HomeMy WebLinkAboutCivil Action 2277 •
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BARNSTABLE, ss. SUPERIOR COURT
No.
46241
JOSEPH M. BREWSTER et al
Trustees of Brewster Family Realty Trust
vs.
BOARD OF APPEALS, TOWN OF YARMOUTH
- and -
INSPECTOR OF BUILDINGS, TOWN OF YARMOUTH 87-379
vs.
JOSEPH M. BREWSTER et al, Trustees
MEMORANDUM OF DECISION AND ORDER
STATEMENT OF CASE
Civil action 46241 sets forth an appeal under the provisions
of G.L. c. 40A, § 17, from a decision of the defendant, Town of
Yarmouth Board of Appeals, denying the plaintiffs' request for a
special permit to utilize a motel unit for use as a real estate and
insurance office. This action was subject to a remand to the Board
of Appeals in 1991, and by decision dated September 20, 1991, the
Board affirmed the denial of the plaintiffs' request for a special
permit. Civil action 87-379 is a zoning enforcement action brought
by the building inspector of the Town of Yarmouth against Brewster
seeking to enjoin the continued use of the unit for the plaintiff's
insurance business. The request for a preliminary injunction was ' !
denied and the actions were consolidated for trial.
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FINDINGS OF FACT
1. The plaintiffs, Joseph M. Brewster and Mary L. Brewster,
Trustees, are the owners of Unit 1 of the Seaview Motel Condominium
created by Master Deed dated September 8, 1981, recorded with the
Barnstable County Registry of Deeds, Book 3357, Page 225.
According to the Master Deed, Unit 1 contains 837 square feet.
2. On February 19, 1981, Fairlawn Enterprises, Inc. d/b/a
Seaview Motel petitioned the Town of Yarmouth Board of Appeals to
allow conversion of one building containing 38 motel units to 10
units containing a total of 20 bedrooms and 20 baths. Also
involved in the petition was a request for a variance in relation
to setback requirements. The Board allowed the petition on the
grounds that the reduction of number motel units would lessen
traffic and improve the appearance of the site. The 1981 decision
specifically denied any change of use from R-1 motel to R-2 multi-
family use. In 1981, motel purposes were an allowed use within the
general business zoning district in which the subject property is
located.
3. The entire condominium consists of 10 units ranging in
size from 756 square feet 837 square feet, being shown on Site Plan
Seaview Condominium, South Yarmouth, MA, July 31, 1981, recorded
with the Barnstable County Registry of Deeds, Plan Book 357 , Page
4. Such units are located on Lot A, being bounded on the north by
Route 28, on the west by Seaview Avenue, on the South by Hough's
Road and on the East by Lot B which contains a swimming pool and
large motel structure. Lot B is not part of the Seaview Motel
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Condominium.
4. Article XXVI of the Master Deed provides that Units 1,
2, and 3 shall have the right to be used for limited business uses
as real estate brokers offices or for professional offices. By
deed dated October 3, 1985, Dale Crowder, Trustee of the DEC Realty
Trust conveyed Unit 1 of the Seaview Motel Condominium to the
plaintiff Brewster. The transfer was made subject to the
condominium unit being able to be used for an insurance/real estate
office. As noted, this use was permitted by the Master Deed and
the units had in fact been used for business purposes since 1982 .
5. In 1986, the plaintiffs filed a request with the Town for
a sign permit at which time the building inspector indicated that
the property was to be used for motel purposes only. In response,
plaintiffs filed an application with the Board of Appeals seeking
a variance or a special permit for change in use from motel
purposes to authorize the real estate and insurance business to be
conducted on the subject property. The Town denied the request
citing traffic congestion and insufficient parking.
6. Brewster appealed the decision of the Barnstable Superior
Court after, which ,the matter was remanded back to the Board of
Appeals for further findings in 1991. By decision dated September
20, 1991, the Board again denied the petitioners' request for
issuance of special conditions and/or special permit. The
reasoning of the Board in 1991 was that the plaintiffs ' use
required five parking spaces and, therefore, was subject to g
301.4.3 of the by-law applicable to any business needing five or
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more parking spaces which required a thirty-foot buffer strip and
other conditions that could not be fulfilled on the subject
property.
7. The Yarmouth zoning by-law requires one parking space for
every 200 square feet of business use. An insurance agency is a
permitted use in this district.
8 . The plaintiffs presently utilize approximately 200 feet
of Unit 1 as an insurance office. The only persons working in the
agency are the plaintiff and his wife. The evidence is undisputed
that this business use generates four motor vehicle trips a day to
the site. There are a total of nine parking spaces directly
adjacent to the property; four to the front and five to the side.
The parking spaces are clearly separated from other spaces by
railroad ties and landscaping. The Court finds that although not
stated in the Master Deed, as a practical matter, the plaintiffs
have approximately six parking spaces for their own use and
benefit.
9. Clearly, this small insurance agency does not create any
problems of parking and/or traffic in the vicinity of the Seaview
motel corner. As indicated in the 1981 decision' of the Board of
Appeals, there are far fewer vehicles parked on the site for ten
motel condominiums than there were for thirty-eight motel units.
The uncontradicted testimony of plaintiffs is that there is never
a parking problem on Lot A.
10. The plaintiffs are caught in an unfortunate situation not
of their own iiaking. The record reflects that in 1981, the Board
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of Appeals authorized certain changes in the motel. The changes
related to condominium ownership but not to the change of use.
Thereafter, without any consent from the Board, each of these units
was furnished with a kitchen and became a multi-family use. The
Board has never taken any action relative to this use. This change
would trigger the provisions of § 301. 4.3 of the by-laws requiring
that parking spaces of five or more cars shall be designed in a
particular manner with a buffer area. The Board has now attempted
to piggy-back this request for a buffer area onto the plaintiffs'
insurance business. Obviously, this is a financial burden which
the plaintiffs cannot endure.
11. The decision of the Board of Appeals is arbitrary and
capricious. The record is clear that the plaintiffs' proposed use
does not create any parking and/or traffic problems and is a
permitted use in a business zone. The Board may impose reasonable
regulations upon the use but requirement that the owners of Unit
1 provide the buffer zone that should have been required from the
entire condominium is not one of them. Therefore, the decision
cannot stand.
RULINGS OF LAW
1. The task of the Court is to determine whether the
applicant for a special permit is able to demonstrate at a de novo
hearing that the Board has based its decision on a legally
untenable ground or is unreasonable, whimsical, capricious, or •
arbitrary. Humble Oil and Refining Co. v. Board of Appeals of
Amherst, 360 Mass. 604, 605 (1971) .
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2 . Because the use is permitted, the Board of Appeals is
limited to the imposition of reasonable conditions in connection
with the approval of a site plan. Y-D Dugout, Inc. v. Board of
Appeals of Canton, 357 Mass. 25 (1970) .
3 . When the use is a use permitted as of right within the
district then if a specific area in use criteria stated in the by-
law is satisfied, the Board of Appeals does not have discretionary
power to deny approval but instead is limited to reasonable terms
and conditions on the proposed site. Prudential Insurance v. Board
of Appeals of Westwood, 23 Mass. App Ct. 278 (1986)
ORDER
Based upon the foregoing, it is hereby ORDERED that judgment
shall enter that the decision of the Town of Yarmouth Zoning Board
of Appeals denying a special permit and/or site plan approval to
the plaintiffs, exceeded its authority and is ANNULLED. The Town
is to issue the appropriate documents to permit the plaintiffs to
operate an insurance business using four hundred square feet of the
subject premises.
In civil action 87-379 , it is hereby ORDERED that the request
for a permanent injunction is DENIED.
—?%'.. / --' 0Aj ) L
Gerald F. O'Neill, Jf.
Justice of the Superior✓/Court
Dated: October 6, 1993
A true copy, Attd ,
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QJmmunmunra1fl of : ss$xr1pm 1I.s
BARNSTABLE, ss. SUPERIOR COURT
No. 46241
JOSEPH M. BREWSTER et al,
TRUSTEES OF BREWSTER FAMILY REALTY TRUST
VS.
BOARD OF APPEALS, TOWN OF YARMOUTH, et al
JUDGMENT ON FINDINGS BY THE COURT
This action came on for trial before the Court , O' Neill , J. ,
presiding, and the issues having been duly tried and findings
having been duly rendered,
it is ORDERED and ADJUDGED:
(1) that the decision of the Board of Appeals , Town
of Yarmouth, after remand, dated September 20 ,
1991 , denying a special permit and/or site plan
approval to the plaintiffs , exceeded its authority
and is annulled; and
(2 ) that the Town is to issue the appropriate documents
to permit the said plaintiffs to operate an insurarce
business using four hundred square feet of the subject
premises ; and
( 3 ) that the Clerk of this Court within thirty days
after entry of this judgment shall send copies
thereof to the Board of Appeals , Building Inspector
and the Clerk of the town of Yarmouth.
ti
Dated at Barnstable, Massachusetts , this eighth day of
•\��October, 1993 . .
0 FORM OF JUDGMENT APPROVED: . ,
µme j
uustice of the Superior ours Clerk
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TuttuttututtrEdlir of ix assztripturlia
BARNSTABLE, ss. SUPERIOR COURT
No. 87-379
INSPECTOR OF BUILDINGS,
TOWN OF YARMOUTH
VS.
JOSEPH M. BREWSTER et al , TRUSTEES OF
BREWSTER FAMILY REALTY TRUST, d/b/a CAPE TOWN INSURANCE AGENCY
JUDGMENT OF DISMISSAL
This action came on for hearing before the Court, O ' Neill , J . ,
presiding, and the issues having been duly heard and findings
having been duly rendered, .
it is ORDERED and ADJUDGED:
that the complaint of the plaintiff, Inspector of Buildings ,
Town of Yarmouth, is dismissed with prejudice.
Dated at Barnstable , Massachusetts , this eighth day of
October, 1993 .
FORM OF JUDGMENT APPROVED:
"/:-/1 %
Justice of the S�fperior Clo t • /-��"// mot '
Clerk
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A true copy, Attest:
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a 3oK3357 PAGE 255 24740
MASTER DEED
OF
SEAVIEW MOTEL CONDOMINIUM
WE, PHILIP HAFT and ROSE R. HAFT, Trustees of SEAVIEW
MOTEL CONDOMINIUM TRUST, under a written Declaration dated ....
$eDtember,$ , 1981, and recorded with the Barnstable County
Registry of Deeds in Book J•� 7, Page 0Z-'7a(, hereinafter called
the Declarant, being the sole owners of the land and buildings in
Yarmouth (South), Barnstable County, Massachusetts hereinafter
described, by duly executing and recording this Master Deed, do
hereby submit said land together with the buildings, improvements
and structures located thereon to the provisions of Chapter 183A
of the General Laws of Massachusetts, as amended, and propose to
create and do hereby create a condominium to be governed by and
subject to the provisions of said Chapter 183A, and to that end,
we hereby declare and provide as follows:
I.
The name of the co
ndominium shall be the SEAVIEW MOTEL
CONDOMINIUM.
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I'.
A description of the land on which the buildings and
improvements are located is set forth and described in Exhibit A
attached hereto and made a part hereof, which land and buildings
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are subject to and have the benefit of, as the case may be, the
easements, encumbrances, restrictions and appurtenant rights set
forth and contained in said Exhibit A.
zrz.
The description of the buildings comprising the
Condominium, stating the number of stories, the number of units
and the principal material of which they are constructed is set
forth and described in Exhibit B attached hereto and made a part
hereof.
IV.
A. The unit designation of the condominium units,
location and approximate areas, number of rooms, immediately
accessible common areas and other descriptive specifications
thereof are as set forth in Exhibit C attached hereto and made a
part hereof and as shown on the floor plans attached hereto and
made a part hereof.
B. The boundaries of the Units are as follows:
(1) Roofs - The plane of the outer surface of the
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roof shingles;
(2) -Exterior Building Walls, Doors and Windows - As
to walls, the plane of the exterior surface of the shingles, or
with respect to basement areas, the exterior of the basement wall;
as to doors, the exterior surface thereof; and as to windows, the
exterior surface of the glass and of the window frames;
(3) floors -. The plane of the outer and exterior
surface of the lowest floor;
(4) Foundations, chimneys, gutters, downspouts,
drains, flues, vent pipes, railings, steps, bulkheads, fireplaces •
and other features connected to or extending from said surfaces of
a unit are a part of the unit; and
(5) Drainage pipes and waste disposal systems that
serve only one unit are a part of the unit.
V.
The common areas and facilities of the condominium shall
include:
A. Such areas and items listed as such in Section 1 of
said Chapter 183A and those hereinafter listed, and without
limiting the foregoing, all areas and facilities of the
condominium as are not within a unit of the condominium;
. B. All conduits, ducts, pipes, plumbing, wiring, flues
and other facilities for the furnishings of utility services which
are contained within any unit which serve parts of the condominium
other than the unit within which such facilities are contained•; {
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C. All land, lawns, trees and facilities thereof,
lighting fixtures, plants and parking and other improved or
unimproved areas not within the units, except that each unit owner
shall have access to the crawl space under his unit through any
outside areaway that may exist.
D. All other apparatus and installations in the
buildings, if any, for common use or necessary or convenient to
the existence and maintenance or safety of the condominium.
The common areas and facilities shall be subject to the
provisions of the By-Laws of Seaview Motel Condominium Trust,
hereinafter referred to, and to the rules and regulations
promulgated pursuant thereto with respect to the use and
maintenance thereof.
E. Rules and regulations presently in effect are
attached hereto and marked Exhibit "Ea.
VI.
The owners of each unit shall be entitled to `an undivided
interest in the common areas and facilities in the percentage set
forth in Exhibit D attached hereto and made a part hereof, which
percentage was determined as required by the provisions of said
Chapter 183A.
VII.
Recorded herewith as part of the hereinbefore mentioned,
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BOOK3357PICE 259
Seaview Motel Condominium Plan is a set of floor plans of the
building showing the layout, location, unit numbers and dimensions
of the units stating the names of the buildings as• letters and
units as numbers, and bearing the verified statement of a
registered surveyor certifying that the plans fully and accurately
depict the layout, location, unit numbers and dimensions of the
units as built.
VIII.
A. Each .of the units of the Condominium is intended to
be used solely for single family residence-recreational motel
purposes, unless a unit contains more than one dwelling area, a
self-contained area with its own kitchen and bathroom facilities,
in which case, said unit may be used by as many families as there
are dwelling areas within a unit, in accordance with the By-Laws
of the Seaview Motel Condominium Trust, provided, however, that
such units may be used by the Declarant for other purposes
temporarily pursuant to provisions of and subject to the
limitations set forth in Paragraph VIII C.
B. The outdoor parking areas are intended to be used for
the parking of private passenger cars and not for trucks or other
vehicles or items, except with prior written permission of the
Board of Trustees of the Condominium trust; and
C. As provided in the foregoing Paragraph VIII A., the
Declarant hereof may, until all of said units have been sold by
the Declarant (1) let or lease a unit or units which have not been
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BOOK3354IPSE 260
sold by them and (2) use any unit or units owned by them as a
model for display for purposes of sale or leasing of units.
B. Each of the units can be sold only as an entirety,
and no dwelling area within a unit can be sold separately from the
unit of which it is a part.
IX.
A. Unless otherwise permitted by instrument in writing
and duly executed by the Board of Trustees of the Seaview Motel
Condominium Trust pursuant to the provisions of the By—Laws
thereof;
(1) No such unit or dwelling area when a unit
contains more than one dwelling area shall be used for any purpose •
other than as a dwelling for one (1) family as permitted under
Section VIII A., above;
(2) No business activities of any nature shall be
conducted in any such unit;
(3) -No animals of any kind, including birds and
reptiles, except for ordinary household pets, shall be kept or
permitted in any unit or in or on the common areas and facilities.
(4) The architectural integrity of the buildings and
the units shall be perserved without modification and to that end,
without limiting the generality of the foregoing, no balony,
enclosure, awning, screen, antenna, sign, banner or other device
and no exterior change, addition, structure, projection,
decoration or other feature shall be erected or placed upon or
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attached to any such unit or any part thereof, nor addition to or
change or replacement of any exterior light, door knocker, or
other exterior hardware shall be made, and no painting or other
decorating shall be done on any exterior part or surface of any
unit nor on the interior surface of any window; and
(5) No unit shall be used or maintained in a manner
contrary to or inconsistent with the By-Laws of the Seaview Motel
Condominium Trust and rules and regulations which may be adopted
pursuant thereto.
Said restrictions shall be for the benefit of the
owners of all of the condominium units and the Board of Trustees
of the Seaview Motel Condominium Trust as the persons in charage
of the common areas and facilities, shall be enforceable solely by
said Board of Trustees, and shall, insofar as permitted by law, be
perpetual; and, to that end, may be extended by said Board of
Trustees at such time or times and in such manner as permitted or
required by law for the continued enforceability thereof. No unit
owner shall be liable for any breach of the provisions of this
Paragraph, except such as occur, during his or her ownership
thereof.
B. Notwithstanding anything in this Master Deed to the
contrary, each unit may have an addition built onto it but only to
the extent permitted by right by the laws of the Town of Yarmouth
and not otherwise.
X.
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• This Master Deed may be amended by an instrument in
writing (1) signed by the owners of units entitled to seventy
(70%) percent or more of the undivided interests in the common
areas and facilities, and (2) signed and acknowledge by a majority
of the Board of Trustees of Seaview Motel Condominium Trust, and
(3) duly recorded with the Barnstable County Registry of Deeds;
provided, however, that:
A. The date on which any such instrument is first signed
by a unit owner shall be indicated thereon as the date thereof and
no such instrument shall be of any force or effect unless the, same
has been recorded within six (6) months after such date;
B. No instrument of amendment which alters the
dimensions of any unit shall be of any force or effect unless the
same has been signed by the owners of the unit so altered;
C. No instrument of amendment which alters the
percentage of the undivided interest to which any unit is entitled
in the common areas and facilities shall be of any force or effect
unless the same has been signed by the owners of all of the units
and said instrument is therein designated as an Amended Master
Deed;
D. No instrument of amendment affecting any unit in a
manner which impairs the security of a first mortgage of record
thereon held by a bank or insurance company or a purchase money
second mortgage held by the Declarant or their successors or
assigns shall be of any force or effect unless the same has been
assented to by such holder; and
E. No instrument of amendment which alters this Master
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B OK3357 v.".GE 263
Deed in any manner which would render it contrary to or
inconsistent with any requirements or provisions of said Chapter
183A of the General Laws of Massachusetts shall be of any force or
effect.
XI.
The organization through which the unit owners will
manage and regulate the condominium established hereby is an
unincorporated trust known as the Seaview Motel Condominium Trust. •
Said •Trust has been formed and has enacted By-Laws pursuant to
said Chapter 183A and are to be recorded herewith.
AlI unit owners in the Seaview Motel Condominium Trust
shall be members of the Trust of unit owners and such owners shall
have an interest in proportion to the percentage of undivided
interest in the common areas and facilities to which they are
entitled hereunder. The name and address of the original and
present Board of Trustees thereof is as follows:
Philip Haft and Rose R. Haft
Seaview Motel
Route 28
South Yarmouth, Massachusetts 02664
XII.
If any portion of the common elements now encroaches upon
any unit, or if any unit now encroaches upon any other unit or
upon any portion of the common elements, or if any such -
encroachment shall occur hereafter as a result of (1) settling of
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the buildings, or (2) alteration or repair to the common elements
made by or with the consent of the Board of Trustees of the
Seaview Motel Condominium Trust, or (3) as a result of repair or
restoration of the buildings or a unit thereof after damage by
fire or other casualty, or (4) as a result of condemnation or
eminent domain proceedings, each unit owner shall have the benefit
of and be subject to a valid easement which shall exist for such
encroachment and for the maintenance of the same so long as the
buildings stand.
X I I 1.
Each unit owner shall have an easement in common with the
owners of all other units to use all pipes, wires, ducts, flues,
cables, conduits, public utility lines and other common elements
located in any of the other units and serving his unit. Each unit
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shall be subject to an easement in favor of the owners of all
• other units to use the pipes, wires, ducts, flues, cables,
conduits, public-utility lines and other common elements serving
other units and located in such unit. The Board of .Trustees of
the Seaview Motel Condominium Trust Shall have a right of access
to each unit to inspect the same to remove violations therefrom
and to maintain, repair or replace the common elements contained
therein or elsewhere in. the buildings.
XIV.
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6GO 3357nGE 265
All present and future owners, tenants, visitors,
servants and occupants of units shall be subject to and shall
comply with the provisions of this Master Deed, the Unit Deed,
By-Laws and the rules and regulations, as they may be amended from
time to time. The acceptance of a deed or conveyance or the
entering into occupancy of.any unit shall constitute an agreement
that (1) provisions of this Master Deed, the Unit Deed, the
By-Laws and the rules and regulations as they may be amended from
time to time are accepted and ratified by such owner, tenant,
visitor, servant or occupant, and all such provisions shall be
deemed and taken fo be covenants running with the land and shall
bind any person having at any time any interest or estate in such
unit, as though such provisions were recited and stipulated at
length in each and every deed or conveyance or lease thereof, and
(2) a violation of the provisions of this Master Deed, the Unit
Deed, By-Laws or rules and regulations by any such person shall be
deemed a substantial violation of the duties of the condominium
unit owner.
XVI.
The invalidity of any provision or provisions of this
Master Deed shall not be deemed to impair or affect in any manner
the validity, enforceability or effect of the remainder of this
Master Deed, and, in such event, all of the other provisions of
this Master Deed shall continue in full force and effect as if
such invalid provision had never been included herein.
No provision contained in this Master Deed shall be
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6OOK3357p.OE 266
deemed to have been abrogated or waived by reason of any failure
to enforce the same, irrespective of the number of violations or
breaches which may occur.
XVII.
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This Master Deed is set forth to comply with the
jI requirements of Chapter 183A of the General Laws of the
Commonwealth of Massachusetts. In case any of the provisions
stated above conflict with the provisions of said statute, the
provisions of said statute shall control. The units and common
areas and facilities and the unit owners and the Seaview Motel
Condominium Trust shall have the benefit of and be subject to the
provisions of aaid Chapter 183A of the General Laws of
Massachusetts, and in all respects not specified in this Master
Deed or in said By-Laws of the Seaview Motel Condominium Trust
shall be governed by provisions of said Chapter 183A in their
relation to each other and to the condominium established hereby,
including without limitation, the provision thereof, with respect •
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to common expenses, funds and profits, with respect to the •
improvement and rebuilding of common areas and facilities, and •
with respect to removal of the condominium premises or any portion
thereof from the provisions of said Chapter 183A.
XVIII
The Declarant reserves and shall have the right, without
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the consent of any unit owner, pursuant to end in accordance with
any provision herein to assign to each unit the use of one parking
apace at the time that the buildings in which each unit is located
is included in this condominium. The designation of parking
spaces to such unit shall be made in the first deed of the unit by
the Declarant or his successor in interest.
XIX
The Declarant hereby grants an appurtenant right to each
unit owner to use.the swimming pool and the concrete apron
surrounding the swimming pool as shown on Lot S on the said plan.
Together with the right to cross and recross Lot B from Lot A over
the 10 foot wide walking easement as shown and described as
Proposed easement as shown on said plan for the purposes of using
the said swimming pool and the surrounding concrete apron.
XX
Each unit owner shall be solely responsible for the
maintenance and care of his or her buildings and it shall not be
the responsibility of other unit owners to maintain and care for
any other buildings in this condominium encept for their own.
Also, each unit owner shall be responsible for the adjoining
breezeway as shown on the said plan, even though the breezeway
areas themselves shall be considered common areas. Unit owners of
Units #1, #10, and #9 shall be responsible for the maintaining and
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6OO 3357ncE 268
caring of the breezeway attached to the South side of their
building. Unit owners of Units #$ and #7 shall be responsible for
the maintaining and caring of the breezeway attached to the East
side of their building. Unit owners of Units #6, 45, and #4 shall
be responsible for the maintaining and caring of the'breezeway
attached to the North side of their building. But it is
specifically understood that the breezeway areas themselves are
common areas to be shared and used by all of the unit owners in
this Condominium.
XXI
Only Unit #2 in Building A of this Condominium has a full
basement and within that basement are all of the water meters.
There is granted appurtenant with each conveyance of each unit a
right to use the basement of Unit #2 in Building A for the
purposes of having the unit owners of this Condominium or their
agents, servants or representatives or members of the Town of
Yarmouth Water Department to enter the said basement for the
purposes of maintaining and reading or caring for the water meters
in the said basement of Unit #2 of Building A.
XXXI
Attached to Unit #10 in Building H of this Condominium on
the outside of the said building is the placement of the electric
meters. There is granted appurtenant with each conveyance of each
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unit a right to access to the outside of said Unit 110, Building
H, as shown on said plan by the unit owners of this Condominium or
their agents, servants or representatives or members of the
utilities companies for the purposes of maintaining, reading and
caring for the electric meters attached to the outside of said
building.
XXIII.
As part of the common charges to be levied 'on each
condominium unit shall be the charges and the expenses for the use
and maintaining and caring for the swimming pool as shown on Lot B
on the plan.
• XXIV.
It is hereby specifically understood that no part of Lot
B shall be considered as part of this Condominium.
XXV.
If there are any parking spaces in the said Condominium
above those which are designated to each unit, then in that event,
the additional parking spaces on the said Condominium shall be
used as designated by the Board of Trustees as they shall decide
. from time to time as they see fit and appropriate.
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a043357PAof 270
XXVI.
In addition to the use of Units 41, 2, and 3 in Building
A as set forth in Article VIII of this Master Deed, the said Units
1, 2, and 3 of Building A shall also have the right to be used for
limited business uses as a real estate broker's office or for
professional offices. .
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400K3357P±r,E 271
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XXVI.
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All terms and expressions herein used whibh are defined ,}
in Section 1 of said Chapter 183A shall have the same meanings
herein as set forth in said Section 1.
IN WITNESS WHEREOF, PHILIP HAFT and ROSE R. HAFT,
Trustees have hereunto set their hands and seal this 8th day 1
of September , 1981. f
S
Ph lip H ft, / rustee
A.4,i f64,--
Rose R. Haft, Trustee
COMMONWEALTH OF MASSACHUSETTS
Barnstable, SS. September,$ , 1981
Then personally appeared the above-named PHILIP HAFT and
ROSE R. HAFT, Trustees as aforesaid, and acknowledged the
foregoing instrument to be their free act and deed, before me,
Notary Public 1
My commission expires; :400),-
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60%3357 PdGE 272
SEAVIEW MOTEL CONDOMINIUM
EXHIBIT A
The land situated in Yarmouth (South), Barnstable County,
Massachusetts being bounded and described as follows:
BEGINNING
WESTERLY by Seaview Avenue, a forty (40') foot wide public
road as shown on said plan hereinafter described,
a total distance of one hundred fifty and 32/100
(150.32) feet;
NORTHWESTERLY by Seaview Avenue and Route 28, a State Highway of
variable width as described on said plan on a
curved line having a radius of thirty five (35)
feet;
NORTHERLY by said Route 28 as shown on said plan a distance of
one hundred fifty and 58/100 (150.58) feet;
EASTERLY by Lot B as shown on said plan a distance of
two hundred six and 69/100 (206.69) feet;
SOUTHERLY by Howes Road, a forty (40') foot public way as
shown on said plan a distance of one hundred
sixty one and 36/100 (161.36) feet; and
SOUTHWESTERLY by Howes Road and Seaview Avenue as shown on said
plan on a curved line having a radius of eighteen
-and 60/100 (18.60) feet to the point of
beginning
Said property being shown on a plan of land entitled 'Site Plan of
Seaview Motel Condominium, South Yarmouth, Mass. for Philip & Rose
Haft, Scale: 1" .. 20 ft., dated July 31, 1981, drawn by Eldredge
Engineering Co., Inc.". Said plan being duly recorded in the
Barnstable County Registry of Deeds in Plan Book 3 S? , Page nt
No part of Lot B as shown on said plan shall be included as part
of this condominium.
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aooK3357 ME 273
SEAVIEW MOTEL CONDOMINIUM
EXHIBIT B
• E
The Condominium consists of eight (8) buildings, said
buildings being designated Buildings A through H.
Building A contains three (3) dwelling units being
designated Units $1 through 3. All of the other buildings contain F
one dwelling unit only. Each building has a single floor.
The building is constructed primarily of wood frame and
each dwelling unit obtains electricity through a separate meter.
All units have a crawl space except for Unit 2 in Building A which
has a full cellar.
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•$OOK335 GE 274
SEAVIEW MOTEL CONDOMINIUM
EXHIBIT C
Unit No. of Approx. Sq.
Designation Building Location on Property Rooms Ft. in Area
1 A Westerly portion 4 837 •
of building
2 A Center portion 4 756
of building
3 A Easterly portion 4 833
of building
• 4 B Easterly--Central 4 833
portion of property
5 C Easterly portion 4 833
of property
6 D Southeastly portion 4 833
of property
7 E Central-Southerly 4 833
portion of property
8 F Southwest portion 4 833
of property
9 C Central-Westerly 4 833
portion of property
10 H Central-Westerly 4 833
portion of property
The common areas that each of the units has immediate access to
are the grounds and the parking area.
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$Oox3357P,6£ 275
SEAVIEW MOTEL CONDOMINIUM
EXHIBIT D
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Each unit has approximately the same fair market value as of the
date of the Master Deed.
Unit Percent of Undivided Interest
Designation in Common Areas and Facilities
{
1 10.139%
2 9.157%
3 10.088%
4 10.088%
5 10.088%
10.088%
7 10.088%
8 10.088%
9 10.088%
10 10.088%
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D4dK74#GE 276
I3
SEAVIEW MOTEL CONDOMINIUM
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EXHIBIT E
RULES AND REGULATIONS
Under and pursuant to the provisions of the Declaration
of Trust and By-Laws of the SEAVIEW MOTEL CONDOMINIUM, the
Trustees hereby adopt the following rules and regulations:
1. Sidewalks, entrances, driveways and passages shall
not be obstructed or used for any other purposes than for ingress
to and egress from the units.
•
} 2. The common areas shall not be used for the storage or
placement of furniture or any other articles; including but not
limited to plants, boxes, shopping carts, etc.
3. No owner or occupant shall make or permit any
disturbing noises to be made in the building or on the premises by
himself, his family, friends, tenants, servants, or other
invitees; nor do or permit anything to be done by such persons
that would interfere with the rights, comforts, or convenience of
other owners or occupants.
No owner or occupant shall play or allow to be played
any musicial instrument, radio, TV, hi-fi, tape recorder, or the
like in the demised premises between the hours of I1:00 PM and the
following 8:00 AM if the same shall disturb or annoy other owners
or occupants of the building.
4. Owners and occupants shall not be allowed to put
their names in any entry of the building, except in the proper
place or in the mailbox provided for use of the units occupied by
them respectively.
5. No rugs shall be beaten on patios or outdoor living
areas, nor dust, rubbish or litter swept from the demised premises
or any room thereof into any entryways of the building.
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DQOX335711uE 2707
6. Children shall not be permitted to loiter or play on
the parking ramps or any other common areas.
7. The water closets and other water apparatus shall not
be used for any purposes other than that for which they were
constructed, and no sweepings, rubbish, rags, papers, ashes, or
other substances shall be thrown therein. Any damage to the
property of others, including the common elements, resulting from
misuse of such facilities of any nature or character whatever,
shall be paid for by the owner of the unit.
8. All damage to the project, caused by the moving
and/or carrying of articles therein, shall be paid by the owner or
person in charge of such articles.
9. Nothing shall be thrown or emptied by the owners or
their tenants or servants out of the windows or doors, or in the
common areas, nor shall anything be hung from outside of the f
windows or placed on the outside window sills.
10. Dogs, cats, and other domestic pets are not allowed
in the demised premises.
11. The water shall not be left running any unreasonable
or unnecessary length of time in the demised premises.
12. No occupant shall interfere in any manner with any
portion of the lighting apparatus in or about the building.
13. No shades, awnings, or window guards shall be used
except as shall be put up or approved by the Trustees, and no
signs of any kind shall be placed in windows or on doors or other
exterior surfaces or common elements without prior written
approval of the Trustees.
14. No radio or aerial or connection shall be installed
by the occupants outside of their respective units.
15. Unless the Trustees give advance written consent in
each and every instance, occupants shall not install or operate in
the premises any machinery, or use any illumination other than
electric light or use or permit to be brought into the building or
onto the premises any inflammable oils or fluid, or other
explosives or articles deemed hazardous to life, limb or property.
16. All garbage, refuse, waste and other like items shall
be securely and suitably wrapped and placed in appropriate
receptacles provided therefor and located outside.
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17. The Trustees may retain a passkey to each unit, to be
used for emergencies only. No other shall alter any lock or
install a new lock on any door leading to the unit of such owner
without the prior consent of the Trustees. If such consent is •
given, the owner shall provide the Trustees with a key for the
Trustees' use as aforesaid.
18. No vehicle belonging to an owner or to a member of
his family or guest, subtenant, ar employee of any owner shall he
parked in such a manner to impede or prevent ready access to
another owner's parking space. The owners, their employees,
servants, agents, visitors, licensees, and the owner's family will
obey the parking regulations posted at the parking areas and ramps
and any other traffic regulations promulgated in the future for
the safety, comfort, and convenience of the owners.
19. The owners shall not cause or permit the blowing of
any horn from any vehicle in which his guests, family, tenants,
invitees, or employees shall be occupants, approaching or upon any
of the driveways or parking areas serving the building, except as
may be necessary for the safe operation thereof,
20. An owner shall not use, nor shall he permit his
family, guests, tenants, or invitees to use parking spaces of
other owners. The Trustees reserve the right to remove such
vehicles at the expense of the respective owners thereof.
21. The units shall be used for residential purposes
only, and no commercial or business uses shall be undertaken or
permitted therein. No unit may be rented more than two times per
calendar year.
22. The Trustees reserve the right to amend, change and
rescind these rules and regulations and to make such other rules
and regulations from time to time as may be deemed necessary and
desirable for the safety, care, anad cleanliness of the premises
and for securing the comfort and convenience of all the occupants
fi thereof.
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.r..,1: • .....iF:„....• SEAVIEW MOTEL CONDOMINIUM .
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1 i '.1:.,-.:.:-..- FIRST AMENDMENT TO
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.4 MASTER DEED.
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. Individually and
WE, PHILIP HAFT and ROSE R. HAFT; being Trustees of
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.•• SEAVIEW MOTEL CONDOMINIUM TRUST, under a written Declaration dated
September 8 , 1981, and said Declaration of Trust being recorded . •
1
1 i . . .
Ii.I • with the Barnstable County Registry of Deeds in Book 3357 , Page
12,.,:.,'.
t 228 , and having a• usual place of business at Route 28, South ' . •
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Yarmouth, Massachusetts, hereby amend the Master Deed as follows:
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THAT Paragraph #10 of Exhibit "E": Rules and Regulations
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' ? • is hereby deleted and in its place the following Paragraph 110 is
,..', • . !. ',,7..: placed:
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."'Z •- No animals are allowd in the Seaview Motel Condominium :.
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except for dogs, cats and other domesticated pets provided such
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- ..... ';:;.• ' •pets are/4(ot let loose in the Seaview Motel Condominium.
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,rp Dm I 1, • BOOK3360 P!LE 164
Ill' , THAT the Master Deed shall be further amended byadding ,1'�t .
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to it ARTICLE XXVII which will read as follows: •
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ni I Notwithstanding anything herein contained to the ' •`
f-:;;:, t contrary, Declarant reserves the ri ht and
1gal g power to record a
fI�,I , special amendment ("Special Amendment") to this Master Deed at any
� E� , time and from time to time which amends this Master Deed (1) to
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1 comply with requirements of the Federal National Mortgage
i{,f q 1 Association, the Federal Home Loan Mortgage Corporation, the ,,
p il
ii:1 ;{°, t�; ! Department of Housing and Urban Development, the Federal Housing
i li'Fi;� I Association, the Veterans Administration, or any other •
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governmental agency or other public, quasi—public, or private
1i: perform) functions
entity which perform (or may in the future r
Pi.l 'II, similar to those currently performed by such entitites, (ii) to =e
; f ( :. induce any of such agencies or entities to make, purchase, sell, ;J
insure, or guarantee first mortgages covering unit ownerships, !I
1 I (iii) to bring this Master Deed into compliance with Chapter 183A
it :: s
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r• ' ,I; ;i$. of the General Laws of the Commonwealth of Massachusetts, or (iv) I
4 �:.� ,j to correct clerical or t
ypographical errors in this !!aster Deed or . 11
It 1
it ; 1 any exhibit. hereto or any supplement or amendment thereto. In
.; � I ? I furtherance of the foregoing, a power coupled with an interest is
t• ; !,
: hereby reserved and granted to the Declarant to vote in favor of,
I
° �: make or consent to a Special Amendment on behalf of each owner as
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!I�", � I proxy or attorney—in—fact, as the case may be. Each deed,
.44
i ',I''.:! mortgage, trust deed, other evidence of obligation, or other
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1t• I instrument affecting a unit and the acceptance thereof shall be
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II:. 1; deemed to be a grant and acknowledgement of, and a consent to the
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_• i •^s`, reservation of, the power to the Declarant to vote in favor of,
g — = make, execute, and record Special
r .::.. P Amendments. The right of the
�?,=. :; Declarant to
;;.. act pursuant to rights reserved origranted under this
. `':' . section shall terminate at such time as the Declarant no longer
holds or controls title to any unit.
• 41 The Master Deed is further amended by having Paragraph 21 on Exhibit E
- = of the Master Deed is hereby deleted completely.
•
IN WITNESS WHEREOF, PHILIP HAFT and ROSE HAFT, Trustees have hereunto
•yf�. set their hands and seal this lug
:a ' day of �< t'
•
1981.
•
•
a — P„i -ip Hai
, Truste and Individually
I.
Rose R. Haft, Trustee and Individually -
, ► ' `'.-. COMMONWEALTH OF MASSACHUSETTS
Barnstable, SS.
•
' 1981 i Then personally appeared the above-named PHILIP HAFT and ROSE R. HAFT,
.1; ;
_
Trustees as aforesaid, and acknowledged the foregoing instrument to be their
S
r • free act and deed, before me,
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Notary Pub !'
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My commission expires:
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Formal X Informal Review
SITE PLAN REVIEW COMMENT SHEET
Date: October 14, 2014 New Map: 33 New Lot: 77, C1 —C10
Applicant: Karen Liu, Trustee Seaveiw Motel Condo TR c/o Kieran Healy Old Map: Old Lot:
Location: 781 & 785 Route 28, South Yarmouth Zone: B-2
Persons Present: {{��
Mark Grylls '-" Paul Tardif Jamie Armstrong
Kathy William k Kieran Healy Ryan Holmes (Water)' R'-
Bruce Murphy S0-' '� Rob Angell
Kerry Muldoon1-
$:)
Project Summary
The site includes 10 existing units (cottages)which are currently being used as year-round multi-family in violation
of the Zoning Bylaw. The Condominium Trust has applied for a Special Permit with the ZBA using Bylaw Section
104.3.2(4) paragraph 2 which allows for this conversion if certain criteria are met, or for a Variance. Various site
improvements are proposed to improve parking, vehicle circulation, reduce curb cuts and impervious area, and
improve the aesthetics of the property for it to be utilized for multi-family housing. Improvements to the exterior of
the buildings can now be done by the Condominium Trust as their condominium documents were modified to
allow for this work. A new site plan was presented at the meeting with a last revision date of October 14, 2014.
Comments
Building: Still awaiting relief from the BOA. Building and fire code analysis to be conducted for the change of use.
Building permits are expected for all work beyond "ordinary repairs" as defined in the Building Code, Siding,
roofing, window/door replacement etc. require permits. Comments from previous SPR remain applicable.
Community Development: This project is subject to inclusionary zoning per Section 412 of the Zoning Bylaw. Based on
-the creation of 10 new housing units, two units would need to be deed restricted as affordable in perpetuity. The type of
ownership does not negate adherence to the inclusionary zoning requirements.
Funding may be available through the CEDC Tourism Fund to provide some landscape improvements at the
corner of Route 28 and Seaview Avenue, in exchange for an easement for a tourism sign. Further discussions
are necessary with the Community Development office and CEDC to pursue this option further.
Planning: The applicant presented a revised Proposed Site Plan at the meeting with last revision date of 10/14/14 which
addressed most of the Formal Design Review Comments. Remaining comments include:
1. All plantings to be native species.
2. All fence styles/heights should be noted on the plan. Fencing to screen parking should be a minimum 3'
tall white vinyl picket fence. Fencing to prevent cars from parking on the septic tanks should be white
split rail. Fencing around the dumpster should be white vinyl or wood. Existing wooden fence along the
property boundary should be repaired as necessary.
3. When the building re-siding work is done, the overgrown foundation plantings shall be removed, and
replanted with dwarf species of foundation plantings, native species only.
4. The Design Review Committee recommended using white cedar shingles on all four sides with white trim
and different color doors (muted colonial colors).
5. Future roof replacements shall utilized architectural shingles and future sky lights should be uniform.
The Applicant proposed a three year phasing plan as follows which should be incorporated into the ZBA Special
Permit to ensure this work is done in a timely fashion:
1. Year One: All Site Improvements as shown on the Proposed Site Plan, and residing with white cedar
shingles, foundation plantings and other exterior improvements to units 1, 2, and 3 (units facing Route
28).
2. Year Two: Residing with white cedar shingles, foundation plantings and other exterior improvements to
units 8, 9, and 10 (units facing Seaview Avenue).
3. Year Three: Residing with white cedar shingles, foundation plantings and other exterior improvements to
units 4, 5, 6, & 7 (units facing Howes Road and side yard).
Conservation: Due to the updated floodplain maps, the parcel now falls within Conservation jurisdiction. The proposed
planting list needs to be native species. Applicant should revise list and submit for approval.
Design Review: Refer to the attached Formal Design Review Comments, dated October 7, 2014.
Engineering: Plastic stockade fence is easily damaged by garbage trucks, use wooden fencing.
Fire: Fire lane east side of property by fence, address numbers on each unit. Fire alarm required.
Health: State unit occupancy of 4 people per unit on page 1 condo chart.
44.
r: P4O1pre nt, ap licant should contact Water Department directly. Nr 6,7-=' i t '
Read & Received by Ap li nt(s)
Review is: ❑ Conceptual ❑x Formal 0 Binding (404 Motels/R.O.A.D. Project) ❑x Non-binding(All other commercial projects)
Review is by: 0 Planning Board ❑x Design Review Committee
If this is a conceptual review, a formal review will be required before Site Plan Review.
DESIGN REVIEW COMMENT SHEET
Meeting Date: October 7, 2014 at 4PM in Room B of Town Hall Map: 33 Lot: 77 (C1 thru C10)
Applicant: Seaview Motel Condominium Trust Zone(s): B2
Site Location: 785 Route 28 Lot Size: 37,124 +1-sf
Persons Present:
DCR Members Present Yarmouth Town Staff Present ' Guests
Sara Jane Porter I Kathy Williams, Town Planner Attorney Paul Tardif �p
Jack McCorma - ( Kieran Healy, BSC Group
Charlie Adams I Paul Baron
Anthony Panebi co -4F)
Dick Martin?
DCR Review Started at: 4:50 PM
DCR Review ended at: 5:40 PM
Project Summary
The site includes 10 existing units (cottages)which are currently being used as year-round multi-family in violation
of the Zoning Bylaw. The Condominium Trust has applied for a Special Permit with the ZBA using Bylaw Section
104.3.2(4)which allows for this conversion if certain criteria are met, or for a Variance. At the 2014 ATM, we also
included the requirement that the applicants go through Design Review and Site Plan Review, and develop
improvement plans to accommodate this new use.
The proposed site improvements eliminates 3 of the existing curb cuts, reduces impervious areas along Route 28;
reduces the width of the western curb cut on Route 28; reduces the number of parking spaces that back into
traffic; better defines and organizes the parking and on-site traffic pattern; and provides for additional street trees
and fencing.
A presentation of the project history was given by Attorney Paul Tardif. Improvements to the exterior of the
buildings can now be done by the Condominium Trust as their condominium documents were modified to allow
for this work. Kieran Healy gave a brief summary of the proposed site improvements, including improvements to
some septic system components. The site improvements were estimated at $24,000 and site improvements
would happen in first year.
Paul Baron, property manager, and Attorney Tardif gave a summary of improvements to the buildings. There is
an estimated 3 year phasing of all improvements. In the first year, the site improvements and improvements to
units 1, 2 and 3 would be done. They are proposing to use two neutral color vinyl siding (platinum gray& stone
hearth with "mozart" blue doors) on the fronts of each building, with 1"x5" or 1"x6" corner boards and 1"x4"trim
around windows, with white cedar shingles on the other sides. The next year, units 8, 9 & 10 would be done. The
third year, the remaining 4 units (4, 5, 6 &7)would receive the vinyl siding and shutters. The Design Review
Committee recommended using white cedar shingles on all four sides with white trim and different color doors
(colonial colors).
.'C— -/-
RECEIVED
VIA E-MAIL
Review Comments in Relation To The Design Standards
SITING STRATEGIES
Sect. 1, Streetscape 0 N/A 0 Meets Standards, or 0 Discrepancies:
The streetscape needs to be better defined by adding/modifying street trees/plantings as follows:
• The existing tree to the east side of the Route 28 curb cut is a very small caliper and should be
replaced with a 3"caliper tree. Although there are two pine trees nearby, they offer little
screening for the parking as the canopy is very high.
• The tree at the corner of Seaview and Route 28 should be located behind the sidewalk to
accommodate the existing tourism sign.
• One of the trees shown as being existing on Seaview Avenue has been cut down. Add some
ornamental grass in this area.
• Two proposed shrubs along Route 28 need to be labeled.
Fence styles/heights should be noted on the plan. Fencing to screen parking should be a minimum 3'tall
white vinyl picket fence. Fencing to prevent cars from parking on the septic tanks should be white split
rail. Fencing around the dumpster should be white vinyl for ease of maintenance. Existing wooden fence
along the property boundary should be repaired as necessary.
A note should be added to the plans indicating the removal of all personal items within the common
areas, in accordance with the condominium documents.
When the siding is done, the overgrown foundation plantings shall be removed, and replanted with dwarf
species of foundation plantings.
Sect. 2, Tenant Spaces 0 N/A 0 Meets Standards,or 0 Discrepancies:
Sect. 3, Define Street Edge 0 N/A 0 Meets Standards, or 0 Discrepancies:
See Siting Comments in Section 1 above.
Sect. 4, Shield Large Buildings 0 N/A ❑ Meets Standards,or 0 Discrepancies:
Sect. 5, Design a 2nd Story N/A 0 Meets Standards,or 0 Discrepancies:
Sect. 6, Use Topo to Screen New Development 0 N/A 0 Meets Standards, or❑ Discrepancies:
Sect. 7, Landscape Buffers/Screeninq 0 N/A 0 Meets Standards, or 0 Discrepancies:
See Siting Comments in Section 1 above.
Sect. 8, Parkinq Lot Visibility 0 N/A 0 Meets Standards, or 0 Discrepancies:
Applicant is proposing the use of fencing along section of Route 28 and Seaview Avenue to reduce visibility of
parking areas. Street trees are also proposed.
Traffic is limited to one-way along eastern access from south to north with No Parking signs attached to
existing fence to retain a fire lane and to better define parking areas.
Sect. 9, Break up Large Parkinq Lots 0 N/A 0 Meets Standards, or❑ Discrepancies:
Sect. 10, Locate Utilities Underground 0 N/A 0 Meets Standards, or 0 Discrepancies:
Sect. 11, Shield Loading Areas 0 N/A 0 Meets Standards,or 0 Discrepancies:
BUILDING STRATEGIES
Sect. 1, Break Down Building Mass— Multiple Bldgs. ❑ N/A 0 Meets Standards,or❑I Discrepancies:
The units are small traditional Cape Cod cottage with small breezeways between the buildings and varying
orientation which helps to vary the facade lines, the wall heights and roof lines.
Sect. 2, Break Down Building Mass—Sub-Masses 0 N/A ❑ Meets Standards, or❑ Discrepancies:
Sect. 3, Vary Façade Lines ❑ N/A 0 Meets Standards,or❑ Discrepancies:
See Building Comment 1 above.
Sect. 4, Vary Wall Heights ❑ N/A 0 Meets Standards,or❑ Discrepancies:
See Building Comment 1 above.
Sect. 5, Vary Roof Lines ❑ N/A OMeets Standards,or❑ Discrepancies:
See Building Comment 1 above.
Sect. 6, Bring Down Building Edges ON/A ❑ Meets Standards,or❑ Discrepancies:
Sect. 7, Vary Building Mat'ls For Depth 0 N/A ❑ Meets Standards,or ❑ Discrepancies:
Sect. 8, Use Traditional & Nat'l. Building Mat'ls El N/A 0 Meets Standards, or❑ Discrepancies:
The Design Review Committee recommended using white cedar shingles on all four sides with white trim
and different color doors (colonial colors).
Sect. 9, Incorporate Pedestrian-scaled Features 0 N/A El Meets Standards, or El Discrepancies:
Sect. 10, Incorporate Energy-efficient Design 0 N/A ❑ Meets Standards,or❑ Discrepancies:
Next step for applicant: 0 Go to Site Plan Review ❑ Return to Design Review for Formal Review
41/
Read & R I ed by Applicant(s)
/ i