uses lawfully in existence or lawfully begun, or to a building or
special permit issued before the first publication of notice of the public hearing
on such ordinance or by-law required by section five, but shall apply to any
change or substantial extension of such use, to a building or special permit
issued after the first notice of said public hearing, to any reconstruction,
extension or structural change of such structure and to any alteration of a
structure begun after the first notice of said public hearing to provide for its use
for a substantially different purpose or for the same purpose in a substantially
different manner or to a substantially greater extent except where alteration, W,
reconstruction, extension or structural change to a single or two-family residen-
tial structure does not increase the nonconforming nature of said structure.
Pre-existing nonconforming structures or uses inay be extended or altered,
t- provided, that no such extension or alteration shall be permitted unless there is
a finding by the permit granting authority or by the special permit granting
authority designated by ordinance or by-law that such change extension or
alteration shall not be substantially more detrimental than the existing noncon-
forming use to the neighborhood. This section shall not apply to establish- t
pp nnents which display live nudity for their patrons, as defined in section nine A,
f. adult bookstores, adult motion picture theaters, adult paraphernalia shops, or
° adult video stores subject to the provisions of section nine A.
t.
1 A zoning ordinance or by-law shall provide that construction or operations f
under a building or special permit shall conform to any subsequent amendment
j of the ordinance or by-law unless the use or construction is commenced within
i a period of not more than 12 months after the issuance of the permit and in
' cases involving construction, unless such construction is continued through to
t completion as continuously and expeditiously as is reasonable.
A zoning ordinance or by-law may define and regulate nonconforming uses
and structures abandoned or not used for a period of two years or more.
' Any increase in area, frontage, width, yard, or depth requirements of a
zoning ordinance or by-law shall not apply to a lot for single and two-family
residential use which at the tune of recording or endorsement, whichever
occurs sooner was not held in common ownership with any adjoining land,
fconformed to then existing requirements and had less than the proposed
requirement but at least five thousand square feet of area and fifty feet of
frontage. Any increase in area, frontage, width, yard or depth requirement of a
f zoning ordinance or by-law shall not apply for a period of five years from its a
I effective date or for five years after January first, nineteen hundred and
iseventy-six, whichever is later, to a lot for single and two family residential use, .
e provided the plan for such lot was recorded or endorsed and such lot was held ;
jin common ownership with any adjoining land and conformed to the existing 'a
i, zoning requirements as of January first, nineteen hundred and seventy-six, and
117
i
i �4t
40A § 6 ZONING Zdl
R
had less area, frontage, width, yard or depth requirements than the newlyikd'
effective zoning requirements but contained at least seven thousand five hun- tZ i S r.
dred square feet of area and seventy-five feet of frontage, and provided that said dils „ .
five year period does not commence prior to January first, nineteen hundred salt(;
and seventy-six, and provided further that the provisions of this sentence shall of, A
not apply to more than three of such adjoining lots held in common ownership. of 914,
The provisions of this paragraph shall not be construed to prohibit a lot being ""°
built upon, if at the time of the building, building upon such lot is not igsikt�
prohibited by the zoning ordinances or by-laws in effect in a city or town.
- leteiik��F., .
- If a definitive plan, or a preliminary plan followed within seven months by a
definitive plan, is submitted to a planning board for approval under the yllan d..
subdivision control law, and written notice of such submission has been given stic#i n
to the city or town clerk before the effective date of ordinance or by-law, the Of"k"".
land shown on such plan shall be governed by the applicable provisions of the ae '_•»
_ zoning ordinance or by-law, if any, in effect at the time of the first such but,
submission while such or an P l plans are beingprocessed under the subdivision strct-
P
d fed`
control law, and, if such definitive plan or an amendment thereof is finally A �
roved, for eight ears from the date of the endorsement of such approval
"Glgk 5
<PP ht years '
except in the case where such plan was submitted or submitted and approved
before January first, nineteen hundred and seventy-six, for seven years from the Frill
date of the endorsement of such approval. Whether such period is eight years
or seven years, it shall be extended by a period equal to the time which a city or py' -
town imposes or has imposed upon it by a state, a federal agency or a court, a I sdbs@I
moratorium on construction, the issuance of permits or utility connections.
scrta�jl ,
When a plan referred to in section eighty-one P of chapter forty-one has beenuyn ;i
submitted to a planning board and written notice of such submission has been 6mctyca"'
given to the city or town clerk, the use of the land shown on such plan shall be filet-1A_31"
governed by applicable provisions of the zoning ordinance or by-law in effect at 'rIt
gtetl" lj,,
- the time of the submission of such plan while such plan is being processed fif,94�a
under the subdivision control law including the time required to pursue or gm ,ytpt:z
await the determination of an appeal referred to in said section, and fora
period of three years from the date of endorsement by the planning board that 9i i1+il3� ,
approval under the subdivision control law is not required, or words of similar tlw yfyy `.-
import. Milo"
provli.'dl 'R
Disapproval of a plan shall not serve to terminate any rights which shall have nsorCili;, . _
3ti
accrued under the provisions of this section, provided an appeal from the
andt�4 9R-:
decision disapproving said plan is made under applicable provisions of law. in tlt(f flu
Such appeal shall stay, pending either(1) the conclusion of voluntary mediation add
roccedi u s and the filing of a written a reemeut for judgment or stipulation of P g g g J g P
dismissal, or (2) the entry of an order or decree of a court of final jurisdiction, sS c000si6fi
the applicability to land shown on said plan of the provisions of any zoning Atifl
71
ordinance or by-law which became effective after the date of submission of the t° 616 1'
plan first submitted, together with time required to comply with any such nast' K.
dil�,(n`1 tf
agreement or with the terms of any order or decree of the court.
118
µ�4
il
_ ji-
L G ZONING 40A § 6
y in the event that any lot shown on a plan endorsed by the planning board is
1- the subject matter of any appeal or any litigation, the exemptive provisions of
d this section shall be extended for a period equal to that from the date of filing of
d said appeal or the commencement of litigation, whichever is earlier, to the date
11 of final disposition thereof, provided final adjudication is in favor of the owner
3, of said lot.
g The record owner of the land shall have the right, at any time, by an
A instrument duly recorded in the registry of deeds for the district in which the
1 land lies, to waive the provisions of this section, in which case the ordinance or
a by-law then or thereafter in effect shall apply. The submission of an amended
1e plan or of a further subdivision of all or part of the land shall not constitute
11 j such a waiver, nor shall it have the effect of further extending the applicability
e of the ordinance or by-law that was extended by the original submission, but, if
1e accompanied by the waiver described above, shall have the effect of extending,
h but only to extent aforesaid, the ordinance or by-law made then applicable by
,n such waiver.
ly Added by St.1975, c. 808, § 3. Amended by St.1977, c. 829, § 3D; St.1979, c. 106;
d St.1982, c. 185; St.1985, c. 494; S1.1986, c. 557, § 54; St.1994, c. 60, § 67; St.1996, c.
u 345, § 1; St.2000, c. 29; St.2000, c. 232; St.2016, c. 219, § 29, off. Aug. 10, 2016.
le Historical and Statutory Notes
rs
St.1977, c 829, § 3D, an emergency act, ap- St.2000, c. 29, approved Feb. 17, 2000,in the
lr proved Dec. 20, 1977, in the second paragraph, first paragraph, in the third sentence, deleted -
a substituted "more"for"less", "billboards, signs and other advertising devices
S. S1.1979, c. 106, in the fourth paragraph, in- subject to the provisions of sections twenty--runes
ser[ed the second sentence, through thirty-three, inclusive, of chapter nine-
ty-three, and to chapter ninety-three D or to" -
'n St.1979, c. 106,was approved April 19, 1979. following"shall not apply to".
;p ]3rnergency declaration by the Governor was St.2000, c. 232, approved Aug. 10, 2000, in
filed April 20, 1979,
)e the seventh paragraph, in the (first sentence,
St.1982, c. 185, in the fifth paragraph, substi- deleted "the subdivision control"following "ap- )
dtoted"eight years"for"five years". plicable provisions of"; in the second sentence,
St.1982, c. 185, was approved June 28, 1982. inserted "either (1) the conclusion of voluntary
Jr Emergency decimation by the Governor was mediation proceedings and the filing of a writ-
a filed on the same dale. ten agreement for judgment or stipulation of
at St.1985, c. 494, approved Nov. ]3, 1985, in dismissal, or (2) the entry of following "pend-
the fifth paragraph, added the second sentence. ing", and added ", together with time required ��.
ar to comply with any such agreement or with the
St.1986, c 557, § 54, an emergency act, ap- terms of any order or decree of the court"
proved Dec. 8, 1986, in the sixth paragraph, St.2016, c. 219, § 29, an emergency act, ap- _
Je inserted "in"preceding"section"' proved Aug. 10,2016, effective Aug. 10,2016, in
St.1994, c. 60, § 67, approved July 10, 1994, the second paragraph, substituted "12 months" j4
he. and by§ 3l5 madc effective as of July 1, 1994, for"six months".
W. in the first paragraph, in the third sentence, @.
Al added "or to adult bookstores, adult motion Prior Laws:
picture theaters, adult paraphernalia shops, or St.1920,c. 601,§§ 7, B.
of adult video stores subject to the provisions of St.1925,c, 116,§ 3.
n, sect ion nine A". St.192'7,c. 247. y
lg St.1996, c. 345, § 1, approved Aug. 9, 1996, G.L.1932 (Ter.Ed.),c.40,§§ 29,30A. l
Ile in the first paragraph, in the third sentence, G.L. c. 40, §§ 26, 28, as added by St.]933, c. c
ill inserted "establishments which display live nu- 269,§ 1.
dity for their patrons, as defined in section nine St.1941,c. 176.
A" S1.1952,c.438, y
dt
119
6�
121Page
Michael Schulz
From: Brigham, Anna <Anna.Brigham@town.barnstable.ma.us>
Sent: Thursday, March 31, 2022 8:09 AM
To: Michael Schulz
Subject: FW: Brown et al ZBA Meeting, 4/13/22, Appeal # 2022-014
Good morning Michael,
Please see below.
�gtLOPM¢,yr
�� o, Anna Brigham
Principal Planner I Planning&Development
Town of Barnstable 136/ Main SU<°et I Hyannis, MA 02601
anna.brieha m(@town.barnstable.ma,us
���NOF aaaus�a�~�. I�SU8-R6>-46t{
Website I Business Barnstable I HyArts I Barnstable(Forum
From: gwstaniar@aol.com [mailto:gwstaniar@aol.com]
Sent: Wednesday, March 30, 2022 10:28 PM
To: Brigham, Anna
Cc: scottstaniar@gmail.com; ksomerville@hembar.com
Subject: Brown et al ZBA Meeting, 4/13/22, Appeal # 2022-014
Dear ZBA of Barnstable:
Regarding the above referenced Appeal # 2022-014, the trustee and beneficiaries of the Staniar Osterville Childrens
Trust enthusiastically support the kitchen request of Robin and Marcia Brown as outlined in your written appeal #2022-
014 referenced above.
Sincerely, G. Wade and Mary C. Staniar, representing the 9,92 acre "Staniar" property lying to the north of the Brown
property at 250 Smoke Valley Rd.
The address of the Staniar property is 236 Smoke Valley Road, Osterville, MA 02655
Should you have any questions, please address them to me, G. Wade Staniar at 508-479-9508.
With appreciation and thanks for all you do. Wade
CAUTION:This email originated from outside of the Town of Barnstable! Do not click links, open
attachments or reply, unless you recognize the sender's email address and know the content is safe!
t
March 31, 2022
Jacob Dewey, Chair
Zoning Board of Appeals
Town of Barnstable
367 Main St,
Hyannis, Ma. 02601
Re: 250 Smoke Valley Rd. Osterville, Ma.
Dear Chair Dewey,
I am writing to express my full support for the Brown's application for a
special permit to transfer the kitchen, presently located in the boat house, to the
proposed pool house pursuant to the plans prepared by architect Walter Yarosh.
Having reviewed the plans, I believe the renovations are in keeping with the
neighborhood and have my approval.
;. Thank You for your consideration. If you have any questions, please do not
# hesitate to contact me atjcallascyg@aol.com.
SincereI,
John Callas
i
300 Smoke Valley Rd, Osterville, Ma. 02655
Cc: Marcia Brown
2 3-2 2
Wl l'r P Toa n"frlr.r rer;rt<k t-Viw t,
I fir,c w Ov U%'at ti:lk uh)k
Ef
Sou Irma jn� q4%taion,,p5 aic do rok to saujf%vt:
ii—A o C4
J.PAUL& SUSAN CONDRIN,III
March 29, 2022
Jacob Dewey,Chair
Zoning Board of Appeals
Town of Barnstable
367 Main Street
Hyannis, Massachusetts 02601
Re: 250 Smoke Valley Road, Osterville, Mamaehusetts
Dear Chair Dewey:
The Browns' application for a special permit in transferring the kitchen presently located
in the boat house to the proposed pool house pursuant to the plans prepared by architect
Walter Yarosh is currently raider review and we are writing to express our full support.
We believe the renovations are excellent for the neighborhood and have been impressed
with the quality of the Brown's previous projects which have been a welcome addition to
the area.. Thank you for your consideration.
If you have any questions,please do not hesitate to contact me.
Sincerely,
270 Smoke Valley Road
Osteiville,Mtn 02655
617.285,6780 / PCONDRINCO)GMAII-COM