HomeMy WebLinkAboutDecision 4754 Doctl ,353,028 08-24-2018 8:27
• BARNSTABLE LAND COURT REGISTRY •
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*^ O TOWN OF YARMOUTH _ • r
: BOARD OF APPEALS •-
:� %$ DECISION
FILED WITH TOWN CLERK: July 13,2018
PETITION NO: 4754
HEARING DATE: June 28,2018
PETITIONER: William M.and Lisa A.Pezzoni
PROPERTY: 60 Alms House Road,Yarmouth Port,MA
Map&lot#: 0144.44;Zoning District:R-40
Certificate:#203636;Land Court Plan#33941-B,Lot#1
MEMBERS PRESENT AND VOTING:Steven DeYoung,Chairman,Sean Igoe,Dick Martin,
Thomas Nickinello,Susan Brits and Tom Baron(non-voting)Alternate.
Notice of the hearing has been given by sending notice thereof to the Petitioner and all those owners
of property as required by law, and to the public by posting notice of the hearing and publishing in
The Register,the hearing opened and held on the date stated above.
The Petitioner seeks a Variance pursuant to Zoning Bylaw §203.5, in order to permit a garage with
associated covered porch/breezeway steps and patio connecting it to the main house to be located
partially in the side setback. The Property is located in the R-40 Zoning District and is presently
improved with a two story residential structure, containing 3 bedrooms and three baths, sheds
and a small garage all constructed through the years since the 1940's. The property is within a
FEMA Flood Zone AE-EL. 12', Zone VE-EL. 14' and coastal barrier resource area.The
Petitioners are going to raze and replace the structures within the already disturbed areas on the
lot and construct a 3000+/- sq. ft. gambrel/barn house with a two car garage as shown on the
plans made available to the Board.During the design and engineering phase of the project it was
determined that the garage would encroach upon the existing septic system components if built
to meet the required side set back of twenty (20') feet and it needed to be moved to a five (5')
foot side setback. Although the property is three (3) acres most of it is impacted by the
conservation setback requirements and the Petitioners have a very small building envelope as
noted on the engineered plans presented at the hearing. After discussions with the Building
Inspector the Petitioners applied to the Zoning Board of Appeals for the current relief requested.
Testimony was provided that the cost of the construction to modify the site infrastructure in
order to meet the required side setback was substantial. The relief sought was to pemsit the
proposed construction to proceed with the garage and associated covered porch/breezeway,steps and
patio as presented,with a five(5')foot side setback.
No abutters or other interested parties appeared in opposition and the two direct residential abutters
presented letters in favor of the Petition. The Petitioners also received favorable decisions/letters
100753333.1
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from the Old Kings Highway Historic District Committee, Historical Commission and the ;.
Conservation Commission submitted a Memo detailing their favorable determination for an Order of
Conditions detailing certain requirements. The Petitioners also submitted a memo dated June 25,
2018 in support of their Petition.
§102.2.2 of the Yarmouth Zoning Bylaw permits the Board to hear and decide appeals or
Petitions for Variances from the terms of this bylaw,including Variances for use,with respect to
particular land or structures. Such Variance shall be granted only in cases where the Board of
Appeals finds all of the following:
1. literal enforcement of the provisions of this bylaw would involve a substantial hardship,
financial or otherwise,to the petitioner or appellant.
2. The hardship is owing to circumstances relating to the soil conditions,shape or topography of
such land or structures and especially affecting such land or structures, but not affecting
generally the zoning district in which it is located.
3. Desirable relief may be granted without either: substantial detriment to the public good; or
nullifying or substantially derogating from the intent or purpose of this bylaw.
The Board was satisfied that the applicant, if denied this request,would suffer a hardship, both
financially and regarding the reasonable use of his property. A garage and the associated
connection to the house is accessory to the primary use of the property — in this case a
residential use in a residential zoning district. In order for the petitioners to comply with the side
setback requirement would result in a financial hardship.
The Board then heard testimony that the Petitioner's hardship arises as a result of the shape, soil,
or topography of the lot. In this case, the substantial wetlands and existing infrastructure
constraints of the lot play a role in the need to place the garage where proposed at the five (5')
foot setback
Finally, the Board determined that desirable relief could be granted without either substantial
detriment to the public good or nullifying or substantially derogating from the intent or purpose
of this bylaw. In this case, there will be no substantial detriment to the public good with the
location of the garage located no closer than five (5') feet from a side lot line. The significant
wetlands creates a private area for the garage and house, hidden from the public view by trees
and vegetation, also preventing noise from reaching other abutting residential neighbors or the
public in general.
The use of the garage and connection from the house is allowed in conjunction with the
residential use. The bylaw is concerned, especially in residential districts, about noise,
congestion,nuisance,hazard and the like. But here,relief which permits the construction of the
garage and associated connection to the house to remain will not cause such results,and will not
nullify or substantially derogate from the intent or purpose of the bylaw.
Finally, this situation is not self-created, as it is a result of the limited building envelope,
wetlands and the pre-existing underground constructed infrastructure.
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Accordingly, a Motion was made by Mr. Igoe, seconded by Mr. Nickinello, to grant the
Variance, as requested, with the condition that the Petitioners comply with the
requests/conditions of the Conservation Commission in their Memo submitted to the Board. The
members voted unanimously in favor of the Motion.
No permit shall issue until 20 days from the filing of this decision with the Town Clerk. Appeals
from this decision shall be made pursuant to MGL c40A section 17 and must be filed within 20
days after filing of this notice/decision with the Town Clerk. Unless otherwise provided herein,
a Variance shall lapse if the rights authorized herein are not excised within 12 months. (See
MGL c40A§10)
Steven DeYoung,CtiBirman