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HomeMy WebLinkAboutDecision 4766 Bk 31671 Ps123 4:57371 11-16-2018 a 01 : 32P Ot Y`l,t - _ • t -t, . G TOWN OF YARMOUTH C.; ,1 C. "1;! BOARD OF APPEALS C`• 4 • DECISION FILED WITH TOWN CLERK: October 18,2018 PETITION NO: 4766 HEARING DATE: September 13,2018 PETITIONER: Herve Desroches PROPERTY: 21 Rhine Road,Yarmouth Port,MA Map & lot:#: 0107.52; Zoning District: R-40 Book& Page: 7371/129 MEMBERS PRESENT AND VOTING: Chairman Sean Igoe,Dick Martin,Richard Neitz, Thomas Nickinello and Tom Baron The Petitioner seeks to build a 24 x 24 detached accessory building where an existing shed sits that will encroach into the required(30-foot front)setback. He also seeks to relocate an existing shed to the opposite side of the property where it would be located 6 feet off the side setback. A 10-foot- wide town access road runs along the rear of the property which provides frontage to a town water tower. The access road is not open to the public. Correspondence from Town Planner Kathy Williams stated that "vehicle access is specifically prohibited off German Hill Road to the properties along Rhine Road per the Comprehensive Plan for the Rhine Road/Dutchland Drive subdivision." After reviewing the site plan the Board determined that the new structure would be encroaching on a front setback(this property has two front setbacks and two side setbacks) and due to the fact that the Petitioner would be creating a new nonconformity (front setback relief) it would require a Variance. Board members questioned the Petitioner as to why he could not place the new structure beyond the required setbacks as the site appeared large enough where the new structure could be located in an area that would not require relief. The Petitioner responded that to do so would require that the new structure be located within 10 feet of his septic system which is prohibited by the town Board of Health regulations and that the new structure would be located too close to the house and that it would be out of character with the placement of other accessory structures in the neighborhood. The Board agreed that with the Petitioner's assessment and determined that denial of the Petitioners request for relief would create a hardship. This hardship is owing to the fact that this lot has the two front setbacks due to town roads running in the front and to the rear of the property which creates a limited amount of space within the required setbacks for the Petitioner to locate what are otherwise allowed structures. However, to mitigate the impact of the setback relief the Board felt that the location of the new structure should be no closer than 20 feet from the German Hill Road setback and 10 feet off the side setback. Relocation of the existing shed shall be at least 6 feet off the side line setback and 20 feet off the German Hill Road setback. No one appeared in favor or against the Petition. A Motion was made by Mr.Martin and seconded by Mr.Baron with the following conditions: a) Both structures to be located no closer than 20 feet from German Hill Road. b) The new 24x24 structure to be located no closer than 10 feet off side setback. c) The new 24x24 structure may have electricity but no plumbing or living space. d) Small shed to be located no closer than 6 feet off side setback. e) As built plan to be submitted to the Board of Appeals when constructed. The Motion carried unanimously. No permit shall issue until 20 days from the filing of this decision with the Town Clerk. Appeals from this decision shall be made pursuant to MOL c40A section 17 and must be filed within 20 days after filing of this notice/decision with the Town Clerk. Unless otherwise provided herein, a Variance shall lapse if the rights authorized herein are not excised within 12 months.(See MGL c40A§I 0) Seat . Igoe, Ch. '.�. oqk 4-rail $ THE COMMONWEALTH OF MASSACHUSETTS \`y� yaJ. I..�r=. TOWN OF YARMOUTH BOARD OF APPEALS Appeal#4766 Date: November 8,2018 Certificate of Grantina of Variance (General Laws Chapter 40A,Section 11) The Board of Appeals of the Town of Yarmouth Massachusetts hereby certifies that a Variance has been granted to: Nerve Desroches 21 Rhine Road YarmouthPort,MA 02675 Affecting the rights of the owner with respect to land or buildings at: 21 Rhine Road, YarmouthPort, MA; Zoning District: R-40; Map & Lodi: 0107.52; Book/Page: 7371/129 and the said Board of Appeals further certifies that the decision attached hereto is a true and correct copy of its decision granting said Special Permit and Variance, and that copies of said decision,and of all plans referred to in the decision,have been filed. The Board of Appeals also calls to the attention of the owner or applicant that General Laws, Chapter 40A, Section 11 (last paragraph) provides that no Variance, or any extension. modification or renewal thereof, shall take effect until a copy of the decision bearing the certification of the Town Clerk that twenty days (20) have elapsed after the decision has been filed in the office of the Town Cleric and no appeal has been filed or that,if such appeal has been filed,that it has been dismissed or denied,is recorded in the Registry of Deeds for the county and district in which the land is located and indexed in the grantor index under the name of the owner of record or is recorded and noted on the owner's certificate of title. The fee for such recording or registering shall be paid by the owner or applicant. Sean goe, an 4i .i ` TOWN OF YARMOUTH � _ .'It 1146 ROUTE 28, SOUTH YARMOUTH,MASSACIHUSETTS 02664-4451 Clerk Telephone(508)398-2231 Ext. 1285,Fax(508)398-0836 Town CERTIFICATION OF TOWN CLERK I, Philip B. Gaudet, III, Town Clerk, Town of Yarmouth, do hereby certify that 20 days have elapsed since the filing with me of the above Board of Appeals Decision#4766 that no notice of appeal of said decision has been filed with me, or, if such appeal has been filed it has been dismissed or denied. All appeals have been exhausted. ••,?4 A..4Ci2t ii I/ i,"chili moo; ,iiVtI f`j i to CI Ali y,� I S +..... ! BARNSTABLE REGISTRY OF DEEDS John F. Meade,Register TOWN OF YARMOUTH BOARD OF APPEALS HEARING NOTES Petition# 17 Petitioner /"�,Q/7,3) 7 4'f Hearing Date: 9/11/ REQUEST: SPECIAL PERMIT: § VARIANCE: § ✓ Overturn B.I. Members of the Board present and voting. Pie ti i crt / SU pic <vf r4 r velei4 (0Y It appearing tl{at notice of said hearing has been given by sending notice thereof to the petitioner and all those owners of property deemed by the Board to be affected thereby and that public notice of such hearing having been given by publication in the Register the hearing was opened and held on the date first above written. IN FAVOR OPPOSED rn�J a-t eJ Al icicle/1449 Reason for the Decision: Motion by:/11A.I NJ Seconded by4(`Cw` Vote: Members voting in favor: Opposed: C>) Therefore,the SPECIAL PERMIT VARIANCE ✓ APPEAL is GRANTED DENIED WITHDRAWN CONTINUED TO: CONDITIONS: EXHIBITS RECEIVED AT HEARING: CLERK: Date: CLERK-CHAIRMAN HEARING NOTES ,fortat . o aRN o TOWN OF YARMOUTH ✓ 0; ,1.4 ,ya BOARD OF APPEALS '• `'''' ' :''' „Eat: mmcA ,I yt ;. . APPLICATION FOR HEARING Appeal#: I (I'e Hearing Date: 9/5—*/c9 Fee$ /5e, ,g0 Owner-Applicant: ii QnJL UQsroc1Q5 R� lit /) (Full Names-including d/b/a) 21 1� K 'Arn,w rr 505 L4(6•4163 Skn.2oogeovlcn3) ler (Address) (Telephone Number) (Email Address) and is the (check one) V"Owner 0 Tenant 0 Prospective Buyer 0 Other Interested Party Property: This application relates to the property located at: L( Rtiint Qcl empuf of and shown on the Assessor's Map#: /in as Parcel#: -( ;2,- Zoning District: If property is on an un-constructed(paper)street name of nearestcross street, or other identifying location: Project: The applicant seeks permission to undertake the following construction'use/activity ' (give a brief description of the project. i.e.: "add a 10' by 15' deck to the front of our house"or "change the use of the existing building on the property"): RELIEF REQUESTED: The applicant seeks the following relief from the Board of Appeals: //}} /1/10 vv. i c' ni to +o o14W ,i4 of -AL peck, dck, yAr . • —40jk�C(9_Ma B�i4 < z 2 aro orad Vn-g--1 , ,J E_ y- r'-' I) REVERSE THE DECISION OF TILE BUILDING INSPECTOR OR TIIE ZONING ADMINISTRATOR dated attach a copy of the decision appealed from). State the reason for reversal and the ruling which you request the Board to make. 2) X SPECIAL PERMIT under § /o Y•?• L of the Yarmouth Zoning By-law and,'or for a use authorized upon Special Permit in the "Use Regulation Schedule" §202.5 .(use space below if needed) A./0"/— 90,.//"o•s4r mer L®r 3) )(VARIANCE from the Yarmouth Zoning By-law. Specify-all sections of the by-law from which relief is requested, and, as to each section, specify-the relief sought: i Section: 203-1- Relief sought: ,ei9,/& tett-4'7S ci,r M- Section: Relief sought: Section: Relief sought: ADDITIONAL INFORMATION: Please use the space below to provide any additional information which you feel should be included in your application: • FACT SHEET Current Owner of Property as listed on the deed (if otherfI than applicant): t1QrV� Dkyackcs Zt Qti(o. dY4Imo Are N71 OZ67J� Name& Address t Title deed reference: Book & Page# 7-k 71 12q or Certificate# Land Court Lot# Plan # (provide copy of recent deed) Use Classification: Existing: Sk j rAwi'11) n(�ih §202.5 # A 1 Proposed: 11 §202.5 # tl Is the property vacant: No If so. how long?: Lot Information Size'Area: II Z 841,s(Plan Book and Page Lots Is this property within the Aquifer Protection Overlay District? Yes No Have you completed a formal commercial site plan review(if needed)? Yes No NA Other Department(s) Reviewing Project: Indicate the other Town Departments which are' have/or will resew th's project, and indicate the status of their review process: 1.4. D0%141115 Repetitive Petition: Is this a re-application: NA If yes. do you have Planning Board Approval? ` Prior Relief: If the property in question has been the subject of prior application to the Board of Appeals or Zoning Administrator, indicate the date and Appeal number(s) and other available information. Include a copy of the decision(s) with this application: Building Commissioner Comments: , Applicant's/Attorney/Agent Signature Ow As Signature Address: 21 "t%u ie Rd you-rival-Strut' A o26?S Phon 9-U8 2_416• -'"1183 E-Mail: Sonetoy(' toseicA54 ..t44 �( er Aa, 4%ice 7*744 Building sir1 inner Signature Date BOOK7371rAcE 129 QUITCLAIM DEED 5541 William E. Dacey, Jr. and Barnstable Holding Co. , Inc. , d/b/a German Hill Estates Associates as tenants in partnership, of 100 West Main Street, Hyannis, Massachusetts, for the full consideration of NINETY FOUR THOUSAND NINE HUNDRED and no/100 ($94,900.00) DOLLARS paid, grants to Herve Desroches of 21 Rhine Road, Yarmouthport, Massachusetts 02675, the land with the building situated thereon, described as follows: Lot 18 shown on a plan of land entitled "Plan of Land in Yarmouth, Massachusetts, prepared for Barnstable Holding Co. , Inc. by Flaherty Associates, 170 Court Street, Plymouth, Massachusetts 02360, July 18, 1989. Scale: 40.00 feet to an inch. Revised: January 8, 1990", which said plan was recorded with the Barnstable County Registry of Deeds in Plan Book 467, Page 41. Said premises are part of a Residential Development approved pursuant to Massachusetts General Laws Chapter 40B by the Town of Yarmouth Planning Board and Zoning Board of Appeals. Together with a right of way over Dutchland Drive and Rhine Road as shown on plan of land recorded in Plan Book 467, Page 41 to be shared in common with others who are now or may hereafter be entitled thereto for all purposes for which roads are customarily used in the Town of Yarmouth, but reserving to the Grantor, fee interest and the right to extend said ways to land adjoining located outside of the subdivision. Subject to a utility easement dated April 10, 1990 and being recorded in Book 7125, Page 288 running in favor of Commonwealth Electric Company and New England Telephone and Telegraph Company. Subject to the terms and conditions set forth in the Comprehensive Permit dated January 12, 1990 and recorded in Book 7042, Page 250. Said lot 18 is prohibited from having direct vehicle access to German Hill Road where said lot has rear frontage on said road (see condition 8 of the above mentioned Comprehensive Permit) . Said lot is subject to the restrictions that the maximum amount of grassed area shall be One Thousand (1,000) square feet (see condition 10 of the Comprehensive Permit) . Subject to and with the benefit of the restrictions of the Homeownership Opportunity Program of the Commonwealth of Massachusetts Housing Program, which run with the land, are attached hereto, and made a part hereof. For the Grantor's title see deed recorded in Book 7042, Page 226. 1 1 � BOUK7371F GE 130 • WITNESS the execution hereof under -e. t'is 3rd day of December, 1990. in 7 Wi ' lam E. Dacey, Jr. , Individually and as President and Treasurer of Barnstable Holding Co. , Inc. COMMONWEALTH OF MASSACHUSETTS Barnstable, ss. December 3, 1990 Then personally appeared the above-named William E. Dacey, Jr. and acknowledged the foregoing instrument to be his free act and deed before me, and to be the duly authorized free act and deed of the Barnstable Holding Company, Inc. Notary Public, James R. ,i�l�,2�Nty`''x My commission expires: 3719, 3h CO - - CEEr. . RF" 01 EDS'S' EXCI E C'� sARr�srasc E ._ }� — 4 ^ 03190 TSo 1 21 6. uU._ _ YF 1!-0[v.-/ TAX 4 'v+ CLACK 32 I. 0 4450A000 L5:25 EXCISE TAX - 2 - mat - erre resi ent erman ill oad question https://mail.google.com/mail/NT:#2&ik=f9303a62f0ever=4i Gmail Herve D<herved9183@gmail.com> Herve resident German Hill Road question Williams, Kathleen <kwilliams@yarmouth.ma.us> Thu, Jul 19, 2018 at 11:56 AM To: "herved9183@gmail.com"<herved9183@gmail.com> Cc: "Grylls, Mark"<mgrylls@yarmouth.ma.us>, 'Wrack, Douglas"<DWrock@yarmouth.ma.us> Hi Herve, It would appear that German Hill Road was created by the Town in 1963 to provide access and frontage to a new parcel for the water tank(see attached). As it was the Town creating the Road, and not a private developer, it was by necessity a Town Road. The only parcels that have access off this portion of the Road is the Town for the Water Tower and an abutting parcel owned by RFM Facilities Mgt. Vehicle access is specifically prohibited off German Hill Road to the properties along Rhine Road per the Comprehensive Plan for the Rhine Road/Dutchland Drive subdivision (see attached). Access may have been limited by a gate as this is a dead end road which only accesses the Water Tower lot and what looks like a wooded lot, and access from the rear of the Rhine Road parcels is prohibited. Having the public access the road behind your property would have no purpose and would be potentially disruptive to you and your neighbors. So although use of this Town Road is limited, it is still a Town Road and needs to remain so as it provides legal frontage for two lots. Just to clarify, any relief you are seeking would be through the Zoning Board of Appeals and not the Planning Board. Noting the limited use of this section of German Hill Road may be useful in your request for relief. Hope this is helpful, Kathy ---------------------- Kathy Williams, PE Yarmouth Town Planner 1146 Route 28 South Yarmouth, MA 02664-4492 (508) 398-2231 Ext 1276 kwilliams@yarrnouth,ma.us -----Original Message---- From: herved9183@gmail.com [mailto:herved9183@grrail com] Sent: Tuesday. July 17, 2018 2:34 PM To: Williams, Kathleen <kwilliams@yarmouth.ma.us> Subject: Herve resident German Hill Road question [Quoted text hidden] 3 attachments j Deed for German Hill Water Tank.pdf 305K I of 2 7/20/18, 10:42 AM Property Location:21 RHINE RD MAP ID:107/52/// Bldg Name: State Use:1010 Vision ID:13111 Account#13111 Bldg#: 1 of 1 Sec#: 1 of 1 Card 1 of 1 Print Date:09/01/2017 07:50 ' • ; ; . r:/� .;._. •" . ,1 is �_ r _ _; Rr, / _.= t YI.- _ . ,>:.- _. T., .". '„ DESROCHES NERVE 2 Above Street 2 Public Water 1 Paved 2 • Description Code •Appraised Value Assessed Value 21 RHINE RD 4 Rolling 4 Gas • 1DNTL 1010 138,200 138,200 815 6 Septic • S LAND 1010 80,300 80,300 YARMOUTH,MA YARMOUTH PORT,MA 02675-2464 ;SI'PLEMENTAL 'ATA r SIDNTL 1010 600 600 Additional Owners: Other ID: 86/G018/// VOTE MISC 350 VOTE DATE CHANGES PRIVATE R( BETTERMENT v`Jj 1SION PLAN NUMBEI1274A ZIP CODE 9999 -GIS ID: M_307222 827560 ASSOCPID# Total 219,100 219,100 °-- RECORD OF OWNERSHIP BR-VOL/PAGE SALE DATE PRICERG PREVIOUS ASSESSMENTS ' STOR' - -- DESROCHES NERVE 7371/129 12/03/1990 I Yr. Code Assessed Value Yr. Code Assessed Value Yr. Code Assessed Value DESROACHES HEAVE 1 0 2018 1010 138,2002017 1010. 138,200 2016 1010 138,200 2018 1010 80,3002017 1010 80,3002016 1010 73,000 2018 1010 6002017 1010 6002016 1010 600 _ Total: 219,100 Torah 219,100 Torah 211,800 r . '' '_ r __.. .. _. .- :`. ']i ,`. EXEMPTIONS, •-• �' :: � -- „,, ,.;,;.,OTHER-ASSESSMENTS', ,� , , This signature acknowledges a visit by a Data Collector or Assessor Year1Type Description Amount Code Description Number Amount Comm.Int 4 w e j PRAISED UE _iota,. Appraised Bldg.Value(Card) - 138,200 ASSESSINGNEIGHBORIfOODm , .e ','?.rt Appraised XF(B)Value(Bldg) 0 ;MUD/SUS- NBHD Name Street Index Name I Tracing Batch Appraised OB(L)Value(Bldg) 600 0040/A Appraised Land Value(Bldg) 80,300 �•`; . , . . . NOTES: . . : ., .. ._.?' Special Land Value 0 NATURAL AFFORDABLE 3/4 REAR DORMER Total Appraised Parcel Value 219,100 SHDI=NV Valuation Method: C EXT-AVG Adjustment: 0 'Net Total Appraised Parcel Value 219,100 Permit ID Issue Date Type Description Amount Insp.Date %Comp. Date Comp. Comments Date Type IS ID Cd. Purpose/Result 06-047 07/13/2005 RP Repair 2,740 0 STRIP,REROOF,PAPEI 01/01/2014 01 1 BH CY CYCLICAL 2014 301 05/05/1998 SD Shed 1,500 100 10 X 15 05/23/2013 BH 01 Measur+IVisit 998256 05/01/1990 55,900 100 NEW DWELL 05/23/2013 BH 02 Measur+2Visit-Info Can 08/08/2005 JS 01 Measur+IVtsit 08/08/2005 JS 02 Measur+2Visit-Info Car, _ � ., �e . . . -. ._ . ..- . . r .. ._,' LAND LLVE'VALUATIOIYSE . O. ,�.. .- , B Use Use Unit 1. Acre C ST. Special Pricing SAdj # Code Description Zone D Front Depth Units Price Factor S.A. Disc Factor Ids Ad/. Notes-Adj Spec Use Spec Calc Fact Adj.Unit Price Land Value 1 1010 SINGLE FAM MDL-0I F 11,284 SF 790 1.0000 4 1.0000 0.830040 1.10 1.00 7.12 80,300 Total Card Land Units:1 0.261 AC1 Parcel Total Land Area:P.26 AC I Total Land Value: 80,300 Property Location: 21 RHINE RD MAP ID:107/52/// Bldg Name: State Use:1010 Vision ID:13111Account 013111 Bldg#: 1 of 1 Sec#: 1 of 1 Card 1 of 1 Print Date:09/01/2017 07:50 Element Cd Ch. Description Element Cd. Ch. Description Style I Cape Cod Model I1 Residential Gradeverage DK 12 HS 32 Stories 1.5 1/2 Stories :AS Occupancy 1 ..,MIXED USE " BM Exterior Wall 1 14 Wood Shingle Code Description Percentage Exterior Wall 2 1010 SINGLE FAM MDL-0I 100 10 11 Roof Structure 13 Gable/Hip Roof Cover 13 Asph/F GIs/Cmp 12 Interior Wall I 15 DrywaWSheet ' interior Wall 2 : ' 'COST/MARKETV4LUAT1ON ., .4 2. Interior Fir I 14 Carpet Adj.Base Rate: 122.56 Interior Hr 2 161,534 Heat Fuel J Goa Net Other Adj: .000.00 Replace Cost 166,534 Heat Type $ Forced Air-Due AYB 1990 AC Type I 1 None Total Bedrooms s3 3 Bedrooms Dep Code Total Bthmu r Remodel Rating 32 Total Half Baths I Year Remodeled Total Xtra Fixtrs Dcp% •0 Total Rooms Functional Obslnc I Bath Style 12 Average External Obslnc I Kitchen Style 12 Modern Cost Trend Factor Condition I M %Complete Overall%Cond . Apprais Val 138,200 Dep%Ovr II - .-.`.'• }. -' Dep Ovr Comment Misc Imp Ovr i Misc Imp On Comment I _ •` j...._._ri.� Cost to Cure Ovr 1 - s - y, it Cost to Cure Ovr Comment • — r' s v OB-OUTBUILDING&YARD ITEM S(L /XF BUILDINGEXTRA FEATURES B - '(+s,+,s} „ i .1/, `..;, . ...-47 — ,- „`� Code Descri'lion Sub SubDescri. B Units Unit Price®Gde D.Rt Cnd %Cnd A. Value say _ _`\ - • - 1.. . SHIM SHED FRAME L 150 •.00 1999 i •0 X00 .- t t . K z r • te - . w ; S 0'0.4• 4 =.� '97 -: _-;; -`B ILD +;-_ GSUB- , SUMMARY ECT ON -r _ ! — - - ' t Code Description Livin:Area Gross Area Ei-Area Unit Cost nde.rec. Value • s +F a, BAS I Irst Floor 768 768 768 122.56 94,126:. ' . i, i.f,,... �� S FHS I all Story,Finished 384 768 384 61.28 47,063-ate:_.._ i• - 1 . UBM 1;asement,Unfinished 0 768 154 24.58 18,874 ,• WOK u k,Wood 0 120 12 12.26 1,471 Cr ' _ ;rt `'ass. .., s TtL Gross Liv/Leace Area: 1.152 2,424 14316 • B00K7371PAGE 131 EXECUTIVE OFFICE OF COMMUNITIES & DEVELOPMENT Mich d S.DukAth,Governor �n 1 Amy S.Anthony,Secretary OPPORTUNITY PROGRAM " Deed Rider (attached to and made a part of in that certain deed from Barnstable Holding Company, Inc. d.b.a. , Dacey Homes ("Grantor") to Herve Desroches ("Grantee") dated December 3 1990.) WITNESSETH WHEREAS, the Massachusetts Housing Partnership Fund Board, established pursuant to Chapter 405 of the Acts and Resolves of 1985 ("MHP") , has established the Homeownership Opportunity Program ("HOP Program") to provide programs designed to produce housing for low and moderate income households and to broaden opportunities for homeownership for such households; WHEREAS, the Executive Office of Communities and Development, an executive office duly organized and existing pursuant to Chapter 6A of the General Laws of the Commonwealth of Massachusetts, acting by and through the Department of Community Affairs pursuant to Chapter 23B of the General Laws of the Commonwealth of Massachusetts (collectively, "EOCD") , recognizes that there exists a housing shortgage in the Commonwealth of Massachusetts; WHEREAS, MHP, by a vote at a duly called meeting of the MHP Board, has authorized EOCD to implement, administer, and expend funds in furtherance of the HOP Program; WHEREAS, EOCD, in furtherance of this public purpose, will provide eligible purchasers the opportunity to purchase certain property at a discount of the property's appraised value if the purchaser agrees to convey the property on resale to another eligible home purchaser for an amount equal to the appraised value of the property, as determined by EOCD, multiplied by the applicable Discount Rate (as herein-after defined) ("Maximum Resale Price") ; and WHEREAS, the Grantor and the Grantee are participating in the HOP Program, and in accordance with the HOP Program the Grantor is conveying that certain real property more particularly described in the deed DR-1 07/87 100 Cambridge Street Boston, Massachusetts 02202 • • • BOOK737IPAGE 132 • ("Property") to the Grantee at a consideration which is equal to 82.6% ("Discount Rate") of the appraised value of the Property as determined by EOCD; NOW THEREFORE, as further consideration from the Grantee to the Grantor for the conveyance of the Property at the Discount Rate in accordance with the HOP Program, the Grantee, its heirs, successors and assigns, hereby agrees that the Property shall be subject to the following restrictions which are hereby imposed for the benefit of, and shall be enforceable by, the Grantor's agent and designee, the Secretary of the Executive Office of Communities and Development, or its successors, assigns, agents and designees ("Secretary"). 1. Right of First Refusal: When the Grantee or any successor in title to the Grantee shall desire to sell, dispose or otherwise convey the Property, or any portion thereof, the Grantee shall notify the Secretary in writing of the Grantee's intention to so convey the Property ("Notice") . The Notice shall contain an appraisal of the Property acceptable to the Secretary prepared by a real estate appraiser acceptable to the Secretary and qualified to appraise property for secondary mortgage markets and recognized as utilizing acceptable professional appraisal standards in Massachusetts, and the Notice shall set forth the Discount Rate and the Maximum Resale Price of the Property. Within thirty (30) days of the Secretary's receipt of the Notice, the Secretary shall notify the Grantee in writing as to whether the Secretary shall exercise its right of first refusal to purchase the Property and/or is proceeding to locate an eligible purchaser of the Property. For the purposes of this Rider, an "eligible purchaser" shall mean a purchaser who satisfies the criteria set forth in the HOP Program guidelines in effect at the time the Secretary locates such purchaser, and who is ready and willing to purchase the Property within a reasonable time after the Secretary notifies the Grantee that the Secretary has located said purchaser. In the event the Secretary notifies the Grantee that the Secretary does not intend to exercise its right of first refusal and/or proceed to locate an eligible purchaser, or if the Secretary fails to notify the Grantee within said thirty (30) day period, the Grantee may convey the Property to any third party free of all restrictions set forth herein, provided, however, all consideration and payments of any kind received by the Grantee for the conveyance of the Property to the third party which exceeds the Maximum Resale Price shall be immediately and directly paid to the Secretary. Upon receipt of this excess amount, if any, the Secretary shall issue to the third party a certificate in recordable form indicating the Secretary's receipt of the excess amount and stating that the Secretary releases and waives its right of first refusal hereunder and all restrictions set forth in this Rider shall be null and void. This certificate is to be recorded in the appropriate Registry of Deeds or registered with the appropriate registry of the Land Court and such certificate may be relied upon by the then owner of the Property and by third parties as constituting conclusive evidence that this excess amount has been paid to the Secretary and that the restrictions and covenants set forth herein are null and void. DR-2 07/87 ' BOUK7371 AGE 13.E • In the event the Secretary, within said thirty (30) day period, notifies the Grantee of the Secretary's intention to exercise the Secretary's right of first refusal and/or locate an eligible purchaser, the Secretary may, within ninety (90) days of the date of the Secretary's Notice to the Grantee, elect to purchase the Property itself subject to the restrictions herein contained and at the Maximum Resale Price or locate an eligible purchaser to purchase the Property subject to the restrictions herein contained and at the Maximum Resale Price. (The Grantee may also locate an eligible purchaser within said ninety (90) day period and submit such eligible purchaser to the Secretary in writing.) If more than one eligible purchaser is located, the Secretary shall conduct a lottery or other like procedure in the Secretary's sole discretion to determine which eligible purchaser shall be entitled to the conveyance of the Property at the Maximum Resale Price, subject to the restrictions set forth in this Rider. If an eligible purchaser is located or the Secretary elects to purchase the Property within said ninety (90) day period, the Property shall be conveyed to said eligible purchaser or the Secretary subject to the terms and restrictions set forth herein. If the Secretary and the Grantee fail to locate an eligible purchaser within the ninety (90) day period or the Secretary fails to notify the Grantee as to whether an eligible purchaser has been located, and the Secretary elects not to purchase the Property, the Grantee may convey the Property to any third party free and clear of all restrictions contained herein, including, but not limited to the Maximum Resale Price, provided, however, all consideration and payments of any kind received by the Grantee for the conveyance of the Property to the third party which exceeds the Maximum Resale Price shall be immediately and directly paid to the Secretary. Upon receipt of this excess amount, if any, the Secretary shall issue to the third party a certificate in recordable form indicating the Secretary's receipt of the excess amount and indicating that all restrictions contained herein have been released by the Secretary. This certificate is to be recorded in the appropriate Registry of Deeds or registered with the appropriate registry of the Land Court and such certificate may be relied upon by the then owner of the Property and by third parties as constituting conclusive evidence that the excess amount has been paid to the Secretary and that the restrictions and covenants set forth herein are null and void. Failure to record the certificate provided in this Paragraph 1 shall not affect the validity of such conveyance, but the restrictions herein contained shall not be released unless such certificate is recorded. 2. Resale and Transfer Restrictions: Except as otherwise stated herein, the Property or any interest therein shall not at any time be sold by the Grantee, the Grantee's successors and assigns, and no attempted sale shall be valid, unless the aggregate value of all consideration and payments of every kind given or paid by the eligible purchaser (as located and defined in accordance with Paragraph 1 above) to the then owner of the Property for and in connection with the transfer of such Property, is equal to or less than the Maximum Resale Price for the Property determined as of a date not later than the date of transfer or conveyance of title to the Property. DR-3 07/87 BOOY7371p cE 134 • (a) No conveyance, sale or transfer to an eligible purchaser (as located in accordance with Paragraph 1 above) shall be valid and be deemed in accordance with the terms of this Rider and the HOP Program unless a certificate is obtained and recorded, signed and acknowledged by the Secretary or its agent or designee which refers to the Property, the Grantee thereof, the eligible purchaser thereof, and the Maximum Resale Price therefor. and states either that: (i) the proposed conveyance, sale or transfer of the Property to the eligible purchaser. is in compliance with the restrictions contained in this Rider if the Property is conveyed at its Maximum Resale Price; or (ii) the Secretary waives the right to enforce the restrictions set forth herein or any of them in connection with the proposed conveyance, sale or transfer. Any good faith purchaser of the Property, any lender or other party taking a security interest in such Property and any other third party may rely upon a certificate of the type referred to in this Deed and Rider referring to the Property as conclusive evidence of the matters stated therein and may record such certificate in connection with conveyance of the Property, provided, in the case of a certificate under 2(a) (i) above, the consideration recited in the deed or other instrument conveying the Property shall not be greater than the consideration stated in the certificate. Within ten (10) days of the closing of the conveyance of the Property, the Grantee shall deliver to the Secretary a true and certified copy of the deed of the Property as recorded, together with information as to the place of recording thereof in the public records. Failure of the Grantee, or Grantee's successors or assigns to comply with the preceding sentence shall not affect the validity of such conveyance. 3. Rights of Mortgagees: Notwithstanding anything herein to the contrary, if the holder (other than the Grantor or its designee) of record of a first mortgage granted to a state or national bank, state or federal savings and loan association, cooperative bank, mortgage company, trust company, insurance company or other institutional lender or its successors or assigns shall acquire the Property by reason of foreclosure or similar remedial action under the provisions of such mortgage or upon conveyance of the Property in lieu of foreclosure, the restrictions and covenants herein contained shall not apply to such holder upon such acquisition of the Property, any purchaser (other than the Grantor or its designee) of the Property at a foreclosure sale conducted by such holder, or any purchaser (other than the Grantor or its designee) of the Property from such holder, and such Property shall thereupon and thereafter be free from all such restrictions. In the event such holder, the Grantor or the Grantor's designee conducts a foreclosure or other proceeding enforcing its rights under such mortgage and the Property is sold for a price in excess of the'greater of - (i) the sum of the outstanding principal balance of the note secured by such mortgage plus all future advances, accrued interest and all reasonable costs and expenses which the holder is entitled to recover pursuant to the terms of the mortgage and (ii) the Maximum Resale Price applicable on the date of the sale, such excess shall be paid to the Grantor or its designee in consideration of the loss of the value and DR-4 07/87 sOOK737iPKCE 135 • benefit of the restrictions and covenants herein contained held by the Grantor and released by the Grantor pursuant to this paragraph in connection with such proceeding (provided, that in the event that such excess shall be so paid to the Grantor or its designee by such holder, the Grantor shall thereafter indemnify such holder against loss .or damage to such holder resulting from any claim made by the maker of such mortgage to the extent that such claim is based upon payment of such excess by such holder to the Grantor or its designee in accordance herewith, provided that such holder shall give the Grantor prompt notice of any such claim and shall not object to intervention by the Grantor in any proceeding relating thereto). To the extent the Grantee possesses any interest in any amount payable to the Grantor under this paragraph, to the fullest extent permissible by law, the Grantee hereby assigns its interest in such amount to said holder for payment to the Grantor. 4. Covenants to Run With the Property: The Grantor and the Grantee, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, hereby grant and assign to the Secretary, the Secretary's agents, successors, designees and assigns the right of first refusal set forth herein, and the right to enforce the restrictions set forth in this Rider. The Grantor and the Grantee hereby grant to the Secretary the right to enter upon the premises for the purpose of enforcing the restrictions herein contained, or of taking all actions with respect to the premises which the Secretary may determine to be necessary or appropriate, with or without court order, to prevent, remedy or abate any violation of the restrictions. The rights hereby granted to the Secretary shall be in addition to and not in limitation of any other rights and remedies available to the Grantor or the Secretary for enforcement of the restrictions set forth in this Rider. It is intended and agreed that the agreements, covenants and restrictions set forth above shall be deemed to be covenants running with the Property and shall be binding upon and enforceable against the Grantee, the Grantee's successors and assigns and any party holding title to the Property, for the benefit of and enforceable by the Secretary, the Secretary's agents, successors, designees and assigns for a period which is the shorter of (a) forty (40) years from the date of recording of this Deed and Rider or (b) twenty one (21) years after the date of death of the last surviving member of the current General Court of the Commonwealth of Massachusetts. Without limitation on any other rights or remedies of the Grantor and Secretary, their agents, successors. designees and assigns, any sale or other transfer or conveyance of the Property in violation of the provisions of this Rider in the absence of a certificate from the Secretary approving such sale, transfer or conveyance as provided hereinabove or waiving the restrictions set forth herein, shall, to the maximum extent permitted by law, be voidable by the Secretary, the Secretary's agents, successors, designees or assigns by suit in equity to enforce such restrictions. DR-5 07/87 1 aoox7371PaGE 136 • 5. Notice: Any notices, demands or requests that may be given under this Rider shall be sufficiently served if given in writing and by hand delivered or posted in the United States mail by registered or certified mail, addressed to the Grantor and Grantee at the addresses written above, or if addressed to the Secretary at the Executive Office of Communities and Development, 100 Cambridge Street, Boston, Massachusetts 02202, or such other addresses as may be specified by either party by such notice. 6. Further Assurances: The Grantee agrees from time to time, as may be reasonably required by the Secretary, to furnish the Secretary a written statement, signed and, if requested, acknoweldged, setting forth the condition and occupancy of the Property, information concerning the resale of the Property and all other information pertaining to the Property or the Grantee's eligibility for and conformance with the HOP Program. 7. Waiver: Nothing contained herein shall limit the rights of the Secretary to release or waive, from time to time, in whole or in part, any of the restrictions contained herein with respect to the Property. 8. Severability: If any provisions hereof or the application thereof to any person or circumstance shall come, to any extent, to be invalid or unenforceable, the remainder hereof, or the application or such provision to the persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each provision hereof shall be valid and enforced to the fullest extent permitted by law end to the fullest extent permitted by the Rule Against Perpetuities. DR-6 07/87 • BOOK7371PAGE 137 • Witness our hands and seals this 3rd day of nprpmhpr , 1990. • Grantor: Barnstable Holding Company, Inc. d.b.a. Dacey Homes Typed Name of Grantor i is :Lure of Grantor By: g/I7esident and Treasurer Grantee: Nerve Desroches Typed Name of Grantee ignature of Grantee COMMONWEALTH OF MASSACHUSETTS County of Barnstable ss December 3 , 1990 Then personally appeared the above-named William E. Dacey, Jr. & Hepve Desroches known to me to be Seller & Buyer and acknowledged the foregoing instrument to be HivObeexfree act and de.. .- .re me. their ,,,.,.•.••:,0,,,,,, • ., 01 SON No : y Public James R. W€lsorri;kir, . ,or commission expires: 3/19:193(1 1 �' '.ryt3 ' Of. . r• Sy r DR-7 RECORDED DEc 3 90 07/87 F • BOOK r042racE 250 6 THE COMMONWEALTH OF MASSACHUSETTS YARMOUTH O 317 Cu>w Town BOARD OF APPEALS Date: January 12 ,19 90 Certificate of Granting of Variance or Special Permit (General Laws Chapter 40A,Section II) The Board of appeals of the City or Town of YARMOUTH hereby certifies that a Variance or Special Permit has been granted To Carman Hill Estatsa_Sseoriataa Address 100 West Main Street City M Town Hvennla Mesaeehuset[s 04601 • affecting the rights of the owner with respect to land or buildings at • Carman NM Rne4 Yarmouth Maraarhuorrs And the said Board of Appeals further certifies that the decision attached hereto is a true and • correct copy of its decision granting said variance—special permit, and that copies of said • • decision,and of all plans referred to in the decision,have been filed with the planning board and ? the city or town clerk. - The Board of Appeals also calls to the attention of the owner or applicant that General Laws, Chapter 40A,Section I I(last paragraph)provides that no variance or special permit,or any ex- tension,modification or renewal thereof,shall take effect until a copy of the decision bearing the certification of the town or city clerk that twenty days have elapsed after the decision has been filed in the office of the city or town clerk and no appeal his been filed or that,if such appeal has been filed,that it has been dismissed or denied,is recorded in the registry of deeds for the cmmty and district in which the land is located and indexed in the grantor index under the name of the owner of record or is recorded and noted on the owner's certifi of title.The fee for such recor- i ding or registering shall be paid by the owner or applicant. •Donald P.Henderson Clot • • IMMM 10e4 Moles .INC '.,,.,.. IM, • • a. • I , • B00K 1042r40E 251 TOWN OF YARMOUTH. BOARD OF APPEALS F • • - DECISION ... 15 %:::9 t.1 ' Filed with Town Clerk: DEC 15 ;E - , � Petition No. 2695 'en Hearing Date: December 14, 1989 PETITIONERS: German Hill Estates Associates • 0/0 Barnstable Holding Co., Inc. 100 West Main Street Hyannis, MA 02601 • • I. PETITIONERS ' t 1 The petitioner is German Hill Estates Associ- • j ates, a limited dividend organization, with an ad • - dress c/o Barnstable Holding Company, Inc., 100 West Main Street, Hyannis, MA 02601. • II. RELIEF REQUESTED The Petitioner has applied, pursuant to M.G.L. Ch. 40B, Sections 20-23, to modify the Com- prehensive Permit granted by this Board in Petition No. 2638, filed with Yarmouth Town Clerk June 23, • 1989. The modification requested is as follows: to allow for either the lease of the locus from the town to the Petitioner and in turn to the • • • C BOOK 7042pA$c 252 ' house purchasers, or the sale of the locus from the t -� iI town to the Petitioner and in turn to the house • - ' purchasers; and to therefore modify the followings 77 15 r;y. Conditions of the Comprehensive Permit as follows: ... , Condition 7 shall be amended to read: The ground lease or leases between the Town of Yarmouth and the homeowners of the HOP units or the _deeds to the purchasers of the HOP units (if they are sold to them as opposed to being leased to • them) shall contain adequate restrictions, as ap- proved by MHFA, to insure affordability in compli- ance with the HOP program for a P gperiod of 40 years. Condition 8 shall be amended to read: The lots with rear frontage on German Hill Road (lots number 1,2,15,16,17,18,19,20,21,22 and 23 on the Preliminary Subdivision Plan of Land • prepared by Flaherty Associates, Inc. dated April 25, 1989) shall be prohibited from having vehicular access to German Rill Road from said lots, and this •� prohibition shall be included in the Ground Lease for the lots, or in the deeds for the lots if they 1 are sold as opposed to leased. Page 2 • • i ! i • • 1 1 BOOK 7042rl6E 253 Condition 10 shall be amended to read: s. _ The maximum amount of grassed area on each lot MQ shall be one thousand (1,000) squaie feet, and tpjI�' 15 requirement shall be included in the Ground Lease for the lots, or in the deeds for the lots if X21"ey are sold as opposed to leased. III. LOCUS The property is a certain parcel of land as shown on Yarmouth Assessor's Map 686, Parcel G-2, on German Rill Road in South Yarmouth, Barnstable County, Ma. owned by the Town of Yarmouth. IV PLANS SUBMITTED • The petitioner has submitted plans depicting • and describing the proposed development for which relief is sought with Petition No. 2638, which are If incorporated by reference in this Petition and De- cision, as follows, Site and Utility Plan (*Preliminary Subdivi- • sion Plan of Land,' Flaherty Associates, Inc., April 25, 1989) "Sewage Disposal System' Plan, Flaherty Asso- ciates, Summer, 1989 Floor Plans and Elevations by Terry Luff • Page 3 • ji 1 ' I • GOOK 7042raoc 254 Assoc., Inc., Architects: Ranch 11 Sheets A-1 to A-3 , �. •�tr- iO Ranch /2 Sheets A-1 to A-3 Y r-' 15 ;i( Cape 11 Sheets A-1 to A-3 Cape 72 Sheets A-1 to A-3 li•s"` - �- Plan of proposed redesign of intersection of German Hill Road and union Street prepared by Flaherty Associates, Inc. Plan entitled "30 Acres for Nitrate Loading • Calculations" prepared by BSC Group. ' V. PETITION EXHIBITS, FILING AND NOTICE A. Exhibits The petitioner submitted the following documents and items with Petition No. 2638, which are incorporated by reference in this Petition and • Decision: Vote of April 1989 Yarmouth Town Meeting Approving • Ground Lease of Locus. • Partnership Agreement - German Rill Estates Associ • - ates • Special Town Meeting Vote 1/7/87 Order of Taking by Eminent Domain 12/8/87 • Letter of 10/12/88 Yarmouth Fair Housing Committee to Dacey • • Page 4 . • .._ • ._....---- BOOK 7042P4GE 255 Memorandum of Understanding Dated November 28, 1988 3/6/89 Letter from MHFA - Preliminary ApproiaT^t'1'-- � 12/6/88 M.RFA Site Acceptability Letter •ss - 15 P.'015 11/16/88 Letter from Lawton to Gleason Copy of HOP Guidelines Ihy,�•• - Unit mix and ground coverage tabulations Unit composition and affordability analysis Report of M. Flaherty, Engineers Draft Traffic Impact and Access Study 4/89 prepared by McDonough i Scully Inc. and Final study 5/89 Abuttors List B. Filing and Notice. The Petition was duly filed. Notice was given as required by Law, including twice publication in the Yarmouth Sun, a weekly publication having cir- culation in Yarmouth. Pursuant to notice, a public hearing was held by this Hoard of Appeals on the evening of December 14, 1989. • 1 VI. HEARING PROCEDURE After proper notice, the hearing was opened on December 14, 1989. After testimony and submission of letters from the Massachusetts Housing Partner- ship concerning the state's disallowance of a Page 5 i 1 • • { 1. BOOK 7O42PAGE 256 Ground lease from the Town of Yarmouth to the de- veloper, (as described in the minutes pd3faieifl'Sy the Hoard), the hearing was concluded and aa n-r ), �f'f' 2 taken. lbws.. VII. GRANT OF COMPREHENSIVE PERMIT At the conclusion.of the hearing, a motion was • made (David B. omen ) and seconded ( Frits Lindquist ) and it was VOTED unanimously to grant a Modifica • - tion to the Comprehensive Permit granted to the pe- titioner in Petition No. 2638 to allow for either the lease of the locus from the town to the Peti- { tioner and in turn to the house purchasers, or the sale of the locus from the town to the Petitioner and in turn to the house purchasers, and to modify Conditions 7, 8, and 10 in said Comprehensive Per- i mit as stated above in Section II, 'Relief Re- quested. A. FINDINGS OF FACT The Board refers to and incorporates by refer- ! ence herein the Findings of Fact in Petition No. 2638. In addition, the Board finds as follows: 1. . The Massachusetts Housing Finance Agency ('MEFA') has determined that the bonds which Page 6 • . BOOK 7042raliE 257 • MHFA uses to finance the 'buy-down' which lowers the mortgage interest payments on the HOP mertgh/dr Ar do not allow the use of a long term ground lease nr 15 910:0; between the town of Yarmouth and the developer and unit owners. 1 2. The town of Yarmouth, at a Special Town Meeting held December 12, 1989, voted by more than a two thirds (2/3) majority to deed the locus • to the Petitioner for the purpose of developing • thirty-seven (37) affordable houses under the state HOP program. 3. The project, as modified by this Deci- sion, is consistent with local needs. Members voting in favor: Donald Henderson, David B. Oman, Leslie Campbell, Fritz Lindquist, David S. Reid. Members voting against: None • Therefore, the request for a modification to the Comprehensive Permit granted in Petition No. • 2638 is unanimously granted. No permit issued until 20 days from date of Ii • filing decision with the Town Clerk. $ Fritz Lindquist Clerk • Page 7 • • 1 • ( i • f • eon 7042vacE 258 CERTIFICATION OP TOWN CLERK: I I, Kathleen D. Johnson, Town Clerk, Town of Yarmouth do hereby certify that 20 days have elapsed since the filing with me of the above Board of Appeals 12695 decision and that no notice of appeal of said decision has been filed with me, or if such appeal has been filed it has been dismissed or denied. Lit. . Kathleen D. Jo son Town Clerk • i Appeal 12695 German Hill Estates Associates EMS FEB 190 • . •• i i + DAn DtAbLt bei REGISTRY OF DEEDS • AC COPY, II rir JOHN F.MEADE,REGISTER -•- TOWN OF YARMOUTH BOARD OF A?PEALS DECISION14 Q- Iyrh l3 FILED WITH TOWN CLERK: + 23 1989 t PETITION NO: 2638 HEARING DATE: 5/24/89 PETITIONER: German Hill Estates Associates c/o Barnstable Holding Co. , Inc. 100 West Main Street Hyannis , MA 02601 I . PETITIONERS The petitioner is German Hill Estates Associates, a limited dividend organization, with an address c/o Barnstable Holding Company, Inc. , 100 West Main Street , Hyannis , MA 02601 . II . RELIEF REQUESTED The petitioner has applied for the issuance of a Comprehensive Permit pursuant to M.G.L. Chapter 40B, Section 20 through 23, as amended, proposing to build low or moderate income housing to be built by said limited dividend organization under the Commonwealth of Massachusetts Homeownership Opportunity Program, in accordance with approval of the Massachusetts Housing Finance Agency, the Massachusetts Executive Office of Communities and Development , and/or the Massachusetts Housing Partnership. Page 2, German Hill Estates The proposal is for 37 single family homes on indtvidual lots , with r requests for waivers from various sections of Town of Yarmouth $y=:" laws, Rules and Regulations, all as described in' the application. III . LOCUS The property is a certain parcel of land as shown on Yarmouth Assessor's Map #86, Parcel G2 , on German Hill Road in South Yarmouth, Barnstable County, MA owned by the Town of Yarmouth. IV. PLANS SUBMITTED The petitioner has submitted plans depicting and describing the proposed development for which relief is sought as follows : Site and Utility Plan ( "Preliminary Subdivision Plan of Land, " Flaherty Associates, Inc. , April 25, 1989 ) "Sewage Disposal System" plan, Flaherty Associates , Summer, 1989 Floor Plans and Elevations by Terry Luff Assoc. , Inc. , Architects : Ranch #1 Sheets A-1 to A-3 Ranch #2 Sheets A-1 to A-3 Cape #1 Sheets A-1 to A-3 Cape #2 Sheets A-1 to A-3 Plan of proposed redesign of intersection of German Hill Road and Union Street prepared by Flaherty Associates , Inc. , filed with this Board 5/30/89. Plan entitled "30 Acres for Nitrate Loading Calculations" prepared by BSC Group. • Page 3 , German Hill Estates V. PETITION EXHIBITS, FILING AND NOTICE A. Exhibits The petitioner submitted the following documents and items : Vote of April 1989 Yarmouth Town Meeting Approving Ground Lease of Locus Partnership Agreement - German Hill Estates Associates Special Town Meeting Vote 1/7/89 Order of Taking by Eminent Domain 12/8/87 Letter of 10/12/88 Yarmouth Fair Housing Committee to Dacey Memorandum of Understanding Dated November 28, 1988 3/6/89 Letter from MHFA - Preliminary Approval 12/6/88 MHFA Site Acceptability Letter 11/16/88 Letter from Lawton to Gleason Copy of HOP Guidelines Unit mix and ground coverage tabulations Unit composition and affordability analysis Report of M. Flaherty, Engineers Page 4 , German Hill Estates Draft Traffic Impact and Access Study 4/89 prepared by McDonough & Sculy Inc. and Final study 5/89 Abuttors List L^ �f h B. Filing and notice. The petition was duly filed. Notice was given as required by Law, including twice publication in the Yarmouth Sun, a weekly publication having circulation in Yarmouth. Pursuant to notice, a public hearing was heldby this Board of Appeals on the evening of May 24 , 1989. VI . HEARING PROCEDURE After proper notice, the hearing was opened on May 24 , 1989 . After lengthy testimony and submission of letters and memoranda from various town boards and departments (as described in the minutes prepared by the Board) , the hearing was continued until May 30, 1989 . On May 30, 1989, the hearing was re-convened, further testimony was given and further memoranda and letters from various town boards, departments and Town Counsel were submitted (as described in the minutes prepared by the Board) . VII. GRANT OF COMPREHENSIVE PERMIT At the conclusion of the hearing, after much discussion, a motion was made (David Reid) and seconded ( Leslie Campbell) and it was VOTED UNANIMOUSLY TO GRANT A Comprehensive permit to the petitioner for 37 single family homes under the HOP Program, according to the plans and information filed with the application and submitted at the .Page 5, German Hill Estates hearings , based on the hereinafter enumerated Findings of Fact , with waivers to Town of Yarmouth By-laws and Rules and Regulations as hereinafter stated, and subject to the hereinafter enumerated conditions : . 23 " o A. FINDINGS OF FACT - - iurr 1. The petitioner, German Hill Estates Associates , is a limited dividend organization as defined in M.G.L. Ch. 40B section 20. It limits its return on equity as required by the Homeownership Opportunity Program ( "HOP" ) Regulations , 760 CMR 37.02 ( 8 ) . 2. The petitioner has control of the land in question by virtue of its selection by the Yarmouth Fair Housing Committee as developer for the site as indicated in its letter dated October 12 , 1988 and by the Memorandum of Understanding between the Town of Yarmouth and Barnstable Holding Co. , Inc. dated November 28 , 1988 , and by the vote of Town Meeting in April, 1989 authorizing Board of Selectmen to execute a ground lease for the locus with the petitioner for the purposes of this project . 3. The petitioner has obtained a Site Acceptability letter from the Massachusetts Housing Finance Agency ( ".MHFA" ) dated December 6, 1988 as well as a preliminary financing commitment under the HOP program in a letter dated March 6, 1989. 4 . The petitioner proposes to build 37 single family homes under the Commonwealth of Massachusetts HOP program, and such homes qualify as "low or moderate income housing" as defined in M.G.L. Chapter 40B, Section 20. See 760 CMR 37 . 02 ( 9 ) . 5. The petitioner therefore has standing under the Comprehensive Permit Statute (M.G.L. Ch. 40B sections 20-23 ) , hereinafter "the statute" and 760 CMR 31 and 32 to file this application. Page 6 , German Eill Estate 6. By filing the documents and plans previously described, the petitioner has satisfied the filing requirements of the statute and the regulations promulgated thereunder, 760 CMR, ?31' and .32: 7. The Town of Yarmouth does not meet the miniMum .£lir hoids) for low and moderate income housing contained in the statute. 8. The locus is a 10. 9 acre site, presently undeveloped and heavily wooded, on German Hill Road off of Union St. , South Yarmouth. 9. The locus is in an R-40 zoning district . 10. The Town of Yarmouth owns the land, having taken it in 1987 by eminent domain for the specific purpose of providing affordable housing. 11 . The Board has taken into consideration the fact that the Yarmouth Board of Selectmen have indicated that the Town will dedicate or set aside approximately 30 acres of abutting (down gradient ) town owned open space land, as shown on the plan entitled "30 acres for Nitrate Loading Calculations" prepared by BSC Group, to be considered in connection with the development and its ' nitrate loading calculations. 12 . The site is in a zone of contribution for public water supply. 13. The application calls for the petitioner to build a total of 37 single family houses , each on their own lots , with the lots varying in size from about 7,700 sq. ft . to about 15, 000 sq. ft . , as shown on the "Preliminary Subdivision Plan of Land" prepared by Flaherty Associates , Inc. dated April 25 , 1989 submitted with the application. 14 . The petitioner will construct 12 , 24 'x32 ' , 2 bedroom, 1 bath (unfinished upstairs ) Cape style houses; 1 , 24 'x32 ' , 4 bedroom, 2 bath ( finished upstairs ) Cape-style home; 17, 24 'x38 ' , 2 bedroom, Page 7, German Hill Estate 1 bath ranch-style homes; and 7 , 28 'x44 ' , 3 bedroom, 2 bath ranch- style homes , as shown on the Floor Plans and Elevations prepared by Terry Luff Associates , Inc. submitted with the application. 23 , 15. All homes will be sold under the HOP program, at prices ranging from about $64 , 900 to $94 , 000. Therefore, under the HOg..guidelines , the minimum annual income needed to qualify for a home at the site will range from about $20 , 183.20 to $29 , 512.47 . 16. Three of the houses are available to be purchased by the Yarmouth Housing Authority for low and moderate income tenants , in accordance with the HOP and MHFA regulations . 17. The total building coverage on the site is about 7.18%. The total ground coverage, including building footprint , driveways and roads , is about 35 . 8% which means that the total green space will be about 64 .2%. If the abutting 30 acres of land designated for nitrate loading is included, the total green space is about 92.5%. 18. Town water is available at the site, as is natural gas from Colonial Gas Co. and electricity from Commonwealth Electric. 19. Each house will have its own septic system which will comply with Title V of the State Sanitary Code and Town of Yarmouth Board of Health Regulations . 20. According to the Town of Yarmouth's nitrate loading formula, this project will produce a nitrate load of 4 . 9 parts per million. This calculation includes the 10 . 9 acre locus and the 30 acres of town-owned abutting land intended to be dedicated to this project for the purposes of the nitrate loading calculation. Using the 10. 9 acre locus alone, the nitrate loading calculation is 18.3 parts per million. Page 8, Lerman Hill Estates 21 . The final site and utility plans submitted will be designed to provide adequate means for handling storm water run-off and adequate drainage for the site. 22 . The final site plans and plan of the redesigned German N1 3 Rogd7a and Union Street intersection will indicate adequate and safe provision for traffic and pedestrian circulation, and adequate and safe ingress and egress for firetrucks and other emergency equipment, both to the site itself and to the individual homes . 23. The proposed 37 single family houses are expected to generate approximately 372 vehicle trips per day, with approximately 29 morning peak hour trips and 37 evening peak hour trips, or less then one vehicle per minute during the peak hours . 24 . Union Street can accommodate the additional growth in traffic resulting from this project as well as other unrelated projects. 25. German Hill Road. , currently 11 feet in width and in fair condition , is in need of improvements and widening (up to the intersection with the new road for the project ) in order to accommodate the anticipated growth in traffic. 26. The site for the development is an appropriate site for the type of housing to be provided. 27. The general building design is aesthetically pleasing and fits into the neighborhood. 28 The density of only 3 . 39 units per acre is acceptable for the area in question. 29. The project, adequately promotes the objectives of providing affordable housing for the town of Yarmouth withoutjeopardizing the • Page 9 , German Hill Estates health and safety of the occupants of the proposed project and of the residents of the Town. 30. The project has the strong support of the Yarmouth Fail Housing Committee and the Yarmouth Board of Selectmen. ^, q 31. The project is consistent with local needs . B. WAIVERS 1 . Zoning By-laws : 103. 1 and 103. 1 . 1 : Required Permits 103 .3: Site Plan Review, including sections 103. 3.1 , 103.3.2, 103 .3. 3, 103 . 3. 4 , 103.3.5 , and from the bonding provision of Section 103. 3. 6 - except that the petitioner shall be required to file as-built plans . 203 . 1 : Intensity and Use-Buildings , except that the petitioner shall comply with the building height and coverage requirements . 203. 5: Minimum: Lot Size, Frontage, Front Yard, Side Yard and Rear Yard, except that the petitioner shall comply with the yard setback requirements of the Cluster Development provision of the By-law. 402 : Cluster Development and Planned Residential Development including Sections 402 .3 , 402.4 , 402 .4.1 , 402 .4 .2 ,402. 4. 3 , 402 .4 .4 , 402.4 .5 , 402.4 . 6, 402.5, 402 .5 . 1, 402.5.2 , 402 . 5 . 3, 402.5.4 , 402 . 5 .5 , 402 . 5. 6, 402 . 6, 402 .6.2 , 402. 6.3, 402 . 6 .4 , 402 . 6.5 , 402 . 7, 402 .7. 1 , except that as stated above under Section 203.5 , the petitioner shall comply with the yard setback requirements of the Cluster Development provisions of the By-law . "Page 20, Lerman v`__1 Estates • 2. Subdivision Rules and Regulations c, 33 Preliminary subdivision plans , ::including Sections 331 to 335 inclusive. " 7: ^ o ' 34 Definitive Plan of Subdivision, including Sections 341 , 343 to 346 inclusive 461 Open Spaces 464 Pedestrial Circulation 53 Sidewalks , including Sections 531, 532 , 533 . 543 Underground Wiring 552 Street Signs, except to approval of names of street . 554 Fire Alarm System 555 Planting 557 Fee to Street and from any requirements to provide street lights on the roads. 3. Board of health regulations Nitrate Loading requirements for subdivisions in a zone of contribution to public water supply. 4 . Wetlands Protection By-law Waiver of local Conservation Wetland By-laws, but the ,petitioner must comply with the requirements of the Commonwealth of Massachusetts Wetlands Protection Act. 5. The petitioner is further granted: relief from any requirements of the Town of Yarmouth to pay for any fees related to foundation and building permits , Board of Health permits , Land Fill permits , fill permits , or water installation permits . . , Page 11 , German Hill Estates C. Conditions 1. German Hill Road, from the intersection at Union Street to the intersection of the new development road, shall -be widened and improved Sc r o as may be required by the Town Engineering Department Axid the Board of Selectmen (after consultation with the Police ,Department and the Fire Department ) . t G..h i•- • 2 . Prior to construction a "definitive plan" showing road profiles and drainage information sufficient to show road design in compliance with town Subdivision Rules and Regulations not waived hereunder shall be submitted to the town Engineering Department and Planning Board and filed with the Board of Appeals. 3. The Planning Board shall endorse said definitive plan with words to the effect: "Approval Not Required Under the Subdivision Law Due to Yarmouth Board of Appeals Grant of A Comprehensive Permit Pursuant to M.G.L. Chapter 40B, Section 21. See Decision Dated , 1989 filed in Barnstable County Registry of Deeds in Book , and Page , or words of similar import so as to allow the plan to be recorded at the Barnstable County Registry of Deeds . 4 . In lieu of posting a bond, a letter of credit , or filing traditional subdivision covenants , the Board of Appeals directs that no more than eighteen ( 18) Certificates of Occupancy be granted for houses constructed hereunder when only the base course of asphalt is in place on all roadways of the development, and that Certificates of Occupancy for the remaining houses constructed hereunder may be granted only upon either the completion of all roadways of the development or the posting by the petitioner of a bond to cover the cost of completion of said roadways satisfactory to the Board of• Appeals . ` Page 12 , German Hill Estates 5. One or two car garages and/or tool sheds may be added to the structures without further approval from the Board of Appeals,-as long as they comply with the yard setback requirements of the Cluster Development provisions of the Zoning By-law. Sc 73 P.9 :3u 6. The project shall be built as a HOP project , wifh' ;no change in the nature of the governmental funding proposed, unless a change or modification is approved by the Board of Appeals. 7. The ground lease or leases between the Town of Yarmouth and the homeowners of the HOP units shall contain adequate restrictions, as approved by MHFA, to insure affordability in compliance with the HOP program for a period of 40 years . 8. The lots with rear frontage on German Hill Road (lots number 1 ,2 , 15 , 16,17, 18, 19,20, 21, 22 and 23 on the "Preliminary Subdivision Plan of Land" prepared by Flaherty Associates , Inc. dated April 25, 1989 ) shall be prohibited from having vehicular access to German Hill Road from said lots , and this prohibition shall be included in the Ground Lease for the lots . 9 The water main distribution system shall be looped to an existing main to the west of the locus , as shall be approved by the Town of Yarmouth Water Department . 10. The maximum amount of grassed area on each lot shall be one thousand ( 1 , 000 ) square feet , and this requirement shall be included in the Ground Lease for the lots. 11 . The Board of Appeals is not waiving by implication any other state law or regulations , or Town by-law or regulations , except as expressly stated herein. ,. Page 13 , German Hill Estate: Members voting in favor - Donald Henderson, Fritz Lindquist , Morris I. Johnson, David Reid, Leslie Campbell. Members voting against -None Therefore, the request for a Comprehensive Permit is unanimously granted. No permit issued until 20 days from date of filing decision with the Town Clerk. Fritz Lindquist Clerk c i T NJ v y r YARMOUTH BOARD OF APPEALS ABUTTERSLIST Petition# 47 (p Name7 h V//im_. ' ro Filing Date: 72777a Hearing Date: 9- /5-/f Property Location} / 4/a_ jig Notices must be sent to the petitioner(applicant), abutters, and owners of land directly opposite on any public or private street or way, and abutters to the abutters(only within 300 feet of the property line)of the petitioner as they appear on the most recent applicable tax list. Provide only the abutters map and lot number . Postage charges for all applications will be determined by multiplying the number of abutters (and the parcel (s)in question) times .5601 which is the current cost for the two required mailings. Add that to the application fee and include your check with the application. Map Lot Number Map Lot Number Number Number Applicant# /t97 Abutters #'s 770 C 4,eal 2 Labels-1 Hard Copy Assessors Field Card with photo Andy Machado, Director of Assessing r f 107/ 33/ / / 107/ 43/ / / Please use this signature to certify this list of properties MCGRATH IRENE 7 DAVIS TODD W abutting within 300'of the parcel located at: 19 DUTCHLAND DR DAVIS MICHELLE L YARMOUTH PORT,MA 02675 50 RHINE ROAD 21 Rhine Rd.,Yarmouth Port, MA 02675 YARMOUTH PORT,MA 02675 Assessors Map 107, Lot 52 107/ 34/ / / 107/ 49/ / / .nC1/ilnee QUEIROZ DOMINGOS S CANNON JEFFREY D Andy Machado,616irector of Assessing BALBUENO ARILETHE 0 CANNON CHRISTY M 4 RHINE ROAD 33 RHINE RD YARMOUTH PORT,MA 02675 YARMOUTH PORT,MA 02675-2464 107/ 35/ / / 107/ 50/ / / KELLY OLIVER SVANE RONNY C 8 RHINE RD 29 RHINE ROAD YARMOUTH PORT,MA 02675 YARMOUTH PORT,MA 02675 107/ 36/ / / 107/ 51/ / / GRENNELL TERRY L BELSITO ANN R 12 RHINE RD TURNER JANET L YARMOUTH PORT,MA 02675 25 RHINE RD YARMOUTH PORT,MA 02675 107/ 37/ / / 107/ 52/ / / GRAY JANE R DESROCHES HEAVE GRAY ROBERT E 21 RHINE RD P 0 BOX 169 YARMOUTH PORT,MA 02675-2464 N DIGHTON,MA 02764 107/ 38/ / / 107/ 53/ / / BEASELY RAYMOND C OCONNOR JILL B BOWMAN ANGELITA R 17 RHINE RD 22 RHINE RD YARMOUTH PORT,MA 02675 YARMOUTH PORT,MA 02675 107/ 39/ / / 107/ 54/ / / DEXTER ALWYN BRADY JESSICA 30 RHINE RD 13 RHINE RD YARMOUTH PORT,MA 02675-2463 YARMOUTH PORT,MA 02675 107/ 40/ / / 107/ 55/ / / JOYCE ELAINE S KNEPPER ROBERTI 36 RHINE RD KNEPPER HOLLY L YARMOUTH PORT,MA 02675-2463 9 RHINE RD YARMOUTH PORT,MA 02675-2464 107/ 41/ / / 107/ 56/ / / LITTLE JAKE C MCKENNA PAUL A LITTLE'CASSANDRA 5 RHINE RD 194 MARAVISTA AVE YARMOUTH PORT,MA 02675-2464 EAST FALMOUTH,MA 02536 107/ 42/ / / 107/ 59/ / / CARTON BRITTANY L RFM FACILITIES MGT L P 46 RHINE RD 10 WOODBRIDGE CENTER DR YARMOUTH PORT,MA 02675 WOODBRIDGE,NJ 07095 \ ,e1 , , e"x,00, `f'p:0 _ 0 9, / 06 0' i os� l�i�c. 1 / PROPOSED \� J . . \. . .. to , \ / i DECK— 33.0• 4t *tilt\ .t. \m 1 k5- c,� LOT 18 \ S.A.S. 11,284 SF.t 'r-•.- \ LOCATED BY o 01OTHERS" s \ PROPOSED »• N 24' X 24" N \ STRUCTURE a_ ��o' -eS. j� FN1" io.�' r,y J4 ` �. . . . ) ROBIN sti ,l Ta%WILLIAM NM1`, 1 L WILCOX m, No. 31341 %" O 9gR�sP�G'STER e. et `tam. LANG '' TO THE BEST OF MY INFORMATION, "PROPOSED" PLOT PLAN KNOWLEDGE, AND BELIEF THE YARMOUTH; MASS . STRUCTURES SHOWN ON THIS PLAN -LOT"'18; PL;BK. ' 467 PG." 41 " HAS BEEN LOCATED ON THE GROUND DATE 6/30/18 SCALE 1" = 30' AS INDICATED. JOB 8045-00 CLIENT DESROCHES 6/30/18 ������ 6 30 18 , SWEETSER ENGINEERING 203 SETUCKET ROAD DATE PROFESSIONAL LAND SURVEYOR PO BOX 713 SOUTH DENNIS, MA 02660 OFF. 508-385-6900 FAX. 508-385-6991 C: 1 S8 1 PROJ 1 8095-00 I dwg 18095-CPP.DWG 0 2018 SWEETSER ENGINEERING 10771 1C.ef. ��, 10733 , _ t 1C� f.i " 137.21 k 10732 1 107-33 - I,7 a __ 107.57 \. _ I 110(2 1 t , '. r } 107.57 , till 47\ 1(If 3i i 7A . 1 //A \ .� .. 1 ' 127 55 Y_ _. _ ---__ ` A _ 1 107 3c -- 1i,i E'r, j, \ 12/41 I I I S6 1 l: Y pp1 P37.55 - __-- - � K2P 127 37 '1 13754 1 i ND T(eVASS11 11171s ` r,7s' b37.-0J I t ,..� 197 Si , 1L4.iP b45 -110.- 6e(vt1G1- Nit Rd ecov�des '�FV St e' Cbl . } i 21 RHINE R YARMOUTH PORT, MA 02675 ,t„ 1 inch = 111 feet W ,v�E 1 s F. Data and scale shown on this map are provided for planning and informational purposes only. YARMOUTH (MA) and Vision .Government Solutions are not responsible For any use for other purposes or misuse or misrepresentation of this information. 6/22/2018 i