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HomeMy Public PortalAboutZBA Meeting Packet 11/09/21Town of Brewster Zoning Board of Appeals 2198 Main St., Brewster, MA 02631 brewplan@brewster-ma.gov (508) 896-3701 MEETING AGENDA Remote Participation Only November 9, 2021 at 7:00 PM This meeting will be conducted by remote participation pursuant to Chapter 20 of the Acts of 2021,. No in-person meeting attendance will be permitted. If the Town is unable to live broadcast this meeting, a record of the proceedings will be provided on the Town website as soon as possible. The meeting may be viewed by: Live broadcast (Brewster Government TV Channel 18), Livestream (livestream.brewster- ma.gov), or Video recording (tv.brewster-ma.gov). Meetings may be joined by: 1.Phone: Call (929) 436-2866 or (301) 715-8592. Zoom Meeting ID: 880 7666 8068 and Passcode 047258 To request to speak: Press *9 and wait to be recognized. 2.Zoom Webinar: https://us02web.zoom.us/j/88076668068?pwd=b3lXWnMwM2tybTk4SzlKMk5vT3NTUT09 enter Passcode 047258 To request to speak: Tap Zoom “Raise Hand” button or type “Chat” comment with your name and address, then wait to be recognized. Zoning Board Brian Harrison Chair Arthur Stewart Vice Chair Jeff Carter Patricia Eggers Jeannie Kampas Bruce MacGregor Senior Department Assistant Ellen Murphy 1.Call to Order 2.Declaration of a Quorum 3.Meeting Participation Statement 4.Approval of Meeting Minutes 5.Continued Applications: #21-23 Applicant: Sean and Ellen Darcy, (Represented by Attorney David M. Banash) 61 Consodine Road, Map 66, Lot 5 in the RM zoning district. The applicants seek an Appeal of the Building Commissioner’s determination in accordance with MGL Chapter 40A, Section 8 and 14, that a shed on the property transverses the property line. #21-22 Applicant: Benjamin E. Zehnder, 178 Bonnie Doone Cartway, Map 102, Lot, 13, in the RM zoning district. Pursuant to Brewster Zoning Bylaws §179 -25(B), the applicant seeks a Special Permit approval to renovate one, and demolish and remove three, pre-existing, non-conforming dwelling structures (multiple dwellings on a single lot) on a pre-existing, non-conforming lot (residential structures in a Wetlands Conservancy District/Hooksand-Dune Land soil), and construct three new dwelling structures further away from a coastal dune wetland resource. #21-27 Applicant: Karyn Beedy, (Represented by Gabriel Panaite) 23 Blueberry Pond Drive, Map 100, Lot 25 in the RM zoning district. The applicants seek a Special Permit to add an accessory apartment pursuant to Brewster Zoning Bylaws §179-51, Table 2, note 13. 6.Matters Not Reasonable Anticipated by the Chair 7.Next Meeting: December 14, 2021 8.Adjournment Date Posted:Date Revised:Received by Town Clerk: 10/21/2021 Page 1 of 3 TOWN OF BREWSTER ZONING BOARD OF APPEALS MEETING MINUTES Tuesday, October 12th, 2021, at 7PM Virtual Meeting Brian Harrison, Chairman, convened the Brewster Zoning Board of Appeals via remote participation with members: Art Stewart, Jeff Carter, Patricia Eggers and Bruce MacGregor. Jeannie Kampas was absent. A quorum was determined. Also present: Applicants: Attorney Benjamin Zehnder, John O’Reilly, Attorney Warren Brody, Judi Barrett, Beth Wade, Bob Ryley , Jill Scalise, James Creonte, Gabriel Panaite, Karyn Beedy and Ellen Murphy (Department Assistant). The Chair read the Recording or Taping Notification: This meeting will be conducted by remote participation pursuant to Governor Baker’s March 2020 orders suspending certain Open Meeting Law provisions and imposing limits on public gatherings. No in-person meeting attendance will be permitted. If the Town is unable to live broadcast this meeting, a record of the proceedings will be provided on the Town website as soon as possible. The Town has established specific email addresses for each board and committee so the public can submit comments either before or during the meeting. To submit public comment or questions to the Zoning Board of Appeals, please email: zbameeting@brewster-ma.gov. Review and Approval of September 14th meeting minutes A motion was made by Pat to approve the September 14th, meeting minutes, Bruce second the motion, a vote was taken: Brian, Bruce, Art, and Pat approved the minutes unanimously. Continued Applications: Application Review of ZBA #21-22, Applicant: Benjamin E. Zehnder, 178 Bonnie Doone Cartway. Members present and voting: Brian Harrison, Jeff Carter, Art Stewart, Pat Eggers, and Bruce MacGregor. Brian Harrison informed Attorney Benjamin Zehnder that only 4 of the 5 members that heard the case the previous month were present. Attorney Zehnder indicated that since it is a time-sensitive matter he will go forward with the discussion and if needed request the case be continued to the next meeting when 5 voting members are present. The Board agreed. Attorney Benjamin Zehnder provided background and informed the Board that the Conservation Commission approved the request. He referred to the analysis of the size of the homes in the neighborhood which was requested at the last meeting and the field cards in the supporting documents. He also referred to concerns raised by owners from the Ten Lots Association with the condition of the road. He informed the Board his client reached out to Cape Associates and John O’Reilly to discuss how the road will be handled. He received written concern by the residents in the form of an email. He informed the Board he is open to listening to any concerns they express. He stated that Conservation also requires overseeing any road work performed during the project. Attorney Zehnder indicated that his client is willing to make any repairs to the road that are necessary. He then went on to discuss the site plan with dwellings proposed and land coverage. He addressed the comments submitted by Andrew Smyth an abutter. Attorney Zehnder stated that using the road through the Sea Camps would not be feasible because it is privately owned. He indicated there is an easement and therefore his client doesn’t need to ask permission to use Bonnie Doone Cartway. He confirmed that the property will not be used for commercial purposes. He informed the Board his client is willing to work with the Ten Lots Association. The Board then discussed the dwelling units, number of bedrooms, contractors limiting the work during the summer months, if all 4 houses will be built at the same time and in the future considering the dwellings as condos. Attorney Zehnder informed the Board the building of the homes will be staggered. Pat made a motion to open to public input, Jeff second the motion, the Board voted unanimously to open to public input. Peter Johnson, 80 and 93 Bonnie Doone Cartway, expressed concerns regarding preservation of the road and the character of the neighborhood including use of the property. Mark Wilson, 70 Bonnie Doone Cartway on behalf of Ten Lots as well as a person of interest, expressed a concern of the units located above the garages. Attorney Zehnder indicated there is no intention to use the space above the garage as a separate dwelling. Mr. Wilson reviewed some of the conditions of the application regarding intensity of use of the land and traffic due to construction. Chair Brian Harrison asked if there was an overall construction plan. Attorney Zehnder stated the construction will be building the Page 2 of 3 houses on a continuous level. Once they start the construction they will continue until completed. He will follow up with his clients to minimize the overlap. Sylvia Wilson, 70 Bonnie Doone and 135 Bonnie Doone Cartway by marriage referred to two pictures of the Bonnie Doone Cartway, one from 1968 and the second picture was taken that morning (10/12/2021). She expressed concern and stated it would significantly change the character of the cartway. Attorney Zehnder and John O’Reilly informed Ms. Wilson if there were changes to the cartway they would ensure it would return to its original character. Chris from 121 Bonnie Doone Cartway gave the Board background on Ten Lots Association (TLA) providing a description and history. She asked the Board to protect the continued beauty of the area and minimize the scale and intensity of the project. Penelope Wilson, 135 Bonnie Doone Cartway, family of Mark and Sylvia Wilson, expressed concerns regarding the condition of the road, specifically vehicles with small wheels trying to get down to the beach and not able to walk barefoot on the cartway. She was also concerned with traffic conditions. Jane Sutton, no address given, expressed concerns with the size of the dwellings and the character of the cartway. Donna Heuchling, 179 Bonnie Doone Cartway, related to 80 Bonnie Doone Cartway, expressed her concern of the size of the project, and the character and use of the cartway. Andrew Smyth and family, 95 Bonnie Doone Cartway, stated he was not satisfied with how Attorney Zehnder addressed his comments earlier in the meeting. Maureen Kelly, 95 Bonnie Doone Cartway expressed concern with the character of the cartway and asked the Board to come and walk the cartway. Both Smyth daughters expressed their concerns regarding the character of the cartway. The Smyths expressed they would like to meet with Attorney Zehnder and his client to discuss the project further. Carey Wexler Sherman, 61 Bonnie Doone Cartway, expressed her concern regarding construction vehicles using a driveway close to her house. She also mentioned the number of bedrooms and how the septic will satisfy that large number. Diane Wilson Petique 135 Bonnie Doone, related to Penelope Wilson and Mark Wilson questioned the term “High-end Family Compound” and stated the residents are very humble and not high-end. She also expressed a concern over the construction timeline. Attorney Zehnder asked the Board for wrap up of the discussion. He suggested conditions from the Board such as: no commencement of heavy construction during the summer months, no installation of gravel on the cartway, and after all construction the cartway be restored to its original condition. Brian asked the Board if they are ready to vote, the Board felt out of fairness they should hear from all the public and a continuance should be granted. Pat made a motion to close to public comment, Jeff second the motion. A vote was taken, and the Board voted unanimously to close to public comment. Attorney Zehnder requested a continuance until next month. During that time, he will schedule a meeting with Ten Lots and with the client’s engineer and come up with a plan to present at the next meeting. Pat made a motion to grant the continuance until the November 9th meeting, Jeff second the motion. A vote was taken, and the Board voted unanimously to grant ZBA case #21-22 be continued until November 9th. Application Review of #21-25 Applicant: Habitat for Humanity of Cape Cod, Inc., (Represented by Attorney Warren Brodie), 26 Red Top Road. Members present and voting: Art Stewart, Pat Eggers, Bruce MacGregor, Jeff Carter, and Brian Harrison Attorney Warren Brodie provided background on the request. He referred to the various tabs from the application submitted. Two 3-bedroom affordable homes will be constructed on each of the two lots. He outlined the utilities needed and the timeline for the subdivision. He stated that the project will adhere to all conservation requirements. He indicated some of the Zoning requirements will require relief and are outlined in detail in the application. As part of the process, he reached out to abutters on their own and there was little concern. Habitat has also reached out to Town staff prior to the meeting. Attorney Brodie indicated that landscaping will be provided for each home and a shed will be included. Solar panels will be considered and both homes will count towards Brewster’s subsidize housing inventory. The homes will be available for approximately $169,000 but could be adjusted and the intent will be to offer one home as a veteran’s preference. He reminded the Board that Habitat for Humanity has been very successful in Brewster and on Cape Cod and referenced the Paul Hush project. Judi Barrett the consultant introduced herself. She will support the Board through the process and will provide the written decision. The Board was impressed by the presentation and the comprehensive materials provided. The Board opened to public input and Peter Soule spoke in support of the project. Jill Scalise the Brewster Housing Coordinator shared Page 3 of 3 with the Board the process with Habitat prior to going to the Select Board. Pat made a motion to approve the Comprehensive Permit ZBA Case #21-25, Jeff second, a vote was taken, and the Board voted unanimously. New Applications: Application Review of ZBA #21-26, Applicant: James Creonte, 65 Foster Road. Members present and voting: Brian Harrison, Jeff Carter, Art Stewart, Pat Eggers, and Bruce MacGregor. The applicant James Creonte requested a Dimensional Variance to widen his driveway where it meets Foster Road. He provided the Board with background on the request stating the purpose of widening the driveway was due to the width of his garage and the door separation of the garage. Chair Brian Harrison read the definition of the Brewster zoning bylaw 179-52 and the Board discussed the request agreeing that the apron at the street was not part of the driveway as defined in the bylaw and the majority if not all of the rest of the paved area shown on the plan submitted in front of the garage was off-street parking/loading area and not considered part of the driveway. The Board agreed that no relief was needed. Brian made a motion that the area in question is considered off street parking and loading space and not considered a driveway, therefore a Dimensional Variance is not needed. Bruce second the motion, the Board voted unanimously that the Dimensional Variance requested was not needed. Application Review of ZBA #21-27, Applicant: Karyn Beedy, (Represented by Gabriel Panaite) 23 Blueberry Pond Drive. Members present and voting: Brian Harrison, Jeff Carter, Art Stewart, Pat Eggers, and Bruce MacGregor. Brian read the request from the applicant. Gabriel Panaite contractor for the applicant addressed the Board providing background on the project and requesting an accessary apartment under 600 sq feet. He explained that the extra square footage will provide more usable space between the basement and part of the garage. This is pending a hearing with the State Building Board of Appeals on a second means of egress. Gabriel Panaite informed the Board he is working with the Building Commissioner to find an alternative means of egress and if identified it would not be necessary to go in front of the State. He reviewed the submitted floorplan with the Board. Brian asked the Board if they wanted to vote on the request with a floorplan that may or may not be approved by the State. The Board discussed whether or not to approve the floorplan or to grant a continuance. Gabriel Panaite informed the Board there was a second set of plans that were reviewed by the Building Department which will be used as a backup if the initial floorplan is denied by the State. The Board did not have the 2nd set of floorplans but Karyn Beedy the applicant shared her screen and they stepped through the differences in the floorplans. Both floorplans are under the 600 sq. ft. requirement. The Board discussed the floorplans and agreed that a more detailed plan is required. Brian suggested the applicant review the bylaw that outlines the requirements and provide the necessary plans and information. Art made a motion to continue ZBA Case #21-27, Pat second the motion. The Board voted unanimously to continue ZBA Case #21-27 until November 9, 2021. Matters Not Reasonably Anticipated by the Chair: None The next meeting of the Brewster Zoning Board of Appeals is scheduled for November 9th, 2021. Jeff made a motion to adjourn the meeting, Bruce second the motion, the vote was taken, and the Board unanimously voted to adjourn. Vote: 5-0-0. Meeting adjourned at 10:08 pm. #21-23 Applicant: Sean and Ellen Darcy (Represented by Attorney David M. Banash) 61 Consodine Road \\��c1 REwST Di. © T q' 'r v ?"cn= PO fl htl�� \s, Brewster Zoning Board of Appeals 2198 Main Street Brewster, Massachusetts 02631-1898 (508) 896-3701 x 1168 FAX (508) 896-8089 www.brewster-ma.gov ZBA CASE FILE # APPLICATION FOR BREWSTER ZONING BOARD OF APPEALS SPECIAL PERMIT! VARIANCE! ZBA APPEAL APPLICATION ($300 Filing Fee) NAME OF APPLICANT SEAN DARCY and ELLEN DARCY REPRESENTATIVE DAVID M. BANASH PHONE NUMBER OF REPRESENTATIVE: 781-290-5855 MAILING ADDRESS OF REPRESENTATIVE: 375 TOTTEN POND ROAD #102, WALTHAM, MA 02451 PROPERTYADDRESS 61 Consodine Road, Brewster, MA 02631 CURRENT PROPERTY OWNER(S) SEAN DARCY and ELLEN DARCY REGISTRY OF DEEDS TITLE REFERENCE BOOK 27627 PAGE200 OR CERT. OF TITLE # LAND COURT # PLAN # TOWN MAP # 66 LOT #5 YEAR BUILT 1991 ZONING DISTRICT RM STATEMENT OF PROJECT appeal from decision and order of the Building Commissioner, Victor E. Staley, dated June 29, 2021 SIGNATURE OF July 27, 2021 AGENT FOR OWNER DATE NOTE: This petition is NOT COMPLETE until all information is provided. Accuracy of this information is the responsibility of the petitioner. ZBA SPECIAL PERMIT/ VARIANCE/ APPEAL APP. REVISED 10-02-2017 Page 1 of 4 DATA SHEET Complete this form for every structure on the site that is in some way nonconforming. Identify structure: primary house, garage, tool shed, other SHED STREET ADDRESS 61 CONSODINE ROAD YEAR BUILT NO LATER THAN 2000 MAP # 66 LOT #5 ZONING DISTRICT RM List only the nonconformities below: Identify all nonconforming setbacks. LOCATION EXISTING REQUIRED PROPOSED RIGHT (WI SIDE, N 0 25 0 ■ is used to identify the setback: I.E. front, back, left side, right side, N -north, S -south, E -east, W -west, ■ Existing is the setback that currently exists on the ground ■ Reauired is the applicable setback required currently in the Brewster zoning bylaw ■ proposed is the setback being requested FRONTAGE: EXISTING N/A LOT SIZE: N/A REQUIRED N/A LOT COVERAGE EXISTING % N/A SIZE OF PARCEL N/A PROPOSED % N/A ALLOWED % N/A sq. ft. BUILDABLE UPLAND N/A BUILDING COVERAGE/PRIMARY STRUCTURE N/A sq, ft. BUILDING COVERAGE ALL OTHER STRUCTURES N/A BUILDING HEIGHT: EXISTING N/A sq, ft. PROPOSED N/A sq. ft. SPECIAL PERMITS: APPLICATION FOR SPECIAL PERMIT AS SET FORTH IN M.G.L. 40A, § 6, or § 9 and SECTION 179-25, BREWSTER BYLAW UPON WHICH THE BOARD IS EMPOWERED TO ACT. ZBA SPECIAL PERMIT/ VARIANCE/ APPEAL APP. REVISED 10-02-2017 Page 2 of 4 UNDER WHICH SECTIONS) PARAGRAPH(S) OEFDESCRIPTION OF PROPOSALTHE SPECIAL PERMIT IS SOUGHT AND A BR NIA VARIANCES: APPLICATION FOR VARIANCE AS SET FORTH IN M.G.L. 40A, § 10 VARINCE SECTION(S) PARAGRAPH(S) OSTER BYLAW F THE PROPOSAL.InordeCto graft a VaA IS SOUGHT AND A BRIEF DESCRIPTION ance,the ZBA must find all three of the following to be true: 1.1 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, and 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 [ 1 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 a APPEAL IN ACCORDANCE WITH M.G.L. 40 A, § 8, 14 CITE ORDER OR DECISION OF ZONING AGENT OR OTHER ADMINISTRATIVE OFFICIAL OR ATTACH LETTER FROM ZONING AGENT/ADMINISTRATIVE OFFICIAL. appeal from decision and order of the Building Commissioner, Victor E. Staley, dated June 29 2021, copy attached. ZBA SPECIAL PERMIT/ VARIANCE/ APPEAL APP. REVISED 10-02-2017 Page 3 of 4 ZONING BOARD OF APPEALS FILING PROCEDURES Completed application packages are required to be submitted and time stamped by the Town Clerk at least thirty-five (35) days prior to the requested hearing date. Town Hall hours are 8:30 am — 4:00 pm Monday- Friday. Complete application (12 copies) checklist: Application n Professionally engineered site plan Li Assessor's map showing the applicant's lot I 1 Building plans, including floor layout, elevations and dimensions Decision letter from the zoning agent, if applicable ❑ $300 Filing Fee (made payable by check) Photographs are recommended. Please also provide one (1) pdf or electronic copy of the completed application package. An Abutter's List will be requested by the Zoning Board Clerk when the application is filed. In accordance with Massachusetts General Laws, Chapter 40A, Section 11, the Appeal will be advertised in the local newspaper for two (2) consecutive weeks prior to the public hearing. The agenda will also be posted of the Meeting Board on the main floor of the Town Offices. A copy of the Zoning -By -Law, Chapter 179, is available at the Brewster Ladies' Library. It may also be purchased at the Town Offices for $25.00 or downloaded without charge from The Town of Brewster e -code website: http://www.ecode360.com/BR1068 Any Decision of the Board of Appeals may be appealed to Superior Court, Land Court or District Court within twenty (20) days from the time that the decision is filed with the Town Clerk. ZBA SPECIAL PERMIT/ VARIANCE/ APPEAL APP. REVISED 10-02-2017 Page 4 of 4 TOWN OF BREWSTER 2198 MAIN STREET BREWSTER, MA 02631 PHONE: (508) 896-3701 EXT 1125 FAX: (508) 896-8089 EMAIL: BUILDING@BREWSTER-MA.GOV WWW.BREWSTER-MA.GOV June 29, 2021 OFFICE OF BUILDING DEPARTMENT Sean and Ellen Darcy 18 Warwick Road Newton, MA 02465 Re: 61 Consodine Road, Identified on Assessors Map 66 Lot 5, located within the Residential Medium Density (RM) Zoning District Dear Mr. and Ms. Darcy, I was requested by your neighbor to investigate the shed located on your property regarding the Brewster Zoning Bylaws. According to two site plans (enclosed) prepared by local engineering firms, one regarding your property dated, November 28, 2011, and one was for the abutting property, 81 Consodine Road (Map 66 Lot 6), prepared on March 29, 2021, Both site plans indicate that a shed exists mostly on your property yet traverses the property line into 81 Consodine Road. The Building Department records indicate that this shed never received a permit from the Building Department, nor has this shed obtained a review from the Brewster Historic District committee as both properties are located within the Old Kings Highway Regional Historic District. Thus, I must order you to take corrective action to address this zoning violation of requisite setbacks identified in Table 2 of Brewster Zoning Bylaws. It would be my belief that you are limited to the following options; ▪ If you are aggrieved with this decision, you have a right to petition the Board of Appeals pursuant to Massachusetts General Law, Chapter 40-A, Sections 8 & 15 to have my decision amended or overturned. Please be advised that you have 30 days from this letter to initiate an appeal. • Submit a building permit application to relocate this shed to a compliant property line setback. ▪ Submit a building permit application to demolish this shed. If you choose to petition the Board of Appeals or relocate the shed, then you will also need to apply to the Brewster Historic District for a Certificate of Appropriateness or an Exemption. TOWN OF BREWSTER 2198 MAIN STREET BREWSTER, MA 02631 PHONE: (508) 896-3701 ExT 1125 FAX: (508) 896-8089 EMAIL: BUILDING@RREWSTER-MA.GOV W W W.BREWSTER-MA.GOV OFFICE OF BUILDING DEPARTMENT Please be advised that you do not have the right to petition the Board of Appeals for a Dimensional Variance pursuant to Brewster Zoning Bylaw Section 52 unless the trespass issue has been resolved. You must take corrective action by July 29, 2021, to avoid further action as described in Brewster Zoning Bylaw, Section 49. VS/sp Enclosure cc: Historic District Committee Board of Appeals Victor E. Staley Building Commissioner LOCUS PLAn. I CS Fnd U ZON IN G REQUIR EMENTS Zoe R at adln;nu m A rco 50"700 SF, 1, 1; -aru m Fron tegt, 150 P roa i Yore Set^ oc k d0" 615- o ral 6c or Yer d Setbacks 25 A^s es sarn" Mop 6C Fa cet 6 OWNER OF R ECORD Tama W olk. La nd CO e nLode. Der d Son 25465 Fc 0 75 Hon 455, Po g 7 - Lo t I ot rtiy ro Thomas LoIS, CVlo er LOS S co o Veto-, Ste in. 5u i'afi g Cd-MC... sxin ee (ct. the Tawas of o .os te r, 'ha, tOt 5truatu r00 000,0; 0.4,0 2- ore /coa te d ox toe> e.t t on PLS. CB Fnd 1➢7.1" Ex io7 DP -1 F nd 99.4' Deck E.,:ic LOT 1 Rcccr d Arc a=60, 010 S.F . + cr=;. 33 Ac . ± 216.57' d 262. 18' 0,1 `I NI Star ,c V81 Lri'e iil� Co EfQi flIit .� ID� ck`M I. 1�n ( li;; lii�l{I l f Y ; L1 (I OI `I X.11 CB Fnd 59 .34 ' CB Fnd 20 O CB Fnd ou^ to W C Set 03-20-:021 6, 700' - J O' 60 70.-.q 1e 1�JP;:-Dr.7a i hret KEY: �ISit NG CONTO UR;---- - PROPOSED CO NTOUR t F„YJST NG SP OT ELEVATION:25.5 PROPOSED SP OT ELEVA TION TEST' H OL£:4- ur5J7Y 'POL E -o- FENCELc1E: ( RRTAIAN7,6- .. ; RETAININ G WALL: P 3WN TS S F) )RSMAP:I$ PARCEL -9 (2B:2 -I) OK :451. PAG E 9 ONE C SEPTIC SYSTEM DESIGN / SE PTIC SY STEM SECTION 'FLOW MTVJITE BEDROOMS AT? 1L GAL! D AY s �_ G AL J DAY SEPTIC TANK 4 /9 GAL! D X. ..S. ,_ OAFS a 6Hfl GAL USE 100c Cart ON EEPIMC TA NK E XISTI NG) F-0CMING AREA: USE 3 -SDD G ALL ON C HAMBE RS (H5• x 49 'x 2 EPP. uct• i H) WITH s' OFSTON EAL L AR OU ND (335 x 1 25 x 2 DEEP) SIDE AREA (33S•12.51 x2 x 2.155 SF (0.s +)=137 GAL OA Y BOTTOM AREA: ZS' x 12.S's 429 SF (0.74) GAL/DAY CAPACITY. AM co s'AL\ EL Ev. CO VERS WITHIN T OF FINISHED G 7ANS TEE SIZES: (TO EE CONFIRM= INLET: B-UP,1r DOW N OUTL ET: 5' LP - DOWN `- GAS BAFFLE AT OUTLET TE E /HZ' P'ENST ONE y 4'-112" WASH ED ST ONE I NSPECTI ON P ORT E1EV.. 97-0 za a K ELEV, 3 - 569 GALLON IIYAM BE RS WITH .6 . OF STONE ALLAF.C UNO ELEV, (33. 5x12.8 -x2 DEEP) /7O B.N` .tENT EO) 5w E \ Z 19 3'E 2 U 0 0 z 0 Z m 0 D 0 .101 T EST HOLE LOGS ENGINEER mows hRELLAN . P -E. WI TNESS: S HE RI 5NDO UAUG H DATE, 10.27-11 PE RCOL ATI ON RATE .2 NI NIIN T}42 CIA HORIZON LO AMY SAND 10Y R2/1 T EE tic' v 3 HORIZON LOAAIY 0YR4.15 C HJ R1ZON ME D UM SAND Sr2 FA S 57-0 NC GROINS ,HATER D.CCU YTSED NOTES: 1. VE RTICAL . OATUM: ASSUME D 2. MUNICAPALWATE R IS AVAILABLE. 3. SCHEQU 40-G PV C PIPE TO BE U550 TH ROU GHOUT SEPTIC S YSTEl1 4. ALL PRECAST UNITS SUBJECT TO TRAFFIC LOADS 70 CO NFDPJ6 WI i H P ASHTO H-20 SPECIFIC ATIO NS. 5. PIPE FITCH. 1/4- PER FO OT (UNLESS N OTED OTHE RWISE). STZ OF PIPE OUT OFD -S OTTO BE SET LEVEL . T. T HE SEPTIC SYSTEM HAS NO T BEEN DESIGNED TO ACCOMODA TE- THE USE CFA GARBAGE DRSP OP AL. 3 ALL CONSTRUCTION NAILS ARE TO SE IN CONFORHAN CEWITiH THE STATE OF MASS. ENVIRON MENTAL CODE ,;T1TLE FIVE) AND L OCAL HE ALTH REGULATI ONS . S. CONTRACTO RTO VERIFY L OCATI ONS OF ALL UTILITIES PRLORTO CO NSTRUCT)ON- 10, GR OUND COVER OVER ALL SEPT IC DTS 1 th9 COISP ONENiS I/OTTO EXCEED 1 •. 11. FIELD SURVEY PRO VIDED BY TE RRY VSARNE.R • P.LS.. H ARWI CH , MA. 12 THIS FLAN REQUIRES THE RELIEWA NO APPROVAL OF ONE OR MORE TOW N DEPART MENTS AND IS SUBJECT TO CHANGE UNTIL SUCH TIME 13. EXISTI NG LEACH PIT IS TO BE PU MPED AND FILLED WITH SAND OR RE MOVED. 15. D-EOXTO SE WATER TESTED TO ENSU RE L EVELNESS AND EQUAL FLOtn'- r n1'3'r- THOMAS IMc L-LAN-P.E. SlI .E . PLAN LOCATIO N: 61 CONSODI E RD .. B REWSTER. MA PREPARED FOR: ROB ERT & BARB ARA. ERVEY \DATE 11-23.-LI SCALE: 307 i _ BASS RIV ER ENGINEE RING P .O.30X 1153 , EAST DEITN1S, MA 0:631 ` 30A-325--34=; r/ COMMONWEALTH OF MASSACHUSETTS TOWN OF BREWSTER ZONING BOARD OF APPEALS CASE FILE #21-23 ) ) IN RE: 61 CONSODINE ROAD, ) BREWSTER, MASSACHUSETTS: ) APPLICATION FOR APPEAL OF ) DECISION AND ORDER OF ) BREWSTER BUILDING ) COMMISSIONER DATED JUNE 29, ) 2021 ) ) ) ) AFFIDAVIT OF SEAN DARCY IN SUPPORT OF APPEAL APPLICATION I, Sean Darcy, depose on oath and state as follows: 1. I am an applicant, together with Ellen Darcy, my wife, for appeal of the decision and order of the Town of Brewster Building Commissioner dated June 29, 2021, that alleges violation of the Brewster Bylaws regarding a shed ("Shed") located on our premises at 61 Consodine Road, Brewster ("Premises"). 2. Annexed hereto are true copies of the following: a. Records of the Town Assessors' Office showing the Shed (circled) from 2009, namely, https://www.mapsonline.net/brewsterma/#x=-7801213.724276,5124230.755147,- 7800640.446564,5124520.081242, "Layer 3;"("Assessors' Plan"). See Exhibit A; b. Records of the Town Board of Health showing the Shed. See Exhibit B; c. Photographs showing the Shed and its surroundings ("Photographs"). See Exhibit C; and d. The following deeds: (1) Deed from G. Howard Hays to Robert R. Ervey and Barbara R. Ervey dated October 25, 1990 and recorded with the Barnstable Registry of Deeds in Book 7335, page 192. This is a copy contained within the title search performed when we purchased the Premises; (2) Deed from Robert R. Ervey and Barbara R. Ervey to Robert R. Ervey and Barbara R. Ervey, Trustees of the Robert R. Ervey Revocable Trust, dated May 22, 2008 and recorded with said Deeds in Book 22988, page 110 and Deed from Robert R. Ervey and Barbara R. Ervey to Robert R. Ervey and Barbara R. Ervey, Trustees of 1 the Barbara R. Ervey Revocable Trust, dated May 22, 2008 and recorded with said Deeds in Book 22988, page 114. These are also copies contained within the title search performed when we purchased the Premises; and (3) Deed dated August 7, 2013 from Robert R. Ervey and Barbara R. Ervey, Trustees of the Robert R. Ervey Revocable Trust, dated May 22, 2008 to Sean Darcy and Ellen Darcy recorded with said Deeds in Book 27627, page 200. This is a copy made from our original Deed of the Premises. See Exhibit D. 3. The Shed has been in the location shown on the Assessors' Plan since August 7, 2013 based on my personal observations and before that based on the following: a. at least from 2009, the date of the Assessors' Plan, per that Plan; and b. at least from 2001 on (1) my observation as to its appearance and its appearance in conjunction with the surrounding vegetation and the path leading to it per the Photographs, and the fact that the vegetation included an oak tree taken down in 2019, the stump of which has more than 20 rings and (2) the fact that it was on the Premises in its current location when my wife and I purchased the Premises on August 7, 2013, we have not moved it, and my understanding that it had been constructed by my predecessor in title Robert R. Ervey and placed in its current location in or before 2001. Executed under the penalties of perjury this( day of October, 2021. 2 Exhibit A Address Numbers Parce 110s • a; Edge of Pave ment ▪ Stree t Surface Google Hybrid M ap Go ogle Street Map O penStreetMap 2009 MassGIS Ortho Imagery 2014 O rtho Image ry T own Bas e Ma p 3 KEr.SEP TIC SYSTEM DE SIGN PROPOSED CONTDUR. EOSIRGSPOTELEVATIORE S PrROPOSOT O TEIEVATfON: TEST HOLE 1LO U 1Y -O- FEUOBLLI H YORAN T:.6. .. R ETA INING WA LL' MAP IE3 (82.761SF) P. SMP:03 PARCEL S (2812,) O X:431. PAGE D ON E:C. FLOW ESTRUM . BEDROOMS AT 114 GAL/ DAY. GAL/DAY SEPTIC TANK �. GAL/D AY__ DAYS...E GAL U SE D12 GALLON1,,, , TA NK (DUSTING) LEAC+ONGAREk USE3.6SD GALLO N CFW.9E R5 (STz A.Kx 2' EPF. DEPTH) WON 4' OFSTONE ALL A ROUND (61St 12 Sz 2' DEEP) SIDEARM • 12.C)x2 x2.1PSSF (0.T41'i57CAIJDAY BOROM AREA: 316x126®428 SF AM.= CAMAY CAPA CITY e4�S CALC AY K GAS BAFFLE AT OUTLETTEE rPFASroNE 1a '.1 ID " WASHED ST ONE PORT EAO7.0 —37.6µ14z725—a ro`cOSfIXJE ABORS (31927 IL 2'D EE P) TES T HOL E LOGS EIIGIFEEtt 7WWA 4Ito R I AN, RE, VAR Sc55: SHERI N cLIXLO UwT DATE: 1037.11 PERCOLATION RATE 2MOON NOTES: B• 18' a3 • EST TA -I FILL O AiON LOA MY SA ND fOYR3/1 B H ORZON L OAMY SA ND 10Y R4 4 S7.D WE cos 07.7 (KNE,LDIr 2-07,4 856 0' 7142 WA HORIZON 155S ANO 1311 B HORIZ ON LOWLY SAl67 1051418 CIIDR12@1 ZS( TM V COO Tor 8O DEED 14C 57 11 NO GA.^Un0 WATERBSOlNTERDD 1,YERTICALDATUM: ASSUMED 2. ML'NIC APAL WATER LS AYA TABL E l._SCHEDUtU4D 4 PVDPIPETOggli _THROUGHOUTSE'RCSYT SH 4.ALLPRECAST UNITS SUE)ECTTOTRAFFICLOADS TO COR5OWA14V RN AASKTOA-SSSPECLRC ATIDNS . S. PIPE PITCH m 154 PER FOOT (UNLESS S NOTED OTHFA1M54. SFR ST2 OFPIPEDUTOFD EOXTO BESET LEVEL 7 WE SEPTIC SYSTE4U W $N OT BEEN DESI GNE D TOACCO UODATETHE USE OFAGAABAOEM:WOW.. BALDE FIVE NDETAIISAND Af EALTRE TO BEERFraa4IN �71 LTHESTATE OF NABS.E NVIRONAIMAL BCONIRADTORT O VERIFY LOCATIONS OF ALL UTUDESPR= TD COMET RUCDON. 10 . WOUND CO VER OVcR AU. BEPTIC SYSTEM =MO RS NOT TO EXCEED D. It FIE LD SURVEY PROVIDED BYTERRYA WARR:R .P1S.. HARWICH MA. L T UN1�4 UBJECTRTEDOUI Ut�EEWANO AAPPROVALOFOBEOR MORETONN DEPARTMENTS AND ID E EXAIT SG LEACH IRIS 70 BE PUMPED AND RUED tNT14SAND OR REMOVED. . OOOXTO BE WA1ERTESTEOTO ENSURE LEVELNESSARD E QUAL ROW . SITE PLAN IACAT(ON: 61 CONSODLNE RD„ BREWSTER. MA PREM ED FOR: ROBERT & BARBARA ERVEY D AI E:1{ 28 -II MAt D1 0.30 , BASS RIV ER EN GINEERING , P .O . BOX 1167. EAST DEENIS, MA 82611 504-;52.3426 .1 Exhibit C 5 6 t-- 8 G1aiN 6 LGCH ATTORNEYS At N.i Ito N.NS=AT µASSACNVA TS 0461, MA119,6401 VIILF"R PRO SN-1RN Exhibit D 9oos7335rnf 192 5J;o88 I, S. HOWARD HAYES, of Brewster, Barnntable County, Massachu- setts, in consideration of Sixty -Five Thousand Dollars fS65,o00.001 usband and fe grant to ROBERT R. ORVEY and entirety, ofA11AArlington EDrive, Denville, iNew a9 tenants by Jersey 07834 With QUITCLAIM COVENANTS the land in ofol Barnstable County, Haseachusetta shown as LOT on a plan land entitled forbdJO eiDAVPPlan c2ST Land anuary 29, 1Brewster,Scale Mass -4O'. Nicketts rson 6 Berger Inc. R.L.S.i P.B. Orleans, 1908 scale t 40', esaneean' Book geh 9,tet getherawithCounty portionrofof the Deeds in y Plan -dek ac" Page o 9 "temporary cul-de-sac" as shown on said plan lying westerly of tends the westerly sideline ° the de-sac'foot areaiastshown on saidit xplan. through the "temporary cul said premises are conveyed subject to Declaration of Rest.rietive Covenants recorded with the and other Registry of Deeds in Book 6570 Page insofartas thetsame iare now inafull s record,ions of any, force and effect. The Grantor hereby reserves the catchight basinoandiundergroundaleahing!pits ce and repair the existing for road drainage purposes located at the southeast corner of the premises. The grantor hereby under, as the long andt to upongrantheroadsasents shownnd rights of way and all purposes for the benefit of the lots on shownid plant for any any other property. on the aforesaid plan and for Said premises are conveyed togetforher ingress ighte9resway tover Conaodine Road by foot or by vehicle and from the premises and Route 137. For title see deed recorded with the Barnstable County Registry of Deeds in Book 6387 Page 234 and relative to the right of way see Certificate of Title No. 115077. 1990. WITNESS my hand and seal this _iday of b) ‘11'. 1-' 000K7335r.oE 193 COMMONWEALTH OF MASSACHUSETTS Barnstable, se. a 1990 Then personally appeared the above named G. Howard Hayes and acknowledged the foregoing instrument to be his free aet,'iHN'••.,, deed, before me, Notary Public My Commission Bspir',3si•.Hyommbeko awn. ` ,neera1osA'`..„,,,.2 lip STAMiwirmiee tmt,mr.nts mM!eTir"1 i ii1"' i)1 1J)S, w-1 �..fl� P►.�att. !AY :.J9 1HUMAAF Loa,G EXC'SE 1AX 10 t't-: 22988 Ps 110 -4-33949 Prepared By and After Recording Return to: Gwynne W. Guzzeau, Esq. P.O. Box 1003 Orleans, MA 02653 --------Above This Lint Resold For Ofriclel Use Only ----- QUITCLAIM DEED KNOW ALL MEN BY THESE PRESENTS THAT: Robert P.. Ervey and Barbara R. Ervey, of 61 Consodine Road, Brewster, Barnstable County, Massachusetts, in consideration of ONE HUNDRED ($100.00) DOLLARS, grant, to Robert R. Ervey and Barbara R. Ervey, Trustees of the Robert R. Ervey Revocable Trust, dated May 22, 2008, a fifty percent (50%) interest in the following lands and property, together with all improvements located thereon, lying in the County of Barnstable, Town of Brewster, Stale of Massachusetts, With Quitclaim Covenants: The land in Brewster, Barnstable County, Massachusetts shown as LOT 3 on a plan of land entitled "Subdivision Plan of Land in Brewster, Massachusetts prepared for: John David Cist January 29, 1988 Scale 1"=40', Nickerson & Berger Inc. R.L.S. & P.E. Orleans, Massachusetts" recorded with the Barnstable County Registry of Deeds in Plan Book 451, Page 9, together with that portion of the "temporary cul-de-sac" as shown on said plan lying westerly of the westerly sideline of the 40 foot private way as it extends through the "temporary cul-de- sac" area as shown on said plan. Said premises arc conveyed subject to Declaration of Restrictive Covenants recorded with the Barnstable County Registry of Deeds in Book 6570, Page 246 and to any and all other easements, restrictions and reservations of record, if any, insofar as the same arc now in full force and effect. Said premises are conveyed together with a right of way over Consodine Road by foot or by vehicle for ingress and egress to and from the premises and Route 137. 11 Bk 22988 Pg 111 #33049 For title reference is made to deeds recorded in Book 7335, Page 192. In Witness Whereof, the said Robert R. Ervey and Barbara R. Ervey, have hereunto set their hands this 21 -day of May, 2008. Date: May 2?, 2008 Robert R. Ervey, Grantor (/1--1 /L /} I arbara 12. Ervey, Grantor State of Massachusetts County of Barnstable On this 2.. day of May, 2008, before me personally appeared Robert R. Ervey and Barbara R. Ervey, to me known to be the persons described in and who executed the foregoing instrument, and acknowledged that they executed the same as their free act and deed. My commission expires: 1711 24 tl is Gwynne Wiatrowski Gnzzeau•.. �;., 44: Type or Print Name ` 'i °°,v' A UM. W aol2ry Punuc ComwonrwaWWWIMasszcolson My comml46lor1 Eopire3 ceamber8, 2011 BARNSTABLE REGISTRY.OF DEEDS 12 Prepared By and After Recording Return to: Gwynne W. Guzzeau, Esq. P.O. Box 1003 Orleans, MA 02653 BR: 22988 Ps 1'!,4 '33051 06-15-2008 & 01:58 Above This Line Reserved For Orkin) Use Only----- QUITCLAIM DEED KNOW ALL MEN BY THESE PRESENTS THAT: Robert R. Ervey and Barbara R. Ervey, of 61 Consodine Road, Brewster, Barnstable County, Massachusetts, in consideration of ONE HUNDRED ($100.00) DOLLARS, grant, to Barbara R. Ervcy and Robert R. Ervey, Trustees of the Barbara R. Ervey Revocable Trust, dated May 22, 2008, a fifty percent (50%) interest in the following lands and property, together with all improvements located thereon, lying in the County of Barnstable, Town of Brewster, State of Massachusetts, With Quitclaim Covenants: The land in Brewster, Barnstable County, Massachusetts shown as LOT 3 on a plan of land entitled "Subdivision Plan of Land in Brewster, Massachusetts prepared for: John David Cist January 29, 1988 Scale 1"=40', Nickerson & Berger Inc. R.L.S. & P.E. Orleans, Massachusetts" recorded with the Barnstaple County Registry of Deeds in Plan Book 451, Page 9, together with that portion of the "temporary cul-de-sac" as shown on said plan lying westerly of the westerly sideline of the 40 foot private way as it extends through the "temporary cul-de- sac" area as shown on said plan. Said premises are conveyed subject to Declaration of Restrictive Covenants recorded with the Barnstable County Registry of Deeds in Book 6570, Page 246 and to any and all other easements, restrictions and reservations of record, if any, insofar as the same arc now in full force and effect. Said premises are conveyed together with a right of way over Consodine Road by foot or by vehicle for ingress and egress to and from the premises and Route i37. 13 Bk 22988 Pg 115 #33051 9 For title reference is made to deeds recorded in Book 7335, Page 192, In Witness Whereof, the said Robert R. Ervey and Barbara Ervey, have hereunto set their hands this 22 -day of May, 2008. Date: May 2'L, 2008 / 4 ,e Barbara R, Ervey, Grantor State of Massachusetts County of Barnstable On this 22 -day of May, 2008, before me personally appeared Robert R. Ervey and Barbara R, Ervey, to me known to be the persons described in and who executed the foregoing instrument, and acknowledged that they executed the same as their free act and deed. My commission expires; t a ( ''2.x311 Public Gwynne Wiatrowski Guzzeairt Type or Print Name �Yt fi r, OftaWIROMOUZIENJ W Naen t Co nmxoahofNuaactmpua My Cern:MS.0M aVire DeCefIlber e, Soil BARNSTABLE REGISTRY OF DEEDS 14 WE, ROBERT R..ERVEV AND BARBARA R.:ERVEY, Trustees of the Barbara R. Ervey '. Revocable Trust (50%) dated May 22, 2008, Trustee's Certificate recorded with Barnstable Registry of Deeds in Book 22988, Page 116 and Trustees of the Robert .R.-Ervey Revocable = Trust (50%) dated May 22, 2008, a Trustee's` Certificate recorded said Registry in Book 22988, Page 112, both with a mallingyadid f 1::Juniper Creek Lane Bluffton, Sc 22909- -5125 - For consideration paid and- in hull considerate AND 00/100 ($560,000A0) DOLLARS Grant to SEAN:DARCY and ELLEN DARCY. -husband and wife, as tenants by both with a maitingaddress of:18 Werwick:Road Newton, MA'02465:: WITH QUlTCLAIM`COVEN4NTS 1 any and all other e'sarne are now in full le County Registry of Deeds 1n Book 22988, Page 110 15 WE, RUBER R tVE.Y t? E Ervey Revocable Triii (50%) Mated N iay Revocable Trust {SO%) dated May 22,29 L Said Trust is in full 2. All the beneficiarie 3. All the beneiiarze 4, All the:berefitsiar)e Trustee -to bavev t We, Robert R Ervey and _.hereby release any aril all ri$his 16 17 COMMONWEALTH OF MASSACHUSETTS TOWN OF BREWSTER ZONING BOARD OF APPEALS CASE FILE #21-23 IN RE: 61 CONSODINE ROAD, BREWSTER, MASSACHUSETTS: APPLICATION FOR APPEAL OF DECISION AND ORDER OF BREWSTER BUILDING COMMISSIONER DATED JUNE 29, 2021 I. Issue MEMORANDUM IN SUPPORT OF APPEAL APPLICATION Whether the Town of Brewster can enforce the alleged violation of its Zoning Bylaw where 1. the alleged violation commenced before 2009; 2. the Town first made its alleged action claiming such violation on June 29, 2021;1 and 3. no notice of the alleged action was recorded with the appropriate division of the Barnstable Registry of Deeds within 10 years from the time such violation commenced. II. Facts On July 27, 2021, the Town of Brewster Clerk accepted for filing an Application by Sean and Ellen Darcy to appeal a decision and order of the Brewster Building Commissioner dated June 29, 2021. The decision and order states that it was per a request by a neighbor to investigate a shed ("Shed") on the Darcys' property at 61 Consodine Road, Brewster, Assessors' Map 66, Lot 5 ("Premises"). The attachments to the decision and order included an instrument entitled "Site Plan" dated "11-28-11" This memorandum will assume for sake of argument, but not thereby intending to admit, that the Building Commissioner's decision and order dated June 29, 2021 was a "criminal or civil action intended to compel the removal, alteration, or relocation of a structure by reason of an alleged violation of this chapter or of an ordinance or by-law adopted under [G.L. c.40A]." G.L. c.40A, §7. ("Site Plan"). The Site Plan shows the Shed marked as such and on and north of the northerly boarder of the Premises. The decision and order relevantly: 1. alleges that the Shed never received a permit from the Brewster Building Department, and that a permit was required because the Shed violated requisite setbacks set out in Brewster Zoning Bylaws; 2. alleges that Brewster Historic District Review was required because the Shed was located within the Old Kings Highway Regional Historic District; 3. sets out options for the applicants that include petitioning to the Zoning Board of Appeals to overturn the decision; and 4. concludes by stating that applicants must take corrective action to avoid further action as described in Brewster Zoning Bylaw, section 49. That section provides in pertinent part that "Any person...who violates...any of the provisions of this chapter... may be fined by the Inspector of Buildings a sum of up to $300 for each offense," and that "Each day the violation continues shall be a separate offense." The Shed has been in existence in its current location since before June 29, 2011, more than 10 years before the decision and order. See: 1. Records of the Town Assessors' Office showing the Shed in 2009: https://www.mapsonline.net/brewsterma/#x=- 7801213.724276,512423 0.755147,-7800640.446564,5124520.081242 and in particular "Layer 3" annexed to the Affidavit of Applicant Sean Darcy filed herewith as Exhibit A ("Darcy Affidavit"); 2. Photographs annexed to the Darcy Affidavit as Exhibit C; and 3. Statement of Sean Darcy, as contained in the Darcy Affidavit. In addition see Records of the Town Board of Health, showing the Site Plan, annexed to the Affidavit as Exhibit B and also the second attachment to the decision and order. No criminal or civil action, suit or proceeding intended to compel removal, alteration or relocation of the Shed has been commenced within 10 years after the Shed was first located in its current location. The Premises are recorded land. See Deed to the Premises at 61 Consodine Road annexed to the Darcy Affidavit as Exhibit D. No notice of the action has been filed with the recorded land division of the Barnstable Registry of Deeds within that time period. See Affidavit of David M. Banash ("Banash Affidavit"). 2 III. Argument G.L. c. 40A, §7 provides as follows in pertinent part: No criminal or civil action intended to compel the removal, alteration, or relocation of a structure by reason of an alleged violation of ...an ordinance or by- law adopted under this chapter... shall be maintained unless the action, suit or proceeding is commenced and notice of the action, suit or proceeding is recorded in the registry of deeds for each county or district in which the land lies... within 10 years of the commencement of the alleged violation. The Town's assessing records show the existence of the Shed in its current location in 2009. See Darcy Affidavit, Exhibit A. Accordingly, the action by the building commissioner, taken on June 29, 2021, was more than 10 years from the commencement of the alleged violation and is therefore barred by G. L. c.40A, §7. In addition the Town's health department records show its location as early as 2011. See Affidavit, Exhibit B and the second attachment to the decision and order of the building commissioner. Although the health department record is not quite 10 years from June 29, 2021, the depiction of the location of the Shed there — in the same location as shown in the assessing records is probative of its existence there for more than 10 years before June 29, 2021. The physical appearance of the Shed supports this documentary evidence and at least some of the vegetation surrounding the Shed is more than 20 years old, as evidenced by the rings on at least one oak tree that was adjacent to the Shed. Finally, it is Sean Darcy's understanding that the Shed was constructed in or before 2001 by his predecessor in title Robert Ervey in its present location. See Darcy Affidavit #3 and Exhibit C. Further, c.40A, §7 contains a second and independent requirement to enable enforcement of a zoning bylaw, namely, that notice of the action, suit or proceeding be recorded in the appropriate division of the registry of deeds where the land lies within 10 years of the commencement of an alleged violation. The Premises being recorded land in Barnstable County, the statute therefore required such notice to have been recorded with the recorded land division of Barnstable Registry of Deeds in that time period. This did not happen. See Banash Affidavit, G.L. c..40A, §7 does not require that the Town have known or should have known of the Shed and its location. Connors v. Annino, 460 Mass. 790, 794 n.8 (2011) (c. 40A, §7 is a statute of repose, not a statute of limitations). However, in fact the Town knew or should be deemed to have known of both because its own records. Accordingly, it is inequitable for the Town now to make its claim, in addition to being barred by statute. 3 IV. Conclusion G.L. c. 40A, §7 bars actions to enforce the Town Zoning Bylaw at issue where not commenced within 10 years of the commencement of the alleged violation and where no notice thereof was recorded in the applicable division of the Barnstable Registry of Deeds within that time period. The alleged violation commenced more than 10 years before the first alleged enforcement attempt by the Town, and no notice was filed in the applicable division of the Barnstable Registry of Deeds within that time period. Thus, the alleged violation is unenforceable, the appeal should be allowed, and the Building Commissioner's decision and order dated June 29, 2021, should be overturned and reversed. Respectfully submitted, Sean and Ellen Darcy by their attorney, David M. Banash, BBO# 028200 David M. Banash, P.C. 375 Totten Pond Road, Suite 102 Waltham, MA 02451-2010 Tel: (781) 290-5855 Dated: October , 2021 4 COMMONWEALTH OF MASSACHUSETTS TOWN OF BREWSTER ZONING BOARD OF APPEALS CASE FILE #21-23 IN RE: 61 CONSODINE ROAD, BREWSTER', MASSACHUSETTS: APPLICATION FOR APPEAL OF DECISION AND ORDER OF BREWSTER BUILDING COMMISSIONER DATED JUNE 29, 2021 AFFIDAVIT OF DAVID M. BANASH IN SUPPORT OF APPEAL APPLICATION I, David M. Banash, depose on oath and state as follows: 1. I am anattorneylicensed to practice in the Commonwealth of Massachusetts. 2. On October 23, 2021, I searched the online grantor/grantee indicis of the recorded land division of the Barnstable Registry of Deeds under the names Ellen Darcy, Sean Darcy and Ervey for the Town of Brewster from August 13, 2013 for Darcy (the date they acquired title from Ervey of the premises at 61 Consodine Road, Brewster) and for Ervey from October 25, 1990 (the date they acquired title of the premises at 61 Consodine Road, Brewster). Copies of my search results are annexed to this affidavit. Executed under the penalties of perjury this 6 % day of October, 2021. David M. Banash 10/24/21, 2:17 PM Rec Land Name Search Results Barnstable County Registry of Deeds Subscribsrtcgi; r i • Documents in Cart TB62 (1) John F Meade Register Research Home Registry Home Page Recorded Land Docs by Name Search Results Search Terms Search nameDARCY ELLENParties All Parties Town Brewster Document Types*ALL Date RangeLand Document Index from Aug 16,2013 thni Oct 22, 2021 #69787 @ 03:58 Modify Search i New Search show more text Can't find what you are looking for? Try one of the following: • show it edifyt your search terms • • Select another Deeds Database to look in for your document with the same search terms To print or check the print cart, click on the Documents in Cart (x) located in the upper right corner of the page. Previoi eed technical assistance, please review our Support/Frequently Asked Questions document I Liens Curr Year 12 Mo Indx 50 Yr Indx Land Court Rec Lnd Plan DisIVP 10 se 4testills per page Print Search Results Name Reverse Party DARCY, ELLEN ERVEY, ROBE (AS &H)_(Gtee) TR &O) DARCY, ELLEN MORTGAGE (&11)_(CItor•) ELECTRONIC RE DARCY, ELLEN MORTGAGE (&H) (Gtor) ELECTRONIC RE DARCY, ELLEN MORTGAGE (&O)_(Gtee) ELECTRONIC RE The last matching name is displayed PreviousNext Print Search Results Town Date Document Document Book Received Type Desc (page) Brewster08-16- 2013 Deed Brewster 08-16- 2013 Brewster 12-15- 2016 Brewster 01-04- 2017 ABS View/Prt 3 451/9 27627-200 (=1 Mortgage 3 451/9 27627-203 (='I Mortgage 3 451/9 30163-199 Discharge 27627/203 30211-232 (=l show more text https://search.barnstabledeeds.org/ALTS/WW400R.HTM?W9SNM=DARCY&W9GNM=EIIen&W91XTP=A&W9ABR=*ALL&W9TOWN=BREW&W9INQ 1/2 10/24121, 2:16 PM Barnstable County Registry of Deeds Documents in Cart TB62 (1) Subscriber t gin John F. Meade Register Research Home Registry Home Page Rec Land Name Search Results Recorded Land Does by Name Search Results Search Terms Search nameDARCY SEANParties All Parties Town Brewster Document Types*ALL Date RangeLand Document Index from Aug 16,2013 thru Oct 22, 2021 #69787 @ 03:58 Modify Search New Search show more text Can't find what you are looking for? Try one of the following: 0 show Medi* your search terms • • Select another Deeds Database to look in for your document with the same search terms To print or check the print cart, click on the Documents in Cart (x) located in the upper right corner of the page. Previo • hi eed technical assistance ilease review our SupJDort/Frequently Asked Questions document 50 Yr lndx Land Court Rec Lnd Plans Disiil°a? 10 r FResults per page Print Search Results Name Reverse Party DARCY, SEAN ERVEY, ROBE (AS (&W)_(Gtee), TR &O) DARCY, SEAN MORTGAGE ,(&W)_(C,tor). ELECTRONIC RE DARCY, SEAN MORTGAGE ,(&W)_(Gtor), ELECTRONIC RE DARCY, SEAN MORTGAGE .(&O)_(Gtee) ELECTRONIC RE The last matching name is displayed PreviousNext Print Search Results Town Date Document Document Received Type Desc Brewster 08-16- 2013 Brewster 08-16- 2013 Brewster 12-15- 2016 Brewster01-04- 2017 Book (page) ABSView/Prt Deed 3 451/9 27627-200 Mortgage 3 451/9 27627-203 f 1 UJ Mortgage 3 451/9 30163-199 _] PSI Discharge 27627/203 30211-232 �=1 show more text https://search.barnstabledeeds.org/ALIS/WW400R.HTM?W9SNM=Darcy&W9GNM=sean&W9IXTP=A&W9ABR='ALL&W9TOWN=BREW&W9INQ=A... 1/2 10/24'/21, 2:12 PM Rec Land Name Search Results Barnstable County Registry of Deeds Sui ceiber twin m Documents in Cart TB62 (1) John F Meade Register [Research Home ( Registry Home Page Recorded Land Does by Name Search Results Search Terms Search nameERVEY Parties All Parties Town BrewsterDocument Types*ALL Date RangeLand Document Index from Oct 25,1990 thru Oct 22, 2021 #69787 @ 03:58 Modify Search New Search show more text Can't find what you are looking for? Try one of the following: show 1! 'Lod€fyt your search terms • • Select another Deeds Database to look in for your document with the same search terms To print or check the print cart, click on the Documents in Cart (x) located in the upper right corner of the page. Previotis xtieed technical assistance Liens Curr Year 12 Mo Indx 50 Yr Indx Land Court ! Rec Lnd Plans Dis(O 10 v eResults per page Print Search Results Name Reverse Party Town ERVEY, BARBARA R .(AS TR)_(Gtor) ERVEY, BARBARA R (AS TR &O), ERVEY, ROBERT R (&W) (Gtee). ERVEY, ROBERT R ,(&O)_(Gtee) DARCY, SEAN (&W) HAYES, G HOWARD HAYES, G HOWARD Brewster20201313 Date Document Received Type Certificate Of Municipal Lien Document Book Desc (page) Sort/Freau®@, ntly Asked Questions document ABS View/Prt 22988/114 27627-199 =1 Brewster2013 Deed 3 451/9 27627-200 ill 2013 Brewster11990990 Deed 3 451/9 7335-192 County 10-26- Power Of 3 451/9 7335-195 I 1 1990 Attorney 1 httnc•//caarrh.harnstahledeeds.nra/ALTS/WW400R.HTM?WSSRPP=10&WSHTNM=WW401 R01&WSIQTP=LR01N&WSKYCD=N&WSKYCDS=&WS... 1/3 10/24121, 2:12 PM ERVEY, ROBERT R .(&O)_(Gtor) ERVEY, ROBERT R •(&IC) (Gtor) ERVEY, ROBERT R (AS TR)_(Gtee) ERVEY, ROBERT R (AS TR) (Gtor) ERVEY, ROBERT R k&O)_(Gtor) ERVEY, ERVEY, ROBERT R (A, ROBERT R TR)_(Gtee) (&O) More names may be available PreviousNe t Print Search Results show more text BREWSTER T Brewster07-19- (SELECTMEN) 1995 ERVEY, ROBERT (AS TR) ERVEY, ROBERT R (&O) Brewste .06-18 2008 Brewster 06-18- 2008 County 06-18- 2008 ERVEY, 06 -18 - BARBARA (AS Brewster2008 TR) Brewster06-18- 2008 Rec Land Name Search Results Betterment CONSODINE RD 515/79-80 9759-197 Deed 3 451/9 22988-110 W`@=1 Deed 3 451/9 22988-110 (�=1 Abstract Of ROBERT R Trust ERVEY REV TRUST 22988-112 p Li Deed 3 451/9 22988-114 f L Deed 3 451/9 22988-114 L.1 LU • Quicklinks • Barnstable County Registry of Deeds Homepage • Other Registries of Deeds show Inwit§tble County Government and Communities • Government Links • Directions • Contact Us • Support • Frequently Asked Questions o FAQ's o Technical Support Questions • Glossary of Terms • Assistance o For Account assistance, call (508) 362-7733 Opt. 8 o For Technical assistance, see Frequently Asked Questions above t ht+..,,•//..., -r,4, h•mrnetohlcrlecrie nr,.ini ISAMIAIAnnR kTM7WSSRPP=1nitWSHTNM=WW401 R01&WSIOTP=LR01 N&WSKYCD=N&WSKYCDS=&WS... 2/3 10/24/21, 2:14 PM Rec Land Name Search Results Barnstable County Registry of Deeds Suincriber tagi 1 amp • • Documents in Cart TB62 (1) John F, Zi'Ieade Register IResearch Home Registry Home Page Recorded Land Docs by Name Search Results Search Terms Search nameERVEY Parties All Parties Town Brewsterpocument Types*ALL Date RangeLand Document Index from Oct 25,1990 thru Oct 22, 2021 #69787 @ 03:58 Modify Search I New Search show more text Can't find what you are looking for? Try one of the following: show 1Medi gtyour search terms • Select another Deeds Database to look in for your document with the same search terms To print or check the print cart, click on the Documents in Cart (x) located in the upper right corner of the page, Previous axtieed technical assistance lease review our Support/Fre uently Asked Questions document Liens Curr Year 12 Mo Indx 50 Yr Indx Land Court i Rec Lnd Plans DisiNP 10 v gResults per page Print Search Results Date Document Document Book Name Reverse Party Town Received Type Desc (page) ABSView/Prt ERVEY, 06-18- Abstract Of BARBARA R ROBERT R (AS County 2008 Trust ERVEY REV 22988-116 I-1 IR)_(Gtor) TRUST ERVEY, BREWST (TAX 08-16- ROBERT R COLLECTOR) Brewster2013 Discharge 9759/197 27627-198 2 (&O)_(Gtee) ERVEY, Certificate ROBERT R (As. Brewster08-16- Of 22988/114 27627-199 1s- 1 1 TR)_(Gtor) 2013 Municipal Lien ERVEY, DARCY, SEAN 08- l 6- ROBERT R (AS (86W) Brewster2013 Deed 3 451/9 27627-200 `I 11 �. TR &O)_(Gtor), The last matching name is displayed E1�r� httnsJ/search.harnstahledeerls.nra/AL_ISM/W4f10R.HTM2WSSRPP=10&WSHTNM=WW4(11Rf11RWSIOTP=1 Pn1N&WSKYCE=N&WSKYCfS=&WS... 1/2 Application#21-23 www.brewster-ma.gov Page 1 of 1 10/5/2021 DEPARTMENT REVIEWS Application #21-23 APPLICANT/OWNER: Sean and Ellen Darcy REPRESENTATIVE: Attorney David M. Banash MAP/LOT: Map 66, Lot 5 PROPERTY ADDRESS: 61 Consodine Road Received from: Conservation Com. Comments received from Noelle Aguiar, Conservation Administrator  This property does not appear to be within the jurisdiction of the Conservation Commission, so we have no comments to add. Historic District Com. Comments received from Sara Provos, Senior Department Assistant  This property falls within the OKH and may require approval from the Historic District Committee if any changes are done (relocating shed, etc). Police Dept. Comments received from Lt. George Bausch The Brewster Police have no issues. Health Dept. Comments received from Amy von Hone  The Health Department has no comment with regard to the appeal, however, relocation of the shed will require review by the Health Department to confirm access to the existing septic components is not impeded or subject to damage. Building Dept. Comments received from Victor Staley  Please see attached letter Brewster Zoning Board of Appeals 2198 Main Street Brewster, MA 02631-1898 (508) 896-3701 x1168 brewplan@brewster-ma.gov TOWN OF BREWSTER 2198 MAIN STREET BREWSTER, MA 02631 PHONE: (508) 896-3701 EXT 1125 FAX: (508) 896-8089 EMAIL: BUILDING@BREWSTER-MA.GOV WWW.BREWSTER-MA.GOV 1 OFFICE OF BUILDING DEPARTMENT June 29, 2021 Sean and Ellen Darcy 18 Warwick Road Newton, MA 02465 Re: 61 Consodine Road, Identified on Assessors Map 66 Lot 5, located within the Residential Medium Density (RM) Zoning District Dear Mr. and Ms. Darcy, I was requested by your neighbor to investigate the shed located on your property regarding the Brewster Zoning Bylaws. According to two site plans (enclosed) prepared by local engineering firms, one regarding your property dated, November 28, 2011, and one was for the abutting property, 81 Consodine Road (Map 66 Lot 6), prepared on March 29, 2021. Both site plans indicate that a shed exists mostly on your property yet traverses the property line into 81 Consodine Road. The Building Department records indicate that this shed never received a permit from the Building Department, nor has this shed obtained a review from the Brewster Historic District committee as both properties are located within the Old Kings Highway Regional Historic District. Thus, I must order you to take corrective action to address this zoning violation of requisite setbacks identified in Table 2 of Brewster Zoning Bylaws. It would be my belief that you are limited to the following options;  If you are aggrieved with this decision, you have a right to petition the Board of Appeals pursuant to Massachusetts General Law, Chapter 40-A, Sections 8 & 15 to have my decision amended or overturned. Please be advised that you have 30 days from this letter to initiate an appeal.  Submit a building permit application to relocate this shed to a compliant property line setback.  Submit a building permit application to demolish this shed. If you choose to petition the Board of Appeals or relocate the shed, then you will also need to apply to the Brewster Historic District for a Certificate of Appropriateness or an Exemption. TOWN OF BREWSTER 2198 MAIN STREET BREWSTER, MA 02631 PHONE: (508) 896-3701 EXT 1125 FAX: (508) 896-8089 EMAIL: BUILDING@BREWSTER-MA.GOV WWW.BREWSTER-MA.GOV 2 OFFICE OF BUILDING DEPARTMENT Please be advised that you do not have the right to petition the Board of Appeals for a Dimensional Variance pursuant to Brewster Zoning Bylaw Section 52 unless the trespass issue has been resolved. You must take corrective action by July 29, 2021, to avoid further action as described in Brewster Zoning Bylaw, Section 49. Sincerely, Victor E. Staley Building Commissioner VS/sp Enclosure cc: Historic District Committee Board of Appeals FFI RIORAjOj iunnumiumnm��\e TOWN OF BREWSTER, MA BOARD OF ASSESSORS 2198 Main Street Brewster, MA 02631 Abutters List Within 300 feet of Parcel 66/5/0 90 66/6/0 C NSODINE R 66/28 SODIN • D 29/0 SODIN 66/4/0 �NSODINE, R #21-22 Applicant: Benjamin E. Zehnder 178 Bonnie Doone Cartway #21-27 Applicant: Karyn Beedy (Represented by Gabriel Panaite) 23 Blueberry Pond Drive 1 Karyn Beedy – 23 Blueberry Pond Dr – Plot Plan x-- 4-, t 2,-1. / • 1 , , t ' ;.. ." 1:ttee.zfk ____ ±__. , , f- 2"..'.-,..., ,,..., .f ' . .Lt.', i7:.--9-0:-.:C7.-007‘-C-:-/cr-_- 4.9...63 -4K-11/T:?)1. • 1 ' I i 1 Fir'ir.2Y-- - ! ''''' I Z-N5.0----"-A-. 1 - t T:J. TILT JT I- ti".-4 1 1 I I 411" er. lirili-. 6------ 1 .1 _ t I i- 1 i i : . i• ' i 1 0.,g 7 ' . , I- Z-;,>.- '—---• 0. vs .1 . I i ! ,.; . . 4, ... j _ ! 14.__L____E+jr 1. , f, . pre,.... . , ; , ; ; , , „ , • • ,G.-e..,,,. , . , , i .,- , t-. 1 t-- -,I . 1 — r- t I.._0 A— .1.:_i__:_jFpat[mQ_._ 1_,-,-...--1 i--- ---- :-:- -- -- .------ 3.v . . • -4111101111111 • • 1 , , •. ' 472016 , 'i I ' L.C7C25zrith— 1 i.-- t . ' 4-.-1-'s'--- -- d' . 6E144 ,4K-54 I— ‘: 7.:(1)--. --- i 1 A ! , ,0 , ,5-ekat7Z1572 iL 0 t 1 r ' t : . 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ZUIr-624:5-1 1hElLere-- -e2:416-1 azzd_n-eL0---,:ve/-.,r-A9', Jc7/ 29A.------ - - PECY-T-7-- PLA NL4•.;4€:t2/7_-cz27?-,,,oe...75-.---____ . ___ _ 4 s 5K. -IV-IASS . 1 1 r 1 cvL:the_ 7-6- ',0441111PrzP.2:7,57V22.--q7/72i,t7i— 7.------- ; p.rzE-pis..e erz.-Fo la. --------7 I T- FeREKICFZ ----I . 1,:/ ---7-7-12 6 /. .g 'i , '...... .7 it-- ' - ' ' ›.--'"--:-:-f---- ''- 16.1/44".4.1.1,,,i, _ —, - 4"- T, -11-1-1 I ' li • I 1 1, !ill) i i I I. 1-1-1,-, 1 1 ' C-..6t.-E.:,--, 1 , = 50!i ! i 7,—. _e „_ ,___..._.„7___i,,,ilt of 4?",f, ' t •_,_ . i , is 1 1 c-! , • 7—. 1 . :_ _• _ 15al. i 7-2-20.A.p, Jare.7--iaa:2:-__Lzi-_-.-._1----- 4c...s• - - -,- .4, , .s., .low_ ,-iirait r,. t ._ .._,,_ .1.1, -, S-C71CFOESEEe Eg j I MC----------.Nci1, - -t-.--- -5, - I-- - -,-.7.----_---77--. t -7 •t'..4" .; ---•--,----,---, -.. -1' - • , • t- _._ I r_i_ . -7 T' --- --- .'1 C)12 L EA:K.15..j MA I I 7 qistitsk*-I- 549?_ 10 .5 6..5 11 1 2 Karyn Beedy – 23 Blueberry Pond Dr – Building Sketch 3 Karyn Beedy – 23 Blueberry Pond Dr – Apartment Plan Bedroom/Bathroom = 272.7 sq ft Livingroom/Kitchen = 276.75 sq ft TOTAL sq ft = 549.45 sq ft 4 Karyn Beedy – 23 Blueberry Pond Dr – Photos from outside around house and egresses 5 Bedroom/Bathroom = 272.7 sq ft Livingroom/Kitchen = 276.75 sq ft TOTAL sq ft = 549.45 sq ft