11-20-2023 WinnDevelopment to Commissioner Florence (2023.11.20)
Robert L. Brennan, Jr., Esq.
O : 978.965.5885 | C : 617.233.4897
rbrennan@smolakvaughan.com
Main Office: 21 High Street, Suite 310 • North Andover, MA 01845
Cape Cod Office: 255 Main Street, Suite A • Hyannis, MA 02601
WWW.SMOLAKVAUGHAN.COM
November 20, 2023
VIA E-MAIL
Brian Florence
Building Commissioner
Town of Barnstable
200 Main Street
Hyannis, MA 02601
Re: Formal Site Plan Review - 307 Main Street, Hyannis, Massachusetts (the “Project”)
Dear Mr. Florence:
I am writing on behalf of my client, WinnDevelopment, as a follow-up to our recent Formal
Site Plan Review meeting on November 16, 2023 in order to recount the procedural history
of the Project’s development, design and review (including by your Department), call your
attention to the lack of dimensional requirements specified for the Project’s newly-created
zoning district, and discuss the authority and alternative paths under which
WinnDevelopment is entitled to approval pursuant to formal Site Plan Review.
Procedural History:
As you will recall, WinnDevelopment first met informally with you and other Town
Department heads in the Town Council Conference Room in Town Hall on May 31, 2023
(the “May 31st Meeting”). At the May 31st Meeting, we discussed the preservation and use
of “compact” spaces as a part of the redevelopment of 307 Main Street. WinnDevelopment
was aware that such spaces were approved for use in connection with other projects
throughout Barnstable, raised this issue with you directly, and was advised at the May 31st
meeting that the use of “compact” spaces would be appropriate and permissible in
connection with satisfying the parking requirements for the redevelopment of 307 Main
Street.
WinnDevelopment’s architectural and engineering team made an initial submittal for
Informal Site Plan Review on July 31, 2023. The designs were reviewed during Informal
Site Plan Review meetings on August 15, 2023 and October 24, 2023, and the proposed
project - including parking - received Informal Site Plan Review approval on October 24,
2023. The design submission approved at Informal Site Plan Review incorporated compact
parking spaces consistent with both preexisting parking spaces at 307 Main Street and the
direction provided by you and others at the May 31st Meeting. Based upon the Informal
Site Plan Review approval, WinnDevelopment’s architectural and engineering team
submitted an updated design packet for Formal Site Plan Review on November 1, 2023,
which was reviewed on November 17, 2023, and the approval of which is now respectfully
requested.
S MOLAK & VAUGHAN LLP
Brian Florence
November 20, 2023
Page 2 of 4
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The Lack of Dimensional Standards for the Downtown Main Street District
307 Main Street is located within the Downtown Main Street (“DMS”) District of the
Downtown Hyannis Zoning Districts. Section 240-24.1.3.A.1 of the Zoning Bylaw
includes very specific direction with regard to applying prescribed standards of the
Downtown Hyannis Zoning Districts in stating, “where the provisions of §§ 240-24.1.1
through 240-24.1.13 conflict with those found elsewhere in the Barnstable Zoning
Ordinance, the provisions of this section shall apply.” More specifically, the Downtown
Hyannis Zoning Districts include detailed standards for parking as set forth in Section 240-
24.1.5(C) entitled “Parking Standards.” Accordingly, because the Downtown Hyannis
Zoning Districts provisions of §§ 240-24.1.5(C) clearly establish specific parking standards
for this District as a whole, application of Section 240-24.1.3.A.1 mandates these parking
standards to be used, which is entirely consistent with the conflicts provision of the more
general parking requirements under Section 240-55 of the Zoning Bylaw which directs that
“[a]ny specific provision in any other section of this [Zoning] chapter relating to parking
shall prevail over the provisions of this section.” (Emphasis added)
Because Section 240-24.1.5(C) clearly and unambiguously establishes specific parking
standards in the DMS District and other Downtown Main Street Zoning Districts which
are different from other zoning districts under the Zoning Bylaw, it would be inappropriate
to import from elsewhere in the Zoning Bylaw other standards not stated or expressly
referenced in Section 240-24.1.5(C). See Murray v. Bd. of Appeals of Barnstable, 22 Mass.
App. Ct. 473, 479 (1980) (where other sections of bylaw cross-reference restrictive section
“if an omission from a [bylaw] was intended (e.g., a specific cross reference), no court can
supply it; if the omission was due to inadvertence, an attempt to supply it would be
tantamount to adding to a [bylaw] a meaning not intended by the [legislative body]”). See
also, Iodice v. City of Newton, 397 Mass. 329, 332–33 (1986) (where the bylaw is clear on
its face, no further interpretation is required; but where a provision, word, or phrase is
ambiguous, its meaning will be determined by the court in accordance with ordinary
principles of statutory construction).
Section 20-240.1.5(C) purposely does not prescribe any dimensional parking space or aisle
width standards. Instead, leaving it to the Building Commissioner and others involved in
the Site Plan Review process to review the Project for consistency with the express design
standards of the DMS District and with the purpose and intent of the bylaw in accordance
with the Site Plan Review process pursuant to Article IX. Moreover, the application of
the parking and other provisions of the Downtown Hyannis Zoning Districts in this manner
is entirely consistent with the Council’s expressed intent in adopting the Downtown
Hyannis Zoning Districts: “The Downtown Main Street District is intended to promote the
continuation of a walkable, pedestrian-oriented downtown environment with continuous
active streetscape.” Section 240-24.1.10.A.1, Barnstable Town Council Item #2022-144
(March 3, 2022; emphasis added; attached as Exhibit A).
S MOLAK & VAUGHAN LLP
Brian Florence
November 20, 2023
Page 3 of 4
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For the reasons above, the Applicant has satisfied the applicable parking requirements and
other requirements for the DMS District of the Downtown Hyannis Zoning Districts as
well as other applicable provisions of the Zoning Bylaw. The Project rightfully received
approval through Informal Review, and the Project is now entitled to Formal Site Plan
Review approval.
Discretion of the Zoning Enforcement Officer
Notwithstanding the foregoing, and even assuming any ambiguity is perceived with respect
to parking requirements for the Project, it is within the discretion of the Building
Commissioner, as the Barnstable Zoning Enforcement Officer to grant unconditional
formal Site Plan Review approval of WinnDevelopment’s submission for 307 Main Street.
The local official’s interpretation, if reasonable, is to be afforded deference. See, e.g.,
Wendy’s Old-Fashioned Hamburgers of N.Y., Inc. v. Bd. of Appeal of Billerica, 454 Mass.
374, 381 (2009) (noting municipality’s “special knowledge” of “history and purpose of
[its] zoning by-law”). As noted in a leading treatise on the matter, “When a conflict or
ambiguity arises . . . the administrative process begins with the ‘zoning enforcement
officer.’” MCLE Massachusetts Zoning Manual, Section 13.1. Indeed, under
Massachusetts Zoning Statute, it is “[t]he zoning enforcement officer, who is the building
inspector or other local official designated by local regulations, is vested with initial
responsibility for interpreting . . . local regulations.” Massachusetts Zoning Manual,
Section 13.2; citing M.G.L. c. 40A, section 7.
While zoning interpretations may not be unreasonable, arbitrary, whimsical or capricious,
in assessing applications, the zoning enforcement officer is “under a duty to act in a fair,
judicial and reasonable manner upon the evidence . . . presented . . . keeping in mind the
objects of the by-law.” Castelli v. Bd. of Selectmen of Seekonk, 15 Mass App. Ct. 711,
714 (1983) (citing Butler v. Town of East Bridgewater, 330 Mass, 33, 38 (1953). Here,
the clear intention of the Downtown Main Street District bylaw is the creation of a
“walkable pedestrian-oriented downtown,” (see Exhibit A, Section 240-24.1.10.A.1) and
that object of the bylaw is the lens through which ambiguities should be resolved. See
Castelli, 15 Mass. App. Ct. at 714.
Consistent with the authority above, and in the absence of any parking space dimensional
mandates within the controlling district-specific “Parking Standards,” it would therefore
be reasonable for the Zoning Enforcement Officer to determine compliance with parking
space requirements under the Zoning Bylaw, and it would be inappropriate to import or
apply standards not expressly included in the DMS. See Murray, 22 Mass. App. Ct. at 479
(to do otherwise “would be tantamount to adding to a [bylaw] a meaning not intended by
the [legislative body]”).
Moreover, the Building Commissioner may look to existing spaces for both district
precedent and compliance with count requirements for 307 Main Street. Indeed, Section
240-50 of the Zoning Bylaw expressly provides, “Existing parking spaces may be counted
S MOLAK & VAUGHAN LLP
Brian Florence
November 20, 2023
Page 4 of 4
{00276786;v2}
to meet the minimum off-street parking requirements for an intensified use” if they are not
otherwise committed to use by other continuing uses at the property. As reflected in the
memorandum from Beals & Thomas, Inc. dated November 17, 2023, and attached as
Exhibit B, a total of 71 compact parking spaces currently exists at 307 Main Street. These
spaces are not committed to any other use than for the Project. Therefore, these existing
spaces can be counted to meet parking needs for the Project and serve as precedent1 for the
Building Commissioner’s review and approval of Formal Site Plan Review.
Based upon the clear and unambiguous direction of the District requirements, a decision to
approve the Project for Formal Site Plan Review which includes the existing spaces at 307
Main Street – where no dimensional requirements are prescribed, and which approves the
creation of other parking spaces consistent with the existing parking space dimensions
documented by Beals & Thomas (see Exhibit B) – would be a reasonable exercise of
discretion by the Building Commissioner. This authority vests in the Building
Commissioner both as the official charged with issuing Site Plan Review approval, and as
the Zoning Enforcement Officer with discretionary authority to resolve the specific
inconsistencies and ambiguities in the Zoning Bylaw in a manner that not unreasonable,
arbitrary or capricious, but indeed is mindful of the “object of the bylaw.” See Castelli, 15
Mass. App. Ct. at 714.
Conclusion
Section 240-24.1.3.A.1 of the Zoning Bylaw compels that the Building Commissioner
must apply the unambiguous provisions of the parking provisions of the Downtown
Hyannis Zoning Districts to approve the Project under Site Plan Review. Even assuming,
arguendo, there is some ambiguity regarding parking requirements under the Downtown
Hyannis Zoning Districts provisions of the Zoning Bylaw, it is within the Building
Commissioner’s discretion to find that the parking requirements under the Zoning Bylaw
have been satisfied such that Site Plan Review approval can be issued.
Thank you for your time and attention, and please do not hesitate to contact me directly if
you have any further questions regarding this matter.
Sincerely,
Robert L. Brennan, Jr.
1 It should be noted that Mr. Bornstein also maintains compact spaces at 319 Main Street, including 10
compact spaces located perpendicular to the driveway easement between his building and the Project site at
307 Main Street. Compact spaces at 319 Main Street serve as additional precedent supporting approval of
Formal Site Plan Review for the Project.
EXHIBIT A
EXHIBIT B