HomeMy WebLinkAbout2008 Feb 22 - Fax from Atty. Creney to J.Brandolini . �.r
f �
TELECOp�'Y� COV�R SHEET
John C. Creney, P.C.
Attorncy at Law
86 Willow Street
Yarmuuth Po�-t,Massachucetts 02675
if there is a problem with trans�nission or if all pa;es are not received,please call SUS-362-1122 for
retransmission. Fax 508-362-1125
TO: James D. Brandolini FAX#: 508 398-U836
GOMPANY: Towr� �f Yanmouth �
FROM: Jolm C. Creney DATE:Febn�y 22, 2008
�-
RF..: Premases at 24 Viiieyard Street
Number of pages including this cover page: i 2
'i'�iti m�;cage i�intentla!pnly f�r thc usc Of thc individtu�l or ctrtity tp whic;h i[is adtlreSsed,and may�xml8m infotmatiun ihot is
PRIVILGGGD, CONriDGNTIAL and acempt from digciasure under applicable law. !f thc rcadet ot this m�segc is ntn thc
intendal t+ecipient, ctt the emplvyce nr a�ent nesppnsible for ciclivcring the m�.�x�C lii 1he mten�kA recipient, you ste hcr�cby
�ti&d d��t Any disseminsuia�, distribution a copying of this communication is strictly prphibicrd. tf y�m have Ta�eived �his
eonununic:�Gcn�in error,pltase nutify us immalisdely by ielepheme,und rewm�f►e cxiginal to us by tnail without making a copy,
'1'hank ynu.
Comments:
You recite that the premises at 24 Vi�neyard Street, situated in a
residential zQning district, receXved a special permit ft�m the Board of
Appeals dated April 3, 1958 auCharizing construction of a four unit motel
and office space; and that the use has been changed from motel use to
a�artment use, and the former office space has been converted to a fifth
aparimeni. !n the terminology of the zonin� bylaw, the premises are now
used as a multi-family dwelling, i.e., a buildin� containing more than two
dwelling units. As i understand it, the structure has not been altered.
Under. section II, paragraph 11 (F) of the bylaw in existence in 1958,
the Board of Appeals was autharized to grant "appmval" (a sp�cial permit)
for a motel in a residential zoning district, and the Board of Appeals made
such a grant. '17Vhen the motel was constructed, it was a confonming use.
Und.er the current bylaw, motels are a prohibited use in a residential zoning
district. Accord.ingly, if the structure were now used as a four unit motel
with offce space, it would be a lawful nonconforming use.
The use of the structure as a multi-family dwelling is a prohibited use
in a residential zoning district. As such it appears th�t the current use is
,\
, �
noncomplying, meaning neither legai nor in conformance, rather than
nonconforming, meaning leg�l but not complying with current zoning
requirements.
A contention is made that the statute of limitations set forth in G.L. c.
40A, scc. 7 authorizcs th� currcnt use of a lnulti-family dwelling. Section 7
contains bo�h a six year statute �f limitations for structura.l and use
violations, and a ten year sta.tute of limitations fo.r structural violations only.
Since we are speaking of a use violation and not a structural violation, it is
only the six year statute of limitations which is involved. With respect to the
six yeaz statute of limitations, section 7 provides that if.rea( property has
been improved and used in acco.rdance with the terms of the original
building permit, no action for an alleged violation may be commenced more
than six years after the violation. Thus to qualify t'or the protection of th�
six year statute of limitations, the use must ha.ve been lawful when such use
cammenced.
We are not tald when the use of a multi-family d.welling commenced,
but it would be incumbent upon the landowner to show that whenever such
use commenced, it was lawful at that time. In Bruno v. Board af Appeal.s af
Wrenthc�m,, 62 Mass. App. Ct. 527 (2004j, the Appeals Court rejected the
proposition that all uses autc�matically acquire the status of lawful
nonconforming uses when the six year period has run; rather the use is
protected only if lawful when begun.
Absent a showing by the landowner that the use of the premises as a
five unit multi-family dwelling was lawful when such use commenced, it is
my opinion that a variance would be required to convert the prior use of a
four unit motel with office space to a five unit multi-family dwelling.
;"
/