HomeMy Public PortalAboutZBA Meeting Packet 02/09/21Zoning Board
Brian Harrison
Chair
Arthur Stewart
Vice Chair
Jeff Carter
Patricia Eggers
Jeannie Kampas
Bruce MacGregor
Susan McShane
Town Planner
Ryan Bennett
Senior Department
Assistant
Ellen Murphy
Town of Brewster Zoning Board of Appeals
2198 Main St., Brewster, MA 02631
brewplan@brewster-ma.gov
(508) 896-3701
MEETING AGENDA
Remote Participation Only
February 9, 2021 at 7:00 PM
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 meeting may be viewed by: Live broadcast (Brewster Government TV Channel 18), Livestream (livestream.brerwster-
ma.gov), or Video recording (tv.brewster-ma.gov).
Meetings may be joined by:
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To request to speak: Press *9 and wait to be recognized.
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Passcode 404716
To request to speak: Tap Zoom "Raise Hand" button or type "Chat" comment with your name and address, then wait to
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1. Call to Order
2. Declaration of a Quorum
3. Meeting Participation Statement
4. Approval of Meeting Minutes
5. #15-31 HOA Paul Hush Way Comprehensive Permit (40B), Compliance. Review and
approve compliance of conditions in order to facilitate conveyance of the remaining lots.
6. Continued Applications:
#20-17 Applicant: Robert S. Tullock and J. Bruce MacGregor (Represented by Attorney
Benjamin Zehnder). Pursuant to Brewster zoning bylaws section §179, Table 1, Use 8
applicants seek an appeal from the Building Commissioner's October 6, 2020
determination; in the alternative, applicants seek a one-time variance from the Table of
Use Regulations to allow grinding of an exisiting concrete material pile on property
located at 0 Commerical High Density (C -H) zoning district and shown on Assessor Map
77, Lots 19, 21 and 22.
#21-03 Applicant: Sean M. Burke & Adam P. Burke (Represented by Andrew L. Singer),
Angler's Catway (aka 0 Holly Avenue Rear), MAP 137, LOT 1, in the RR zoning district.
The applicants seek an appeal from the Building Commissioner's Determination in
accordance with M.G.L. Chapter 40A, Section 8 and 14, or alternatively seeking 2) a
Variance under Article X, Section §179-52 of the Brewster Zoning By -Law and M.G.L.
Chapter 40A, Section 10, from the provisions of Section §179-26(D)(1)b), or 3) other
relief as the Board determines appropriate, in order to confirm that the Property on
Angler's Cartway shown as Parcel 1 on Brewster Assessor's Map 137 is buildable for
single-family residential purposes. (Continuance Requested for March 9th, 2021).
#21-02 Applicant: J&J Revocable Trust, Robert S. Tulloch Trustee (Represented by
Robert S. Tulloch). 32 Sara Ann Lane, MAP 77, LOT 54, in the C -H zoning district. The
applicant seeks a Dimensional Variance pursuant to Bylaws §179-52 to maintain 3 sheds
located within the side setback on the property.
New Applications:
#21-05 Applicant: Byfield Cartway LLC (Represented by Attorney Marian S. Rose ), 79
ByfieldCartway, MAP 50 LOT 6, in the RM zoning district. The applicant seeks a special
Select Board
Mary Chaffee
Chair
Benjamin deRuyter
Vice Chair
Cynthia Bingham
Clerk
David Whitney
Edward Chatelain
Town
Administrator
Peter Lombardi
Assistant Town
Administrators
Susan Broderick
Donna Kalinick
Executive Assistant
to the Town
Administrator
Robin Young
permit pursuant to MGL c. 40A §10 and Bylaws §179-25B to build a primary dwelling
which would be conforming as to setbacks, height and coverage, including relocation of
one cottage(which is located within the fifty -foot wetland buffer) to another conforming
location on the property outside the buffer area.
#21-06 Applicant: 2851 Main Street Holdings LLC (Represented by Ford & Ford
Attorneys at Law), 2851 Main Street, MAP 90, LOT 153-0, in the RM zoning district. The
applicant seeks a Use Variance pursuant to Bylaws §179-52 to restore the Nickerson
House and Barn as an accessory use to the Ocean Edge Resort and Conference Center.
(Continuance Requested for March 9th, 2021).
7. Matters Not Reasonably Anticipated by the Chair
8. Next Meeting: March 9, 2021
9. Adjournment
Date Posted:
2/ 4/ 2021
Date Revised: Received by Town Clerk:
TOWN OF BREWSTER ZONING BOARD OF APPEALS
MEETING MINUTES
Tuesday, January 12th, 2021 at 7PM
Virtual Meeting
Brian Harrison, Chairman, convened the Brewster Zoning Board of Appeals via remote participation with members:
Bruce MacGregor, Jeff Carter, Patricia Eggers, and Jeannie Kampas. Absent: Art Stewart and Susan McShane. A quorum
was determined.
Also present: Benjamin Zehnder (Attorney representing Applicant Pamela Lloyd -Baker), Robert S. Tulloch (Applicant),
Stephanie J. Sequin, P.E. (representing Applicant Wendy J. Makrides), Ryan Bennett (Town Planner) 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 December 8, 2020 minutes
A motion was made by Jeannie Kampas to approve the December 8, 2020, meeting minutes, Pat Eggers
second the motion, a vote was taken: Brian, Bruce, Jeff, Pat and Jeannie approved the minutes unanimously.
• Application Review of #21-01, Applicant: Pamela Lloyd -Baker 45 Warren's Road, Representative: Attorney
Benjamin Zehnder.
Brian Harrison stated the Applicant is seeking a variance, pursuant to section 179-52 and 179-16 of the
Brewster Zoning bylaws from the minimum front yard setback requirement to construct a wood framed
one -car garage. Brian turned the meeting over to Ben Zehnder representing Pamela Lloyd -Baker. Ben
provided a brief overview of the property and stated they are requesting a variance to locate an accessory
structure 18ft from the front lot line where 30ft is required. He stated the RM district requirements and
referred to the plans included in the materials provided to the Board. He reviewed the plans with the Board
indicating the location for the one -car garage as being the optimal option. Brian asked if there was any
public input, there being none, Pat made a motion to close to public input, Jeff Carter second the motion, a
vote was taken: Brian, Bruce, Jeff, Pat and Jeannie unanimously voted to close to public input. Jeff made a
motion to approve the variance request for Pamela Lloyd -Baker at 45 Warren's Road, Map 38, Lot 99 as
submitted, Bruce second the motion, a roll call vote was taken: Brian, Jeannie, Pat, Bruce and Jeff, the vote
was unanimous to approve #21-01. Ben Zehnder to submit a proposed decision to the Board for review.
• Applications Review of #21-02, Applicant: J&J Revocable Trust, Robert S. Tulloch Trustee 32 Sara Ann Lane,
Representative Robert S. Tulloch.
Brian Harrison stated the Applicant is seeking a Dimensional Variance pursuant to section 179-52 of the
Brewster Zoning bylaws to maintain 3 sheds located within the side setback of the property. Bruce
MacGregor declined to participate in the case. Brian informed the Applicant there are only 4 Board
members participating and it would require a unanimous vote to prevail. The Applicant agreed to continue
with the case. Brian turned the meeting over to Robert Tulloch who provided his professional background
and an overview of the case. He indicated that moving the sheds would interfere with the access to the
building. He asked the Board if they had any questions. Brian reviewed the requirements for a variance and
asked the Applicant if he could provide comment. He referred to the plans that were included with the
materials stating that the request is for minimal requirements. Brian asked how long the sheds had been at
Page 1 of 2
that location. The Applicant indicated that the sheds had been on the location since approximately 2005.
Brian asked if the Applicant could provide proof that the sheds were in that location for 15 plus years due to
a statute of limitations within the Zoning Bylaws. Since the Applicant could not provide concrete proof the
Brian suggested the Board grant a continuance to provide the Applicant an opportunity to submit proof
possibly in the form of affidavits to the Board. The Board discussed the one public comment from an
abutter indicating they were in favor of the request. Pat made a motion to continue Application #21-02 until
the next meeting on February 9, 2021, Jeff second the motion, a roll call vote was taken: Brian, Jeff, Pat,
Jeannie, Jeff and Bruce, the vote was unanimous.
• Application Review of #21-03, Applicant: Sean M. Burke & Adam P. Burke, Angler's Cartway (aka 0 Holly venue
Rear), Continuance Requested for February 9th, 2021
Pat made a motion for Application 321-03 be granted a continuance until the next meeting on February 9,
2021, Jeannie second the motion a roll call vote was taken: Brian, Jeff, Jeannie, Pat and Bruce voted
unanimously the Application #21-03 be continued at the February 9th meeting.
• Application Review of #21-04, Applicant: Wendy Makrides, 38 Hillcrest Drive, Representative Stephanie J.
Sequin, P.E.
Brian Harrison stated the Applicant is seeking a special permit, pursuant to section 179-6 of the Brewster
Zoning bylaws, for alterations and renovations of a pre-existing non -conforming dwelling creating additional
habitable space and deck areas. Brian turned the meeting over to Stephanie Sequin representing Wendy
Makrides. Stephanie provided an overview of the request stating that the lot was created in 1955. She
described the current structure indicating it was built in 1970. She reviewed the proposed changes on the
plan provided to the Board. She stated that she obtained approval from the Conservation Commission,
there is no adverse impact to the neighborhood and it is minimal change to the footprint of the structure.
Brian asked if there was any public input, there being none, Pat made a motion to close to public input,
Jeanne second the motion a roll call vote was taken: Brian, Jeff, Bruce, Jeannie and Pat voted unanimously
to close to public input. Brian made a motion to grant the special permit as requested, Pat second the
motion, a roll call vote was taken: Brian, Pat, Jeff, Jeannie and Bruce voted unanimously to approve
Application #21-04.
• Matters Not Reasonably Anticipated by the Chair:
Ryan Bennett informed the Board that Susan McShane formally resigned.
Jean Kampas indicated she may have a conflict with ZBA case #21-06.
The next meeting of the Brewster Zoning Board of Appeals is scheduled for February 9th, 2021.
Pat made a motion to adjourn the meeting, Jeannie second the motion, a roll call vote was taken: Brian, Pat, Bruce,
Jeannie and Jeff voted unanimously. Vote: 5-0-0. Meeting adjourned at 8:03 pm.
Page 2 of 2
#15-31 HOA Paul Hush Way
Comprehensive Permit (40B),
Compliance
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Staff Memo
Date: January 20, 2021
To: Zoning Board of Appeals
Victor Staley, Building Commissioner
From: Ryan Bennett, Town Planner
RE: Paul Hush Way Comprehensive Permit (40B), Compliance
Town of Brewster
Planning Department
2198 Main Street
Brewster, MA 02631
508-896-3701
The Brewster Building Commissioner has been working with Habitat for Humanity on final close-out of
conditions of Comprehensive Permit #15-31, which approved the development located off Tubman
Road known as Paul Hush Way. In order to facilitate conveyance of the remaining lots, the following
conditions require action by the ZBA.
Condition V.C1-f: "...the Applicant shall provide documents establishing such homeowner's
association to the Board for approval as to form and for verification that such documents are in
conformance with this decision. The homeowner's association shall adopt rules and regulations
and copies shall be provided to the Board."
Condition V -C2 -h: "..Prior to the issuance of any certificate of occupancy, the Applicant shall
provide documents establishing such homeowner's association to the Board for approval by legal
counsel as to form and for verification that such documents are in conformance with this decision."
Staff have provided copies herein of the HOA's Declaration of Trust and Covenant. These have been
reviewed by Town Counsel and approved as to form (see attached email dated 12/17/20). In performing
their review, Counsel made a recommendation relative to Paul Hush Way becoming a public way. As that
discussion has not occurred, and lots have already been conveyed under this permit as part of phase 2 of
the project, staff suggests this recommendation by Counsel become part of the file should this topic arise
in the future.
Staff is requesting the Board make a motion that conditions C1.f and C2.h of Comprehensive Permit #15-
31 have been satisfied.
Ryan Bennett
From:
Sent:
To:
Cc:
Subject:
Attachments:
Follow Up Flag:
Due By:
Flag Status:
Hi Ryan,
Shirin Everett <SEverett@k-plaw.com>
Thursday, December 17, 2020 7:38 PM
Ryan Bennett
Peter Lombardi; Jonathan Silverstein
BREW: HOA documents for Paul Hush Way, Comprehensive Permit #15-31, Map 65
LetterreHOAdocstoTownplanner1172018SIGNED.pdf; Tubman Rd Dcln of Trust for
Submission 5-31-16.pdf; Tubman Rd Dcln of Rest. Cov. for Submission 5-31-16.pdf;
Brewster_Tubman_Com p_Permit_Recorded.pdf
Follow up
Wednesday, January 20, 2021 9:30 AM
Flagged
I hope you are well. I reviewed the documents that you sent to Jonathan, a
Homeowners' Association
I approve the Declaration of Trust as to form. It properly places on the
common areas of the development, including the roadway, side
systems, and other common facilities; requires the Associatio
imposes on the lot owners the obligation to pay regular and sp
to enter and fix any problems if the Association fails to maintai
Town sends the Association a notice of default. If tn wants e
over, please let me know, and I will shorten that ti
llowing comments:
'sponsibility for maintaining the
dinage and stormwater management
ollect assessments from the lot owners; and
ents. It also provides the Town with the right
within 60 days from the date on which the
ability to cure problems before the 60 -day period is
accordingly.
Declaration of Easements, Restrictions, Rights e% ions (the "Covenant")
I approve the Covenant as to form, and have e c t. Some municipalities prefer to plan at this initial stage on what
happens if and when the Town the subdivi ' ro as a public way. As you know, when a subdivision developer
conveys the subdivision lots, the d. + = ' conveys to the buyer/lot owner the fee to the centerline of any abutting
road unless the deed expressly s . , s that ' : d Loper reserves the fee in the road. If all the lots are conveyed in this
fashion, the developer no longer s ny ri : s in the road. If and when Town Meeting accepts the subdivision road as a
Town way, the Town needs to obtai cement from all the lot owners, which can be extremely cumbersome,
particularly if the lots have mortgages r them, as many will.
Some municipalities avoid this scenario by having the developer reserve the fee in the road expressly in the deed to each
lot or in a covenant that is recorded before any of the lots are conveyed. By reserving the fee, the deed will convey to the
lot owners only an easement to use the subdivision road, which is all the lot owners need. When the Town accepts the
road, all the Town needs to do is to obtain a deed from the developer.
It appears that Habitat intended to accomplish that result in the Covenant — Section 4, entitled "Easements", states that the
lot owners will have an easement to use the road, and Section 12 states that Habitat will convey the fee in the subdivision
road to the Homeowners Association before Habitat conveys the 14th lot. However, Habitat needs to expressly reserve the
fee in the Covenant. Further, Habitat should not wait to convey the fee in the Road to the Association until the last lot is
sold; rather, Habitat should record a deed conveying the fee in the Road to the Homeowners Association before any of the
lots are conveyed. I also recommend that the Covenant be revised to state the following: "Habitat hereby reserves the fee
in the Road, and shall convey said fee to the Homeowners Association before any of the lots are conveyed." When it
comes time for the Town to accept the road, the Town can acquire the fee or an easement in the road directly from the
Association.
Please let me know if you have any questions.
1
Shirin
Shirin Everett, Esq.
KPLAW
101 Arch Street, 12th Floor
Boston, MA 02110
0: (617) 654 1731
F: (617) 654 1735
severett(c ,k-plaw.com
www.k-plaw.com
This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is PRIVILEGED
and CONFIDENTIAL and/or may contain ATTORNEY WORK PRODUCT. If you are not the intended recipient, you are hereby notified that any
dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this
message and attachments thereto, if any, and destroy any hard copies you may have created and notify me immediately.
From: Jonathan Silverstein <JSilverstein@k-plaw.com>
Sent: Thursday, December 10, 2020 12:02 PM
To: Shirin Everett <SEverett@k-plaw.com>
Subject: FW: HOA documents for Paul Hush Way, Comprehensive Permit
Hi Shirin,
Is this something you could take a look at or supervise?
Thanks!
Jonathan
Jonathan M. Silverstein
KP j LAW
101 Arch Street, 12th Floor
Boston, MA 02110
0: (617) 654 1729
F: (617) 654 1735
Isilverstein(aik-plaw.com
www.k-plaw.com
This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is PRIVILEGED
and CONFIDENTIAL and/or may contain ATTORNEY WORK PRODUCT. If you are not the intended recipient, you are hereby notified that any
dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this
message and attachments thereto, if any, and destroy any hard copies you may have created and notify me immediately.
From: Ryan Bennett <rbennett@brewster-ma.gov>
Sent: Thursday, December 10, 2020 11:37 AM
To: Jonathan Silverstein <JSilverstein@k-plaw.com>
Cc: Peter Lombardi <plombardi@brewster-ma.gov>
Subject: FW: HOA documents for Paul Hush Way, Comprehensive Permit #15-31, Map 65
Hi Jonathan,
With Peter's authorization, please see the following email and attachments requesting counsel assistance with close-out
of a Comp Permit condition and associated HOA documents for ZBA acceptance.
2
Bk 29541 Psi 247 *14911
03--29.2016 02:24r+
The Commonwealth of Massachusetts
TOWN OF BREWSTER
BOARD OF APPEALS
NOTICE OF VARIANCE/SPECIAL PERMIT
Conditional or limited Variance or Special Permit
(General Laws Chapter 40A, Section 17 as amended)
Notice is, hereby given that a Conditional or Limited Variance or Special Permit has been granted
To Habitat for Humanity
Owner or Petitioner
Address . .. 0 Tubman Road
City •orTown Brewster, MA 02631
Map 65 Lot 74 Identify Land Affected Brewster
by the Town of Brewster, Massachusetts.
Board of Appeals, affecting the rights of
the owner(s) with respect to the use of the premises at 0 Tubman Road
the recorded title standing in the name of Habitat for Humanity
whose address is 0 Tubman Road Brewster MA 02631
street
town State
by'a deed duly .recorded in the Barnstable County Registry of Deeds in Book 28445 Page 190
'Registry District of the Land Court Certificate No. Land Ct.# Plan #
The decision of said Board is on file with the papers in Decision or Case No. 15-31
in the office of the Town Clerk, Brewster, MA 02631
City
Certified this,.._.,8 day of March 2016.
Board of Appeals:
Philip Jackson
Chairman
Marilyn Mooers
Clerk
2015, at o'clock and minutes/ M.
Received and entered with the Register of Deeds in the County of
Book ,Page
ZBA 09-10-13
Attest:
Register of Deeds
Notice to be recorded by Land Owner/Authorized Representative
Habitat for Humanity of Cape Cod, Inc.
February 9, 2016
ZONING BOARD OF APPEALS OF THE TOWN OF BREWSTER
DECISION ON THE APPLICATION OF
HABITAT FOR HUMANITY OF CAPE COD, INC.
FOR A COMPREHENSIVE PERMIT
I. BACKGROUND
1. On November 10, 2015, Habitat for Humanity of Cape Cod, Inc., (the "Applicant")
submitted a comprehensive permit application to construct a subdivision consisting of
fourteen (14) single-family houses on approximately 13.92 acres of land located on a
portion of the property located at 620 Tubman Road, Brewster, Massachusetts (the "Site"
or the "Property").
2. The Zoning Board of Appeals ("Board") opened the public hearing on December 8, 2015.
Additional sessions of the public hearing•were held on January 5, 2015 and February 2,
2015. The Board closed the public hearing on February 2, 2016. The Board voted to
grant this Comprehensive Permit, with conditions, on February 9, 2016.
3. The Site is located in the Residential Medium Density (R -M) Zoning District. The Site
does not contain wetland resource areas or buffer zones to wetland resource areas.
4. The Site has frontage on Tubman Road. The Applicant proposes to construct a
subdivision roadway to serve as access for the lots in the Project. The Site is the former
location of the Bassett Wild Animal Farm. Nearby land uses are predominantly
residential. The Site will be served by individual septic systems and municipal water.
5. To evaluate the plans, documents, and testimony submitted by the Applicant's
development team, the Board sought technical assistance and comments from Town staff
and other boards and commissions, as well as from the Cape Cod Commission. Paul
Haverty from Blatman, Bobrowski, Mead and Talerman, LLC served as the Board's
Chapter 40B consultant, pursuant to the Massachusetts Housing Partnership Technical
Assistance Program.
6. Sitting for the Board and present for the public hearing process were Chairman Philip
Jackson, Bruce MacGregor, Brian Harrison, John Nixon, and Leslie Erikson.
7. Exhibit A contains a list of documents the Board received during the public hearing
process.
1
Habitat for Humanity of Cape Cod, Inc.
February 9, 2016
II. GOVERNING LAW
8. The law governing this application is the Comprehensive Permit Law, Massachusetts
General Laws, Chapter 4013, §§ 20-23 (the "Act" or "Chapter 40B"), and the regulations
promulgated by the Department of Housing and Community Development ("DHCD"),
760 CMR 56.00 et seq. (the "Regulations").
9. The Act promotes regional distribution of low or moderate income housing by preventing
individual cities and towns from using exclusionary zoning to block construction of such
housing. Toward these ends, the purposes of the Act are satisfied if: (a) a town has low or
moderate income housing in excess of 10 percent of the total number of year-round
housing units reported in the latest decennial census or (b) which is on sites comprising 1
'/2 percent or more of the town's total land area zoned for residential, commercial, or
industrial use, or (c) if the application results in the commencement of low and moderate
income housing construction on sites comprising more than .3 percent of such total area
or 10 acres, whichever is larger, in one year.
10. DHCD's Regulations expand the definition of what constitutes satisfaction of the statute
to include regulatory safe harbors contained at 760 CMR 56.03(4) through 56.03(7).
11. The Board's decision on a comprehensive permit must balance the regional need for low -
or moderate -income housing against the Town's long-range planning goals, local
requirements and regulations to the extent that they are applied equally to subsidized and
unsubsidized housing, and valid concerns about the health and safety of residents of the
proposed housing, the surrounding neighborhood, or the Town as a whole.
III. FINDINGS:
The Board makes the following findings in connection with the application:
12. The Applicant has complied with all rules and regulations of the Town of Brewster as
they pertain to the application for a Comprehensive Permit, or to the extent that the
Applicant has not fully complied with the rules and regulations regarding submittal
requirements, the Board finds that the requirements will be met as part of the submittal of
Final Plans and the Definitive Subdivision Plans.
13. The Applicant has demonstrated its eligibility to submit an application for a
Comprehensive Permit to the Board, and the development fulfills the minimum project
eligibility requirements set forth in 760 CMR 56.04(1) as follows:
(a) The Applicant is a non-profit entity, as it is an entity under the umbrella of
Habitat for Humanity International, Inc., a Section 501(c)(3) non-profit entity.
The Applicant has submitted a letter from the Internal Revenue Service
confirming its non-profit status.
2
Habitat for Humanity of Cape Cod, Inc.
February 9, 2016
(b) The Applicant received a written determination of Project Eligibility from the
Department of Housing and Community Development dated October 13, 2015, a
copy of which was provided to the Board with the original application.
By including with its application a copy of its Deed, recorded with the Barnstable
County Registry of Deeds in Book 28445, at Book 190, the Applicant has shown
evidence of site control sufficient to qualify as an applicant for a Comprehensive
Permit.
(e)
(d) The Applicant will execute a Regulatory Agreement in accordance with Chapter
40B and the regulations and guidelines adopted thereunder by DHCD.
14. The Town of Brewster does not meet the statutory minima set forth in G.L. c. 40B § 20
or 760 CMR 56.03(3) to 56.03(7):
(a) At the time of the filing of the application, according to the most -recently
published Subsidized Housing Inventory (SHI) dated December 5, 2014, the
number of low or moderate income housing units in the Town of Brewster
constituted 5.1% of the total year-round units in the Town. Thus, the Town does
not meet the 10 percent statutory minimum.
(b) Existing affordable housing units are on sites which comprise less than one and
one half percent of the total land area of the Town which is zoned for residential,
commercial or industrial use (excluding land owned by the United States, the
Commonwealth of Massachusetts or any political subdivision thereof).
The granting of this comprehensive permit will not result in the commencement
of construction of low or moderate income housing units on a site comprising
more than three tenths of one percent of land area in the Town of Brewster or ten
acres, whichever is larger, zoned for residential, commercial or industrial uses
(excluding land owned by the United States, the Commonwealth of Massachusetts
or any political subdivision thereof) in any one calendar year.
(d) The Town of Brewster had an approved Housing Production Plan pursuant to 760
CMR 56.03(4), but said plan expired in 2014.
(e) The Town of Brewster has not achieved recent progress toward its housing unit
minimum pursuant to 760 CMR 56.03(5).
(f) The Project does not constitute a Large Project pursuant to 760 CMR 56.05(6).
(g) The Applicant's comprehensive permit application does not constitute a Related
Application pursuant to 760 CMR 56.03(7).
15. The development, if constructed and operated in conformance with the plans and
conditions set forth hereunder, will adequately provide for stormwater drainage, sanitary
sewer services and water services, and other appurtenant utilities and amenities, and it
(c)
3
Habitat for Humanity of Cape Cod, Inc.
February 9, 2016
will not be a threat to the public health and safety of the occupants of the development,
the neighborhood, or the Town.
16. The Board finds that the conditions imposed in Section V of this Decision are necessary
in order to address Local Concerns. The Board fords that such conditions will not render
the project uneconomic. To the extent that such conditions may render the project
uneconomic (as defined in 760 CMR 56.02), the Board finds that the Local Concerns
outweigh the potential benefits of the proposed affordable units.
17. The Board fords that granting certain waivers from local by-laws and regulations is
acceptable even though granting any waivers may have an adverse impact on Local
Concerns. Nevertheless, the Board finds that the Local Concerns affected thereby do not
outweigh the regional need for affordable housing, especially given the mitigation that
has been provided by the Applicant.
18. The Board finds that construction of a fourteen (14) lot single-family residential
subdivision at the Property will be consistent with local needs.
IV. DECISION
In consideration of all of the foregoing, including the plans, documents and testimony
given during the public hearing, the Board hereby grants the Applicant a comprehensive permit
under Chapter 40B for the development described herein, subject to the conditions set forth
below.
V. CONDITIONS
A. General
A.1 The holder of this Comprehensive Permit is defined as a non-profit entity, Habitat
for Humanity of Cape Cod, Inc. The site is defined as that property containing
approximately 13.92 acres of land constituting a portion of the property located at
620 Tubman Road, Brewster, Massachusetts. The Project is defined as all features
shown on the plans listed below in Condition A.2 or as otherwise required by this
Comprehensive Permit.
A.2 • Except as may be provided for in the following conditions or in the Final Plans
referenced below, the Project shall be constructed substantially in conformance
with the plans and drawings listed below in this Condition A.2, which for
purposes of this Comprehensive Permit shall be considered the Approved Plans
for the Project ("Approved Plans"). Changes to the location of the structures
shown on the Site Plans which do not increase dimensional waivers by more than
five percent (5%) of the required dimensional requirement (e.g. a waiver from the
forty foot (40') front setback that does not increase the required waiver by more
than two feet (2')), shall be considered insubstantial changes pursuant to 760
CMR 56.05(11), and shall be allowed upon submittal of as -built plans depicting
4
Habitat for Humanity of Cape Cod, Inc,
February 9, 2016
the revised location. Additional revisions of locations of structures which do not
require additional waivers shall also be allowed as insubstantial changes pursuant
to 760 CMR 56.05(11). If the Inspector of Buildings determines that the
proposed changes do not conform to the requirements of this Comprehensive
Permit, he shall so notify the Applicant and the Applicant shall either bring the
plans into conformance with this decision or seek modification in accordance with
760 CMR 56.05(11). The Approved Plans consist of the following:
i. Site Plan titled "Comprehensive Permit Plans, Tubman Road, Brewster, MA"
prepared for Habitat for Humanity of Cape Cod, Inc. by J. M. O'Reilly and
Associates, Inc. dated 11/5/15 and revised 01/08/16 (one sheet).
ii. "Habitat for Humanity, Brewster Tubman Neighborhood, Brewster MA,
prepared for Habitat for Humanity of Cape Cod, Inc. by Brown Lindquist
Fenuccio & Raber, Architects, Inc. dated 04/15/2015 including Sheets Al through
A5"
iii. Landscaping Plans titled Habitat for Humanity — Brewster, MA Oak Street
Project, prepared by Studio 815 Landscape Architecture, undated.
A.3 The Applicant shall be a Non -Profit Entity as required by Chapter 40B and it and
its successors and assigns, shall comply with all applicable requirements of
Chapter 40B and the regulations adopted thereunder.
A.4 The Project shall consist of not more than fourteen (14) single family houses
located on fourteen (14) house lots, and other related residential amenities, all as
shown on the Approved Plans. All of the units are proposed as affordable units.
'A.5 There shall be a minimum of two (2) parking spaces per house lot.
A.6 All residential units approved under this Comprehensive Permit shall be single-
family homeownership units, subject to a Homeowner's Association.
A.7 Pursuant to the Waiver List voted upon by the Board at the January 5, 2016
hearing, the Applicant has requested, and the Board has granted, waivers from the
Brewster Zoning Bylaw and other local by-laws and regulations as specified in
Exhibit A hereto. No waivers are granted from requirements that are beyond the
purview of G.L. c. 40B, §§20-23. No waivers are granted from permit or
inspection fees. Any subsequent revision to the Plans, including but not limited to
revisions that are apparent in the Final Plans that require additional or more
expansive waivers of any local by-laws or regulations (except as discussed above
in A.2), must be approved by the Board in accordance with 760 CMR 56.05(11).
To the extent that additional waivers are subsequently determined to be required
with respect to improvements that are otherwise shown on the Approved Plans,
such waivers shall be deemed an insubstantial change to the Comprehensive
Permit under 760 CMR 56.05(11), and can be granted administratively by the
Board.
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A.8 The Applicant shall comply with all local regulations of the Town of Brewster
and its boards, commissions, and departments unless specifically waived herein or
as otherwise addressed in these conditions.
A.9 The Applicant shall copy the Board on all correspondence between the Applicant
and any federal, state, or Town official, board, or commission concerning the
conditions set forth in this decision, including but not limited to all testing results,
official filings, environmental approvals, and other permits issued for the Project.
A.10 Except as otherwise specifically provided herein, where this Decision provides for
the submission of plans or other documents for approval by the Building Inspector
or other Town Departments, the Building Inspector or applicable Department
Head will use reasonable efforts to review and provide a written response within
thirty (30) days following submission.
A.11 This Comprehensive Permit may be subsequently assigned or transferred pursuant
to 760 CMR 56.05(12)(b). The pledging of the Property as security under any
conventional loan construction financing terms as set forth in the financing
entity's Loan Documents or any foreclosure sale pursuant to the same shall not
constitute an assignment or transfer under this paragraph.
A.12 The provisions of this Comprehensive Permit Decision and Conditions shall be
binding upon the successors and assigns of the Applicant, and the obligations
shall run with the land. In the event that the Applicant sells, transfers, or assigns
its interest in the development, this Comprehensive Permit shall be binding upon
the purchaser, transferee, or assignee and any successor purchasers, transferees or
assignees. The limited dividend restrictions shall apply to the owner of the
project regardless of sale, transfer, or assignment of the project.
A.13 The sidewalks, driveways, roads, utilities, drainage systems, and all other
infrastructure shown on the Approved Plans as serving the Project shall remain
private until such time, if ever, the Project roadways are accepted by the Town of
Brewster as public ways, and the Town of Brewster shall not have, so long as the
roadway remains private, any legal responsibility for the operation or
maintenance of the infrastructure, including but not limited to snow removal and
landscape maintenance. Nothing stated above shall prevent the Applicant, its
successors and assigns from petitioning the Town of Brewster to accept the
roadway in the future,
A.14 Unless otherwise indicated herein, the Board may designate an agent to review
and approve matters on the Board's behalf subsequent to this Decision,
B. Affordability Requirements
B.1 All fourteen (14) houses in the Project shall be low- or moderate -income units,
meaning they shall be sold to households whose income is no more than eighty
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February 9, 2016
percent (80%) of the area median income, as determined by the United States
Department of Housing and Urban Development ("HUD") and DHCD.
B.2 Upon completion of the Project and in perpetuity, all fourteen (14) houses shall
meet the criteria for inclusion in DHCD's "Subsidized Housing Inventory" (SHl).
B.3 The Applicant shall obtain approval by the Subsidizing Agency of an affirmative
fair housing marketing plan prior to the sale of any units, and shall ensure that the
Project complies with the Subsidizing Agency's fair housing requirements.
B.4 At the approval of the applicable subsidy program, the maximum number of
affordable units allowed by law and applicable subsidy program, but no more than
seventy (70%) percent of the units, shall be reserved for current residents of the
Town of Brewster, municipal employees of the town of Brewster, employees of
businesses located in the Town of Brewster and households with children
attending Brewster's schools. A lottery shall be established in a form approved
by the Subsidizing Agency and/or the Project's monitoring agent to effectuate this
local preference, with an approved secondary lottery for all other applicants. The
Applicant shall assist the Town in the submittal of any evidence required by the
Subsidizing Agency to support this local preference requirement.
C. Submission Requirements
C.1
Prior to any construction on the Site, whether or not pursuant to a building permit,
the Applicant shall:
a. Obtain a National Pollution Discharge Elimination System (NPDES)
Permit from the U.S. Environmental Protection Agency (EPA). The
Board shall also be provided a copy of the SWPPP submitted along with
the NPDES filing.
b. Provide the Board with evidence of compliance with pre -blasting activities
requirements, if necessary.
c. Submit to the Board for review and administrative approval Final
Engineering Drawings and Plans ("Final Plans") that conform to the
requirements of this Comprehensive Permit and incorporate the conditions
herein. The Final Plans shall also incorporate all conditions and
requirements of permitting agencies having jurisdiction. Applicable sheets
of the Final Plans shall signed and sealed by the Professional Land
Surveyor, the Registered (Civil) Engineer of record, and the Registered
Landscape Architect of record. The Final Plans shall be submitted to the
Board at least forty-five (45) days prior to the anticipated date of
commencement of building construction or submission of an application
for building permits, whichever is earlier (the "Final Site Plan Submission
Date").
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At a minimum, the Final Plans shall consist of a Definitive Subdivision
Plan containing all of the required information from the Brewster
Subdivision Rules and Regulations, except as waived herein.
The Final Plans shall address the following additional issues:
i. Submit to the Building Inspector a construction mitigation plan
including, but not limited to, dust control measures, fill delivery schedules,
stockpiling areas, and like matters. Other than site work and such other
work as may be authorized in writing by the Building Inspector, no other
construction of units shall commence and no building permits shall issue
under this Comprehensive Permit until the Building Inspector, in
consultation with the Board's engineer, has approved the Final Plans as
being in confoimance with this Decision. If no written response or
comments have been given to the Applicant by the Building Inspector
concerning the Final Site Plans within forty-five (45) days after the Final
Site Plan Submission Date, the Final Plans, as delivered, will be deemed
to have been approved.
d. Submit to the Board and the Building Inspector a landscaping plan with
the Final Plans, depicting the following:
(1)
Overall planting plan that includes a demarcation of clearing and
the limits of work;
(2) Planting plans for drives showing shade trees and lighting fixture
locations;
Prototype planting plans for each building that include shade trees,
ornamental trees, shrubs, and groundcovers;
(4) Planting details for coniferous and deciduous shade trees,
ornamental trees, and shrubs;
Planting schedules listing the quantity, size, height, caliper,
species, variety, and form of trees, shrubs, and groundcovers;
(6) Tree protection and preservation plans; and
(7) Construction details.
All plantings shall consist of non-invasive, drought -tolerant species.
Plantings installed along drives and walkways shall also be salt -tolerant.
e. Obtain from the Brewster Board of Health a Disposal Works Permit
pursuant to 310 CMR 15.00 (Title V) for each individual septic system.
(3)
(5)
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f. Applicant proposes to establish homeowner's associations to maintain and
repair all common areas, the project roadway and associated
infrastructure, including the stormwater management system. Such
documents shall set forth the obligations of the homeowner's association
for the operation and maintenance of all such common areas and
improvements. Prior to the issuance of any building permits, the Applicant
shall provide documents establishing such homeowner's association to the
Board for approval as to four and for verification that such documents are
in conformance with this decision. The homeowner's association shall
adopt rules and regulations and copies shall be provided to the Board.
C.2 Prior to the issuance of a building permit for the project, the Applicant shall:
a. Record this Comprehensive Permit with the Barnstable County Registry of
Deeds, at the Applicant's expense, and provide proof of the same to the
Building Inspector.
b. Submit to the Board and the Building Inspector evidence of Final
Approval from the Subsidizing Agency (DHCD), as required by the
Project Eligibility letter and the Chapter 40B regulations.
c. Submit to the Board and the Building Inspector a copy of the Regulatory
Agreement for the Project. Execution and recording of such Regulatory
Agreement shall be complete prior to the issuance of any building permit.
d. Submit to the Building Inspector final Architectural Plans prepared and
sealed by an architect with a valid registration in the Commonwealth of
Massachusetts ("Architectural Plans"). The Architectural Plans shall be
submitted in such form as the Building Inspector may request.
e. The Board's . engineer shall approve the maintenance schedule for the
stormwater system.
f. Obtain and file with the Building Inspector a copy of all federal, state, and
local permits and approvals required for the Project.
g. Submit evidence of a disposal works permit from the Brewster Board of
Health pursuant to 310 CMR 15.00 (Title V), for construction of the septic
systems for any lot for which a building permit is sought.
h. Applicant proposes to establish a homeowner's association to maintain
and repair all common areas and to maintain and repair the stormwater
management system, open space areas and roadways serving the various
lots. Such documents shall set forth the obligations of the homeowner's
association for the operation and maintenance of all such common areas
and improvements. Prior to the issuance of any certificate of occupancy,
the Applicant shall provide documents establishing such homeowner's
association to the Board for approval by legal counsel as to form and for
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Habitat for Humanity of Cape Cod, Inc.
February 9, 2016
verification that such documents are in conformance with this decision.
The homeowner's association shall adopt rules and regulations and copies
shall be provided to the Board.
D. . Construction Completion; Certificate of Occupancy
D.1 Prior to issuance of a certificate .of occupancy for any lot in the Project, the
Applicant shall:
a. Submit interim engineer's certification of compliance with utilities plan
and profiles to the Department of Public Works.
b. Provide a letter to the Board, signed by the Applicant's civil engineer,
certifying that the Project has been constructed in compliance with the
Final Plans.
c. Obtain acceptance from the Building Department and/or Fire Department
of testing of all fire protection systems, fire alarm systems, fire sprinkler
systems, and local smoke alarms within the dwelling units.
D.2 Prior to issuance of the final certificate of occupancy, the Applicant shall:
a. Submit to the Building Department, in digital file format, a final as -built
plan showing rim and invert elevations, roadway, and associated
construction. The digital file shall include property boundaries,
dimensions, easements, rights -of -way, edge of pavement, topographic
contours, spot elevations, parking areas, road centerline and associated
text. Said digital data shall be delivered in the Massachusetts State Plane
Coordinate System, North American Datum 1983 and North American
Vertical Datum 1988, in U.S. Survey Feet.
b. Submit to the Building Inspector as -built plans for all buildings in the
Project.
E.- Project Design and Construction
E.1 The Applicant and the site general contractor shall attend a preconstruction
conference with the Building Inspector and other Town Department heads as may
be determined.
E2 The Applicant shall comply with the blasting guidelines required by applicable
Massachusetts state law, rules, and regulations. The Applicant shall permit
representatives of the Board to observe and inspect the Site and construction
progress until such time as the Project has been completed.
E.3 The proposed construction shall be in accordance with applicable federal and state
laws, rules and regulations.
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February 9, 2016
E.4 The Applicant shall request and obtain permits and approvals from the Brewster
Fire Department for fire hydrant locations.
E.5 All site retaining walls four (4) feet or greater in height shall be designed by a
Massachusetts Professional Structural Engineer.
E.6 During construction, the Applicant shall conform to all local, state, and federal
laws regarding noise, vibration, dust, and blocking of Town roads. The Applicant
shall at all times use all reasonable means to minimize inconvenience to residents
in the general area. Adequate provisions shall be made by the Applicant to control
and minimize dust on the site during construction in accordance with the
construction mitigation plan.
E.7 Appropriate signage shall be shown on the Final Plans.
E.8 The location of all utilities, including but not limited to electric, telephone, and
cable, shall be shown on the Final Plans. All transformers and other electric and
telecommunication system components shall be included on the Final Plans. The
location of features shown on the approved design including but not limited to fill
pipes, vents, bollards, connections between tanks (if applicable) etc., shall be
shown on the Final Plans.
E.9 If natural gas is proposed, gas service locations shall be included on the Final
Plans.
E.10 Any lighting for the Project shall comply with the Town of Brewster's Zoning
Bylaw.
E.11 Utilities, including but not limited to telephone, electric, and cable, shall be
located underground.
E.12 Soil material used as backfill for access drives shall be certified by the Project
Engineer to the Building Inspector as meeting design specifications, as applicable.
E.13 Construction activities shall be conducted between the hours of 7 a.m. and 7p.m.,
Monday through Saturday. For purposes of this condition, construction activities
shall be defined as: start-up of equipment or machinery, delivery of building
materials and supplies; removal of trees; grubbing; clearing; grading; filling;
excavating; import or export of earth materials; installation of utilities both on and
off the site; removal of stumps and debris; and erection of new structures. All off-
site utility work shall be coordinated and approved by the Department of Public
Works and shall not be subject to the timing restrictions set forth above. Parking
of all vehicles and equipment must be on site during construction.
E.14 Burning or burial of construction or demolition debris on the site is strictly
prohibited. All such materials are to be removed from the site in accordance with
applicable law. All construction materials shall be stored or stockpiled in a safe
manner. Any floodlights used during the construction period shall be located and
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Habitat for Humanity of Cape Cod, Inc.
February 9, 2016
directed so as to prevent spillover or illumination onto adjacent properties. All
construction activities are to be conducted in a workmanlike manner.
E.15 No building areas shall be left in an open, unstabilized condition. If construction
ceases for a period of more than sixty days, temporary stabilization shall be
accomplished by hay bales, hay coverings or matting. Final stabilization shall be
accomplished by loaming and seeding exposed areas.
E.16 All retaining walls shall be constructed in an aesthetic manner, specifically,
retaining walls shall avoid the use of exposed concrete to the greatest extent
practicable.
E.17 Snow removal shall be the obligation of the Applicant and its successor
Homeowner's Association, until such time, if ever, that the Town agrees to accept
responsibility for snow removal.
F. Traffic Safety Conditions
F.1 The area within the cul-de-sac shall include low profile landscaping along the
perimeter (small shrubs, no trees) to facilitate emergency vehicle circulation
around the cul-de-sac, as requested by the Brewster Fire Department.
G. Police, Fire, and Emergency Medical Conditions
0.1 Appropriate sight distance shall be maintained at the intersection of the Project
Driveway and Tubman Road. The Applicant shall include language in the
Homeowners Association documents requiring necessary maintenance of
vegetation to ensure adequate sight distance.
H. Water, Septic, and Utilities
H.1 The water, septic, and drainage utilities servicing the single-family houses in the
Project shall be installed and tested in accordance with applicable Town of
Brewster requirements and protocols, except as may be waived herein.
H.2 Utilities shall be installed underground by the Applicant using methods standard
to those installations. Utilities shall be defined as electric service lines, telephone
lines, water service lines, CATV lines, municipal conduit and the like.
I. Other General Conditions
L1
The proposed structures shall be constructed in accordance with the approved Site
Plans and Architectural Plans. Any changes to the structures prior to initial
occupancy (beyond what is permitted pursuant. to Condition A.2) must comply
with the procedures set forth in 760 CMR 56.05(11). Any changes subsequent to
initial occupancy shall be considered a modification of a pre-existing
nonconforming structure consistent with the provisions of G. L. c. 40A, § 6 and
Article VIII of the Brewster Zoning Bylaws.
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February 9, 2016
1.2 This decision will be deemed to be final upon the expiration of the appeal period
with no appeal having been filed or upon the final judicial decision. following the
filing of any appeal, whichever is later. In accordance with 760 CMR
56.05(12)(c), this Comprehensive Permit shall expire three (3) years from the date
that the permit becomes final, unless (1) prior to that time substantial use of the
Comprehensive Permit has commenced or (ii) the time period is otherwise tolled
in accordance with law. The Applicant may timely apply to the Board for
extensions to the Comprehensive Perniit as permitted by law.
I.3 The Applicant or the successor Homeowner's Association shall be responsible for
the operation and regular maintenance of all pedestrian walkways, parking areas,
and other common facilities shown or described in the Approved Plans and
materials, including, but not limited to, regular snow plowing, until such time, if
ever, the roadway is accepted by the Town of Brewster.
1.4 If any default, violation or breach of these conditions by the Applicant is not
cured within thirty (30) days after notice thereof (or such longer period of time as
is reasonably necessary to cure such a default so long as the Applicant is
diligently and continuously prosecuting such a cure), then the Town may take one
or more of the following steps: (a) by mandamus or other suit, action or other
proceeding at law or in equity, require the Applicant to perform its obligations
under these conditions; (b) have access to, and inspect, examine and make copies
of all of the books and records of the Applicant pertaining to the project; or (c)
take such other action at law or in equity as may appear necessary or desirable to
enforce these conditions. If the Town brings any claim to enforce these
conditions, and the Town finally prevails in such claim, the Applicant shall
reimburse the Town for its reasonable attorneys' fees and expenses incurred in
connection with such claim.
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Habitat for Humanity of Cape Cod, Inc.
February 9, 2016
RECORD OF VOTE
The Board of Appeals voted 5 - a at its public meeting on February 9, 2016, to
unanimously grant a Comprehensive Permit subject to the above -stated Conditions, with this
decision as attested by the signatures below.
Members in favor:
Philip Jacks •" / Brian Harriso
B' M�cCrrego
Leslie Erikson
Dated: February 9, 2016
Filed with the Town Clerk on
usuo
axon
11 , 2016.
Town Clerk
The tw ty-day appeal period has lapsed the day of
tAcked-i
NO appeal has been filed on
An appeal has been filed on
Ma= 0A0 Town Clerk
Notice: Appeals, if any, by any party other than the Applicant, shall be made pursuant to
Massachusetts General Laws, Chapter 40A, s. 17, and shall be filed within twenty (20) days after
the filing of this notice in the Office of the Town Clerk, Town Hall, Brewster, Massachusetts.
Any appeal by the Applicant shall be filed with the Housing Appeals Committee pursuant to G.
L. c. 4013'; ,i2 . 4thin�twenty (20) days after the filing of this notice in the Office of the Town
Cler t �' ' „ '
m'itS:
�l: C;
,-' * .....
14
List of Approved Waivers -Tubman Road Community Housing
WAIVERS REQUESTED:
Habitat for Humanity of Cape Cod, Inc. requests the following waivers from local code and regulations in
order to promote the creation of affordable housing.
Zoning, Chapter 179, From the Code of the Town of Brewster
§179-13 Regulations effective in all districts
Waive the provision that no lot in the town of Brewster shall be used for residential building purposes
unless there is at least 60,000 square feet of contiguous buildable uplands.
The Board voted unanimously to grant a waiver allowing lots with upland area less than 60,000 square
feet, as shown on the Site Development Plans.
§179-15 Applicability of regulations
Waive regulations pertaining to minimum lot area, minimum lot frontage, lot width, front yard and side
yard depth as detailed below. Waivers are not needed for rear yard depth, building height, or maximum
lot coverage (see below).
Area Regulations f Minimum Required Lots R -M:
R -M
REQ.
PROVIDED:
Lot1
Lot2
Lot3
Lot4
Loth
Loth
Lot?
Lot8
Lot9
Lot 10
Lot11
Lot12
Lot13
Lot14
Area
60,000
14,593
13,863
13,424
15,423
15,632
17,416
13,605
14,507
14,972
14,651
16,797
15,193
13,189
14,221
Lot
Frontage
150
134.25
96.44
81.92
83.2
129.55
168.78
120.72
89.33
80.24
88,95
79,59
82.49
85,18
136.28
Front
Yard
40
23.7
22.7
25.5
24.0
21.5
25.6
26.3
24.7
24.5
22.2
23.2
26.4
25.1
22,0
Side
Yard
25
53,3
44.1
42.7
11.9
37.7
14.5
6.9
50.6
36.5
47.2
71.0
65.7
46,2
35.9
42.0
27,5
37.8
32.8
24.8
37.5
18,3
44.9
45,6
32.6
62.8
21,3
34.5
45.7
Rear
Yard
25
40.7
74.8
81.3
77.6
54.9
42.9
52.7
71.3
58.2
68.1
49.2
43.2
30.1
41.8
Lot
Width
120
Conforms when based on lot width, as measured from provided the front yard setback line, being at least 80% of provided lot frontage
Height
30
No Waiver Needed
Max Lot
Coverage
25%
No Waiver Needed
Waivers are requested from area regulations as needed for construction of submitted plans. We also request a margin of plus or minus 5% to
allow for insubstantial changes that may be needed based on field conditions, Also note coverage percentages listed above do not include
porches, stoops, decks or sheds. Sheds will conform to 10' side/rear setbacks or distances listed above, whichever is less.
The Board voted unanimously to grant the dimensional waivers requested by the Applicant. The
Board also voted to changes in dimensional waivers that do not exceed 5% of the required
dimensional requirement to be considered insubstantial changes. See Condition A.2 of the
Comprehensive Permit issued by the Board.
§179 Article VI Signs
Waive applicability of sign regulations, including those promulgated by the Old King's Highway Historic
District, to any and all temporary construction signage identifying the Habitat build, donors, and other
Habitat. programs.
.
The Board voted unanimously to grant the waiver of temporary signage requirements. No permanent
sign waiver was requested by the Applicant or granted by the Board.
§179-47 Conformance to subsequent amendments
Waive the requirement that the project shall conform to subsequent zoning code amendments that are
within six months after the issuance of a permit.
The Board determined that this waiver is not required. Pursuant to 760 CMR 56.02, local
requirements and regulations are defined as only those regulations in effect at the time the
comprehensive permit is filed. Accordingly, subsequent zoning amendments would not be applicable
to the 40B development.
§179 Article XII Site Plan Review
Waive any requirements on the applicability of Site Plan Review. Under MGL Chapter 40B the
Comprehensive Permit process provides for a municipal review and the Zoning Board of Appeals sits in
the place of all local boards.
The Board determined that this waiver is not required, as it is a procedural waiver subsumed within
the 40B application process.
Subdivision Rules and Regulations, Chapter 290, From the Code of the Town of Brewster
Habitat for Humanity respectfully requests that all Subdivision Rules and Regulations be waived. Under
MGL Chapter 403 the Comprehensive Permit process provides for a municipal review and the Zoning
Board of Appeals sits in the place of all local boards. Waivers requested include, but are not limited to,
those specific sections listed below.
The Board did not vote to grant a blanket waiver of Subdivision Rules and Regulations, but did vote to
grant the specific waivers listed below.
§290-5 Submission of a definitive plan required
Waive the requirement that a definitive plan be submitted to and approved by the Planning Board.
Under MGL Chapter 40B the Zoning Board of Appeals sits in the place of all local boards.
The Board determined that this waiver is not required, as it is a procedural waiver subsumed within
the 40B application process.
§290-6 Required Board review
Waive the requirement of Planning Board review. Under MGL Chapter 403 the Zoning Board of Appeals
sits in the place of all local boards.
The Board determined that this waiver is not required, as it is a procedural waiver subsumed within
the 40B application process.
§290-10 Definitive Plans
Waive the requirement and process for the filing of a definitive plan of a subdivision with the Planning
Board and the requirements under this section. Under MGL Chapter 40B the Zoning Board of Appeals
sits in the place of all local boards. The final plan, to be drawn on Mylar and submitted to the Zoning
Board for endorsement, will substantially conform to all elements listed in §290-10C, with the
exception that the endorsement block will be prepared for the Zoning Board instead of Planning
Board (§290-10C(13)), the plan will reference the Comprehensive Permit rather than a development
as defined in the Zoning Chapter (§290-10C(16)) and requested waivers will be in the Comprehensive
Permit Decision, not contained in a letter accompanying the plan (§290-10C(17))
The Board voted to grant a waiver from Section 290-10, as requested.
§290-25 Timeline limitation
Waive the applicability of this section. The timeline for build out has been agreed upon between the
developer and the Brewster Community Preservation Committee as part of the grant award.
The Board voted to grant this requested waiver, to allow for a buildout consistent with the agreement
with the Community Preservation Committee:
§290-26 General requirements
Waive the applicability of this section.
The Board voted to grant this waiver, to allow for the applicable requirements to be the conditions
granted in the Comprehensive Permit decision.
§290-31 Monuments
Waive the applicability of this section. Monuments will be installed as shown on the definitive plan.
The Board voted to grant this waiver, with the condition that it must approve all monuments as part
of the review of the Final Plans, in consultation with the Planning Department.
§290-35 Inspections and control
Waive the applicability of this section. Inspections will be completed as required by the applicable utility
companies. Applicant's engineer will be responsible for Inspections #1-#9 and will provide the Town
documentation of these inspections upon request.
The Board voted to grant this waiver.
§290-39 Fees
Waive the applicability of this section. Habitat for Humanity offers 100% of our homes affordable, and
looks to fee waivers to help us keep our builds affordable.
At its January 25, 2016 meeting, the Brewster Board of Selectmen voted to approve a waiver of
Building Department, Planning Department and Zoning Board fees for the Project. The Board of.
Selectmen issued a letter noting that Building Department inspection fees.cannot be waived, nor can
abutter notice fees or advertisement fees. The Board adopts the waiver decision of the Board of
Selectmen, as granted.
§290-40 Traffic impact guidelines
Waive the applicability of this section. Habitat for Humanity has submitted an Initial Impact Assessment.
The Board reviewed this waiver request and determined that the required sight distances are
provided. The Board voted to grant a procedural waiver of the traffic impact statement.
X290 Table 1, Table 2 and Table 3
The proposed subdivision road meets all Street Cross -Sectional Design Standards, Street Geometric
Design Standards and Required Depths of Pavement Sections so long at it is considered a "Minor street
or road" or an "Arterial street or road." If the circle at the end of the subdivision road is not considered a
cul-de-sac, a waiver is requested from the requirement of 150' Radius at Center Line.
The Board voted to make a determination that the proposed subdivision road is a "Minor Road". The
Board also made a determination that the circle at the end of the road is a cul-de-sac as defined by
the Rules and Regulations. The Board determined that no waiver is necessary. However, the Board
made the subsidiary determination that, if the roadway is subsequently found to be neither a minor
road or cul-de-sac, the Applicant's waiver request is granted.
Town of Brewster, Historic District Committee
A small portion of the site is in the Town of Brewster, Old King's Highway Historic District. This portion is
the area off of Tubman Road (approximately 500') that is the "panhandle" and has the subdivision road.
Habitat request a waiver from the applicability of historic review and the requirement to file for and
receive a Certificate of Appropriateness.
The Board determined that this waiver is not required to allow the construction of the proposed
structures. The Board also determined that if it is subsequently determined that waiver of the
Historic District designation is required to allow the construction of the structures outside of the
Historic District, then such waiver is granted. However, the Board granted no waivers authorizing the
construction of structures within the Historic District.
Town of Brewster Board of Health
Project complies with all local substantive Board of Health Regulations. Waivers are requested from
fees.
The Board of Health voted to waive their fees. The Board adopts the Board of Health waiver decision
hereto.
Town of Brewster Stormwater By -Law (proposed)
Waiver requested from applicability of the proposed Stormwater by-law. Project complies with best
management practices for stormwater control and the developer and our development team will use
best efforts to adhere to the intent of the proposed regulations when practical.
The Board determined that no waiver of the Town of Brewster Stormwater Bylaw is required, as the
Bylaw was not in effect at the time the Applicant's comprehensive permit application was filed.
Comprehensive Permit Rules of the Zoning Board of Apeals, Brewster, Massachusetts
Waiver is requested from strict compliance with Section 3.01.
Habitat for Humanity submits our "Comprehensive Permit Plan" to satisfy the requirements of a report
on existing site conditions, a preliminary site development plan, a preliminary utilities plan and a
preliminary subdivision plan. Before closing of the Zoning Board Hearing Habitat will provide plans
showing more detail,on road construction, stormwater management and grading, as well as a final
subdivision plan.
The Board accepted the preliminary plans as submitted, and voted to address any additional
requirements via review of the Final Plans.
Habitat for Humanity submits our architectural drawings and will provide drawings signed by a
registered architect prior to the close of the Zoning Board Hearing,
The Board accepted the preliminary plans as submitted, and voted to address any additional
requirements via review of the Final Plans.
Waiver is requested from Section 3.02. Habitat for Humanity request a waiver from the $1,000 Filing
Fee.
See Board of Selectmen waiver section.
Waiver is request from section 4.00. Habitat for Humanity requests a waiver from the
Consultant/Technical Review Fee.
The Board did not elect to charge a peer review consultant fee, as all review was done by Town staff
with assistance from the Cape Cod Commission.
Fee Waivers — Under MGL Chapter 408, the Zoning Board has the authority to grant fee waivers. Habitat
typically requests waivers from local fees such as Building Department, Health Department and Fire
Department. Habitat respectfully requests the Zoning Board of Appeals waive all local fee payments to
the Town of Brewster, including the Comprehensive Permit Application filing fee, and the Comprehensive
Permit Technical/Consulting Fee. As Habitat for Humanity provides 100% of our projects as affordable,
and not just the required 25%, we look to our Towns to help us make our builds financially feasible. Town
fee waivers is an important component of this. In the alternative, at the Board's preference and request,
Habitat would approach the Selectmen to approve these waivers.
in addition to the above list, Habitat for Humanity of Cape Cod, Inc. requests waivers from any and all
local provisions that would prohibit or impede development of the project as submitted, and reserves the
right to add to the above list of waivers as needed.
BARNSTABLE REGISTRY OF DEEDS
John F. Meade, Register
For Submission to
Brewster Board of Appeals
5-31-16
DECLARATION OF TRUST ESTABLISHING THE
[HABITAT BREWSTER] HOMEOWNERS ASSOCIATION
AGREEMENT and DECLARATION OF TRUST made this day of
2016, by Habitat for Humanity of Cape Cod, Inc., 411 Main Street, Suite 6,
Yarmouthport, Massachusetts 02675 ("Habitat") as Declarant and Trustee (hereinafter
with their successors in trust referred to as the "Trustees").
(1) Name of Trust. The name of this trust shall be the [Habitat Brewster]
Homeowners Association (hereinafter referred to as the "Trust" or the "Association").
(2) Purpose of Trust. The purpose of this Trust is to provide for the
preservation and maintenance for the common enjoyment and benefit of the Homeowners
(as hereinafter defined) of the Common Area and facilities of the development known as
[Habitat Brewster] as shown on a plan entitled "Habitat for Humanity of Cape Cod,
Inc.'s 620 Tubman Road Definitive Subdivision Plan of Land in Brewster,
Massachusetts", dated February 23, 2016, by J.M. O'Reilly & Associates, Inc. and
recorded with Barnstable Registry of Deeds in Plan Book Page (the
"Subdivision Plan" or "Subdivision" or "Subject Land")). Said Subdivision consists of
Lots 1 through 14 (the "Lots") and the common area and facilities of the Subdivision,
which common area and facilities include the "Proposed 40' Wide Private Way" to be
called [Habitat Road] and adjacent sidewalks (the "Road"); the open space which is all
of the Subject Land outside the boundaries of the Lots and the Road, including the island
within the cul-de-sac), all as shown on the Subdivision Plan and defined in the
Declaration of Easements, Restrictions, Rights and Reservations for [Habitat Brewster],
dated , 2016, recorded herewith in Book Page
("Declaration of Easements"); and the and facilities of the Subdivision, including,
without limitation, the drainage and stormwater management systems; the common
utilities in, under and adjacent to the Road to the extent the same are not maintained by
the appropriate utility companies, including without limitation all conduits, ducts, pipes,
plumbing, wiring and other facilities for the furnishing of power, light, telephone, cable,
water, drainage pipes, and lighting fixtures, if any (the "Common Area").
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The Association shall not be responsible for maintenance of the 7' wide trail
easement described in Easement Agreement between Habitat and Donald G. Smithson
and Gail M. Smithson, dated October 11, 2014, recorded with said Deeds in Book 28445
Page 197 ("Trail Easement"), unless the Smithsons or their successors in title fail to
maintain the Trail Easement pursuant to the terms of said Agreement, or in the event the
Smithsons or their successors in title relinquish their rights in the Trail Easement by
conveying the same to the Association.
The Common Area shall be conveyed by Habitat to the Association. The
Common Area, as defined above, is intended to be and shall be the Trust property. All of
the Homeowners shall have the right to use the Common Area subject to any and all
easements, covenants, conditions, restrictions and reservations pertaining to the
Subdivision and recorded with Barnstable Registry of Deeds and to rules and regulations
as adopted or to be adopted and amended from time to time by the Association.
It is hereby expressly declared that a trust, and not a partnership, has been hereby
created and that the Owners are beneficiaries and not partners or associates or any other
relation whatsoever among themselves with respect to the Trust property and that they
hold no relation to the Trustees other than as such beneficiaries, with only such rights as
are conferred upon them as such beneficiaries hereunder.
(3) Beneficiaries. The beneficiaries of this Trust shall be the Homeowners of
Lots 1 through 14 as shown on the Subdivision Plan. Each Lot shall be entitled to one
vote. The words "Owner", "Homeowner" or "Member" shall mean and refer to the
record holder from time to time of the legal title in fee of any of said Lots. Two or more
persons or entities holding record title to the same Lot shall be treated as a single
Homeowner and exercise of their rights as such owners shall be by their unanimous
action. Their obligations to pay any assessment shall be joint and several.
(4) Homeowners' Annual and Special Meetings. Any action or consent by
the Homeowners shall be taken or given at the annual meeting or at any special meeting
of the Homeowners. The first annual meeting of Homeowners shall be held on the
second Saturday in 201_, or on the second Saturday of the second month after
the sale of the fourteenth home, whichever is later. Thereafter, the annual meeting of
Homeowners shall be held on the second Saturday of of each and every year (or
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if that be a legal holiday on the next succeeding Saturday) at the hour and place to be
fixed by the Trustees. If no annual meeting has been held on the date fixed above, a
special meeting in lieu thereof may be held. Special meetings of Homeowners may be
called by the Trustees on their own motion and shall be called by the Trustees upon
written application to the Trustees of at least five (5) Homeowners. Habitat for Humanity
of Cape Cod, Inc. ("Habitat") shall have the right, but not the obligation, to attend the
annual and special meetings for twenty years from and after the date of the first annual
meeting of Homeowners. Habitat shall be a non -voting Member of the Association and
shall participate in the meetings in an advisory capacity only. A written notice of the
place, date and hour of all meetings of Homeowners shall be given by the Trustees at
least fifteen (15) days before the meeting to each Homeowner and to Habitat. Notice need
not be given to a Homeowner or to Habitat if a written waiver of notice, executed before
or after the meeting by such Homeowner or his attorney thereunto authorized, is filed
with the records of the meeting.
(5) Voting. Each Homeowner shall be entitled to one vote for each Lot
owned in the Subdivision. Such vote may be cast in person or by proxy. Any instrument
dated not more than six months before the meeting purporting to grant authority to
another to cast such vote, duly executed by the Homeowner and acknowledged before a
witness, shall be deemed a proxy. A proxy shall be revocable at any time by written
notice to the Trustees. Upon demand by any Homeowner, the vote on questions before
the meeting shall be by ballot. No Homeowner of a Lot against whom there are any
outstanding and unpaid assessments (as provided herein) shall be entitled to vote at any
regular or special meeting. Habitat will serve in an advisory capacity only and will have
no vote.
(6) Quorum. At any meeting of the Members of the Association the presence
in person or by proxy of Members holding eight (8) of the total number of votes entitled
to be cast will be necessary to constitute a quorum for all purposes. The approval of the
Members present in person or by proxy representing at least eight (8) of the total number
of votes entitled to be cast, shall be necessary for affiuuative action on any matter
involving expenditures of any sum or money in excess of Five Thousand Dollars
($5,000.00) or for affirmative action on the disposition of property or the imposition of
special assessments for capital improvements. On all other matters, the vote of a majority
of those present or by proxy, in person, shall be sufficient. In the event that, at the time
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of any legally called meeting, there are fewer than eight (8) Members present and those
members not attending received written notice pursuant to Section 4 above and did not
send proxies, then a quorum shall be defined as the number of qualified voters attending
the meeting and approval of matters listed above that require eight (8) votes will require
the unanimous vote of the qualified quorum voters. Likewise, in the event that, at the
time of any legally called meeting, there are fewer than Eight (8) Members qualified to
participate in the quorum or voting due to failure to pay their assessment, then a quorum
shall be defined as the number of qualified voters attending the meeting and approval of
matters listed above that require eight (8) votes will require the unanimous vote of the
qualified quorum voters. Other votes will require a majority.
(7) Compensation and Expenses. Members shall not receive any
compensation for their services, but may be paid for rendering unusual or special services
to the Association or reimbursed for expenses incurred, if the same are approved by a
majority of Members present and entitled to vote at the meeting during which request for
such payment is made.
(8) Notices. All notices to the Homeowners shall be in writing and shall be
sent to the Homeowners or to such one of them as they may designate in writing from
time to time, at the last address of such Homeowner as it appears in the records of the
Trust. Changes in the Homeowners or their addresses shall be noted in the records of the
Trust only upon written notice from the Homeowner filed with the Trustees. Notice shall
be deemed given as of the date of mailing. Notice to Habitat shall be sent to its address at
411 Main Street, Suite 6, Yarmouthport, Massachusetts 02675, Attention: Executive
Director, until such time as the Trust is notified of a change in address.
(9) Powers and Duties of Trustees. For the purpose of canying out the
terms of this Trust, the Trustees shall have all the powers and duties necessary or
convenient for the administration of the Trust property, including without limitation the
following powers which may be exercised by them without any action or consent by the
Homeowners, except as set forth in this Trust instrument, and which shall continue after
the termination of the Trust for the purpose of disposing of the Trust property and until
final disposition thereof:
(a) preserve, care for and maintain the Common Area and facilities of the
Subdivision;
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(b) maintain, repair, improve, change or alter any property, real or personal,
including snowplowing, repairing, replacing, digging, excavating, filling, tearing down,
restoring and rebuilding the Road, utility lines, stormwater management systems and
other drainage systems, structures or additions thereto;
(c) plant, fertilize, water, mow and maintain the lawn and/or landscape within the
Common Area including the island within the cul-de-sac;
(d) maintain, repair and replace systems and utilities serving the Association and
its Members within the Common Area and to abate any public health nuisance that in the
Trustees' judgment is caused thereby;
(e) operate, maintain, repair and replace any and all portions of the Common Area
and facilities including, without limitation, the stormwater management and drainage
systems, and do all things necessary to manage, operate and maintain, without limitation,
the Common Area and facilities which in the Trustees' judgment is necessary;
(f) adopt reasonable rules and regulations governing the enjoyment by the
Homeowners of the Trust property, as shall be established by the Association; the
Trustees may, at any time and from time to time, adopt, amend and rescind reasonable
administrative rules and regulations governing the details of the operation and use of the
Common Area and facilities, and such restrictions as are designed to prevent
unreasonable interference with the use by the Homeowners of their dwelling units and of
the Common Area and facilities; the Trustees shall enforce all said rules and regulations
promptly, properly and uniformly as against all Homeowners and others to whom the
same may from time to time apply and enforce the same at the request of any
Homeowner, all of which obligations shall constitute obligations of theirs as Trustees
hereunder;
(g) make contracts which the Trustees deem convenient to the performance of
their duties as Trustees;
(h) hire and retain a property management services company or organization to
perfoirir some or all of the Trustees' responsibilities, including but not limited to the
collections of assessments, and to include payment for such services in the annual
assessment;
(i) through the property management services company, manage the finances of
the Association, including allocation of income and expenses, and enforce the obligations
of the Homeowners to pay the assessments;
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(j) working with the property management services company, determine and
collect reasonable fees from the Homeowners, as shall be established by the Association,
including special assessments for capital purposes;
(k) open bank accounts in the name of the Trust or the Trustees with power in two
Trustees to draw on such accounts;
(1) acquire by purchase, hire or otherwise, property convenient to the performance
of their functions as Trustees;
(m) borrow money, provided however, that such borrowing has been authorized
by a vote of the Members owning no less than eight (8) Lots entitled to be cast at a
meeting of the Members of the Association held pursuant to Paragraph 4 of this
Declaration; in the event that there are fewer than eight (8) Members qualified to
participate in the voting due to failure to pay their assessment, approval to borrow money
will require the unanimous vote of the Members qualified to vote.
(n) procure insurance;
(o) enforce the obligations of the Homeowners under the Declaration of
Easements;
(p) to pay, resist, compromise or submit to mediation any claim or matter in
dispute;
(q) convey easements and lesser interests in, upon, over and under any ways for
the installation, maintenance, repair and replacement of utilities and other services and
rights incidental thereto;
(r) grant or relocate permits, easements and licenses on, over and under the
Common Area and facilities;
(s) convey to the Town of Brewster or other public body the fee in the Open
Space of the Common Area, or convey easements to said Town in the other Common
Areas of the Subdivision including without limitation the Road for the purpose of making
it a public way;
(t) maintain, from time to time, reasonable reserves from income or by assessment
upon the Homeowners for any or all of the following purposes: repairs, improvements
and reconstruction of the Common Area and any other real or personal property
belonging to the Trust, real estate and personal property taxes; interest and principal
payments due or to become due on loans; and invest such reserves and use the same for
such purposes as it shall deem best; and
(u) generally, in all matters not herein otherwise specified, control and do each
and every thing necessary, suitable, convenient, or proper for the accomplishment of any
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of the purposes of the Trust or incidental to the powers herein and manage and dispose of
the Trust property as if the Trustees were the absolute owners thereof; and to otherwise
exercise any powers which may be necessary or desirable for carrying out the terms of
this Trust or which the Trustees may have under any present or future statute or rule of
law; and to execute and deliver all appropriate instruments in connection therewith.
(10) Assessments. Each Homeowner or entity except Habitat that takes title to
any Lot shall, upon acceptance of a deed or upon the vesting of title by descent or devise,
be deemed to have agreed to pay to the Association all special or annual assessments,
which assessments may include but are not limited to the following: management,
maintenance, including but not limited to plowing, improvement, preservation,
replacement and restoration of the Common Area or facilities thereof, including but not
limited to the Road; real estate taxes on the Common Area; premiums for insurance on
the Common Area; expenses relating to the Trustees' contractual obligations to the
property management services company, and expenses relating to the enforcement of the
covenants, restrictions and provisions set forth in said Declaration of Easements.
(a) The annual assessments provided for herein shall commence on the sale of the
14th Lot of the Subdivision, and shall be payable in equal quarterly installments on the
first day of January, April, July and October. The amount of the first annual assessment
shall be established by Habitat. Additionally, each homeowner shall pay on the date of
delivery of the deed Three Hundred ($300.00) Dollars and the equivalent of two months'
installments of the first annual assessment to be held in escrow by Habitat until the
election of the Trustees at the first annual meeting.
(b) At least fourteen (14) days before the annual meeting, the Trustees shall
estimate and provide to all the Homeowners a budget showing the estimated expenses to
be incurred during such next fiscal year, together with reasonable provisions for the
contingencies and reserves for the performance and fulfillment of all of the duties,
functions and activities of the Trustees which, as determined by said Trustees in their
reasonable discretion, are for the general benefit of all of the Homeowners. Each such
common budget shall include payment to the property management services company for
the services provided the Association. Each such common budget shall be divided into
equal shares, one for each Lot.
(c) Written notice of the annual assessment and quarterly statements
("statements") shall be sent by the property management services company, under the
direction and by the authority vested in the Trustees of the Association, to the then
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owners of all fourteen Lots. Each person or entity except Habitat that takes title to any of
these Lots shall upon acceptance of a deed, or upon the vesting of title by descent or
devise, be deemed to have agreed to pay all assessments in a timely manner. "Timely
manner" is hereby defined as within thirty (30) days from the sending of a written notice
of assessment by the Trustees of the Association. Any assessment not paid within such
thirty -day period shall bear interest thereafter at the rate of one percent (1.0%) per month,
or at the maximum interest rate allowed by law if such maximum allowable rate is less
than 1.0% per month.
(d) In addition to annual assessments, the Trustees may levy in any assessment
year a special assessment, applicable to that year only, for the purpose of providing for
the payment of the costs of construction of, and unexpected repairs or replacement to, a
capital improvement relative to the Common Area of the development, which exceeds the
current cash reserves of the Association, provided that any special assessment is
authorized by said Association at a meeting duly called for this purpose pursuant to
Section (6) of this Declaration of Trust, written notice of which shall be sent to all
Homeowners at least fifteen (15) days in advance and shall set forth the purpose of the
meeting. Upon said approval, the Trustees shall direct the property management services
company to include such special assessment in its quarterly statement.
(e) In the event that the Trustees shall determine during any fiscal year that the
common budget so established is less than the expenses actually incurred (including
reserves), or in the reasonable opinion of the Trustees likely to be incurred, the Trustees
shall make a supplemental assessment or assessments and direct the property
management services company to include such supplemental assessment in its quarterly
statement in the manner aforesaid.
(f) The amount of each quarterly statement for regular, special or supplemental
assessments, if not paid when due, shall remain the ongoing obligation of the
Homeowner and shall constitute an ongoing lien on the Lot until paid.
(g) The Association, through the property management services company or the
Trustees, by the power and authority vested in the Trustees, may bring a civil action at
law or in equity against any person or entity for failure to pay any Homeowners
Association assessment within ninety (90) days of the due date of a notice of assessment
by the Trustees of the Association. The prevailing party shall recover reasonable
attorneys' fees, interest, costs and expenses incurred in enforcement.
(h) The amount of each statement for regular, special or supplemental
assessments, together with interest thereon, if not paid when due, together with all costs
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and expenses, including attorneys' fees, incurred by the Trustees in any proceeding
brought to collect such unpaid common expenses and assessments, delinquent fees,
charges, penalties and interest charged to a delinquent Homeowner, shall constitute a lien
on the Lot. Such lien shall have priority over all other liens except (a) real estate taxes
and other municipal liens, and (b) a first mortgage on the Lot in question which was
recorded prior to the time the assessment or charge was first levied. Such amount shall
also constitute a personal debt of the Homeowner who is the owner of such Lot on the date
of the assessment by the Trustees. The Trustees shall take prompt action to collect any
common expenses and assessments due from any Homeowner that remain unpaid for
more than 90 days from the due date thereof, i.e. 120 days from the 1st day of the quarter.
By acceptance of any deed to any of the Lots, the Owner thereof thereby covenants with
the Trust that any assessment by the Trustees for which said Homeowner is liable may be
enforced by selling the Homeowner's Lot, together with any improvements thereon, by
virtue of the STATUTORY POWER OF SALE, pursuant to Massachusetts General
Laws, Chapter 183, §21, as though said Homeowner had granted a mortgage at the time
of such acceptance of said deed to the Trust to secure such assessments as may from time
to time be due to the Trust by said Homeowner. Such lien may also be foreclosed by the
Trustees in like manner as a condominium assessment lien under Massachusetts General
Laws, Chapters 183A and 254.
(i) The Trustees shall furnish, upon demand by any Homeowner, a certificate in
writing signed by any Trustee (other than the Homeowner who demanded the certificate)
attesting that any annual, special and/or supplemental assessment is paid or outstanding.
Any such certificate, if recorded in Barnstable Registry of Deeds within 30 days of its
date, shall be conclusive evidence of the facts stated therein.
(11) Liability of Trustees. All persons extending credit to or contracting with
or having any claim against the Trustees hereunder shall look only to the Trust property
for any such contract or claim, so that neither the Trustees nor the Homeowners shall be
personally liable therefor. No Trustee hereunder shall be liable to this trust or to the
Homeowners for the default of any other Trustee, or for leaving property in the hands of
another Trustee, or for any error of judgment or law on his own part, but shall be liable
only for his own willful default. Any Trustee hereunder shall be reimbursed in full for
any loss or expense incurred or suffered by the Trustee or the estate of the Trustee as a
result of his or her acting as Trustee hereunder, excluding only such loss or expense
resulting from his or her own willful default.
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(12) Financial Records. The Trustees shall keep proper records and accounts
of the affairs of the Trust, which shall be open to inspection by any Homeowner at
reasonable times. At least once a year the Trustees shall render a written report and
financial statement to the Homeowners. The approval by a majority of the Homeowners
entitled to cast a vote of any report or financial statement by the Trustees shall be, as to
all matters and transactions stated in said report or statement or shown thereby, a
complete discharge of the Trustees and final and binding upon all Homeowners. The
fiscal year of the Association shall be from January 1St to December 31St of each year.
(13) Property Management Services Company. The Trustees shall hire,
retain, and contract with a property management services company to perfoiiii the
following duties and responsibilities of the Trustees:
(a) hold and manage the Association's bank account, collect all annual, special
and supplemental assessments and pay the Association's expenses, all as directed by the
Trustees;
(b) provide the Trustees with a written report and financial statement that
includes an annual summary of assessments paid and expenditures made a minimum of
thirty (30) days before the annual meeting;
(c) prepare an annual budget showing the expenses to be incurred during the next
fiscal year including reasonable provision for contingencies and reserves, and present the
same to the Trustees a minimum of thirty (30) days before the annual meeting;
(d) provide each Homeowner with written notice of the annual assessment to be
due quarterly in four equal payments on the 1St of January, April, July and October;
(e) provide each Homeowner with quarterly statements of the annual assessment
and include any additional amounts owing due to special or supplemental assessments, as
directed by the Trustees;
(f) send written notice of failure to pay assessments to any Homeowner in arrears
of his, her, or their quarterly payment of the annual, special and supplemental
assessments;
(g) bring, or cause to be brought, a civil action in law or in equity against any
Homeowner in arrears of his, her, or their payment of any assessment for more than 90
days from the due date thereof, i.e. 120 days from the 1St day of the quarter;
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(i) provide the Trustees with written notice of a Homeowner's failure to pay if
the Homeowner is in arrears of his, her or their quarterly assessment payment after 60
days from the due date thereof; and
(j) perform any and all duties and responsibilities directed and contracted by the
Trustees within the rights and duties of the Trustees.
(14) Trustees in Number and Terms. There shall always be three (3)
Trustees hereunder except that prior to the sale of the fourteen lots and the first annual
meeting of Homeowners, there shall be one Trustee to be appointed by Habitat. Upon the
sale of the fourteenth Lot and at the first Annual Meeting of Homeowners, the
Homeowners shall elect the Trustees from among the Homeowners. The Trustees from
then on shall be Homeowners. All Trustees shall serve until their successors have been
duly elected and the position of Trustee accepted. Habitat shall serve in an advisory
capacity to the Trustees for one year following the first annual meeting. Habitat shall
have the right, but not the obligation, to attend Trustees' meetings for twenty years from
and after the date of the first Annual Meeting of Homeowners. Habitat shall be a non-
voting Member of the Association and shall participate in the meetings, in its sole
discretion. Except for the Trustee appointed by Habitat, the term of each Trustee shall
expire at the time fixed herein for the annual meeting of Homeowners to be held in the
second year after the election of such Trustee, provided that:
(a) the initial term of Trustee No. 1 elected by the Homeowners shall expire at the
time fixed for the annual meeting to be held in [3yrs from 1st Annual Meeting], but not
until the election of a successor Trustee and his or her acceptance to so serve;
(b) the initial term of Trustee No. 2 elected by the Homeowners shall expire at the
time fixed for the annual meeting to be held in [2yrs from 1St Annual Meeting]; but not
until the election of a successor Trustee and his or her acceptance to so serve;
(c) the initial term of Trustee No. 3 elected by the Homeowners shall expire at the
time fixed for the annual meeting to be held in [lyr from 1st Annual Meeting"; but not
until the election of a successor Trustee and his or her acceptance to so serve.
(15) Election of Trustees. At each annual meeting of Homeowners,
commencing with the annual meeting to be held in [lyr from 1St Annual Meeting], the
Homeowners shall elect one Trustee for a term expiring at the time fixed for the annual
meeting to be held in the second year after such election.
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(16) Vacancies, Removals, and Action by Majority Vote. Any Trustee may
at any time resign as Trustee by a written instrument signed by him or her, acknowledged
and delivered to the remaining Trustees. Upon the death or resignation of any Trustee, a
vacancy in the office of Trustee shall be deemed to exist and a new Trustee shall be
elected for the unexpired term by the remaining Trustees. Any successor Trustee shall
qualify as a Trustee by written acceptance, signed and acknowledged by him or her.
Pending any appointment of a successor Trustee, the remaining Trustee shall have and
may exercise all powers, authorities and discretions conferred by this Trust. After
reasonable notice and opportunity to be heard before the Homeowners at a Special
Meeting of the Homeowners called pursuant to Section 4 herein, any Trustee may be
removed from office by a vote of eight (8) of the Homeowners, excepting Trustee No. 1
appointed by Habitat whose term will cease upon the election of the Trustees at the first
annual meeting of the Homeowners. In the event that, at the time of the Special Meeting
so called, there are fewer than eight (8) Homeowners qualified to participate in the voting
(due to failure to pay their assessment), then a Trustee may be removed from office by
the majority vote of Homeowners qualified to vote. Upon the death, resignation, removal
or incapacity to act of any of the Trustees, the title of the Trust property shall vest in the
remaining Trustee, and, upon the filling of any such vacancy, such title shall vest jointly
in those who shall be the Trustees hereunder without further action.
In all matters relating to the administration of the Trust hereunder and the exercise
of the powers hereby conferred, the Trustees shall act by consensus. The Trustees may
so act without a meeting by instrument signed by both Trustees.
(17) Fidelity Bonds and Surety. The Trustees shall attempt to obtain fidelity
bonds in amounts which they deem reasonably sufficient to cover the Trustees when and
if the Trustees are handling or are responsible for funds.
(18) Rights of the Town of Brewster: The principal duty of the Trustees shall
be to maintain and keep in good repair the Common Area of the Subdivision. The
expenses of all such maintenance, operation, repair and replacement shall be assessed to
the Owners as a common expense. The Town shall have the perpetual right and easement
to enter the Trust property, including the Common Area, for the purpose of inspecting the
same and to ensure compliance with the terms hereof, and to take any measures to abate or
remedy any violation hereof
Declaration of Trust
Habitat Brewster
Page 13 of 20
In the event repairs, maintenance or replacement of any of the Common Area is
required and the Trustees fail or are unable to take such action within sixty (60) days after
written notice from the Town, the Town may take such actions necessary to have the
work performed, and the expenses thereof shall be chargeable against the Trust and the
Owners, the Trust property and the Lots.
The rights hereby granted to the Town include the right to enforce the obligations
of the Trustees contained herein by appropriate legal proceedings and to obtain injunctive
and other equitable relief against any violation, including, without limitation, relief
requiring repair, maintenance or replacement of any Trust property (it being agreed that
the Town has no adequate remedy at law), and shall be in addition to, and not in
limitation of, any other rights and remedies available to the Town. The Town shall have
the option to enforce said obligations, but does not have the obligation to do so. The
expenses incurred by the Town in abating or remedying any violation hereof and in
enforcing the duty of the Trustees hereunder shall be paid by the Trustees within thirty
(30) days of written notice to the Trustees by the Town and, if not paid by the Trustees
within the time allowed, the Town may assess such costs against the Homeowners and
such assessment shall become a lien on those properties which may be collected and
enforced in the manner fixed by law for the collection of taxes. Notice of the lien shall be
recorded in the Barnstable District Registry of Deeds. As an alternative or in addition to
this process, the Town may recover its costs by means of betteiiuent assessments on the
Homeowners. Notwithstanding the foregoing, the Town shall have no obligation to
perform the foregoing maintenance and repairs.
(19) Statement of Purposes and Restrictions on Use. The Lots are
intended for residential use. The Lots and the Common Area of the Subdivision shall
be subject to the following restrictions:
(a) All maintenance and use by Homeowners of all facilities shall be done
so as to preserve the general appearance and character of the same and of the grounds
and buildings;
(b) All use and maintenance of the Lots shall be in accordance with the
provisions of the Rules and Regulations from time to time promulgated by the Trustees
and in accordance with the Declaration of Easements to be recorded herewith;
(c) The Lots, the buildings thereon, and the Common Area shall be used
only for purposes consistent with their design;
Declaration of Trust
Habitat Brewster
Page 14 of 20
(d) Each Homeowner shall use his or her Lot only for such purposes and to
such extent that it will not overload the structure of the building on the Lot or its
foundation or unreasonably overload the capacity of the subsurface sewage disposal
system on the Lot or any utility furnished to the Lot including but not limited to water,
electricity, cable, gas and telephone;
(e) No Homeowner or occupant shall commit, permit or suffer any violation
of any insurance policies taken out by the Trustees, or do, permit or suffer anything to be
done, or keep or permit anything to be kept, or permit any condition to exist which might
(i) result in the termination of such policies, or (ii) adversely affect the right of recovery
hereunder, or (iii) result in reputable companies refusing to provide insurance as required
or permitted by the Trustees, or (iv) result in any increase in the insurance rate or
premium with respect to any other Homeowner's policy or policies, unless, in the case of
such increase, the Homeowner responsible for such increase shall pay the same.
(f) No unlawful use shall be made within the Common Area or any part
thereof, and all valid laws, orders, rules and regulations of all governmental agencies
having jurisdiction thereof shall be strictly complied with. Compliance with any legal
requirements shall be at the sole cost of the Homeowner or the Trustees as the case may
be, whichever shall have the obligation under this Declaration of Trust to maintain, repair
or control the portion of the property affected by any such legal requirement. Each
Homeowner shall give prompt notice to the Trustees of any notice he or she receives of
the violation of any legal requirements affecting the Homeowner or the Common Area.
(20) Termination by Law. This Trust, unless sooner terminated as herein
provided, shall terminate ninety (90) years from the date hereof.
(21) Termination or Amendment by Consent. Except as specified in Section
20 herein, the provisions hereof may be altered, amended, or repealed at any meeting of
the Association by a vote of eight (8) of the total number of votes entitled to be cast,
represented either in person or by proxy, provided that the proposed action is inserted in
the notice of such meeting. Notwithstanding the foregoing, no such amendment,
alteration, addition or change that would (a) render this Trust contrary to or inconsistent
with any requirements or provisions of applicable law or any permit or approval issued
by a board or officer of the Town, including the Comprehensive Permit issued by the
Brewster Board of Appeals on March 8, 2016, and recorded with Barnstable Registry of
Deds in Book 29541 Page 247 and any amendments thereto, (b) alter, amend or revoke
Declaration of Trust
Habitat Brewster
Page 15 of 20
the obligations of the Trustees to maintain the Common Area in good order and
condition, or (c) reduce the obligations of the Homeowners to pay common expenses,
shall be valid or effective without the prior written consent of the Town. Further, no
termination of the Trustees' obligation and responsibility to retain the services of a
property management services company to manage certain duties of the Trustees shall be
permitted unless an alternative means of discharging the Trustees' maintenance
obligations has been approved by the Town of Brewster Board of Appeals.
(22) Disposition of Trust Property. Upon termination of the Trust, the Trust
property shall be conveyed to the Homeowners as tenants in common, subject to the
terms and provisions of the Comprehensive Permit and all other matters of record which
henceforth shall be enforceable by and against the Homeowners, joint and severally.
(23) Reliance by Third Parties. A certificate signed by any one of the
Trustees and acknowledged before a Notary Public shall be conclusive evidence in favor
of any person, firm, corporation, trust or association acting in good faith in reliance
thereon as to the truth of any matter or facts stated therein relating to:
(a) the death, resignation, removal or appointment of a Trustee;
(b) compliance by the Trustees and Homeowners with any requirement of this
Trust;
(c) the terms of this instrument and any amendment or termination of this Trust;
(d) the fact of the validity of any action taken by the Trustees or the Homeowners
and to the authority of the Trustees or Homeowners to take such action; and the number
of Homeowners acting in favor of any matters; or
(e) any other matter pertaining to the Trustees, Homeowners or the Trust property.
When recorded with the Barnstable Registry of Deeds, such certificate shall be
conclusive evidence to all persons regardless of whether they have notice thereof or act in
reliance thereon.
(24) Recording. All amendments to this Trust and resignations and
appointments of Trustees shall be filed with the Barnstable Registry of Deeds and any
person shall be entitled to rely on the records of said Registry with respect to the
termination of the Trust, the teurrs of the Trust, any amendment thereto, and the identity
Declaration of Trust
Habitat Brewster
Page 16 of 20
of the Trustees, the identity of the Homeowners, and to any other matter pertaining to the
Trust, the Trustees, or the Homeowners of the Trust property.
(25) Governing Law. This Trust shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
(26) Enforcement. If the Trustees at any time in their reasonable judgment
determine that a Homeowner is violating or attempting to violate the terms and
provisions of this Trust or the teiuus and provisions of the Declaration of Easements, the
Trustees may prosecute proceedings at law or equity against such Homeowner. Prior to
initiating such proceedings, the Trustees shall in writing request the Homeowner to
cease the action resulting in the violation of such terms and provisions or perform the
needed action to conform to such tetins and provisions. If the Trustees believe the
violation to constitute an emergency, the Trustees shall so state in the written request. In
the event the Homeowner fails to take such action or cease such action, as the case may
be, within thirty (30) days (or such reasonably shorter period in case of emergency as the
Trustees shall determine) of the Trustees' request, the Trustees shall be entitled to enter
upon and have access to the Homeowner's lot for the purpose of correcting any violation
or having work performed to correct such violation, the cost of which shall be borne by
the Homeowner. The cost of such work shall constitute a lien upon such lot and the
Homeowner shall be personally liable therefor and such lien shall have the same priority
as a lien under Section 10 hereof.
If the Homeowner objects to the Trustees' written request and intends to not
comply with said written request, he/she may, with the assent of the Trustees, attempt to
resolve the dispute pursuant to Section 27 herein by requesting mediation within ten (10)
days of receipt of the Trustees' written request. If the Trustees receive the Homeowner's
timely request for mediation and the Trustees believe the violation in question does not
constitute an emergency situation, the Trustees may, in their sole discretion, not
commence to take action or perform the needed maintenance, repair or replacement or
correct the violation and proceed with resolution of the dispute pursuant to Section 27.
Nonpayment of Association assessments, fees imposed for rule violation, and/or
reimbursement for repairs made and work performed by the Association are not subject
Declaration of Trust
Habitat Brewster
Page 17 of 20
to, and are excepted from, this Section 26. See Section 10 pertaining to such nonpayment
of Association assessments.
(27) Dispute Resolution. Subject always to the terms and conditions set forth in
Section 26, any Homeowner aggrieved by any decision, action, or inaction of the
Trustees in the administration of the Trust, excepting assessments or liens for work done
to correct violations of this Trust or the Declaration of Easements by Homeowner, shall
resolve the decision, action or inaction by mediation. However, in the first instance, the
aggrieved Homeowner will first attempt resolution by discussion with the Trustees, and
the Trustees will attempt resolution by discussion with the Homeowner.
(a) In the event agreement cannot be reached by discussion, the Homeowner
shall endeavor to resolve any claim or dispute concerning a decision or action of the
Trustees by mediation which shall be mediated by a neutral mediator from the Cape Cod
Dispute Resolution Center ("CCDRC"), the Real Estate Bar Association ("REBA"), its
successors in title, or a mutually agreed upon mediation service. Request for mediation
shall be filed in writing with the Trustees and with the CCDRC, REBA or other mutually
agreed upon mediation service, and shall be made no later than ninety (90) days after the
decision or action in question has been made or taken. A copy of the request shall be
forwarded to Habitat.
(b) The Homeowner and Trustees shall share the mediator's fee and any filing
fees equally. The mediation shall be held in Brewster unless another location is mutually
agreed upon. Agreements reached in mediation shall be final and conclusive between the
Homeowner and Trustees, enforceable as settlement agreements in any court having
jurisdiction thereof, and judgment may be entered upon it in accordance with applicable
law in any court having jurisdiction thereof.
(c) Upon the request of the Trustees, the property management services company
may serve in all instances as the agent of the Trustees.
(d) Nonpayment of Association assessments, fees imposed for rule violation,
and/or reimbursement for repairs made and work performed by the Association are not
subject to, and are excepted from this Section 27.
Declaration of Trust
Habitat Brewster
Page 18 of 20
[end of document text — signature page follows]
Executed as a sealed instrument this
day of , 2016.
HABITAT FOR HUMANITY OF CAPE COD, INC.
By:
Wilburn 0. Rhymer, President
By:
Linda A. Cebula, Treasurer
By:
Trustee
Declaration of Trust
Habitat Brewster
Page 19 of 20
COMMONWEALTH OF MASSACHUSETTS
Barnstable County
On this day of 2016, before me, the undersigned notary
public, personally appeared Wilburn O. Rhymer, President of Habitat for Humanity of
Cape Cod, Inc., personally known to me to be the person whose name is signed on the
preceding or attached document, and acknowledged to me that it is the free act and deed
of said corporation, for its stated purpose.
Notary Public
My commission expires:
COMMONWEALTH OF MASSACHUSETTS
Barnstable County
On this day of 2016, before me, the undersigned notary
public, personally appeared Linda A. Cebula, Treasurer of Habitat for Humanity of Cape
Cod, Inc., personally known to me to be the person whose name is signed on the
preceding or attached document, and acknowledged to me that it is the free act and deed
of said corporation, for its stated purpose.
Notary Public
My commission expires:
Declaration of Trust
Habitat Brewster
Page 20 of 20
COMMONWEALTH OF MASSACHUSETTS
Barnstable County
On this day of 2016, before me, the undersigned notary
public, personally appeared , proved to me through satisfactory
evidence of identification, which was ,
to be the person whose name is signed on the preceding or attached document, and
acknowledged to me that he/she signed it voluntarily for its stated purpose.
Notary Public
My commission expires:
For Submission to
Brewster Board of Appeals
5-31-16
DECLARATION OF EASEMENTS, RESTRICTIONS,
RIGHTS AND RESERVATIONS FOR
[HABITAT BREWSTER]
HABITAT FOR HUMANITY OF CAPE COD, INC., a non-profit corporation
duly organized and existing under the laws of the Commonwealth of Massachusetts and
having a mailing address of 411 Main Street, Suite 6, Yarmouthport, Massachusetts
02675 ("Habitat"), being the owner of certain real estate situated on Tubman Road,
Brewster, Barnstable County, Massachusetts, as described in a deed from Donald G.
Smithson et al, dated September 26, 2014, and recorded in the Barnstable Registry of
Deeds in Book 28445 Page 190 and a deed from said Smithson dated October 10, 2014,
recorded with said Deeds in Book 28445 Page 195 ("Subdivision" or "premises" or
"Subject Land") and being shown on a plan entitled "Habitat for Humanity of Cape Cod,
Inc.'s 620 Tubman Road Definitive Subdivision Plan of Land in Brewster,
Massachusetts", dated February 23, 2016, by J.M. O'Reilly & Associates, Inc. and
recorded with said Deeds in Plan Book Page ("Subdivision Plan"), hereby
imposes certain easements, restrictions, rights and reservations ("easements and
covenants") on Lots 1 through 14 (the "Lots") and the common area and facilities of the
Subdivision, which common area and facilities includes the "Proposed 40' Wide Private
Way" to be called [Habitat Road] and adjacent sidewalks (the "Road"); the open space
which is all of the Subject Land outside the boundaries of the Lots and the Road,
including the island within the cul-de-sac ( the "Open Space"); and the facilities of the
Subdivision, including, without limitation, the drainage and stoiiiiwater management
systems; the common utilities in, under and adjacent to the Road to the extent the same
are not maintained by the appropriate utility companies, including without limitation all
conduits, ducts, pipes, plumbing, wiring and other facilities for the furnishing of power,
light, telephone, cable, water, drainage pipes, and lighting fixtures, if any (the "Common
Area").
The provisions contained herein shall run with the Subject Land and bind the
Owners of each Lot within the Subdivision and their heirs, devisees, legal
representatives, successors and assigns. The words "Owner", "Lot Owner",
Declaration of Easements
Habitat Brewster
Page 2 of 13
"Homeowner" or "Member" shall mean and refer to the record holder from time to time
of the legal title in fee of any of said Lots.
(1) Purpose and Duration. The Subdivision shall contain fourteen (14) units of
affordable housing (the "Dwelling Units"), each constructed on its own lot and shown as
Lots 1 through 14 on the Subdivision Plan pursuant to a Comprehensive Permit issued to
Habitat by the Town of Brewster Zoning Board of Appeals, dated January 29, 2014, and
recorded with said Deeds in Book 28050, Page 176, and any amendments thereto (the
"Comprehensive Permit"). The easements and covenants set forth herein are intended to
and shall run with the premises in perpetuity in order to preserve and protect the
affordability of the Dwelling Units constructed or to be constructed on the premises; to
provide a right of way over the Road for access to and from the Lots and homes of the
Subdivision; to provide for the operation, maintenance, repair and replacement of the
Road, the Open Space, and other common areas and facilities of the Subdivision defined
above as the Common Area; and to create a desirable residential neighborhood and
ensure a high quality of community appearance.
(2) Repurchase of Lots. No Owner may sell his or her Lot except by complying
with the provisions of the Affordable Housing Restriction recorded simultaneously with
each deed to each Owner.
(3) Membership in Association. Every Owner of a Lot in the Subdivision shall be a
member of the [Habitat Brewster] Homeowners Association. Membership shall be
appurtenant to and may not be separated from ownership of a Lot. Each person or entity
that takes title to any Lot within the Subdivision shall, upon acceptance of a deed or upon
the vesting of title by descent or devise, be deemed to have applied for and accepted
membership in the [Habitat Brewster] Homeowners Association, a Massachusetts trust,
and shall be bound by the terms of the Declaration of Trust Establishing the [Habitat
Brewsterl Homeowners Association, dated , 2016, and recorded with
Declaration of Easements
Habitat Brewster
Page 3 of 13
the Barnstable Registry of Deeds herewith (the "Association" or "Homeowners
Association" or "Declaration of Trust" or "Trust").
(4) Easements.
(a) Habitat reserves the right to grant easements to others over any and/or all of the
Common Area until such time as Habitat has conveyed all fourteen Lots to
Homeowners and conveyed the Common Area to the Association.
(b) Habitat grants, as appurtenant to all Lots of the Subdivision, to all Lot Owners
of the Subdivision, their families, guests and invitees, their successors and assigns, and
the Homeowners Association Members and Trustees, subject always to the restrictions,
covenants, rules and regulations contained in this Declaration, the Declaration of Trust
or hereinafter imposed by the Association, the perpetual right and easement, to use in
common with all other Lot Owners of the Subdivision, their families, guests and
invitees, their successors and assigns, the Common Area:
(i) The "Proposed 40' Wide Private Way" to be called [Habitat Road] and
adjacent sidewalks (the "Road") for all purposes for which streets and ways are
now or may hereafter be used in the Town of Brewster, including without
limitation, access on foot and in motor vehicles; installing, maintaining,
snowplowing, replacing, removing and using the Road, the stormwater
management system, and all conduits, ducts, pipes, plumbing, wiring and other
facilities for the furnishing of drainage, power, light, telephone, cable, water
and lighting fixtures, if any; and
(ii) The Open Space for all purposes for which open space and lawn areas are
now or may hereinafter be used, including recreation, subject always to Rules and
Regulations promulgated by the Trustees, but excepting the 7' wide trail easement
described in an Easement Agreement between Habitat and Donald G. Smithson
and Gail M. Smithson, dated October 11, 2014, recorded with said Deeds in Book
28445 Page 197 ("Trail Easement"), which is to be used in common with the
Smithsons subject to the terms and provisions set forth in said Agreement.
Declaration of Easements
Habitat Brewster
Page 4 of 13
(c) Habitat grants the perpetual right and easement to the Trustees of the
Homeowners Association access to so much of each Lot of the Subdivision as may be
necessary to maintain and repair the Road, adjacent sidewalks and buffer areas.
(5) Restrictions. The Lots and the Common Area of the Subdivision shall
be subject to the following restrictions:
(a) Any Dwelling Unit built on the Subject Land shall be used only as
a single family private residence occupied only by the Homeowner(s), his or her
or their family members and non-paying guests, unless permission for an
exception is obtained in accordance with the requirements of the Affordable
Housing Restriction recorded simultaneously with each deed to each Homeowner;
(b) No commercial or business activity and no business or profession
of any nature shall be conducted in any Dwelling Unit except those home
occupations allowed as of right or by special permit of the Town of Brewster.
(c) All use and maintenance of the Common Area shall be in
accordance with the provisions of the Rules and Regulations from time to time
promulgated by the Trustees; and
(d) No unlawful use shall be made of or within the Common Area or
any part thereof, and all valid laws, orders, rules and regulations of all
governmental agencies having jurisdiction thereof shall be strictly complied with.
Compliance with any legal requirements shall be at the sole cost of the Lot Owner
or the Trustees, as the case may be, whichever shall have the obligation under this
Declaration and the Trust establishing the [Habitat Brewster] Homeowners
Association to maintain, repair or control the portion of the property affected by
any such legal requirement. Each Lot Owner shall give prompt notice to the
Trustees of any notice he or she receives of the violation of any legal
requirements affecting the Lot, the Lot Owner or the Common Area.
Declaration of Easements
Habitat Brewster
Page 5 of 13
(6) Responsibility of Trustees. The Trustees of the [Habitat Brewster]
Homeowners Association (the "Trustees") shall be responsible for the maintenance and
improvement of the Common Area of the Subdivision, including the stormwater drainage
system and the common utilities in, under and adjacent to the Road, to the extent the
same are not maintained by the appropriate utility companies, including, without
limitation, all conduits, ducts, pipes, plumbing, wiring and other facilities for the
furnishing of power, light, telephone, cable, water, drainage pipes, and lighting fixtures,
if any. Maintenance of the Common Area includes without limitation, arranging for snow
plowing of the Road and adjacent sidewalks and maintaining the grassed areas and
plantings in the Open Space in accordance with the Landscape Plan submitted to and
approved by the Zoning Board of Appeals in its issuance of the Comprehensive Permit.
The Trustees shall be responsible for the payments of taxes, insurance and other expenses
related to the affairs of the Association. The Trustees shall have the power to make and
enforce reasonable rules and regulations for the use of the Dwelling Units, Lots and
Common Area and have the power to levy and collect reasonable fees as shall be
established by the Association, including special assessments for reserves and capital
purposes, to accomplish the foregoing. The Trustees shall be responsible for hiring and
retaining a property management services company to perform some or all of the
managerial responsibilities, including but not limited to the collection of Association fees
from the Homeowners.
(7) Payment of Assessments. Each Lot Owner, by acceptance and recording
of a deed to any Lot in the Subdivision, shall be deemed to have agreed to comply with
the Declaration of Trust, including, without limitation, the covenant to pay promptly any
and all assessments levied by the Trustees and paid to the property management services
company that the Trustees hire and retain pursuant to the terms of this Declaration and
the Declaration of Trust for maintaining the Common Area in good condition and repair.
Declaration of Easements
Habitat Brewster
Page 6 of 13
(8) Rules and Regulations. Habitat and the Trustees of the Association have
adopted the Rules and Regulations set forth in Schedule A annexed hereto and made a
part of this Declaration, governing the details of the operation and use of the Common
Area and the Dwelling Units, and containing such restrictions and requirements
respecting the use and maintenance of the Lots, the Dwelling Units and the Common
Area as are consistent with the provisions of the Comprehensive Permit, and designed to
prevent unreasonable interference with the use by the Homeowners of their Lots and
Dwelling Units and of the Common Area. By an affirmative vote of the Trustees, the
Trustees may at any time and from time to time amend and modify the Rules and
Regulations, provided, however, that no such amendment or modification shall result in a
Rule or Regulation that is less restrictive than those set forth in Schedule A attached
hereto without the prior written consent of the Zoning Board of Appeals of the Town.
(9) Enforcement. The Trustees may prosecute proceedings at law or equity
against any person violating or attempting to violate the provisions hereof, either to
restrain violation, by action or inaction, or to recover damages. Enforcement shall be
made by the Trustees or the property management services company, acting as agent for
the Trustees, pursuant to Sections 26 and 27 of the Homeowners Association Trust.
Notwithstanding the foregoing, the Zoning Board of Appeals of the Town shall have the
right to enforce any provisions hereof that are specifically applicable to the
Comprehensive Permit.
(10) No Waiver. The failure of the Trustees or any Lot Owner or of Habitat or
the Town to enforce any restriction, covenant or provision hereof shall not be deemed to
be a waiver of the right to do so thereafter as to the same breach or to one occurring prior
or subsequent thereto.
Declaration of Easements
Habitat Brewster
Page 7 of 13
(11) Severability. If any easement, covenant, restriction, agreement, or charge
herein contained should be held invalid by any court, such invalidity shall in no way
affect any other easement, covenant, restriction, agreement or charge herein.
(12) Conveyance to Homeowners' Association. Habitat shall convey the fee
in the Road and the Common Open Space of the Subdivision shown on the Subdivision
Nan, without further consideration, to the Homeowners Association upon or before the
sale of the fourteenth Lot of the Subdivision.
(13) Term. The easements, restrictions and provisions herein set forth shall
run with the Subject Land in perpetuity from the date of recordation of this Declaration.
The easements, restrictions and provisions herein set forth shall be enforceable against
Habitat and the successors and assigns of Habitat holding any interest in the premises for
the period of time that any party holds an interest in the premises or portion thereof.
Further, Habitat and each Lot Owner by the acceptance of a deed to any of the Lots
acknowledge and agree that the covenants granted herein are made for the benefit of the
Town, its successors and assigns, in perpetuity or for at least a period of ninety-nine
years, and the Lot Owners acknowledge that the covenants, as they are held by the Town,
constitute restrictions held by a governmental body, as those terms are defined in G.L.
c.184, §26, and are thus not subject to G.L. c.184, §§27-30. Notwithstanding said
acknowledgment, Habitat, the Lot Owners, and their successors and assigns, further
acknowledge that the herein covenants, restrictions and provisions constitute a common
scheme pursuant to G.L. c. 184, §27, applicable to Lots 1 through 14, and acknowledge
that enforceability of the covenants herein may be continued for further periods of twenty
(20) years beyond thirty (30) years from the recording of this instrument.
(14) Amendment and Release. Except as specified in Section 8 herein, this
Declaration shall not be amended or terminated without the consent of the Board of
Declaration of Easements
Habitat Brewster
Page 8 of 13
Appeals of the Town nor shall this Declaration be altered so as to be contrary to the
purposes stated herein.
(15) Binding. This Declaration and the provisions hereof shall be binding
upon Habitat, the Lot Owners, the Association, and any other party having or claiming to
have an interest in the Subdivision or any portion thereof as tenants, invitees, licensees or
otherwise, and all of the respective heirs, successors, grantees, mortgagees, assigns,
agents, contractors, subcontractors and employees of the foregoing.
[end of document text — signature page follows]
Declaration of Easements
Habitat Brewster
Page 9 of 13
Executed as a sealed instrument this day of 2016.
HABITAT FOR HUMANITY OF
CAPE COD, INC.
By:
Wilburn O. Rhymer, President
By:
Linda A. Cebula, Treasurer
COMMONWEALTH OF MASSACHUSETTS
Barnstable County
On this day of 2016, before me, the undersigned notary
public, personally appeared Wilburn O. Rhymer, President of Habitat for Humanity of
Cape Cod, Inc., personally known to me to be the person whose name is signed on the
preceding or attached document, and acknowledged to me that it is the free act and deed
of said corporation, for its stated purpose.
Notary Public
My commission expires:
Declaration of Easements
Habitat Brewster
Page 10 of 13
COMMONWEALTH OF MASSACHUSETTS
Barnstable County
On this day of 2016, before me, the undersigned notary
public, personally appeared Linda A. Cebula, Treasurer of Habitat for Humanity of Cape
Cod, Inc., personally known to me to be the person whose name is signed on the
preceding or attached document, and acknowledged to me that it is the free act and deed
of said corporation, for its stated purpose.
Notary Public
My commission expires:
Declaration of Easements
Habitat Brewster
Page 11 of 13
SCHEDULE A
[HABITAT BREWSTER] HOMEOWNERS ASSOCIATION
RULES AND REGULATIONS
The intent of these Rules and Regulations is to foster and maintain a safe, clean and
pleasing environment for the enjoyment of the owners and occupants of the Subdivision.
All Homeowners and occupants are obligated to be familiar with and abide by the terms
and conditions contained within these Rules and Regulations and all other documents
governing the operations of the Homeowners Association, including the Declaration of
Trust Establishing the [Habitat Brewster] Homeowners Association, dated
, 2016, and recorded herewith.
1) No use shall be made of the Common Area except as set forth in this
Declaration and in the aforesaid Declaration of Trust or permitted by the Trustees.
2) The Open Space shall be used for passive recreation only. Planting,
mowing, maintaining, replacing and removing trees, plants, shrubs, grasses, and other
landscaping as well as placing fencing, chairs, benches and picnic tables are allowed with
the prior approval of the Trustees by affirmative vote. Nothing shall be done or kept in
the Common Area that increases the rate of insurance of the Homeowners Association
without the prior written consent of the Trustees. No Homeowner shall permit anything
to be done or kept in the Common Area which will result in the cancellation of insurance
of the Homeowners Association or which would be in violation of any law. There shall
be no disposal of waste within the Common Area.
3) No trailer, mobile home, recreational vehicle or commercial vehicle of any
kind may be parked overnight in the Common Area.
4) No unregistered motor vehicle of any type, including motorcycles,
motorbikes, so-called ATV's and the like, may be kept, maintained or stored, temporarily
or peuiianently, on any Lot for a period in excess of sixty (60) days.
5) As light pollution can be a nuisance to neighbors, all exterior lighting shall
be directed to cast no light beyond the property line. Exterior spotlights and floodlights
are prohibited.
6) Every outdoor receptacle for ashes, trash, rubbish, or garbage shall be so
placed and kept as not to be visible at any time except the times when refuse collections
are being made. The structures and grounds on any Lot shall be maintained in a neat and
11
Declaration of Easements
Habitat Brewster
Page 12 of 13
attractive manner and the entire property kept free of rubbish, debris or material of any
kind that render the same unsanitary, unsightly, offensive, or detrimental.
7) It is the responsibility of the individual Lot Owner to maintain the outside
of their house and the walkway, driveway, and fences on their property. Grassed areas of
any Lot shall be mowed regularly and maintained by each Homeowner. It is not the
responsibility of the individual Lot Owners to mow or otherwise maintain the Common
Area outside of his, her or their Lot boundary. The Trustees may adopt fines and
penalties for the failure of a Lot Owner to comply with the provisions of this paragraph.
8) Clotheslines and outdoor clothes -drying devices shall be placed only in the
backyards of the Lots and positioned so as to minimize their visibility from the Road.
9) No additions, modifications or improvements to existing buildings or
additional structures of any kind, including but not limited to a deck and shed for each
Lot shall be erected, placed, or allowed to stand upon any Lot of the Subdivision except
in accordance with the Comprehensive Permit and as permitted by the Bylaws or Zoning
Ordinances of the Town of Brewster, as the same may from time to time be amended, or
by any applicable law, ordinance, or regulation of any governmental unit having
jurisdiction thereof. All such additions, modifications or improvements located within
five (5) feet of a Lot's boundary line shall in the first instance be submitted to the
Trustees in writing for prior approval by affirmative vote of the Trustees. The Trustees
shall review such submission to deteiiiiine such matters as boundary line and Common
Area encroachment; safety; tangible adverse effect on the abutters' property, i.e. location
of a tree not previously planted that could shade the neighbors' yard, location of a
compost bin close to abutters' property, and the like. The Trustees' review shall not
include a review of the aesthetic design of the submission.
10) The Trustees shall hire and retain a property management services
company and delegate to the property management services company certain of their
rights, responsibilities and duties, including without limitation the collection of
assessments.
11) The use of the Lots by the Homeowners, as well as the safety and
maintenance of all personal property of the Homeowners kept on the Lots and in the
Dwelling Units themselves, shall be the responsibility and at the sole risk of the
respective Homeowners, and neither the Trustees nor their respective agents, servants,
employees, successors or assigns, shall bear any responsibility therefor. Each
12
Declaration of Easements
Habitat Brewster
Page 13 of 13
Homeowner assumes responsibility for such Homeowner's own safety and that of such
Homeowner's family, guests, agents, employees and licensees.
12) Any Lot Owner may prosecute proceedings at law or in equity against any
person violating or attempting to violate the provisions hereof either to restrain violation
or to recover damages, provided such Lot Owner acts pursuant to Sections 26 and 27 of
the Homeowners Association Trust.
13) The Trustees may adopt fines and penalties for the failure of a Lot Owner
to comply with the provisions of this Declaration including without limitation the Rules
and Regulations.
14) In the event of a default in the performance of paragraphs 5, 6, 7, 8, and 9
of these regulations, and if such default shall not have been cured within twenty-one (21)
days after written notice to the Homeowner, the Trustees shall have the right to enter
upon the lot of the Homeowner in default without being deemed guilty of trespass in
order to correct any default of the provisions contained herein, to mow the grass, to place
the property in a neat and orderly condition; and do all things reasonably necessary to
correct any default of the provisions contained herein.
15) At all times and for all matters concerning these Rules and Regulations and
upon the request of the Trustees, the property management services company may serve
as agent of the Trustees.
13
No Materials Received to Date
#20-17 Applicant: Robert S. Tullock and
J. Bruce MacGregor
Represented by Attorney Benjamin
Zehnder
#21-03 Applicant: Sean M. Burke &
Adam P. Burke
Represented by Attorney Andrew L.
Singer
Law Office of Singer & Singer, LLC
26 Upper County Road
P. 0. Box 67
Dennisport, Massachusetts 02639
Andrew L. Singer
Marian S. Rose
Myer R. Singer (1938-2020)
February 3, 2021
Via E -Mail
Brewster Board of Appeals
2198 Main Street
Brewster, MA 02631
Re: Angler's Cartway, Brewster (ZBA Case #21-3)
Tel: (508) 398-2221
Fax: (508) 398-1568
www.singer-law.com
Dear Members of the Board,
I am writing to respectfully request that the hearing on the amended application for the above
property that is currently scheduled to be heard on February 9, 2021, be continued to the Board's March
9, 2021, meeting. I have a scheduling conflict with a continued hearing in Harwich also on February 9th
at the same time.
Thank you for your consideration of the Applicants' proposal.
Very truly yours,
Andrew L. Singer
Andrew L. Singer
ALS/A
#21-02 Applicant: J & J Revocable Trust,
Robert S. Tulloch, Trustee
Represented by Robert S. Tulloch
POST OFFICE BOX 1493
SOUTH DENNIS, MASS 02860
PH: 508 -39B -1B11 FX: 1888
www.CCCONSTRUCTION.net
SITEWORK & UTILITY CONTRACTOR
When I, Christopher W. Cooney, President of C.C. Construction, Inc., sold my commercial property (32 Sara
Ann Lane, Brewster, MA) to Robert S. Tulloch back in 2005, I had a shed in the location of the now (4) sheds.
When Mr, Tulloch moved in, he brought his sheds with him & lined them up in their current location. They
have been there since he bought the property back in 2005.
Chris opher W. Coo ey
Pre xdei , C.C. Con
n, Inc.
Date
Subscribed and sworn before me this i) day of, 2021.
Notary Pul l r' 11s f� .
My commission expires: ✓ I �., l� �1r
KIMBERLY M. NAUJOKS-LEITE
O Notary Public
COMMONWEALTH OF MASSACHUSETTS
My Commission Expires
May 31, 2024
#21-05 Applicant: Byfield Cartway, LLC
Represented by Attorney Marian S. Rose
pionp.of0 do
linin lnIRM100�"��o�\�
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 # a1`
APPLICATION FOR BREWSTER ZONING BOARD OF APPEALS
SPECIAL PERMIT/ VARIANCE/ ZBA APPEAL APPLICATION
($300 Filing Fee)
Date + Time Stamped
By Town Clerk
NAME OF APPLICANT Byfeld Cartway, LLC
REPRESENTATIVE Marian S. Rose, Esq.
MAILING ADDRESS c/o Law Offices of Singer & Singer
PROPERTYADDRESS 79 Byfeld Cartway, Brewster, MA
PHONE NUMBER 508-398-2221
CURRENT PROPERTY OWNER(S) Byfield Cartway, LLC
REGISTRY OF DEEDS TITLE REFERENCE BOOK 27895 PAGE 76 OR
CERT. OF TITLE # LAND COURT #
PLAN # Book 503, page 56, Lot 03
TOWN MAP # 50 LOT # 6
ZONING DISTRICT R -M
STATEMENT OF PROJECT
See attached
YEAR BUILT 1900
Re e444 )1 IVi2 20
SIGNATURE OWNER DATE
/7/1/ / 6 ;--e-
0 OWNER OR AGENT FOR
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
Applicant's Narrative on Statement of the Project
79 Byfield Cartway, Brewster, MA
Attachment A
The Applicant's property is pre-existing nonconforming as to use (three dwellings on one lot). The
Applicant proposes to construct a new primary dwelling which would be conforming as to setbacks,
height, and coverage. The Applicant proposes to relocate a cottage (which is located within the fifty -foot
wetland buffer) to another conforming location on the Property outside the buffer,area. Cottage number
two would remain unchanged and pre-existing nonconforming as to right side setback. Cottage number
three would remain unchanged and conforming as to setbacks. Access and parking wilt be maintained and
provided.
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 Cottage number two
STREET ADDRESS 79 Byfield Cartway YEAR BUILT 1900
MAP # 50
LOT # 6
ZONING DISTRICT R -M
List only the nonconformities below Identify all nonconforming setbacks.
LOCATION EXISTING REQUIRED PROPOSED
Front
Side -right
Side -lets
Rear
352.8 40 352.8
6.7
176.1
83.9
25
' 25
25
6.7
176.1
83.9
J.noation is used to identify the setback; I.E. front, back, left side, right side, N -north, S -south, E -east, W -west,
m Fxiating is the setback that currently exists on the ground .
= Required is the applicable setback required currently in the Brewster zoning bylaw
= proposed is the setback being requested
FRONTAGE: EXISTING 232 +1 -
LOT SIZE: 3.33 acres
REQUIRED 150
LOT COVERAGE EXISTING % 1.83
PROPOSED % 5.07 ALLOWED % 25
SIZE OF PARCEL 145,054 sq. ft. BUILDABLE UPLAND 128,030 sq. ft.
BUILDING COVERAGE/PRIMARY STRUCTURE 4,150
BUILDING COVERAGE ALL OTHER STRUCTURES 2,344
BUILDING HEIGHT: EXISTING One story
SPECIAL PERMITS:
sq, ft.
sq, ft.
PROPOSED o^astay-u^d,ave.d
M 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
SECTION(S) PARAGRAPH(S) OF BREWSTER BYLAW UNDER WHICH THE SPECIAL
PERMIT IS SOUGHT AND A BRIEF DESCRIPTION OF THE PROPOSAL.
See attached
VARIANCES:
❑ APPLICATION FOR VARIANCE AS SET FORTH IN M.G.L. 40A, § 10
SECTION(S) PARAGRAPH(S) OF BREWSTER BYLAW UNDER WHICH THE VARIANCE IS
SOUGHT AND A BRIEF DESCRIPTION OF THE PROPOSAL. In order to grant a Variance, the
ZBA must find all three of the following to be true:
❑ 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
❑ 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
o 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.
ZBA SPECIAL PERMIT/ VARIANCE/APPEAL APP. REVISED 10-02-2017 Page 3 of 4
Applicant's Narrative on applicable By -Law
79 Byfield Cartway, Brewster, MA
Attaclunent B
The Applicant requests that a special permit be granted under Section 179-25 B which provides that a
special permit may be granted for the extension or alteration of pre-existing nonconforming structures or
uses if the Board of Appeals finds that such a change, extension or alteration to a structure or use will not
be substantially more detrimental to the neighborhood than the existing nonconforming use. Here, three
cottages and a gazebo currently exist on the property as pre-existing nonconforming as to use (three
dwellings on one lot). The Applicant proposes to build a primary dwelling which would be conforming as
to setbacks, height, and coverage. The Applicant proposes to relocate one cottage (which is located within
the fifty -foot wetland buffer) to another conforming location on the Property outside the buffer area.
Cottage number two, would remain unchanged and pre-existing nonconforming as to right side setback.
Cottage number three would remain unchanged and conforming as to setbacks. Access and parking will
be maintained and provided.
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
❑ Professionally engineered site plan
O Assessor's map showing the applicant's lot
❑ 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
Patriot Builders
A-2
Proposed first Floor Plan
Caldwell Residence
79 Bayfield Cartway, Brewste r, MA 0263 I
Date: 12.14.2020
537 Route 28 - Harwich Port, MA 02646
Phone: (508)-430-0771 Fax: (508)-432-7789
Patriot Builders
A-3
Pro po sed Sec ond Floor Plan
Caldwell Residenc e
79 Bayfield Cartway, Brewster, MA 0263 I
Date: 12 .14.2020
537 Route 25 - Harwich Port, MA 02540
Phone: (508)-430-0771 Pax: (508)-432-7785
Patriot Builders
A-4
Proposed Elevations
Caldwell Residence
79 ha yfield Cartway, Brewster, MA 0263 I
Dat e: 12 .14 .2020
537 Route 28 - Harwi ch Port, MA 02046
Pho ne: (508)-430-0771 Fax: (508)-432-7789
Patriot Builders
A-5
Propose d Elevations
Caldwell Re sidence
79 Bayfie ld Cartway, Bre wster, MA 02631
Dat e: 12.14.2020
537 Rout e 25 - (-br unch Port, MA 02040
Ph on e, (508)-430-0771 Fax: (508)-432-7789
BYFIELD CAR7yM y
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DRAFT- SITE & SOS PLAN
79 & 87 BYFIELD CARTWAY, BREWSTER, MA
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Edge of Pavement
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Town Boundary
l MA Highways
fnterstate
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Number ed Routes
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5-10 ft
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330
MapsOnline by PeopleGIS
Law Office of Singer & Singer, LLC
26 Upper County Road
P. 0. Box 67
Dennisport, Massachusetts 02639
Andrew L. Singer
Marian S. Rose
Myer R. Singer (1938-2020)
Tel: (508) 398-2221
Fax: (508) 398-1568
www.singer-law.com
Brewster Board of Appeals Case File # 21-05
SUMMARY OF REASONING
Bruce and Irena Caldwell, as Managers of Byfield Cartway LLC [collectively
"Applicants"], own the property at 79 Byfield Cartway in Brewster ["Property"]. The Property,
which is located in the R -M Zoning District, is pre-existing nonconforming as to use (three
dwellings on one lot). The existing cottages were built in the first part of the last century prior to
the introduction of the Brewster Zoning By -Law. The Applicants propose to construct a new
primary dwelling which would be conforming as to setbacks, height, and coverage. The
Applicants propose to relocate an existing cottage which is located partially within the fifty -foot
coastal bank buffer to another conforming location on the Property outside the buffer area. A
second cottage would remain unchanged and preexisting nonconforming as to right -side setback.
The now fourth dwelling would remain unchanged and conforming as to setbacks.
The Property is a conforming lot in the R -M District under the Zoning By -Law. (60,000
square feet required, 128,030 +1- square feet upland existing). Under the current Brewster
Zoning By -Law, absent grandfathered use, no more than two dwellings could be built on the
Property. The Applicants requests a Special Permit under Brewster Zoning By -Law Section
179-25B which provides that a special permit may be granted for the extension or alteration of a
1
pre-existing nonconforming structures or uses if the Board of Appeals finds that such a change,
extension or alteration to a structure or use will not be substantially more detrimental to the
neighborhood than the existing nonconforming structure or uses. Here, three dwellings and a
gazebo exist on site as pre-existing nonconforming as to use. The Applicants respectfully submit
that the proposal will not be substantially more detrimental to the neighborhood than the existing
nonconforming conditions because:
1. While the pre-existing nonconforming multifamily use will be extended, the
underlying use will remain unchanged;
2. The proposed new primary dwelling will conform to all front, side, and rear yard
setback requirements applicable to the Property. The cottage partially within the
fifty -foot coastal buffer will be relocated to a conforming location on the site; the
other dwellings will remain unchanged and, thus, will create no new non -
conformities;
3. Building height for the existing dwellings and the new primary dwelling (28.3
feet) will remain conforming.
4. Building coverage (2,344 square feet (1.83%), existing; 6,494 square feet (5.07%)
proposed) will be conforming (25% maximum allowed);
5. The relocation of the water -front cottage to a conforming location outside of the
buffer zone as well as the improvement in septic treatment for the Property will be
net environmental benefits;
6. There is adequate off-street parking for the continued residential use of the
Property, and there will be no decrease in traffic safety;
2
8. The replacement dwelling will be in keeping with and compatible with the
character of the neighborhood. The Property is wooded and is well -screened from
Byfield Cartway;
9. There will be no negative impact on water supply or drainage; and
10. The proposal will not adversely affect the public health, safety, convenience or
general welfare of the Town.
It is respectfully submitted that there will be no detrimental impact to the neighborhood.
For all of the above reasons, the Applicants respectfully request that the Board make a finding
that the proposal will not be substantially more detrimental to the neighborhood and grant a
Special Permit to allow the proposal to be completed as shown on the plans.
3
Ellen Murphy
From: Lee Myles <leemyles51 @gmail,com>
Sent: Tuesday, February 2, 2021 3:46 PM
To: Ellen Murphy
Cc: Lee Myles
Subject: 79 Byfield Cartway - Proposal to build a house
Emily,
My name is Lee Myles and I am the owner of 34 Byfield Cartway
and part owner of 54 Byfield Cartway. The purpose of this note is to
formally show our support for the proposed construction of a home
located across from us at 79 Byfield Cartway. We have shared with
the Caldwells that we support the project and hope that they are
able to work with the various contractors to maintain the integrity of
the road. We wish them the best, and if you have any questions,
please don't hesitate to reach out to me.
Lee Myles
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APPLICANT/OWNER:
REPRESENTATIVE:
MAP/LOT:
PROPERTY ADDRESS:
Received from:
Brewster Zoning Board of Appeals
2198 Main Street
Brewster, MA 02631-1898
(508) 896-3701 x1168
brewplan@brewster-ma.gov
DEPARTMENT REVIEWS
Application #21-05
Byfield Cartway LLC
Attorney Marian S Rose
Map 50, Lot 6
79 Byfield Cartway
Conservation Com. Comments received from Noelle Aguiar, Conservation Administrator
• This project is within 100 feet of wetland resources and the owners have applied for a permit
from the Conservation Commission. The hearing was opened last night and continued for
more information to be received.
Historic District Com. Comments received from Sara Provos, Senior Department Assistant
• This property falls within the Old Kings Highway and would require a Certificate of
Appropriateness via the Historic District Committee.
Police Dept. Comments received from Lt. George Bausch
• The Brewster Police Department has no issues with this application.
Health Dept. Comments received from Amy von Hone
• The Health Department file indicates an existing 1991 Title 5 compliant septic system servicing
three separate cottages with a total capacity of 7 bedrooms. The property is located in the
BOH local regulation defined Environmentally Sensitive Area (ESA) which limits the property to
a maximum of 1 bedroom/10,000 sf of land area if the existing or proposed septic system
requires any variance relief. Any new structure will require the installation of a fully compliant
Title 5 septic system and must meet all local BOH regulations or seek relief from the BOH for
variance requests. The proposed project will require full review by the Health Department prior
to approval.
Fire Dept. Comments received from Chief Robert Moran
• Fire Department requires road (driveway) leading to the area of residential occupancies to be
no less than 14' wide and clear of obstructions to a height of 14'. In addition, the road shall be
capable of allowing unimpeded access over a gravel base capable of support fire apparatus.
• The dead end area of the road shall include a "T" type turnaround or other design to allow
apparatus the ability to complete a turnaround for forward driving egress.
Application#20-16
2/4/2021
www.brewster-ma.gov
Page 1 of 1
#21-06 Applicant: 2851 Main Street
Holdings, LLC
Represented by Ford & Ford Attorneys
at Law
FORD AND FORD ATTORNEYS AT LAW
72 MAIN STREET, P.O. BOX 485
WEST HARWICH, MA 02671
TEL. (508)430-1900 FAX (508)430-9979
office@fordandfordattorneys.com
MICHAEL D. FORD
JEFFREY M. FORD
February 2, 2021
Ellen Murphy
Senior Department Assistant
Town of Brewster Zoning Board of Appeals
2198 Main Street
Brewster, MA 02631
Re: Request for Continuance Appeal #21-6 Applicant: 2851 Main Street Holdings LLC
Dear Ms. Murphy,
Pursuant to our telephone conversation today, please accept this letter as a request to
continue the hearing on the above referenced case to the Board's next scheduled hearing
date of March 9, 2021.
In support of this request, Applicant states that it is in discussion with several parties in
interest regarding the proposed plans and requests additional time in order to continue
those discussions.
Please bring this request to the attention of the Zoning Board, Further, be advised that the
Applicant agrees to execute any extension of the time period within which the Zoning
Board is required to act on the Applicant's request for a Use Variance, which results from
this request. Please advise accordingly.
Thank you for your assistance and cooperation.
Best regards,
Michael D. Ford, Esq.
Attorney for 2851 Main Street Holdings LLC
CC: Clients, Ryan Bennett Town Planner