Draft REGULATORY AGREEMENT 442 Main Street_5/4/2022
REGULATORY AGREEMENT
S&C REALTY INVESTMENT CO., LLC
442 MAIN STREET
HYANNIS, MA 02601
This Regulatory Agreement ("Agreement") is entered into by and between the
applicant, S&C Realty Investment Co., LLC (the "Applicant" and/or "Developer"),
a Massachusetts limited liability company with a mailing address of 169 Main Street,
Stoneham, MA 02180, and the Town of Barnstable (the "Town"), a municipal
corporation with a mailing address of 367 Main Street, Hyannis, MA 02601, on this
____ day of __________, 2022, pursuant to Section 240-24.1 of the Barnstable
Zoning Ordinance and Chapter 168 of the Code of the Town of Barnstable.
WITNESSETH:
WHEREAS, this Agreement shall establish the following: permitted uses, densities,
signage, and traffic within the proposed Redevelopment (as defined herein), the
duration of this Agreement, and any other terms and conditions mutually agreed upon
between the Applicant and the Town;
WHEREAS, pursuant to section 168-3 of the Code of the Town of Barnstable, the Town of
Barnstable is authorized to enter into a Regulatory Agreement with a qualified applicant within
the Downtown Implementation District as the Town's Local Comprehensive Plan has been
certified by the Cape Cod Commission as consistent with the Regional Policy Plan and said
certification has not been revoked, and the Town has adopted the enabling regulation contained
in § 168-1 through 168-10;
WHEREAS, Developer has an agreement to purchase the property located at 442 Main Street,
Hyannis, Massachusetts consisting of 35,531± square feet, shown on Town of Barnstable
Assessor’s Map 309 as Parcel 223, the parcel is referred to herein as “the Property”;
WHEREAS, the property is developed with a two-story building consisting of
approximately 11,736 square feet, formerly used as a bank with a two lane drive -
through;
WHEREAS, the Property borders Main Street to the south, Winter Street to the west,
and North Street to the north and has access to Winter Street and North Street;
WHEREAS, the Property consists of approximately 35,531 square feet of land and is
located in the Hyannis Village Business District (HVB) zoning district; the Hyannis Main
Street Waterfront Historic District; and the Aquifer Protection (AP) overlay district.
WHEREAS, Developer proposes to: redevelop the property by enclosing the existing drive-
through; creating a food service establishment/coffee shop restaurant in the back of the building
with a new drive-through window; create a patio area with seating for customers in the alley
along the easterly side of the building; maintain the first floor retail area in the front of the building
for commercial tenants; add five (5) residential apartments on the second floor; reconfigure the
parking lot; add sidewalk to connect the sidewalk along Winter Street to the sidewalk along
North Street; and add new lighting, landscaping, and signage, all as shown on the plans
submitted and attached hereto as Exhibit A (hereafter, the “Redevelopment Plans”, and such
proposed site work, new buildings and improvements all as shown on the Redevelopment
Plans are hereafter referred to herein, collectively, as the “Redevelopment”);
WHEREAS, the Redevelopment is consistent with the Town of Barnstable's Design
and Infrastructure Plan in that the proposed project provides a sidewalk which
connects the existing sidewalks onto Winter Street and North Street; improves curb
cuts along Winter Street and North Street; and provides access from Main Street to
the North Street parking lot; the scale, placement, materials, design, and details of
the re-developed building comply with the Design and Infrastructure Plan
guidelines; and the project provides the infrastructure necessary to support the
project.
WHEREAS, the Town and Applicant desire to set forth in this Agreement their
respective understandings and agreements with regard to the Redevelopment;
WHEREAS, the Applicant is willing to commit to the reuse of the Property in
accordance with this Agreement and desires to have a reasonable amount of
flexibility to carry out the reuse and therefore considers this Agreement to be in its
best interests;
WHEREAS, this Agreement shall vest land use development rights in the property for the
duration of the agreement, and such rights shall not be subject to subsequent changes in
local development ordinances, with the exception of changes necessary to protect the public
health, safety or welfare;
WHEREAS, the Redevelopment will not require regulatory review under the Massachusetts
Environmental Policy Act (MEPA);
WHEREAS, the Property is located in the Downtown Hyannis Growth Incentive
Zone (GIZ) as originally approved by the Cape Cod Commission by decision dated
April 6, 2006 and re-designated by decision dated April 19, 2018, and as authorized
by Barnstable County Ordinance 2005-13, as amended by Barnstable County
Ordinance 10-19, 14-05, 17-11, and 18-11, Chapter G, Growth Incentive Zone
Regulations of the Cape Cod Commission Regulations of General Application;
WHEREAS, the Redevelopment is not subject to review by the Cape Cod
Commission as a Development of Regional Impact due to its location in the GIZ and
due to the adoption of Barnstable County Ordinance 2006-06 establishing a
cumulative development threshold within the GIZ, under which this Redevelopment
may proceed;
WHEREAS, the Redevelopment has undergone formal site plan review and the
Town of Barnstable Site Plan Review Committee determined the Redevelopment
Plans approvable by decision dated May 10, 2021, and Developer shall submit final
plans consistent with the terms and conditions contained in this Agreement to the
Building Commissioner to determine whether any modifications to the Site Plan
Review approval are necessary prior to any building permits being issued for the
Redevelopment;
WHEREAS, the Redevelopment has undergone formal review by the Hyannis Main Street
Waterfront Historic District Committee on September 15, 2021 and October 6, 2021 and
received a Certificate of Appropriateness for the proposed exterior renovations and addition
to the building and a Certificate of Appropriateness for business signage.
WHEREAS, the Redevelopment proposal has undergone a public hearing opened on
___________ and closed on ___________ on the Agreement application and
received an affirmative majority vote from the Planning Board on __________, 2022;
WHEREAS, the Redevelopment proposal has undergone a public hearing opened on
__________ and closed on __________ on the Agreement application before the
Barnstable Town Council and has received a two-thirds vote approving the
Agreement on ______________, 2022;
WHEREAS, this Agreement authorizes only the uses, intensity of uses, dimensions
and signage specified herein. Any substantial deviation from the authorized ter ms of
this Agreement shall require review by the Town Council and Planning Board
pursuant to Chapter 168-10 of the Code;
NOW, THEREFORE, in consideration of the agreements and covenants set forth
hereinafter, and for other good and valuable consideration, the receipt and sufficiency
of which each of the parties hereby acknowledge to each other, the Applicant and
Town do enter into this Agreement, and hereby agree and covenant as follows:
1. Description of Existing and Proposed Conditions:
A. Existing Conditions
The Property is developed as follows:
• A two-story building consisting of approximately 11,376 square feet,
formerly used as a bank;
• The Property contains two curb-cuts, one off of North Street and one onto
Winter Street;
• No landscaping;
• A two-lane drive-through; and
• A parking lot with 35 spaces.
B. Proposed Redevelopment
The proposed Redevelopment involves development as follows and as
shown on the Redevelopment Plans listed below:
• Adding a 2,524 square foot two-story addition to the North Elevation of the
building;
• The second floor will contain two (2) two-bedroom apartments and three (3)
one-bedroom apartments;
• The new addition will be brick matching as nearly as possible the existing
brick (“Old Port”);
• Install new Anderson, white vinyl windows to match as nearly as
possible the existing windows in appearance;
• Replace existing wood shutters with vinyl shutters to match as nearly
as possible the existing appearance;
• The existing entrance way off of North Street and exit onto Winter
Street will be reconfigured;
• Significant landscaping and vegetation improvements;
• Architectural and site design in accordance with the Design and
Infrastructure Plans;
• Construction of a sidewalk connecting the existing sidewalks on
Winter Street and North Street;
• Drive-through menu, directional signage, and a free-standing monument
based sign (with brick base to match existing building brick) located next to
the entrance along North Street;
• A total of 33 paved parking spaces.
2. The Developer agrees to construct the Redevelopment on the Property in
accordance with the Redevelopment Plans which are submitted herewith and
which are entitled as follows:
a. “Proposed First Floor Plan Date: 10/06/21, Job Location Hyannis, MA 442 Main
St. Hyannis, MA” drawn by James D. Smith Architects, Sheet A-1.0;
b. “Proposed Second Floor Plan Date: 10/06/21, Job Location Hyannis, MA 442 Main
St.” drawn by James D. Smith Architects, Sheet A-2.0;
c. “Proposed Elevations; Signage Information Plan Date: 10/06/2021, Job Location
Hyannis, MA 442 Main St.” drawn by James D. Smith Architects, Sheet A-3.0;
d. “Existing Conditions Plan, Prepared For Couto Management Group, LLC Date:
March 4, 2021” drawn by Baxter Nye Engineering & Surveying, Sheet C1.0;
e. “Site Layout Plan, Prepared For Couto Management Group, LLC Date: March 4,
2021” drawn by Baxter Nye Engineering & Surveying, Sheet C2.0;
f. “Grading, Drainage & Utility Plan, Prepared For Couto Management Group, LLC
Date: March 4, 2021” drawn by Baxter Nye Engineering & Surveying, Sheet C3.0;
g. “Details Plan, Prepared For Couto Management Group, LLC Date: March 4, 2021”
drawn by Baxter Nye Engineering & Surveying, Sheet C4.0 and C4.1; and
h. “General Notes & Legend Plan, Prepared For Couto Management Group, LLC
Date: March 4, 2021” drawn by Baxter Nye Engineering & Surveying, Sheet C5.0.
3. The Redevelopment provides, without limitation, the following multi-modal
transportation, economic, place-making, site design, traffic safety, and community
benefits:
a. Redevelopment and significantly improved aesthetics at a historic, Main
Street, Hyannis property.
b. Substantially increased landscaping.
c. Construction of a sidewalk along the Property’s frontage along Winter
Street and North Street connecting the existing sidewalks in accordance
with the Department of Public Works specifications and review and
approval by the Town Engineer.
d. Safe and well marked interior pedestrian connections within the
Property.
e. Exterior site lighting improvements, including use of LED lights.
f. Addition of five (5) new apartments on Main Street, Hyannis.
g. Improved access to and from Main Street to the North Street parking lots.
4. Outdoor storage is prohibited including storage in trailers, containers, trucks or
other storage units. This prohibition shall be prominently noted on the final
approved site plans.
5. The Developer currently owns and operates a coffee shop with drive through at the address 149
North Street Map 309 Parcel 226-001. The Developer agrees to abandon the drive-through use at
149 North Street within one year of receipt of an occupancy permit for the coffee shop with drive-
through at the subject property.
6. Prior to an occupancy permit granted, the Developer shall grant a public access easement from the
North Street parking lot to Main Street between the subject property and 438 Main Street. Said
easement shall be reviewed to form by the Town Attorney and shall be granted in perpetuity and
recorded at the Barnstable Registry of Deeds by the Developer.
7. This Agreement shall run with the land, and all of the terms, conditions, and
obligations contained in this Agreement shall be binding on any successor or assignor
of the Applicant.
8. Prior to the issuance of the first building permit, the Developer shall provide a
letter of credit or cash escrow in an amount equivalent to 150% of the total
scope of the landscape plan proposed. Said Letter of Credit or cash to be
expended on the replacement of landscape materials if such replacement
becomes necessary. The letter of credit or cash escrow shall be approved by
the Planning and Development Director, said letter of credit or cash escrow to
be expended to replace landscape materials if such replacement becomes
necessary because of the failure of Developer or its tenants to do so. An
“acceptable” letter of credit is a letter of credit issued by a bank incorporated in
the Commonwealth of Massachusetts or currently licensed to do business in the
Commonwealth, and having at the time of issue of the letter of credit a Standard &
Poor (“S&P”) Rating of "BBB+" or better and/or a Bankrate.com rating of 4-star or
better. Further, an acceptable letter of credit shall be approved as to issuer by the
Treasurer of the Town of Barnstable and as to form by the Office of the Town
Attorney. Any unexpended portion of said letter of credit or cash escrow shall be
released by the Planning Board to the Developer or its successor(s), as directed by
the Developer, after three years from the date of the landscape installation, such date
to be determined by the Building Commissioner, upon the request of the Developer.
9. Developer is responsible for obtaining all applicable permits and licenses.
10. No Certificate of Occupancy shall be issued until all conditions of this Agreement
have been met and Design and Infrastructure Plan approval has been issued.
This Agreement is transferable to a person or entity other than the Applicant
(hereafter, the "Transferee") with prior written notice to the Town Manager and
contingent upon the Applicant being in compliance with all the requirements of
this Agreement. However, no such notice to the Town shall be effective unless it
includes a written acknowledgement by the Transferee that they have read this
Regulatory Agreement, and any amendments thereto, and they agree to be bound
by the terms and conditions set forth herein, in which event after such
assignment the transferor shall be relieved of liability from and after the date of
transfer. Upon receipt of such written notice of transfer, and subject to a
determination by the Town Manager that that the Applicant is in compliance
with all the then applicable requirements of the Agreement, the Transferee and
the Town Manager shall execute a minor amendment of this Regulatory
Agreement acknowledging the Transferee is a signatory of this Regulatory
Agreement, agreeing to be bound by the terms and conditions set forth herein,
and any subsequent amendments hereto, and assuming liability as of the date of
transfer. No Planning Board or Town Council approval is required for such a
minor amendment acknowledging such a transfer in ownership.
11. The development rights granted hereunder shall be exercised and development
permits needed to commence construction may be obtained hereunder for a period
of five (5) years from the effective date of this Agreement, provided, however, that
prior to the expiration of said five year period, the Developer may request an
extension to obtain development permits necessary to commence construction, said
extension shall not exceed two years. Upon receipt of necessary development
permits, construction shall proceed continuously and expeditiously, but in no case
shall construction exceed two years from receipt of necessary development permits.
In the event that this Agreement and/or any necessary development permits for the
Project are appealed, the timeframes set forth in this section shall be tolled for the
length of any such appeals.
12. Construction and demolition debris from the Project shall be removed and reused
or recycled to the maximum extent possible.
13. No uses shall use, store, generate, treat or dispose of hazardous waste or
hazardous materials and shall not generate hazardous waste as defined in the
Massachusetts Hazardous Waste Regulations, 310 CMR Section 30.353, except
in compliance with all applicable laws.
14. To the extent that the Redevelopment Plans referenced in this Agreement do not
depict all the findings and conditions set forth in this Agreement, revised plans
and/or notations shall be provided in the final site plan. The Redevelopment shall
remain in substantial conformance with the Site Plan Review approval dated May 10,
2021 and all conditions thereof and any modifications thereto as reflected in the final
approved site plan.
15. Upon completion of all work, a registered engineer or land surveyor shall su bmit
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 (Barnstable Code Section 240-104(G)). This document
shall be submitted before the issuance of the final certificate of occupancy.
16. The term of this Agreement shall be five (5) years from the effective date of the
Agreement (herein, the "Term"), and the development rights authorized herein
must be exercised prior to expiration of the Term or this Agreement shall be null
and void, subject to the potential tolling due to litigation referenced in paragraph
12. Once the development rights authorized herein have been timely exercised,
all terms and conditions of this Agreement shall remain in effect until the
Property is no longer used in accordance with the Redevelopment Plans.
17. The Town hereby grants the following waivers from the Town of Barnstable
Zoning Ordinance for the Redevelopment, as requested by the Developer:
a. Section 240-24. 1.11(A)(3), Site Development Standard prohibits drive-through
windows in the Hyannis Village Zoning Districts.
i. Redevelopment proposes one drive through window for restaurant use.
b. Section 240-24.1.3(D)(2)(a) and Section 240-56, Schedule of Parking Spaces.
ii. Redevelopment proposes 33 parking spaces and Ordinance requires 35 parking
spaces.
c. Sections 240-24.1.11(A)(6); 240-71; and 240-65 Signage.
iii. Section 240-71A limits maximum height of all signs on buildings to 12 feet.
The project proposes two signs on the South elevation of the building (“Tenant Sign”
and “Dunkin” sign) and one sign on the North elevation (“DD” sign) which exceed
the height limitation.
iv. Section 240-71B limits the maximum square footage of all signs to the lesser of
50 square feet or 10% of the building face. The project proposes 69.57 square feet
of signage.
v. Section 240-65A limits each business to two signs. The project proposes seven
(7) signs for the Dunkin store as follows:
Monument Sign 12.00 sq. ft. (per 240-71C)
South Elevation 8.69 sq. ft. (“Dunkin”)
South Elevation 3.14 sq. ft. (“DD”)
East Elevation 2.00 sq. ft. (“DD”)
East Elevation 2.00 sq. ft. (“DD”)
North Elevation 17.58 sq. ft. (“DD”)
Menu Board 24.16 sq. ft.
The project also proposes one additional sign for a Tenant (South Elevation 8.69 sq. ft.).
Further Tenant signage may be requested at a future date.
vi. Section 240-65D allows one freestanding sign per business, which may not exceed
half the allowable size as permitted. The project proposes two freestanding signs for
the Dunkin restaurant (Monument Sign on North Street and Menu Board).
vii. Section 240-65J limits the size of a menu sign or board to three square feet. The
project proposes a menu sign containing 24.16 square feet.
viii. Section 240-75A allows for directional signs provided such signs do not exceed
one square foot in area nor be more than three feet high. The project proposes five (5)
directional signs each containing 2.75 square feet, and each being 4 feet 10 inches tall.
ix. Section 240-75 B allows a total of four (4) directional signs. The project proposes five (5)
directional signs.
18. The failure of this agreement to address a particular permit, condition, term, or
restrictions shall not relieve the qualified applicant of the necessity of complying
with the law governing said permitting requirements, conditions, term or restriction;
19. This Regulatory Agreement may not be used to prevent the Town of Barnstable or other
governmental agency from requiring the qualified applicant to comply with the laws,
rules and regulations and policies enacted after the date of the Regulatory Agreement, if
the Town of Barnstable or governmental agency determines that the imposition of and
compliance with the newly effective laws and regulations are essential to ensure the
public health, safety or welfare of the residents of all or part of the jurisdiction.
IN WITNESS WHEREOF, the parties have hereunto caused this Agreement to be
executed on the day and year first above written.
Applicant: Town of Barnstable:
Signature: Signature:
Print: Print:
Date: Date:
PROPERTY DESCRIPTION
442 Main Street
Hyannis, MA 02601
That certain parcel of land situate in Barnstable (Hyannis) in the County of Barnstable and Commonwealth of
Massachusetts, bounded and described as follows:
Southerly by the northerly line of Main Street, seventy-seven and 13/100 (77.13) feet;
Westerly one hundred thirty-seven and 31/100 (137.31) feet, and;
Southerly nine and 63/100 (9.63) feet by land now or formerly of Agnes K. O’Neil;
Westerly by the easterly line of Winter Street, two hundred fifty-five and 35/100 (255.35) feet;
Northerly by said North Street, ninety-five and 10/100 (95.10) feet; and
Easterly by land now or formerly of Mary T. Riddle and by Lot B, three hundred eighty-five and 59/100 (385.59) feet.
All of said boundaries are determined by the Court to be located as shown on plan 14276-A dated February 1930, drawn
By Arthur L. Sparrow, Engineer, and filed in the Land Registration Office at Boston, a copy of a portion of which is
filed in Barnstable County Registry of Deeds in Land Registration Book 10, Page 23 with Certificate of Title No. 2441,
and said land is shown thereon as Lot A.
LESS AND EXCEPT the land taken by the Taking by the Town of Barnstable for the layout of Winter Street adopted
April 3, 1962 filed as Document No. 74636 as shown on Taking Plan recorded in Plan Book 169, Page 77.
For title, see Deed filed with the Barnstable Registry District of the Land Court as Document No. 1,089,070, noted on
Certificate #185870.
ASSENT TO REGULATORY AGREEMENT
The undersigned, ARC Rock17MA, LLC, a Delaware limited liability
company, of 11995 El Camino Real, San Diego, CA 92130 , the owner of property in
Hyannis, Barnstable County, Massachusetts, described in a Deed filed with the
Barnstable Registry District of the Land Court as Document No. 1,089,070, noted on
Certificate #185870, does hereby consent to the recording of a Regulatory Agreement by
and between S&C Realty Investment Co., LLC, a Massachusetts limited liability company
and the Town of Barnstable dated ______ __, 2022. S&C Investment Co., LLC further
agrees to be bound by the terms and conditions contained in said Regulatory Agreement.
Executed this ___ day of ______, 2022.
Applicant:
Signature:
Print:
Date: