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HomeMy WebLinkAbout90046 TR Smith Point Subdivision-Fayette Scheuch'"id 1 1New File 111 *-69 Doll 6 , \SoM 1 I 1 i 1 1 1 1 1 1 i i 1 1 . 11 1 , i I. 1 I 1 . u1 1 1 41. 1 '1111 11 .111- PE COD COMMISSIO 3225 MAIN STREET RO. BOX 226 BARNSTABLE, MA 02630 (508) 362-3828 FAX (508) 362-3136 E-mail: frontdesk@capecodcommission.org TO:Town of Yarmouth Town. Clerk, Building Inspector, Conservation Commission, Planning Board, DRI Liaison, Board of Appeals, Board of Health and Chief of Police: FROM:Kathie Peters, Clerk of the Commission SUBJECT:Smith Point Subdivision Modification to the Development of Regional Impact Decision D.ATE:November 8,2000 Enclosed please find a copy of a modification. to the Smith Point Subdivision Development of Regional Impact (DRI) Decibi{m that was originally voted on October 25, 1990. Shouid you have any questions, please do not hesitate to contact our office. 0 ¥44CHIJS PE COD COMMISSI ME-/ t!1 3225 MAIN STREET RO. BOX 226 BARNSTABLE, MA 02630 (508) 362-3828 FAX (508) 362-3136 E-mail: frontdesk@capecodcommission.org I)ate:November 2,2000 TO:Richard Gavin Barry, Esq. 4728 Falmouth Road Cotuit, MA 02635 From:Cape Cod Commission Re:Modification of a Development of Regional Impact Decision, Cape Cod Commission Act, Section 12 Project:Smith Point Subdivision Great Island, Yarmouth, MA CCe #TR90046 Applicant:Christian Nolen & Susan Denny 57 Russell Avenue Watertown, MA 02472 Certiticate #: #145891 MODIFICATION OF DEVELOPMENT OF REGIONAL IMPACT DECISION This decision is written in accordance with a vote of the Regulatory Committee of the Cape Cod Commission taken on October 30,2000, acting upon a request by the applicant for a Minor Modification #2 pursuant to its Administrative Regulations adopted 10/10/91 as amended 6/3/99. This decision hereby modifies the October 25,1990 Development of Regional Impact (DRI) Decision issued for Smith Point Subdivision, pursuant to Section 12 of the Cape. Cod Commission Act, as follows: 1. By modifying Condition #5 to replace "...Lots 1,2,3 or 4..." with "...Lots 1,2 or 4...." 2. By inserting a new condition as Condition #5a with the following language: "No residential structure shall be placed on Lot 3 except in the "Approximate Building Envelope" (approximate house and septic areas shown as hatched area on plan) delineated on the plan entitled "Title 5 Site Plan of Lot 101, Smith's Point Road, (Great Island) West Yarmouth, prepared for Christian Smith Point Subdivision #TR90046 Modification of DRI Decision 1 November 2,2000 <TZ?Rk Nolen and Susan Denny" by Arne H. Ojala, PE, PLS, of Down Cape Engineering, Inc, 25,2000, as revised on October 25,2000." , dated February PROCEDURAL HISTORY A leter of Request for Determination and/or Minor Modification to Cape Cod Commission file #TR90046 Lot #3 was submitted to the Regulatory Committee of the Cape Cod Commission on September 26,2000 by Richard Gavin Barry, PC, attorney for applicants Christian Nolan and Susan Denny. Contractor for the applicant, Tracy Pratt at Pratt Construction, raised concerns that the proposed location of the residence was not located with the "Approximate Building Envelope" as originally approved in the Commission's DRI Decision of October 25, 1990. The applicant therefore sought a Minor Modification to shift the building envelope. The Regulatory Committee first heard this matter on October 2,2000. A site visit was scheduled and the meeting was continued until October 16, 2000 pending both the site visit and allowing time to notice all abutters. The meeting was again continued until October 30,2000 in order for the applicant to submit revised engineering drawings reflecting the proposed shift in the "Approximate Building Envelope." Based on the site visit and submitted drawings, it was evident that the small change would not adversely affect the intent or outcome of the original findings and conditions and that the proposed change would not result in different or increased impacts to the resources of the site. The newly proposed boundary of the "Approximate Building Envelope" is located outside of the wetland boundary. Additionally, the total area of the building envelope was reduced (as attested to in a letter submitted on October 26,2000 to the Commission by Down Cape Engineering, Inc.). The Commission hereby grants this Modification to the Development of Regional Impact Decision dated October 25, 1990. L)£-i« 9 (la- L 43)03 David Ansel, Chair <I)ate Commonwealth of Massachusetts Bamstable, ss. Subscribed and sworn to before me this ') ·day of Aj OV ..apo O 7\ rons Name, Notary, Public f Qececcece ,... My commission,8-xpires: Smith Point Subdivision #TR90046 Modification of DRI Decision 2 November 2,2000 (D 0.0 A. OFFICIAL SEAL KATHARINE L. PETERS BARNSTABLE COUNTY NsssessSSESSIS#PS#.9MES CONSERVATION RESTRICTION TO The Tr _ tecs of Reservations Schauch Property, Great Island, Yarmouth Fayette S. Scheuch, with an address of 54 Westwood Road, WestHartford, Connecticut 06117, and her heirs, devisees, successorsand assigns holding any interest in the Premises as hereinafterdefined ("Grantor") grant, with quitclaim covenants, to TheTrustees of Reservations, a Massachusetts charitable corporationestablished under Chapter 352 of the Acts of 1891, with anaddress at 572 Essex Street, Beverly, Massachusetts, itssuccessors and permitted assigns, ("Grantee") in perpetuity andexclusively for conservation purposes, the following describedConservation Restriction on a parcel of land of approximately 36acres located in the Town of Yarmouth, Massachusetts, said parcelbeing described in Exhibit A attached ("Premises") 0 Purpose.This Conservation Restriction is defined in and authorized by Sections 31-33 of Chapter 184 of the General Laws and otherwise by law.Its purpose is to assure that the Premiseswill be retained in perpetuity predominantly in their natural,scenic, and open condition and to prevent any use of the Premisesthat will significantly impair or interfere with the conservation values of the Premises.The conservation of the Premises will yield a significant public benefit for the following reasons: (1) Protection of the Premises will preserve a relativelyundisturbed coastal beach, dune and maritime forestcommunity; such undisturbed natural areas have becomeincreasingly rare in Massachusetts, particularly along the south coast of Cape cod. (2) Preservation of this natural area will protect thescenic amenity this area provides to members of thepublic using the opposite shore of Hyannis andYarmouth, and as they pass through Lewis Bay andHyannis Inner Harbor, either as passengers on theMartha's Vineyard and Nantucket Ferries or in recreational or fishing watercraft.The scenic value of this stretch cf undisturbed beach, dunes and forestis increased by the relative scarcity of undisturbedshoreline along the highly developed Hyannis-Yarmouth coast. (3)Preservation of this natural area increases the amount of land on Great Island protected by conservationrestriction, thereby increasing the long-term value ofalready protected lands for wildlife habitat and other conservation values. The terms of this Censervation Restriction are as follows: 1 A. Prohibited Uses.Except as to reserved rights set forth in paragraph B below, G.,tor will neither perform --r permit the following acts or uses :the Premiees: (1)Constructing or placing of any building, tennis court,landing strip, mobile home, swimming pool, asphalt or concrete pavement, sign, fence, billboard or other advertising display, antenna, utility pole, tower,conduit, line or other temporary or permanent structureor facility on or above the Premises, except for fencesappropriate to the conservation purposes of this Conservation Restriction; (2)Mining, excavating, dredging or removing from thePremises of soil, loam, pest, graveli sand, rock or other mineral resource or natural deposit, except, as necessary for proper drainage or soil conservation andthen only in a manner which does not impair the purpose of this Conservation Restriction; (3)Placing, filling, storing or dumping on the Premises ofsoil, refuse, trash, vehicle bodies or parts, rubbish, debris, junk, waste cr cther substance or material whatsoever or the installation of underground storage tanks; (4)Cutting, removing or otherwjse destroying trees,grasses or other vegetatien, except as provided in paragraph B below; (5)Activities detrimental to drainage, flood control, water conservation, water quality, erosion control or soil conservation; (5)The Use of motorcycles, motorized trail bikes, / snowmobiles and all other motor vehicles, except as reasonably necessary in exercising anv of the reserved rights in paragraph B, or as required by the police, firemen or other governmental agents in carrying out their lawful duties; (7) Building, starting, or maintaining fires, except thatfire may be used as reasonably necessary in exercising the rights reserved in subparagraph B(4) below; (8)Any other use of the Premises or activity thereon which is inconsistent with the purpose of this Conservaticn Restriction or which would materially impair cther significant conservation interests unless necessary for the protection of the conservation interests that are the subject of this Restrictions and 2 or division c- subdivision of the Premisae (as compared to conveyanc€f the Premises in its ent :ty which shall be permirted) without the prior wri:ten consent of the Grantee. B. Reserved Rights.All acts and uses not prohibited in paragraph A arG permissible.Notwithstanding the provisions of paragraph A, the following acts and uses are also permitted but only if such uses and activities do not materially impair the purpose of this Conservation Restriction' or other significant conservation interests: (1) Walking, birdwatching, bathing, sunbathing, fishing, clamming, swimming, picknicking (but no fires) and boating. (2)The construction, maintenance and marking of trails for pedestrian use. (3)Maintenance of a wood road located on the Premises as reasonably necessary for the uses hereinafter permitted. (4)In accordance with generally accepted forestry conservation practices, selective pruning and clearing to control or prevent hazard, disease, or fire, to manage wildlife habitat, and to clear and maintain the trails and wood road referenced in subparagraphs 8(2) and (3) above. (5)Sand dune stabilization and replenishment, including without limitation, altering, fencing, fertilizing and planting thereof, installing of. jetties.and-groins, and dredging, placing and filling ln Connection with such stabilizaticn and replenishment; prcvided, hcwever, that no jetties or groins shall be constructed, nor any dredging, placing or filling of material be undertaken, without first providing notice to the Grantee as provided in Paragraph C, below. (6)The erection, maintenance and replacement of a reasonable number cf regulatory signs (such as "no t=-Gspass:ing'; cr "no hunting" signs), each not to exceed four (4) square feet. (7)Prospecting for fresh water and the construction, maintenance, repair and replacement ot wells and piping for the removal and transport of fresh water, provided any above-ground structures are kept to the minimum size necessary for such operation. The exercise of any right reserved by the Grantor under this paragraph 5 shall be in compliance with the then-current Zoning By-Law cf the Town of Yarmouth, the Wetlands Protection Act (General Laws Chapter 131, Section 40) and all other applicable 3 federal, state and local law.The inclusion of any reserved right in this paragraph requiring a permit from 1 ublic agency does not imply that the u:.antee takes any position W..whether such permit should be issued. C. Notice and Approval. Whenever notice to or approval bythe Grantee is required under the provisions of paragraphs A orB, Grantor shall notify Grantee in writing not less than sixty(60) days prior to the date Grantor intends to undertake the activity in question.The notice shall describe the nature, sCope, design, location, timetable and any other material aspectof the proposed activity in suffidient detail to permit Granteeto make an informed judgment as to its consistency with the purposes of this Conservation Restriction.Where Grantee's approval is required, Grantee shall grant or withhold itsapproval in writing within sixty (60) days of receipt of Grantor's written request therefor. D. Proceeds from Extinquishment.The Grantor and the Grantee agree that the donation of this Conservation Restricticn gives rise for purposes of this paragraph to a property right,immediately vested in the Grantee, with a fair market value determined by multiplying the current fair market value of thePremises unencumbered by this Restriction (minus any increase invalue attributable to improvements made after the date of thisgrant) by the ratio of the value of this Restriction at the timeof this grant to the value of the Premises, without deduction for the value of this Restriction, at the time of this grant.Such prcportionate value of the Grantee's property right shall remain constant.If any ohange in conditions ever gives rise toextinguishment or other release of the Conservation Restrictionunder applicable law, then the Grantee, on a subsequent sale,exchange or involuntary conversion of the Premises, shall beentitled to a portion of the proceeds equal to such propertionatevalue, subject, however, to any applicable law which expressly provides for a different disposition of proceeds.Whenever all cr any part of the Premises or any interest therein is taken bypublic authcrity under power of eminent dcmain, or if all or anypart of this Conservation Restriction is otherwise extinguishedby act of public authority, then the Grantor and the Granteeshall cooperate in recovering the full value of all direct and consequential damages resulting from such action. All relatedexpenses incurred by the Grantcr and the Grantee shall first bepaid out of any recovered proceeds, and the remaining proceedsshall be distributed between the Grantor and the Grantee in shares equal to such proporticnate value.The Grantee shall use its share of the prcceeds in a manner consistent with the conservation purpose set forth herein. E. Access.The Conservation Restriction hereby conveyed does not grant to the Grantee, to the public generally, or to anyother person any right to enter upon the Premises except as follows:There is hereby granted to the Grantee and itsrepresentatives the right to enter the Premises (1) at reasonabletimes and in a reasonable manner for the purpose cf inspectingthe same to determine compliance herewith and (2) after 30 days 4 prior written notice, to take any and all actions with respect to the Premises at the then e owner's cost as may be cessary or appropriate, with or wit'.1 W 6/t order of court, to ram-_,', abate or otherwise enforce any violaticn hereof. F. Legal Remedies of the.Grantee.The rights hereby granted shall include the right to enforce this ConservationRestriction by apprepriate legal proceedings and to obtaininjunctive and other equitable relief against any violations,including without limitation relief requiring restoration of thepremises to its condition at the time of this grant (it beingagreed that the Grantee may have no adequate remedy at law), andshall be in addition to, and not in limitation of, any otherrights and remedies available to the Grantee.Grantor covenants and agrees to reimburse the Grantee all reasonable costs andexpenses (including without limitation reasonable counsel fees)incurred in enforcing this Conservation Restriction or in takingreasonable measures to remedy or abate any violation thereof. Byits acceptance, the Grantee does not undertake any liability orobligaticn relating to the condition of the Premises.Enforcement of the terms of this Restriction shall be at the discretion of the Grantee, and any forbearance by the Grantee toexercise its rights under this Restriction shall not be deemed or construed to be a waiver.If any provision of this Conservation Restriction shall to any extent be held invalid, the remainder shall not be affected. G.Acts Beyond Grantor's Control.Nothing contained in this Conservation Restriction shall be construed to entitle the Grantee to bking any action against the Grantor for any injury toor change in the Premises resulting from causes beyond theGrantor's control, including, but not limited to, fire, flood, storm, earth movement, and acts caused by trespass on thePremises not contributed to by acts or omissions of the Grantor,or from any prudent action taken by the Grantor under emergencyconditions to prevent, abate, or mitigate significant injury to the Premises resulting from such causes. I. Duration and Assignability.The burdens of this Conservation Restriction shall run with the Premises and shall be enforceable against the Grantor in perpetuity.The Grantee is authorized to record or file any notices or instruments appropriate to assuring the perpetual enforceability of thisConservation Restriction; and the Grantor appoints the Grantee as Grantor's attorney-in-fact to execute, acknowledge and deliver any such instruments on Grantor's behalf.Without limiting the foregoing, Grantor agrees to execute any such instrument upon request.The benefits cf this Conservation Restriction shall be in gress and.shall not be assignable by the Grantee, except in the following instances from time to time:(i) as a condition of any assignment, the Grantee requires that the purpose of thisConservation Restriction continue to be carried out, and (ii) the assignee, at the time of assignment, qualifies under Section170(h) cf the Internal Revenue Code of 1954, as amended, and applicable regulations thereunder, and under Section 32 ofChapter 184 of the General Laws as an eligible donee to receive 5 V-- I .--- intend that the restric*< ons arising hereunder takA effect upon the date hereof, and tc le extent enforceability any person ever depends upon the approval of governmental officials, suchapproval when given shall relate back to the date hereofregardless of the date of actual approval or the date of filingor recording of any instrument evidencing such approval. J. Subsecruent Transferi.Grantor agrees to incorporate theterms of this Conservation Restriction in any deed or other legalinstrument by which Grantor conveys any interest in all or aportion of the Premises, including, without limitation, a leasehold interest.Grantor further agrees to give writtennotice to the Grantee of the transfer of any interest at leasttwenty (20) days prior to the date of such transfer.Failure of the Grantor to do so shall not impair the validity of thisConservation Restriction or limit its enforceability in any way. K. Drmination of Rights and Obligationi.Notwithstanding anything to the contrary contained herein, the rights andobligaticns, under this Conservation Restriction, of any partyholding any interest in the Premises terminate upon transfer ofthat party's interest, except that liability for acts oromissions occurring prior to transfer, and liability for thetransfer itself if the transfer is violative of this Conservation Restriction, shall survive the transfer. L. Estoppel Certificates.Upon request by the Grantor, the Grantee shall within twenty (20) days execute and deliver to theGrantor any document, including an estoppel certificate, whichcertifies the Grantor's compliance with any obligation of theGrantor contained in this Conservation Restriction, and whichotherwise evidences the status of this Conservation Restriction as may be requested by the Grantor. No documentary stamps are required as this Conservation Restriction is a aift. 6 4 Executed under seal this-day of ,19 _. COMMONWEALTH OF MASSACHUSETTS , ES. ,19 Then personally appeared the above-named Fayette S. Scheuch andacknowledged the foregoing instrument to be her free act and deed, before me. Notary Public My commission expires: ACCEPTANCE OF GRANT The above Conservation Restriction is accepted this day of ,19 . THE TRUSTEES OF RESERVATIONS By Its COMMONWEALTH OF MASSACHUSETTS , SS. , 19 Then pers=nally appeared the.above-namedand acknowledged the foregoing instrument to be the free act anddeed of The Trusties of Reservations, before me. Notary Public My cdmmission expires: 7 EacK lot ...mer is responsible for al. and all actions of all contractors, subcontractors or other workers, employees etc. employed by them or on their behalf. Trailers, mobile homes, camper vehicles, camping trailers, RV's, and other mobile living quarters are not permitted.unlesm uninhabited, and stored within enclosed structures.Stored boats must also be unoccupied, and may be so stored only in Uncle Robert's Cove or at the Cove's edge or elsewhere as the Association shall from time to time designate.The "winter" storage of boats is not permitted along the shoreline of Uncle Roberts Cove unless the boat is stored in an enclosed boat house and out of sight.One or two small rents, for use only of the immediate family or guests of Lot Owners and containing no kitchen or toilet facilities, may be erected On any Lot for not more than thirty days per year. No motor vehicles of any type on beaches, dunes or trails or of the Zone of Improvement or except as necessary to maintai the event of an emergency. shall be permitted any areas outside Smith's Point Road n such areas or in At no place on the Property is hunting permitted unless determined by the Architectural Review Committee to be necessary to control and/or manage certain animal or bird populations or to prevent nuisance therefrom. No foundation excavation or construction of concrete foundations shall be performed between June 15 and the Wednesday after Labor Day. -8-5821D APPROVAL OF SELECTMEN We, the undersigned, being a majority of the Selectmen of the Town or Yarmouth, Massachusetts, hereby certify that at a meetingduly nald on ,19 the Selectmen voted to approve the foregoing Conservation Restriction to The Trusteesof Reservations pursuant to M.G.L. Chapter 184, Section 32. Selectmen COMMONWEALTH OF MASSACHUSETTS , SS. ,19 Then personally appeared the above-named and acknowledged the-foregoing instrument to be his or her free act and deed, before me. Notary Public My commission 6xpires: 8 APPROVAL BY SECRETARY OF ENVIRONMENTAL AFFAIRS COMMONWEALTH OF MASSACHUSETTS The undersigned, Secretary of the Executive Office of Environmental Affairs of the Commonwealth of Massachusetts, hereby certifies that the foregoing Conservation Restriction to The Trustees of Reservations has been approved in the public interest pursuant to M.G.L. Chapter 184, Section 32. Date: ,19 Secretary of Environinental Affairs COMMONWEALTH OF MASSACHUSETTS , SS. ,19- Then personally appeared the above-named and acknowledged the foregoing instrument to be his or her free act and deed, before me. Notary Public My commission expires: CDW:5/8/89 9 SMITH'S P eT ARCHITECTURAL GUIDELIN IRQQUCIQN THE ARCHITECTURAL REVIEW COMMITTEE The homeowners are bound by covenants that, so far as possible, preserve and protect the natural beauty and serenity of Great Island.To that end, no building, fence or other structure shall be erected or altered until the proposed site plan, building plans and materials shall have been approved in writing by the Architectural Review Committee (A,R.C.)consisting of two members of the Scheuch family, one outside professional with a background in architecture and landscapedesign and one appointee of the Great Island Homeowners Association (GIHA). The two Scheuch family members and the outside professional shall be voting members, the GIKA appointee shall have no vote. IHZ-GUIDELINES The A.R.C. has created Guidelines to assist all homeowners in the planning and construction of their new homes. Creativity is encouraged, but there are basic standards get to promote a harmonious ccmmunity aesthetic at Smith's Point. The Guidelines are intended to protect all property owners and to provide a simple uniform review process for approval by the A.R.C. THE DESIGN APPROVAL PROCESS The Guidelines outlined here, we believe, are each essential to sustain the beauty and the character of Smith's Point. STEP 1.REVIEW THE RELEVANT DOCUMENTS a.The Design Approval Process (this one) b. The Architectural Guidelines STEP 2.RETAIN PROFESSIONAL DESIGN CONSULTANTS Selection of an architect is required of all homeowners.Retaining a landscape architect is advisable if you or your architect are not adept at landscape or garden design. Have your consultants read and acquaint . themselves wi the relevant documents.ive your architect becume familiar with Great Island through at l•ast one extended site visit. STEP 3.OBTAIN A SURVEY Obtain a survey of your lot at a scale of 1" = 20':Have all bounds set in the field. STEP 4.THE PRELIMINARY REVIEWArrange a date for the preliminary review by writing toLandVest, Inc., Chairman Consulting Services Department, Ten Post Office Square, Boston, MA 02109.Submit two copies of the developed design to the Architectural ReviewCommittee. These plans will reflect the "schamatic" stage of development in an architect's design process.This step in the review process allows the timely incorporation of the A.R.C. recommendatiohs, avoiding revisions to the final Construction Documents. - The design must be presented with the following documents: a.Site Plan at 1/4" - 1'-0" or 1"-20' -show exact location of house footprints in relation to property setback lines and boundaries. b. Existing and proposed contours at two foot intervals. C.Building indicated as foundation plan with entry area delineated and roof and deck lines 8hown as dashed lines. d. First Floor elevation indicated e.Drives and walks. f. Adjacent structures located. g. Floor Plans at 1/4" = 1'-0" -all windows and doors with swings shown. h. Elevations.Ons for each. major exposure at 1/4" = 1'-0". -principal materials rendered. -indicating overall height from road grade to ridge of roof. -indicating roof pitch in function of 12 (i.e. 6:12) i. Samples -a sample of the proposed outside wall finish -roof sample -exterior paint sample -photographs of the window and door types j. At the time of Preliminary Review, the corners of the house must be staked on the lot in the proposed location.All trees to be removed should be flagged with red surveyors tape. k. Dates if available of proposed start and finish of construction. STEP 5.THE FINAL REVIEW This review is concerned with checking the construction documents for A.R.C. Guideline requirements, and -2-5821D verification that ...a recommendations made at . e preliminary Review have been incorporated. a.Site Plan at 1" = 20' -show zeptic tank field and well for water serviceb. Planting Plan; include location of walks and drives c. Floor Plan at 1/4" - 1'd. Elevations, including roof plans, slope and overhangs,if any, at 1/4" = 1' ; show proposed materialse. Typical fence, railing and deck detailf. Dates of start and finish of construction. g. Utility meter locationsh. Physical limits of construction activity. The Architectural Review Committee will stamp the drawing upon final approval. SMITHLS- POINT - ARCHITECTURAL GUIDELINES The Great Island Guidelines are based on a historical perspective:generally that of the vernacular at Cape Cod, Nantucket and Martha's Vineyard and more specifically the 20th Century interpretation at Great Island itself. Within thisarchitectural vocabulary there was a range of style anddetailing present from the agriculture buildings to more elegant houses.It is important for the architect to know thebuildings of Great Island. The aesthetic success of the whole requires that the theme also be carried through with the landscaping and other site details. These Guidelines are designed to assure the following:-Harmony in the forms and materials of the buildings on Great Island. -Architecture which is sympathetic to the traditions of Cape Cod. -Style; general Cape Ced vernacular architecture to include themultiple connecting Cape with steep pitched roof style, saltbox style and historic farmhouse design.-Building materials and techniques which will age gracefully over the years.-Architectural elements which are responsive to the New England climate. -Preservation of the natural appearance and ecology of the Island. A. GENERAL All construction shall b® subject to the provisions of state and local codes. 2. Maximum building height shall be two-and-one-half stories, ae defined by the town of Yarmouth Zoning By-Law, with the exception of Lot 1, on -3-5821D which t]height limitation will be 3' from the plain 01 he first floor level but in no event shall more than 50% of the ridge pole, on any structure be above 28 feet. 3. Building location shall be determined by taking into conzideration minimizing site lines to existing homes on Smith' s Point and along the shore of Uncle Robert's Cove and maximizing view corridors to open land and waters if desired. All buildings must be located within Zone of Improvement Designations. 4. Variances may be granted, only if required by the unique character of the Lot whereby a failure to grant the variance would result in a hardship to the Lot Owner and only if such variance is consistent with the general intent and purposes of the Architectural Guidelines, and will not have a material adverse effect on lots in the area.If a variance is granted by the Committee with respect to alterations or additions made after completion of the initial construction of the house on the lot, and such variance is disputed by any member of the Committee, including the nonvoting member, as being inconsistent with the standards for variances, at the request of the disputing member made at the meeting at which the variance is granted, the dispute shall be referred to an independent architect chosen by the Committee, for resolution, and the decision of such independent architect shall be binding.If there is such a request, the Committee shall make the referral within ten days after said meeting and the architect shall make its decision within 30 days after said referral. B. EXTERIOR WALLA The desire is to have colors that blend into the surrounding landscape and vegetation. 1. The following materials are permitted as wall finishes for buildings: a.White cedar shingles.Color must be natural cr stains, such as, gray or brown b. Hori.zontal wood clapboard with right to clapboard all four sides.If all clapboard, the color would be white or earthtone (all shades of gray, brown or gray brown mixture).The desire is to have subtle -4-5821D VaI tions of the above colors iat blend intw the surrounding landscape and vegetation. C.Brick - to be used at footings and chimneys only. 2. The following materials are permitted as finishes for fences: picketb: lattice c. split rail d.palisade B.Qgfi 1. The following materials are permitted for roofing: a.white or red cedar shingle» -to match walls b. galvanized steel -1 " standing seam pattern only -at garage, barn or workshop only -natural or green color only 2. The following materials are Dermitte4 for gutters; a.wood -cyma recta-profile only -painted white b. galvanized steel -half round profile only 3. The following configurations are permitted for roofs: a.simple gable -symmetrical, pitch min 9:12 max 12:12 -asymmetrical, pitch min 6:12 max 12:12 b. simple hip -symmetrical, pitch 9:12 max 12:12 C.simple' shed -asymmetrical, pitch min 4:12 max 12:12 -if used against a principal building wall only d. flat with railings or parapets -if accessible from an interior room only -railings pattern to be approved by the ARC -railings to be painted white e. "Bow House" DOORS & WINDOWS 1. The following materials are permitted: a.glass -5-5821D t L b. hare...od-painted, color to be approved by the ARC C.vinyl-clad wood. 2. Thi following are permitted operations:a. single and double hung b. easement c. f ixed with frame d. louvered 3. The following are permitted configurations:a. rectangular or verticle proportion b. circular & semi-circular c. hexagonal & octagonal. 4. The following are permitted accessories: a. operable wood shutters-painted, color to be approved by the ARC b. window boxes -painted, color to be approved by the ARC C.real wood mullions -square or vertical proportion TRIM AND SHUTTERS:All colors allowed, except vivid colors, such as, orange, pink, purple QTBUILDINGS 1. The following outbuilding uses are permitted: a.barbecues -brick to match chimneysb. garden pavillions and greenhouses -to match principal buildingc. gazebos, trellis structures and arbors -wood, painted white d. garages, workshops and barns -to match principal buildinge. guest houses and artists studios -to match principal building-not to exceed 1,000 eq. ft. footprint nor 1200 sq ft enclosedf. handball and squash courts and saunas -to match principal buildingg. in-ground swimming pools and outdoor tube h. pool houses and equipment enclosuresNote: All garbage, trash and rubbish placedoutdoor shall be kept in covered containers, protected from animals and screened fromview outside the Lot, provided that thisrestriction does not preclude the composting of organic matter. -6-5821D M The foll .ng structures are not po .tted: a. ope.. carports b. above ground pools c. paddle tennis court Exterior lighting:No exterior flood lights shining on the water or noticeably visible from other homes.Safety lighting around docks mustbe focused down. The following shall be located where best hidden from adjoining lots and the road: a.clothes drying yards b. electrical meters c. air conditioning compressors d. standby generators e. antennas f. satellite dishes which must be surround by a fince to completely hide it from the road oradjoining lots. Trees in excess of 4 inches in D.B.H. shall not be removed without the approval of the A.R.C.unless they are dead, diseased or dangerous. Access stairways (designed to minimize erosion) will be permitted on Lots 1, 2, 3, and 4 to Nantucket Sound but only two sets of stairs for access to Uncle Roberts Cove in the vicinity ofthe new decks, if any, otherwise near the Lot 1 and Lot 2 boundary and the Lots 3 and 4 boundary. The above guidelines may be amended frorR time to time in order to comply with·applicable Buildingand Zcning Codes. Notwithstanding the above guidelines, all buildings and structures shall be built in ccmpliance with the applicable Building and Zoning Codes.Any requirement in these guidelines which is inconsistent with the Building and Zoning Codes, from time to time ineffect, shall be construed in a manner consistent with such Codes to the extent possible and theCodes shall govern. Landacaping - Buffers between lots are encouragedthrough the use cf natural vegetation. -7-5821D CVE COD COMMISSION 3225 MAIN STREET PO Box 226 BARNSTABLE, MA 02630 508-362-3828 FAX: 508-362-3136 December 21, 1990 Fayette Scheuch 54 Westwood Rd. West Hartford, CT 06117 CERTIFIED MAIL RETURN RECEIPT REQUESTED Re:Smith Point Subdivision I hereby certify that the 30-day appeal period on the above-referenced Development of Regional Impact Decision has elapsed and that no appeal has been filed. Please file the enclosed original decision and submit proof of recording to me within 14 days. No work shall begin on a proposed development until the Cape Cod Commission receives adequate proof of such recording. Sincerely, It\Lul, 94 S Katharine Peters, Clerk of the Commission CC:George M. Dallas, Esq. ORIGINAL PRINTED ON RECYCLED PAPER 7.,9rto UN» IS NOW THE CAPE COD COMMISSION CAPE COD PLANNING AND ECONOMIC DEVELOPMENT COMMISSION lsT DISTRICT COURT HOUSE. BARNSTABLE. MASSACHUSETTS 02630 TELEPHONE: 508-362-2511 CCC #TR90046 DATE:October 25, 1990 TO:Board of Selectmen, Town of Yarmouth Ms. Fayett Scheuch West Hartford Conn. Mr. Chris Reel IEP, Inc. RE:Development of Regional Impact Cape Cod Commission Act, Section APPLICANT:Ms. Fayette Scheuch PRaJECT:Smith Point Subdivision Great Island, Yarmouth MA. MAP/PARCEL:Assessors Map 34, Lot A-1 DECISION OF THE CAPE COD COMMISSION SUMMARY The Cape Cod Commission (Commission) hereby approves with conditiohs the application of Ms. Fayette Scheuch for a Development of Regional Impact (DRI) under Section 12(c) 3 of the Cape Cod Commission Act (Act), c. 716 of the Acts of 1989, as amended, for the proposed Smith Point Subdivision. The decision is rendered pursuant to the vote of the Commission on October 11, 1990. PROJECT DESCRIPTION The project site, known as Smith Point, is part of Great Island within the Town of Yarmouth. The site is bordered by Nantucket Sound, Lewis Bay and Uncle Roberts Cove. The proposed project is designed as an eight-lot single family cluster subdivision within 70 acres. The proposed subdivision includes three existing single family dwellings, four proposed single family dwellings within 30 acres, and a conservation restriction which will be placed on the remaining 40 acres. The project also involves an existing pier structure and two proposed pier structures. i.,i..'1111!1111,r ' t PROCEDURAL HISTORY Review of the proposed development by other agencies occurred as follows: [1] No filing was required under the Massachusetts Environmental Policy Act, Chapter 30, Sections 61-62H. [2] A preliminary Subdivision Plan for the project has been reviewed and accepted (conditionally) by the Town of Yarmouth Planning Board on January 17, 1990. [3] A Conceptual Development Plan and a Site Plan Approval Application have been submitted to the Town of Yarmouth Site Plan Review Board on April 27,1990. [4] A Notice of Intent has been submitted to the Town of Yarmouth Conservation Commission on March 31, 1990, for the excavation and installation of piping for potable water transmission to single family home cluster subdivision. [5] The Cape Cod Commission held a hearing on an Exemption Application on Thursday, August 16, 1990, in Barnstable. After hearing the presentation by the applicant, the Exemption Application was denied. This application for a DRI permit under sections 12 and 13 of the Act was filed with the Commission on June 15,1990. A duly noticed public hearing on the application was conducted by the a sub-committee of the Commission pursuant to of the Act on August 29,1990 at 3:00 p.m. in the Town of Yarmouth hearing room, Yarmouth, Massachusetts. The sub-committee continued the hearing to September 13, 1990 at 2:15 p.m. at the Commission office located on Main St. in West Barnstable. The sub-committee then closed the hearing and left the record open until the end of the meeting scheduled for September 24,1990 at 2:15 at the Commission office. The sub-committee made their recommendations to the full Commission on October 11, 1990 at the 3:00p.m. hearing. The Commission voted to approve the DRI application of Fayette Scheuch for the proposed Smith Point subdivision with the conditions recommended by the sub- committee. Materials Submitted for the Record Materials submitted by the Applicant include: -An application titled "Cape Cod Commission Development fo Regional Impact Exemption Application, July 1990", received July 27, 1990. This included plans and documents which show the project location, describe the character and environmental effects and document permitting efforts up to the present. -Plans included "Preliminary Plan for Smith Point Subdivision", by IEP inc. dated December 13, 1989 with revisions dated 10/19/8911/14/89. -Plans titled "Preliminary Plan for Smith Point SObdivision" also by IEP inc. dated 4/19/90 with revisions dated 10/19/89 and 1 1/14/89. These plans document proposed property boundaries, local topography, roadway and utility information and wetland resource delineations reviewed on-site with Mr. Brad Hall, Yarmouth Conservation Commission Agent. -Two completed ground water studies condupted by Geologic Services Corporation, Orleans, MA. -A water resources protection study for the Town of Yarmouth prepared by IEP, Inc., August 1988. - An application titled "Supplemental Information for Cape Cod Commission Development of Regional Impact Exemption Application, 9 August 1990", received August 9, 1990. - A list of abutters to the proposed development submitted on June 15,1990. - A memorandum dated 29, August 1990 from IEP, Inc., responding to staff comments. - Nitrogen loading calculations from IEP, Inc. - A water table map of the project location site. - Draft Conservation Restriction granted to Trustees of Reservations, received 9/12/90 - Smith Point Architectural guidelines, received 9/12/90 t PROCEDURAL HISTORY Review of the proposed development by other agencies occurred as follows: [1] No filing was required under the Massachusetts Environmental Policy Act, Chapter 30, Sections 61-62H. [2] A preliminary Subdivision Plan for the project has been reviewed and accepted (conditionally) by the Town of Yarmouth Planning Board on January 17, 1990. [3] A Conceptual Development Plan and a Site Plan Approval Application have been submitted to the Town of Yarmouth Site Plan Review Board on April 27,1990. [4] A Notice of Intent has been submitted to the Town of Yarmouth Conservation Commission on March 31, 1990, for the excavation and installation of piping for potable water transmission to single family home cluster subdivision. [5] The Cape Cod Commission held a hearing on an Exemption Application on Thursday, August 16, 1990, in Barnstable. After hearing the presentation by the applicant, the Exemption Application was denied. This application for a DRI permit under sections 12 and 13 of the Act was filed with the Commission on June 15,1990. A duly noticed public hearing on the application was conducted by the a sub-committee of the Commission pursuant to of the Act on August 29, 1990 at 3:00 p.m. in the Town of Yarmouth hearing room, Yarmouth, Massachusetts. The sub-committee continued the hearing to September 13, 1990 at 2:15 p.m. at the Commission office located on Main St. in West Barnstable. The sub-committee then closed the hearing and left the record open until the end of the meeting scheduled for September 24,1990 at 2:15 at the Commission office. The sub-committee made their recommendations to the full Commission on October 11, 1990 at the 3:00p.m. hearing. The Commission voted to approve the DRI application of Fayette Scheuch for the proposed Smith Point subdivision with the conditions recommended by the sub- committee. Materials Submitted for the Record Materials submitted by the Applicant include: -An application titled "Cape Cod Commission Development fo Regional Impact Exemption Application, July 1990", received July 27, 1990. This included plans and documents which show the project location, describe the character and environmental effects and document permitting efforts up to the present. -Plans included "Preliminary Plan for Smith Point Subdivision", by IEP inc. dated December 13, 1989 with revisions dated 10/19/8911/14/89. -Plans titled "Preliminary Plan for Smith Point Subdivision" also by IEP inc. dated 4/19/90 with revisions dated 10/19/89 and 1 1/14/89. These plans document proposed property boundaries, local topography, roadway and utility information and wetland resource delineations reviewed on-site with Mr. Brad Hall, Yarmouth Conservation Commission Agent. -Two completed ground water studies conducted by Geologic Services Corporation, Orleans, MA. -A water resources protection study for the Town of Yarmouth prepared by IEP, Inc., August 1988. - An application titled "Supplemental Information for Cape Cod Commission Development of Regional Impact Exemption Application, 9 August 1990", received August 9, 1990. - A list of abutters to the proposed development-submitted on June 15,1990. - A memorandum dated 29, August 1990 from IEP, Inc., responding to staff comments. - Nitrogen loading calculations from IEP, Inc. - A water table map of the project location site. - Draft Conservation Restriction granted to Trustees of Reservations, received 9/12/90 - Smith Point Architectural guidelines, received 9/12/90 Additional Materials: - DRI Referral letter with attached information from planning board and site plan review committee. - Letter from Arnold B. Chace, Jr., abutter to property.- Letter from Brona Simon, State Archaeologist at the Massachusetts Historical Commission.- Three (3) Cape Cod Commission Staff Reports, dated August 29, September 13, 24,1990. Testimony At the August 29,1990 hearing, the Commission heard oral testimony from the applicant, their representatives, Commission staff and other interested parties: The following spoke in favor of the project as proposed: Mr. George Dallas, esq., Gaston & Snow; Ms. Judith T. Wall, IEP, Inc.; Mr. Chris Reel, IEP, Inc.; Mr. Jim Freeman, IEP, Inc; Mr. Allan Scheuch. Mr. Dallas provided the history of the Smith Point site area and described the proposed project. He stated that there would be no significant impacts from the construction of the new homes. Ms. Wall and Mr. Reel, presented a plan of the site which highlighted resource areas, building and septic leachate envelopes, and proposed roadways. Mr. Reel spoke about septic flow/nutrient loading and pier impacts on the areas resources. Mr. Reel stated that there would be no significant impacts on the areas resources and further stated that the development, as proposed would not have any regional impacts. Commission staff comments were made by Dorr Fox, Chief Regulatory Officer; Tom Camberari, Water Resource Coorinator. The main concerns addressed were nutrient loading from proposed homes, and the cumulative impacts of two new piers on the natural resources within Uncle Roberts Cove. At the September 13,1990 hearing, the Commission heard oral testimony from the applicant, their representatives, Commission staff and other interested parties: The following spoke in favor of the project as proposed: Ms. Judith T. Wall, IEP, Inc.; Mr. Chris Reel, IEP, Inc.; Mr. Allan Scheuch; Mr.and Mrs. Scheuch. Commission staff comments were made by Dorr Fox, Chief Regulatory Officer and Lisa Hanscom, Regulatory Planner/Environmental Biologist. The main concerns addressed the cumulative impacts of two new piers on the natural resources within Uncle Roberts Cove. At the September 24, 1990 meeting, the Commission heard oral testimony from the applicant, their representatives, Commission staff and other interested parties: The following spoke in favor of the project as proposed: Mr. George Dallas, esq., Gaston & Snow; Mr. Chris Reel, IEP, Inc.; Mr. Allan Scheuch. Commission staff comments were made by Dorr Fox, Chief Regulatory Officer; Patty Dailey, Senior Regulatory Planner, and Lisa Hanscom, Regulatory Planner/Environmental Biologist. The main concerns addressed the cumulative impacts-aftwo new piers-on the natural resources within Uncle Roberts Cove and the proposed wording addressing archaeological resources on the site. JURISDICTION The proposed Smith Point Subdivision qualifies as a Development of Regional Impact (DRI) under Section 12 (c) (3) of the Act. Section 12 (c) (3) requires review of "any development which proposes to divide land of fifty acres or more which was in common ownership as of January first, nineteen hundred and eighty-eight." The application was referred to the Commission by the Town of Yarmouth Planning Board. The application and notices of public hearing relative thereto, the Commission staffs notes and exhibits and all written submissions received in the course of our proceedings are incorporated into the record by reference. El.NULNGS The Commission has considered the Development of Regional Impact application of Ms. Fayette Scheuch for the proposed Smith Point Subdivision, and based on consideration of such application and upon the information presented at the public hearings and filed into the record, makes the following findings pursuant to Section 12 of the Act: 1. The proposed site for development is within a peninsula which is surrounded by Commonwealth tidelands with Nantucket Sound, Lewis Bay and Uncle Roberts Cove being the adjacent waters. Nantucket Sound and Lewis Bay are used extensively by the public for commercial and recreational activities (including public transportation, commercial and recreational boating, fishing, shellfishing, swimming and other water related· activities). 2. Uncle Roberts Cove is presently open to both commercial and recreational shellfishing, and is used by recreational boaters. All of these waters are owned and used by the public and are of regional significance. Smith Point's proximity to these regional natural and coastal resources make its location one of regional concern. Mitigation to protect the resources includes: - Limiting construction within designated "building envelopes" to keep buildings away from sensitive resources. 3. The potential septic flow combined with the location of the proposed septic systems east of the groundwater divide, which runs along the spine of the peninsula; raises concerns about the cumulative impacts of nitrogen loading to Uncle Roberts Cove and adjacent areas. Therefore, mitigation to protect water resources includes the following: -Limiting the number of bedrooms on each lot, thereby limiting nutrient loading impacts. 4. The project includes an existing liscensed pier/wharf at the south eastern end of the property. This structure was built to serve the existing house and cottages more than 20 years ago. The location of the existing pier/wharf on one end of the development does not provide adequate access to the proposed lots 1 -4. The project proposes two new pier structures (one permanent and one seasonal). The inner harbor of Uncle Roberts Cove, as stated previously, is open to both commercial and recreational shellfishing. As stated within the applicants request for a DRI Exemption, the area is also a habitat for many marine invertebrates and wildlife species. Based on the location of the existing pier/wharf and the sensitive resources within Uncle Roberts Cove, the mitigation to protect these resources while allowing access to deep water for the proposed lots includes the following: -Limiting the total number of new piers/floats for this eight lot subdivision to one (1) for the purpose of serving lots 1 -4. -Limiting the size of the one additional pier/float, and not allowing any additions to the existing pier/wharf structure. t . 5. Massachusetts Histor Commission has found that the proje ea possesses a strong likelihood for containing ,ig.,ificant archaeological sites and post.-.,unmarked human burials, etc. To protect these resources the proponent must conduct an intensive archaeological survey prior to any development activities, as defined by the Cape Cod Commission Act c. 716 of the Acts of 1989, as amended. The survey must be completed to the reasonable satisfaction of the Cape Cod Commission in consultation with MHC. The results of the survey will be incorporated into the planning stages of development to avoid impacting any burials and sites that may be discovered during the archaeological survey. CONCLUSION Based upon the findings above, the Cape Cod Commission hereby concludes: The Smith Point Subdivision with the following conditions will cause it to not have significant impacts on the unique natural, coastal and scientific values in which there is a regional, state and national interest in protecting and preserving. The Commission hereby approves Ms. Fayette Scheuch a'Development of Regional Impact permit, pursuant to Section 12 of the Act, with the following conditions: 1. If the Applicant fails to meet one or more of the conditions listed, this DRI permit shall lapse and the proposed development shall be automatically deemed in violation of the approval. ( 2..Prior to the construction of Smith's Point Road, a conservation restriction on Lot 8 shall be granted in perpetulty by Fayette Scheuch to the Trustees of Reservations, or similar conservation organization, substantially in the form attached hereto as Exhibit A. A copy of the final agreement shall be provided to the Cape Cod Commission; 3. None of the eight lots in the development may be further subdivided in order to facilitate additional residential, commercial or industrial buildings (but this condition shall not prohibit Subdivision to accomplish relocation of lot lines or to permit additional 'non-buildable- lots) ; 4. Lots 1 through 7 shall be used only for residential purposes and such other purposes ancillary thereto as permitted under the Yarmouth Zoning By-Law from time to time; 5. No residential structure shall be placed on Lots 1,2,3 or 4 except in the 'Approximate Building Envelope= (approximate house and septic areas shown as shaded areas on plan) delineated on the plan entitled =Development Plan for Smith's Point Subdivision by I.E.P., Inc. dated April 19, 1990, included in the DRI application; 6. No more than one residential building shall be constructed on Lots 1 and 5. Nothing contained in this decision shall prohibit the construction of guest houses on Lots 2,3,4,6 and 7. 7. Nevertheless, the lots shall be restricted to a maximum number of bedrooms as follows: LQLNQ.Maximum No. Bedrooms i. 6 8 8 8 7 7 t. 8. The construction of new buildings on Lots 1 through 7 shall be subject to architectural restrictions substantially similar to the 'Smith's Point Architectural Guidelines as set forth in Exhibit B hereto; 9. Maximum building height shall be 35' from the average existing grade but in no event shall more than 50% of the structure be constructed between 28' and 35' in height above grade. 10. There is currently one pier/wharf owned by Fayette Scheuch existing on Uncle Robert'sCove. The dock/wharf is delineated on the plan entitled 'Development Plan for Smith's PointSubdivision by I.E.P., Inc. dated April 19, 1990, included in the DRI application. Thisstructure may be repaired and maintained. This structure may not enlarged. No additional pier/floats may be constructed to serve lots 5,6, and 7. 11. One additional pier/float structure may be constructed to serve Lots 1,2,3, and 4. Themaximum length of the pier and ramp structure may not exceed beyond the four (4)footcontour line (according to mean low water datum) . The width of the pier and ramp may notexceed four (4) feet. An attached seasonal float(s) may not exceed a total of 300 sq. feet in size.The pier/float structure and location, if approved at the local level, should be designed inaccordance with the Town of Yarmouth Conservation Commission and Natural Resource department guidelines. 91 2. The Massachusetts Historical Commission (MHC) finds that the Smith Point Subdivisionproject area possesses a strong likelihood for containing significant archaeological sites and -possibly unmarked human burials. The proponent must complete an intensive (locational)farchaeological survey (950 CMR 70) which is to be conducted in compliance with Section 106of the National Historic Preservation Act of 1966 (36 CFR 800), Massachusetts General Laws,Chapter 9, Sections 26C-27C, as amended by Chapter 254 of the Acts of 1988 (950 CMR 71)and the Massachusetts Environmental Policy Act (MEPA). The goal of the survey should be tolocate and identify archaeological sites and unmarked burials which may be affected by theproposed development. No development activities, as defined by the Cape Coei Commission Act c.716 of the Acts of 1989, as amended, Section 2(e), may take place until such survey iscompleted to the reasonable satisfaction of the Cape Cod Commission in consultation with MHC.The results of the survey will be incorporated into the planning stages of development to avoidimpacting any burials and archaeological sites that may be discovered during the archaeologicalsurvey. 1 /8/19-/70 Richard S. Armstrong, Chairman Date T <423f \ 6-4 ..c.....LE_.l O /.,ws-(90 Notark .Date/ 1.u'y Ckaiftffak*WiN WipireS Me¥ 2: 39 BC: LQLb!28 Maximum_Ng-.-8-edmo 7 12 8 0 0 ' :,'ESI:.iL<:-rf.€i3292.{4%·.-·.: :,<;··· , Certification of Proper Notice I hereby certify that the requirements of Section 5(a) & (d) of the Act regarding notice of the public hearing concerning Smith Point Subdivision were fulfilled as follows: 1. Notice of the public hearing appeared in the Cape Cod Times on Thursday, June 7, 1990, Thursday, June 14, 1990, Monday, August 13, 1990 and Monday, August 20, 1990; and 2. Notice of the public hearing was posted in a conspicuous place in the Commission's office at First District Court House, Route 6A, Barnstable, MA 02630 and at 3225 Main Street, Barnstable, MA 02630; and 3. Copies of all documents subject to notice were made available at the Commission's offices during normal business hours; and 4. Notice of the public hearing was mailed as required by Section 5 of the Act 4.13 10·bgko ' i Katharine Peters, Clerk Date CCPEDC IS NOW THE CAPE COD COMA'.1351ON CAPE COD PLANNING AND ECONOMIC DEVELOPMENT COMMISSION tsr DISTRICT COURT HOUSE. BARNSTABLE. MASSACHUSETTS 02630 TELEPHONE: 508-362-2511 1--- CCC #EX90046 DATE:September 6, 1990 TO.Board of Selectmen, Town of Yarmouth Ms. Fayett Scheuch West Hartford Conn. Mr. Chris Reel IEP, Inc. RE:Development of Regional Impact Exemption Request, Cape Cod Commission Act, Section 12(k) APPLICANT:Ms. Fayette Scheuch PROJECT:Smith Point Subdivision Great Island, Yarmouth MA. MAP/PARCEL:Assessors Map 34, Lot A-1 DECISION OF THE CAPE COD COMMISSION SUMMARY The Cape Cod Commission (Commission) hereby denies the application of Ms. Fayette Scheuch for an Exemption under Section 12(k) of the Cape Cod Commission Act (Act), c. 716 of the Acts of 1989, as amended, for the proposed Smith Point Subdivision. The decision is rendered pursuant to the vote of the Commission on August 16,1990. PROJECT DESCRIPTION The project site, known as Smith Point, is part of Great Island within the Town of Yarmouth. The site is bordered by Nantucket Sound, Lewis Bay and Uncle Roberts Cove. The proposed project is designed as an eight-lot single family cluster subdivision within 70 acres. The proposed subdivision includes three existing single family dwellings, four proposed single family dwellings within 30 acres, and a conservation restriction which will be placed on the remaining 40 acres. The project also involves an existing pier structure and two proposed pier structures. Review of the proposed development by other agencies occured as follows: [1] No filing was required under the Massachusetts Environmental Policy Act, Chapter 30, Sections 61-62H. [2] A preliminary Subdivision Plan for the project has been reviewed and accepted (conditionally) by the Town of Yarmouth Planning Board on September 9, 1987. [3] A Conceptual Development Plan and a Site Plan Approval Application have been submitted to the Town of Yarmouth Site Plan Review Board on April 27, 1990. [4] A Notice of Intent has been submitted to the Town of Yarmouth Conservation Commission on March 31, 1990, for the excavation and installation of piping for potable water transmission to single family home cluster subdivision. PROCEDURAL HISTORY This application for a DRI Exemption under section 12(k) of the Act was filed with the Commission on June 15,1990. A duly noticed public hearing on the application was conducted by the Commission pursuant to Section 5 of the Act on August 16, 1990 at 3:00 p.m. in Rooms 11-12 in the Barnstable County Superior Court House, Route 6A, Barnstable, Massachusetts. Materials submitted for the record include the following: An application titled "Cape Cod Commission Development fo Regional Impact Exemption Application, July 1990", received July 27, 1990. This included plans and documents which show the project location, describe the character and environmental effects and document permitting efforts up to the present. Plans included "Preliminary Plan for Smith Point Subdivision", by IEP inc. dated December 13, 1989 with revisions dated 10/19/8911/14/89, and plans titled "Preliminary Plan for Smith Point Subdivision" also by IEP inc. dated 4/19/90 with revisions dated 10/19/89 and 1 1/14/89. These plans document proposed property boundaries, local topography, roadway and utility information and wetland resource delineations reviewed on-site with Mr. Brad Hall, Yarmouth Conservation Commission Agent; two completed ground water studies conducted by Geologic Services Corporation, Orleans, MA.; a water resources protection study for the Town of Yarmouth prepared by IEP, Inc., August 1988; an application titled "Supplemental Information for Cape Cod Commission Development of Regional Impact Exemption Application, 9 August 1990", received August 9, 1990; a list of abutters to the proposed development submitted on June 15,1990. The Commission heard oral testimony from Mr. George Dallas, esq., Gaston & Snow; Ms. Judith T. Wall, IEP, Inc.; Mr. Chris Reel, IEP, Inc.; Mr. Ben Thomas, abutter. Also present we Mr. and Mrs. Scheuch. Mr. Dallas provided the history of the Smith Point site area and described the proposed project. He stated that there would be no significant impacts from the construction of the new homes. Ms. Wall and Mr. Reel, presented a plan of the site which highlighted resource areas, building and septic leachate envelopes, and proposed roadways. Mr. Reel spoke about septic .b flow/nutrient loading and pier impacts on the areas resources. Mr. Reel stated that there would be no significant impacts on the areas resources and further stated that the development, as proposed would not have any regional impacts. COC staff gave a recommendation of disapproval of the Exemption request based on the projects impacts on regional resources. Mr. Thomas stated that he fully supported the Smith Point Subdivision project. JURISDICTION The proposed Smith Point Subdivision qualifies as a Development of Regional Impact (DRI) under Section 12 (c) (3) of the Act. Section 12 (c) (3) requires review of "any development which proposes to divide land of fifty acres or more which was in common ownership as of January first, nineteen hundred and eighty-eight." The application was referred to the Commission by the Town of Yarmouth Planning Board. The application and notices of public hearing relative thereto, the Commission staffs notes and exhibits and all written submissions received in the course of our proceedings are incorporated into the record by reference. FINDINGS The Commission has considered the exemption application of Ms. Fayette Scheuch for the proposed Smith Point Subdivision, and based on consideration of such application and upon the information presented at the public hearing, makes the following findings pursuant to Section 12(k) of the Act: 1. The proposed site for development is within a peninsula which is surrounded by Commonwealth tidelands with Nantucket Sound, Lewis Bay and Uncle Roberts Cove being the adjacent waters. Nantucket Sound and Lewis Bay are used extensively by the public for commercial and recreational activities (including public transportation, commercial and recreational boating, fishing, shellfishing, swimming and other water related activities). 2. The area of water between Egg Island and Smith Point is currently being used as a shellfish propogation area by the Town of Yarmouth Natural Resource Department. Uncle Roberts Cove is presently open to both commercial and recreational shellfishing, and is used by recreational boaters. All of these waters are owned and used by the public and are of regional significance. Smith Point's proximity to these regional natural and coastal resources make its location one of regional concern. 3. The potential septic flow combined with the location of the proposed septic systems east of the groundwater divide, which runs along the spine of the penninsula, raises concerns about the cumulative impacts of nitrogen loading to Uncle Roberts Cove and adjacent areas. 4. The project includes an existing pier and float and proposes two new pier structures (one permanent and one seasonal). The inner harbor of Uncle Roberts Cove, as stated previously, is open to both commercial and recreational shellfishing. As stated within the applicants request for an Exemption, the area is also a habitat for many marine invertebrates and wildlife species. Given the small size of the inner part of Uncle Roberts Cove the proposed piers will have a cumulative impact on the areas resources. •1 CONCLUSION Based upon the findings above, the Cape Cod Commission hereby concludes: The location, character and environmental effects of the proposed Smith Point Subdivision will cause it to have significant impacts on the unique natural, coastal and scientific values in which there is a regional, state and national interest incprotecting and preserving. The effects of the project may threaten and possibly cause irreparable damage to these values and to the following purposes protected by the Cape Cod Commission Act: "The conservation and preservation of natural undeveloped areas, wildlife, flora,...; the preservation of coastal resources,...; the protection of groundwater, surface water and ocean water quality, as well as the other natural resources of Cape Cod...;" Section 1 (c) of the Act. This conclusion is based on the findings that the projects' septic flow/nutrient loading, pier construction and placement,will have significant impacts on the area water quality and resource areas which are used for recreational and commercial shellfishing and are otherwise of regional significance The Commission hereby denies Ms. Fayette Scheuch a DRI Exemption from the terms and provisions of the Act, pursuant to Section 12(k) of the Act. DateRichard S. Armstrong, Chairman Certiftcation of Proper Notice · I hereby certify that the requirements of Section 5(a) & (d) of the Act regarding notice of the public hearing concerning Smith Point Subdivision were fulfilled, as follows: 1. Notice of the public hearing appeared in the Cape Cod Times on Thursday, August 2, 1990 and Thursday, August 9, 1990; and 2. Notice of the public hearing was posted in a conspicuous place in the Commission's office at the First District Court House, Route 6A, Barnstable, MA 02630 and at 3225 Main Street, Barnstable, MA 02630; and 3. Copies of all documents subject to notice were made available at the Commission's offtces during normal business hours; and 4: Notice of the public hearing was mailed as required by Section 5 of the Act. kiyLL « s- Katharine Peters, Clerk Datk / 1; 91 /90 CONCLUSION Based upon the findings above, the Cape Cod Commission hereby concludes: The location, character and environmental effects of the proposed Smith Point Subdivision will cause it to have significant impacts on the unique natural, coastal and scientific values in which there is a regional, state and national interest in protecting and preserving. The effects of the project may threaten and possibly cause irreparable damage to these values and to the following purposes protected by the Cape Cod Commission Act: "The conservation and preservation of natural undeveloped areas, wildlife, flora,...; the preservation of coastal resources,...; the protection of groundwater, surface water and ocean water quality, as well as the other natural resources of Cape Cod...;" Section 1 (c) of the Act. This conclusion is based on the findings that the projects' septic flow/nutrient loading, pier construction and placement,will have significant impacts on the area water quality and resource areas which are used for recreational and commercial shellfishing and are otherwise of regional significance The Commission hereby denies Ms. Fayette Scheuch a DRI Exemption from the terms and provisions of the Act, pursuant to Section 12(k) of the Act. *44/#424¥34taoAd O · Richard S. Armstrong, Chairman 'Date 1/4 i 9-0 Andrea Adams From:schobro@verizon.net Sent:Friday, June 21, 2013 4:53 PM To:Andrea Adams Subject:Re: Smith Point Plans Hi Andrea, Yes, they were what we were looking for. Thank you for following up on our original request and for getting those plans scanned and sent to us. We don't get over to your neighborhood very often since most of our research work is on-line now, so it was a luxury to have the plans e-mailed to us. Thank you, again. Bob Freeman Professional Land Surveyor Schofield Brothers of Cape Cod On 06/21/13, Andrea Adams<aadams@capecodcommission.ora> wrote: Hello: Just following up to see if the plans from the Cape Cod Commission's file from the Smith Point project in Yarmouth was what you were looking for. Andrea Adams Senior Regulatory Planner Cape Cod Commission Phone: 508-362-3828 Fax: 508-362-3136 1 Andrea Adams From:schobro@verizon.net Sent Tuesday, June 04, 2013 3:27 PM To:Andrea Adams Subject:Re: Smith Point Plans: Three PDFs Thank You, Andrea, I will take a look at those and see if at least one is what we are looking for. Bob On 06/04/13, Andrea Adams<aadams@capecodcommission.ora> wrote: Bob: Attached to this Email response should be three (3) black and white PDF scans of three plans I found in the Cape Cod Commission's DRI file for the Smith Point project, Yarmouth. I hope one or all of these are the plan or plans you were looking for. Please let me know, as there are other plans in the DRI file. Andrea Adams Senior Regulatory Planner Cape Cod Commission Phone: 508-362-3828 Fax: 508-362-3136 From: schobro@verizon.net [mailto:schobro@verizon.netl Sent: Tuesday, June 04, 2013 8:37 AM To: Andrea Adams Subject: Re: RE: Smith Point Plans 1 Andrea Adams Frorn: Sent: To: CC Subject: Attachments: Andrea Adams Tuesday, June 04, 2013 9:31 AM 'schobro@verizon.net' Jonathon Idman; Gary Prahm Smith Point Plans: Three PDFs Smith Point Subdivision Plan (Exhibit A).pdf; Smith Point Development Plan August 1990.pdf; Smith Point Site Plan Approval April 1990.pdf Bob: Attached to this Email response should be three (3) black and white PDF scans of three plans I found in the Cape Cod Commission's DRI file for the Smith Point project, Yarmouth. I hope one or all of these are the plan or plans you were looking for. Please let me know, as there are other plans in the DRI file. Andrea Adams Senior Regulatory Planner Cape Cod Commission Phone: 508-362-3828 Fax: 508-362-3136 From: schobro@verizon.net [mailto:schobro@verizon.net] Sent: Tuesday, June 04, 2013 8:37 AM To: Andrea Adams Subject: Re: RE: Smith Point Plans i Andrea, Good question. 1 looked at what is still in my in-box and did not find anything larger than 5 meg I then looked at my archived stuff and saw at least one 10 Meg e-mail. So I would say at least a 10 meg size works. Thanks, Bob 1 Andrea Adams From:Gary Prahm Sent:Tuesday, June 04, 2013 9:10 AM To:Andrea Adams Subject:Smith point scans Hi Andrea, , I scanned the three plans that you brought up yesterday. I put them in P:\Staff Folders\Gary Prahm's share\Scans and they are named (unimaginatively) smithpt01 02 and 03. Please copy them to a place where you will remember them, as I will throw them out after awhile. 1'11 bring the paper plans with me to all-staff meeting at 10:00 today. Gary Gary Prahm 1 GIS Analyst agrahm@capecodcommission.ora CAPE COD COMMISSION 3225 Main Street 1 Barnstable, MA 02630 Phone: 508 362-3828 I Fax: 508 362-3136 0 1 Andrea Adams From:schobro@verizon.net Sent:Tuesday, June 04, 2013 8:37 AM To:Andrea Adams Subject:Re: RE: Smith Point Plans i Andrea, Good question. 1 looked at what is still in my in-box and did not find anything larger than 5 meg I then looked at my archived stuff and saw at least one 10 Meg e-mail. So I would say at least a 10 meg size works. Thanks, Bob On 06/04/13, Andrea Adams<aadams@capecodcommission.orq> wrote: Bob: Thanks for your patience! The plans· in question are too large to fix on a normal format copier (larger than 11 x 17 inches), so I took them to the Cape Cod Commission's GIS Department, which has a large format printer/scanner/copier. The gentleman I spoke to in the Commission's GIS Department, Gary Prahm, said he would probably have the scan job finished by Wednesday this week, so I hope to get them to you as PDF files ASAP. One question: What is the maximum size of Email attachments your system can receive? The Cape Cod Commission's server generally considers anything approaching 5 megabytes as SPAM and blocks it. 1 Andrea Adams Frorn:Andrea Adams Sent:Tuesday, June 04, 2013 7:41 AM To:'schobro@verizon.net' CC:Jonathon Idman Subject:RE: Smith Point Plans Bob: Thanks for your patience! The plans in question are too large to fix on a normal format copier (larger than 11 x17 inches), so I took them to the Cape Cod Commission's GIS Department, which has a large format printer/scanner/copier. The gentleman I spoke to in the Commission's GIS Department, Gary Prahm, said he would probably have the scan job finished by Wednesday this week, so I hope to get them to you as PDF files ASAP. One question: What is the maximum size of Email attachments your system can receive? The Cape Cod Commission's server generally considers anything approaching 5 megabytes as SPAM and blocks it. What about your system? Andrea Adams Senior Regulatory Planner Cape Cod Commission Phone: 508-362-3828 Fax: 508-362-3136 From: schobro@verizon.net [mailto:schobro@verizon.net] Sent: Tuesday, June 04, 2013 7:34 AM To: Andrea Adams Subject: Re: Smith Point Plans Hi Andrea, That timing is.fine (we took long enough to get over there). Thank you for following through on this. Sincerely, Bob Freeman Professional Land Surveyor 1 Andrea Adams From:schobro@verizon.net Sent:Tuesday, June 04, 2013 7:34 AM To:Andrea Adams Subject:Re: Smith Point Plans Hi Andrea, That timing is fine (we took long enough to get over there). Thank you for following through on this. Sincerely, Bob Freeman Professional Land Surveyor On 06/03/13, Andrea Adams<aadams@capecodcommission.org> wrote: Hello: This is a follow up to a voicemail I left for Laura (?) concerning plans from the Cape Cod Commission's DRI review of a project called Smith Point in Yarmouth. I actually found three site/development plans that may be of interest to you. I will make arrangements with the Cape Cod Commission's GIS Department to make the large size (24 x 36 inches) plan sheets into PDFs by the end of this week. Hope that's fast enough. Sorry for the delay. Andrea Adams 1 Senior Regulatory Planner Cape Cod Commission Phone: 508-362-3828 Fax: 508-362-3136 2 Andrea Adams From:Andrea Adams Sent:Monday, June 03, 2013 10:44 AM To:'schobro@verizon.net' CC:Jonathon Idman Subject:Smith Point Plans Hello: This is a follow up to a voicemail I left for Laura (?) concerning plans from the Cape Cod Commission's DRI review of a project called Smith Point in Yarmouth. I actually found three site/development plans that may be of interest to you. I will make arrangements with the Cape Cod Commission's GIS Department to make the large size (24 x 36 inches) plan sheets into PDFs by the end of this week. Hope that's fast enough. Sorry for the delay. Andrea Adams Senior Regulatory Planner Cape Cod Commission Phone: 508-362-3828 Fax: . 508-362-3136 1 Andrea Adams From:Andreh Adams Sent:Monday, June 03, 2013 10:44 AM To:'schobro@verizon.net' CC:Jonathon Idman Subject:Smith Point Plans Hello: This is a follow up to a voicemail I left for Laura (?) concerning plans from the Cape Cod Commission's DRI review of a pfoject called Smith Point in Yarmouth. I actually found three site/development plans that may be of interest to you. I will make arrangements with the Cape Cod Commission's GIS Department to make the large size (24 x 36 inches) plan sheets into PDFs by the end of this week. Hope that's fast enough. Sorry for the delay.508 - 355 - 3018 Andrea Adams Senior Regulatory Planner Cape Cod Commission Phone: 508-362-3828 Fax: 508-362-3136 Lof,-aid 28462¥3 091-'1 €03 1 To:Regulatory Committee Members From: Staff Date: March 20, 2001 Re:Smith Point Subdivision, Yarmouth Smith Point Subdivision was reviewed as a DRI and approved by the Commission in October 1990. The project involved the creation of four new building lots on a 70 acre parcel in Great Island in Yarmouth. The project area is environmentally sensitive, located on a narrow peninsula surrounded by Nantucket Sound, Lewis Bay and Uncle Roberts Cove. Several of the lots are currently under construction, and questions have been raised regarding whether construction on Lot 1 is consistent with the Commission's DRI decision. In response to several requests (correspondence attached), Commission staff visited the project site in February, 2001. At that time, staff determined that the work on Lot 1 was consistent with the Commission's decision. Patrick Butler, Trustee of 63 Smith's Point Road Realty Trust (Lot 2), has submitted correspondence to the Commission stating his belief that the development of 51 Smith's Point Road (Lot 1) is in violation of the conditions of the DRI condition. Specifically, he notes that Condition #5 of the DRI decision requires no residential structure to be placed except in the "Approximate Building Envelope" as shown on the plan. Both "approximate building envelope" and "approximate area for septic systems" are shown as shaded areas on the development plan referenced in the DRI decision. Lot 1 is currently being developed with a house located in the approximate building envelope, and a boat house (and septic system) located in the approximate septic envelope. Staff believes that the Commission's DRI decision intended to limit construction to the defined building and septic areas shown on the map, considering them together as a "development envelope." The purpose of these development envelopes was to direct development away from sensitive natural and coastal resources (as stated in Finding #2). The septic area was identified as an area outside of the sensitive resource area, and thus Would not logically be restricted from construction. Mr. Butler has also noted that Condition #8 of the Commission's DRI decision requires that new buildings on the property be subject to guidelihes substantially similar to the "Smith Point Architectural Guidelines." The guidelines are,however, consistent with Condition #5 of the DRI decision in that they require all building to be located within the "zone of improvement." Again, this appears to condider the designated house and septic areas together as one development envelope. These guidelines were designed to be administered by relatives of the property owner and an appointed architect, and as such their administration is not subject to Commission review. In correspondence from Michael Ford, representing the oWner of Lot 1, it is acknowledged that minor revisions to the lot lines and residential building envelopes 7 1 were made when the definitive subdivision plan was approved and the Land Court Plan was finalized. Staff has considered these minor revisions and notes that the original DRI decision identified "approximate building envelopes" and "approximate areas for septic systems" with the understanding that there would be such revisions in the definitive plan. Staff recommends that the Regulatory Committee take no action on this project, other than to affirm that the work on Lot 1 is donsistent with the Commission's DRI decision, dated October 25, 1990. - . NUTTER, McCLENNEN & FISH, LLP ATrORNEYS AT LAW ROUTE 132 - 1513 IYANNOUGH ROAD RO. BOX 1630 HYANNIS, MASSACHUSETrS 02601-1630 TELEPHONE: 508 790-5400 FACSIMILE: 508 771-8079 DIRECT DIAL NUMBER (508) 790-5407 E-MAIL ADDRESS pmb@nutter.com March 7, 2001 #21658-2 4IZITVF°yin-*u--7-_- N fil /,1/ - 8 2001Regulatory Committee 9 Cape Cod Commission P.O. Box 226 --Cfult .-. ·. Barnstable, MA 02630 704 7-2- 22- , Re:51 Smith's Point Road, West Yarmouth Yarmouth Assessors' Map 5, Parcel 14 Cape Cod Commission DRI Decision No. TR90046 Ladies and Gentlemen: I am writing to you in my capacity as the trustee of 63 Smith's Point Road Realty Trust, the owner of the property located at 63 Smith's Point Road on Great Island in West Yarmouth, Massachusetts. In my capacity as trustee, it has come to my attention that the property located at 51 Smith's Point Road has been developed in violation of the terms and conditions of the above-referenced DRI permit. I enclose for your information and review a copy of the certified foundation plan for the 51 Smith's Point Road property depicting the exact location of the concrete foundation poured for the "boat house" proposed to be built on the adjacent property. I also enclose the IEP Plan dated April 19, 1990 which was attached as an exhibit to the DRI decision depicting the house and septic envelopes. You will note the area shaded and marked "H" is captioned on the plan " approximate building envelope" [noted in pink highlighting]. You will note also that the area dotted and marked "S" is captioned on the plan as "approximate area for septic system" [noted in orange]. Based upon the information contained on the certified foundation plan, we believe that the property at 51 Smith's Point Road (also known as Lot 1 and as Lot 99) is in violation of the conditions of the DRI as follows: t NUTTER. McCLENNEN & FISH. LLP Regulatory Committee March 7, 2001 Page 2 1. Condition No. 5 of the DRI provides that no residential structure shall be placed on Lots 1, 2, 3 or 4 except in the "approximate building envelope" delineated on the plan dated April 19th. The structure which has been built is clearly outside the "approximate building envelope" as defined by the plan caption. A review of the findings contained in the DRI decision (especially finding no. 2), limits construction within the designated "building envelopes" to keep buildings away from resources. 2. The construction of the purported boat house is in violation of Condition No. 8 which states that construction shall be subject to the restrictions set forth in the Smith's Point Architectural Guidelines attached as Exhibit B of the DRI decision. Attached hereto is a copy of Page 4 of those guidelines. 3. Set forth on Page 4 states "all buildings must be located within zone of improvement designation." We believe that the zone of improvement designation provides for conformance with the IEP Plan dated April 19, 1990. Based upon our review of the certified foundation plan (enclosed), we are of the belief that a significant portion of the purported boat house is outside of both the area for septic system and approximate building envelope. Accordingly, the development is in violation of that provision. It is our understanding that the Staff of the Cape Cod Commission has visited the site and has taken measurements. We are requesting that this matter be reviewed by the Regulatory Committee and that we be allowed to submit at that time additional engineering information confirming the foregoing. We are further requesting that, based upon the foregoing, that the Cape Cod Commission issue a cease and desist order and/or direct the Building Inspector's office of the Town of Yarmouth to do same. We would request that this matter be scheduled at the next available Regulatory Committee meeting. Thank you in advance. C(»54 - PMB/cam CC:Charles M. Sabatt, Esquire 965162.1 ¢ei truly yors \trick M. ditter r ' which th. height limitation will be 25' from thi plain of the firot floor l•vol but in no •vent ehall mor• than 50t of th® ridge polee on any •tructur• be above 28 feet. 3 . »*lding=low#14*nzah•*1=be=dotormin•d=by-takingfinto =con*ide ration=minimizing=Biterlin.i=too existing homes on Smith'• Point and along the shore of Uncle Robert'§ Cove and maximizing view corridors to opin land and water® if dellrod. Allubutiding 0 -must_bi-located-within-Zon•zo f cY4*ovlment-Dig-lignatio€•7- 4. Variances may be granted, only if required by th• unique character of thi Lot whereby a failure to grant the variane, would rogult in a hardihip to the Lot Owner and only if such variance is consistent with the general intont and purpos,• of thi Architictural Guid•line®, and will not have a material adver•• •ffoot on lots in th• area.If a varianc• 11 grantid by thi Committ•• with rospect to alteration* or additions made aft•r completion of the initial con,truction of thi house on th, lot, and auch variance le dimputed by any tmemberzofithe=Committio, including the nonvoting mimber, as being inconsistent with th• Itandarde for variances, at thi request of the dieputing member made at the meeting at which th• varianc• 1, granted, th• .0 di,puti :hall bi referred to an independent archit•ct chos•n by thi Committ••, for re,olution, and th• decision of luch independent architect shall b. binding.If ther, ts much a r•guilt, th• Committ•• •hall mak. th* r•f•rral within ten deys after said meeting and thi architect ehall make it• decision within 30 days after iaid referral, B. EXTERIOR WALLS Th• dioir• i• to hav• color, that blend into thi surrounding landscape and vegetation. 1. The following matirials are pirmittid am wall finishes for building•: a. Whiti cedar *hinglie. Color muit be natural or *taini, iuch ae, gray or brown b. Horizontal wood clapboard with right to clapboard all four midis.If all clapboard, thi color would b® white or earthton, Call ehadil of gray, brown or gray brown mixture).Thi dilire is to have subtle -4-58210 .. '. .. ... - *'f .. MAR-05-2001 12:04 P.02/03 V b 2,7, Le P- 1,7DN»/4.k LOT 99 3.97 AC=E UPLAND AND WETLAND .CO m 1, 7&: LEl -.1 1 1 - 1 0 400 luwl Cr rn 'U IMMI ' L 1 41 00-5 lERTIFIED FOUNDATION PLAN FOR THE PURPOSE OF OBTAINING A BUILDING PERMIT LOCATION :51 SMITH'S POINT ROAD (GREAT ISLAND), WEST YARMOUTH SCALE: 1 = 60'DATE: FEBRUARY 6. 2001 REFERENCE :LCP 4075P ASSESS. MAP 5 PCL 14 1 HEREBY CERTIFY THAT THE STRUCTURE SHOWN ON THIS PLAN IS LOCATED ON THE GROUND AS SHOWN HEREON.46 (200< cRP, 0#lineari¥ ine CIVIL ENGINEERS f. 6 6,9001 LAND SImVEYONS 030 -h •L Yar==14 m. Im DATE PREPARED FOR: KEITH FOX '.-·f./.7.-04/.4.- T REG.SURVEYOR RELEASE Cape Cod Commission, a body politic created pursuant to Chapter 716 of the Acts of 1989, as amended, and Massachusetts Historical Commission, a body politic created pursuant to M.G.L. Chapter 9 5 26, et seq., hereby certify that Fayette S. Scheuch has completed,to their reasonable satisfaction, an intensive archeological survey, as described in paragraph 5 under "Findings" and paragraph 12 under "Conclusion" in the Decision of the Cape Cod Commission for a Development of Regional Impact, CCC # TR90046, dated October 25, 1990, filed with the Barnstable Registry District of the Land Court as Document No. 519,993 noted on Certificate of Title No.34218.Development and construction activities may commence as approved by the Cape Cod Commission in said Decision and consistent with the ac:m::2:=1 "Archeology Agreement" an <ie Wt 141 Witness the execution hereof under seal this 771 day of August 1991. MASSACHUSETTS HISTORICAL COMMISSION 01 0- UJUJ By: DfL.6.7)1 c-bo·,w., 3-f.- Ar 0 LU Lth B. McDonough, Dutive Director '.-- 9 .11 WEB d CAPE, D CQMMISSION Bv: 4 *rmando J. Carbonell, Executive Director '0193 1 N "At FR) 2(19 rb FIA, ogs}#.AOD )3449'H SeSAVDGGDU COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS. August, 1991 Then personally appeared the above named Armando J. Carbonell, Executive Director, and made oath that he executed the above Release as his free act and deed and as the free act and deed of the Cape Cod Commission, before me < O A n 11 0\.._n .0 0 0_.1-Le-rn, *t 04/91 1 Notary Public - My commission expires: OmCIAL SEAL KERIEN ANN CAHOON NOTARY PUBUC-MASS BARNSTABLE COUNTY My Comm. Expires Dec. 5,1997 2 t AUG 09 ' 91 14: 52 ,- WI JFB 080 142 k. '4 HOVEY. URBELIS. FIELDSTEEL & BAILIN WILLIAM V. HOVEY THOMAS J. URBELLS JOMN W. FIELDSTEEL DEVRA G. BAILIN LINDA M. HAMEL PETER C. ANASTOS 168 FEDERAL STREET SUITE 1000 BoeroN, MASSACHUSETTS 09110 TELEPHONE 617-338-2200 TELECOPIER 017-388·0122 PLYMOUTH OFFICE 170 WATER STREET PLYMOUTH. MA 09360 TELEPHONE 608-747-6260 TELE©OPIER 608-740·8075 ANDOVER OFFICE 28 CHESTNUT STREET ANDOVER. MA 01810-3800 TELEPHONE 508·415•4552 OF COUNSEL JOHN R.D. McCLINTOCK GEORGE M. DALLAS C. GEORGE ANASTOS BY FAX AND MAIL Ms. Brona Simon State Archaeologist Massachusetts Historical Commission 80 Boylston Street Boston, MA 02116 Mr. Stephen A. Mrozowski The Public Archaeology Laboratory, Inc. 387 Lonsdale Avenue Pawtucket, RI 02860 NANTUCKET OFFICE 12 FEDERAL STREET NANTUCKET, MA 025f,4 August 9, 1991 TELEPHONE 508-228-8119 Ms. Deborah C. Cox, President The Public Archaeology Laboratory, Inc. 387 Lonsdale Avenue PaWtucket, RI 02860 Ms. Sharon Rooney Cape Cod Commission 3225 Main Street P. 0. Box 226 Barnstable, MA 02630 Professor and Mrs. Richard Scheuch P. 0. Box 787 West Yarmouth, MA 02673 Re: Archeoloay Agreement. Smiths Point. Yarmouth Dear Ladies and Gentlemen: Enclosed herewith is a redlined copy of the Archeology Agreement. The only changes from the 5th draft are: Page 1 - Elimination of "5th Draft - 8/8/91" Pages 2&3- Adding the second · column showing the lot numbers on the Cape Cod Commission Schematic Development Plan. Page 3 - The parenthetical sentence at the end of the first paragraph indicating which plan is being referred to. Release - Elimination of "Exhibit D - 3rd Draft - 8/8/91" and changing the signature line and acknowledgment to Armando J. Carbonell. , AUG 09 '91 14:53 HUFB 080 P03 HOVEY, URBELIS. FIELDSTEEL & BAILIN Ms. Brona Simon Ms. Deborah Cox Mr. Steve Mrozowski Ms. Sharon Rooney Professor and Mrs. Richard Scheuch August 9, 1991 Page Two I'have scheduled that this Agreement be signed by MHC Monday morning.I've tentatively scheduled meeting Deborah Cox in Pawtucket at 9:00 a.m. on Tuesday, the 13th and getting her execution, will then visit Great Island and get Fayette Scheuch's and Steve Mrozowski's signatures in the late morning and hope to get Armando Carbonell's signature and acknowledgment in the early afternoon Tuesday, August 13. I will then file the release in the Barnstable Registry District of the Land Court. Meanwhile I understand MHC has issued its permit and Steve and the PAL gophers are on the site. GMD/dma Dallas cc: John Young, Esquire (By Fax and Mail) Sinc,pely, GJO¥a M. · , AUG 09 '91 14:54 UUFB 080 P04Reoll: 4 Cori '+ 1-,t n..4 1.).# ARCHEOLOGY AGREEMENT Fayette S. Scheuch (Scheuch) owns 67 acres of land, known as Smiths Point, on Great Island in Yarmouth, Massachusetts (locus). There are three houses on the southern portion of locus.She proposes developing 31 of these acres into seven single family house lots, three from the existing houses and four on the isthmus north of the existing houses. The planning of this low intensity development has been going on for over a decade and has cost Scheuch hundreds of thousands of dollars in legal, architectural, planning and engineering expense. Because Scheuch owns more than 50 acres, her development is deemed a Development of Regional Impact under the Cape Cod Commission Act (Chapter 716 of the Acts of 1989). Scheuch obtained approval of her development from the Cape Cod Commission on October 25, 1990 subject to the condition that Scheuch " ...complete an intensive (locational) archeological survey (950 CMR 70) .... "An Intensive Archeological Survey was completed by Public Archeology Laboratory,Inc.(PAL)in November 1990 under Massachusetts Historical Commission (MHC) Permit No. 1140.A Site Examination was performed by PAL in April 1991 under MHC permit No. 1160. MHC now would like to perform data recovery on Smiths Point. Stephen A. Mrozowski Phd. (Mrozowski) , will supervise the data recovery and will conduct an archeological field school on the site in the summer of 1992.He will coordinate the site work with PAL. Scheuch seeks to complete her development as soon as possible in order to be able to sell some of the seven lots and to carry out her plan to protect 36 acres of Smiths Point by granting a AUG 09 '91 14:54 uUFB 080 P05 conservation restriction to The Trustees of Reservations (TTOR) or similar conservation organization. The basic development plan is as follows: LOT LQT PRESENT FUTURE (per 1991 (per 1990 DEVELOPMENT DEVELOPMENT Subdivision Schematic Plan)Development Plan Submitted to the Cape Cod Commission 1 7 "Big house"Guest Cottage Garage 2 6 Garage 3 5A None None, Conveyed with Lot 11 4 1 None House & Garage 5 2 None House, Garage Guest Cottage 6 3 None House, Garage Guest Cottage 7 4 None House, Garage, Guest Cottage and Fire Pond 8 3A None None, Conveyed with Lot 6 9 2A None None, Conveyed with Lot 5 10 lA None Stairs and Dock, Conveyed with Lot 4 11 5 "Caretakers Enlarge Cottage"Cottage, Garage 11B Lawn and Septic System, Driveway Conveyed with Lot 11 2 AUG 09 '91 14:55 HUFB 080 P06 12 8 None Well, Pipeline Fire Pond and 15' Wide Emergency Access Easement , A copy of the subdivision plan approved by the Yarmouth Planning Board is attached hereto as Exhibit A. (All lot numbers herein are in reference to the subdivision plan, Exhibit A, unless indicated otherwise.) In order to accomplish the foregoing, Scheuch, agrees that: 1. She shall forbear constructing Smiths Point Road and doing construction work on lots 6 and 8 until October 9, 1991; 2.She shall forbear any construction activity on lots 4, 5, 7, 9, 10 and 12 until August 7, 1992; . 0 3. She shall forbear any construction activity, except for a well, pipe line, fire pond and 15' wide emergency access easement on lot 12; 4. By August 9, 1991, she shall have the sideline of Smiths Point Road staked from the southerly boundary of Lots 4 and 10 northerly to the end of the cul-de-sac; 5. Before any construction commences on Smiths Point Road or lots 6 and 8, she shall have the sideline of Smiths Point Road delineated by a snow fence; 6. In the event unmarked human burials are uncovered during any construction on locus, construction activity shall be halted immediately, Scheuch shall notify the Yarmouth Police, Barnstable County Medical Examiner and MHC pursuant to M.G.L. c. 38 §6B & 6C, 3 AUG 09 '91 14:56 UUFB 080 P07 c. 9 §§26A and 27C, c. 7 §38A and c. 114 §17; and 7. She shall pay PAL the sums due to it in accordance with the contract attached hereto as Exhibit B. PAL and Mrozowski agree that: 8.They shall in a timely manner accomplish the work described in the Technical Proposal, a copy of which is attached hereto as Exhibit C; 9. They shall complete all data recovery from Smiths Point Road, lots 6 and 8 by September 15, 1991; 10.They shall submit a Management Memorandum on Lots 6, 8 and Smiths Point Road to MHC by September 30, 1991; 11.They shall complete all data recovery from lots 4,5, 7, 9, 10 and the portion of Lot 12 to be developed for a fire pond, 15' wide emergency access easement, well and pipeline by July 31, 1992; 12.They shall submit a Management Memorandum on Lots 4, 5, 7, 9, 10 and the portion of Lot 12 to be developed for a fire pond, 15' wide emergency access easement well and pipeline by July 31, 1992; and 13. They shall assume the full risk of obtaining the financing to cover all of the data recovery work, laboratory analysis, report writing etc. beyond the sum Scheuch has agreed to pay as set forth in Exhibit B. MHC agrees that: 14. No permit shall issue to Mrozowski or PAL for Data Recovery until the Release (Exhibit D hereto) has been executed, 4 AUG 09 '91 14:56 ''UFB 080 P08 acknowledged and delivered to Scheuch; 15.It will require the State Archeologist, or her duly authorized deputy, to visit locus at least once every two weeks and to be in telephonic contact with Mrozowski or PAL on alternative weeks while data recovery work is proceeding on locus to insure that PAL and Mrozowski are performing the work described in Exhibit C properly and on schedule; 16.Pursuant to the decision of the Cape Cod Commission, and absent the uncovering of any unmarked human burial, MHC represents, to the best of its knowledge at this point in time, that no other document is necessary, other than Exhibit D, to permit Scheuch to proceed with construction on locus; 17. It will assume the risk that PAL and Mrozowski shall perform the data recovery work in an acceptable and timely manner as agreed to herein; and 18.In the event unmarked human burials are uncovered during any data recovery or construction on locus, it will send the State Archeologist, or her duly authorized deputy, to the site and expedite the removal of the remains, if agreed upon, pursuant to paragraph 19 below, in an expeditious manner and with the intent that construction may resume as soon as is reasonably possible. 19. Scheuch, Mrozowski, PAL and MHC agree that in the event unmarked human burials are uncovered during the archaeological investigations of the site, excavation activities in the vicinity of the burial shall cease immediately and the State Archaeologist shall be notified.The State Archaeologist, the Commission on 5 AUG 09 '91 14:57 HUFB 080 P09 Indian Affairs and the owner shall consult pursuant to Massachusetts General Laws, Ch. 38, sec. 6B & 6C; Ch. 9, sec. 26A & 27C; Ch. 7, sec. 38A; Ch. 114, sec. 17; as amended by Ch. 659 of the Acts of 1983.If it is agreed that the burial shall be excavated, the excavation shall be conducted in an expeditious manner.This additional excavation and recovery may require that the projected dates of completion of the fieldwork and MHC review be adjusted accordingly.All parties agree to minimize any such delay. This Agreement is binding on our respective heirs, assigns and successors and is executed in sextuplicate this day of August, 1991. Fayette S. Scheuch Stephen A. Mrozowski, Phd. PUBLIC ARCHEOLOGY LABORATORY, INC. By: Deborah C. Cox, President . MASSACHUSETTS HISTORICAL COMMISSION By: Brona Simon, State Archeologist By: Judith B. McDonough, Executive Director 6 AUG 09 '91 14:57 qJFB 080 P10 RELEASE , Cape Cod Commission, a body politic created pursuant to Chapter 716 of the Acts of 1989, as amended, and Massachusetts Historical Commission, a body politic created pursuant to M.G.L. A Chapter 9 § 26, et seq., hereby certify that Fayette S. Scheuch has completed,to their reasonable satisfaction,an intensive archeological survey, as described in paragraph 5 under "Findings" and paragraph 12 under "Conclusion" in the Decision of the Cape Cod Commission for a Development of Regional Impact, CGC # TR90046, dated October 25, 1990, filed with the Barnstable Registry District of the Land Court as Document No. 519,993 noted on Certificate of Title No.34218.Development and construction activities may . commence as approved by the Cape Cod Commission in said Decision and consistent with the attached "Archeology Agreement". Witness the execution hereof under seal this day of August 1991. MASSACHUSETTS HISTORICAL COMMISSION By: Judith B. McDonough, Executive Director CAPE COD COMMISSION BV: Armando J. Carbonell, Executive Director AUG 09 '91 14:58 HUFB 080 Pll COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS.August, 1991 Then personally appeared the above named Armando J. Carbonell, Executive Director, and made oath that he executed the above Release as hiE free act and deed and as the free act and deed of the Cape Cod Commission, before me Notary Public My commission expires: 2 AUG 09 '91 15:55 HUFB 087 P01 HOVEY. URBELIS. FIELDSTEEL & BAILIN PLYMOUTH OFFICE 170 WATER STREET PL.OUTH. MA 02380-3854 TELEPHONE 508-7474950 TELECOPIER 50*7464075 168 FEDERAL STREET SUITE 1000 BOSTON. MASBACHUSETrs 09110.1,27 TELEPHONE 617438•2200 TELECOPIER 617-388-0129 FAX COVER SHEET ANDOVER OFrICE 26 CHESTNUT STREET ANDOVER. MA 01810·3000 TELK,HONE 508475-4659 To: 046 A -Roew 6 1 FAX NUMBER:1-5-08- 362- 313,6 FROM:G, Da HaS SUBJECT:A vch. A vni-C a jtJIM' rn s 14. yamo u.14 DATE:47=9t COMMENTS:pukul M *4 6 4444) 1/lue>GvM RAA,20 Aluidc -6 *L auti Autivt AL Yw NUMBER OF PAGES (including this page ) ORIGINAL MAILED?YES (Se THE INFORMATION CONTAINED IN THIS FACSIMILE MESSAGE IS PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE.IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED.IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA THE U.S. POSTAL SERVICE.THANK YOU. AUG 09 '91 14:52 HUFB 080 P01 HOVEY. URBELIS. FIELDSTEEL & BAILIN PLYMOUTH OFFICE 1.70 WATER STREET PLYMOUT H. MA 02350·3854 TE!.RPHONE 50*7474250 TEL/COPIER 508-746-6075 150 FEDERAL STREET SUITE 1000 BosTON. MASSACHUSE:rTS 02110·1727 TELEPHONE 617-838·2200 TELECOPIER 617-338-0122 ANDOVER OFFICE 26 CHESTNUT STREET ANDOVER, MA 018163000 TELEPHONE 608475-4652 Milf·PAL ...*-- FAX COVER SHEET 3),60= 6 'Dick TO:Cesby ee K - s. 1.ley..S'&· geheuck 7 27-5128 401-718-8789 FAX NUMBER:588- 7751 7639 C CC - ©to fo n 3>h,4 Roe ¢1€7 ./ou n? 508 -362-3136 212- 769-5420 FROM: SUBJECT: G. Fil /6 Arclnel°1 7 AO ree vnent DATE:8 -9-9 i COMMENTS: NUMBER OF PAGES (including this page ) ORIGINAL MAILED?YES THE INFORMATION CONTAINED IN THIS FACSIMILE MESSAGE IS PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE.IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED.IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA THE U.S. POSTAL SERVICE.THANK YOU. ' \IF A HOVEY, URBELIS, FIELDSTEEL &94*.X<y; 155 FEDERAL STREET SUITE 1000 BOSTON, Al[ASSACHUSETTS 02110 - C.CA WILLIAM V. HOVEY THOMAS J. URBELIS JOHN W. FIELDSTEEL DEVRA G. BAILIN PETER C ANASTOS TELEPHONE 617-338-2200 TELECOPIER 617-338-0122 PLNRIOUTHOFF 177ATER STRE AYMOUTH. MA 0 TELEPHONE 508-747-6250 TELECOPIER 508-746-6075 January 10, 1991 OF COUNSEL JOHN R.D. McCLINTOCK GEORGE M. DALLAS Ms. Katharine Peters Clerk of the Commission Cape Cod Commission 3225 Main Street Barnstable, MA 02630 Fayette Scheuch, Smiths Point, Great Island Yarmouth-CCC #EX 90046 Dear Ms. Peters: The subject decision of the Cape Cod Commission granting Mrs. Scheuch's application for a Development of Regional Impact was filed in the Barnstable Registry District of the Land Court at 3:32 p.m. on January 2, 1991 as Document No. 519993 noted on Certificate of Title No. 34218 isiued to Fayette S. Scheuch by said Registry District and applies to Lot 1 on Land Court Plan 4075B. This notification is given to you pursuant to your letter to Mrs. Scheuch dated December 21, 1990. truly yours, M. Dallas GMD/dma CC:Professor and Mrs. Richard Scheuch. Mr. Jim Monahan Mr. Chris Reel Ms. Judy Wall verg HOVEY, URBELIS, FIELDSTEEL & BAILIN 155 FEDERAL STREET SUITE 1000 Bos'roN. MASSACHUSE:rrs 02110 40' 0 JAN 10'glt 23:;WIC scisoil.t, *ri¢e) JAN V -•C J - 9 9\ j p'l ..··1·4 * 5325265 U.S. 75571.42 14 . 1[ Ms. Katharine Peters Clerk of the Commission Cape Cod Commission 3225 Main Street Barnstable, MA 02630 - ¢t 0 0 U HC.... 4 URBELIS, FIELDSTEEL & WILLIAM V. HOVEY THOMAS J. URBELIS JOHN W. FIELDSTEEL DEVRA G. BAILIN PETER C. ANASTOS 155 FEDERAL STREET SUITE 1000 BOSTON, ACASSACHUSETTS 02110 TELEPHONE 617-338-2200 TELECOPIER 617-338-0122 PL¥MOUTH. MA 02360 TELEPHONE 508-747-6250 TELECOPIER 508-746-6075 January 10, 1991 OF COUNSEL JOHN R.D. McCLINTOCK GEORGE M. DALLAS Ms. Katharine Peters Clerk'of the Commission Cape Cod Commission 3225 Main Street Barnstable, MA 02630 Fayette Scheuch. Smiths Point, Great Island Yarmouth-CCC #EX 90046 Dear Ms. Peters: The subject decision of the Cape Cod Commission granting Mrs. Scheuch's application for a Development of Regional Impact was filed in the Barnstable Registry District of the Land Court at 3:32 p.m. on January 2, 1991 as Document No. 519993 noted on Certificate of Title No. 34218 issued to Fayette S. Scheuch by said Registry District and applies to Lot 1 on Land Court Plan 4075B. This notification is given to you pursuant to your letter to Mrs. Scheuch dated December 21, 1990. truly yours, M. Dallas GMD/dma CC:Professor and Mrs. Richard Scheuch·. Mr. Jim Monahan Mr. Chris Reel Ms. Judy Wall k PLY,MOUTH \170·WATER f very rlww go 2.1 1 19 2 39 HUFB 057 P08 * 1,4. Exhibit D 3rd Draft 8/8/91 RELEASE Cape Cad Commission, a body politic created pursuant to Chapter 716 of the Acts of 1989, am amended, and Massachusetts Historical Commission, a body of politic created pursuant to X.G.L. Chapter 9 5 26, et seq., hereby certify that Fayette S. Schauch has completed,to their reasonable satisfaction,an intensive archeological survey, am described in paragraph 5 under NFindings" and paragraph 12 under "Conclusion" in th* Decision of the Cape Cod Commission for a Development of Regional Impact, CCe # TR90046, dated October 25, 1990, filed with the Barnstable Registry Dietrict of the Land Court as Document No. 519,993 noted on Certificate of Title No. 34218.Development and construction activities may commence as approved by the Cape Cod Commission in eaid Decision and consistent with the attached "Archaology Agreement". Witness the execution hereof under seal this day of 1991. MASSACHUSETTS HISTORICAL COMMISSION 8Vt Judith B. MoDonough, Executive Director CAPE COD (pMMISON A /0-A ·2:>·c ovuu< t)<r,-4.F OF CQGRichird 'S. Armstrong. Chairman'L 4 WWOD 1UDIBO1SIH SSWW Weet' :II I6, 80 Dne2'd 1 'WL' WW 2...1. --1 MUy- ks 057 P02 DRAFT STH DRAFT 8/8/91 ARCHEOLOGY 1@RESMENT Fayette S. Scheuch (Scheuch) owns 67 acres of land, known as Smiths Point, on Great Island in Yarmouth, Massachusetts (locus). There are three houses on the southern portion of locus.She proposes developing 31 of these acres into seven single family house lots, three from the existing hou•es and four on the lithmus north of the existing houses. The planning of this low intensity development has been going on for over a decade and has cost Scheuch hundreds of thousands of dollars in legal, architectural, planning and engineering expense. Because Schouch owns more than 50 acres, her development is deemed a Development of Regional Impact under the Cape Cod Commission Act (Chapter 716 of the Acts of 1989). Scheuch obtained approval of her development from the Cape cad Commission on october 25, 1990 subject to the condition that Scheuch 80...compl•te an inteneive (locational) archeological survey (950 CMR 70) ...."An Intensive Archeological Survey was completed by Public Archeology Laboratory,Inc.(PAL)in November 1990 under Mamsachusetts Historical Commission (MHC) Permit No. 1140. A Site Examination was performed by PAL in April 1991 under MHC permit No. 1160. MHC now would like to perform data recovery on Smiths Point. Stephen A. Mrozowski Phd. (Mrozowski), will supervise the data recovery and will conduct an archeological field school on the site in the SYBESE_2£ 1992· He will coordinate the aite work with pAL. . Schauch seeks to complete her development as Boon as poosible in order to be able to sell come of the seven lots and to carry out WWOD 1UDINO1SIH SSWW Welt':II I6, 80 SAWP.d -- ...WW r,wr o 057 P03 her plan to protect 36 acres of Smiths Point by granting a conservation restriction to The Trustees of Reservations (TTOR) er similar conservation organization. The basic developmlnt plan is as follows: I,QZ RREEEHZ..REMmARMEam ELAP/le-LOCIELCIGDWiM 1 "Big housan Guest Cottage Garage 2 "Cottagen Garage 3 None None,Conveyed with Lot 11 4 None House & Garage 5 None Hous•, Garage Guest Cottage 6 None Mouse, Garage Guest Cottage None House, Garage, Guest Cottage and Fire Pond 8 None None,Conveyed With Lot 6 9 None None,Conviyed with Lot 5 10 None Stairs and Dock, Conveyed with Int 4 11 "Car•takers Cottage"Enlarge Cottage, Garage 11B Lawn and Driveway Septic System, Conveyid with Ict 11 12 None Well, Pipeline Fire Pond and 15' Wide :mergency Access Easement 2 WWOO 183IhIO1SIH SSWW Wt12P :TI I6, 80 ontsS'd Mur- 0 057 P04 A copy of the subdivision plan approved by the Yarmouth Planning Board is attached hereto as Exhibit A. In order to accomplish the foregoing, Scheuch, agrees that: 1. She shall forbear constructing Smiths Point Road and doing construction work on lots 6 and 8 until October 9, 1991; 2. She shall forbear any construction activity on lots 4, 5, 7, 9, 10 and 12 until August 7, 1992; 3. She shall forbear any construction activity, except for a well, pipe line, fire pond and 15' wide emergency access easement on lot 12; 4.By August 9, 1991, she shall have the sideline of Smiths Point Road staked from the moutherly boundary of Lots 4 and 10 northerly to the end of the cul-de-sac; 5. Before any construction commencos on Smith• Point Road or lots 6 and 8, she shall have the aideline of smiths Point Road delineated by a snow fence; 6. In the event unmarked human burials are uncovered during any construction on locus, construction activity mhall be halted immediately, Scheuch shall notify the Yarmouth Police, Barnstable County Medical Examiner and MHC pursuant to M.G.L. c. 38 568 & 6(, c. 9 §526A and 27C, a. 7 §38A and c. 114 517; and 7.She shall pay PAL the sums due to it in accordance with the contract attached hereto aa Exhibit B. PAL and Mrozowski agree that: 8. They shall in a timely manner accomplish the work described in the Technical Proposal, a copy of which is attached WWOD ll:IDIbl01SIH SSeW WWZV :IT I6, 80 9009'd 057 P05 hereto as Exhibit C; 9. They shall complete all data recovery from Smiths Point Road, lots 6 and 8 by September 15, 1991; 10. They shall submit a Management Memorandum on Lots 6, 8 and Smiths Point Road to MHC by September 30, 1991; 11.They shall complete all data recovary from lots 4,5, 7, 9, 10 and the portion of Lot 12 to be developed for a fire pond, 15' wide emergency access easement, well and pipaline by July 31, 1992; 12.They shall •ubmit a Management Memorandum on Lots 4, 5, 7, 9, 10 and the portion of Lot 12 to be developed for a fire pond, 15' wide emergency access easement well and pipeline by July 31, 1992; and 13. Th•y shall assume the full risk of obtaining the financing to covir all of the data recovery work, laboratory analysis, report writing etc. beyond the sum Scheuch has agreed to pay as set forth in Exhibit B. MHC agrees that: 14.No permit shall iasue to Mrozowaki or PAL for Data Recovery until the Release (Exhibit D hereto) has been executed, acknowledged and delivered to Schauch; 15.It will require the State Archeologist, or her duly authorized deputy, to visit locus at least once every two weeks and to be in telephonic contact with Mrozowski or PAL on alternative weeks while data recovery work is proceeding on locus to insure that PAL and Mrozowski are performing the work described in Exhibit 4 WWOD 1WDIaolSIH SSWW WWZP: IT I6, · 80 Sne2.'d r,WI' two .1 1,02 09 MUI- B 057 P09 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. , 1991 342& _6 m CD¢7!Then personally appeared the abovi named •De-e-*-••-seae- AL*M**998;/EgvT and made oath that she executed the above Release a. her free act and deed and as the free act and dead of the Massachusetts Historical Commission, before me Notary Public My commission expires: 2 WWOD 183Ihi01SIH ESWN'·WtlID: TI I6, 80 978E'd r-w-w 6;c=7 /1 10.-'MUFB 057 $306 C properly and on schedule; 16. Pursuant to the decision of the Cape Cod Commission, and absent the uncovering of any unmarked human burial, MHe represents, to the best of its knowledge at this point in time, that no other document is necessary, other than Exhibit D,'to permit Scheuch to proceed with construction on locus; 17.It will assume the risk that PAL and Mrozow•ki shall perform the data recovery work in an acceptable and timely manner ae agreed to harein, and 18.In the event unmarked human burial• are uncovered during any data recovery or construction on locus, it will send the State Archeologist, or her duly authorized deputy, to the site and expediti the removal of the remains, if agreed upon, pursuant to paragraph 19 below, in an expeditious manner and with the intent that construction may resume as soon as is reasonably possible. 19.Scheuch, Mrozowski, PAL and MHC agree that in the event unmarked human burials are uncovered during the archaeological investigations of the site, excavation activities in the vicinity of the burial shall caage immediately and the State Archaeologist shall be notified.The State Archaeologi•t, the Commission on Indian Affairs and the owner shall consult pursuant to Massachusetts General Laws, Ch. 38, sec. 68 & 6C; Ch. 9, sec. 26A & 27¢; Ch. 7, sec. 38A; Ch. 114, sec. 17; as amended by Ch. 659 of the Acts of 1983.If it is agreed that the burial shall be excavated, the excavation shall be conducted in an expeditious manner.This additional excavation and recovery may require that 5 WWOD leDIWO1SIH SSUW Wtlet, :II IS, 80 9008'd , ..... WW -'*..1. =30 MUr ki 057 P07 the projected dates of completion of the fieldwork and MHc review be adjusted accordingly.All parties agree to minimize any such delay. This Agreement is binding on our respective heirs, assigns and successors and 1* executed in sextuplicate thia day of August, 1991. Fayette S. Scheuch Stephen A. Mrozoweki, Phd. PUBLIC ARCHEOLOGY LABORATORY, INC. By: Deborah C. Cox, President MASSACHUSETTS HISTORICAL COMMISSION By: Brona Simon, Stat* Archeologiet By: ludith B. McDonough, Executive Director 5 WWOO ltIOINO1SIH SSWW WDEV :TI I 6, 80 Sne6'd -@d@ IED W E 171 -|1- AUG 1 3 1991 1ARCHEOLOGY AGREEMENT -CAPE COD COMMISSION _ i Fayette S. Scheuch (Scheuch) owns 67 acres of land, knownas Smiths Point, on Great Island in Yarmouth, Massachusetts (locus). There are three houses on the southern portion of locus.She proposes developing 31 of these acres into seven single family house lots, three from the existing houses and four on the isthmus north of the existing houses.The planning of this low intensity development has been going on for over a decade and has cost Scheuch hundreds of thousands of dollars in legal, architectural, planning and engineering expense. Because Scheuch owns more than 50 acres, her development is deemed a Development of Regional Impact under the Cape Cod Commission Act (Chapter 716 of the Acts of 1989). Scheuch obtained approval of her development from the Cape Cod Commission on October 25, 1990 subject to the condition that Scheuch "...complete an intensive (locational) archeological survey (950 CMR 70)...." An Intensive Archeological Survey was completed by Public Archeology Laboratory,Inc.(PAL)in November 1990 under Massachusetts Historical Commission (MHC) Permit No. 1140.A Site Examination was performed by PAL in April 1991 under MHC permit No. 1160. MHC now would like to perform data recovery on Smiths Point. Stephen A. Mrozowski Phd. (Mrozowski) , will supervise the data recovery and will conduct an archeological field school on the site in the summer of 1992.He will coordinate the site work with PAL. Scheuch seeks to complete her development as soon as possible in order to be able to sell some of the seven lots and to carry out her plan to protect 36· acres of Smiths Point by granting a conservation restriction to The Trustees of Reservations (TTOR) similar conservation organization. The basic development plan is as follows: LOT (per 1991 Subdivision Plan) LOT PRESENT (per 1990 DEVELOPMENT Schematic Development Plan Submitted to the Cape Cod Commission FUTURE DEVELOPMENT 1 7 "Big house"Guest Cottage Garage 2 6 Garage"Cottage" 3 5A None None, Conveyed with Lot 11 4 1 None House & Garage 5 2 None House Guest , Garage Cottage 6 3 None House, Garage Guest Cottage 7 4 None House, Garage, Guest Cottage and Fire Pond 8 3A None None, Conveyed with Lot 6 9 2A None None, Conveyed with Lot 5 10 lA None Stairs and Dock, Conveyed with Lot 4 11 5 "Caretakers Enlarge Cottage"Cottage, Garage 11B Lawn and Septic System, Driveway Conveyed with Lot 11 2 12 8 None Well, Pipeline Fire Pond and 15' Wide Emergency Access Easement A copy. of the subdivision plan approved by the Yarmouth Planning Board is attached hereto as Exhibit A.(All lot numbers herein are in reference to the subdivision plan, Exhibit A, unless indicated otherwise.) In order to accomplish the foregoing, Scheuch, agrees that: 1.She shall forbear constructing Smiths Point Road and doing construction work on lots 6 and 8 until October 9, 1991; 2.She shall forbear any construction activity on lots 4, 5, 7, 9, 10 and 12 until August 7, 1992; - 3. She shall forbear any construction activity, except for a well, pipe line, fire pond and 15' wide emergency access easement on lot 12; 4.By August 9, 1991, she shall have the sideline of Smiths Point Road staked from the southerly boundary of Lots 4 and 10 northerly to the end of the cul-de-sac; 5.Before any construction commences on Smiths Point Road or lots 6 and 8, she shall have the sideline of Smiths Point Road delineated by a snow fence; 6.In the event unmarked human burials are uncovered during any construction on locus, construction activity shall be halted immediately, Scheuch shall notify the Yarmouth Police, Barnstable County Medical Examiner and MHC pursuant to M.G.L. c. 38 §6B & 6C, 3 c. 9 §§26A and 27C, c. 7 §38A and c. 114 §17; and 7.She shall pay PAL the sums due to it in accordance with the contract attached hereto as Exhibit B. PAL and Mrozowski agree that: 8.They shall in a timely manner accomplish the work described in the Technical Proposal, a copy of which is attached hereto as Exhibit C; 9.They shall complete all data recovery from Smiths Point Road, lots 6 and 8 by September 15, 1991; 10.They shall submit a Management Memorandum on Lots 6, 8 and Smiths Point Road to MHC by September 30, 1991; 11.They shall complete all data recovery from lots 4, 5, 7, 9, 10 and the portion of Lot 12 to be developed for a fire pond, 15' wide emergency access easement, well and pipeline by July 31, 1992; 12.They shall submit a Management Memorandum on Lots 4, 5, 7, 9, 10 and the portion of Lot 12 to be developed for a fire pond, 15' wide emergency access easement well and pipeline by July 31, 1992; and 13.They shall assume the full risk of obtaining the financing to cover all of the data recovery work, laboratory analysis, report writing etc. beyond the sum Scheuch has agreed to pay as set forth in Exhibit B. MHC agrees that: 14.No permit shall issue to Mrozowski or PAL for Data Recovery until the Release (Exhibit D hereto) has been executed, 4 acknowledged and delivered to Scheuch; 15.It will require the State Archeologist, or her duly authorized deputy, to visit locus at least once every two weeks and to be in telephonic contact with Mrozowski or PAL on alternative weeks while data recovery work is proceeding on locus to insure that PAL and Mrozowski are performing the work described in Exhibit C properly and on schedule; 16.Pursuant to the decision of the Cape Cod Commission, and absent the uncovering of any unmarked human burial, MHC represents, to the best of its knowledge at this point in time, that no other document is necessary, other than Exhibit D, to permit Scheuch to proceed with construction on locus; 17.It will assume the risk that PAL and Mrozowski shall . perform the data recovery work in an acceptable and timely manner as agreed to herein; and 18.In the event unmarked human burials are uncovered during any data recovery or construction on locus, it will send the State Archeologist, or her duly authorized deputy, to the site and expedite the removal of the remains, if agreed upon, pursuant to paragraph 19 below, in an expeditious manner and with the intent that construction may resume as soon as is reasonably possible. 19.Scheuch, Mrozowski, PAL and MHC agree that in the event unmarked human burials are uncovered during the archaeological investigations of the site, excavation activities in the vicinity of the burial shall cease immediately and the State Archaeologist shall be notified.The State Archaeologist, the Commission on 5 Indian Affairs and the owner shall consult pursuant to Massachusetts General Laws, Ch. 38, sec. 6B & 6C; Ch. 9, sec. 26A & 27C; Ch. 7, sec. 38A; Ch. 114, sec. 17; as amended by Ch. 659 of the Acts of 1983.If it is agreed that the burial shall be excavated, the excavation shall be conducted in an expeditious manner.This additional excavation and recovery may require that the projected dates of completion of the fieldwork and MHC review be adjusted accordingly.All parties agree to minimize any such delay. This Agreement is binding on our respective heirs, assigns and successors and is executed in sextuplicate this 90 day of August, 1991. vi14- f. 40« Fiyte S. Scheuch Stehen A. Mro*wski>Phd. PUBLIC ARCHEOLOGY LABORATORY, INC. By:-Al Jwn,&1-- C.CAY De»fah C. Cox, President MASSACHUSETTS HISTORICAL COMMISSION Brona Simon, State Archeologist By: £011 6. 9934441-.th B. McDonough, cutive Director 6 STANDARD FORM OF AGREEMENT FOR ARCHAEOLOGICAL SERVICES 9 thTHIS IS AN AGREEMENT made on this \ 0 - day of AuS u,+ ,I991 by and between: Fayette Scheuch 54 Westwood Road West Hartford, Connecticut 06117 , hereafter referred to as the CLIENT -AND- The Public Archaeology Laboratory, Inc. 387 Lonsdale Avenue Pawtucket, Rhode Island 02860 , hereafter referred to as PAL, Inc. The AGREEMENT is for archaeological services described in Section 2 in connection with the following project: Data Recovery Program (Service) Smiths Point Cluster Subdivision (Project Area) Yarmouth Massachusetts (Town/City)(State) STANDARD AGREEMENT Page 1 Ewhi\044 15 SECTION 1 - GENERAL The PAL, Inc. is the prime consultant for the project and is responsible for administering and coordinating all services, including those of other consultants and contractors, involved in the archaeolo- gy for the project. The PAL, Inc. is responsible for insuring that the documentation and results conform to all feder- al, state and local regulations and requirements that apply to this project. The PAL, Inc.'s communications with any other parties concerned with the project will be through or with the knowledge of the CLIENT. SECTION 2 - SERVICES OF THE PAL, INC. The PAL, Inc. will provide the services described in the proposal for the project (Exhibit A, tached) in accordance with the terms and conditions of this AGREEMENT. The PAL, Inc. may alsc required to fulfill terms and conditions specified in permits for archaeological investigations issued by State or Federal agencies. Copies of these permits will be provided to the CLIENT upon request. SECTION 3 - RESPONSIBILITIES OF THE CLIENT The CLIENT will: 3.1 Provide PAL, Inc. with access to all data and records under the CLIENT's control pertaining to the archaeological services. These could include, but not be limited to, plans, maps, photos, boring logs, soil tests, environmental studies, or other archaeologi- cal studies. 3.2 Consult with the PAL, Inc. on any changes in the scope of work for the project as it pertains to the archaeological services. For example, an increase or decrease in the amount of area to be developed would affect the scope of the archaeological services. 3.3 Arrange permission for the PAL, Inc. to enter upon to survey or excavate on her property involved in the project. 3.4 Arrange for the erection of snowfencing during construction so that no other parts of the site are impacted during construction. SECTION 4 - PERIOD OF SERVICES The period of service for this project is described in the project schedule part of the proposal (see Exhibit A). 4 lu„,.,gr, #Preject ochcdulco that include ficld invatigationi arc subject to change,lee te-enfereseen-weather conditioni (prolonged pcriodo of oub frcozing tomporaturo€ or nin, hoan' cnow ·Fa#:•ery·higl¥,hee-nel humidity, otc.) or othcr natural cvcntc (floodc, foroct firoc, otc.)- If project schedules have to be revised, PAL Inc. will notify the CLIENT as soon as possible. STANDARD AGREEMENT Page 2 1 661 El +G M l..uVt=p -174 PMb DH14 <Asmogwk4 1,17,AdMiC U33042 01 1,aIMA:49.,4/ 14¢Ao@MOAW SECTION 5 - TERMS OF PAYMENTS The terms of payments to the PAL, Inc. will be: 5.1 The CLIENT will be billed as follows: Paid herewith $10,000.00 Upon completion of all data recovery work in the field on lots 6,8, and Smiths Point Road $10,000.00 Upon delivery to client of the release from MHC described in paragraph 14 of the Archaeology Agreement of even date $ 9,302.00 Total $29,302.00 5.2 All invoices are due immediately upon receipt. Any payments past thirty (30) days due will be charged an additional 1.5% per month interest (18% per annum). 5.3 If payments become sixty (60) days past due PAL, Inc. will cease work on the project. Work will recommence when all payments have been brought up to date. SECTION 6 - GENERAL PROVISIONS 6.1 This AGREEMENT can be terminated by either party upon ten (10) working days' written notification to the other party in the event of substantial failure by either party to perform in accordance with this AGREEMENT through no fault of the other party. In any case, the PAL, Inc. will be paid for all services rendered until termination of the contract. 6.2 Every reasonable effort will be made to resolve disputes by consultation between the CLIENT and the PAL, Inc. 6.3 Records of the PAL, Inc.'s costs and expenses for this project will be kept on the basis of a generally accepted accounting method. Records of the archaeological inves- tigations will be kept in a manner consistent with professional standards as outlined by the Advisory Council on Historic Preservation. Both sets of records may be inspected upon written request of the CLIENT and written approval of the PAL Inc. 6.4 The PAL, Inc. will obtain and maintain the forms of insurance necessary to per- form this project. Special insurance coverage that may be required for the project will be charged as a part of the project's costs. Through these forms of insurance, the PAL, Inc. will indemnify and save harmless the CLIENT and their agents and employees from and against any claim, demand or cause of action of every name or nature arising out of error, omission or negligent act of PAL, Inc., its agents or employees in the performance of the services under this AGREEMENT. STANDARD AGREEMENT Page 3 6.5 The PAL, Inc. will not delegate its duties under this AGREEMENT without written consent of the CLIENT. If this delegation is specified in the proposal (Exhibit A, at- tached), this AGREEMENT will serve as written consent by the CLIENT. 6.6 The controlling law of the AGREEMENT will be Massachusetts. 6.7 This document, including the exhibits referenced and attached, constitutes the entire AGREEMENT between the CLIENT and PAL, Inc. there are no conditions, agree- ments of representations between parties except those expressed herein. It is not the intent of the parties to this agreement to form a partnership or joint venture. 6.8 This AGREEMENT may be revised or amended or repealed only by a duly executed written instrument. Minor changes to the AGREEMENT may be made on this document if initialed by representatives of both parties. SECTION 7 - SPECIAL PROVISIONS 7.1 Ownership of artifacts and archaeological records involved with this project will be determined by the law of the place where the project is located. The PAL, Inc. will serve as the temporary repository for the artifacts and records until directed in writing to deliver them to another authorized repository. In the event the artifacts and archaeologi- cal records are the property of the CLIENT, any costs associated with storage, packag- ing, shipping or insuring the artifacts and records which are incurred sixty days after PAL, Inc. gives written notice to CUENT it no longer needs custody of them, and which costs are not specified in this AGREEMENT or in the proposal (exhibit A attached), will be an extra charge to the CLIENT." 7.2 Upon submission of the final report(s) or project termination, the PAL, Inc. will have the right to copyright, license, publish or otherwise disseminate data and results of. this project. The PAL, Inc. agrees to recognize the CLIENT's involvement in the project. IN WITNESS WHEREOF the parties hereto have made and executed this AGREEMENT as of the day and year first written above. For the PAL, Inc.For the CLIENT 86*not. 0.-08-0 (Signature) (Si Deborah C. Cox President (Name)(ritle) Fave He 9. Seheuch - (Narhe)(Title) STANDARD AGREEMENT Page 4 0at*) i A 0 ./*af' ii i August 29, 1990 Yarmouth Sub-committee Pirates Cove and Smith Pt., DRI Sub committee members present: Vicki Lowell, Carol Jacobson, David Ernst, and Don Near Absent: Jim Falla Commission staff: Dorr Fox, Tom Cambereri Smith Point project representatives: Mr. Allan Scheuch, Chris Reel, Judy Wall, and Jim Freemen from I.E.P., Inc., Mr. George Dallas, esq. Also present representing Pirates Cove was Ed. Sweeney. Smith Point Meeting opened: 4:54 p.m. Reel-responded to staff comments. Existing dock is properly liscensed. No exact locations for proposed 2 new docks. We feel the boat traffic will not harm water quality, and the proposed docks are properly handled at the local level with the Conservation Commission and Natural Resource office. Enter into recored the memorandum of August 29, 1990 from IEP Lowell- Why can Field's Pt. tell you how many docks you can have? Dallas-They were ahead of the permiting, however this is all part of the big plan of the· developing of Great Island. Jacobson- Is the existing dock part of Fields Pt. property? Dallas- No, it's the Scheuchs. Falla- Would the new piers serve anyone else other than these 8 eight lots? Dallas-No. Discussion of intended use of the.docks/piers followed. Lowell- At this point she didn't want to approve of deny the two proposed docks. Reel-Again we feel the local and state permits will protect the resource areas. Falla-We would probably want to say not more than a certain # of docks and they or it will be only so long. Ernst- Wants to hear from the staff on the environmental aspects. -rl ./1 Fox-Summarized the staff comments. The final issue is on the number of docks. Lisa Hanscom was unable to be here today, however she would be the better person to address the issue as she has the environmental biology backround. However, staff feels that there should be no more than the existing dock and it should serve as a community dock. Remembering that the Commission needs to look at betterments over detriments. Falla and Lowell-Wouldn't have a problem with one additional dock. Lowell-What would be a reasonable height limit. Freeman- That would be taken care of later in the process. Reel- That is one of the concerns of the local Conservation Commission and will be handled as an individual Notice of Intent for each lot. Ernst- Are these depths mean low? Reel-I believe that they are mean depths. I agree with all of Lisa's concerns, however I feel they will be dealt with at the local and state permiting bodies. Discussion of local permiting and county permiting authorities followed. Falla- If the proponent could go back and work with the staff on a comprimise, say one dock instead of two I think that would be appropriate, of course you may not be able to reach an agreement. Then a set of conditions could be made for our next meeting on all the points. Dallas- All the Scheuchs believe in the Cape Cod Commission, however we feel that your concentration on this small project is a waste of the Commissions time· Camberari-In regards to the 5ppm standard, that was done for public supply wells over several hundred acres. Obviously that's not what we have here, we are looking at marine water quality, and private wells. We need to get the data on the ground water flow patterns and flushing rates of the Cove. In regard to the information provided, there appears to be sufficient flushing in the Cove to deal with the nitrog'en loading. Robertson- Chairman of the Yarmouth planning board. We do not offer comments on Ch. 91 issues. The planning board will not approve of the subdivision until the Board of Health says there happy. We've spent over two years reviewing this project. Without waivers on many issues out here, this project is dead in the water. If this project does get the waivers and go through the planning board, you will see a very detailed plan. Lowell-In your role on the .planning board, are there any issues you would want this Commission to address? The proposal as seen, on the issues that the planning board can legally look at, we don't have a problem resolving this plan. Robertson- Discussed the role of the planning board and the CC Commission. Benjamin Thomas- Homeowners association of Great Island. We are in favor of the project. Robertson-speaking not as a town official, but a a member of the public. Discussed how caring this family as far as the development of the Town goes. Falla-Has everyone had their say? DRA ..-1 DRAFT No comments from public, staff or proponent. Let's make a motion to continue this matter untill 2:15 on September 13 at the offices of the , Cape Cod Commission. With the recommendation that the proponent and the staff work together towards coming up with agreed upon conditions as discussed within this meeting. Motion: seconded. Vote: All in favor. Lowell- I'd like to see some language that encourages a height restriction. Ernst- I think the conditions to be drawn up include: language regarding the conservation restriction remaining in perpetuity, no further subdivision, single family hornes, something with regards to the building envelope, height restriction language, # of bedrooms with respect to septic, and the dock issue. Dallas-Discussion that the proponent wants two docks, and he sees the sub committee leaning towards one dod<. Falla-We would prefer one dock, however we will lean towards the comments from the staff. See what you can work out with staff, at the next meeting we will consider the information. Falla- I would like to make a motion that we close this meeting, and continue till September 13 at 2:15 p.m. Motion: seconded. Vote: All in favor. Hearing closed at 6:30 DRAFT September 13, 1990 Yarmouth Sub-committee Pirates Cove and Smith Pt.,DRI Sub committee members present: Jim Falla, Vicki Lowell, Carol Jacobson. David Ernst, and Don Near Commission staff present: Lisa Hanscom, Sharon Rooney, Dorr Fox Smith Point project representatives: Mr. and Mrs. Scheuch and their son Allan Scheuch, and Chris Reel and Judy. Wall from I.E.P., Inc. Also present representing Pirates Cove was Ed. Sweeney. Smith Point Hearing opened: 2:15 Falla- The CCC staff have submitted a set of draft conditions for the DRI permit, have the applicants had a chance to review the draft conditions? Chris Reel- Its in progress, we know the substance of the conditions. Falla-Lets review item by item. #1 reads: "Prior to the construction of Smith's Point Road, a conservation restriction on Lot 8 shall be granted in perpetuity by Fayette Scheuch to the Trustees of Reservations, or similar conservation organization, substantially in the form attached hereto as Exhibit A, as agreed to by the Cape Cod Commission." Does the proponent have any problem with that? Reel-No. Falla-#2 reads: "None of the eight lots in the development may be further subdivided in order to facilitate additional residential, commercial or industrial buildings (but this condition shall not prohibit subdivision to accomplish relocation of lot lines or to permit additional "non- buildable" lots);" Does the proponent have any problem with that? Reel-No. Falla-#3 reads: "Lots 1 through 7 shall be used only for residential purposes and such other purposes ancillary thereto as permitted under the Yarmouth Zoning By-Law from time to time;" Does the proponent have any problem with that? Reel-No. Falla-#4 reads: "No residential structure shall be placed on Lots 1, 2,3, or 4 except in the "Approximate Building Envelope" shown on the plan entitled "development Plan for Smith's Point Subdivision" by I.E.P., Inc. dated April 19, 1990, included in the DRI application;" Does the proponent have any problem with that? Reel-Comment on clarification, not a problem. Would like "building envelopes", described as shaded areas on labled on plan. Falla-#5 reads: "No more than one residential building shall be constructed on Lots 1 and 5. Nothing contained in this decision shall prohibit the construction of guest houses on Lots 2,3,4, 6 and 7. Does the proponent have any problem with that? Reel-No. Lowell-Just for clarification, Lots 6 and 7 now have one house on them?.So this would allow a guest house? Reel-Yes Falla-#6 reads: "Nevertheless, the lots shall be restricted to a maximum number of bedrooms as follows: Lot No.Maximum No. Bedrooms 1 6 2 8 3 8 4 8 5 7 6 7 7 12 8 0 Does the proponent have any problem with that? Reel-No. Lowell, Jacobson- Are there 12 existing bedrooms within the existing hoose now? Reel-Yes. Jacobson-the total number of bedrooms concerns me. The total equals 56 bedrooms. However the 12 bedrooms on one lot botheres me the most, however I didn't realize that it was an existing house. Falla-#7 reads: "The proponent will develop a site-specific water table map of the site for use in selecting the optimum locations for and identifying the on-site septic systems and wells to be agreed to by the Cape Cod Commission." Is this alright with the proponent? Reel-Yes. Lowell-What does "as agreed to by the Commission" mean? Hanscom-The proponent has not finalized the well and septic Falla- It contemplates continuing scrutiny by the Commission, so that the project follows the letter and spirit of the Development permit which may be issued. UKP DRAFT Reel- Specific septic designwill not be provided at this point. We will be providing a water table map which will expain why we feel the general locatioh of the septic facilities is acceptable. Lowell- It should say that the proponent will provide the water table map and the sites for proposed septic placement. Reel, Hanscom, Falla-O.K. Falla-#8 reads: 'The construction of new buildings on Lots 1 through 7 shall be subject to architectural restrictions substantially similar to the "Smith's Point Architectural Guidelines as set forth in Exhibit B hereto;" Does the proponent have any problem with that? Reel-No. Falla-#9 reads: "Maximum building height shall be 30' from the plain of the first floor level but in no event shall more than 50% of the ridge poles on any structure be above 26 feet." Does the proponent have any problem with that? Wall and Hanscom-This one may need more work. Wall-What I'd like to request is td allow the flexability to build stair towers, etc. which would punctuate the skyline. Falla- Something like a cupola? Wall-We would like to draw up the condition so it would allow a percentage of the building to be built between 28-35 feet. Hanscom- Do you know the height of the tree line? Reel- It is variable, from lot to lot. Falla-Height restrictions are problamatic. The grade is one of the problems that we have defining. Wall- Usually it is limited to average grade, or six inches below the first floor. Falla-Well, lets move on, and leave that one for some fine tuning. Falla- #10 reads: "There is currently one dock/wharf owned by Fayette Scheuch existing on Uncle Robert's Cove. This structure may be repaired and maintained as long as no additional fill is used. This structure may not be enlarged. No additional docks may be constructed to serve Lots 1, 2,3, 4, 5, 6,7 and 8." I know that this is a problem with you folks, you had originally requested two more additional docks as shown on your original plans. Falla-#11 reads: "The Massachusetts Historical Commission (MHC) finds that the Smith Point Subdivision project area possesses a strong likelihood for containing significant archaeological sites and possibly unmarked human burials, etc. The proponent must complete an intensive (locational) archaeological surveey (950 CMR 70) which is to be conducted in compliance with Section 106 of the National Historic Preservation Act of 1966 (36 CFR 800), Massachusetts General Laws, Chapter 9, Sections 26C-27C, as amended by Chapter 254 of the Acts of 1988 DRAFT (950 CMR 71) and the Massachusetts Environmental policy Act (MEPA). The goal of the survey should be to locate and identify archaeological sites and unmarked burials which may be affected by the proposed development. No development activities, as defined by the Cape Cod Commission Act c. 716 of the Acts of 1989, as amended, Section 2(e), may take place until such survey is completed to the satisfaction of the Cape Cod Commission in consultation with MHC. The results of the survey will be incorporated into the planning stages of development to avoid impacting any burials and sites that may be discovered during the archaeological survey. Have you folks had a chance to react to this? Wall-Yes. We were contacted by the MA Historical Commission, and we have contacted an archaeological lab, and we are working out a proposal, so that is in the process and we hope logo ahead soon. Falla- So is #11 alright with you folks? Wall-Yes. Falla- So, the only problem you folks ha<,e is with the pier and height? Wall-The height is not a real problem, I think we're working towards the same thing. Mr. Scheuch- Why are we moving away from the Town of Yarmouths height restrictions? Falla-Consistent with the philosophy of the Commission Act, it has been recognized that in some cases local bylaws may not recognize regional concerns? Allan Scheuch- So, your idea of making thiRgs better is to lower a building? Falla- That would be an oversimplification. of the scope of what we're doing. We're looking at the entire project from a regional perspective. The height could impact the views from the regional waters surrounding the site. Allan Sheuch- The proportion of any building is important, that's why we mentioned the 50%. A chiminy would raise above the roof line. Lowell- I don't believe that a chiminy is included in building height definitions. Ernst- I have a problem with using the first floor. Could we use the natural grade? Wall- We would like to use proposed grade. Lowell, Jacobson, Ernst- No, we believe it should be left at average natural grade. Falla-What is the subcommittees desire at this point as far as making a recommendation to the full Commission. Should we close the hearing at this point, understanding that these conditions, with a little fine tuning, are acceptable to the us and the applicatant, except for the pier issue. Would it be appropriate for us to make a motion that we recommend that the Commission approve this project for a Development permit conditioned as set forth in the Draft of September 13,1990, with the idea that the proponent and staff fine tune todays conditions by the time of the full Commission hearing? And that the Commission will have to decide the piedwharf issue? Ernst-Where did we leave the pier issue? DRAFT Falla-That would be one of the things which staff and the proponent would work on. Lowell- I think we owe it to the Commission to make a recommendation of the pier issue. Usa was not at our initial hearing and I would like to hear her recommendations. We raised the issue of possibly allowing one dock. Falla-Lisa, are you aware that we thought one dock would be O.K. for this area? And if so why did you come up with this? Hanscom-The staff strongly felt that the existing pier/wharf is large enough to serve the seven lots. The pier leading out to the wharf is 105 feet long, and the wharf extendsout 72 additional feet and is approximately 12 feet wide. Additional floats are tied off of the wharf. This wharf is a solid fill wharf which directly takes up 924 square feet of public tidelands. This area forever lost to shellfishing and navigation. MA CZM and EOEA recommend that proponents look at community docks. The more lots to the dock, the better 'policed' the pier. Neighbors tend to insure that only dinghies are tied up to the sides of the pier while the end float, in the deepest water is only used a drop off/pick up area for larger boats. This keeps the larger draft boats I from dredging up the shallows, stirring up sediments and creating anoxic 'dead' holes. Again, staff strongly felt that the existing dock was large enough to serve the entire 7 lots. Falla-one of the concerns of the sub-committee was, not disagreeing from the idea that the fewer piers the less disturbance to the resource area, but that the placement of the existing wharf doesn't lend itself to utilization by the community as well as a more centralized location. So therefore a comprimise of maybe allowing one new pier instead of two may be appropriate for this project. Vicki, you raised the question, what do you think? Lowell-By looking at the plan you can see that the existing dock is at one end of the subdivision and I don't see how an access could be designed without impacting on the livability of the house that is there. 1 think it could be a hardship. Obviously if you were building a new subdivision from scratch you wouldn't put the dock there, but this one is existing. Hanscom-Again, this is the way the subdivision has been set up. If it were set up differently you might be able to make access to the pier more appealing. Reel-I don't think so. This is adjacent to property not owned by the Scheuchs, so we couldn't build in a different way. Hanscom- Another option which might allow another pier to be built, would be to redesign the existing pier into a pile supported pier. While this might have some immediate impacts on the water quality in the area, in the long run it would open up that 924 square foot area for shellfishing. However, in discussions with Chris, he said that was not an option they would like to pursue. Ernst-What does this seasonal mean? Reel-That you would remove the structure each fall. Ernst- I'm very sympathetic to people who like to use the water, but I'm going to have to vote in favor of not having any new structures. Jacobson, Falla-How many mooring permits are there now? Reel-Approximately 10, but they're not all in this part of Uncle Roberts Cove. DRAFT There was discussion as to whether or not the bottom measurements were figured with Mean high, mean, or mean low water. It was not decided. Reel-We would like to propose that we be allowed one new dock, the exact location to be decided on by the local Conservation Commission and Harbor Master. Falla-In order to move on, would any one like to make a motion? Jacobson-I think that the dock issue should be looked into more Falla-Perhaps we should refer this to the full Commission? Lowell-I'd like to recommend that there be no more than one dock. When there is a lot of history behind a subdivision, we have to take that into consideration. Reel-I believe that to rebuild the existing pier/wharf structure and modify it to a pile supported structure would incure more erlvironmental damage then leaving it as is. Lowell-I'll make a motion*for allowing no more than one additional dock, and that conditions be put on that dock. Motion: not seconded Reel-Could we continue this, or leave the record open? Lowell- I'd like to withdraw my former motion and make a motion that we recommend against the request for two addditional docks, because I don't want have more than one additional dock. Motion: seconded VOTE: All in favor Near-Where did we leave the building height issue? Falla-I would like to make a motion that we endorse height conditions as discussed, with the 'natural grade'. Motion:seconded VOTE: all in favor Falla- I would also like to make a motion that the subcommittee approves the DRI application with the conditions that staff has drawn up with the modifications discussed today. Reel- would like to continue the subcommittee process Lowell-Could we keep the record open and meet again next week. Fox-Yes, you can do that. Falla- I'd like to make a motion that the subcommittee reconvien on Monday, September 25, 1990 at 2:15. Is that acceptable to subcommittee members and to the proponents? Motion: seconded 1 VOTE: All in favor. DRAFT Falla-I'd like to make a motion to close the public hearing but leave the record open for additional information untill after our meeting on the 25. Lowell-made the above motion. Motion: seconded VOTE: All in favor. Falla- I'd,like to make a motion that we adjourn this subcommittee hearing. Motion: seconded VOTE: All in favor Hearing Closedat: 2:55 Pirates Cove Hearing Opened: 3:00 Falla-opened Pirates Cove hearing, request for relief for a DRI Exemption under the CCCA Section 12(k) Lowell-I make a motion that we recommend the denial of the Pirates Cove request for the DRI exemption under the CCCA Section 12 (k). Motion: seconded. Falla- any discussion? All those in favor signify by saying aye. VOTE: All in favor Lowell- I make a motion that we recommend the denial of the Pirates Cove request for a Hardship Exemption under the CCCA Section · Motion secohded VOTE: All in favor Discussion of DRI review followes... Falla-Would it not be appropriate for the subcommittee to recommend the denial of the DRI application without prejudice, so that the applicant can continue to pursue local permits, including the appeal now pending before the court. And that when the applicant obtains all permits, they reapply to the Commission. Would anyone see logic in doing that? DRAFT Fox- I would see a problem with that as the Conservation Commission will not hear this until it recieves an approval from the Cape Cod Commission through the DRI process. In addition he can not go before the Board of Appeals until the lawsuit is resolved. Falla-Why can't we give a limited exemption, and it re-establishes the local boards ability to review the project, before it goes through Commission review. Fox.I would like to speak with Don Conners to find out whether or not the Commission couldactually do that. If you wanted to close the hearing and leave the record open until September 25, 1990 at 2:15 we could get that information for you. Lowell- I'd like to make the motion that we close the hearing and leave the record open until the end of the meeting on September 25,1990 at 2:15. Motion seconded. VOTE: all in favor Sweeney- as a point of order, as oral testimony has been closed, I believe that the decision of the entire Commission has to be closed by September 18. Fox-No, its o.k., what your doing is closing the 90 day hearing period, but your leaving the record open which is within the 60 day period. Sweeney- I would also like to state that the statute states that the local boards cannot act on projects once referred to the Commission. Falla-I believe that a judge would say that if they want to give a limited exemption to review it at the local level, what's wrong with that? But I understand what your saying. Sweeney-One more question, did the sub-committee members receive the information that I sent to the Commission. Falla- yes we did. We're going to get an opinion of counsel. Lowell- Are we leaving the record open? Falla-yes Fox-Do you want to go forward with the Exemption recommendations today at the full Commission hearing? Falla-Yes. 1 would make a motion that we close the hearing, keep the record open to September 25, at 2:15, and make our recommendations on the Pirate Cove exemptions to the full Commission today. Motion seconded. VOTE: all in favor Falla-I make a motion to adjourn Motion seconded VOTE: all in favor 2 DRAFT hearing closed at 3:35 p.m. LIH September 24, 1990 Yarmouth Sub-committee Pirates Cove and Smith Pt.,DRI Sub committee members present: Vicki Lowell, Carol Jacobson, David Ernst, and Don Near Absent: Jim Falla Commission staff: Lisa Hanscom, Sharon Rooney, Patty Dailey, Dorr Fox Smith Point project representatives: Mr..Allan Scheuch, Chris Reel from I.E.P., Inc., Mr. George Dallas, esq. Also present representing Pirates Cove was Ed. Sweeney. Smith Point Meeting opened: 2:20 p.m. Lowell-Opened the hearing, considering revised draft conditions with sub-committee and applicant. Lets go thru the conditions one by one. Lowell-#1 any Dallas-I implore you to delete the last seven words Our position is that once we have your approval, we do not want to keep coming back like a yo-yo. You or your successors could be completely arbitrary. This would apply to #'s Lowell-You feel it's enough protection for the interests of Cape Cod that the conditions state 'subtantially there-to? So if it wasn't we could come after it. Ernst-What he says sound reasonalbe, but Pcl like to hear from staff Hanscom- I'd prefer to get Patty in on this one. Lowell- #2, does anyone have any comments on this condition? Dallas-I wrote conditions up thru six, that's my language, that's acceptable. #7 I would like to change to as accepted by the Yarmouth Board of Health. Again I am trying to avoid the hurdles we have, they're prodigious as it is. Hanscom-This can be looked at. two ways. You can call it a hurdle, or you can say that instead of holding up the project by not letting you go forward until the map is completed, we are helping the project along by letting the project go forward with this as a condition. This same principle would hold true for the other conditions which state that the Commission should approve the final copy. Ernst-This is a very good point. We certainly don't want to burden a project too much, but we do want to do our job. A DRA -rl -1 DRAFT Dallas- Well for those of you in financial know how, banks won't finance a project if they see this language. We don't want the Commission to jump in at the last moment and make a capricious decision. Lowell-I think this is a very interesting procedural decision. My feeling is on #1, it's not that important. Hanscom-It's more in the Commissions favor for it to be worded like this, and it puts the burden - on the applicant to come to the Commission with the finished product. Lowell-What about wording such as once the the product is finished a copy be supplied to the Commission. Dallas-That's alright with me. Jacobson-I think we need to talk with Patty more, so why don't we move on. Reel- In addition to #7, I can supply, a water table map to the Commission within a few days. But we can't supply a new map for when the parcels are finally developed. We will do that at the local level with the Conservation Commission and the Boards of Health. Ernst-Do you anticipate that any of these systems will require any mounding? Reel-No Near- Do you feel that the wording is adequate? Reel- We just don't want to have to come back to the Commission later. There are general septic building envelopes provided on the plan. Hanscom- If Chris can get a copy of the water table plan to Tom for the eight lots in the next few days, and it's o.k. with Tom I think that.would be fine. Hanscom- If we could move back to the question of whether or not to add the idea of proponents coming back to the Commission on #1 and the others, because Patty's here. Daily-Our primary concern is that the property remain in perpetuity, and that the land boudaries not change. Dallas and Reel- If it was not in perpetuity, that would constitute a substantial change, and the land boundaries must stay.within a foot or two of the boundary lines shown on the plan. Daily-O.K. Dallas-We have the same problem with #11 Lowell- On the water table map, it should be a finding that a up to date water table map was supplied. Dallas- The third to the last line on # 11 I have a problem with. Again, it's a string to pull us back with. We're going to do an archeaological study iri conjunction with MA Historical Commission, and that should be enough. Dailey-We're directed by the Act to protect archaelogical sites, that's one of the values. Dallas-We'd be glad to give you a copy of the study. Daily-Before any construction or development. Dallas- Well of course, that will have to be done. Lowell-I'm sympathetic to some of your arguments, however you haven't done any of the archaeological study, so we may need to have some dialogue back and forth. The study may turn up nothing, or it could show up something of significance in which case the project may need to be redesigned. Dallas-If there are any substantial changes we would have to come back. Hanscom- The MA Historical Commission they have a lot of strength if a human burial is discovered, however they don't have a lot of strength if it is another type of significant site. In discussions with staff at MA Historical they appreciate that the CC Commission can back up their regs., and possibly strengthen their regs. I think, as Vicki said, that we can accept copies of water table maps, conservation restrictions, etc. However, staff feel very strongly that this wording, and protection of the Capes archaeologic values should be left in the conditions. Dallas-Let me then suggest the insertion of the word 'resonalble'. Daily-That would be fine. A discussion followed about the word 'resonable' Dallas- Needless to say, 10(a) is unacceptable to us. And 10 (b) is o.k. as long as we can massage the wording to let the owners get out to deep enough water. Reel- 1 believe that this does almost get us out to the four foot level. However it might not get us out to four feet depending on where we placed the dock. Rather than have the 100 foot restriction we'd like it to say that it is 'no longer than necessary to get us to four feet of water at low tide. Hanscom-There was discussion at the last sub-committee meeting as to what datum the plan was drawn to, the depths were done during mean low water. Jacobson-We need to define whether we mean 100 feet from the water edge of the marsh or the upland edge of the marsh. 0 Reel- Well, you wouldn't get out to four foot water if you went 100 feet from the upland. You could say either 100 feet from the mean low water line or out to a depth of four feet. We wouldn't have a problem with getting the float out to the four foot depth. Dallas-Has the sub-committee seen my prepared condition on this subject? Hanscom- I don't know if they've all seen the exact wording, but the general idea was discussed. The wording of building the dock to accomodate four thirty foot boats was just to subjective. Ernst-So, this could extend 100 feet out from MLW? Plus the area needed to cross the marsh, so this could be over 200 feet long? Reel-The Conservation Commissions will require that you place the boardwalk over the marsh. 3.DRAFT I can't see the total structure being over 200 feet. Jacobson- So we are back to a 200 foot dock. Ernst- You should relate it to the amount of water needed at low tide. Have we decided to allow one additional dock? Jacobson, Lowell- I don't think we've decided that yet. Hanscom- As I stated before, the staff is strongly recommending 10 (a), which would not allow an additional dock. The reason we came up with 10 (b) was to limit the size of the proposed dock if the sub-committee decided to vote in favor of an additional dock. The depth of the water, and the maximum size of the float were taken from the CZM pier guidelines. Near-I would entertain a motion that we recommend the essence of 10 (b) Motion: not seconded Lowell-I would entertain a motion that we recommend 10 (a) Motion: seconded Discussion followed Lowell- Would like to speak against the motion. Feels that because part of the site is already developed, and there is an existing dock, that it would be a hardship to limit them to that one dock. If the development were starting from scratch, 1 might have a different view. Near- I think it would be an imposition to not allow another dock. Ernst-I would vote against 10(a) too, specifically due to the sites configuration. Lowell-1 would call for a vote. Dallas- I would like to make a case for the clock before you vote. I hope you're looking at the glass as half full not half empty. Here's a lady who is 79 years old, who has been a steward of the land, and is using the land for just four new houses, and donating a large portion to Conservation. If the dock is not permitted, I feel it would consititute a taking. I think that by comprimising by not proposing four new docks and agreeing to one we are being resonable. Hanscom- While yes it is great that they are giving some property to Conservation, it is questionable whether or not that property could have been built on due to its environmental sensitivity. Also, when your talking about peoples rights you're talking about Commonwealth tidelands with relation to the dock situation. The public has the right to use the area for shellfishing, boating ete. Finally, within the Commission Act itself, in section 13 it states that when considering a DRI do the benifits outway the detriments. Lowell-The motion was that we recommend in a sense 10 (a). VOTE: 1 in favor, 3 opposed Ernst and Lowell- So, we've decided not to recommend 10 (a) DRAI Ernst-We need to reword 10(b) so that it doesn't go beyond the four foot depth. Lowell- At a minimum people want a clock to be able to pick up and drop off, at some tide, not every tide. Ernst-Can we talk about the pier width? Hanscom-CZM pier guidelines suggest a four foot width. Lowell- Can you and Chris come up with what were talking about. Ernst- So we'll stick to the CZM ACEC guidelines as far as pier size etc.? Jacobson-When does this need to come up to the full Commission? Hanscom-Staff recommends that this wait until the October 11 th hearing, so that we can mail out some of the minutes and conditions to let them study ·the project ahead of time, rather than just have the sub-committee make an oral statement today. Lowell-My feeling is that we don't need to keep the record open any more, but that the conditions be drafted up as discussed. Ernst-I would like to have something drafted up in the decision that would state the only reason another dock was allowed was for this very specific site. The distance measurement should be defined as back from the 4 foot MLW depth. Jacobson-Does that include the float? Hanscom-I would say that the end of the ramp leading to the float should not be passed the four foot depth. Lowell-Can we designate one of us to go over the finalized conditions? Near- Volunteered. Jacobson-Are we including the 300 square foot float restriction. Lowell-Yes Reel and Dallas- Would like a larger float Lowell- I think we've agreed to the 300 square foot limit on the float, the width of the pier, etc. and that Lisa can fine tune the condition with Chris and Don Near. Jacobson- Moved that these conditions be accepted with the changes as discussed today. Motion: seconded VOTE: all in favor This will come before the Commission on October 11, 1990. Meeting closed: 3:25 p.m. DRA .. September 24, 1990 Yarmouth Sub-committee Pirates Cove and Smith Pt., DRI Sub committee members present: Vicki Lowell, Carol Jacobson, David Ernst, and Don Near Absent: Jim Falla Commission staff: Lisa Hanscom, Sharon Rooney, Patty Dailey, Dorr Fox Smith Point project representatives: Mr. Allan Scheuch, Chris Reel from I.E.P., Inc., Mr. George Dallas, esq. Also present representing Pirates Cove was Ed. Sweeney. 2. None of the eight lots in the development may be further subdivided in order to facilitate additional residential, commercial or industrial buildings (but this condition shall not prohibit subdivision to accomplish relocation of lot lines or to permit additional "non-billable" lots) ; 3. Lots 1 through 7 shall be used only for residential purposes and such other purposes ancillary thereto as permitted under the Yarmouth Zoning By-Law from time to time; 4. No residential structure shall be placed on Lots 1,2,3 or 4 except in the "Approximate Building Envelope" (approximate house and septic areas shown as shaded areas on plan) deliniated on the plan entitled "Development Plan for Smith's Point Subdivision" by I.E.P., Inc. dated April 19, 1990, included in the DRI application; 5. No more than one residential building shall be constructed on Lots 1 and 5. Nothing contained in this decision shall prohibit the construction of guest houses on Lots 2,3,4,6 and 7. 6. Nevertheless, the lots shall be restricted to a maximum number of bedrooms as follows: Lot No.Maximum No. Bedrooms 1 6 2 8 3 8 4 8 5 7 6 7 7 12 8 0 8. The construction of new buildings on Lots 1 through 7 shall be subject to architectural restrictions substantially similar to the "Smith's Point Architectural Guidelines as set forth in Exhibit B hereto; 9. Maximum building height shall be 35' from the average existing grade but in no event shall more than 50% of the structure be constructed between 28' and 35' in height above grade. 11.One additional pier/float structure may be constructed to serve Lots 1,2,3, and 4. The maximum length of the pier and ramp structure may not exceed beyond the four (4) foot contour line (according to mean low water datum) . The width of the pier and ramp may not exceed four (4) feet. An attached seasonal float(s) may not exceed a total of 300 sq. feet in size. The pier/float structure and location, if approved at the local level, should be designed in accordance with the Town of Yarmouth Conservation Commission and Natural Resource department guidelines. Smith Point Meeting opened: 2:20 p.m. Lowell-Opened the hearing, considering revised draft conditions with sub-committee and applicant. Lets go thru the conditions one by one. Lowell-#1 any problems with this? "Prior to the construction of Smith's Point Road, a conservation restriction on Lot 8 shall be granted in perpetuity by Fayette Scheuch to the Trustees of Reservations, or similar conservation organization, substantially in the form attached hereto as Exhibit A, as agreed to by the Cape Cod Commission;" Dallas-I implore you to delete the last seven words Our position is that once we have your approval, we do not want to keep coming back like a yo-yo. You or your successors could be completely arbitrary. · This would apply to #'s Lowell-You feel it's enough protection for the interests of Cape Cod that the conditions state 'subtantially there-to? So if it wasn't we could come after it. Ernst-What he says sound reasonalbe, but I'd like to hear from staff Hanscom- I'd prefer to get Patty in on this one. Lowell- #2, does anyone have any comments on this condition? Dallas-1 wrote conditions up thru six, that's my language, that's acceptable. #7 1 would like to change to as accepted by the Yarmouth Board of Health. Again I am trying to avoid the hurdles we have, they're prodigious as it is. #7."The proponent will develop a water table map of the site for use in selecting the optimum locations for and identifying the on-site septic systems and well locations, to be agreed on by the Cape Cod Commission." Hanscom-This can be looked at two ways. You can call it a hurdle, or you can say that instead of holding up the project by not letting you go forward until the map is completed, we are helping the project along by letting the project go forward with this as a condition. This same principle would hold true for the other conditions which state that the Commission should approve the final copy. Ernst-This is a very good point. We certainly don't want to burden a project too much, but we do want to do our job. Dallas- Well for those of you in financial know how, banks won't finance a project if they see this language. We don't want the Commission to jump in at the last moment and make a capricious decision. Lowell-I think this is a very interesting procedural decision. My feeling is on #1, it's not that important. Hanscom-It's more in the Commissions favor for it to be worded like this, and it puts the burden on the applicant to come to the Commission with the finished product. Lowell-What about wording such as once the the product is finished a copy be supplied to the Commission. Dallas-That's alright with me. Jacobson-I think we need to talk with Patty more, so why don't we move on. Reel- In addition to #7, I can supply a water table map to the Commission Within -a few days. But we can't supply a new map for when the parcels are finally developed. We will do that at the local level with the Conservation Commission and the Boards of Health. Ernst-Do you anticipate that any of these systems will require any mounding? Reel-No Near- Do you feel that the wording is adequate? Reel- We just don't want to have to come back to the Commission later. There are general septic building envelopes provided on the plan. Hanscom- If Chris can get a copy of the water table plan to Tom for the eight lots in the next few days, and it's o.k. with Tom I think that would be fine. Hanscom- If we could move back to the question of whether or not to add the idea of proponents coming back to the Commission on #1 and the others, because Patty's here. Daily-Our primary concern is that the property remain in perpetuity, and that the land boudaries not change. Dallas and Reel- If it was not in perpetuity, that would constitute a substantial change, and the land boundaries must stay within a foot or two of the boundary lines shown on the plan. Daily-O.K. Dallas-We have the same problem with #11 #11 "The Massachusetts Historical Commission (MHC) finds that the Smith Point Subdivision project area possesses a strong likelihood for containing significant archaeological sites and possibly unmarked human burials, etc. The proponent must complete an intensive (locational) archaeological survey (950 CMR 70) which is to be conducted in compliance with Section 106 of the National Historic Preservation Act of 1966 (36 CFR 800), Massachusetts General Laws, Chapter 9, Sections 26C-27C, as amended by Chapter 254 of the Acts of 1988 (950 CMR 71) and the Massachusetts Environmental Policy Act (MEPA). The goal of the survey should be to locate and identify archaeological sites and unmarked burials which may be affected by the proposed development. No development activities, as defined by the Cape Cod Commission Act c. 716 of the Acts of 1989, as amended, Section 2(e), may take place until such survey is completed to the satisfaction of the Cape Cod Commission in consultation with MHC. The results of the survey will be incorporated into the planning stages of development to avoid impacting any burials and archaeological sites that may be discovered during the archaeological survey. " Lowell- On the water table map, it should be a finding that a up to date water table map was supplied. Dallas- The third to the last line on # 11 I have a problem with. Again, it's a string to pull us back with. We're going to do an archeaological study in conjunction with MA Historical Commission, and that should be enough. Dailey-We're directed by the Act to protect archaelogical sites, that's one of the values. Dallas-We'd be glad to give you a copy of the study. Daily-Before any construction or development. Dallas- Well of course, that will have to be done. Lowell-I'm sympathetic to some of your arguments, however you haven't done any of the. archaeological study, so we may need to have some dialogue back and forth. The study may turn up nothing, or it could show up something of significance in which case the project may need to be redesigned. Dallas-If there are any substantial changes we would have to come back. Hanscom- The MA Historical Commission they have a lot of strength if a human burial is discovered, however they don't have a lot of strength if it is another type of ·significant site. In discussions with staff at MA Historical they appreciate that the CC Commission can back up their regs., and possibly strengthen their regs. I think, as Vicki said, that we can accept copies of water table maps, conservation restrictions, etc. However, staff feel very strongly that this wording, and protection of the Capes archaeologic values should be ·left in the conditions. Dallas-Let me then suggest the insertion of the word 'resonalble'. Daily-That would be fine. A discussion followed about the word 'resonable' Lowell- Dock issue: "10(a) There is currently one pier/wharf owned by Fayette Scheuch existing on Uncle Robert's Cove. The dock/wharf is deliniated on the plan entitled "Development Plan for Smith's Point Subdivision" by I.E. P., Inc. dated April 19, 1990, included in the DRI application. This structure may be repaired and maintained. This structure may not enlarged. No additional pier/floats may be constructed to serve lots 1, 2, 3, 4,5, 6, 7, and 8." "10 (b) There is currently one pier/wharf owned by Fayette Scheuch existing on Uncle Robert's Cove. The dock/wharf is deliniated on the plan entitled "Development Plan for Smith's Point Subdivision" by I.E.P., Inc. dated April 19, 1990, included in the DRI application. This structure may be repaired and maintained. This structure may not enlarged. No additional pier/floats may be constructed to serve lots 5,6,7, and 8." One additional pier/float may be constructed to serve Lots 1,2,3, and 4. The pier structure may not exceed 100' from the edge of the saltmarsh. An attached seasonal float may not exceed 300 sq. feet in size. The pier/float structure site design should be done in consultation with the Town of Yarmouth Conservation Commission and Natural Resource Officer." Dallas- Needless to say, 10(a) is unacceptable to us. And 10 (b) is o.k. as long as we can massage the wording to let the owners get out to deep enough water. Reel- I believe that this does almost get us out to the four foot level. However it might not get us out to four feet depending on where we placed the dock. Rather than have the 100 foot restriction we'd like it to say that it is 'no longer than necessary to get us to four.feet of water at low tide. Hanscom-There was discussion at the last sub-committee meeting as to what datum the plan was drawn to, the depths were done during mean low water. Jacobson-We need to define whether we mean 100 feet from the water edge of the marsh or the upland edge of the marsh. Reel- Well, you wouldn't get out to four foot water if you went 100 feet from the upland. You could say either 100 feet from the mean low water line or out to a depth of four feet. We wouldn't have a problem with getting the float out to the four foot depth. Dallas-Has the sub-committee seen my prepared condition on this subject? Hanscom- I don't know if they've all seen the exact wording, but the general idea was discussed. The wording of building the dock to accomodate four thirty foot boats was just to subjective. Ernst-So, this could extend 100 feet out from MLW? Plus the area needed to cross the marsh, so this could be over 200 feet long? Reel-The Conservation Commissions will require that you place the boardwalk over the marsh. I can't see the total structure being over 200 feet. Jacobson- So we are back to a 200 foot dock. Ernst- You should relate it to the amount of water needed at low tide. Have we decided to allow one additional dock? Jacobson, Lowell- I don't think we've decided that yet. Hanscom- As I stated before, the staff is strongly recommending 10 (a), which would not allow an additional dock. The reason we came up with 10 (b) was to limit the size of the proposed dock if the sub-committee decided to vote in favor of an additional dock. The depth of the water, and the maximum size of the float were taken from the CZM pier guidelines. Near-I would entertain a motion that we recommend the essence of 10 (b) Motion: not seconded Lowell-I would entertain a motion that we recommend 10 (a) Motion: seconded Discussion followed Lowell- Would like to speak against the motion. Feels that because part of the site is already developed, and there is an existing dock, that it would be a hardship to limit them to that one dock. If the development were starting from scratch, 1 might have a different view. Near- I think it would be an imposition to not allow another dock. Ernst-I would vote against 10(a) too, specifically due to the sites configuration. Lowell-1 would call for a vote. Dallas- 1 would like to make a case for the dock before you vote. I hope you're looking at the glass as half full not half empty. Here's a lady who is 79 years old, who has been a steward of the land, and is using the land for just four new houses, and donating a large portion to Conservation. If the dock is not permitted, I feel it would consititute a taking. I think that by comprimising by not proposing four new docks and agreeing to one we are being resonable. Hanscom- While yes it is great that they· are giving some property to Conservation, it is questionable whether or not that property could have been built on due to its environmental - sensitivity. Also, when your talking about peoples rights you're talking about Commonwealth tidelands with relation to the dock situation. The public has the right to use the area for shellfishing, boating etc. Finally, within the Commission Act itself, in section 13 it states that when considering a DRI do the benifits outway the detriments. Lowell-The motion was that we recommend in a sense 10 (a). VOTE: 1 in favor, 3 opposed Ernst and Lowell- So, we've decided not to recommend 10 (a) Ernst-We need to reword 10(b) so that it doesn't go beyond the four foot depth. Lowell- At a minimum people want a clock to be able to pick up and drop off, at some tide, not every tide. Ernst-Can we talk about the pier width? Hanscom-CZM pier guidelines suggest a four foot width. Lowell- Can you and Chris come up with what were talking about. Ernst- So we'll stick to the CZM ACEC guidelines as far as pier size etc.? Jacobson-When does this need to come up to the full Cammission? Hanscom-Staff recommends that this wait until the October 11 th hearing, so that we can mail out some of the minutes and conditions to let them study the project ahead of time, rather than just have the sub-committee make an oral statement today. Lowell-My feeling is that we don't need to keep the record open any more, but that the conditions be drafted up as discussed. X Ernst-I would like to have something drafted up in the decision that would state the only reason another dock was allowed was for this very specific site. The distance measurement should be defined as back from the 4 foot MLW depth. Jacobson-Does that include the float? Hanscom-I would say that the end of the ramp leading to the float should not be passed the four foot depth. Lowell-Can we designate one of us to go over the finalized conditions? Near- Volunteered. Jacobson-Are we including the 300 square foot float restriction. Lowell-Yes Reel and Dallas- Would like a larger float Lowell- I think we've agreed to the 300 square foot limit on the float, the width of the pier, etc. and that Lisa can fine tune the condition with Chris and Don Near. Jacobson- Moved that these conditions be accepted with the changes as discussed today. Motion: seconded VOTE: all in ·favor This will come before the Commission on October 11, 1990. Meeting closed: 3:25 p.m. Pirates Cove Meeting Opened 3:30 ©u-uAG€F CCC #TR90046 DATE:September 13, 1990 TO:Subcommittee members RE:DRAFT Proposed Conditions Development of Regional Impact Cape Cod Commission Act APPLICANT:Ms. Fayette Scheuch PRaJECT:Smith Point Subdivision Great Island, Yarmouth MA. 1. Prior to the construction of Smith's Point Road, a conservation restriction on Lot 8 shall be granted. in perpetuity by Fayette Scheuch to the Trustees of Reservations, or similar conservation organization, substantially in the form attached hereto as Exhibit A, as agreed to by the Cape Cod Commission. 2. None of the eight lots in the development may be further subdivided in order to facilitate additional residential, commercial or industrial buildings (but this condition shall not prohibit subdivision to accomplish relocation of lot lines or to permit additional "non-buildable" lots); 3. Lots 1 through 7 shall be used only for residential purposes and such other purposes ancillary thereto as permitted under the Yarmouth Zoning By-Law from time to time; 4. Noresidential structure shall be placed on Lots 1,2,3 or 4 except in the "Approximate Building Envelope" shown on the plan entitled "Development Plan for Smith's Point Subdivision" by I.E.P., Inc. dated April 19,1990, included in the DRI application; 5. No more than one residential building shall be constructed on Lots 1 and 5. Nothing contained in this decision shall prohibit the construction of guest houses on Lots 2,3,4,6 and 7. 6. Nevertheless, the lots shall be restricted to a maximum number of bedro6ms as follows: LQLNA Maximum No. Bedrooms 1 6 2 8 3 8 4 8 5 7 6 7 7 12 8 0 7. The proponent will develop a site-specific water table map of the site for use inselecting the optimum locations for the on-site septic systems and wells as agreed to by the Commission. 8. The construction of new buildings on Lots 1 through 7 shall be subject to architecturalrestrictions substantially similar to the "Smith's Point Archetectural Guidelines as set forth in Exhibit B hereto; g. Maximum building haight shall be 30' from the plain of the first floor level but in noevent shall more than 50% of the ridge poles on any structure be above 26 feet. 10. There is currently one dock/wharf owned by Fayette Scheuch existing on Uncle robert'sCove. This structure may be repaired and maintained as long as no additional fill is used. Thisstructure may not enlarged. No additional docks may be constructed to serve Lots 1,2,3,4,5, 6,7 and 8. 11.The Massachusetts Historical Commission (MHC) finds that the Smith Point Subdivision project area possesses a strong likelihood for containing significant archaeological sites andpossibly unmarked human burials. The proponent must complete an intensive (locational)archaeological surveey (950 CMR 70) which is to be conducted in compliance with Section 106of the National Historic Preservation Act of 1966 (36 CFR 800), Massachusetts General Laws,Chapter 9, Sections 26C-27C, as amended by Chapter 254 of the Acts of 1988 (950 CMR 71)and the Massachusetts Environmental Policy Act (MEPA). The goal of the survey should be tolocate and identify archaeological sites and unmarked burials which may be affected by theproposed development. No development activities, as defined by the Cape Cod Commission Act c.716 of the Acts of 1989, as amended, Section 2(e), may take place until such·survey iscompleted to the satisfaction of the Cape Cod Commission in consultation with MHC. The results of the survey will be incorporated into the planning stages of development to avoid impacting any burials and sites that may be discovered during the archaeological survey. IS NOW THr uAPE COD COMA'.135!ON CAPE COD PLANNING AND ECONOMIC DEVELOPMENT COMMISSION ls·r DISTRICT COURT HOUSE. BARNSTABLE. MASSACHUSETTS 02630 TELEPHONE: 508-362-2511 CCC #EX90046 DATE:September 6, 1990 TO:Board of Selectmen, Town of Yarmouth Ms. Fayett Scheuch West Hartford Conn. Mr. Chris Reel IEP, Inc. RE:*Development of Regional ·Impact Exemption Request, Cape Cod Commission Act, Section 12(k) APPLICANT:Ms. Fayette Scheuch PRCUECT:Smith Point Subdivision Great Island, Yarmouth MA. MAP/PARCEL:Assessors Map 34, Lot A-1 DECISION OF THE CAPE COD COMMISSION SUMMARY The Cape Cod Commission (Commission) hereby denies the application of Ms. Fayette Scheuch for an Exemption under Section 12(k) of the Cape Cod Commission Act (Act), c. 716 of the Acts of 1989, as amended, for the proposed Smith Point Subdivision. The decision is rendered pursuant to the vote of the Commission on August 16,1990. PROJECT DESCRIPTION The project site, known as Smith Point, is part of Great Island within the Town of Yarmouth. The site is bordered by Nantucket Sound, Lewis Bay and Uncle Roberts Cove. The proposed project is designed as an eight-lot single family cluster subdivision within 70 acres. Theproposed subdivision includes three existing single family dwellings, four proposed singlefamily dwellings within 30 acres, and a conservation restriction which will be placed on theremaining 40 acres. The project also involves an existing pier structure and two proposed pier structures. Review of the proposed development by other agencies occured as follows: [1] No filing was required under the Massachusetts Environmental Policy Act, Chapter 30, Sections 61-62H. [2] A preliminary Subdivision Plan for the project has been reviewed and accepted (conditionally) by the Town of Yarmouth Planning Board on September 9, 1987. [3] A Conceptual Development Plan and a Site Plan Approval Application have been submitted to the Town of Yarmouth Site Plan Review Board on April 27, 1990. [4] A Notice of Intent has been submitted to the Town of Yarmouth Conservation Commission on March 31, 1990, for the excavation and installation of piping for potable water transmission to single family home cluster subdivision. PROCEDURAL HISTORY This application for a DRI Exemption under section 12(k) of the Act was filed with the Commission on June 15,1990. A duly noticed public hearing on the application was conducted by the Commission pursuant to Section 5 of the Act on August 16,1990 at 3:00 p.m. in Rooms 11-12 in the Barnstable County Superior Court House, Route 6A, Barnstable, Massachusetts. Materials submitted for the record include the following: An application titled "Cape Cod Commission Development fo Regional Impact Exemption Application, July 1990", received July 27, 1990. This included plans and documents which show the project location, describe the character and environmental effects and document permitting efforts up to the present. Plans included "Preliminary Plan for Smith Point Subdivision", by IEP inc. dated December 13, 1989 with revisions dated 10/19/8911/14/89, and plans titled "Preliminary Plan for Smith Point Subdivision" also by IEP inc. dated 4/19/90 with revisions dated 10/19/89 and 1 1/14/89. These plans document proposed property boundaries, local topography, roadway and utility information and wetland resource delineations reviewed on-site with Mr. Brad Hall, Yarmouth Conservation Commission Agent; two completed ground water studies conducted by Geologic Services Corporation, Orleans, MA.; a water resources protection study for the Town of Yarmouth prepared by IEP, Inc., August 1988; an application titled "Supplemental Information for Cape Cod Commission Development of Regional Impact Exemption Application, 9 August 1990", received August 9,1990; a list of abutters to the proposed development submitted on June 15, 1990. The Commission heard oral testimony from Mr. George Dallas, esq., Gaston & Snow; Ms. Judith T. Wall, IEP, Inc.; Mr. Chris Reel, IEP, Inc.; Mr. Ben Thomas, abutter. Also present we Mr. and Mrs. Scheuch. Mr. Dallas provided the history of the Smith Point site area and described th.e proposed project. He stated that there would be no significant impacts from the construction of the new homes. Ms. Wall and Mr. Reel, presented a plan of the site which highlighted resource areas, building and septic leachate envelopes, and proposed roadways. Mr. Reel spoke about septic flow/nutrient loading and pier impacts on the areas resources. Mr. Reel stated that there would be no significant impacts on the areas resources and further stated that the development, as proposed would not have any regional impacts. CCC staff gave a recommendation of disapproval of the Exemption request based on the projects impacts on regional resources. Mr. Thomas stated that he fully supported ·the Smith Point Subdivision project. JURISDICTION The proposed Smith Point Subdivision qualifies as a Development of Regional Impact (DRI) under Section 12 (c) (3) of the Act. Section 12 (c) (3) requires review of "any development which proposes to divide land of fifty acres or more which was in common ownership as of January first, nineteen hundred and eighty-eight." The application was referred to the Commission by the Town of Yarmouth Planning Board. The application and notices of public hearing relative thereto, the Commission staffs notes and· exhibits and all written submissions received in the course of our proceedings are incorporated into the record by reference. FINDINGS The Commission has considered the exemption application of Ms. Fayette Scheuch for the proposed Smith Point Subdivision, and based on consideration of such application and upon the information presented at the public hearing, makes the following findings pursuant· to Section 12(k) of the Act: 1. The proposed site for development is within a peninsula which is surrounded by Commonwealth tidelands with Nantucket Sound, Lewis Bay and Uncle Roberts Cove being the adjacent waters. Nantucket Sound and Lewis Bay are used extensively by the public for commercial and recreational activities (including public transportation, commercial and recreational boating, fishing, shellfishing, swimming and other water related activities). 2. The area of water between Egg Island and Smith Point is currently being used as a shellfish propogation area by the Town of Yarmouth Natural Resource Department. Uncle Roberts Cove is presently open to both commercial and recreational shellfishing, and is used by recreational boaters. All of these waters are owned and used by the public and are of regional significance. Smith Point's proximity to these regional natural and coastal resources make its location one of regional concern. 3. The potential septic flow combined with the location of the proposed septic systems east of the groundwater divide, which runs along the spine of the penninsula, raises concerns about the cumulative impacts of nitrogen loading to Uncle Roberts Cove and adjacent areas. 4. The project includes an existing pier and float and proposes two new pier structures (one permanent and one seasonal). The inner harbor of Uncle Roberts Cove, as stated previously, is open to both commercial and recreational shellfishing. As stated within the applicants request for an Exemption, the area is also a habitat for many marine invertebrates and wildlife species. Given the small size of the inner part of Uncle Roberts Cove the proposed piers will have a cumulative impact on the areas resources. CONCLUSION Based upon the findings above, the Cape Cod Commission hereby concludes: The location, character and environmental effects of the proposed Smith PointSubdivision will cause it to have significant impacts on the unique natural, coastal and scientificvalues in which there is a regional, state and national interest in. protecting and preserving.The effects of the project may threaten and possibly cause irreparable damage to these values and to the following purposes protected by the Cape Cod Commission Act:·"The conservation and preservation of natural undeveloped areas, wildlife, flora,...; the preservation of coastal resources,...; the protection of groundwater, surface water andocean water quality, as well as the other natural resources of Cape Cod...i" Section 1 (c) of the Act. This conclusion is based on the findings that the projects' septic flow/nutrient loading, pier construction and placement,will have significant impacts on the area water quality and resource areas which are used for recreational and commercial shellfishing and are otherwise of regional significance The Commission hereby denies Ms. Fayette Scheuch a DRI Exemption from the terms and provisions of the Act, pursuant to Section 12(k) of the Act. DateRichard S. Armstrong, Chairman Certification of Proper Notice I hereby certify that the requirements of Section 5(a) & (d) of the Actregarding notice of the public hearing concerning Smith Point Subdivision were fulfilled, as follows: 1. Notice of the public hearing appeared in the Cape Cod Times onThursday, August 2, 1990 and Thursday, August 9, 1990; and 2. Notice of the public hearing was posted in a conspicuous place in the Commissioh's office at the First District Court House, Route 6A, Barstable, MA 02630 and at 3225 Main Street, Barnstable, MA 02630; and 3. Copies of all documents subject to notice were made available at the Commission's offices during normal business hours: and 4. Notice of the. public hearing was mailed as required by Section 5 of the Act. 4911 «p Katharine Peters, Clerk Dat6 ' 91/90 CONCLUSION Based upon the findings above, the Cape Cod Commission hereby concludes: The location, character and environmental effects of the proposed Smith Point Subdivision will cause it to have significant impacts on the unique natural, coastal and scientific values in which there is a regional, state and national interest in protecting and preserving. The effects of the project may threaten and possibly cause irreparable damage to these values and to the following purposes protected by the Cape Cod Commission Act: "The conservation and preservation of natural undeveloped areas, wildlife, flora,...; the preservation of coastal resources '... ;the protection of groundwater, surface water and ocean water quality, as well as the other natural resources of Cape Cod...i" Section 1 (c) of the Act. This conclusion is based on the findings that the projects' septic flow/nutrient loading, pier construction and placement,will have significant impacts on the area water quality and resource areas which are used for recreational and commercial shellfishing and are otherwise of regional significance The Commission hereby denies Ms. Fayette Scheuch a DRI Exemption from the terms and provisions of the Act, pursuant to Section 12(k) of the Act. hitkD9LAO/<14 · Richard S. Armstrong, Chairman pate CAPE COD PLANNING AND ECONOMIC DEVELOPMENT COMMISSION lsT DISTRICT COURT HOUSE. BARNSTABLE. MASSACHUSETTS 02630 TELEPHONE: 508-362-2511 E:UA October 2, 1990 TO:Cape Cod Commission members FROM:Yarmouth Sub-committee and CCC staff RE:Yarmouth Sub-committee recommendations concerning Smith Point Subdivision Development of Regional Impact Great Island, Yarmouth MA The Yarmouth sub-committee will make their recommendations concerning the Smith Point Subdivision DRI application to the full Commission at the October 11, 1990, 3:00p.m, hearing. Enclosed for your review are the minutes from the three Yarmouth sub-committe meetings concerning this project.Also included are the proposed conditions which the subcommittee recommends for the project. P InBllfF CCC #TR90046 DATE:October 2, 1990 TO:Commission members FROM:Yarmouth Sub-committee members RE Proposed Conditions for the Smith Point Subdivision Development of Regional Impact Great Island, Yarmouth MA. The sub-committee is recommending that the DRI application of Fayette Scheuch for the Smith Point Subdivision be approved with the following conditions: 1. Prior to the construction of Smith's Point Road, a conservation restriction on Lot 8 shall be granted in perpetuity by Fayette Scheuch to the Trustees of Reservations, or similar conservation organization, substantially in the· form attached hereto as Exhibit A. A copy of the final agreement shall be provided to.the Cape Cod Commission; 2. None of the eight lots in the development may be further subdivided in order to facilitate additional residential, commercial or industrial buildings (but this condition shall not prohibit subdivision to accomplish relocation of lot lines or to permit additional "non-billable" lots); 3. Lots 1 through 7 shall be used only for residential purposes and such other purposes ancillary thereto as permitted under the Yarmouth Zoning By-Law from time to time; 4. No residential structure shall be placed on Lots 1,2,3 or 4 except in the "Approximate Building Envelope" (approximate house and septic areas shown as shaded areas on plan) deliniated on the plan entitled "Development Plan for Smith's Point Subdivision" ·by I.E.P.,Inc. dated April 19, 1990, included in the DRI application; 5. No more than one residential building shall be constructed on Lots 1 and 5. Nothing contained in this decision shall prohibit the construction of guest houses on Lots 2,3,4,6 and 7. 6. Nevertheless, the lots shall be restricted to a maximum number of bedrooms as follows: LQLNQ.Maximum No. Bedrooms 6 8 8 8 7 7 12 0 7. The proponent will develop a water table map of the site for use in selecting the optimum locations for and identifying the on-site septic systems and well locations. A copy of this map will be provided to the Commission. 8. The construction of new buildings on Lots 1 through 7 shall be subject to architectural restrictions substantially similar to the "Smith's Point Architectural Guidelines as set forth in Exhibit B hereto; 9. Maximum building height shall be 35' from the average existing grade but in no event shall more than 50% of the structure be constructed between 28' and 35' in height above grade. 10.There is currently one pier/wharf owned by Fayette Scheuch existing on Uncle Robert's Cove. The dock/wharf is deliniated on the plan entitled "Development Plan for Smith's Point Subdivision" by I.E.P., Inc. dated April 19, 1990, included in the DRI application. This structure may be repaired and maintained. This structure may not enlarged. No additional pier/floats may be constructed to serve lots 5,6,7, and 8. 11.One additional pier/float structure may be constructed to serve Lots 1,2,3, and 4. The maximum length of the pier and ramp structure may not exceed beyond the four (4) foot contour line (according to mean low water datum) . The width of the pier and ramp may not exceed four (4) feet. An attached seasonal float(s) may not exceed a total of 300 sq. feet in size. The pier/float structure and location, if approved at the local level, should be designed in accordance with the Town of Yarmouth Conservation Commission and Natural Resource department guidelines. 12.The Massachusetts Historical Commission (MHC) finds that the Smith Point Subdivision project area possesses a strong likelihood for containing significant archaeological sites and possibly unmarked human burials, etc. The proponent must complete an intensive (locational) archaeological survey (950 CMR 70) which is to be conducted in compliance with Section 106 of the National Historic Preservation Act of 1966 (36 CFR 800), Massachusetts General Laws, Chapter 9, Sections 26C-27C, as amended by Chapter 254 of the Acts of 1988 (950 CMR 71) and the Massachusetts Environmental Policy Act (MEPA). The goal of the survey should be to locate and identify archaeological sites and unmarked burials which may be affected by the proposed development. No development activities, as defined by the Cape Cod Commission Act c. 716 of the Acts of 1989, as amended, Section 2(e), may take place until such survey is completed to the reasonable satisfaction of the Cape Cod Commission in consultation with MHC. The results of the survey will be incorporated into the planning stages of development to avoid impacting any burials and archaeological sites that may be discovered during the archaeological survey. DRAFT August 29, 1990 Yarmouth Sub-committee Pirates Cove and Smith Pt., DRI Sub committee members present: Vicki Lowell, Carol Jacobson, David Ernst, and Don Near Absent: Jim Falla Commission staff: Dorr Fox, Tom Cambereri Smith Point project representatives: Mr. Allan Scheuch, Chris Reel, Judy Wall, and Jim Freemen from I.E.P., Inc., Mr. George Dallas, esq. Also present representing Pirates Cove was Ed. Sweeney. Smith Point Meeting opened: 4:54 p.m. Reel-responded to staff comments. Existing dock is properly liscensed. No exact locations for proposed 2 new docks. We feel the boat traffic will not harm water quality, and the proposed docks are properly handled at the local level with the Conservation Commission and Natural Resource office. Enter into recored the memorandum of August 29, 1990 from IEP Lowell- Why can Field's Pt. tell you how many docks you can have? Dallas-They were ahead of the permiting, however this is all part of the big plan of the developing of Great Island. Jacobson- Is the existing dock part of Fields Pt. property? Dallas- No, it's the Scheuchs. Falla- Would the new piers serve anyone else other than these 8 eight lots? Dallas-No. Discussion of intended use of the docks/piers followed. Lowell- At this point she didn't want to approve of deny the two proposed docks. Reel-Again we feel the local and state permits will protect the resource areas. Falla-We would probably want to say not more than a certain # of docks and they or it will be only so long. Ernst- Wants to hear from the staff on the environmental aspects. DRAFT Fox-Summarized the staff comments. The final issue is on the number of docks. Lisa Hanscom was unable to be here today, however she would be the better person to address the issue as she has the environmental biology backround. However, staff feels that there should be no more than the existing dock and it should serve as a community dod<. Remembering that the Commission needs to look at betterments over detriments. Falla and Lowell-Wouldn't have a problem with one additional dock. Lowell-What would be a reasonable height limit. Freeman- That would be taken care of later in the process. Reel- That is one of the concerns of the local Conservation Commission and will be handled as an individual Notice of Intent for each lot. Ernst- Are these depths mean low? Reel-1 believe that they are mean depths. 1 agree with all of Lisa's concerns, however I feel they will be dealt with at the local and state permiting bodies. Discussion of local permiting and county permiting authorities followed. Falla- If the proponent could go back and work with the staff on a comprimise, say one dock instead of two I think that would be appropriate, of course you may not be able to reach an agreement. Then a set of conditions could be made for our next meeting on all the points. Dallas- All the Scheuchs believe in the Cape Cod Commission, however we feel that your concentration on this small project is a waste of the Commissions time. Camberari-In regards to the 5ppm standard, that was done for public supply wells over several hundred acres. Obviously that's not what we have here, we are looking at marine water quality, and private wells. We need to get the data on the ground water flow patterns and flushing rates of the Cove. In regard to the information provided, there appears to be sufficient flushing in the Cove to deal with the nitrogen loading. Robertson- Chairman of the Yarmouth planning board. We do not offer comments on Ch. 91 issues. The planning board will not approve of the subdivision until the Board of Health says there happy. We've spent over two years reviewing this project. Without waivers on many issues out here, this project is dead in the water. If this project does get the waivers and go through the planning board, you will see a very detailed plan. Lowell-In your role on the .planning board, are there any issues you would want this Commission to address? The proposal as seen, on the issues that the planning board can legally look at, we don't have a problem resolving this plan. Robertson- Discussed the role of the planning board and the CC Commission. Benjamin Thomas- Homeowners association of Great Island. We are in favor of the project. Robertson-speaking not as a town official, but a a member of the public. Discussed how caring this family as far as the development of the Town goes. Falla-Has everyone had their say? DRAFT No comments from public, staff or proponent. Let's make a motion to continue this matter untill 2:15 on September 13 at the offices of the Cape Cod Commission. With the recommendation that the proponent and the staff work together · towards coming up with agreed upon conditions as discussed within this meeting. Motion: seconded. Vote: All in favor. Lowell- I'd like to see some language that encourages a height restriction. Ernst- I think the conditions to be drawn up include: language regarding the conservation restriction remaining in perpetuity, no further subdivision, single family homes, something with regards to the building envelope, height restriction language, # of bedrooms with respect to septic, and the dod issue. Dallas- Discussion that .the proponent wants two docks, and he sees the sub committee leaning towards one dock. Falla-We would prefer one dock, however we will lean towards the comments from the staff. See what you can work out with staff, at the next meeting we will consider the information. Falla- I would like to make a motion that we close this meeting, and continue till September 13 at 2:15 p.m. Motion: seconded. Vote: All in favor. Hearing closed at 6:30 DAFT September 13, 1990 Yarmouth Sub-committee Pirates Cove and Smith Pt., DRI Sub committee members present: Jim Falla, Vicki Lowell, Carol Jacobson, David Ernst, and Don Near Commission staff present: Lisa Hanscom, Sharon Rooney, Dorr Fox Smith Point project representatives: Mr. and Mrs. Scheuch and their son Allan Scheuch, and Chris Reel and Judy Wall from I.E.P., Inc. Also present representing Pirates Cove was Ed. Sweeney. Smith Point Hearing opened: 2:15 Falla- The OCC staff have submitted a set of draft conditions for the DRI permit, have the applicants had a chance to review the draft conditions? Chris Reel- Its in progress, we know the substance of the conditions. Falla-Lets review item by item. #1 reads: "Prior to the construction of Smith's Point Road, a conservation restriction on Lot 8 shall be granted in perpetuity by Fayette Scheuch to the Trustees of Reservations, or similar conservation organization, substantially in the form attached hereto as Exhibit A, as agreed to by the Cape Cod Commission." Does the proponent have any problem with that? Reel-No. Falla-#2 reads: "None of the eight lots in the development may be further subdivided in order to facilitate additional residential, commercial or industrial buildings (but this condition shall not prohibit subdivision to accomplish relocation of lot lines or to permit additional "non- buildable" lots);" Does the proponent have any problem with that? Reel-No. Falla-#3 reads: "Lots 1 through 7 shall be used only for residential purposes and such other purposes ancillary thereto as permitted under the Yarmouth Zoning By-Law from time to time;" Does the proponent have any problem with that? Reel-No. Falla-#4 reads: "No residential structure shall be placed on Lots 1,2,3, or 4 except in the "Approximate Building Envelope" shown on the plan entitled "development Plan for Smith's Point Subdivision" by I.E.P., Inc. dated April 19,1990, included in the DRI application;" Does the proponent have any problem with that? *RAFT Reel-Comment on clarification, not a problem. Would like "building envelopes", described as shaded areas on labled on plan. Falla-#5 .reads: "No more than one residential building shall be constructed on Lots 1 and 5. Nothing contained in this decision shall prohibit the construction of guest houses on Lots 2,3,4, 6 and 7." Does the proponent have any problem with that? Reel-No. Lowell-Just for clarification, Lots 6 and 7 now have one house on them? So this would allow a guest house? Reel-Yes Falla-#6 reads: "Nevertheless, the lots shall be restricted to a maximum number of bedrooms as follows:" Lot No. .Maximum No. Bedrooms 1 6 2 8 3 8 4 8 5 7 6 7 7 12 8 0 Does the proponent have any problem with that? Reel-No. Lowell, Jacobson- Are there 12 existing bedrooms within the existing house now? Reel-Yes. Jacobson- the total number of bedrooms concerns me. The total equals 56 bedrooms. However the 12 bedrooms on one lot botheres me the most, however I didn't realize that it was an existing house. Falla-#7 reads: "The proponent will develop a site-specific water table map of the site for use in selecting the optimum locations for and identifying the on-site septic systems and wells to be agreed to by the Cape Cod Commission." Is this alright with the proponent? Reel-Yes. Lowell-What does "as agreed to by the Commission" mean? Hanscom-The proponent has not finalized the well and septic Falla- It contemplates continuing scrutiny by the Commission, so that the project follows the letter and spirit of the Development permit which may be issued. ,PRAFT Reel- Specific septic designwill not be provided at this point: We will be providing a water table map which will expain why we feel the general locatioh of the septic facilities is " acceptable. Lowell- It should say that the proponent will provide the water table map and the sites for proposed septic placement. Reel, Hanscom, Falla-O.K. Falla-#8 reads: "The construction of new buildings on Lots 1 through 7 shall be subject to architectural restrictions substantially similar to the "Smith's Point Architectural Guidelines as set fonh in Exhibit B hereto;" Does the proponent have any problem with that? Reel-No. Falla-#9 reads: "Maximum building height shall be 30' from the plain of the first floor level but in no event shall more than 50% of the ridge poles on any structure be above 26 feet." Does the proponent have any problem with that? Wall and Hanscom-This one may need more work. Wall-What I'd like to request is to allow the flexability to build stair towers, etc. which would punctuate the skyline. Falla- Something like a cupola? Wall-We would like to draw up the condition so it would allow a percentage of the building to be built between 28-35 feet. Hanscom- Do you know the height of the tree line? Reel- It is variable, from lot to lot. Falla-Height restrictions are problamatic. The grade is one of the problems that we have defining. Wall- Usually it is limited to average grade, or six inches below the first floor. Falla-Well, lets move on, and leave that one for some fine tuning. Falla- #10 reads: "There is currently one dock/wharf owned by Fayette Scheuch existing on Uncle Robert's Cove. This structure may be repaired and fnaintained as long as no additional fill is used. This structure may not be enlarged. No additional docks may be constructed to serve Lots 1,2,3,4,5,6,7 and 8." I know that this is a problem with you folks, you had originally requested two more additional docks as shown on your original plans. Falla-#11 reads: "The Massachusetts Historical Commission (MHC) finds that the Smith Point Subdivision project area possesses a strong likelihood for containing significant archaeological sites and possibly unmarked human burials, etc. The proponent must complete an intensive (locational) archaeological surveey (950 CMR 70) which is to be conducted in compliance with Section 106 of the National Historic Preservation Act of 1966 (36 CFR 800), Massachusetts General Laws, Chapter 9, Sections 26C-27C, as amended by Chapter 254 of the Acts of 1988 DRAFT (950 CMR 71) and the Massachusetts Environmental Policy Act (MEPA). The goal of the survey should be to locate and identify archaeological sites and unmarked burials which may be affected by the proposed development. No development activities, as defined by the Cape Cod Commission Act c. 716 of the Acts of 1989, as amended, Section 2(e), may take place until such survey is completed to the satisfaction of the Cape Cod Commission in consultation with MHC. The results of the survey will be incorporated into the planning stages of development to avoid impacting any burials and sites that may be discovered during the archaeological survey. Have you folks had a chance to react lo this? Wall-Yes. We were contacted by the MA Historical Commission, and we have contacted an . archaeological lab, and we are working out a proposal, so that is in the process and.we hope to go ahead soon. Falla- So is #11 alright with you folks? Wall-Yes. Falla- So, the only problem you folks ha*e is with the pier and height? Wall-The height is not a real problem, I think we're working towards the same thing. Mr. Scheuch- Why are we moving away from the Town of Yarmouths height restrictions? Falla-Consistent with the philosophy of the Commission Act, it has been recognized that in some cases local bylaws may not recognize regional concerns? Allan Scheuch- So, your idea of making things better is to lower a building? Falla- That would be an oversimplification. of the scope of what we're doing. We're looking at the entire project from a regional perspective. The height could impact the views from the regional waters surrounding the site. Allan Sheuch- The proportion of any building is important, that's why we mentioned the 50%. A chiminy would raise above the roof line. Lowell- I don't believe that a chiminy is included in building height definitions. Ernst- I have a problem with using the first floor. Could we use the natural grade? Wall- We would like to use proposed grade. Lowell, Jacobson, Ernst- No, we believe it should be left at average natural grade. Falla-What is the subcommittees desire at this point as far as making a recommendation to the full Commission. Should we close the hearing at this point, understanding that these conditions, with a little fine tuning, are acceptable to the us and the applicatant, except for the pier issue. Would it be appropriate for us to make a motion that we recommend that the Commission approve this project for a Development permit conditioned as set forth in the Draft of September 13, 1990, with the idea that the proponent and staff fine tune todays conditions by the time of the full Commission hearing? And that the Commission will have to decide the pier/wharf issue? Ernst-Where did we leave the pier issue? DRAFT Falla-That would be one of the things which staff and the proponent would work on. Lowell- I think we owe it to the Commission to make a recommendation of the pier issue. Usa was not at our initial hearing and I would like to hear her recommendations. We raised the issue of possibly allowing one dock. Falla-Usa, are you aware that we thought one dock would be O.K. for this area? And if so why did you come up with this? Hanscom-The staff strongly felt that the existing pier/wharf is large enough to serve the seven lots. The pier leading out to the wharf is 105 feet long, and the wharf extends out 72 additional feet and is approximately 12 feet wide. Additional floats are tied off of the wharf. This wharf is a solid fill wharf which directly takes up 924 square feet of public tidelands. This area forever lost to shellfishing and navigation. MA CZM and EOEA recommend that proponents look at community docks. The more lots to the dock, the better 'policed' the pier. Neighbors tend to insure that only dinghies are tied up to the sides of the pier while the end float, in the deepest water is only used a drop off/pick up area for larger boats. This keeps the larger draft boats from dredging up the shallows, stirring up sediments and creating anoxic 'dead' holes. Again, staff strongly felt that the existing dock was large enough 10 serve the entire 7 lots. Falla-one of the concerns of the sub-committee was, not disagreeing from the idea that the fewer piers the less disturbance to the resource area, but that the placement of the existing wharf doesn't lend itself to utilization by the community as well as a more centralized location. So therefore a comprimise of maybe allowing one new pier instead of two may be appropriate for this project. Vicki, you raised the question, what do you think? Lowell-By looking at the plan you can see that the existing dock is at one end of the subdivision and I don't see how an access could be designed without impacting on the livability of the house that is there. I think it could be a hardship. Obviously if you were building a new subdivision from scratch you wouldn't put the dock there, but this one is existing. Hanscom-Again, this is the way the subdivision has been set up. If it were set up differently you might be able to make access to the pier more appealing. Reel-I don't think so. This is adjacent to property not owned by the Scheuchs, so we couldn't build in a different way. Hanscom- Another option which might allow another pier to be built, would be to redesign the existing pier into a·pile supported pier. While this might have some immediate impacts on the water quality in the area, in the long run it would open up that 924 square foot area for shellfishing. However, in discussions with Chris, he said that was not an.option they would like to pursue. Ernst-What does this seasonal mean? Reel-That you would remove the structure each fall. Ernst- I'm very sympathetic to people who like to use the water, but I'm going to have to vote in favor of not having any new structures. Jacobson, Falla-How many mooring permits are there now? Reel-Approximately 10, but they're not all in this part of Uncle Roberts Cove. ,PRAFT There was discussion as to whether or not the bottom measurements were figured with Mean high, mean, or mean low water. It was not decided. Reel-We would like to propose that we be allowed one new dock, the exact location to be decided on by the local Conservation Commission and Harbor Master. Falla-In order to move on, would any one like to make a motion? Jacobson-I think that the dock issue should be looked into more Falla-Perhaps we should refer this to the full Commission? Lowell-I'd like to recommend that there be no more than one dock. When there is a lot of history behind a subdivision, we have to take that into consideration. Reel-I believe that to rebuild the existing pier/wharf structure and modify it to a pile supported structure would incure more environmental damage then leaving it as is. Lowell-I'll make a motion for allowing no more than one additional dock, and that conditions be put on that dock. Motion: not seconded Reel-Could we continue this, or leave the record open? Lowell- I'd like to withdraw my former motion and make a motion that we recommend against the request for two addditional docks, because I don't want have more than one additional dock. Motion: seconded VOTE: All in favor Near-Where did we leave the building height issue? Falla-I would like to make a motion that we endorse height conditions as discussed, with the 'natural grade'. Motion:seconded VOTE: all in favor Falla- I would also like to make a motion that the subcommittee approves the DRI application with the conditions that staff has drawn up with the modifications discussed today. Reel- would like to continue the subcommittee process Lowell-Could we keep the record open and meet again next week.- Fox-Yes, you can do that. Falla- I'd like to make a motion that the subcommittee reconvien on Monday, September 25, 1990 at 2:15. Is that acceptable to subcommittee members and to the proponents? Motion: seconded VOTE: All in favor. Falla-I'd like to make a motion to close the public hearing but leave the record open for additional information untill after our meeting on the 25. Lowell-made the above motion. Motion: seconded VOTE: All in favor. Falla- I'd like to make a motion that we adjourn this subcommittee hearing. Motion: seconded VOTE: All in favor Hearing Closed at: 2:55 Pirates Cove Hearing Opened: 3:00 Falla-opened Pirates Cove hearing, request for relief for a DRI Exemption under the CCCA Section 12(k) Lowell-I make a motion that we recommend the denial of the Pirates Cove request for the DRI exemption under the CCCA Section 12 (k). Motion: seconded. Falla- any discussion? All those in favor signify by saying aye. VOTE: All in favor Lowell- I make a motion that we recommend the denial of the Pirates Cove request for a Hardship Exemption under the CCCA Section Motion seconded VOTE: All in favor Discussion of DRI review followes... Falla-Would it not be appropriate for the subcommittee to recommend the denial of the DRI application without prejudice, so that the applicant can continue to pursue local permits, including the appeal now pending before the court. And that when the applicant obtains all permits, they reapply to the Commission. Would anyone see logic in doing that? ORAF Fox- I would see a problem with that as the Conservation Commission will not hear this until itrecieves an approval from the Cape Cod Commission through the DRI process. In addition he can not go before the Board of Appeals until the lawsuit is resolved. Falla-Why can't we give a limited exemption, and it re-establishes the local boards ability to review the project, before it goes through Commission review. Fox-1 would like to speak with Don Conners to find out whether or not the Commission couldactually do that. If you wanted to close the hearing and leave the record open until September 25, 1990 at 2:15 we could get that'information for you. Lowell- Pcl like to make the motion that we close the hearing and leave the record open until the end of the meeting on September 25, 1990 at 2:15. Motion seconded. VOTE: all in favor Sweeney- as a point of order, as oral testimony has been closed, I believe that the decision of the entire Commission has to be closed ·by September 18. Fox-No, its o.k., what your doing is closing the 90 day hearing period, but your leaving the record open which is within the 60 day period. Sweeney- I would also like to state that the statute states that the local boards cannot act on projects once referred to the Commission. Falla-I believe that a judge would say that if they want to give a limited exemption to review it at the local level, what's wrong with that? But I understand what your saying. Sweeney-One more question, did the sub-committee members receive the information that I sent to the Commission. Falla- yes we did. We're going to get an opinion of counsel. Lowell- Are we leaving the record open? Falla-yes Fox-Do you want to go forward with the Exemption recommendations today at the full Commission hearing? Falla-Yes. I would make a motion that we close the hearing, keep the record open to September 25, at 2:15, and make our recommendations on the Pirate Cove exemptions to the full Commission today. Motion seconded. VOTE: all in favor Falla-I make a motion to adjourn Motion seconded VOTE: all in favor .DRAI DRAFT hearing closed at 3:35 p.m. UH September 24, 1990 Yarmouth Sub-committee Pirates Cove and Smith Pt., DRI Sub committee members present: Vicki Lowell, Carol Jacobson, David Ernst, and Don Near Absent: Jim Falla Commission staff: Usa Hanscom, Sharon Rooney, Patty Dailey, Dorr Fox Smith Point project representatives: Mr. Allan Scheuch, Chris Reel from I.E.P., Inc., Mr. George Dallas, esq. Also present representing Pirates Cove was Ed. Sweeney. Smith Point Meeting opened: 2:20 p.m. Lowell-Opened the hearing, considering revised draft conditions with sub-committee and applicant. Lets go thru the conditions one by one. Lowell-#1 any Dallas-I implore you to delete the last seven words Our position is that once we have your approval, we do not want to keep coming back like a yo-yo. You or your successors could be completely arbitrary. This would apply to #'s Lowell-You feel it's enough protection for the interests of Cape Cod that the conditions state 'subtantially there-to? So if it wasn't we could come after it. Ernst-What he says sound reasonalbe, but I'd like to hear from staff Hanscom- I'd prefer to get Patty in on this one. Lowell- #2, does anyone have any comments on this condition? Dallas-I wrote conditions up thru six, that's my language, that's acceptable. #7 I would like to change to as accepted by the Yarmouth Board of Health. Again lam trying to avoid the hurdles we have, they're prodigious as it is. Hanscom-This can be looked at two ways. You can call it a hurdle, or you can say that instead of holding up the project by not letting you go forward until the map is completed, we are helping the project along by letting the project go forward with this as a condition. This- same principle would hold true for the other conditions which state that the Commission should approve the final copy. Ernst-This is a very good point. We certainly don't want to burden a project too much, but we do want to do our job. DRA .. \ Dallas- Well for those of you in financial know how, banks won't finance a project if they see this language. We don't want the Commission to jump in at the last moment and make a capricious decision. Lowell-I think this is a very interesting procedural decision. My feeling is on #1, it's not that important. Hanscom-lt's more in the Commissions favor for it to be worded like this, and it puts the burden on the applicant to come to the Commission with the finished product. Lowell-What about wording such as once the the product is finished a copy be supplied to the Commission. Dallas-That's alright with me. Jacobson-I think we need to talk with Patty more, so why don't we move on. Reel- In addition to #7, I can supply a water table map to the Commission within a few days. But we can't supply a new map for when the parcels are finally developed. We will do that at the local level with the Conservation Commission and the Boards of Health. Ernst-Do you anticipate that any of these systems will reqOire any mounding? Reel-No Near- Do you feel that the wording is adequate? Reel- We just don't want to have to come back to the Commission later. There are general septic building envelopes provided on the plan. Hanscom- If Chris can get a copy of the water table plan to Tom for the eight lots in the next few days, and it's o.k. with Tom I think that·would be fine. Hanscom- If we could move back to the question of whether or not to add the idea of proponents coming back to the Commission on #1 and the others, because Patty's here. Daily-Our primary concern is that the property remain in perpetuity, and that the land boudaries not change. Dallas and Reel- If it was not in perpetuity, that would constitute a substantial change, and the land boundaries must stay.within a foot or two of the boundary lines shown on the plan. Daily-O.K. Dallas-We have the same problem with #11 Lowell- On the water table map, it should be a finding that a up to date water table map was supplied. Dallas- The third to the last line on # 11 I have a problem with. Again, it's a string to pull us back with. We're going to do an archeaological study in conjunction with MA Historical Commission, and that should be enough. Dailey-We're directed by the Act to protect archaelogical sites, that's one of the values. DRA D Dallas-We'd be glad to give you a copy of the study. Daily-Before any construction or development. Dallas- Well of course, that will have to be done. Lowell-I'm sympathetic to some of your arguments, however you haven't done any of the archaeological study, so we may need to have some dialogue back and forth. The study may turn up nothing, or it could show up something of significance in which case the project may need to be redesigned. Dallas-If there are any substantial changes we would have to come back. Hanscom- The MA Historical Commission they have a lot of strength if a human burial is discovered, however they don't have a lot of strength if it is another type of significant site. In discussions with staff at MA Historical they appreciate that the CC Commission can back up their regs., and possibly strengthen their regs. I think, as Vicki said, that we can accept copies of water table maps, conservation restrictions, etc. However, staff feel very strongly that this wording, and protection of the Capes archaeologic values should be left in the conditions. Dallas-Let me then suggest the insertion of the word 'resonalble'. Daily-That would be fine. A discussion followed about the word 'resonable' Dallas- Needless to say, 10(a) is unacceptable to us. And 10 (b) is o.k. as long as we can massage the wording to let the owners get out to deep enough water. Reel- I believe that this does almost get us out to the four foot level. However it might not get us out to four feet depending on where we placed the dock. Rather than have the 100 foot restriction we'd like it to say that it is 'no longer than necessary to get us to four feet of water at low tide. Hanscom-There was discussion at the last sub-committee meeting as to what datum the plan was drawn to, the depths were done during mean low water. Jacobson-We need to define whether we mean 100 feet from the water edge of the marsh or the upland edge of the marsh. 0 Reel- Well, you wouldn't get out to four foot water if you went 100 feet from the upland. You could say either 100 feet from the mean low water line or out to a depth of four feet. We wouldn't have a problem with getting the float out to the four foot depth. Dallas-Has the sub-committee seen my prepared condition on this subject? Hanscom- I don't know if they've all seen the exact wording, but the general idea was discussed. The wording of building the dock to accomodate four thirty foot boats was just to subjective. Ernst-So, this could extend 100 feet out from MLW? Plus the area needed to cross the marsh, so this could be over 200 feet long? Reel-The Conservation Commissions will require that you place the boardwalk over the marsh. DRAFT I can't see the total structure being over 200 feet. Jacobson- So we are back to a 200 foot dock. Ernst- You should relate it to the amount of water needed at low tide. Have we decided to allow one additional dock? Jacobson, Lowell- I don't think we've decided that yet. Hanscom- As I stated before, the staff is strongly recommending 10 (a), which would not allow an additional dock. The reason we came up with 10 (b) was to limit the size of the proposed dock if the sub-committee decided to vote in favor of an additional dock. The depth of the water, and the maximum size of the float were taken from the CZM pier guidelines. Near-I would entertain a motion that we recommend the essence of 10 (b) Motion: not seconded Lowell-I would entertain a motion that we recommend 10 (a) Motion: seconded Discussion followed Lowell- Would like to speak against the motion. Feels that because part of the site is already developed, and there is an existing dock, that it would be a hardship to limit them to that one dock. If the development were starting from scratch, 1 might have a different view. Near- 1 think it would be an imposition to not allow another dock. Ernst-I would vote against 10(a) too, specifically due to the sites configuration. Lowell-1 would call for a vote. Dallas- I would like to make a case for the clock before you vote. I hope you're looking at the glass as half full not half empty. Here's a lady who is 79 years old, who has been a steward of the land, and is using the land for just four new houses, and donating a large portion to Conservation. If the dock is not permitted, I feel it would consititute a taking. I think that by comprimising by not proposing four new docks and agreeing to one we are being resonable. Hanscom- While yes it is great that they are giving some property to Conservation, it is questionable whether or not that property could have been built on due to its environmental sensitivity. Also, when your talking about peoples rights you're talking about Commonwealth tidelands with relation to the dock situation. The public has the right to use the area for shellfishing, boating etc. Finally, within the Commission Act itself, in section 13 it states that when considering a DRI do the benifits outway the detriments. Lowell-The motion was that we recommend in a sense 10 (a). VOTE: 1 in favor, 3 opposed Ernst and Lowell- So, we've decided not to recommend 10 (a) IDRA Ernst-We need to reword 10(b) so that it doesn't go beyond the four foot depth. Lowell- At a minimum people want a clock to be able to pick up and drop off, at some tide, not every tide. Ernst-Can we talk about the pier width? Hanscom-CZM pier guidelines suggest a four foot width. Lowell- Can you and Chris come up with what were talking about. Ernst- So we'll stick to the CZM ACEC guidelines as far as pier size etc.? Jacobson-When does this need to come up to the full Commission? Hanscom-Staff recommends that this wait until the October 11 th hearing, so that we can mail out some of the minutes and conditions to let them study the project ahead of time, rather than just have .the sub-committee make an oral statement today. Lowell-My feeling is that we don't need to keep the record open any more, but that the conditions be drafted up as discussed. Ernst-I would like to have something drafted up in the decision that would state the only reason another dock was allowed was for this very specific site. The distance measurement should be defined as back from the 4 foot MLW depth. Jacobson-Does that include the float? Hanscom-I would say that the end of the ramp leading to the float should not be passed the four foot depth. Lowell-Can we designate one of us to go over the finalized conditions? Near- Volunteered. Jacobson-Are we including the 300 square foot float restriction. Lowell-Yes Reel and Dallas- Would like a larger float Lowell- I think we've agreed to the 300 square foot limit on the float, the width of the pier, etc. and that Lisa can fine tune the condition with Chris and Don Near. Jacobson- Moved that these conditions be accepted with the changes as discussed today. Motion: seconded VOTE: all in favor This will come before the Commission on October 11, 1990. Meeting closed: 3:25 p.m. DRA ..-4 September 24, 1990 Yarmouth Sub-committee Pirates Cove and Smith Pt., DRI Sub committee members present: Vicki Lowell, Carol Jacobson, David Ernst, and Don Near Absent: Jim Falla Commission staff: Lisa Hanscom, Sharon Rooney, Patty Dailey, Dorr Fox Smith Point project representatives: Mr. Allan Scheuch, Chris Reel from I.E.P., Inc., Mr. George Dallas, esq. Also present representing Pirates Cove was Ed. Sweeney. 2. None of the eight lots in the development may be further subdivided in order to facilitate additional residential, commercial or industrial buildings (but this condition shall not prohibit subdivision to accomplish relocation of lot lines or to permit additional "non-billable" lots); 3. Lots 1 through 7 shall be used only for residential purposes and such other purposes ancillary thereto as permitted under the Yarmouth Zoning By-Law from time to time; 4. No residential structure shall be placed on Lots 1,2,3 or 4 except in the "Approximate Building Envelope" (approximate house and septic areas shown as shaded areas on plan) deliniated on the plan entitled "Development Plan for Smith's Point Subdivision" by I.E.P., Inc. dated April 19, 1990, included in the DRI application; 5. No more than one residential building shall be constructed on Lots 1 and 5. Nothing contained in this decision shall prohibit the construction of guest houses on Lots 2,3,4,6 and 7. 6. Nevertheless, the lots shall be restricted to a maximum number of bedrooms as follows: Lot No.Maximum No. Bedrooms 1 6 2 8 3 8 4 8 5 7 6 7 7 12 8 0 8. The construction of new buildings on Lots 1 through 7 shall be subject to architectural restrictions substantially similar to the "Smith's Point Architectural Guidelines as set forth in Exhibit B hereto; 9. Maximum building height shall be 35' from the average existing grade but in no event shall more than 50% of the structure be constructed between 28' and 35' in height above grade. 11.One additional pier/float structure may be constructed to serve Lots 1,2,3, and 4. The maximum length of the pier and ramp structure may not exceed beyond the four (4) foot contour line (according to mean low water datum) . The width of the pier and ramp may not exceed four (4) feet. An attached seasonal float(s) may not exceed a total of 300 sq. feet in size. The pier/float structure and location, if approved at the local level, should be designed in accordance with the Town of Yarmouth Conservation Commission and Natural Resource department guidelines. Smith Point Meeting opened: 2:20 p.m. Lowell-Opened the hearing, considering revised draft conditions with sub-committee and applicant. Lets go thru the conditions one by one. Lowell-#1 any problems with this? "Prior to the construction of Smith's Point Road, a conservation restriction on Lot 8 shall be granted in perpetuity by Fayette Scheuch to the Trustees of Reservations, or similar conservation organization, substantially in the form attached hereto as Exhibit A, as agreed to by the Cape Cod Commission;" Dallas-I implore you to delete the last seven words Our position is that once we have your approval, we do not want to keep coming back like a yo-yo. You or your successors could be completely arbitrary.. This would apply to #'s Lowell-You feel it's enough protection for the interests of Cape Cod that the conditions state 'subtantially there-to? So if it wasn't we could come after it. Ernst-What he says sound reasonalbe, but I'd like to hear from staff Hanscom- I'd prefer to get Patty in on this one. Lowell- #2, does anyone have any comments on this condition? Dallas-1 wrote conditions up thru six, that's my language, that's acceptable. #7 1 would like to change to as accepted by the Yarmouth Board of Health. Again I am trying to avoid the hurdles we have, they're prodigious as it is. #7."The proponent will develop a water table map of the site for use in selecting the optimum locations for and identifying the on-site septic systems and well locations, to be agreed on by the Cape Cod Commission." Hanscom-This can be looked at two ways. You can call it a hurdle, or you can say that instead of holding up the project by not letting you go forward until the map is completed, we are helping the project along by letting the project go forward with this as a condition. This same principle would hold true for the other conditions which state that the Commission should approve the final copy. Ernst-This is a very good point. We certainly don't want to burden a project too much, but we do want to do our job. Dallas- Well for those of you in financial know how, banks won't finance a project if they see this language. We don't want the Commission to jump in at the last moment and make a capricious decision. Lowell-I think this is a very interesting procedural decision. My feeling is on #1, it's not that important. Hanscom-It's more in the Commissions favor for it to be worded like this, and it puts the burden on the applicant to come to the Commission with the finished product. Lowell-What about wording such as once the the product is finished a copy be supplied to the Commission. Dallas-That's alright with me. Jacobson-I think we need to talk with Patty more, so why don't we move on. Reel- In addition to #7, I can supply a water table map to the Commission within a few days. But we can't supply a new map for when the parcels are finally developed. We will do that at the local level with the Conservation Commission and the Boards of Health. Ernst-Do you anticipate that any of these systems will require any mounding? Reel-No Near- Do you feel that the wording is adequate? Reel- We just don't want to have to come back to the Commission later. There are general septic building envelopes provided on the plan. Hanscom- If Chris can get a copy of the water table plan to Tom for the eight lots in the next few days, and it's o.k. with Tom I think that would be fine. Hanscom- If we could move back to the question of whether or not to add the idea of proponents coming back to the Commission on #1 and the others, because Patty's here. Daily-Our primary concern is that the properly remain in perpetuity, and that the land boudaries not change. Dallas and Reel- If it was not in perpetuity, that would constitute a substantial change, and the land boundaries must stay within a foot or two of the boundary lines shown on the plan. Daily-O.K. Dallas-We have the same problem with #11 #11 "The Massachusetts Historical Commission (MHC) finds that the Smith Point Subdivision project area possesses a strong likelihood for containing significant archaeological sites and possibly unmarked human burials, etc. The proponent must complete an intensive (locational) archaeological survey (950 CMR 70) which is to be conducted in compliance with Section 106 of the National Historic Preservation Act of 1966 (36 CFR 800), Massachusetts General Laws, Chapter 9, Sections 26C-27C, as amended by Chapter 254 of the Acts of 1988 (950 CMR 71) and the Massachusetts Environmental Policy Act (MEPA). The goal of the survey should be to locate and identify archaeological sites and.unmarked burials which may be affected by the proposed development. No development activities, as defined by the Cape Cod Commission Act c. 716 of the Acts of 1989, as amended, Section 2(e), may take place until such survey is completed to the satisfaction of the Cape Cod Commission in consultation with MHC. The results of the survey will be incorporated into the planning stages of development to avoid impacting any burials and archaeological sites that may be discovered during the archaeological survey. Lowell- On the water table map, it should be a finding that a up to date water table map was supplied. Dallas- The third to the last line on # 11 I have a problem with. Again, it's a string to pull us back with. We're going to do an archeaological study in conjunction with MA Historical Commission, and that should be enough. Dailey-We're directed by the Act to protect archaelogical sites, that's one of the values. Dallas-We'd be glad to give you a copy of the study. Daily-Before any construction or development. Dallas- Well of course, that will have to be done. Lowell-I'm sympathetic to some of your arguments, however you haven't done any of the archaeological study, so we may need to have some dialogue back and forth. The study may turn up nothing, or it could show up something of significance in which case the project may need to be redesigned. Dallas-If there are any substantial changes we would have to come back. Hanscom- The MA Historical Commission they have a lot of strength if a human burial is discovered, however they don't have a lot of strength if it is another type of significant site. In discussions with staff at MA Historical they appreciate that the CC Commission can back up their regs., and possibly strengthen their regs. 1 think, as Vicki said, that we can accept copies of water table maps, conservation restrictions, etc. However, staff feel very strongly that this wording, and protection of the Capes archaeologic values should be left in the conditions. Dallas-Let me then suggest the insertion of the word 'resonalble'. Daily-That would be fine. A discussion followed about the word 'resonable' Lowell- Dock issue: "10(a) There is currently one pier/wharf owned by Fayette Scheuch existing on Uncle Robert's Cove. The dock/wharf is deliniated on the plan entitled "Development Plan for Smith's Point Subdivision" by I.E.P., Inc. dated April 19, 1990, included in the DRI application. This structure may be repaired and maintained. This structure may not enlarged. No additional pier/floats may be constructed to serve lots 1,2,3,4,5, 6, 7, and 8." "10 (b) There is currently one pier/wharf owned by Fayette Scheuch existing on Uncle Robert's Cove. The dock/wharf is deliniated on the plan entitled "Development Plan for Smith's Point Subdivision" by I.E.P., Inc. dated April 19, 1990, included in the DRI application. This structure may be repaired and maintained. This structure may not enlarged. No additional pier/floats may be constructed to serve lots 5,6,7, and 8." One additional pier/float may be constructed to serve Lots 1,2,3, and 4. The pier structure may not exceed 100' from the edge of the saltmarsh. An attached seasonal float may not exceed 300 sq. feet in size. The pier/float structure site design should be done in consultation with the Town of Yarmouth Conservation Commission and Natural Resource Officer." Dallas- Needless to say, 10(a) is unacceptable to us. And 10 (b) is o.k. as long as we can massage the wording to let the owners get out to deep enough water. Reel- I believe that this does almost get us out to the four foot level. However it might not get us out to four feet depending on where we placed the dock. Rather than have the 100 foot restriction we'd like it to say that it is 'no longer than necessary to get us to four feet of water at low tide. Hanscom-There was discussion at the last sub-committee meeting as to what datum the plan was drawn to, the depths were done during mean low water. Jacobson-We need to define whether we mean 100 feet from the water edge of the marsh or the upland edge of the marsh. Reel- Well, you wouldn't get out to four foot water if you went 100 feet from the upland. You could say either 100 feet from the mean low water line or out to a depth of four feet. We wouldn't have a problem with getting the float out to the four foot depth. Dallas-Has the sub-committee seen my prepared condition on this subject? Hanscom- I don't know if they've all seen the exact wording, but the general idea was discussed. The wording of building the dock to accomodate four thirty foot boats was just to subjective. Ernst-So, this could extend 100 feet out from MLW? Plus the area needed to cross the marsh, so this could be over 200 feet long? Reel-The Conservation Commissions will require that you place the boardwalk over the marsh. I can't see the total structure being over 200 feet. Jacobson- So we are back to a 200 foot dock. Ernst- You should relate it to the amount of water needed at low tide. Have we decided to allow one additional dock? Jacobson, Lowell- I don't think we've decided that yet. Hanscom- As I stated before, the staff is strongly recommending 10 (a), which would not allow an additional dock. The reason we came up with 10 (b) was to limit the size of the proposed dock if the sub-committee decided to vote in favor of an additional dock. The depth of the water, and the maximum size of the float were taken from the CZM pier guidelines. Near-I would entertain a motion that we recommend the essence of 10 (b) Motion: not seconded Lowell-I would entertain a motion that we recommend 10 (a) Motion: seconded Discussion followed Lowell- Would like to speak against the motion. Feels that because part of the site is already developed, and there is an existing dock, that it would be a hardship to limit them to that one dock. If the development were starting from scratch, I might have a different view. Near- I think it would be an imposition to not allow another dock. Ernst-I would vote against 10(a) too, specifically due to the sites configuration. Lowell-1 would call for a vote. Dallas- I would like to make a case for the clock before you vote. I hope you're looking at the glass as half full not half empty. Here's a lady who is 79 years old, who has been a steward of the land, and is using the land for just four new houses, and donating a large portion to Conservation. If the dock is not permitted, I feel it would consititute a taking. I think that by comprimising by not proposing four new docks and agreeing to one we are being resonable. Hanscom- While yes it is great that they are giving some properly to Conservation, it is questionable whether or not that property could have been built on due to its environmental sensitivity. Also, when your talking about peoples rights you're talking about Commonwealth tidelands with relation to the dock situation. The public has the right to use the area for shellfishing, boating etc. Finally, within the Commission Act itself, in section 13 it states that when considering a DRI do the benifits outway the detriments. Lowell-The motion was that we recommend in a sense 10 (a). VOTE: 1 in favor, 3 opposed Ernst and Lowell- So, we've decided not to recommend 10 (a) Ernst-We need to reword 10(b) so that it doesn't go beyond the four foot depth. Lowell- At a minimum people want a dock to be able to pick up and drop off, at some tide, not every tide. Ernst-Can we talk about the pier width? Hanscom-CZM pier guidelines suggest a four foot width. Lowell- Can you and Chris come up with what were talking about. Ernst- So we'll stick to the CZM ACEC guidelines as far as pier size etc.? Jacobson-When does this need to come up to the full Commission? Hanscom-Staff recommends that this wait until the October 11 th hearing, so that we can mail out some of the minutes and conditions to let them study the project ahead of time, rather than just have the sub-committee make an oral statement today. Lowell-My feeling is that we don't need to keep the record open any more, but that the conditions be drafted up as discussed. Ernst-I would like to have something drafted up in the decision that would state the only reason another dock was allowed was for this very specific site. The distance measurement should be defined as back from the 4 foot MLW depth. Jacobson-Does that include the float? Hanscom-I would say that the end of the ramp leading to the float should not be passed the four foot depth. Lowell-Can we designate one of us to go over the finalized conditions? Near- Volunteered. Jacobson-Are we including the 300 square foot float restriction. Lowell-Yes Reel and Dallas- Would like a larger float Lowell- I think we've agreed to the 300 square foot limit on the float, the width of the pier, etc. and that Lisa can fine tune the condition with Chris and Don Near. Jacobson- Moved that these conditions be accepted with the changes as discussed today. Motion: seconded VOTE: all in favor This will come before the Commission on October 11, 1990. Meeting closed: 3:25 p.m. Pirates Cove Meeting Opened 3:30 ©®AG€7 .r44 CCC #TR90046 DATE:September 24, 1990 TO:Subcommittee members RE:DRAFT Proposed Conditions Development of Regional Impact Cape Cod Commission Act APPLICANT:1VIs. Fayette Scheuch PRCJECT:Smith Point Subdivision Great Island, Yarmouth MA. 1. Prior to the construction of Smith's Point Road, a conservation restriction on Lot 8 shall be granted in perpetuity by Fayette Scheuch to the Trustees of Reservations, or similar conservation organization, substantially in the form attached hereto as Exhibit A, as agreed to by the Cape Cod Commission. 2. None of the eight lots in the development may be further subdivided in order to facilitate additional residential, commercial or industrial buildings (but this condition shall not prohibit subdivision to accomplish relocation of lot lines or to permit additional "non-buildable" lots); 3. Lots 1 through 7 shall be used only for residential purposes and such other purposes ancillary thereto as permitted under the Yarmouth Zoning By-Law from time to time; 4. No residential structure shall be placed on Lots 1,2,3 or 4 except in the "Approximate Building Envelope" (approximate house and septic areas shown as shaded areas on plan) deliniated on the plan entitled "Development Plan for Smith's Point Subdivision" by I.E.P., Inc. dated April 19, 1990, included in the DRI application; 5. No more than one residential building shall be constructed on Lots 1 and 5. Nothing contained in this decision shall prohibit the construction of guest houses on Lots 2,3,4,6 and 7. 6. Nevertheless, the lots shall be restricted to a maximum number of bedrooms as follows: LQLNQ.Maximum No. Bedrooms 6 8 8 8 7 7 12 0 7. The proponent will develop a site-specific water table map of the site for use in selecting the optimum locations for and identifying the on-site septic systems and wells to be agreed to by the Cape Cod Commission. 8. The construction of new buildings on Lots 1 through 7 shall be subject to architectural restrictions substantially similar to the "Smith's Point Architectural Guidelines as set forth in Exhibit B hereto; 9. Maximum building height shall be 35' from the average existing grade but in no event shall more than 50% of the structure be constructed between 28' and 35' in height above grade. 10. (a)There is currently one pier/wharf owned by Fayette Scheuch existing on Uncle Robert's Cove. The dock/wharf is deliniated on the plan entitled "Development Plan for Smith's Point Subdivision" by I.E.P., Inc. dated April 19, 1990, included in the DRI application. This structure may be repaired and maintained. This structure may not enlarged. No additional piers/floats may be constructed to serve Lots 1, 2, 3, 4, 5, 6, 7 and 8. or 10.(b)There is currently one pier/wharf owned by Fayette Scheuch existing on Uncle Robert's Cove. The dock/wharf is deliniated on the plan entitled "Development Plan for Smith's Point Subdivision" by I.E.P., Inc. dated April 19, 1990, included in the DRI application. This structure may be repaired and maintained. This structure may not enlarged. No additional pier/floats may be constructed to serve lots 5, 6,7, and 8. One additional pier/float structure may be constructed to serve Lots 1, 2, 3, and 4. The pier structure may not exceed 100' from the edge of the saltmarsh. An attached seasonal float may not exceed 300 sq. feet in size. The pier/float structure site design should be done in consultation with the Town of Yarmouths Conservation Commission and Natural Resoure officer. 11.The Massachusetts Historical Commission (MHC) finds that the Smith Point Subdivision project area possesses a strong likelihood for containing significant archaeological sites and possibly unmarked human burials, etc. The proponent must complete an intensive (locational) archaeological surveey (950 CMR 70) which is to be conducted in compliance with Section 106 of the National Historic Preservation Act of 1966 (36 CFR 800), Massachusetts General Laws, Chapter 9, Sections 26C-27C, as amended by Chapter 254 of the Acts of 1988 (950 CMR 71) and the Massachusetts Environmental Policy Act (MEPA). The goal of the survey should be to locate and identify archaeological sites and unmarked burials which may be affected by the proposed development. No development activities, as defined by the Cape Cod Commission Act c. 716 of the Acts of 1989, as amended, Section 2(e), may take place until such survey is completed to the satisfaction of the Cape Cod Commission in consultation with MHC. The results of the survey will be incorporated into the planning stages of development to avoid impacting any burials and sites that may be discovered during the archaeological survey. ©®AG€7 CCC #TR90046 DATE:September 13, 1990 TO:Subcommittee members RE:DRAFT Proposed Conditions Development of Regional Impact Cape Cod Commission Act APPLICANT:Ms. Fayette Scheuch PRaJECT:Smith Point Subdivision Great Island, Yarmouth MA. 1. Prior to the construction of Smith's Point Road, a conservation restriction on Lot 8 shall be granted in perpetuity by Fayette Scheuch to the Trustees of Reservations, or similar conservation organization, substantially in the form attached hereto as Exhibit A, as agreed to by the Cape Cod Commission. 2. None of the eight lots in the development may be further subdivided in order to facilitate additional residential, commercial or industrial buildings (but this condition shall not prohibit subdixision to accomplish relocation of lot lines or to permit additional "non-buildable" lots); 3. Lots 1 through 7 shall be used only for residential purposes and such other purposes ahcillary thereto as permitted under the Yarmouth Zoning By-Law from time to time; 4. No residential structure shall be placed on Lots 1,2,3 or 4 except in the "Approximate Building Envelope" shown on the plan entitled "Development Plan for Smith's Point Subdivision" by I.E.P., Inc. dated April 19, 1990, included in the DRI application; 5. No more than one residential building shall be constructed on Lots 1 and 5. Nothing contained in this decision shall prohibit the construction of guest houses on Lots 2,3,4,6 and 7. 6. Nevertheless, the lots shall be restricted to a maximum number of bedrooms as follows: LQLNQ.Maximum No. Bedrooms : ®R 6 8 8 8 7 7 12 0 7. The proponent will develop a site-specific water table map of the site for use inselecting the optimum locations for the on-site septic systems and wells as agreed to by the Commission. 8. The construction of new buildings on Lots 1 through Z shall be subject to architecturalrestrictions substantially similar to the "Smith's. Point Archetectural Guidelines as set forth in Exhibit B hereto; 9. Maximum building height shall be 30' from the plain of the first floor level but in no event shall more than 50% of the ridge poles on any structure be above 26 feet. 10.There is currently one dock/wharf owned by Fayette Scheuch existing on Uncle robert's Cove. This structure may be repaired and maintained as long as no additional fill is used. This structure may not enlarged. No additional docks may be constructed to serve Lots 1,2,3,4,5, 6,7 and 8. 11.The Massachusetts Historical Commission (MHC) finds that the Smith Point Subdivision project area possesses a strong likelihood for containing significant archaeological sites and possibly unmarked human burials. The proponent must complete an intensive (locational) archaeological surveey (950 CMR 70) which is to be conducted in compliance with Section 106 of the National Historic Preservation Act of 1966 (36 CFR 800), Massachusetts General Laws, Chapter 9, Sections 26C-27C, as amended by Chapter 254 of the Acts of 1988 (950 CMR 71) and the Massachusetts Environmental Policy Act (MEPA). The goal of the survey should be to locate and identifyarchaeological sites and unmarked burials which may be affected by the proposed development. No development activities, as defined by the Cape Cod Commission Act c. 716 of the Acts of 1989, as amended, Section 2(e), may take place until such survey is completed to the satisfaction of the Cape Cod Commission in consultation with MHC. The results of the survey will be incorporated into the planning stages of dev6lopment to avoid impacting any burials and sites that may be discovered during the archaeological survey. Al,LY- R ' CONSERVATION RESTRICTION TO The Trustees of Reservations Scheuch Property, Great Island, Yarmouth Fayette S. Scheuch, with an address of 54 Westwood Road, WestHartford, Connecticut 06117, and her heirs, devisees, successorsand assigns holding any interest in the Premises as hereinafterdefined ("Grantor") grant, with quitclaim covenants, to TheTrustees of Reservations, a Massachusetts charitable corporationestablished under Chapter 352 of the Acts of 1891, with anaddress at 572 Essex Street, Beverly, Massachusetts, itssuccessors and permitted assigns, ("Grantee" ) in perpetuity andexclusively for conservation purposes, the following describedConservation Restriction on a parcel of land of approximately 36acres located in the Town of Yarmouth, Massachusetts, said parcelbeing described in Exhibit A attached ("Premises'I) . Purpose.This Conservation Restriction is defined in and authorized by Sections 31-33 of Chapter 184 of the General Laws and otherwise by law.Its purpose is to assure that the Premises will be retained in perpetuity predominantly in their natural,scenic, and open condition and to prevent any use of the Premisesthat will significantly impair or interfere with the conservation values of the Premises.The conservation of the Premises will yield a significant public benefit for the following reasons: (1)Protection of the Premises will preserve a relativelyundisturbed coastal beach, dune and maritime forestcommunity; such undisturbed natural areas have becomeincreasingly rare in Massachusetts, particularly along the south coast of Cape Cod. (2)Preservation of this natural area will protect thescenic amenity this area provides to members of thepublic using the opposite shore of Hyannis andYarmouth, and as they pass through Lewis Bay andHyannis Inner Harbor, either as passengers on theMartha's Vineyard and Nantucket Ferries or in recreational or fishing watercraft.The scenic value of this stretch of undisturbed beach, dunes and forestis increased by the relative scarcity of undisturbedshoreline along the highly developed Hyannis-Yarmouth coast. (3)Preservation of this natural area increases the amount of land on Great Island protected by conservationrestriction, thereby increasing the long-term value ofalready protected lands for wildlife habitat and other conservation values. The terms of this Conservation Restriction are as follows: 1 A. Prohibited Uses.Except as to reserved rights set forth in paragraph B below, Grantor will neither perform nor permit the following acts or uses on the Premises: (1)Constructing or placing of any building, tennis court, landing strip, mobile home, swimming poolt asphalt or concrete pavement, sign, fence, billboard or other advertising display, antenna, utility pole, tower, conduit, line or other temporary or permanent structure or facility on or above the Premises, except for fences appropriate to the conservation purposes of this Conservation Restriction; (2)Mining, excavating, dredging or removing from the Premises of soil, loam, peat, gravel, sand, rock or other mineral resource or natural deposit, except as necessary for proper drainage or soil conservation and then only in a manner which does not impair the purpose of this Conservation Restriction; (3)Placing, filling, storing or dumping on the Premises of soil, refuse, trash, vehicle bodies or parts,rubbish, debris, junk, waste or other substance or material whatsoever or the installation of underground storage tanks; (4)Cutting, removing or otherwise destroying trees, grasses or other vegetation, except as provided in paragraph B below; (5)Activities detrimental to drainage, flood control, water conservation, water quality, erosion control or soil conservation; (6)The use of motorcycles, motorized trail bikes, snowmobiles and all other motor vehicles, except as reasonably necessary in exercising any of the reserved rights in paragraph B, or as required by the police, firemen or other governmental agents in carrying out their lawful duties; (7)Building, starting, or maintaining fires, except that fire may be used as reasonably necessary in exercising the rights reserved in subparagraph B(4) below; (8)Any other use of the Premises or activity thereon which is inconsistent with the purpose of this Conservation Restriction or which would materially impair other significant conservation interests unless necessary for the protection of the conservation interests that are the subject of this Restriction; and 2 (9)Conveyance W-a part or portion of the £-.emises alone, or division or subdivision of the Premises (as compared to conveyance of the Premises in its entirety which shall be permitted) without the prior written consent of the Grantee. B, Reserved Rights.All acts and uses not prohibited in paragraph A are, permissible. Notwithstanding the provisions of paragraph A, the following acts and uses are also permitted but only if such uses and activities do not materially impair the purpose of this Conservation Restriction or other significant conservation interests: (1) Walking, birdwatching, bathing, sunbathing, fishing, clamming, swimming, picknicking (but no fires) and boating. (2)The construction, maintenance and marking of trails for pedestrian use. (3)Maintenance of a wood road located on the Premises as reasonably necessary for the uses hereinafter permitted. (4)In accordance with generally accepted forestry conservation practices, selective pruning and clearing to control or prevent hazard, disease, or fire, to manage wildlife habitat, and to clear and maintain the trails and wood road referenced in subparagraphs 8(2) and (3) above. (5)Sand dune stabilization and replenishment, including without limitation, altering, fencing, fertilizing and planting thereof, installing of jetties and groins, and dredging, placing and filling in connection with such stabilization and replenishment; provided, however, that no jetties or grains shall be constructed, nor any dredging, placing or filling of material be undertaken, without first providing notice to the Grantee as provided in Paragraph C, below. (6)The erection, maintenance and replacement of a reasonable number of regulatory signs (such as "no trespassing't or "no hunting" signs), each not to exceed four (4) square feet. (7)Prospecting for fresh water and the construction, maintenance, repair and replacement of wells and piping for the removal and transport of fresh water, provided any above-ground structures are kept to the minimum size necessary for such operation. The exercise of any right reserved by the Grantor under this paragraph B shall be in compliance with the then-current Zoning By-Law of the Town of Yarmouth, the Wetlands Protection Act (General Laws Chapter 131, Section 40) and all other applicable 3 federal, state and local law.The inclusion of any reserved right in this paragraph B requiring a permit from a public agencydoes not imply that the Grantee takes any position on whether such permit should be issued. C. Notice and Approval.Whenever notice to or approval by the Grantee is required under the provisions of paragraphs A orB, Grantor shall notify Grantee in writing not less than sixty(60) days prior to the date Grantor intends to undertake the activity in question.The notice shall describe the nature, scope, design, location, timetable and any other material aspectof the proposed activity in sufficient detail to permit Granteeto make an informed judgment as to its consistency with the purposes of this Conservation Restriction.Where Grantee's approval is required, Grantee shall grant or withhold its approval in writing within sixty (60) days of receipt of Grantor's written request therefor. D. Proceeds from Extinquishment. The Grantor and the Grantee agree that the donation of this Conservation Restrictiongives rise for purposes of this paragraph to a property right,immediately vested in the Grantee, with a fair market value determined by multiplying the current fair market value of thePremises unencumbered by this Restriction (minus any increase in value attributable to improvements made after the date of thisgrant) by the ratio of the value of this Restriction at the timeof this grant to the value of the Premises, without deduction for the value of this Restriction, at the time of this grant.Such proportionate value of the Grantee's property right shall remain constant.If any change in conditions ever gives rise toextinguishment or other release of the Conservation Restriction under applicable law, then the Grantee, on a subsequent sale,exchange or involuntary conversion of the Premises, shall beentitled to a portion of the proceeds equal to such proportionatevalue, subject, however, to any applicable law which expresslyprovides for a different disposition of proceeds. Whenever all or any part of the Premises or any interest t herein is taken by public authority under power of eminent domain, or if all or anypart of this Conservation Restriction is otherwise extinguished by act of public authority, then the Grantor and the Grantee shall cooperate in recovering the full value of all direct and consequential damages resulting from such action.All related expenses incurred by the Grantor and the Grantee shall first bepaid out of any recovered proceeds, and the remaining proceedsshall be distributed between the Grantor and the Grantee in shares equal to such proportionate value.The Grantee shall use its share of the proceeds in a manner consistent with the conservation purpose set forth herein. E. Access.The conservation Restriction hereby conveyed does not grant to the Grantee, to the public generally, or to any other person any right to enter upon the Premises except as follows: There is hereby granted to the Grantee and itsrepresentatives the right to enter the Premises (1) at reasonabletimes and in a reasonable manner for the purpose cf inspecting the same to determine compliance herewith and (2) after 30 days 4 prior written notice, to take any and all actions with respect to the Premises at the then fee owner's cost as may be necessary orappropriate, with or without order of court, to remedy, abate or otherwise enforce any violaticn hereof. F. Legal Remedies of the Grantee.The rights hereby granted shall include the right to enforce this ConservationRestriction by appropriate legal proceedings and to obtaininjunctive and other equitable relief against any violations,including without limitation relief requiring restoration of thePremises to its condition at the time of this grant (it beingagreed that the Grantee may have no adequate remedy at law), and shall be in addition to, and not in limitation of, any other rights and remedies available to the Grantee.Grantor covenants and agrees to reimburse the Grantee all reasonable costs and expenses (including without limitation reasonable counsel fees) incurred in enforcing this Conservation Restriction or in taking reasonable measures to remedy or abate any violation thereof. By its acceptance, the Grantee does not undertake any liability or obligaticn relating to the condition of the Premises. Enforcement of the terms of this Restriction shall be at the discretion of the Grantee, and any forbearance by the Grantee to exercise its rights under this Restriction shall not be deemed or construed to be a waiver.If any provision of this Conservation Restriction shall to any extent be held invalid, the remainder shall not be affected. G. Acts Beyond Grantor's Control.Nothing contained in this Conservation Restriction shall be construed to entitle the Grantee to bking any action against the Grantor for any injury to or change in the Premises resulting from causes beyond the Grantor's control, including, but not limited to, fire, flood, storm, earth movement, and acts caused by trespass on the Premises not contributed to by acts or omissions of the Grantor, or from any prudent action taken by the Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Premises resulting from such causes. I. Duration and Assignability. The burdens of this Conservation Restriction shall run with the Premises and shall be enforceable against the Grantor in perpetuity.The Grantee is authorized to record or file any notices or instruments appropriate to assuring the perpetual enforceability of this Conservation Restriction; and the Grantor appoints the Grantee as Grantor's attorney-in-fact to execute, acknowledge and deliver any such instruments on Grantor's behalf.Without limiting the foregoing, Grantor agrees to execute any such instrument upon request.The benefits of this Conservation Restriction shall be in gross and shall not be assignable by the Grantee, except in the following instances from time to time:(i) as a condition of any assignment, the Grantee requires that the purpose of this Conservation Restriction continue to be carried out, and (ii) the assignee, at the time of assignment, qualifies under Section 170(h) of the Internal Revenue Code of 1954, as amended, and applicable regulations thereunder, and under Section 32 of Chapter 184 of the General Laws as an eligible donee to receive 5 this Conservation Restriction directly.Grantor auu Grantee intend that the restrictions arising hereunder take effect uponthe date hereof, and to the extent enforceability by any personever depends upon the approval of governmental officials, suchapproval when given shall relate back to the date hereofregardless of the date of actual approval or the date of filingor recording of any instrument evidencing such approval. J. Subseauent Transfers.Grantor agrees to incorporate the terms of this Conservation Restriction in any deed or other legalinstrument by which Grantor conveys any interest in all or aportion of the Premises, including, without limitation, a leasehold interest.Grantor further agrees to give written notice to the Grantee of the transfer of any interest at leasttwenty (20) days prior to the date of such transfer.Failure of the Grantor to do so shall not impair the validity of thisConservation Restriction or limit its enforceability in any way. K. Termination of.Rights and Oblicationi. Notwithstandinganything to the contrary contained herein, the rights andobligations, under this Conservation Restriction, of any partyholding any interest in the Premises terminate upon transfer ofthat party's interest, except that liability for acts oromissions occurring prior to transfer, and liability for thetransfer itself if the transfer im violative of this Conservation Restriction, shall survive the transfer. L. Estoppel Certificates. Upon request by the Grantor, theGrantee shall within twenty (20) days execute and deliver to theGrantor any document, including an estoppel certificate, whichcertifies the Grantor's compliance with any obligation of theGrantor contained in this Conservation Restriction, and whichotherwise evidences the status of this Conservation Restriction as may be requested by the Grantor. No documentary stamps are required as this Conservation Restriction is a gift. 6 Executed under seal this day of ,19_. COMMONWEALTH OF MASSACHUSETTS , 19', SS. Then personally appeared the above-named Fayette S. Scheuch andacknowledged the foregoing instrument to be her free act and deed, before me. Notary Public My commi.ssion expires: ACCEPTANCE OF GRANT The above Conservation Restriction is accepted this day of ,19-• THE TRUSTEES OF RESERVATIONS By . Its - COMMONWEALTH OF MASSACHUSETTS , 19, SS. Then personally appeared the above-namedand acknowledged the foregoing instrument to be the free act and deed of The Trustees of Reservations, before me. Notary Public My commission expires: 7 APPROVAL OF SELECTMEN We, the undersigned, being a majority of the Selectmen of the Town of Yarmouth, Massachusetts, hereby certify that at a meeting duly held on , 19- the Selectmen voted to approve the foregoing Conservation Restriction to The Trustees of Reservations pursuant to M.G.L. Chapter 184, Section 32. Selectmen COMMONWEALTH OF MASSACHUSETTS , SS. ,19__ Then personally appeared the above-named and acknowledged the fOFegoing instrument to be his or her free act and deed, .before me. Notary Public My commission· expires: 8 APPROVAL BY SECRETARY OF ENVIRONMENTAL AFFAIRS COMMONWEALTH OF MASSACHUSETTS The undersigned, Secretary of the Executive Office of Environmental Affairs of the Commonwealth of Massachusetts, hereby certifies that the foregoing Conservation Restriction to The Trustees of Reservations has been approved in the public interest pursuant to M.G.L. Chapter 184, Section 32. Date: ,19_ Secretary of Environmental Affairs COMMONWEALTH OF MASSACHUSETTS , SS. ,19_. Then personally appeared the above-named and acknowledged the foregoing instrument to be his or her free act and deed, before me. Notary Public My commission expires: CDW:5/8/89 9 ·*Libit F' SMITH'S POINT ARCHITECTURAL GUIDELINES IN:BRAL/QZIQN THE ARCHITECTURAL REVIEW COMMITTEE The homeowners are bound by covenants that, so far as possible,preserve and protect the natural beauty and serenity of GreatIsland. To that end, no building, fence or other structureshall be created or altered until the proposed site plan,building plans and materials shall have been approved inwriting by the Architectural Review Committee (A.R.C.)consisting of two members of the Scheuch family, one outsideprofessional with a background in architecture and landscapedesign and one appointee of the Great Island HomeownersAssociation (GIHA).The two Scheuch family members and theoutside professional shall be voting members, the GIMAappointee shall have no vote. TUE GUIDELINES The A. R.C. has created Guidelines to assist all homeowners inthe planning and construction of their new homes. Creativityis encouraged, but there are basic standards set to promote aharmonious community aesthetic at Smith's Point. TheGuidelines are intended to protect all property owners and toprovide a simple uniform review process for approval by theA.R.C. THE RESIGN APPROVAL PROCESS The Guidelines outlined here, we believe, are each essential tosustain the beauty and the character of Smith'S Point. STEP 1.REVIEW THE RELEVANT DOCUMENTS a. The Design Approval Process (this one)b. The Architectural Guidelines STEP 2.RETAIN PROFESSIONAL DESIGN CONSULTANTS Selection of anarchitect is required of all homeowners. Retaining alandscape architect is advisable if you or yourarchitect are not adept at landscape or gardendesign. Have your consultants read and acquaint themselves with the relevant documents.Have your architect become familiar with Great Island through at liast one extended site visit. STEP 3.OBTAIN A SURVEY Obtain a survey of your lot at a scale of 1" = 20':Have all bounds set in the field. STEP 4.THE PRELIMINARY REVIEW Arrange a date for the preliminary review by writing to LandVest, Inc., Chairman Consulting Services Department, Ten Post Office Square, Boston, MA 02109.Submit two copies of the developed design to the Architectural Review Committee. These plans will reflect the "schematic" stage of development in an architect' s design process. This step in the review process allows the timely incorporation of the A.R.C. recommendations, avoiding revisions to the final Construction Documents. - The design must be presented with the following documents: a.Site Plan at 1/4" = 1'-0" or 1"-20' -show exact location of house footprints in relation to property setback lines and boundaries. b. Existing and proposed contours at two foot intervals. C.Building indicated as foundation plan with entry area delineated and roof and deck lines shown as dashed lines. d. First Floor elevation indicated e. Drives and walks. f. Adjacent structures located. g. Floor Plans at 1/4" = 1'-0" -all windows and doors with swings shown. h. Elevations.One for each major exposure at 1/4" = 1'-0". -principal materials rendered. -indicating overall height from road grade to ridge of roof. -indicating roof pitch in function of 12 (i.e. 6:12) i. Samples -a sample of the proposed outside wall finish -roof sample -exterior paint sample -photographs of the window,and door types j. At the time of Preliminary Review, the corners of the house must be staked on the lot in the proposed location. All trees to be removed should be flagged with red surveyors tape. k. Dates if available of proposed start and finish of construction. STEP 5.THE FINAL REVIEW This review is concerned with checking the construction documents for A.R.C. Guideline requirements, and -2-5821D verification that the recommendations made at the preliminary Review have been incorporated. a.Site Plan at 1" - 20' -show zeptic tank field and well for water service b. Planting Plan; include location of walks and drives C.Floor Plan at 1/4" • 1' d' if any' at 1/4" = 1' ; show proposed materialsElevations, including roof plans, slope and overhangs, e. Typical fence, railing and deck detail f. Dates of start and finish of construction. g. Utility meter locations h. Physical limits of construction activity. The Architectural Review Committee will stamp the drawing upon final approval. SMITH'S POINT - ARCHITECTURAL GUIDELINES The Great Island Guidelines are based on a historical perspective: generally that of the vernacular at Cape Cod, Nantucket and Martha's Vineyard and more specifically the 20th Century interpretation at Great Island itself. Within this architectural vocabulary there was a range of style and detailing present from the agriculture buildings to more elegant houses.It is important for the architect to know the buildings of Great Island. The aesthetic success of the whole requires that the theme also be carried through with the landscaping and other site details. These Guidelines are designed to assure the following: -Harmony in the forms and materials of the buildings on Great Island. -Architecture which is sympathetic to the traditions of Cape Cod. -Style; general Cape Cod vernacular architecture to include the multiple connecting Cape with steep pitched roof style, saltbox style and historic farmhouse design. -Building materials and techniques which will age gracefully over the years. -Architectural elements which are responsive to the New England climate. -Preservation of the natural appearance and ecology of the Island. A. GENER.U 1. All construction shall be subject to the provisions of state and local codes. 2. Maximum building height shall be two-and-one-half stories, as defined by the town of Yarmouth Zoning By-Law, with the exception of Lot 1, on -3-5821D which the height limitation will be 25' from the plain of the first floor level but in no event shall more than 50% of the ridge poles on any structure be above 28 feet. 3. Building location shall be determined by taking into consideration minimizing site lines to existing homes on Smith's Point and along the shore of Uncle Robert's Cove and maximizing view corridors to open land and waters if desired. All buildings must be located within Zone of Improvement Designations. 4. Variances may be granted, only if required by the unique character of the Lot whereby a failure to grant the variance would result in a hardship to the Lot Owner and only if such variance is consistent with the general intent and purposes of the Architectural Guidelines, and will not have a material adverse effect on lots in the area. If a variance is granted by the Committee with respect to alterations or additions made after completion of the initial construction of the house on the lot, and such variance is disputed by any member of the Committee, including the nonvoting member, as being inconsistent with the standards for variances, at the request of the disputing member made at the meeting at which the variance is granted, the dispute shall be referred to an independent architect chosen by the Committee, for resolution, and the decision of such independent architect shall be binding.If there is such a request, the Committee shall make the referral within ten days after said meeting and the architect Shall make its decision within 30 days after said referral. B. EXTERIOR WALLi The desire is to have colors that blend into the surrounding landscape and vegetation. 1. The following materials are permitted as wall finishes for buildings: a. White cedar shingles. Color must be natural or stains, such as, gray or brown b. Horizontal wood clapboard with right to clapboard all four sides.If all clapboard, the color would be white or earthtone (all shades of gray, brown or gray brown mixture).The desire is to have subtle -4-5821D variations of the above colors that blend into the surrounding landscape and vegetation. C.Brick - to be used at footings and chimneys only. 2. The following materials are permitted as finiahes for fences: picket::lattice c. split rail d. palisade 82222 1. The following materials are permitted for roofing: a. white or red cedar shingle, -to match walls b. galvanized steel -1" standing seam pattern only -at garage, barn or workshop only -natural or green color only 2. The following materials are vermitte4 for gutters; a. wood -cyma recta profile only -painted white b. galvanized steel -half round profile only 3. The following configurations are Dermitted for roofs: a. simple gable -symmetrical, pitch min 9:12 max 12:12 -asymmetrical, pitch min 6:12 max 12:12 b. simple hip -symmetrical, pitch 9:12 max 12:12 C.simple shed -asymmetrical, pitch min 4:12 max 12:12 -if used against a principal building wall only d. flat with railings or parapets -if accessible from an interior room only -railings pattern to be approved by the ARC -railings to be painted white e."Bow House" DOORS & WINDOWS 1. The following materials are permitted: a. glass -5-5821D b. hardwood -painted, color to be approved by the ARC C.vinyl-clad wood. 2. The following are permitted operations: a. single and double hung b. casement C.fixed with frame d. louvered 3. The following are permitted configurations: a. rectangular or verticle proportion b. circular & semi-circular C.hexagonal & octagonal. 4. The following are permitted accessories: a. operable wood shutters -painted, color to be approved by the ARC b. window boxes -painted, color to be approved by the ARC C.real wood mullions -square or vertical proportion TRIM AND SHUTTERS: All colors allowed, except vivid colors, such as, orange, pink, purple QVTBUILDINGS 1. The following outbuilding uses are permitted: a. barbecues -brick to match chimneys b. garden pavillions and greenhouses -to match principal building C.gazebos, trellis structures and arbors -wood, painted white d. garages, workshops and barns -to match principal building e. guest houses and artists studios -to match principal building -not to exceed 1,000 sq. ft. footprint nor 1200 sq ft enclosed f . handball and squash courts and saunas -to match principal building g. in-ground swimming pools and outdoor tube h. pool houses and equipment enclosures Note: All garbage, trash and rubbish placed outdoor shall be kept in covered containers, protected from animals and screened from view outside the Lot, provided that this restriction does not preclude the composting of organic matter. -6-5821D The following structures are not permitted:a.open carports b. above ground pools C.paddle tennis court Exterior lighting: No exterior flood lightsshining on the water or noticeably visible fromother homes.Safety lighting around docks mustbe focused down. The following shall be located where best hiddenfrom adjoining lots and the road: a.clothes drying yardsb. electrical meters C.air conditioning compressorsd. standby generators e.antennas f. satellite dishes which must be surround by afence to completely hide it from the road oradjoining lots. Trees in excess of 4 inches in D.B.H. shall notbe removed without the approval of the A.R.C.unless they are dead, diseased or dangerous. Access stairways (designed to minimize erosion)will be permitted on Lots 1, 2, 3, and 4 toNantucket Sound but only two sets of stairs foraccess to Uncle Roberts Cove in the vicinity ofthe new decks, if any, otherwise near the Lot 1and Lot 2 boundary and the Lots 3 and 4 boundary. The above guidelines may be amended from time totime in order to comply with applicable Buildingand Zoning Codes. Notwithstanding the above guidelines, allbuildings and structures shall be built incompliance with the applicable Building andZoning Codes. Any requirement in theseguidelines which is inconsistent with theBuilding and Zoning Codes, from time to time ineffect, shall be construed in a manner consistentwith such Codes to the extent possible and theCodes shall govern. Landscaping - Buffers between lots are encouragedthrough the use of natural vegetation. -7-5821D Each lot owner is responsible for any and all actions of all contractors, subcontractors or other workers, employees etc. employed by them or on their behalf. Trailers, mobile homes, camper vehicles, camping trailers, RV's, and other mobile living quarters are not permitted.unless uninhabited, and stored within enclosed structures.Stored boats must also be unoccupied, and may be so stored only in Uncle Robert's Cove or at the Cove's edge or elsewhere as the Association shall from time to time designate.The "winter" storage of boats is not permitted along the shoreline of Uncle Roberts Cove unless the boat is stored in an enclosed boat house and out of sight.One or two small tente, for use only of the immediate family or guests of Lot Owners and containing no kitchen or toilet facilities, may be erected on any Lot for not more than thirty days per year. No motor vehicles of any type shall be permitted on beaches, dunes or trails or any areas outside of the Zone of Improvement or Smith's Point Road except as necessary to maintain such areas or in the event of an emergency. At no place on the Property is hunting permitted unless determined by the Architectural Review Committee to be necessary to control and/or manage certain animal or bird populations or to prevent nuisance therefrom. No foundation excavation or construction of concrete foundations shall be performed between June 15 and the Wednesday after Labor Day. -8-5821D .939!liain street rt 6a yarmouth port mass 02675 down cape en * g civil engineers & lanc .E 0 V# 5structural design 7October 26,2000 3021 land court surveys ]AFF CODCape Cod Commission IMMISSION Route 6A site planning Barnstable, MA 02630 OCT CC (508) 362-4541 fax (508) 362-9880 F Arne H. Ojala RE., RL.S. Timothy H. Covell, RL.S. Daniel A. Ojala, RL.S. Re: Nolen residential site plan, Great Island, West Yarmouth sewage system designs Dear Commission Members: inspections Please be advised that I have calculated the HH" (or building envelope area) and the "S" (septic envelope area) on the plan entitled "Site Plan Approval for Smith Point permits Subdivision Single Family Cluster Subdivision Uncle Roberts Road Yarmouth, MA, dated 4/19/90 and find the following: [: 21,244 square feet : 11,103 square feet I have calculated the revised building and septic envelopes as per plan entitled "Title 5 Site Plan ofLot 101, Smith's Point Road, (Great Island) West Yarmouth, prepared for Christian Nolen and Susan Denny and dated revised 10/25/00" and find the following: Revised building envelope: 15,477 square feet Revised septic envelope: 6733 square feet Very truly yours,4/74/1. «6 - Ame H. Ojala, PE, PLS Down Cape Engineering, Inc.Ne.0 cul.fo Fcok- «er/.\ to .-6 000 !.1/1 113 1,1 , J A