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Att Johnson memo Law Office of JEFFERY JOHNSON, ESQUIRE P.O. Box 960 67 School Street Hyannis, MA 02601 jeff@jefferyjohnsonesq.com (508) 790-5776 Telephone (508) 775-7526 Facsimile January 30, 2023 Memorandum of Ciluzzi Position Relative to Zoning Protection Italics contain the facts and references to Books/Pages/Documents/Exhibits Bolding and highlighting are used for emphasis The petitioner, John Ciluzzi as Trustee of WOODS BEECH LEAF ISLAND TRUST asserts that the lot in question is buildable under any of four arguments. All four arguments place great importance on the stated intent of Section 240-90 of the current Town of Barnstable Zoning Ordinance which states: “240-90 Intent. It is the intent of this section to protect rights of owners of preexisting legally created nonconforming lots, uses and buildings or structures and to provide regulation of changes or expansion of preexisting nonconforming structures, buildings and uses.” I. Single lot theory Section 240-91 of the Town of Barnstable Zoning Ordinance provides: “A. Separate lot exemption. Any increase in in area, frontage, width, yard or depth requirement of this chapter shall not apply to a lot for single or two-family residential use which at the time of recording or endorsement (of the zoning change): (1) Was not held in common ownership with any adjoining land (as can be seen from the subdivision plan and Land Court plan and the Deed recorded in Book 4305 Page 276, on November 2, 1984, lot 32 (now lot 7) was separated from lots 31 (now 6) and 33 (now 8) per the title history, 520 South Main Street was then owned by David and Marjorie Woods); and (2) Had a minimum of 5,000 square feet of area (the lot has 28,491 sq. ft) and 50 feet of frontage or the minimum frontage requirement for the zoning district in which it is located (the frontage requirement was 20 feet and lot 32/7 has 28.69); and (3) Conformed to the existing zoning if any when legally created (the subdivision plan was approved on June 4, 1984 and endorsed by the Planning Board on July 30, 1984 thus this lot conformed when it was created); and (4) Was separately owned at the time of every zoning change which made it nonconforming.” Since this lot was created there were only two changes to the zoning regulations that are material: A. On March 1, 1985 lot 32/7 was owned by Silvia and Silvia Associates Inc. and lots 31/6 and 33/8 were owned by Beech Leaf Island Inc. and on that date 520 South Main Street was owned by David and Marjorie Woods per Exhibit 26; B. On November 16, 2000 per the title histories, Ellen W. Reynolds, Andrea Marjorie Woods and Robin W. Cramer owned lot 7, lot 6 was owned by James and Sylvia Foster, lot 8 was owned by Kenneth and Marguerite Cirillo; and Marjorie Woods as the surviving tenant by the entirety owned 520 South Main Street). II. Common Lot Argument-Three or Less Lots Cure period/Vesting Section 240-91 of the Town of Barnstable Zoning Ordinance provides, in part: “… B. Common lot protection. (1) Any increase in the area, frontage, width, yard of depth requirement of this chapter shall not apply for a period of five years from the effective date of the change, to a lot for single- or two-family residential use that (As set forth above, on the date of the 2 changes in zoning lot 7 stood alone, except for a brief period of time in 1994-1995 (after the first change but before the second change) when lot 7 was owned by Marjorie Woods who also owned 520 South Main Street, if the five years set forth in section B is determined to commence upon the common ownership, Marjorie Woods owned only two lots and cured that within 14 months, i.e. the curing time frame): (a) Is held in common ownership with not more than two adjoining lots (in between zoning changes Marjorie Woods only owned lot 7 and 520 South Main Street, and no other parcels, see title histories); and (b) Had a minimum of 7,500 square feet in area (lot 32/7 has 28,491 sq. ft) and 75 feet of frontage or the minimum frontage requirement for the zoning district in which it is located (the frontage requirement was 20 feet and lot 32/7 has 28.69) ; and (c) Was recorded or endorsed on a plan that conformed to zoning when legally created (the subdivision plan was approved on June 4, 1984 and signed by the Planning Board on July 30, 1984); and (d) Conformed to applicable zoning requirements as of January 1, 1976 (The endorsement date of the plan as July 30, 1984 establishes compliance here). C. The protection afforded by Subsection B shall become vested upon the sale or transfer of the lot so protected into ownership separate from that of adjoining lots or the building thereon of a residence. (Lot 31/7 only abutted Lots 30/6 and 32/8 at the time of the zoning change in 1985, and it had been previously separated from them by the 1984 deed of lots 30 and 32 into a separate entity. Moreover, the property known as 520 South Main Street has had a home constructed on a more than one acre parcel since before August of 1945 see the original Land Court Petitioners Plan establishing the acreage and the Letter from Daniel Ojala, RLS, therefore 520 South Main Street’s protection is vested; and Lot 7 was transferred into separate ownership before each zoning change and within the five years of common ownership, this section of the bylaw intended that lots separated within five years should obtain protection and that protection is vested). III. Common Lot Argument-Resource Protection Overlay District One Acre Vesting Section 240-91 of the Town of Barnstable Zoning Ordinance provides, in part: 520 South Main Street cannot be forced to merge with lot 7. Lot 7 retains its separate nature and thus its buildability. Pursuant to “…G. Resource Protection Overlay District [Amended 10-26-2000] (1) Any increase in area, frontage, width, yard or depth requirements of the Resource Protection Overly District shall not apply to a lot for single- or two-family residential use which immediately prior to November 16, 2000, either: (a) Conformed to the applicable bulk requirements of this chapter immediately prior to November 16, 2000 (520 South Main Street conformed fully to the zoning change of 1985, the property contains more than an acre of contiguous upland and frontage when created prior to 1945 was not required etc.); or (b) Immediately prior to (on the effective date of this chapter), was protected from the applicable bulk requirements of this subsection by the provisions of § 240-91A, B, C, D, or E of this chapter (as we argue above A, B, C and/or E apply). (2) This protection afforded by this subsection shall be permanent.” (A forced adding of lot 7 to 520 Main Street would have created a non-conformity in direct opposition to the intent of the bylaw/ordinance); IV. Subdivision Plan Protection, Sub-section E Upon closer examination of the Ordinance and the deed histories, Ciluzzi insists that lot 7 has remained a “protected” lot since prior to the deed into David Wood in 1992, and thereafter has remained so protected, under this fourth theory: Section 240-91 of the Town of Barnstable Zoning Ordinance provides, at sub-section E: “…E. Subdivision plan protection. Any change in this chapter shall not apply to land shown on a plan under the Subdivision Control Law by a duly submitted and endorsed definitive subdivision plan, or a preliminary plan followed within seven months by a definitive plan, for such period of eight years from the date of endorsement, as provided by MGL Ch. 40A, § 6. Any legally created lot with a recorded release from covenant of the Planning Board that has been sold or transferred into separate ownership and control from any adjoining lots within eight years from the endorsement of the original subdivision plan shall be exempt from any dimensional or bulk zoning changes and shall not lose its status as a single buildable lot under zoning.” Sub-section F. Merged lots. Specifically commences as follows: “Except as otherwise provided herein…” Equity and fairness demand a finding of protection be reached. Building permits were issued all along this street after the plan freeze period expired (see attached permits). In particular, 153 Beech Leaf Island Road was issued a permit in July of 1993 and 147 Beech Leaf Island Road was issued in April of 1995. As can be seen by the permits a determination was made that those lots were “protected” and had not merged. Likewise this lot has not merged. No unique argument can be made for any other lot on Beech Leaf Island Road, but all but this lot were permitted to be built upon. Relevant Facts/Timeline Summary At all relevant times prior to March 1, 1985, 149 Beech Leaf Island Road, Barnstable (Centerville), i.e. lot 7 on Land Court Plan 41630-A met all the size and other dimensional requirements of a buildable lot in its area of Centerville (including “shape factor”) and was owned by Silvia and Silvia Associates, Inc.; 1. On March 1, 1985, the property known as 520 South Main Street, Centerville contained a dwelling and the lot area of its deed description exceeded one contiguous acre of upland (see plan and Ojala Affidavit on file with the Building Commissioner); 2. On March 1, 1985, this area of Centerville was changed to a “one acre” lot size zoning requirement; 3. On March 1, 1985 lot 7 was in separate ownership from all abutting lots, as since November of 1984 the two abutting lots (6 and 8, formerly 31 and 33) on Land Court Plan 41630-A had been conveyed into separate ownership from lot 7 (Exhibit 33), this deed out was also within the 8 year plan freeze period; 4. Prior to the end of the Plan Freeze period, i.e. Lot 7 had been separated from lots 6 and 8 by at least three separate conveyances, see the deed histories; 5. On November 20, 2000 (the date of the next zoning change) lot 7 was owned by Ellen W. Reynolds, Andrea W. Gauvreau and Robin W. Cramer and 520 South Main Street (which exceeded an acre and had had a house on it since before zoning went into effect) was owned by Marjorie L. Woods. As such Lot 7 Land Court Plan 41630-A is protected by subsections A., B., E., and/or G. of 240-91. Jeffery Johnson Title History- Locus Lot 7 on Land Court Plan 41630-A was originally shown as lot 32 on a plan entitled “Beech Leaf Landing, Phase II, Land Court Plan of Land in BARNSTABLE (Centerville), Mass., Owned by SILVIA AND SILVIA ASSOCIATES, INCORPORATED, Scale 1” =40’, March 23, 1984, Baxter & Nye, Inc., Registered Land Surveyors, Osterville, Mass.” This plan was duly filed with the Land Registration Office at Boston as Land Court Plan 41630-A, Pending, a copy of which was filed with the Barnstable County Registry of Deeds. Once the Land Court issued a decree of registration the lot number was changed by the Land Court Engineering Department to Lot 7. The plan was endorsed by the Planning Board by a vote taken on June 4, 1984, which plan was endorsed by the Planning Board on July 30, 1984, and no appeal was taken per the Town Clerk’s certification. A Form F Covenant was executed and recorded on January 28, 1987 in Book 5536 Page 18. The only abutting lots (31 and 33) on the plan were deeded to Beech Leaf Island Inc. in Book 4305 Page 276 on November 2, 1984, prior to the 1985 zoning change and within the “Plan Freeze period”. The Planning Board released the covenant as to all the lots on the plan on October 5, 1987, a copy of the release was recorded on in Book 5971, Page 260. Silvia and Silvia Associates, Inc. deeded lot 32 (and lots 30 and 34, but neither abuts our lot 32) to RAFS Limited Partnership as can be seen from the deed recorded on July 3, 1991 in Book 7599 Page 341. This deed was within the Plan freeze period. RAFS Limited Partnership deeded lot 7 (and other non-contiguous lots) to Brian T. Dacey, Trustee of Thornberry Lane Nominee Trust by Land Court document # 554005 on May 15, 1992. This deed was within the plan freeze period. At the time Brian T. Dacey, Trustee deeded lot 7 to David P. Woods on August 20, 1992, the lot had already been separated by three separate transactions from the ownership and control of its abutters, i.e. the deed out of the abutting lots in 1984 and the subsequent deeds in 1991 and 1992.