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HomeMy WebLinkAboutDecision 4365 • • ,l '. COMMONWEALTH OF MASSACHUSETTS BARNSTABLE ss. LAND COURT NO. YARMOUTH TOWN CLER RICHARD SHEA,PAULA SHEA, as Trustees '11DEC15Fw3:57 REG of 24 Bass River Pkwy. Real Estate Trust Plaintiffs v. NORTHSTAR PROPERTY MANAGEMENT LLC and STEVEN DeYOUNG,SEAN IGOE, JOSEPH SARNOSKI,DIANE MOUDOURIS, DEBRA MARTIN as they are members of the Zoning Board of Appeals of the Town of Yarmoth Defendants COMPLAINT Count I (Zoning Appeal Pursuant to G.L. c. 40A s. 17) Count II (Declaratory Relief Pursuant to G.L. c.231A) . Introduction In Count I, the plaintiffs appeal a decision of the Yarmouth Zoning Board of Appeals in which the board granted a variance to the defendant Northstar Property Marangement LLC, authorizing or approving the construction or creation of a two family dwelling in a district where two family dwellings are prohibited, and on a lot which does not conform to the minimum area requirements for two family dwellings in those districts where two family dwellings are permitted. ,r .+ YlRMOUTH TOWN CLEF '11DEC16PH3:57 REC In Count II, plaintiffs also seek a declaration that the use of the premises for anything other than single-family purposes would constitute a violation of property rights granted and restrictions previously imposed as part of a common scheme, and deprive the plaintiffs, and others similarly situated of the benefit of such property rights and restrictions. Parties 1.The plaintiffs,Richard W.Shea and Paula Shea, ("Shea") as trustees of the 24 Bass River Pkwy. Real Estate Trust are the owners of a parcel of land together with a single- family residence thereon located at 24 Bass River Pkwy.S., Yarmouth, MA. 2. (a)The defendant Northstar Property Management LLC ("Northstar") is a Massachusetts limited liability company with a principal address of 21 Aaron's Way W., Yarmouth, MA; (b) the defendant Northstar is the owner of a certain parcel of land containing 24,275 ft 2 together with the building thereon located at 143 River St.,South Yarmouth MA. 3. (a)The defendant Steven DeYoung is a duly appointed member of the Yarmouth Zoning Board of Appeals with the residential address of 691 Willow St. S., Yarmouth, MA 02664; (b) the defendant Sean Igoe is a duly appointed member of the Yarmouth Zoning Board of Appeals with a residential address of 223 S. Sea Ave. W., Yarmouth, MA 02673; [c] the defendant Diane Moudouris is a duly appointed member of the Yarmouth Zoning Board of Appeals with a residential address of 12 Athens Way W., 2 , .4 _; YARMOUTH TOWN CLEF '11DEC16?M 3:58 REC Yarmouth, MA; (d) the defendant Joseph Samoski is a duly appointed member of the Yarmouth zoning Board of appeals with a residential address of 111 Merchant Avenue Yarmouth Port,MA 02675; (e) the defendant Debra Martin is a duly appointed member of the Yarmouth Zoning Board of Appeals with a mailing address is PO Box 320, South Yarmouth, MA 02664. Facts Relating to Count I 4.The property of plaintiffs'Shea is shown as Lot 13 on a plan recorded at Barnstable County Registry of Deeds at plan book 22 Page 131. A copy of said plan is attached as Exhibit 1. 5.The property of defendant Northstar is shown as Lot 3A on a plan recorded at Barnstable County Registry of Deeds at plan book 62 page 151, and attached hereto as Exhibit 2. Lot 3A as shown on Exhibit 2, is a revision of Lot 3 as shown on plan attached as Exhibit 1 6. On or about 2006,William Marasco, the predecessor in title to defendant Northstar, and the current managing agent of the defendant Northstar, applied to the building department of the Town of Yarmouth for permission to raze an accessory garage structure located on Lot 3A, and to construct a new accessory garage structure. Such approval was granted by the building Department of the Town of Yarmouth. 7.Upon information and belief, William Marasco is a former Selectmen of the Town of Yarmouth. 3 *+ YARMOUTH TOWN CLER '11DEC16QM3:58 REC 8.Upon information and belief, representations were made to the building department by Marasco that a portion of the first floor of the garage structure had been used for residential purposes. 9.Upon information and belief, any such use of a portion of the first-floor of the garage structure,had been use by a family member of a prior owner as accessory to the principal residential structure . 10.Upon information and belief, the newly constructed garage contains a new independent dwelling unit on the 2id floor of the new garage structure. 11.The second dwelling unit, as constructed over the garage, does not qualify for use as an"apartment"under the terms and provisions of the Yarmouth zoning bylaw 12.If and to the extent, that any use of a limited portion of the first-floor of the old garage structure had ever qualified as a lawfully existing nonconforming use, such use had been abandoned as of the date of the raising and reconstruction of the garage. 13. If, and to the extent, any use of any portion of the first floor of the old garage structure had ever qualified as a lawfully existing nonconforming use, and such use had not been abandoned, the razing and reconstruction of the garage to include an expanded dwelling unit on the 2'floor constituted an unlawful alteration, extension or expansion of a nonconforming use without prior approval of the Yarmouth Zoning Board of Appeals. 4 '` YARMOUTH TOWN CLERI '110EC1BBPM3:58 REC 14. On or about July of 2009, the building department ordered Marasco/Northstar to provide documentation which would establish that any pre-existing nonconforming "apartment use" of the garage had not been abandoned. 15. Defendant Northstar has been unable to provide documentation establishing that any alleged pre-existing nonconforming "apartment use" of the garage had not been abandoned. 16. Thereafter, Northstar made application to the Yarmouth Zoning Board of Appeals ("the board") for a use variance which would approve the use of the Northstar property (Lot 3A) as the location of a two-family dwelling, consisting of the primary residential structure, and the newly created dwelling unit located over the garage. 17.Two family dwellings are prohibited in the zoning district where the property is located. 18.In those districts where two-family dwellings are allowed, the minimum lot area required for two-family use must be double that required for single-family use. 19. The minimum lot area requirement of the district in which the subject property is located is 40,000 ft.2 for single-family use, and 80,000 ft.2 if two-family use were allowed. 20.The lowest(25,000 ft.2)minimum lot area requirement for a residential district where the bylaw allows two-family use would bring the minimum lot area requirement for such two-family use to 50,000 ft.2. 5 ir YARMOUTH TOWN CLERK '11oEC1sPM3:58 REC 21. The defendants lot contains 24,275 ft.2 22.In a decision filed with the Town Clerk on December 1, 2011, the defendant board granted the requested relief. A copy of that decision is attached hereto as Exhibit 3. 23.The decision exceeds the authority of the board. 24. Use variances are not authorized by Mass. Gen.Laws chapter 40 A section 10 25.The facts and reasoning upon which decision of the board is based are insufficient for the grant of a variance under Mass. Gen. Laws chapter 40 A s. 10, and Section 102.2.2 of the Town of Yarmouth zoning bylaw. 26. The plaintiffs are persons aggrieved by the decision of the Board Fads Relating To Count H 27. Plaintiffs repeat the allegations contained in prior paragraphs 1 through 25. 28.The defendant Northstar acquired title to Lot 3A by deed from William Marasco dated February 15,2008 and recorded at Barnstable County Registry of Deeds on February 21, 2008 at book 22686 page 215. A copy of the deed is attached hereto as Exhibit 4. 29. The deed recites that the premises are conveyed subject to and with the benefit of restrictions and easements as set forth in a deed recorded at Barnstable County Registry of Deeds in book 514 page 68 "in so far as the same are of legal force and effect." 30.A copy of the deed recorded at book 514 page 68, is attached hereto as Exhibit 5. 6 YARMOUTH TOWN CLERI '11DEC1SPN3:58 REC 31.The deed recorded at book 514 page 68, incorporates by reference certain restrictions contained in a deed recorded at Barnstable County Registry of Deeds book 420 page 419, a copy of which is attached hereto as Exhibit 6. 32. Restriction number 5 in the deed recorded at book 420 page 419 contains the following language: "No lot shall have upon it more than one dwelling house and a suitable garage, and no dwelling house shall be erected or maintained other than a single- family dwelling house 33. As drafted and as intended, the restriction expressly prohibits construction or creation of a two-family dwelling on the defendants lot, or the use of said lot of the location of a two-family dwelling. 34. "Insofar as the restriction is of legal force and effect", the conveyances to Marasco individually, and to Northstar, subjected the premises to the restriction which would prohibit the use of the premises as a two family dwelling. 35. Coupled with the restriction that the premises cannot be the location of any use other than a single-family dwelling, the Northstar property, (together with all other lots shown on attached Exhibit 2),have certain appurtenant rights and obligations with respect to the use of a certain beach parcel located adjacent to the waters of Bass River. 7 YARMOUTH TOWN CLER '11DEC16PM8:58 REC 36.Such right is for the exclusive and unobstructed use of the owners and occupants only of each numbered lot on said plan,for bathing and boating purposes, and for passing and repassing over and upon the same for pleasure or recreational purposes, it being expressly agreed and understood the owner of each numbered lot on said plan is to assume and pay one fifteenth part of the taxes on said Second Parcel and one fifteenth part of the upkeep and repair of said pier and float. 37. The defendant Northstar has failed, neglected and refused to pay its share of taxes and upkeep of the Beach parcel and float. 38.The language limiting the use of each of the lots in the subdivision to single-family use only, when coupled with language granting the right to the use of the Beach Parcel, with the obligation to share equally with all other lot owners in the taxes and maintenance associated with the Beach Parcel, constitutes a prohibition against the use of the beach parcel by any lot owner who fails to pay a pro rata share of taxes and maintenance expenses, and a prohibition against the use of the beach parcel by the occupants of more than one dwelling on the property. 39.A lot owner may not increase or overburden the use of the beach parcel by obtaining zoning relief with respect to the principal lot,which permits a use of that lot which is prohibited by the terms and conditions of the integrated development plan which was intended to be ongoing. 8 414 V� in QCT] =4 Dai w y bo° cc,...4 o .5 0 o 4 2 a }^� Mi ' oQ14 0) •% C C N vr 0 w is v " O > a) a) " a) .0 .1..J F :o e " eo U '5 -O E b b .a5 g 5 o CD 0 2 a 3 a, o ° 0 co co " 0 CD CD a) U N v d0 1-4 3 O en 6 ea ' 1-1 w +, ar O b Inp0 Xi i o on - . . i.2 y 1-4 a o C M u, R. R.2 " 'S as ' w z N . 1 CI O vaar , 8 yLi) O O p U L I-' p y o • H8 i b wO.S p - O >' CU 'b a•+ y uuO a G! o LI h '6 tTCRv enimc w ct .� to" y g.vv 04 ti) ONo '5 $ 'o x aJ O G "V, m ,g .Gym Q w ybi ea CD 1-4 • 4 '5 •d a, w `° °° r �, 0 Cl)46.4 . •n4-4 24 O5 3 w o y o 4-1 C U O Z en ed as • vc'o1 ., o. 0 y C7 a a 5 in ti 3 y >, v ° 3 C °/ w w w CJ v a) r a •-• v a a. .'"n •�� 1.4 °, v 8 -5 .° v ate, U � U44 u+ w o U � a .0 .0 G. ti d - C '-i 0 tU. 04 YARMOUTH TOWN CLER '11DEC16pH3:59 REC 2. That the use of Lot 3A is limited to single-family use; that the use of the beach parcel and related facility is limited to the owners and occupants of the single-family residence located thereon; that such use is only allowed when the owner thereof is in compliance with his obligation to pay his pro rata share of taxes and maintenance associated with the beach parcel. 3. That the court make such other findings and rulings as are necessary to protect the rights of the parties. Respectfully submitted Plaintif Richard QQnddPaula Shea,Trustees Edward W. Kirk BBO 273720 P.O.Box 393 901 Main St. Osterville, MA 02655 508-428-4800 10 LLI 1 w v m M a ct I— T S coa - r. 0 0 V r w ci Ce 7.4 • 22 -13/ • • Et ' d 4 e0& ___A ;arc,. • .- JR6r [ 1Ds N1AL .e So• .SIGN ti.. T °i -e-.> Sou-r11 Yp ri0VTM,MAss. - 40 A 7Ty _ ►t — ►/!e1KOrrY e '_• �" Roetwr W WecDle.rr 8c Hcnecar L'Mvl ors e Y• Se.w.s I.r.@em pen 1025 K -a. . . "Noe. 0•••••Pr:ei0+...., C..++.a. t Mw¢s'..sanw.r 4Z • . • th4. 214,150 /1 ` • )..h /1 Bees /J F.+• " ..-+., q / `r/ •1 tea• ` e1 : ... 3 •.y 'L$ V. +y, s ee v } S 'It': '• f..T.A(..w N• S w J..e n On t N•Cr+•s - rt‘ '•, •sn e:.. n •44•••••Al ern. „+, I[l,vq� c+fl. r "1".>,,r....,.�.. ✓; Ci De • a IT • F n• /flee sef-re...��- , c w',ifeg \ 6..r nen.A''e...r j 1. . . :OW ca NOa`-a........_ / 7 L li . 1 i / . 0.3:04 /y • it. Q • /. . . e no %pwrsF}lws / G76 /Oeee 24e3S 2/ 9B 4 �.� e / n /770es Z / G ! � v ` • . So_ lear-4-4-49.---•—. Ir, ' ,.lsr ... • • 1 • YARMOUTH TOWN CLLR '11DEC16PM3:59 REC ,,too., c°6 po aft YO s�4 o� .>.>. �co ij 0 ,x ." -1 • Q' .Q . Ansaa 24,275a, vt $ MA/2Y G. Cv,277S • \\� . O\0 c� ...\tr 9 -L ;�� 91: 3UU� '6mo.'s 99. `oti .Y 2A %2�`'" tie ` f 411E11 is Z0,075"' `d S FLORENCE HARD6'E 33 .014<Oti s 9 . t° .e 3. i4 % s -s- Vim. 'e.4`% ee4a.4745 . W' ' N •V f_ a`J PLAN SHOW/NG PRO/115E0 SPE1//S/0/V i'?' r' OP-. ' LOTS4e2 € `3. i" ,,. ., ; Ar .. ',. "0456~ 211/1,./7 lJ� JC ' SOUTH 'YARMOUTH,MAJ3.' . Scale-110.s 404-Sept-/936 Nelson Bar.3e '- civil en$'r . Cenlerr///e •Mass. Selo. ,,. Cr4 6 a h°t g- 151 3 7. 1 ' . .. ort et t,. • �' -.4'4 ; r;C TOWN OF YARMOUTH !t • r BOARD OF APPEALS YDRtaUTli TOWN CL ♦4,1.+tMa`a► DECISION JG FILED WITH TOWN CLERK: December 1,2011 '11DEC1PM3:1.' PETITION NO. #4365 HEARING DATE: November 10,2011 PETITIONER: Northstar Property p rty Management, LLC William J. Marasco PROPERTY: 143 River Street. South Yarmouth,MA YARMOUTH TOWN C`E ' Map and Lot#:0034.282; 11DECI6PM3:59 REC Zoning District:RS-40 Book& Page:22686/215 MEMBER PRESENT AND VOTING: Steven DeYoung, Chairman, Sean Igoe, Joseph Sarnosky,Diane Moudouris,Debra Martin and Bryant Palmer,Non-voting Alternate. It appearing that notice of said hearing has been given by sending notice thereof to the all those owners of property deemed by the Board to be affected thereby, and to the pubpetitioner lic notice of the hearing and published in The Register, the hearing was opened and held on the date stated above. by posting The Petitioner is Northstar Property Management, LLC, William Marasco, its manager, The Petitioner seeks various relief as prayed for by its Petition and concerning property located at 143 River Street, South Yarmouth, MA, property located in an RS-40 Zonis substantial interest from the public, mostly abutters who expressed o g District. The1tion to the p Petition drew one spoke in support of the Petition except for Petitioner's representativeSCharles Humr sought. No Speaking in opposition to the Petition were the following: pays' Esq. Dr.Richard Shea,24 Bass River Parkway, South Yarmouth,MA Fred Churchill, 127 Bass River Parkway, South Yarmouth,MA Henry Gill, 206 South Street,South Yarmouth,MA; Alan Rossman and Myrna Rossman,8 Bass River Parkway, South Yarmouth, MA Collectively, those opposed to the Petition expressed similar grounds for their opposition inclusive of"abandonment" of any prior use of an apartment; concern over the neighborhood and property values if multi-family use was to be allowed; the size of the lot; and a lack of financial need by the Petitioner. Each party who spoke did so eloquently. In addition, correspondence opposing the Petition from Richard Shea, M.D., Gail E. Jepsen-Staff as President of the South Yarmouth Association, the Honorable Richard Staff(Ret.) and Ms. Gail Staff; and Chris & Louisa Starkey were each read into the record. 1 • r 0 - One Exhibit was received at the hearing, to wit: correspondence from Charles Humphrey,Esq., dated 11/010/11. While much discussion focused on "abandonment" of a pre-existing apartment, in fact, this was of little relevance to the Board's deliberations on the relief sought by the Petition which consisted of a Variance to permit a two family dwelling in an RS-40 Zoning District and from the minimum lot size required for two family dwellings. The Petitioner's representative provided a factual history relating to his property which had been the subject of earlier Board consideration(Petitions 871,3908,4268). The factual history which gives rise to this Petition is as follows: 1) The lot contains 24,275 sq. ft. and was created prior to the zone being increased to 40,000 sq. ft.; 2) Petitioner's predecessor in title was Cape Cod Bank and Trust as Trustee of the Estate of Edward L., Coughlin. At the time of purchase(November 29, 2001) the property had been identified as a two-family residence. 932165:8P4d9T03gTT, The property consisted of a main house and a connected garage with In19 NM01 H111014+0h apartment above. The history of how this apartment came into existence and when and by whom this apartment was used was discussed. However, the Board made no specific findings relative to this issue. 3) What was clear was that following his purchase,and in good faith reliance upon a belief the apartment was an allowed use,the Petitioner took the following actions relating to the property: a) two septic systems were constructed,one for the main house and one for the garage apartment; b) the property is assessed by the Town as a two-family residence; c) the Petitioner obtained a Special Permit in 2004(#3908) to perform structural up grades and to construct an addition; d) in October,2005 the Petitioner made an inquiry to the Building Commissioner as to his desire to demolish and rebuild the garage apartment. The opinion of Town Counsel was sought as to whether a Special Permit would be required. Relying upon Town Counsel's opinion that a Special Permit was not necessary the Building Commissioner issued a permit to demolish the existing garage structure(3/21/06), to construct a foundation (3/31/06) and to allow the construction of the garage and apartment; e) the demolition and reconstruction proceeded from April,2006 until it's completion at which time a Certificate of Occupancy for the garage apartment issued(12/19/06). The demolition and reconstruction was open and apparent. Substantial financial resources were expended by the Petitioner in the demolition and reconstruction of the garage apartment; f) no appeal from the Building Inspector's grant of the various permits were taken; 2 g) during construction, various abutters expressed concerns relating to the proposed presence of an apartment. No action was taken by any abutter during construction; h) on March 7,2008 one of the abutters,Dr.Richard Shea provided the Building Inspector with correspondence which drew into question whether the garage apartment was pre-existing and/or 0d 00:4Wd9I030TL had been abandoned. As a result on July 16, 2009(and subsequently reiterated on 8/11/09) The Building Inspector directed that the Petitioner )4?ly-i3 M01 Hl±10M?UA "provide sufficient documentation" that there was no interruption lapse beyond two (2)years in the former apartment use or file a Variance Petition with the Zoning Board of Appeals; i) the Petitioner appealed from the Building Inspector's direction. After hearing,the Building Inspector's determination was upheld and the Petitioner appealed from such determination to the Land Court. At the time of hearing on this Petition, the appeal remains pending. Based upon the foregoing the Board found that the Petitioner had satisfied the requirements of By-law§102.2.2 as follows: 1) the literal enforcement of the by-laws would result in substantial hardship, including financial hardship to the Petitioner. The Petitioner expended substantial money re-constructing the apartment based upon Building permits properly issued and from which no appeal was taken. This occurred only after Town Counsel was consulted and opined that no Special Permit or Zoning Board of Appeals relief was necessary. To now deny the requested relief would result in loss of the value of the investment by the Petitioner in re-constructing the apartment; 2) the hardship is owing to circumstances relating to the structure but not affecting generally the zoning district in which it is located. The Petitioner's property and particularly the structure of the garage apartment is unique to this property. It was constructed in good faith reliance on properly issued building permits. It was constructed only after an opinion of Town Counsel had been sought and obtained. It is difficult to conceive of any other structure in this zoning district which would be granted a building permit for construction of an apartment. The uniqueness of this situation is not a self-imposed hardship, but instead one created uniquely to this property in good faith reliance upon the Building Inspectors issuance of permits. The grant of the relief will not relieve or eliminate any zoning rights. 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 by-law. The relief sought is unique to this situation. Two family dwellings are permitted within the Town of Yarmouth. The relief in this matter will not result in a derogation or nullification from the intent or purpose of the by-laws. Again, the Board found it 3 • ' unlikely that this unique issue would ever arise again. Moreover, the apartment's use causes no substantial detriment to the public good. It has been occupied both prior to and following its re-construction without incident. Accordingly, on Motion made by Mr. Igoe, seconded by Ms. Martin, the Board voted unanimously to grant the following relief as prayed for by the Petitioner: 1) to grant a Variance to allow the two family dwelling in an RS-40 Zoning District(with reference to by-law§202.5); and 2) to grant a Variance from the minimum lot size required by by-law§203.5(C) 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,Ch ' an A True Copy Attest: 1g // Jae Hibbert, CMC T.wn Clerk Town of Yarmouth YARMOUTH TOWN CLER1 Pages l - 4 '11t7EC16F144:00 REC 4 Bk 22686 Ps215 08811 02-21-2008 a 01210o • YARMOUTH TOWN CLER '11DEC16GFM4:Q0 REC DEED I, William J Marasco of 143 South River Street, Yarmouth, Barnstable County, Massachusetts for nominal consideration of less than$100.00 paid grant to Northstar Property Management, LLC, a Massachusetts limited liability company with a principal address of 21 Aaron's Way, West Yarmouth, Barnstable County,Massachusetts with quitclaim covenants The land,with the buildings thereon, situated in Yarmouth(Bass River),Barnstable County,Massachusetts,known as 143 River Street,Bounded and described as follows: Beginning at the southeast corner of the granted premises at a cement bound on River Street thence running N. 76°37'20"W.one hundred fourteen and 95/100(114.95)feet to a cement bound; thence running N.64°54'00"W.,seventy-three and 83/100(73.83)feet to a cement bound at an unnamed road,both of these last courses being by land now or formerly of Florence Hardee; thence running N. 12° 16'00"E.by said Road,eighty-six(86)feet to a cement bound; thence running on a curve with a radius of 20.00 feet by said Road to another unnamed road; thence running S.77°44'00"E.by said last named Road,one hundred seventy and 91/100(170.91)feet to a cement bound; thence running on a curve with a radius of 23.26 feet,forty-one and 70/100(41.70)feet to a bound on River Street; 3 • Bk 22686 Pg 216 #8811 YARMOUTH TOWN CLEW '118EC16F0:00 REC thence running southwesterly by said River Street,ninety-nine and 92/100(99.92)feet to the cement bound a the point of beginning. The above described premises being shown as Lot 3A on plan entitled"Plan Showing Proposed Revision of Lots#2 and#3 at"Bass River Park" South Yarmouth,Mass.Scale 1 in-40 ft.-Sept. 1936,Nelson Pearse,Civil Eng'r.",recorded with Barnstable County Registry of Deeds in Plan Book 62,Page 151. Also one undivided 15th part of a second parcel of land situated as aforesaid,and bounded as follows: On the East by the waters of Bass River,a tidal estuary; On the South by a Town or Common Landing Place; On the West by a town way called River Street; and On the North by the North sideline of Lot#3 on plan recorded with said Deeds in Plan Book 22,Page 131,projected easterly in a straight line to the waters of said Bass River. Together with one undivided 15th part of the pier and float now located and maintained on said second parcel. The above described premises are conveyed subject to and with the benefit of restrictions and easements as set forth in a deed from A.Harold Castenguay to Mary G. Curtis,dated September 11, 1933,recorded with Barnstable County Registry of Deeds in Book 514, Page 68,insofar as the same are of legal force and effect. For title reference see deed of Cape Cod Bank&Trust Company,a banking corporation, as Trustee under the Estate of Edward L.Coughlin to William J.Marasco,dated November 29,2001 and recorded with Barnstable County Registry of Deeds in Book 14509,Page 192. Witness my hand and seal this 15th day of February,200 . William J.Marasco Bk 22686 Pg 217 #8811 COMMONWEALTH OF MASSACHUSETTS YARMOUTH TOWN CI EI Norfolk,ss. '11DEC16Phi4:00 REC On this 15th day of February,2008,before me,the undersigned notary public, personally appeared William J.Marasco,proved to me through satisfactory evidence of identification,which was a Massachusetts Drivers License,to be the person whose name is signed on the preceding document,and acknowledged to me that he signed it voluntarily for its stated purpose. les . • . Notary Public My Commission Expires: 08/01/08 CHARLES J.HUMPHREYS r�= NOTARY PUBLIC �- COMMONWEALTH OF MASSACHUSETTS MY COM AISSIONE7PEESAUGUST1.2008 • BARNSTABLE REGISTRY OF DEEDS ss. IC understood that the owner of each numbered lot on said plan is to assume and pay one fifteenth part of the taxes on Bald Second Parcel and one fifteenth part of the upkeep and repair of said pier and float. For my title reference is made to the deed of Mary G. Curtis and others to me of even date to be • recorded herewith. Nominal consideration. I, Frances W. Castonguay, wife of A. Harold Castonguay, release to the grantee all rights of dower and • homestead and other interests therein. IN WITNESS WHEREOF we hereunto set our hands and seals this 11th day of September, 1935. YARMOUTH TOWN CLER>' A. Harold Castonguay Frances W. Castonguay :11DEC16pH4:oo REC • COMMONWEALTH OF MASSACHUSETTS •• Barnstable,ss. September 11, 1935 Then personally appeared the above named A. Harold Castonguay and acknowledged the foregoing instrument to be his free act and deed, before me, Agnes H. Cash Notary Public My commission expires July 3, 1942 Barnstable,ss. Received September 12, 1935, and is recorded. I, A. HAROLD CASTONGUAY of Yarmouth, Barnstable County, Massachusetts for consideration paid grant to Mary G. Curtis of Jamaica Plain, Suffolk County, Massachusetts with QUITCLAIM COVENANTS the land with the buildings thereon situate in said Yarmouth, at the Village of Bass River so-called, bounded and described as follows: FIRST PARCEL:- Northerly by an unnamed road shown on a plan hereinafter mentioned 170.91 feet; Northeasterly by an arc at the • junction of said unnamed road and River Street as shown on said plan 41p70 feet; Easterly by River Street 99.92 feet; Southerly.by Lot #2 as shown on said plan 180.95 feet; Westerly by a continuation of Bass River Parkway 101.00 feet; and Northwesterly by an arc at the junction of continuation of Bass River Parkway and the unnamed road shown on said plan 31.42 feet. The above described granted parcel is Lot 13 as shown and delineated on a plan made by George F. Clements C.E. revised to March 1928 entitled "Bass River Park a Residential Subdivision in South Yarmouth, Mass. Property of Robert W. • Woodruff & Herbert L Thomas," recorded with Barnstable County Deeds Plan Book 22 Page 131, to which plan reference is made for the location and boundaries I of the granted parcel and of the other lots and ways herein named. This conveyance is made subject to the conditions and restrictions, to which all the numbered lots on said plan are subject, and with the benefit of the rights, privileges and easements appurtenant to all of said numbered lots on said plan, as contained and set out in the deed of James Mott Hallowell and others to Robert W. Woodruff et al dated August 27th, 1925 and recorded with said Deeds Book 420 Page 419 in the paragraphs marked (1) to (7) inclusive in said deed, in so far as the same are now of legal force and effect. And , • this conveyance is made subject to and with the benefit of the following named conditions and restrictions and rights, privileges and easements (imposed upon and appurtenant alike to all said numbered lots on said plan), namely: • 69 That no dwelling house, hereafter to be erected on any numbered lot on said plan, shall be of a style of architecture other than the "Cape Cod" style so-called, said dwelling house to cost not less than $10;000; That no such • dwelling house shall be located within 35 feet of said Bass River Parkway as shown on said plan nor within twenty feet of any other sideline of said lots as shown in said plan;- and That the way 20 feet in width between Bass 33I TO:tmd8T330TT, River Parkway and River Street as shown on said plan shall not be used for 4813 10 UM01 H1110HJHh vehicular traffic but for foot traffic only. ALSO ONE UNDIVIDED FIFTEENTH PART of a SECOND.PARCEL of land situate as aforesaid and bounded as follows: On the East by the waters of Bass River a tidal estuary, on the South by a Town or Common Lending Place, on the West by a town way called River Street and on the North by the north side line of Lot F3 on the aforesaid plan • projected easterly in a straight line to the waters of said Bass River, together with one undivided fifteenth part of the pier and float now located and maintained on said Second Parcel. And this conveyance of said moiety in said Second Parcel is made subject to the following conditions and restrictions, hereby expressly granted as rights, privileges and easements appurtenant to said Lot 13 in, over and upon said Second Parcel, the same being appurtenant alike to all other numbered lots on said plan, namely: That no building or structure, other than the pier or float above named, shall be erected or maintained in said Second Parcel, but that the same is to be kept open and • unobstructed to view and for the free, exclusive and unobstructed use of the owners and occupants only of each numbered lot on said plan, for bathing and boating purposes, and for passing and repassing over and upon the same for pleasure and recreational purposes, it being expressly agreed and understood that the owner of each numbered lot on said plan is to assume and pay one fifteenth part of the taxes on said Second Parcel and one fifteenth part of the upkeep and repair of said pier and float. For my title reference is made to the deed of Mary 0. Curtis and others to me of even date to be • recorded herewith. Nominal consideration. I, Frances W. Castonguay, wife of A. Harold Castonguay, release to the grantee all rights of dower and homestead and other interests therein. IN WITNESS WHEREOF we hereunto set our hands and seals this 11th day of September, 1935. A. Harold Castonguay Frances W. Castonguay COMMONWEALTH OF MASSACHUSETTS Barnstable,s,. September 11, 1935. Then personally appeared the above named A. Harold Castonguay and acknowledged the foregoing instrument to be his free act and deed, before me, Agnes H. Cash Notary Public • My commission expires July 3, 1942 Barnstable,ss. Received September 12, 1935, and is recorded. • I, A. HAROLD CASTONCUAY of Yarmouth, Barnstable County, Massachusetts for consideration paid grant to WOODRUFF AND THOMAS, INC., a Massachusetts corpora- tion having a principal place of business in Barnstable, Barnstable County, ova; ;imam team mg tq tate;ooaq;toa to 'Lite;Bot Ipepanoq pas 'solos (oot/3L) eq;petpang oat-Awns. Su;apvtaoo vs mild pus no pe;arm ';seats tan So eppa Ltae;osegtnos 20 tato;Ise eq; ao pawl So tooavd•sq; o; pas aT ;0eteta; pay own ';?sew /Ts petesuoo onus/ etegi •;o03. 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The grantors hereby convey all their title in and to that portion of River Street and South Street shown on said plan as '11DEC16PM4:0 1 REC bounds on the paroele herein oonveyed. and all riparian rights connected' with said parcels. There is also conveyed as appurtenant to the above parcels a right of way in, to and over said strip of land 33 feet wide extending from South Street to River Street, for all purposes for which • rights of.way are commonly used in the Commonwealth of Naseaohusette to be used in common with the owners of the land on the northerly side of said strip 33 feet tide. The boathouse and bathhouses now On said promisee are , excepted from this oonveyanoe and the grantors reserve the right to remove the same at any time and agree to do so after reasonable notice in writing by the grantee. The premises hereinbefore described are sold subjeot to the following reetriotlone; 1. On that portion of the land which lies westerly and northwesterly of and fronts on that part of River Street which runs , . substantially parallel with Base River, there shall be no more than three house lots, with no more than one house including suitable garage, on *soh lot. No building, or any portion thereof, on said three lots, shall be within fifty feet of said part of River Street. B. Still referring :to the land described in 1 supra, the moat northerly of said three lots shall • have a frontage on the thirty-three feet right of way shown on said plan, of not less than one hundred end fifty feet. 3. No building or any portion thereo on any part of the entire paroel sold, including the three lots above mention- ed, shall be within thirty feet of the remaining portion of River Street, or of South Street, or of said thirty three feet right of way. 4. 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'tisaottsa 'a mol pus 'LIS4oang0 Sion etymon,/ glue *try Jo pasg0ng 'ttigoanuj •e ;foal pm •LlonoLtva Sion •t vntsouso ➢vttvouso PTve 04% iv *SS& Lteaova as;on. soma thong ddOv m0;8 tt •pouot;toddy oq o; oat onnsseu snaoiag . vvxv3 Writ 'ga6t •t TIM Io „ow p sag v4; 0; .;ofgni petfauoo vas eoeTaead pies t;o;agvip IvT;ae➢tsaa *Ietoages!' v aT *Tgsuotnostgo so 91DEO1BpUTH TOWN CLERK snopougo eT 405gr pvap;a;vm vo opine eq /Togo pus/ a 'IIOGC16PM4:�I REC p L g3 i0 esn aoq;o so Lao22xd ou pus Moaaoq; pe;onpuoo ao peapelutvm eq %page *an;ea avao;aqa so ssto autggtue ao goys-flogs Neu ;o 'Ojos v0 'Sullenest '2uieuveto egg so3 eseuTsnq oa pas •tooasd osTlav give so uoT3dod Lav no psaTviaTvm ao , %/Tug sq liege •saeodtnd,tvtoaamoo s0; 'nonoeao so •ean$ona;s sampling III oa •L ';vsa;e asaTE JO tta*;evo4;nos pus 'tawny(' Sant pas avatg ling tie auTi;ngs mit egg a; tilde lou ITvgv 'Zia iv %42Ta so •pvoa •lovas* moan . sauTPLTn4 so vouv;etp o; ev pas •eras o; IS wuoTgot4;0*a esogo *q; •g lZt • r! ..,t,. 1 Page 1 of 1 • Clark, Sandi From: Eileen P. McInerney leileen@humphreyslaw.net] Sent: Thursday, December 08, 2011 9:24 AM To: Clark, Sandi Subject: Marasco-Decision#4365-143 River Street Dear Sandi, It would be great if you could mail us the Decision and accompanying paperwork on December 22nd and we will send to the Registry for recording. Also, on December 21, 2011,we will write the Town Clerk for a Notice of Variance and a Certificate that no Appeal has been filed. Thank youl Eileen Eileen P. McInerney Legal Assistant Law Office of Charles J. Humphreys 15 Brook Street Cohasset, MA 02025 781.383.0600 fax: 781.383.2734 eileenahumohrevslaw.net 12/8/2011 EDWARD W. KIRK ATTORNEY AT LAW WIANNO PLACE • 901 MAIN STREET P.O.BOX 393 OSTERVILLE.MASSACHUSETTS 02655-0393 FACSIMILE (508)428-4800 (508)428-4111 Office of the Town Clerk April 10, 2012 Town of Yarmouth Yarmouth Town Hall 1146Route 28 RECEIVED Yarmouth, MA 02664 APR 1 O 2012 Re:Notice of Appeal of Decision of Building CommissionerBOARD OF YARMOUTH APPEALS M.G.L. c.40A ss. 8 & 15 143 River Road Marasco Property-Use of Second Floor of Garage Dear Ladies & Gentlemen: Notice is hereby given that Richard and Paula Shea ("Shea") appeal the decision of the Building Commissioner("Commissioner") dated March 21,2012,wherein the Commissioner denied Shea's request that any permit for the use and occupancy of the garage as a separate dwelling unit be revoked. A copy of the Shea request(including two letters from Richard Brussiere) is attached hereto as Exhibit 1.A copy of the decision of the Commissioner is attached as Exhibit 2. In support of the appeal,Shea incorporates by reference into this appeal all of the factual material set forth in Exhibit 1. The Commissioner did not dispute or disagree with any of the factual allegations set forth in Exhibit 1, but chose to deny the Shea request solely for the reason that in an independent administrative proceeding, the zoning board of appeals had issued a decision granting a variance to the owner of the subject property,which purported to approve use of the 2"d floor of the garage as a 2"d dwelling unit on the property. While the statement by the Commissioner, with respect to the issuance of the variance is correct, the request for revocation of the use and occupancy permits is based upon facts and circumstances existing independent of, and prior to prior to the issuance of the variance by the board. Office of the Town Clerk April 10,2012 page two Moreover, the decision of the zoning board in granting a variance has been appealed to the Land Court.In proceedings before the Land Court, the decision of the Board and any findings contained therein are of no evidentiary value.The only evidentiary value of the decision is to establish as a matter of record, the result which was reached by the board.In proceedings before the Land Court, the burden will be on the original applicant to establish on a de novo basis that the Board has authority to grant such a variance, and that the applicant has brought before the court sufficient facts to warrant the issuance of the variance.In other words, the grant of variance is not operative, has yet to be established to the satisfaction of the court, and has no particular legal value or relevance at this time on the issues set forth in the Shea demand. Under G.L. c.40A s. 14: "A board of appeals shall have the following powers:- (1) To hear and decide appeals in accordance with section 8. In exercising the powers granted by this section, a board of appeals may,in conformity with the provisions of this chapter,make orders or decisions, reverse or affirm in whole or in part, or modify any order or decision, and to that end shall have all the powers of the officer from whom the appeal is taken and may issue or direct the issuance of a permit." In conclusion,Shea requests that the zoning board reverse the decision of the building commissioner insofar as he declined to revoke the occupancy permit solely on the basis of the variance and, either: (1) direct the building commissioner to render a decision based upon the merits of the enforcement request filed on February 28, 2012; or (2)in the proper exercise of its powers under the provisions of G.L. c.40A s. 14, address directly the issues raised in the enforcement request, and thereafter: (a) revoke the use and occupancy permit for the use of any portion of the garage as a second dwelling; (b) order the removal of any facilities customarily used in a dwelling unit such as ovens, kitchens, and stoves; [c] prohibit and enjoin the use of any portion of the garage as a second dwelling unit. . . Office of the Town Clerk April 10,2012 page three Respectfully submitted: Richard and Paula Shea, Trustees bytheir ttomey: Arl Edward W. Kirk�'( PO Box 393 Osterville,MA 02655 (508) 428-4800 ewk/se cc:Yarmouth ZBA Building Commissioner Thomas J.Perrino,Esq. Charles J. Humphreys, Esq. RECEIVED EDWARD W. KIRK FEB 28 2012 ATTORNEY AT LAW WIANNO PLACE 901 MAIN STREET BUILDING DEPARTMENT SY. ------- P.O.BOX 993 OSTERVILLE.MASSACHUSETTS 02555-0393 FACSIMILE (508)428-4800 (508)428-4111 James Brandolini February 28,2012 Building Commissioner Yarmouth Town Hall 1146 Route 28 South Yarmouth,MA 02664 Re: Request for Revocation of Occupancy Permit 143 River St. Dear Mr.Brandolini: I represent Richard and Paula Shea who reside at 24 Bass River Pkwy. S., Yarmouth,MA adjacent to the above-referenced property. I am aware that there has been a significant amount of correspondence and information produced with respect to the property located at 143 River St.,and that you have spent a considerable amount of time reviewing this information in an effort to arrive at a proper conclusion and result with respect to the zoning status of the property.My review of some of the previous correspondence leads me to conclude that your inquiry in the early stages of this investigation was properly focused,but as matters went forward,assumptions, speculations and matters of conjecture were improperly substituted for actual proof provided by the owner. As you are no doubt aware, the burden is upon one claiming the existence of a lawfully pre- existing nonconforming use to prove the existence of that use.In this case the burden has always been upon Dr. Marasco to prove that a lawful second dwelling unit was located on the premises prior to 1971,when the area requirement for a two-family dwelling was increased to 150%of the area requirement in the district.In the absence of that proof,any discussion or information relating to the use of the premises after 1971 is irrelevant.Dr.Marasco has failed to produce any evidence demonstrating the existence of a lawfully pre-existing second dwelling unit on the premises prior to 1971. Facts Prior to 1971 1. In November of 1967 there was located on the property,a free standing single-family residence and a free standing accessory structure consisting of a three bay garage,containing a total of 764 ft 2 The accessory garage was located approximately thirty(30')feet from the rear of the principal dwelling.The property was owned by Dorothy Farrar. James Brandolini February 28,2012 page two 2.Dorothy appealed a decision of the building commissioner to the Yarmouth Zoning Board of Appeals,and requested the board's permission to remodel the middle bay' of the 3 bay garage for its use as "sleeping quarters". The language of the decision suggests that a building permit for the proposed remodeling had been denied,and that Dorothy was seeking a variance from the board. 3.The board denied her application to remodel the garage for the stated purpose. At that point there would be no lawful basis for using any portion of the garage as a separate"dwelling unit". It may, however,have been lawful to devote some portion of the garage to residential use,as accessory to the principal use of the dwelling; i.e. a place where individuals guests and members of the family of the owner of the property could fmd"overflow accommodations" for nightly sleep.This would be distinguished from the use of the garage as a separate principal use as dwelling unit,which would have all necessary accommodations and amenities,such as bath, kitchen and cooking facilities,independent from the principal dwelling. 4. Your memorandum to John Creney dated February 3,2006 makes reference to a request for water service dated November 2, 1967 with a notation"garage apt."If Dorothy Farrar had gone ahead and remodeled a portion of the garage for purposes of creating a"dwelling unit"in violation of the board's decision,that activity was illegal and there is no building permit on file authorizing the creation of a second dwelling unit. On the other hand,bringing in water service for purposes of having a wash sink or a toilet for the convenience of guests who were using the sleeping quarters as accessory to the principal residence,would be permissible,and it would not make the garage bay an illegal"dwelling unit". 5. Dorothy sold the property to Edward L. Coughlin by deed recorded June 17, 1968. 6. Your memorandum of February 3,2006 indicates that a request for a water service transfer occurred on August 9, 1968,with the same notation of"garage apt"This would be the customary procedure following a sale of property;i.e. the name on the account and the bill for water service was being transferred from Dorothy Farrar to Edward L. Coughlin.Whatever the circumstances,water was available in the garage. 7. Edward Coughlin died on April 25, 1972 The information contained in the preceding 7 paragraphs is the sum total of all available documentary information as of the date when the bylaw was amended in 1971 to require a minimum lot area of 150%of the area required for single-family residence in order to create a second dwelling unit.There is simply no information to support a conclusion that a lawfully pre- existing second dwelling unit was located in the garage at the time the bylaw was amended. ' If all bays were of equal size,the middle bay would contain approximately 250 s.f. James Brandolini February 28,2012 page three None of the limited information, speculation,conjecture and assumptions with respect to what may have happened after 1971 can overcome the absence of proof of a lawfully pre-existing nonconforming use prior to that date. The Canopy At some point in time,which has never been determined,a 30 foot long canopy was constructed between the principal residence and the garage. It is not known whether the canopy was constructed before or after 1971 and there are no permits for the canopy on file. Despite the lack of a permit,and the lack of information as to when the canopy was constructed,there has been speculation that the construction of the canopy might somehow have transformed the principal residence and the garage structure into one principal structure,containing two dwelling units. There is no record of any kind of such a determination having been made by the building commissioner or the board of appeals,nor could there have been. If the canopy was constructed after 1971,it would be irrelevant.If it was constructed prior to 1971,it would not have served to create one principal structure. The case which gives rise to the speculation is Olson v. Zoning Bd of Appeals of Attleboro 324 Mass.57(1949)In Olson, a garage was physically attached to,and extended out from the side of the house.The house was at a higher elevation than the garage,with the garage roof adjoining the house slightly below second-story windows of the house. Under the garage roof, and within the walls of the garage adjacent to the house was an enclosed 6 foot passageway, providing access from the garage into the basement of the house.The passageway also had an opening in the wall whereby one could pass from the front yard to the back yard.The court concluded that the garage,breezeway,and house were"designed to produce a unified architectural effect"and constituted one building. With respect to the subject property,there are no actual physical connections between the garage itself and the principal residence.They are approximately 30 feet apart,designed,built and intended to be entirely separate structures.To the extent the canopy was installed in order to provide some cover or shelter from the elements when a person was moving between the garage and the residence,there would be no reason for the withholding of a permit for such work. To the extent the canopy was installed in an effort to manufacture the theory that the two structures now constituted one dwelling,the installation could not have produced such a result under zoning if it had come to the attention of the building department through the normal permit application process. There can be no reliance upon the open canopy for purposes of manufacturing an argument that the principal residence and the accessory garage structure constituted one residence with two dwelling units prior to 1971. James Brandolini February 28,2012 page four Use After 1971 In his letter to my client(Richard Shea)dated November 13,2007,Richard Bussiere,who did not have any involvement in this property until 1989,repeated information which he had received in conversation with the now deceased sisters of Edward Coughlin,who had presumably received that information in conversations with Edward Coughlin. Mr. Bussiere was told that the "apartment"was built by Edward of the twofold purpose of: (1) `possibly"providing rental income; and(2)providing accommodations for friends and relatives who visited,particularly during the summer months. This second use is consistent with the use previously discussed; i.e. as overflow"sleeping quarters"for family,friends and overnight guests of the owner.That would be a lawful as an accessory use to the principal residential use of the principal structure . According to Mr.Bussiere,personal"caregivers"of the sisters made use of the garage after their brother died in 1972,but there is no evidence that the caregivers paid rent for such use or that the premises were ever rented to any other party as a separate dwelling unit prior to 1971. Mr. Bussiere's letter also makes it perfectly clear that whatever use may have been made of the sleeping quarters in the garage,the premises were not occupied for several years,following which the water service was disconnected,and remained disconnected for several more years. See attached letters. Where The Alteration.Reconstruction, and Extension of A Structure Results In A Substantial Extension of An Alleged Nonconforming Use.Approval by The Zoning Board of Appeals Pursuant to G.L. c.40A s. 6 Is Required Where the Structure Being Altered Is Not A Single or Two Family Residence Any claim with respect to a lawfully pre-existing nonconforming use is based upon a use claim to have been located in a 424 ft.2 middle bay of the first floor of the former accessory garage structure. The accessory garage structure was removed and replaced with a new accessory garage structure.The second-floor of the new accessory garage structure contains a new dwelling unit of 1175 ft?That represents a 300%increase in the floor area of the prior alleged nonconforming residential use. Unless an alteration,reconstruction,extension or structural change is taking place with respect to a single or two-family residential structure, any such alterations which will result in the use of the structure to a substantially greater extent,requires the approval of the zoning Board of appeals pursuant to the provisions of G.L. c.40 A s.6.The exemption provided by the statute for the alteration of single or two-family residential structures does not apply. The landowner has totally reconstructed an accessory garage structure to accommodate a threefold expansion of an alleged nonconforming use. James Brandolini February 28,2012 page five While the structure itself may be lawful,and a building permit could properly issue for the construction of a new garage,the use of the second-floor of that garage without a permit issued by the zoning board of appeals in accordance with G.L. c.40A s.6 is unlawful and unprotected from zoning enforcement.In the absence of the applicant being able to demonstrate,as a threshold matter,that a lawfully pre-existing nonconforming use existed on the premises prior to 1971, such a permit could not be granted. Conclusion and Relief Requested On behalf of my clients,we request that any use and occupancy permits issued by the town of Yarmouth which would allow the second-floor of the accessory garage structure to be used for residential purposes be revoked;that any facilities normally and customarily used in a single- family dwelling unit, such as kitchens,stoves, ovens be removed;and that the landowner be enjoined and prohibited from using or allowing the second-floor of the accessory structure to be used as a separate dwelling unit. Respectfully submitted: Edward W.Kirk ewk/se w/att. cc: Charles J. Humphreys ,Esq. Thomas J. Perrino,Esq. Richard W. Shea Dankn®rth 'Wealth Management Group TD Banknorth,N.A. 495 Station Avenue P.O.Box 1180 South Yarmouth,MA 02664 Toll Free: 800-673-2300 TDB anknorth W ealthManagement.com November 16,2007 • Richard W. Shea,M.D. 4019 Eagle Cove West Dr. Palm Harbor,FL 34685 Re: Edward L. Coughlin Trust uJwill Dear Dr. Shea, I am responding to your letter of November 1"concerning the property located at 143 River St, South Yarmouth. You have asked me to share with you the basis for my February, 2006 letter to Jim Brandolini,Town of Yarmouth Building Commissioner regarding the apartment at that location. During my involvement with this trust, as its administrator, from approximately 1989 to its termination,I had the opportunity to engage in many conversations with Mr. Coughlin's last two surviving siblings,his sisters,Dorothy Olson and Margaret Rafuse. These conversations usually took place during the summer months when they occupied the River Street property. Gradually, I was given a history the Coughlin family, their brother, Edward's ownership of the 143 River Street property and their involvement subsequent to his death. I was told that the apartment was built by Edward for the twofold purposes of 1.possibly providing rental income, and,2.providing accommodations for friends and relatives who visited,particularly during the summer months. The apartment had separate water and utilities. After Edward died(in 1972?),the property became an asset of his trust to be held and maintained for the benefit of his siblings. They continued to share the use of the property including the apartment. During the 90's,whenever I would suggest shutting down the utilities to the apartment,Mrs. Olson and Rafuse would adamantly refuse despite the fact that it had not been occupied for some years. They insisted that it should be maintained with the hope of being used once again. It was not until 1997,when they both were in such poor health that their visits to the Cape stopped,that I decided to save trust income and shut down utilities to the apartment. Shortly thereafter,when it was clear the sisters would no longer be able to use the property, the trustee decided to sell. Regarding my letters to which you refer, I did state in my 9/15/1997 letter, to the Town of Yarmouth Water Department,that we,the trustees,did not anticipate using the apartment in the future. That statement should be interpreted to mean the period of time the trust owned the property.No inference should have been made regarding the use of that apartment by the subsequent owner. Last, one would not fmd evidence of rental income searching the Coughlin Estate records at the Probate Court. Rental income, if any,would have been reported on the trust's annual income tax returns. I trust this answers your questions. Sincerely, Richard Bussiere, CTFA Vice President Wealth Advisor roknorth Wealth Management Group TD Banknorth,N.A. 495 Station Avenue P.O.Boz 1180 South Yarmouth,MA 02664 Toll Free: 800 673-2300 TDB anknorth WealthManagement.c om March 7,2008 Richard W. Shea,M.D. 4019 Eagle Cove West Drive Palm Harbor,FL 34685 Re: Edward L.Coughlin Trust u/will Dear Dr. Shea, I am responding to your letter of February 28,2008 regarding my statements in a March 6, 2006 letter to Jim Brandolini regarding the property at 143 River Street, South Yarmouth, MA. You have requested further documentation of rental of the property. As I stated in my letter to Mr. Brandolini,the apartment attached to the garage was rented"at the request of members of the Coughlin family".Perhaps, a more accurate statement would have been that"Cape Cod Bank&Trust, as trustee, granted permission"to the Coughlin family members(two sisters of Edward's)to rent the apartment to their caregivers and their families. This was done to ease the burden on the caregivers' families who would otherwise have had to travel back and forth,daily,between Easton and the Cape house during the summer months that the sisters occupied the Yarmouth house.Rental arrangements were made between the sisters and the caregivers. Cape Cod Bank&Trust did not get involved in that aspect of the arrangement. Therefore,the bank, as trustee,did not collect rent,nor, can I verify that money was actually paid by the caregivers to the sisters. I hope this clarifies the statements in my letter to Mr.Brandolini. Sincerely, — Richard Bussiere, CTFA Vice President Wealth Advisor 5*YeR.\\t_ TOWN OF YARMOUTH o BUILDING DEPARTMENT o .7 1146 Route 28, South Yarmouth, MA 02664 508-398-2231 ext. 1261 Fax 508-398-0836 March 21, 2012 Edward W. Kirk Attorney at Law 911 Main Street Osterville,MA 02655 Re: 143 River Street South Yarmouth Dear Attorney Kirk This is to serve as a response to your February 28,2012 letter concerning property located at 143 River Street. You request that I"revoke"the use and occupancy permit for the garage,second floor residential use. Please be advised that on November 10, 2011,pursuant to the provisions of MGL Chapter 40A, Section 10,the Zoning Board of Appeals granted a Variance for the stated use,via Petition No. 4050. Accordingly I am denying your revocation request. Ve ly, ames D. Brandolini, Building Commissioner cc: Charles J. Humphreys, Esq. Thomas J. Perrino,Esq. • • °�•Y �c TOWN OF YARMOUTH C OFFICE OF THE TOWN CLERK • us 4, 1146 ROUTE 28, SOUTH YARMOUTH, MA 02664 �• "E" TELEPHONE (508) 398-2231 FAX (508) 760-4842 Jane E. Hibbert, CMC/CMMC February 23, 2010 Bruce Gilmore, Esq. 99 Willow Street Yarmouth Port, MA 02675 Dear Mr. Gilmore: Enclosed please find copies of a Land Court Department Docket No. 10 MISC 422617 William Marasco Plaintiff VS Members of Yarmouth Zoning Board of Appeals, received February 12, 2010, with a follow up. Please feel free to contact me if you have any questions or need any more information. Respectfully yours, JEH:jeh Jane E. Hibbert, CMC/CMMC Encs Cc: Robert C. Lawton, Jr. Town Clerk Town of Yarmouth Board of Appeals James Brandolinir File Qtaa (ad �j W%t€ 9 �c3 m/dtr /3 :ZStooic CteeG, ceatadde4,=tide cadell.L 0102)' ?e17781)383-0600 Fat(781)383-2734 cjlelaw@comcast.net m rt 7 > CERTIFIED MAIL ,L3 -'C v RETURN RECEIPT REQUESTED j NO. 7003 1010 0005 2780 9582 February 22, 2010 ` — "1 vi Town Clerk Yarmouth Town Hall 1146 Route 28 South Yarmouth, MA 02664 Re: William Marasco v. Steven DeYoung,Member of the Town of Yarmouth Zoning Board of Appeals et al Land Court Case No. 10 MISC 422617 Dear Sir/Madam: In accordance with General Laws Chapter 40A, Section 17, notice is hereby given of a Complaint filed with the Land Court on February 12,2010 relative to the above referenced matter. Enclosed is a copy of the Complaint. Very truly yours, Q-ketala \ALAMO-kilt/5 ti Charles J. Humphreys, Esquire -t CJH:epm Enclosures 4 re. • COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. LAND COURT DEPARTMENT n DOCKET NO. /0mi5Gchap I� ) WILLIAM MARASCO, ) _n ; ) Fri 1 Plaintiff ) ; V. ) STEVEN DeYOUNG, SEAN IGOE, ) COMPLAINT _ U :L JOSEPH SARNOSKY,DAVID REID, ) • DEBRA MARTIN and BRYANT ) PALMER,as they are Members of the ) Town of Yarmouth Zoning Board of ) Appeals,and the TOWN OF ) YARMOUTH, ) ) Defendants ) ) STATEMENT OF THE CASE This is an Appeal under General Laws,Chapter 40A,Section 17 of a Decision of the Zoning Board of Appeals of the Town of Yarmouth,Bamstable County, Massachusetts, denying the Plaintiff's Appeal to vacate an Order of the Building Commissioner, PARTIES 1. The Plaintiff, William Marasco,is an individual with an address of 143 River Street, South Yarmouth,Massachusetts 02664 (hereinafter referred to as"Marasco"). - YARMO q ori r.„ /_3 1 N aco In ci 0 7 n d 0 laO a� -0,..2 / V N a a F M U c f11—�L"j�. pO .G ,d c� T 1 0. j •O p, 0 0 O 0 � so .p „t. ti `� w a, g a, 2 y o o U Q 0 f0 A so '' b V a) es �` 50 w o C o 5 c ra u g `° 00 g v ,p o . v 0 co" a 3 °. s ra, y °' -61" O N C 'D v[ v g N c N '� �' C .0 3 0 �r a 0 a ria q N f.. O F C� .0 Nq 0 ' al a.) r4 'b a . 0 - W 0.i �+ .Y a) 6�i `p > CI foyo� �o o �+ ±c5 z o o .5 0 •J 0 q Cl �"' "� b CA W ^. «� 0 000 Y: I. 'd A ai a) co O 00 0 .a d :h., ' ^ Q d ,.. w c 00 o g x cE-it .� Q F .c a' C) 'J > ., . . en o p � cocD a 3 p o oo" N F o3 3 0 �j d a C N N .0 'a O F. so 7 •� m a)aft en o o O O a 0 v ° 2 A a Q.g e� a y N N0 VS Cis .b O 2 >+ - U �`�jy' S O 8 q N a0 O o `i b Q Z' .5 — rn 000 U W O 0 lF y 0 7O W a7 .5 p� y 00 ' p U `,' LYi O �. pa f"' 0 amu} .'C O N ^ W O fV ,2 b q p u u , •p b F w >.lg '3 0 P. O A '� 3 c.,:, <15.o o a N o o- u 3. The premises have a history of rental permits for the garage apartment dating back to the late 1960s and are assessed by the Town of Yarmouth as a two-family house with garage apartment. 4. In October 2005,Marasco contacted James D. Brandolini,Building Commissioner of the Town of Yarmouth,regarding the demolition and rebuilding of the garage apartment and was informally advised that a special permit would be required from the Zoning Board of Appeals because the Building Commissioner considered that the garage apartment,which was attached to the main house by a breezeway,to be a separate building. 5. On or about February 3, 2006,the Building Commissioner requested an opinion of Town Counsel as to whether or not the existing structure was a two-family dwelling or two separate family dwellings. The then Town Counsel,John Creney,opined that the structure was a single two-family dwelling. 6. Two-family dwellings are allowed in the RS 40 Zoning District but in 1971 the Town amended the Zoning Bylaw to require that two-family houses are permitted as a matter of right on lots which are not less than 150%of the minimum requirement lot diva for the district. The premises are less than the required 150%minimum lot area and thus constitute a lawful preexisting nonconforming use. 7. In March 2006,the Building Commissioner raised the question as to whether the nonconforming use had been abandoned by the previous owners in the late 1990s. 1 • `TJ I.) 3 1 ; v, I 8. After receiving correspondence from Richard Bussiere,Trustee of the Coughlin Family Trust, with regard to use and after receiving an opinion from Town Counsel dated March 6,'2006,which stated in part: "Taking that letter(from Richard Bussiere)at face value as fact then it appears that the use of the unit was not discontinued;that Section 104.3.1 of the Zoning Bylaw is not applicable;and that the preexisting nonconforming use as a duplex may lawfully continue without any necessary relief from the Zoning Board of Appeals." 9. Thereafter, Marasco filed an application to demolish the existing garage apartment and construct a new one in its place. The application and plans fully disclosed the details of the work to be done and the addition's intended use as a garage apartment. The proposed structure complied with all setback and coverage requirements of the Zoning Bylaw. 10. Marasco also applied for and received a Board of Health Permit to repair and reconstruct the septic system for the apartment. 11. After such investigation and determination,the Building Commissioner issued three permits: a)March 21, 2006—to allow demolition of the garage apartment; b. March 31,2006—to allow construction of foundation; and c.April 19,2006—to allow construction of the garage and apartment. 12. The construction commenced upon issuance of the building permits. All work was performed in accordance with the plans and permits and a Certificate of Occupancy • --1 1 r� < was issued on December 19, 2006. i • ... 4 13. No appeal was taken by any person to the Zoning Board of Appeals under G.L. Chapter 40A,Section 15. 14. Thereafter from 2006 to 2008,an abutter,Richard Shea,communicated with Richard Bussiere and received a series of letters which purportedly raised questions in the abutter's mind as to whether the nonconforming use had been discontinued. 15. The abutter,Mr. Shea,persuaded the Building Commissioner to reopen the question of abandonment or discontinuance of use. On July 16,2009,over three(3) years after the issuance of building permits,the Building Commissioner ordered William Marasco"to provide sufficient documentation that there was no interruption/lapse beyond two(2)years in the apartment use"or"file a variance petition with the Zoning Board of Appeals." 16. Marasco was not able to obtain additional information from the beneficiaries of the Coughlin Family Trust due to the fact that all beneficiaries were deceased by 2002. 17. The letter dated August 11,2009 from the Building Commissioner to William Marasco notified him of his right to appeal this Order to the Zoning Board of Appeals pursuant to the provisions of M.G.L. Chapter 40A, Section 15 within thirty(30)days, and further, indicated that the failure to take action within thirty(30)days will result in appropriate zoning enforcement action which may include the issuance of tickets with fines of up to$300.00 per day. A copy of the August 11,2009 letter is attached hereto and marked Exhibit A. 11 1, ! ) .E 5 . 18. Marasco appealed the Order and the matter was heard by the Zoning Board of Appeals at a Public Hearing on December 10,2009 and a continued Public Hearing on January 28,2010. At the January 28, 2010 Public Hearing,Marasco's Appeal was denied by a 3-2 vote and the Board's Decision was filed on February 2,2010. A certified copy of said Decision is attached hereto and marked Exhibit B. 19. The Building Commissioner's letter dated August 11,2009 and letter dated July 16,2009 are illegal and in excess of the Building Commissioner's authority. 20. Neither the abutter,Mr. Shea,nor any other person took any appeal with respect to the building permits issued to Marasco. 21. G.L.Chapter 40A, Section 15 provides that: "Any appeal under Section 8 to a permit granting authority shall be taken within thirty(30)days from the date of the order or decision which is being appealed..." 22. The Building Commissioner cannot reconsider a Decision once issued. 23. The actions of the Building Commissioner constitute a Re-decision of an earlier Decision and are not within the power of the Building Commissioner. 24. The Building Commissioner's actions in the present case constitute an attempt to reconsider,revoke,or appeal a previously granted building permit and are contrary to law and public policy. 25. The Decision of the Zoning Board of Appeals dated February 2,2009 is illegal, _1C7 arbitrary, capricious, contrary to law and not based on substantial facts. Said Decision is i ; J -) -0 an abuse of discretion and is in excess of the Board's authority. i;; ^J 6 • WHEREFORE,the Plaintiff, William Marasco,requests this Honorable Court to: 1. Enter a judgment that the Decision of the Yarmouth Zoning Board of Appeals in denying the Plaintiffs Appeal is in excess of their authority,in violation of law, arbitrary,capricious,is an abuse of discretion,is not based on substantial facts and plainly wrong. 2. Enter ajudgment that the Decision of the Yarmouth Zoning Board of Appeals dated February 2,2009 be annulled. 3. That the Yarmouth Zoning Board of Appeals be ordered and directed to vacate and rescind the letters of the Building Commissioner to William Marasco dated July 16,2009 and August 11,2009. 4. Enter a judgment for such other relief as the Court deem just and reasonable under the circumstances. Respectfully submitted, WILLIAM MARASCO By his attorney, C . umphreys, Esquire 15 Brook Street Cohasset,MA 02025 (781)383-0600 BBO No.: 244200 Dated: February 11,2010 • ---t J l✓ , I -1 i N 7 - $ 4o 4TOWN OF YARMOUTH 1 1146 Route 28,South Yarmouth,MA 02664 Fri it ^Amy 1 etat' _1 `��'� 508-398.2231 ext.261 Fax 508-398-0836 ExHIBIT tA, ^.,,::Sh'r- August II,2009 Dr. William Marasco 143 River Street South Yarmouth,MA 02664 Re: 143 River Street Dear Dr. Marasco: This is to serve as a follow-up to my July 16,2009 letter, our subsequent phone conversation, and your August 10, 2009 letter concerning the garage apartment use status. As stated in my July 16, 2009 letter and reiterated in our phone conversation, Attorney Murphy's legal opinion is clear. As a result of this legal opinion you were"ordered to provide sufficient documentation that there was no interruption/lapse beyond two(2)years in the apartment use"or "file a variance petition with the Zoning Board of Appeals". Your August 10, 2009 letter addresses neither. Based on this,you are again ordered to take the action stated. You also have the right to appeal this order to the Zoning Board of Appeals,pursuant to the provisions of MGL Chapter 40A,Section 15, within thirty(30)days. Finally, failure to take any action within thirty days will result in appropriate zoning enforcement action,which may include the issuance of tickets with fines of up to$300 per day. So Ordered, Cat" JaY�fD. Brandolini,C.B.O. Building Commissioner '_(3 ---I cc: Zoning Board of Appeals u t..a -L- I., ,..,,. N LT4Ase 47- 0 TOWN OF YARMOUTH r,::;?' s t"_ C BOARD OF APPEALS f• tet DECISION s —I • l m —< EXHIBIT s FILED WITH TOWN CLERK: February 2,2010 IL) a PETITION NO: #4268 HEARING DATE: October 22,2009; December 10,2009 and January 28,2010 PETITIONER: William Marasco i._ 1 PROPERTY: 143 River Street, South Yarmouth i : w , CD Map& Parcel: 0034.282 Zoning District: RS40 Book& Page: 22686/215 11 -• .._ aJ MEMBERS PRESENT AND VOTING: Steven DeYoung, Chairman, Sean Igoe, Joseph "� Sarnosky,David Reid,Debra Martin and Bryant Palmer,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, William Marasco, initiated his petition seeking to overturn the decision of the Building Inspector. Though the application referenced a decision of the Building Inspector dated 07/14/09 and relates to property in the RS 40 zoning district at 143 River Street, South Yarmouth, Massachusetts, during the protracted hearing, it was acknowledged by all with an interest that, in fact, the applicant sought to overturn the Building Commissioner's decision as set-forth in correspondence to him dated 07/16/09 and the follow-up correspondenceof the Building Commissioner,Mr. James Brandolini, dated 08/11/09. The Petitioner sought relief from the Building Inspector's determination that Mr. Marasco "provide sufficient documentation that there was no interruption/lapse beyond two(2)years in the apartment use" (at the subject property) or, "file a variance petition with the Zoning Board of Appeals". At issue is a garage apartment at the applicant's property which was allowed to be reconstructed by way of building permits issued by the Building Inspector in March and April, 2006. Several months prior to these permits issuing, the issue as to whether the use of the property included a lawfully pre-existing, non-conforming, two-family structure arose and was the subject of an opinion issue by then Town Counsel, John Creney. Based upon this opinion and the available information at the time,the Building Commissioner issued the referenced permits. Subsequent information was received by the Commissioner which, ultimately, culminated in his letters of 07/16/09 and 08/11/09 from which appeal was taken by the applicant. 1 The hearing on the requested relief commenced on 12/10/09 and continued to 01/28/10. Over the • ' course of two appearances, Counsel for the applicant and Special Town Counsel each provided • the Board with well thought-out and often persuasive argument on a number of ancillary issues, e.g. was there an appealable "decision", was there "abandonment" of the former use, etc. Additionally, many of the applicant's neighbors appeared and spoke or, alternatively, submitted correspondence on the various issues discussed. Generally, these neighbors spoke in opposition to the requested relief. After due consideration of all the submissions and testimony received, the Board was generally sympathetic to the reality that the applicant proceeded with his rehabilitation of his property with the authority of issued building permits and received an occupancy permit. While these factors may be considered should a variance be sought,this is purely speculative. It was, however, noted that the issue before the Board was limited to whether or not the decision of the Building Commissioner should be overturned. Though the applicant furnished new information in the form of yet additional correspondence from Richard Bussiere, the Building Commissioner advised the Board it was not persuasive to the issue of whether the apartment had/had not been abandoned as to its use and thus no longer allowed as a pre-existing, non- conforming use. After all parties had the opportunity to present their respective positions, proof and authorities, Motion was made by Mr. Igoe, seconded by Ms. Martin to overturn the decision of the Building Inspector to require sufficient documentation that there was no interruption/lapse beyond two(2) years in the apartment use of the applicant's property or file a variance petition with the Zoning Board of Appeals. As to this Motion, Ms. Martin and Mr. Igoe voted in favor, Mr. DeYoung, Mr. Reid and Mr. Sarnosky voted opposed and, accordingly, the Motion failed to carry and the applicant's appeal was thus denied. 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. Steven Do!!1' ung-Chaar :IJ -G III , . l .i N 2 ' 0v1P440. TOWN OF YARMOUTH C OFFICE OF THE TOWN CLERK • - 'j\"es 1146 ROUTE 28, SOUTH YARMOUTH, MA 02664 "GO TELEPHONE (508) 398-2231 FAX (508) 760-4842 Jane E. Hibbert, CMC/CMMC • February 16, 2010 Bruce Gilmore, Esq. 99 Willow Street Yarmouth Port, MA 02675 Dear Mr. Gilmore: Enclosed please find copies of a Land Court Appeal William Marasco Plaintiff VS Members of Yarmouth Zoning Board of Appeals, received February 12, 2010. Please feel free to contact me if you have any questions or need any more information. Respectfully yours, QGkrtil JEH:jeh Jane E. Hibbert, CMC/CMMC Encs Town Clerk Cc: Robert C. Lawton, Jr. Town of Yarmouth Board of Appeals James Brandolini File RECEIVED FEB 1 6 2010 YARMOUTH BOARD OF APPEALS V'i/'GI/GGGGY 9 , /3' 13ooe©%€eG, g✓ah oe4 WkWadthea atoll Ter(781)383-0600 Fax(781)383-2734 cjklaw@comcast.net M D 0 w r;., N VIA FEDERAL EXPRESS DELIVERY r- J • i Fri �1 February 11,2010 �M j -i- taiw Zoning Board of Appeals Town of Yarmouth Town Hall 1146 Route 28 South Yarmouth,MA 02664 Re: William Marasco v. Steven DeYoung,Sean Igoe,Joseph Sarnosky,David Reid, Debra Martin and Bryant Palmer,as they are Members of the Yarmouth Zoning Board of Appeals, and the Town of Yarmouth Dear Sir/Madam: Enclosed you will find the following documents relative to the above matter: 1. Notice of Appeal;and 2. Complaint filed with Land Court. Please note that this matter was filed with your office on the date you receive this letter. Very truly yours, Charles J. Humphreys, Esquire CJH:epm Enclosures TOWN OF YARMOUTH ZONING BOARD OF APPEALS - O RE: William Marasco G' 7:: 143 River Street " O South Yarmouth y Petition No. 4268 — C.) w T NOTICE OF APPEAL OF A DECISION OF THE ZONING BOARD OF APPEALS DATED FEBRUARY 2,2010 May this serve as formal Notice of the Appeal of William Marasco to the Trial Court of Massachusetts, Land Court Division, of the Decision of the Yarmouth Zoning Board of Appeals regarding the above-captioned matter, attached hereto and incorporated herein is the Complaint filed with the Land Court Division. Respectfully submitted, WILLIAM MARASCO By his attorney, Ch. es . phreys, Esquire 15 Brook Street Cohasset, MA 02025 (781)383-0600 BBO NO.: 244200 Dated: February 11, 2010 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. LAND COURT DEPARTMENT DOCKET NO. - 5 -61 ._< m WILLIAM MARASCO, ) n p "5. 33,2 Plaintiff ) v. h . DZ C`; `n STEVEN DeYOUNG, SEAN IGOE, ) COMPLAINT JOSEPH SARNOSKY,DAVID REID, ) DEBRA MARTIN and BRYANT ) PALMER, as they are Members of the ) Town of Yarmouth Zoning Board of ) Appeals,and the TOWN OF ) YARMOUTH, ) ) Defendants ) ) STATEMENT OF THE CASE This is an Appeal under General Laws,Chapter 40A, Section 17 of a Decision of the Zoning Board of Appeals of the Town of Yarmouth, Bamstable County, Massachusetts,denying the Plaintiff's Appeal to vacate an Order of the Building Commissioner. PARTIES 1. The Plaintiff, William Marasco, is an individual with an address of 143 River Street, South Yarmouth,Massachusetts 02664 (hereinafter referred to as"Marasco"). its 2. The Defendants, Steven DeYoung,691 Willow Street, South Yarmouth, Massachusetts 02664; Sean Igoe, 223 South Sea Avenue, West Yarmouth, Massachusetts 02673; Joseph Samosky, 111 Merchant Avenue,Yarmouth Port,Massachusetts 02675; David Reid, 1292 Route 28, South Yarmouth,Massachusetts 02664; Debra Martin, P.O. Box 320, South Yarmouth, Massachusetts 02664; and Bryant Palmer, 66 Traders Lane, West Yarmouth,Massachusetts 02673,who are not named individually but are named as Members of the Yarmouth Zoning Board of Appeals (hereinafter collectively referred to as the`Board"). 3. The Defendant,the Town of Yarmouth, is a municipal corporation, with a place of business at Yarmouth Town Hall, 1146 Route 28, South Yarmouth,Massachusetts 02664(hereinafter referred to as the"Town"). STATEMENT OF FACTS 1. The Plaintiff,Marasco,is the owner of a two-family residence located at 143 River Street, South Yarmouth,Barnstable County, Massachusetts 02664. Said parcel contains 21,780 sq. ft. of land and is located in an RS 40 Zoning District. 2. Marasco purchased the property on November 29, 2001 from the Coughlin Family Trust,Richard Bussiere,Trustee. At the time of purchase the property consisted of a dwelling house with an attached garage apartment. Further, at the time of purchase the house and garage apartment were fully furnished. In 2001 and every year thereafter to the present, Marasco has applied for and received a rental permit and has rented and continues to rent the apartment to third parties. 0 -G m > m ri N • l J 2 17 _Z L% Ln • 3. The premises have a history of rental permits for the garage apartment dating back to the late 1960s and are assessed by the Town of Yarmouth as a two-family house with garage apartment. 4. In October 2005,Marasco contacted James D.Brandolini, Building Commissioner of the Town of Yarmouth,regarding the demolition and rebuilding of the garage apartment and was informally advised that a special permit would be required from the Zoning Board of Appeals because the Building Commissioner considered that the garage apartment,which was attached to the main house by a breezeway,to be a separate building. 5. On or about February 3, 2006,the Building Commissioner requested an opinion of Town Counsel as to whether or not the existing structure was a two-family dwelling or two separate family dwellings. The then Town Counsel,John Creney, opined that the structure was a single two-family dwelling. 6. Two-family dwellings are allowed in the RS 40 Zoning District but in 1971 the Town amended the Zoning Bylaw to require that two-family houses are permitted as a matter of right on lots which are not less than 150%of the minimum requirement lot area for the district. The premises are less than the required 150%minimum lot area and thus constitute a lawful preexisting nonconforming use. 7. In March 2006,the Building Commissioner raised the question as to whether the nonconforming use had been abandoned by the previous owners in the late 1990s.DD _ H m > CU F•IT i N TI JJ 3 �= 8. After receiving correspondence from Richard Bussiere,Trustee of the Coughlin Family Trust, with regard to use and after receiving an opinion from Town Counsel dated March 6,2006, which stated in part: "Taking that letter(from Richard Bussiere) at face value as fact then it appears that the use of the unit was not discontinued; that Section 104.3.1 of the Zoning Bylaw is not applicable; and that the preexisting nonconforming use as a duplex may lawfully continue without any necessary relief from the Zoning Board of Appeals." 9. Thereafter,Marasco filed an application to demolish the existing garage apartment and construct a new one in its place. The application and plans fully disclosed the details of the work to be done and the addition's intended use as a garage apartment. The proposed structure complied with all setback and coverage requirements of the Zoning Bylaw. 10. Marasco also applied for and received a Board of Health Permit to repair and reconstruct the septic system for the apartment. 11. After such investigation and determination,the Building Commissioner issued three permits: a) March 21, 2006—to allow demolition of the garage apartment;b. March 31,2006—to allow construction of foundation; and c. April 19, 2006—to allow construction of the garage and apartment. 12. The construction commenced upon issuance of the building permits. All work was performed in accordance with the plans and permits and a Certificate of Occupancy was issued on December 19,2006. 113 --1 I � ! p > CT) 23 • I N 4 ,:: �C - n 13. No appeal was taken by any person to the Zoning Board of Appeals under G.L. Chapter 40A, Section 15. 14. Thereafter from 2006 to 2008, an abutter, Richard Shea, communicated with Richard Bussiere and received a series of letters which purportedly raised questions in the abutter's mind as to whether the nonconforming use had been discontinued. 15. The abutter, Mr. Shea,persuaded the Building Commissioner to reopen the question of abandonment or discontinuance of use. On July 16,2009,over three(3) years after the issuance of building permits,the Building Commissioner ordered William Marasco "to provide sufficient documentation that there was no interruption/lapse beyond two (2)years in the apartment use"or"file a variance petition with the Zoning Board of Appeals." 16. Marasco was not able to obtain additional information from the beneficiaries of the Coughlin Family Trust due to the fact that all beneficiaries were deceased by 2002. 17. The letter dated August 11, 2009 from the Building Commissioner to William Marasco notified him of his right to appeal this Order to the Zoning Board of Appeals pursuant to the provisions of M.G.L. Chapter 40A, Section 15 within thirty(30) days,and further, indicated that the failure to take action within thirty(30) days will result in appropriate zoning enforcement action which may include the issuance of tickets with fines of up to$300.00 per day. A copy of the August 11, 2009 letter is attached hereto and marked Exhibit A. D7 --I !—I"1 q '3 _T) 5 • 18. Marasco appealed the Order and the matter was heard by the Zoning Board of Appeals at a Public Hearing on December 10, 2009 and a continued Public Hearing on January 28,2010. At the January 28,2010 Public Hearing,Marasco's Appeal was denied by a 3-2 vote and the Board's Decision was filed on February 2, 2010. A certified copy of said Decision is attached hereto and marked Exhibit B. 19. The Building Commissioner's letter dated August 11, 2009 and letter dated July 16, 2009 are illegal and in excess of the Building Commissioner's authority. 20. Neither the abutter, Mr. Shea,nor any other person took any appeal with respect to the building permits issued to Marasco. 21. G.L. Chapter 40A, Section 15 provides that: "Any appeal under Section 8 to a permit granting authority shall be taken within thirty(30) days from the date of the order or decision which is being appealed..." 22. The Building Commissioner cannot reconsider a Decision once issued. 23. The actions of the Building Commissioner constitute a Re-decision of an earlier Decision and are not within the power of the Building Commissioner. 24. The Building Commissioner's actions in the present case constitute an attempt to reconsider,revoke, or appeal a previously granted building permit and are contrary to law and public policy. 25. The Decision of the Zoning Board of Appeals dated February 2, 2009 is illegal, arbitrary,capricious,contrary to law and not based on substantial facts. Said Decision is an abuse of discretion and is in excess of the Board's authority. =; u' _ J 6 ; C. 1...�_i Al :Z WHEREFORE,the Plaintiff,William Marasco,requests this Honorable Court to: 1. Enter a judgment that the Decision of the Yarmouth Zoning Board of Appeals in denying the Plaintiffs Appeal is in excess of their authority, in violation of law, arbitrary, capricious, is an abuse of discretion, is not based on substantial facts and plainly wrong. 2. Enter a judgment that the Decision of the Yarmouth Zoning Board of Appeals dated February 2,2009 be annulled. 3. That the Yarmouth Zoning Board of Appeals be ordered and directed to vacate and rescind the letters of the Building Commissioner to William Marasco dated July 16, 2009 and August 11,2009. 4. Enter a judgment for such other relief as the Court deem just and reasonable under the circumstances. Respectfully submitted, WILLIAM MARASCO By his attorney, C . 'umphreys, Esquire 15 Brook Street Cohasset, MA 02025 (781) 383-0600 BBO No.:244200 Dated: February 11,2010 rn Fr N 0 C- Ci Vl i\ 7 /• o 'YAey TOWN OF YARMOUTH . *4,' .� BUILDING DEPARTMENT .or'44 c 1146 Route 28,South Yarmouth,MA 02664 FII ,r A't rl •� 41.,,," �� 508-398.2231 ext.261 Fax 508-398-0836 EXHIBIT August 11, 2009 Dr. William Marasco 143 River Street South Yarmouth, MA 02664 Re: 143 River Street Dear Dr. Marasco: This is to serve as a follow-up to my July 16,2009 letter, our subsequent phone conversation, and your August 10,2009 letter concerning the garage apartment use status. As stated in my July 16, 2009 letter and reiterated in our phone conversation, Attorney Murphy's legal opinion is clear. As a result of this legal opinion you were"ordered to provide sufficient documentation that them was no interruption/lapse beyond two(2)years in the apartment use"or "file a variance petition with the Zoning Board of Appeals". Your August 10, 2009 letter addresses neither. Based on this;you are again ordered to take the action stated. You also have the right to appeal this order to the Zoning Board of Appeals,pursuant to the provisions of MGL Chapter 40A,Section 15, within thirty(30)days. Finally, failure to take any action within thirty days will result in appropriate zoning enforcement action, which may include the issuance of tickets with fines of up to$300 per day. So Ordered, JaiL0 Brandolini, C.B.O. Building CommissionerDJ cc: Zoning Board of Appeals = ?D ri • `D i I1 .--{ t-1 '.n —7— .lit • • '.kr ' ete _ TOWN OF YARMOUTH i ir d � C BOARD OF APPEALS i DECISION :D 73 7-< EXHIBIT -.es1' r f FILED WITH TOWN CLERK: February 2,2010 l_: -Z o. PETITION NO: #4268 HEARING DATE: October 22,2009; December 10,2009 and January 28,2010 PETITIONER: William Marasco PROPERTY: 143 River Street, South Yarmouth Map&Parcel: 0034.282 Zoning District: RS40 Book& Page: 22686/215 MEMBERS PRESENT AND VOTING: Steven DeYoung, Chairman, Sean Igoe, Joseph Sarnosky,David Reid,Debra Martin and Bryant Palmer,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, William Marasco, initiated his petition seeking to overturn the decision of the Building Inspector. Though the application referenced a decision of the Building Inspector dated 07/14/09 and relates to property in the RS 40 zoning district at 143 River Street, South Yarmouth, Massachusetts, during the protracted hearing, it was acknowledged by all with an interest that, in fact, the applicant sought to overturn the Building Commissioner's decision as set-forth in correspondence to him. dated 07/16/09 and the follow-up correspondenceof the Building Commissioner,Mr. James Brandolini, dated 08/11/09. The Petitioner sought relief from the Building Inspector's determination that Mr. Marasco "provide sufficient documentation that there was no interruption/lapse beyond two (2)years in the apartment use" (at the subject property) or, "file a variance petition with the Zoning Board of Appeals". At issue is a garage apartment at the applicant's property which was allowed to be reconstructed by way of building permits issued by the Building Inspector in March and April, 2006. Several months prior to these permits issuing, the issue as to whether the use of the property included a lawfully pre-existing, non-conforming, two-family structure arose and was the subject of an opinion issue by then Town Counsel, John Creney. Based upon this opinion and the available information at the time,the Building Commissioner issued the referenced permits. Subsequent information was received by the Commissioner which, ultimately, culminated in his letters of 07/16/09 and 08/11/09 from which appeal was taken by the applicant. s --i I r :� --< rj ?J " T Fri ,:-, . rr—, „t . The hearing on the requested relief commenced on 12/10/09 and continued to 01/28/10. Over the ' course of two appearances, Counsel for the applicant and Special Town Counsel each provided the Board with well thought-out and oftenpersuasive argument g on a number of ancillary issues, e.g. was there an appealable "decision", was there "abandonment" of the former use, etc. Additionally, many of the applicant's neighbors appeared and spoke or, alternatively, submitted correspondence on the various issues discussed. Generally, these neighbors spoke in opposition to the requested relief. After due consideration of all the submissions and testimony received, the Board was generally sympathetic to the reality that the applicant proceeded with his rehabilitation of his property with the authority of issued building permits and received an occupancy permit. While these factors may be considered should a variance be sought,this is purely speculative. It was, however, noted that the issue before the Board was limited to whether or not the decision of the Building Commissioner should be overturned. Though the applicant furnished new information in the form of yet additional correspondence from Richard Bussiere, the Building Commissioner advised the Board it was not persuasive to the issue of whether the apartment had/had not been abandoned as to its use and thus no longer allowed as a pre-existing, non- conforming use. After all parties had the opportunity to present their respective positions, proof and authorities, Motion was made by Mr. Igoe, seconded by Ms. Martin to overturn the decision of the Building Inspector to require sufficient documentation that there was no interruption/lapse beyond two(2) years in the apartment use of the applicant's property or file a variance petition with the Zoning Board of Appeals. As to this Motion, Ms. Martin and Mr. Igoe voted in favor, Mr. DeYoung, Mr. Reid and Mr. Samosky voted opposed and, accordingly, the Motion failed to carry and the applicant's appeal was thus denied. 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. Steven DoE]' ung-Chair o N 1”; —I v, -L Un 2 kr 13t'd Met; ceaukte4 giewmaciteea, as924" Te!(781)383-0600 Fax(781)383-2734 DJ ejhlaw@comcast.net ITT M. N -, C.) 11 - i VIA FEDERAL EXPRESS DELIVERY JJ =1.. �1 v, 2' February 11,2010 Clerk's Office Land Court 226 Causeway Street Boston,MA 02114 Re: William Marasco v.Steven DeYoung, Sean Igoe,Joseph Sarnosky,David Reid, Debra Martin and Bryant Palmer, as they are Members of the Yarmouth Zoning Board of Appeals, and the Town of Yarmouth Dear Sir/Madam: Enclosed for filing you will fmd the following documents relative to the above referenced case: 1. Civil Cover Sheet; 2. Complaint;and 3. Filing Fee in the amount of$255.00. Thank you for your cooperation in this matter. Very truly yours, Cbt \tiotik.Abis traP Charles J. Hum hsquire CJH:epm Enclosures cc: William Marasco Town of Yarmouth, Board of Appeals (Via Federal Express Delivery) PLI. o �Ck: 10 C TOWN OF YARMOUTH BUILDING DEPARTMENT " .�- 1146 Route 28, South'Yarmouth, MA 02664 _may.. 508-398-2231 ext. 261 Fax 508-398-0836 R EE ' E D MEMORANDUM OCT I 5YAR2009 BOARD O 0UTHAPPELS TO: Zoning Board of Appeals FROM: ---- James D.Brandolini,Building Commission r ,s DATE: October 14,2009 SUBJECT: 143 River Street/Petition No.4268 Because the history of Petition No.4268 for the143 River Street garage apartment,owned by Dr. William Marasco is lengthy and somewhat complicated, I offer the following recap: -October,2005--- Dr. Marasco expresses his desire to demolish and rebuild a garage/apartment. Based on the information known at that time I verbally advised him a special permit was required. -February,2006--- Dr. Marasco disputes my initial determination. -February 3,2006---I requested a legal opinion from John Creney -February 7,2006-March 6,2006--- A series of correspondence exchanges transpired between me,John Creney and Dr.Marasco,which includes a February 21,2006 letter from Attorney Creney in which he summarizes the breezeway connection issue by stating: "then it appears to be reasonable to conclude that the breezeway was constructed in 1967 so as to create a two family dwelling, rather than two separate single family dwellings, and the two family dwelling, after (before)the bylaw amendment in 1971 requiring one and one half times the area for a two family dwelling became a nonconforming use." -March 6, 2006---Mr. Richard Bussiere, Vice President/Wealth Advisor for TD Banknorth, provides a letter addressing the use of garage apartment. I forwarded a copy to Attorney Creney for his review and opinion. His comments are noted in his response of March 6, 2006, in which he states "Taking that letter at face value as fact, then it appears that the use of the unit was not discontinued;that section 104.3.1 of the zoning bylaw is not applicable;and that the preexisting nonconforming use as a duplex may lawfully continue without any necessary relief from the Zoning Board of Appeals" -March 21, 2006---Building Permit No. 06-1121 was issued to allow the demolition of the garage/apartment. -March 31, 2006---Building Permit No. 06-1162 was issued to allow the construction of a • foundation -April19,2006---Building Permit No.06-1236 was issued to allow the construction of the garage and apartment. A Certificate of Occupancy was issued on December 19, 2006. -September 29,2006---At the request of Richard W. Shea I met with him and Mr. Henry Gill to discuss and review the garage/apartment matter. During the course of this meeting I discussed the March 6, 2006 letter of Mr. Bussiere and Attorney Creney's comments. 3 f + Page-2 Memo Zoning Board of Appeals Re: 143 River Street/Petition No. 4268 -March 7,2008---Mr.Bussiere provides Mr.Richard W. Shea with a letter that states"the bank,as trustee,did not collect rent,nor can I verify that money was actually paid by the caregivers to the sisters." -June17,2008—Attorney Douglas Murphy was appointed Special Counsel concerning this matter. I provided him with pertinent information and a copy of Mr. Bussiere's March 7, 2008 letter. -June 26,2008—Attorney Murphy provides his initial response. -July 22,2008---Attorney Murphy provides a follow-up letter. -July 23,2008-August 19,2008---A series of correspondence was generated between Dr.Marasco, and me, including my August 19, 2008 memo to Attorney Murphy. -September 22,2008---Attorney Murphy responds to a meeting we had concerning a review of the matter. -February 4,2009—Attorney Murphy provides a letter detailing his opinion. -July 16,2009---Letter sent to Dr. Marasco citing Attorney Murphy's comments. -August 10,2009—Dr.Marasco responds -August 11,2009—I ordered him to take the action noted in my July 16, 2009 letter. Attorney Murphy will be present for the hearing and will provide the Board with a recap of his legal opinions and answer questions the Board may have concerning this matter. For detail edification,I am attaching copies of documents generated over the course of this matter, commencing with September 15, 1997 and ending with my August 11, 2009 order. Finally, Attorney Creney and I relied heavily on Mr. Bussiere's March 6, 2006 letter. However, based on the manifestation of facts, this case boils down to one question, does the resumption of the two family use require a variance. It appears that it does. D097717998 x..._6/413 CAPE COD BANK AND TRUST COMPANY RECEIVED CCD 1 Gr nun AND sivr GROUP £rP 1 6 1997 `/ Ye raoulItleaterDept. RECEIVED Sep. 15, 1997 OCT 1 5 2009 Town of Yarmouth YARMOUTH Water Department BOARD OF APPEALS 102 Union St. Yarmouth Port,MA 02675 Edward Coughlin Trust, 1439 River St., Acct# 8194 Dear Sirs, • In response to your letter of 8/28/97, we request that this water service be put in vacant status. The service has in the past provided water to an apartment attached to the garage at this address.The apartment has not been used for several years,nor do we anticipate using it in the future.Please consider this vacancy claim retroactively to the date of water service shut off. If someone needs to be at the property to meet one of your workers,please advise. Sincerely, (2 Richard Bussiere Vice President& Trust Officer 307 Main Street,P.O.Box 1161,Hyannis,MA 02601 • (800)673.2300 Fax:(508)771-4359 14:1y FROM:CDI 5083948232 T0:15083980836 641t,” 1® >»..:; kY To: Jim Brandolini / Building Inspector Yarmouth RECEIVED From: Bill Marasco Date: October 18, 2005 OCT 1 5 2009 Re: 143 River st YARMOUTH BOARD OF APPEALS Jim, Hope all is well I am proposing to replace my attached garage and Apartment with a new one. It will be larger than before 33 by 44 feet. I will move it back 2 feet from current position to conform with 30 set back. I will place apartment on second floor and use 1 st floor for garage/workshop. Please advise on what type of relief, if any I would need. Attached plot plan and elevations. Thank you for your time and consideration. • Bill Work 508 394 2288 eA✓ Ai Cell 508 566 1834 �teilips..„ �� 7< Fax 508 394 8232 5 e / y 3, 0_Eise c >� c -2006 10:24 FROM:CDI _ . __ 5087715202 _ TO:15083980836 P.1 To: Jim Brandolini RECEIVED Building Inspector OCT 1 5 2009 Yarmouth fax 508 398 0836 YARMOUTH From: Bill Marasco Date: Feb 1, 2006 BOARD OF APPEALS Re: 143 Jim, I would like to clarify the reasons why I believe the project at River St, is allowed. The property qualifies as a pre-existing non-conforming two family structure. The property has a main house and a smaller second living unit (apartment). This by definition, qualifies as a two family structure. A question has been raised of lawfullness. It is my understanding in 2003, this same question was raised about this unit. A search of town records found 7certificates dating g prior to 1922.''It is my understanding that if such records can be found, the unit is considered lawful. (it doesn't matter what happened a earlier). Also, the town is currently offering amnesty for unlawful units and would automatically make them lawful even if you question the lawfulness, under amnesty it becomes lawfu . vAs ,. % it. d' ,.lo,�.-7 Concerning the use. I am not asking for a change in use. The use will be the y 07 same after the project is done as it is now. I believe to say a change in size changes the use is to mix use with structures. This is not the intention of the use code. A change in use is defined by a change in category of the use code. This project does not propose a change in use. I am not asking to change the category of use. The contention that by changing the size, you change the use does not make sense. If you have a duplex in a part of town that duplex's are no longer allowed, and you propose to add a room to the duplex, this would not and has not been considered a change in use. The idea that an increase in size of any nonconformity increases the non-conformity is specifically addressed in the raze and replace bylaw in which is states raze and replacement which meets current setbacks, shall be presumed not to increase the non-conformity of the structure. 4 I hope this helps to clarify the project. liptfiercere/� 4704 � Thank you for your time and consideration. - C'� 23 -1--1-( 5,-ree---)n-7-4.-.4. v 4 re-we gene, taa {of•Y4 i TOWN OF YARMOUTH ' BUILDING DEPARTMENT O.Y AT7cc. 14. 1146 Route 23, South Yarmouth, MA 02664 508-398-2231. ext. 261 Fax 508-398-0836 FILE COPY MEMORANDUM RECEIVED OCT 1 5 2009 TO: AttorneyJohn I Creney COPY YARMOUTH FILO BOARD APPEALS FROM: James D. Brandolini, {� Building Commissioner DATE: February 3, 2006 SUBJECT: 143 River Street So. Yarmouth Request for Legal Opinion On January 31,2006 I received a building permit application from the owner of 143 River Street,So. Yarmouth, Mr. William Marasco. Mr. Marasco is proposing to demolish a pre-existing, nonconforming garage which has approximately 764 total square feet and currently includes a 424 square foot dwelling unit and construct a 1340 square foot garage with a 1175 square foot second floor apartment. The existing structure is non-conforming in terms of the front setback and the dwelling unit is in question in terms of legal existence and use. The proposed structure would comply with current setbacks. Upon review I have determined the following facts: 1. October 19, 1967, via Petition 871,—the Zoning Board of Appeals held a hearing to hear a request for a special permit and variance "to permit utilization of 1 bay of existing 3 bay garage for sleeping quarters and remodel garage for this purpose". The Board found that:"It appears that the zoning law allows duplex house in this area, and the Board, following the presentation of the petitioner determined that the request was in fact a second dwelling on a single lot." "It also appeared following consideration by the Board that were this request allowed that the intent and purpose of the zoning bylaw would be derogated from." 2. November 2, 1967—A request for water service was filed with a notation "garage apt." The Building Permit line was left blank. 3. August 9, 1968—A request for a water service transfer was filed with a notation"Garage Apt.) 4. June 4, 1974—The oldest Assessors' records available reflect a floor plan depicting a 424 square foot finished area identified as "Occupancy, other—Cot" and 340 square foot garage. The general description of the improvements is "Hse Bzy Gar Apt". I would assume these represent House, Breezeway, Garage and Apartment. The breezeway is further described under the "Summary of other Buildings" Garage Fr.Canopy 7x30. This represents the connector between the house and garage, which is a roof over a walkway. /- 'me Page 2 143 River Street So. Yarmouth Request for legal opinion 5. March 8, 1971—Town meeting approved a bylaw change which required two family dwellings to have a minimum lot size of 1 'A times the lot area required for a single family dwelling and at least 125 feet wide and 90 feet deep. Existing Zoning Bylaw Section 103.3.2 Para. 1 provides that"Lawfully pre-existing non-conforming single and two family structures and lawfully pre-existing single family and two family structures located on non-conforming lots,may be altered,extend or razed and replaced provided the alteration extension or raze and replacement:" A. "Itself conforms to the applicable bylaw requirements and does not involve a change ofuse, or," B. "Does not other wise increase the non-conforming nature of the structure. These determinations shall,in the first instance be made by the Building Inspector as the Zoning Enforcement Officer. For purposes of this section, any alteration or extension of such a structure which will remain within the pre-existing footprint and height of the structure or raze and replacement which meets the current minimum setbacks and does not exceed the current maximum building height and current maximum building coverage requirements shall be presumed not to be an increase in the non-conforming nature of the structure." Based on this provision, the proposed structure would qualify because the setbacks and height will comply with current requirements. However,considering the Board of Appeals decision in Petition 871 and the lack of subsequent detailed documentation, such as a building permit, or other such information,the question arises whether the apartment use is entitled to"Pre-existing Nonconforming Status". Further,it is possible the canopy connecting the main house with the garage was constructed after the Board's decision and thus the Town's Zoning enforcement Officer viewed this condition as creating a two family in effect. Again,without this documentation it is difficult to make a definitive determination. Given these facts, I am requesting a legal opinion as to whether the garage apartment qualifies as being a"Lawful Pre-existing Nonconforming Use"either as a result of being part of a two family or as a separate apartment/dwelling unit. Finally, I am attaching copies of all pertinent documents referenced herein. I am also attaching some additional Water Department information regarding the use of the apartment in question. Thank you. Y Otinft Name: .is) r rq r— Address: 3 J11r2 APPEAL jr r2 , F_TITIONER: flame. P1 r c `� �— o rut ,. � c� tr F 0. 4— Address: I L\ 3 'r.Q , BOARD OF AP?&4.13 - YARMOUTH, iti3S. This �atttion when ;v ;Ilece.i and si,rp.e;: must be filed with the Board of. Selectmen. Yarmouth. Ys•,schrsett:l. "10ng with the The of .^20.00, " Data 1. Paid deoisi Your Pard r picreby : e.. �, on of crthe:;hey ai.:. inInspector and peti io ec ion 'Snacked below: petition vi 2. Re iew re furar '.;c' Ctfl;zL.ding Inspector to grant permit. 2. I, We hereby r'•;;;', . _t:c :•-".ioa cheche; below: b-I. Variance Ira - :et. -or?nts of fa,rmonth Zoran°..31•_Lsw, 2. Approval of the ,oa,d of Appeals. 3. A spsci4.1 prrra. from the Board of Appeals to allow; Te Upson ,r V7nl'zAne/✓ ..:,. _. . O,t l RAT Or exisrN.4 3 !3Ay C444Gor f=., S/rp i/v' q .(47.04] 4,y Tela 04,10 3. Reason for thele ,, ,.d 'f Appeals actior. :mit as checked below: 3. t] ZC.; u; .i Fl �t �.LyL 1 . n-__�y_....,. i. : S;Uestei under the following e -,ed addrrisses this ' PY-i r ` U)ti ,fin } , . p vFV itJ pet'90 Nam ^9 deemed Gf. ` ,r' ; �J Tw ?tPPect•xi by <�� . ��, • . V. . OWNER Naze: �11' _j3 ree,l•�( r r y A r" Address: 9. 3 1v f ( S_1 APPEAL ,j 7;' 'F:ITICIJr:.: r— Name `� 1 1^ S -IC re-` � , � cj h h 0. i Address: I L-{ 3 \r.e r e--)t. ' BOARD OF APPEALS - YARMOUTH, MASS. This ;NI-sir-ion when can ;.cce. and sirg�ed mast be filed with Select:Ler.. Yarmouth. ,..s::acht.sett::. Board of zi::ro with the foe of :200,.00, _ (late { Paid 1, I Wr: hareb :, ;.•' Fa •c- decision r,r ,.. y your roar/ fcr ..per•^ . on ! tion. Sae Inspector pbelow and petiL� . �� 1�• � :-ilc the action C,iBCyf.•C below: 2. Review u:' Building Inspector to grant permit, a o, Ft :ct en. 2, I, We heresy r:;;:.,yt ke ctjo.t checkel below; ✓I. Variance trc„. - ,nt '�' pora wuth lorsn4 .Thy-Law. 2. Approval of t:ne•:,oscd of Arpoah�. 3. A spe.ci.,]. ;:;er:I . fron the Board of Appeals to allow; Ti peso iT UnisitArseta OF / RAY 0r exi3PN6 3 ,3,4y C,44Ac,f Fac 5/99 ,4 p 4'' -ere"3 4.;c _ .:. .`. r0 ReNeve( a4/*as Foot r4 is /'v,PPe;e 3. Beacon for tho ;o..ri ,f Appor..ls actior. .s ;hocked 'below: Ce:.tr ._. • - 1. 3. •44 ” U :..a:1 .1 :.fin. :aced -under the foaminr, Natle y, ia =id ;$ e3 P . 1 ft 4 _ - ,. / jIL� Z .: i V .. o,: e so :s doomed affected by BOAR OF YARMOUTH EM/17 LJ BOARD OF APPEALS 1 V / . Filed with Town C1erk:NQV 6 1967 Hearing Date: 10/19/67 Petitioner: Mrs. Dorothy Farrar Petition: ,/871 DECISION The petitioner requested a review of the Building Inspector to grant a permit and a variance from requirements of Yarmouth Zoning by-law to permit utilization of 1 bay of existing 3-bay garage for sleeping quarters and to remodel garage for this purpose. Shen on assessor's map ,/290We. Members of the Board present: Harold Hayes, Walter Anderson, Howard Spurr, Emanuel DiTiberio, Albert Webb. It appearing that notice of said hearing has been given by sending notice thereof to the petitioner and all those owners of property deemed by the Board to be affected thereby and that public notice of such hearing having been given by publication in the Cape Cod Standard Times on 10/5/67 and 10/1e/67, the hearing was opened and held on the date first above written. The following appeared in favor of the petition: Attorney Joseph Reardon The followingappeared in oppodeion: Mrs. Rusted, Mrs. Phillips, by letter. Reason for decision: It appeared at the hearing that the petitioner owned property in South Yarmouth lying to the east of South Street and between Bass River and a section known as the Bass River Parkway area. The property is shown on the assessors records on sheet #29. It appears that the zoning law allows duplex houses in this area, and the Board. following the presentation of the petitioner determined that the request was in fact for a second dwalling on a single lot. It appeared that the lot was not substantially different from the rest of the lots in the subdivision. It also appeared following consideration by the Board that were this request allowed that the intent and purpose of the zoning by-law would be derogated frons rhe Board considered at length whether or not the public good would be adversely affected ,y the granting of this request and after a lengthy deliberation was of the opinion that .he public good would be adversely affected. Phe Board considered the fact that this was in one of the prima residential sections of the (own of Yarmouth and that there were no special conditions that affected this parcel that lid not affect many other parcels in the immediate area. herefore, the Board felt that tere this granted, there were others in the area who could 'equest the same consideration and any deviation from the requirement for one dwelling in his area the Board finds would be contrary to the by-law and would adversely affect the mblic good. embers of the Board voting: Harold Hayes, Jr., Walter Anderson, Howard Spurr, Emanuel iTiberio, Albert Webb. All voted to deny. horedore, the appeal for approval is denied. Albert Webb Acting Clerk I/ APPLICATION BUILDING PERMIT NO. YARMOUTH WATER DEPARTMENT Yarmouth - Massachusetts 9aac q Service No. 4 / ie o. Date I ) UW `-.. TO THE BOARD OF WATER COMMISSIONERS: I hereby make application for supply of water and installation of service connection at Lot # • House # 4 L 3 Run.,..? .' O:d,nl utrui... Street, Owned by Q`A 1 Occupied by and I agree to pay for the same according to the rules and regulations now in force or to be estab- lished by the Water Commissioners. • NameC*)\.?)a.h) cxcCrC (Owher) Address ese41) Bill installation to: S NOTE. PLEASE MAKE SEPARATE APPLICATION FOR EACH SERVICE CONNECTION DESIRED. Cti ADOmONAL COPItt OP APPLICATION, WILL It IOANItNtD UPON NEWEST • TRANSFER YARMOUTH WATER DEPARTMENT Yarmouth - Massachusetts Service No. 81:14. Date ,...Anget...9...29.60 TO THE BOARD OF. WATER COMMISSIONERS: I hereby transfer ownership of the property identified as Lot # 2 House # t. (Garage .Apt.) Street, Formerly Owned by Pentlay .0...Farrar Now Owned by 13dward..COUgh,lin Occupied by and I agree to pay for the supply of water according to the rules and regulations now in force or to be established by the Water Commissioners. — 2 Name /tele-ej/ g(zzi , (Own year round--- Billing Address if In order to bring our billing records up to date please fill out and return at once to the Yarmouth Tom Office this transfer form. Thank you. „a41 €4,c)i. a-e-e;44d-e4-• Harry M 'Robinson Cc) Town Collector Transferred by :1>7 ;5087717999 # 5/ 6 2- 3-06; 3:45PM:water dept APPLICATION •BUILDING PERMIT NO. YARMOUTH WATER DEPARTMENT Yarmouth - Massachusetts 9624.ale cr-k Service No. 51/ 72/ Date \ ) Or %. In TO THE BOARD OF WATER COMMISSIONERS:• I hereby make application for supply of water and installation of service connection at Lot # • House # LIC Ra-o) '1/41).M.S.69\‘Ki13.4 utrul .Street, Owned by era\ °\ v . H. 1/4 k Occupied by and I agree to pay for the same according to the rules and regulations now in force or to be estab- lished by the Water Commissioners. • Name \CW-N.D -o-tetterSalsei \‘::jk—C31/4)*I.)10,./1) Address VS.3 IR Crikrt..?‘.) C-3t C)-3 Ostatia. \R,\JMr? Bill installation to: S • NOM PLEASE MAKE SEPARATE APPLICATION FOR EACH SERVICE CONNECTION DESIRED. ADDITIONAL COPIES OF•PPLICATIONS Witt. Ut FURNISHED UPON AAAAAAA 2- 3-06; 3:45PM;wa[er tlep[ ;5087717998 # 6/ 6 AAPE COD BA ND TRUST COMP NYK Ra V v D gan (` I cr zRvsr AND INVESTMENT GROUP SEP ,� 9a7 Yari,icy:I II',lilies'Dept.— Sep. 15, 1997 Town of Yarmouth Water Department 102 Union St. Yarmouth Port,MA 02675 Edward Coughlin Trust, 143A River St.,Acct# 8194 • Dear Sirs, In response to your letter of 8/28/97, we request that this water service be put in vacant status. The service has in the past provided water to an apartment attached to the garage at this address. The apartment has not been used for several years,nor do we anticipate using it in the future.Please consider this vacancy claim retroactively to the date of water service shut off. If someone needs to be at the property to meet one of your workers,please advise. Sincerely, ‘-e-001-42 (2 Richard Bussiere Vice President& Trust Officer 307 Main Street,P.O.Box 1161,Hyannis,MA 02601 • (800)673-2300 Fax:(508)771-4359 2- 3-06; 3:45PM;Water dept ;50877,7998 ' s 4/ 6 YARMOUTH WATER DEPARTMENT Work Order J Service No. g7 t7 t/ Name • Cells( lkel4Y//�_ /•/� Address /ill,. £(l"lit Service Repair ON OFF Meter No. 20)3 -i546 Meter Reading CO-1 ).9 Do r > Remarks gyro ,g fvkLt vvki ti, ) eC C 6 7`' li't� • — tai ' 4,X • us i 11 nee# When C7 A 2_07 Time a 3 a Ordered By 6143, e(/ Cos„ Q C A - d3d-Z xw13ti c0Work Done ByA:9.>"-- 11.401 1 2- 3-08; 3:45PM;water dept ;5087717998 U 1/ 5 • �.,°' 'a TOWN OF YARMOUTH • auk 'JA1t1P[yTQ k� WATER DEPARTMENT k 0",FF^`>u'#Hjv1's�TO�C1I {°jltt,. • t..• TQ 000 40 5 " 99 BUCK ISLAND ROAD Telephone:(508)771-7921 WEST YARMOUTH,MA 02673 • SO YARMgU'I'IJ A "' • 7; 4-61;266:(Cit: 143A River St • .—„'�. . �.1 :;ISERvite;(tinREss ..�.. .. .,� r Edward Coughlin rt,L c/o Cape Cod Bank & Trust 8194 ' Box 1180 L South Yarmouth, MA 02664 3EPAYTHISo •L J I $ 0:00 +A PLEASE MAKE CHECKS PAYABLE TO "TOWN OF YARMOUTH" ug TO INSURE PROPER CREDIT, PLEASE RETURN THIS STUB WITH PAYMENT '... SERVIC'6ADDR13S5 .... . !O°Ifaq :44!17!• a",*1" UNPAD 143A River Si • 8194 °Roo' aAUN _ 0.00 TOWN OF YARMOUTH—WATER DEPARTMENT WATER BILLS THAT REMAIN UNPAID AFTER THIRTY(30)DAYS FROM . DATE OF ISSUE ARE SUBJECT TO TERMINATION OF SERVICE AND/OR COLLECTION PROCEDURES IN ACCORDANCE WITH TOWN OF YARMOUTH WATER DEPARTMENT RULES AND REGULATIONS INTEREST c:4,,- ;PERIOD'COVER®:::s F ,CU*RENTINSTER PRRVIOUS METER ':9AL.I:OPR34 FROM TO !i? READING F. ..; !READE3G i ''CONSUMPiTON .'iy.C[{RREN l^CIiArRGE, 4L �+ M PEl 101)COYERED-f, USAGE ArsIQ*** This Account is Inactive ( y,1��RY�<<�; CHARGE ~ *** ADVANCE QUARTERLY • CHARGE • 6 D6TB,OtISS17 r!:$ 7gTA ,P 1 t 12/040/01 IAMgIINtr bi>! 0.00 2- 3-08; 3:45PM;weter dept ;5087717998 # 2/ 8 I . YARMOUTH WATER DEPARTMENT Work Order Service No. , l` Name CotA. 7k —r\ Address /1-/v's4 AZ, (11/1 Service Repair ON OFF Meter No. Meter Reading Remarks fez( r nl Au, o( /j�z a G'cA %s a:-6-i,v'k. — d - add. h vs4,2dt..c When /2 /3 ! d ( lime Ordered By /Q( Ck44 GL tuaat-tee_. Phone# _ G 79 ,E Fax# • Work Done By 2- 3-08; 3:45PM;wetet dept ;5087717998 # 3/ 6 YARMOUTH WATER DEPARTMENT .4 METER REPLACEMENT: • • i BOOK SEQ. SERVICE # 2/9i NAME (/ a,r ': ADDRESS /'Ll nwL) !Jt'i OLD METER.SERIAL # . TYPE Q rnrj[ OLD METER READING G Y ) n� 12`�' ' NEW METER ID. # I , NEW METER SERIAL # NEW METER READINGt REMARKS .Hrn( '_dJ n J e� Ar JiaJ�. -, l PJ'Y) , At arno,a.l� 1 0 G ei " L.,4 e l ... : (n 53 . . crev.. IS Ore OW 10 :•cCtizeiv r p-zr(� ou"-'eg (.W A .?,! Fc`--e d'Ic it..Oa:erl Capr14$E oert Gl i nt W Cn71.5 :.: -roer i 0% . c'hE 2 cP�No) E ' 6Z igo A ,1— ltd: i SCHEDULE DATE'. f;,_,m 9/r'. : TIME / ein,' ORDERED BY WORK COMPLETED BY I. . • Lotc.orY4/1/4 TOWN OF YARMOUTH BUILDING DEPARTMENT c. 1146 Route 28, South Yarmouth, MA 02664 Phone: 508-398-2231 ext. 261 Fax: 508-398-0836 RECEIVED Facsimile Cover Sheet OCT 1 5 2009 YAO BOARD O H APPEALS TO: Attorney John C. Creney FAX NO. 508-362-1125 DATE: February 7, 2006 FROM: James D.Brandolini, Building Commissioner Total pages, including cover page: 1 SUBJECT: 143 River Street COMMENTS: John: I did review Petition 3908 and there is no reference to the apartment located in the garage. That petition allowed an addition to the house to encroach into the front setback. The petition only made reference to the house and the garage locations. Because the apartment was not an issue and frankly an unknown at the time the application for Petition 3908 was presented to me in June, 2004, I inserted the Use Regulation Schedule number Al,which is single family. That is the reason; I believe the Board's decision makes reference to the house as"single family". Because of the nature of this situation, a formal written opinion is appreciated Thanks Jim -- _.. ni o r Jtmn l-KtNtY 15083621125 P.01/01 TELECOPY COVER SHEET RECEIVED OCT 1 5 2009 John C. Creney, P.C. Attorney at Law YARMOUTH 86 Willow Street BOARD OF APPEALS Yarmouth Port, Massachusetts 02675 ll there is a problem with transmission or if all pages are not received,please call 508-362-1122 for retransmission. Fax 508.362-1125 TO:James D.Brandoiini FAX#: 508 398-0836 COMPANY: Town of Yarmouth FROM: John C. Crcncy DATE: February 07, 2006 RE: Town of Yarmouth with Marasco Number of pages including this cover page: I This message is intended only for the use of the individual or entity to which It is addressed.and may contain information that is PRIVILEGED. CONFIDENTIAL and exempt from disclosure undo applicable law. tf the reader of this message Is con the intended recipient, or the employee or agent responsible for delivering the message to 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 notify us immediately by telephone,and return the original to us by mail without making a copy. Thank you. Comments: In view of the denial by the Board of Appeals in 1967 for a variance authorizing a garage apartment, one wonders if we are dealing with a protected nonconforming use or an unprotected nonconforming use. In this connection you may wish to review the Board of Appeals decision noted on the assessors records as Decision No. 3908. Otherwise (i) locus contains less than the required 25,000 square feet; and (ii) the footprint of the proposed new garage and apartment is different than the old structure; and (iii) since the water service appears to have been terminated in 1997, there may have been an abandonment of the apartment use. TnTry r, n. lV •J Lw0 11:0o rKu9:LUI 5087715202 T0:15083980836 P.1 sem Suipiinq alp 3843 s;uieidwoa ,Cuv uaaq ianau anvil a2agu 'pawn st ;uatupedv apis n aossassv aq;3o spioaai aq3 uo saxel •panssi uaaq 9A8q sasuaag `;uawptgdn 48tp to; gtigat Jo pnoq alp Aq panoidde pun pauSisap seen wats,Cs aildas u ';uouq nde ;mg ui pant annt s;ueua; `L66I aauiS •luatuuopuugv;o uoptugap aios v se pasn atom sai3iipn•;jo Suitun33l ;mar ;slim sr li ;nq "muscle si astnoa 3o situ •sinadde;o ptuoq alp tuo.g jogai Maas o3 anvils pinom sig pun suopeaoi asotp ;n ,Cia;vipaunui paddo;s aq uoxwitgvq Jo ssauisnq iiv 3utt annbat uag3 pug asn Swuuojuoa-uou Apua.tna 9A84;etp s2utpimq pue sivapisat ;uauna atp Itu pug pun sptoaat umo3 ui Nang oS pinoa I uatp 'luawuopunqu saugap 3vtp awi;3o pouad v tomo atom sat;iiiln asneoaq 3vg3 tajui o; atom noAn •asn pauopungv paaapisuoa ;oil atam pun 'asn Su13xlxa-aid agt t31M uado-at o; pamoiiv uaaq 0Ant pun acus.o3 atom ,Cott uatm ,Ciintaadsa sno t Z unit a2Ow toJ pasoia uaaq angq wed aril ill £661 03 3iavq Su1oS ssauisnq pun stuapisai umol,Cuompo malnot v 3saS2ns pinom I u8tp 'steat( z aoj jo patent sa131IItn Sul/tug uodn paseq st asn jo luatuuopuegv lett Zu1Aidwi atv;l pastel uaaq a wq tanau pinom ;uatiluopunge;o uol2sanb at;l rain! leg; ;noq;im uowtdo ,Cw st ;I •(lanai L66I sit uodn paseg ;uauluopuvge pauojui no,C asnnaaq) •luawuopuege ou jo;ootd se okras pinogs site ,Cm moa mg 03 Suitpawos anvq no,C ssaiun `asn to sum 3j ;etp tailmo snotnatd aril twoj Auou 3sa;191J8 2842 'ua1ujdo Am st 3I '0058 b9Z SOS auogd Ilan•t0 '8619 xa 00£Z £19008 I aog30 ;e ulq goo 0sir Amu not( stip Suiuutjuoa ra33ai v a31Jm o; Suiiilm sl aH •,C31adotd alp jo aivs aq3 ui tans se 31 pa;uasatdaz pun Allure; oma v se =puns alp jo asn ail uopuegv Jana ati pip lou pea;tn ;0n pip aH -mug relit ;e,sltadotd at(3Jo °anal; ail; pa;a8luoa anvil I 'L66I u, asn pauopuege tin pug 4iadotd alp si moil tuaauoa JnoA 'asn lute ui a2uega ,sire anionui ;ou saop ;aafotd Am seg;pun 'atn;ans;s A11ure; oral in0mvi v sum ;s tanu EV! 3vg3 papniauoa anvil no,C malnaJ nue wit Suipun;sJapun Aw si ;I gulf EN :all slV3ddV AO 0e1V09 HLnowavA 900Z 'Lclad :Ma 03SCJ8W lila :word 6002 9 I 130 9£80 86£ 80 xe3 t;notutvA 4 3 A 13 O 321 adsul Suipiing iuitopuuJg tug :o.L r=1-so-crxio ti:DI rru'I:t,ul 5087715202 70:15083980836 P.1 Z£Z8 16£ 805 red 17£8I 995 80S I100 88ZZ 176£ 805 )Is°M •uor;V.pisuoa pue atm;anoiC aoj nth(xuugy •uo;lsod ;uazrna Aq /twerp o; sdlaq slg; adoq I •sebt;! a;eorpui o; su8ls alsACgd Lue aaaq; an aou `pauopuege rtd-r-W5 11:45 FROM:CDI 5087715202 TO:15083980836 P.1 RECEIVED To: Jim Brandolini I OCT 1 5 2009 Building InspectorYARMH I Yarmouth fax 508 398 0836 BOARD OFOAPPEALS From: Bill Marasco Date: Feb 7, 2006 Re: 143 Jim. It is my understanding that you do not have a problem with the project itself, it is only the size of the apartment. Would it be possible to get a building permit to release the project for demolition and foundation only. With the idea that either the permit will be released or it will go to board of appeals for size of the apartment. Thank you for your time and consideration. Bill Work 508 394 2288 Cell 508 566 1834 Fax 508 394 8232 j rik . TOWN OF YARMOUTH BUILDING DEPARTMENT :F • �K i'.a 1146 Route 28, South Yarmouth, MA 0 '"""' ! RECEIVED ' . �:,-• Phone: 508-398-2231 ext. 261 Fax: 508-398-0836 OCT 1 5 2009 Facsimile Cover Sheet BOARAD PP A OF OFPPEALS TO: Attorney John C. Creney FAX NO. 508-362-1125 DATE: February 7,2006 FROM: James D.Brandolini, Building Commissioner Total pages, including cover page: 2 SUBJECT: 143 River Street Second Transmission COMMENTS: John: First, please correct a typo on page 2 of my February 3, 2006 memo. Paragraph 2 makes reference to zoning bylaw Section 103.3.2. It should read 104.3.2 In addition,as a follow-up to my earlier transmittal,Mr.Marasco is now requesting to proceed with demolishing the existing garage and construct a foundation and frame the garage that will conform to the provisions of zoning bylaw Section 104.3.2 (1)and he will deal with the apartment use issue as needed via the Board of Appeals should it be necessary. He would do so at his own risk with respect to the future apartment use. However, I want to avoid any misrepresentation and misinterpretation should a building permit be issued for the garage construction only. I usually issue such permits with the following condition: State Building Code,Section "111.13—Approval In Part": "The Building official may issue a permit for the construction of foundations or any other part of a building or structure before the construction documents for the whole building or structure have been submitted, provided that adequate information and detailed statements have been filed complying with all of the pertinent requirements of 780CMR. ' ¶ ' Page 2 Facsimile Re: 143 River Street second transmission Work shall be limited to that work approved by the partial approval and further work shall proceed only when the building permit is amended in accordance with 780CMR 110.13 (Amendments to Application). The holder of such permit for the foundation and other parts of a building or structure shall proceed at the holder's own risk with the building operation and without assurance that a permit for the entire building or structure will be granted." Your comments and your legal opinion are requested as to: 1. Notwithstanding that the structure may meet the provisions of Section 104.3.2(1) should a permit for the structure only be issued in light of the apartment use question. 2. If so,what legal wording should be used to condition the permit Thank you. Jim • tar t r JUIN l..KtNtY 15083621125 P.01/01 TELECOPY COVER SHEET RECEIVED OCT 1 5 2009 I John C. Creney, P.C. Attorney at Law YARMOUTH 86 Willow Street BOARD OF APPEALS Yarmouth Port,Massachusetts 02675 If there is a problem with transmission or if all pages are not received,please call 508-362-1122 for retransmission. Fax 508-362-1125 TO:James D. Brandolini FAX#: 508 398-0836 COMPANY: Town of Yarmouth FROM: John C. Creney DATE: February 08, 2006 RE: Town of Yarmouth with Marasco Number of pages including this cover page: I This message is intended only for the use of the individual or entity to which it is addressed,and may contain infi rmation that Is PRIVILEGED. CONFIDENTIAL and exempt from disclosure under applicable law. If the reader of this message Is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dlaseminatiun, distributhm or copying of this communication is strictly prohibited. If you have received this communication in error,please notify us immediately by telephone.and return the original to tar by mail without making a copy. Thank you. comments:With respect to the issuance of a foundation permit: Section 104.3.2, paragraph 1, applies only to lawful, preexisting nonconforming single and two family structures. It seems to me that if you are going to base the issuance of the foundation permit on the authorization conferred by paragraph 1, then you must first determine that you are dealing with a lawful, preexisting nonconforming single or two family structure. From the materials which you sent to me, it appears doubtful that any prior single family use was lawful; rather it appears that any prior single family use was unlawful. In addition, it appears from termination of the water service that any such single family use was abandoned more than two years ago. It's your call, but it looks as if paragraph 3 would be more applicable to the facts. Paragraph 3 applies to structures other than lawfully preexisting single and two family dwellings. I suppose there is no doubt that the structure itself(but not any single family use) is lawful, preexisting and nonconforming. Paragraph 3 requires an application to the Board of Appeals for a special permit. TITMI P R1 ot.Y4—it TOWN OF YARMOUTH ° BUILDING DEPARTM , r pr44. 1146 Route 28 South Yarmouth, MA°I C E I V E D Phone: 508-398-2231 ext. 261 Fax: 508-398-0836 OCT 1 5 2009 YARMH BOARD OFOUAPPEALS Facsimile Cover Sheet TO: Attorney John C. Creney FAX NO. 508-362-1125 DATE: February 9,2006 FROM: James D. Brandolini Total pages,including cover page: 1 SUBJECT: 143 River Street COMMENTS: ' My comments with respect to the accessory structure/use were in principal as it relates in general to the interpretation of 1043.2 (1), notwithstanding the 30°!. restriction. I agree with your calculations insofar as the 143 River Street project is concerned. The maximum allowable accessory aggregate would be limited to 993 square feet (3,309x30%). However, an interesting scenario that probably will be raised by the applicant is the fact there exists a physical connection between the main house and the structure in question,thus creating a two family and therefore the accessory provision is not applicable. He did allude to this early on. That is something I have to be prepared to defend. Do you have any suggestions? Thanks Jim o •Y4ii TOWN OF YARMOUTH • BUILDING DEPARTMENT tsc�„-2.4 1146 Route 28, South Yarmouth, MA °PMi C E I V E D Phone: 508-398-2231 ext. 261 Fax: 508-398-0836 OCT 1 5 2009 YARMOUTH Facsimile Cover Sheet BOARD OF APPEALS TO: Attorney John C. Creney FAX NO. 508-362-1125 DATE: February 9,2006 FROM: James D. Brandolini Total pages, including cover page: 1 SUBJECT: 143 River Street COMMENTS: John: I have interpreted the provisions of Section 104.3.2 paragraph 1 to also include structures accessory to 1 & 2 family dwellings and have issued permits for such structures that comply. I reached this interpretation because of the definition provided in Section 500 and Table 202.5,Use Q3,footnote 5. Your comments are welcomed. Thanks 04 YaR TOWN OF YARMOUTH y BUILDING DEPARTM t .,.. ;:,,,,,� �' 1146 Route 28, South Yarmouth, MA 0 � E I V E D Phone: 508-398-2231 ext. 261 OCT 1 5 2009 Fax: 508-398-0836 YARMOUTH BOARD OF APPEALS Facsimile Cover Sheet TO: Attorney John C. Creney FAX NO. 508-362-1125 DATE: February 9, 2006 FROM: James D. Brandolini Total pages, including cover page: 3 SUBJECT: 143 River Street COMMENTS: John: I am attaching a copy of a Supreme Judicial Court decision Olson, & Others. v Attleboro Please let me know what your opinion is as it relates to the 143 River Street situation. Thanks Jim + n o Ht1Y JUHN CRENEY 15083621125 P.01/01 TELECOPY COVER SHEET RECEIVED I OCT 1 5 2009 John C. Creney, P.C. H Attorney at Law BOARD OFOAPPEALS 86 Willow Street Yarmouth Port, Massachusetts 02675 If there is a problem with transmission or if all pages arc not received,please call 508.362-1122 for retransmission. Fax 508-362-1125 TO: James D. Brandolinl FAX#: 508 398-0836 COMPANY: Town of Yarmouth FROM: John C. Creney DATE: February 09, 2006 RE:Town of Yarmouth with Marasco Number of pages including this cover page: 1 This message is intended only for the use of the Individual or entity to which it is addressed,and may contain Information that is PRIVILEGED. C'UNF'IDF.NTIAI. and escmpt Dun. discicnure under applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible tot delivering the message tet the intended recipient, you arc hereby mined that any dissemination, distribution or copying of this cominunleation Is strictly prohibited. If you have received this communication in error.please notify us immediately by telephone,and return the original to us by mall without making u copy. Thank you. Comments: With respect to Olson v. Board of Appeals ofAttleboro, I have checked later cases. Olson has not been reversed and appears to still be good law. The width of the breezeway in that case was six feet, and the Court said that the house, breezeway and garage were designed to produce a unified architectural effect. The width of the breezeway at the Marasco house is about thirty feet. Not having seen the breezeway, P11 leave it to you as to whether the Marasco breezeway is designed to produce a unified architectural effect. I suppose that we now contemplate that the applicant could assert that the proposed structure is neither an accessory building (too large in area), nor an addition to a lawfully existing two family dwelling (can't show lawful existence of two family dwelling), but rather that the proposed structure is an addition to a lawfully existing single family dwelling, defined as in Olson. If you gave the applicant the benefit of the doubt on the unified architectural effect of the thirty foot long breezeway, then it could be justified. —' "' ate• c wit JUNK t-KLNLY 15083621125 P.01/01 RECEIVED TELECOPY COVER SHEET OCT 1 5 2009 John C. Creney, P.C. ARMOUTH . BOARD OF APPEALS Attorney at Law S6 Willow Street Yarmouth Port,Massachusetts 02675 If there is a problem with transmission or if all pages are not received,please call 508-362-1122 for retransmission. Fax 508-362-1125 TO:James D. Brandolini FAX ii:508 398-0836 COMPANY: Town of Yarmouth FROM:John C. Creney DATE: February 09, 2006 RE: Town of Yarmouth with Marasco Number of pages including this cover page: I This message is intended only for the use of the individual or entity to which It Is addressed,and may contain information that Is PRIVILEGED, CONFIDENTIAL and exempt from disclosure under applicable law. Ir the reader of dtis message is mit the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you arc hereby notified that any dissemination. distribution or copying of this communication is se-fatly prohibited. If you have received this communication IA error,please may us Immediately by telephone,and return the odginel to us by mail without making a copy. Thank you. Comments: With respect to your interpretation of including accessory structures within paragraph 1 of 104.3.2, it sounds reasonable to me. The proposed garage appears to have a total area of 2515 square feet, comprised of 1340 square feet on the first floor and 1175 square feet on the second floor. Our definition of accessory buildings in section 500 of the zoning bylaw contains a limit of thirty per cent of the total floor area of all structures on the lot. Assessors records show the main house to have a living area of 3309 square feet. 2515 divided by 3309 equals 76 per cent. Assessors records show the main house to have a gross area of 4166 square feet. 2515 divided by 4166 equals 60 per cent. Even if you were to utilize the first floor only of the proposed garage (1340 square feet), and the gross area of the main house (4166 square feet), the division still results in greater than thirty per cent. Accordingly, it looks difficult to fit this proposed garage into the definition of an accessory structure. - min '"rn r N'tNtr 15083621125 P.01/01 RE TELECOPY COVER SHEET D E l V E D OCT 1 5 2009 John C. Creney, P.C. Attorney at Law YARMOUTH 86 Willow Street BOARD OF APPEALS Yarmouth Port, Massachusetts 02675 If there Is a problem with transmission or if all pages are not received,please call 508-362-1122 for retransmission. Fax 508-362-1125 TO: James D. Brandolini FAX#: 508 398-0836 COMPANY: Town of Yarmouth FROM:John C. Creney• DATE: February 09,2006 RE: Town of Yarmouth with Marasco Number of pages including this cover page: 1 This message is Intended only for the use of the Individual or entity to which It Is addressed,and may contain information that is PRIVILEGED, CONFIDENTIAL and exempt from disclosure under applicable law, If the reader of this mss age is not the Intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified Ilial any dissemination, distribution or copying of this eommunicmion Is strictly prohibited. If you have received this communication In error,please notify us immediately by telephone,and return the original to us by mail without making a copy. Thank you. Comments:if, instead of this proposed structure being an accessory building (a garage), it is asserted that the proposed structure will be an addition to a lawfully preexisting nonconforming two family residence on a nonconforming lot, then it would seem that in order to take advantage of paragraph 1 of section 104.3.2, the applicant has the burden of showing to you that the existing structure is (i) lawfully preexisting; and (ii) a two family residence. We are met again with the 1967 denial by the Board of Appeals of the request for an apartment in the then existing garage, which goes to the "lawfully preexisting" issue; the 1997 termination of the water service, from which one could infer an abandonment of any then illegally existing second dwelling unit; and the effect, if any, of the fact that the canopy, connecting the main house with the existing garage, has no walls. Maybe the lack of walls is of no significance. 1 don't know. But the documents show the earmarks of an abandoned illegally created dwelling unit in a garage. If the applicant can convince you that the existing house and existing garage constitutes a lawfully preexisting two family residence, fine. However, it looks as if he has a large burden to so convince you. TnTOl P P1 . L TO Banknorth Wealth Management • • C E I V E D TD Banknorth,N.A. 493 Station Avenue 0 C T 1 5 2009 P.O.Box 1180 South Yarmouth.MA 0266 Toll Free: 800 673-2300 YARMOUTH TDBanhnorthWeahhMan e0 co 1 OF APPEALS February 15, 2006 Jim Brandolini Town of Yarmouth Town Hall Rte 28 S. Yarmouth,MA 02664 Re:Property located at 143 River St., S.Yarmouth,MA Dear Mr.Brandolini, I am writing this letter at the request of Dr.William Marasco,cturent owner of the property shown above. Prior to selling the proerty to Dr.Marasco, it was owned by the Edward L. Coughlin Trust for which Cape Cod Bank&Trust(now TD Banknorth)was trustee. This letter is intended to clarify a letter,dated September 15, 1997, I sent to the Town of Yarmouth Water Department regarding an apartment located on the premises in a building separate from the main residence. In that letter,I requested the shut-off of water to the apartment as it had not been occupied for a period of time due to the ill health of the occupants of the main residence. At that time,I also stated that it was not anticipated to be occupied in the future. With this letter, I am certifying that, although the apartment was not occupied,we continued to maintain it as such with the intent that it would once again be rented when circumstances permitted. For reasons of ill health,the occupants of the main residence were forced to vacate the property and a decision was made,by the trustee, to sell. Ultimately, the property was sold to Dr.Marasco in November,2001, as a residence with attached apartment. , C.3) Further questions may be directed to me at the phone number 800-673-2300, or email at richard.bussiere(a tdbanknorth.com. Sincerely, Richard 13ussiere, CIFA Vice President Wealth Advisor cc: Dr. William Marasco Sent via fax to: 508-398-0836 o4•YgR TOWN OF YARMOUTH �o ' •. y BUILDING DEPARTMENT -� - ,� 1146 Route 28, South Yarmouth, MA 02664 Phone: 508-398-2231 ext. 2 Fax: 508-398-0836 1,-. E C E I V E D IOCT 1 5 2009 I Facsimile Cover Sheet YARMOUTH BOARD OF APPEALS TO: Attorney John C. Creney FAX NO. 508-362-1125 DATE: February 16,2006 • FROM: James D. Brandolini Total pages, including cover page: 2 SUBJECT: 143 River Street COMMENTS: John: I have read the copy of the Mass Zoning Manual Section 6.9—Abandonment you provided. However, assuming the existing house and attached garage/dwelling unit is a pre- existing, non-conforming two family, would the mere fact the unit and house were vacant for a period of time commencing upon the death of the owner from 1997 to 2001 cause it to lose its protection pursuant to MGL 40A, Section 6 and zoning bylaw Section 104.3.2? Section 6 extents certain additional protection to one&two family structures and uses that are not afforded others. As a result, it seems to me,uses of this nature would not necessarily lose their protection because of non-use. In this case before me as I understand it,the owner passed away and Cape Cod Bank&Trust handled the estate, resulting in both units being vacant. • Page 2 Fax J. C. Creney Re: 143 River St February 16,2006 With respect to the pre-existing non-conforming two family status,the following facts are, in my opinion quit germane to reaching a logical determination: • Ms.Dorothy Farrar's petition application requests not only relief from zoning but also "Review refusal of Building Inspector to grant permit." • The Board's decision includes the statement that"It appears that the zoning law allows duplex houses" • Less than a month after the hearing the owner applied to the Water Dept.for water supply to service a garage apartment. • The unit in question,I have been advised had its own dedicated cesspool • There was no apparent enforcement action taken by the Town to prevent the dwelling unit from being constructed or continuing. The site in question in 1967 contained 24,275 square feet and fell within the RD1 zoning district requiring a minimum of 20,000 square feet. Zoning Bylaw Section II,entitled Residence District Use, Para. 1 in effect at that time, permitted as a matter of right, "One or Two Family dwellings"without any additional land area requirements such as was adopted in March of 1971,when 1 V2 times the land area became a requirement for two family structures. Based on this review, and considering the application of Mass Appeals Court case of Olson v Attleboro Board of Appeals involving a house attachment to a garage,decided March 8, 1949, which in my opinion, has significant bearing, one could reasonably conclude that the Board of Appeals made its decision predicated on the fact the garage at the time of proposal was not connected to the house, hence the Board's decision. However, in light that no enforcement action was taken to remove or prevent its creation infers that a revised proposal to connect the house and garage was approved by virtue of an interpretation made by the Zoning Enforcement Officer in 1967 and that such connection satisfied the Board of Appeals' comment regarding duplex house/two families being allowed. Accordingly, at this time, in my opinion, we are dealing with a pre-existing non- conforming two family that qualifies pursuant to the provisions of Section 104.3.2 (1) and therefore the garage containing the dwelling unit may be demolished and reconstructed providing that portion will meet the existing setbacks, height and land area requirements. oY Y9R TOWN OF YARMOUTH o� % BUILDING DEPARTMENT � � �s 1146 Route 28, South Yarmouth, MeigsR E Phone: 508-398-2231 ext. 261" E I V E D Fax: 508-398-0836 OCT 15 2009 Facsimile Cover Sheet BOARD OFOUTH APPEALS TO: Attorney John C. Creney FAX NO. 508-362-1125 DATE: February 15,2006 FROM: James D. Brandolini Total pages, including cover page: 1 SUBJECT: 143 River St COMMENTS: This matter now seems to have boiled down to"Abandonment and/or Non-Use". Some years ago I had an opportunity to review a case; Derby Refinery v Chelsea,which dealt with abandonment. I am requesting your opinion on that and any other related case(s) that might be applicable to the 143 River Street situation. Thank you Jim FEB-15-2006 14:05 RTTY JOHN CRENEY 15083621125 P.01/01 RECEIVED TELECOPY COVER SHEET OCT 1 5 2009 John C. Creney, P.C. YARMOUTH Attorney at Law BOARD OF APPEALS 86 Willow Street Yarmouth Port,Massachusetts 02675 If there is a problem with transmission or if all pages are not received,please call 508-362-I 122 for retransmission. Fax 508-362-1125 TO: James D. Brandolini FAX#: 508 398-0836 COMPANY: Town of Yarmouth FROM: John C. Creney DATE: February 15,2006 RE: Town of Yarmouth with Marasco Number of pages including this cover page: I This message is intended only for the use of the individual or entity to which It is addressed,and may contain Information that is PRIVILEGED. CONFIDENTIAL, and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or the employer or agent responsible Rif delivering the message to the intended recipient, you arc hereby notified that any dissemination. distribution or copying of this communication Is strictly prohibited. if you have received this communication in error,please notify us immediately by wiephunc,and mum the original to us by mail without making a copy. Thank you. Comments: As I understand it, the applicant suggests that the proposed structure is an addition to a lawfully existing single family residence. One of your discretionary decisions is whether the breezeway connecting the house to the garage presents a "unified architectural effect" sufficient so as to designate the garage as a part of the existing single family residence, instead of an accessory building. Your memo of today makes reference to abandonment. I would think that if you determine that the garage is a part of the house by virtue of the breezeway, then that's the end of the matter, i.e., there is no partial abandonment of a portion of the unified house. If, on the other hand, you determine that the breezeway does not save the existing garage from being an accessory building, then we are met with the problem of the unauthorized size of the proposed new structure. I think we had best speak. MRR-1-2006 11:31 FROM:CDI 5087715202 TO:15083980636 P.1 RECEIVED To: Jim Brandolini OCT 1 5 2009 Building Inspector Yarmouth fax 508 398 0836 YARMOUTH BOARD OF APPEALS From: Bill Marasco Date: Feb 21, 2006 Re: 143 Jim. I have received your response from town counsel. A case is sited that intent is not relevant in whether abandonment is established. This may be the case, but this does not have relate to my case. The apartment was maintained and used by the owner. It contained furniture and full fixtures. It was clearly used. Also, in the case sited, the facts are very different. In my case the town reviewed my apartment and re-issued a certificate of occupancy. The town has never made a determination that my apartment was ever abandoned. The question has only been raised by"intrupruting a letter from 10 years ago. Is it is now the intention of the town to retrospectively call my aprtatment abandoned, in spite of the facts of re issue of certificate of occupancy, re- approval of renovation including a septic system specifically designed for an apartment? Under what rulings or decisions does the town have the retropective right to remove which was granted previously. Why have these facts been ingnored in analysis of this case? Bill Work 508 394 2288 Cell 508 566 1834 Fax 508 394 8232 FEB-22-2006 16:19 FROM:CDI 5087715202 TO:15063980836 P.1 To: Jim Brandolini RECEIVED Building Inspector Yarmouth fax 508 398 0836 I OCT 1 5 2009 I From: Bill Marasco Date: Feb 21, 2006MO BOARD OF APPEALS Re: 143 Jim. I have reviewed info fromTown counsel of today's date. I was happy to see that counsel now agrees the apartment was a lawful pre-existing non- conforming two family structure. The question now raiseed centers on abandonment and use. A letter you have from the trustee on the property stating it was not abandoned, in my opinion, satisfy the abandonment question (it was never inteded that the shuting off of the water was to abandon use). Counsel now suggests that the use has been lost since there was no water to it since 1997, nor was that apartment used as such since 1997. This is incorrect. I acquired the property in 2000. The apartment had furniture in it when purchased and was in good working order. After some renovations the water and utilities were turned, I have been using the apartment since 2000 as such. I have received and paid for occupancy permits by the town for that structure as an apartment. have had town health, fire inspectors inspect it, and have had 4 tenants live there since 2000. This is a very different situation than if the water had been off since 1997. Therefore, I believe it is reasonable to conclude that the apartment has been used, and was never abandoned. It is my opinion, that once the board of health, water departments, confirm my above statements, then the planned renovation does fit in within current town bylaws and no relief is required. Thank you for your time and consideration. Bill Work 508 394 2288 Cell 508 566 1834 Fax 508 394 8232 MAR-3-2006 10:49 FROM:CDI 5087715202 TO:15083980836 P.1 RECEIVED To: Jim Brandolini Building Inspector OCT 1 5 2009 Yarmouth fax 508 398 0836 YARMOUTH BOARD OF APPEALS From: Bill Marasco Date: Feb 21, 2006 Re: 143 Jim. I have some additional comments concerning town counsel citing the Lakeville case . In the case the court removes intent from the analysis of abandonment/non-use in order to make the criteria for abadnoment/disuse simple and easily understandable. It simply states if it is not used for 2 years. It also places a time when this analysis should be applied. " when the application is made to the town for re-use." Then apply this criteria to my case. Has it been used or not used as a living unit for the past 2 years when the application was made to the town for the permit. . Bartlett is silent on retropspective analysis. Nowhere in this case or in the others that I have seen is a retropective, analysis made. I believe the essence of Bartlett was to make is simple for towns to determine non-use. I believe if you are to allow retrospective analysis you only complicate the question of abandonment/use which was not the intention of Bartlettt. I also believe that there is no standing for retrospective analyis of non unse. It either has or has not been used for the past 2 years. If your argument now is it should have been called abandoned in the past, but since it wasn't it should be considered abandoned now. My response the only way a town can call something abandoned or not used is by using the criteria in the bylaw. Has the apartment been used as such 2 years prior to the application for the building permit. my structure is a pre-existing non- conforming structure that is not abandoned, and which has been used as such in the past 2 years. I hope these comments are helpful. Bill Work 508 394 2288 o Yq TOWN OF YARMOUTH c BUILDING DEPARTMENT O y t' ....- ,�:e 1146 Route 28, South Yarmouth, MA 02664 <s> Phone: 508-398-2231 ext. 261 Fax: 508-398-0836 RECEIVED Facsimile Cover Sheet OCT 1 5 2009 YARM BOARD FOUTH A PEALS TO: Dr. William Marasco FAX NO. 508-771-5202 DATE: February 22,2006 FROM: James D. Brandolini Total pages, including cover page: 3 SUBJECT: 143 River Street COMMENTS: As per our phone conversation, attached please find Attorney Creney's comment of February 21,2006 • rev—el—Gattlb 1td:�J ATTY JOHN CRENEY 15083621125 P.01 - Yr TELECOPY COVER SHEET John C. Creney, P.C. Attorney at Law 86 Willow Street Yarmouth Port, Massachusetts 02675 If there is a problem with transmission or if all pages are not received,please call 508-362-1122 fur retransmission. Fax 508-362-1125 TO:James 1). Brandolini FAX#: 508 398-0836 COMPANY: Town of Yarmouth FROM: John C. Creney DATE: February 21,2006 RE: Town of Yarmouth with Marasco Number of pages including this cover page: 2 Thi%message is intended only for the use of the individual or entity to which it ix addressed,and may contain intormatlon that is PRIVILEGED, CONrIDENTIAL and exempt from disclosure under applicable law. If the reader of this message is not the Intended recipient, or the employee or agent responsible for delivering the message to the intended recipient,you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have reed wed this eranmunlcadon in error, please notify us immediately by telephone,and return the original to us by mail without making a copy. Thank you. Comments: Having in mind that (i) a duplex was an allowed use under the 1967 zoning bylaw, provided that the lot had at least 20,000 square feet; (ii) the Board of Appeals so stated in its 1967 decision denying a variance for two separate dwellings; (iii) that a month after the denial of the Board of Appeals water service was installed for the garage apartment; (iv) no enforcement action was taken to abate the garage apartment, then it appears to be reasonable to conclude that the breezeway was constructed in 1967 so as to create a two family dwelling, rather than two separate single family dwellings, and that the two family dwelling, after the bylaw amendment in 1971 requiring one and one half times the area for a two family dwelling, became a nonconforming use. We then consider whether the validity of such preexisting nonconforming two family dwelling has been lost. The third paragraph of G.L. c. 40A, sec. 6 states that a zoning bylaw may regulate nonconforming uses which (i)have been abandoned; or(ii) have not been used for a period of two years. Section 104.3.1 of the zoning bylaw has remained unchanged in its language since the zoning bylaw ofluly 15, 1996. That section rLB-di- AIM 10:29 ATTY JOHN CRENEY 15083621125 P.02 provides that a nonconforming use which has been abandoned or discontinued for a period of two years shall not be reestablished, and any future use shall conform with the bylaw. The termination of water service to the garage apartment in 1997 suggests that the garage apartment has not been used since 1997. Ka-Hur Enterprises, Inc. v. Board ofAppeals of Provincetown, 424 Mass. 404 (1997) holds that a town may terminate nonconforming uses either by showing abandonment(involving an intent to abandon) or by showing nonuse for a period of two years (where intent is irrelevant). Because of this holding, it appears that our section 104.3.1 is a valid amendment. If we take the premise that the garage apartment has not been used since 1997, when the water service was terminated, then one could reasonably conclude that the validity of the preexisting nonconforming two family dwelling was lost after two years of nonuse, and that what exists on the property today is simply a nonconforming single family dwelling. A Page 1 of 1 RECEIVED From: Heaslip, Brian OCT 1 5 2009 Sent: Thursday, February 23, 2006 1:10 PM To: Brandolini, Jim Subject: 143 River Street YARMOUTH BOARD OF APPEALS Jim, I have checked our records on the above property.The detached accessory apartment in the garage building has been in existence since at least 1974, per Assessor's field cards. We have had a rental file on it for, I believe, the entire time that it has been owned by Dr. Marasco. I can not say if it has been occupied full or part time. It has been issued permits by this office allowing occupancy of two(2) persons for annual use. It Is up to the property owner to choose length of stay. Brian file://H:\Properties\R\River St SYU43 River St SY\143 River Street email BOH 02 23 06 r... 1/23/2008 • ovyTOWN OF YARMOUTH ' Akett % BUILDING DEPARTMENT F ,S ; ht 1146 Route 28, South Yarmouth, MA 02664 Phone: 508-398-2231 ext. "Y E e E ( V E D Fax: 508-398-0836 OCT 1 5 2009 Facsimile Cover Sheet YARMOUTH BOARD OF APPEALS TO: Attorney John C. Creney FAX NO. 508-362-1125 DATE: February 24, 2006 FROM: James D. Brandolini Total pages, including cover page: 4 SUBJECT: 143 River Street COMMENTS: John: I wanted to offer some comments as they relate to this particular matter and the implications as they may relate to hundreds if not thousands of other similar related scenarios. 1. As you are aware the former owner of 143 River Street passed away and Cape Cod Bank&Trust as trustee of E.Coughlin Trust sent a letter to the Water Dept.dated September 15, 1997 requesting the garage apartment service "be put in vacant status". I have been provided with a letter dated February 15,2006 from writer of that letter Mr. Richard Bussiere(copy attached)in which he states"we continued to maintain it as such with the intent that it would once again be rented when circumstances permitted". It is also my understanding the water service to the primary unit was also disconnected at a later date. 2. According to the Assessors' records Dr.William Marasco took title to this property on November 29,2001. 3. According to the Health Dept. records Dr.Marasco applied for a rental certificate when he took title to the property and rental certificates have been issued since. 4. Dr.Marasco arranged to have the water service resumed at this location as owner. saauanbasuoa puts suoptrapisuoa Smyatsar rej ay; Suuapisuoa suopsanb ;utsuodwi Scan are asagy •prepue;s;uawuopuegt tsas;ay3 Jo 5;o A 03 Sumugau t(gsaq„ay; pat(o;dwa put pauoputgt uaaq Smntsy Sryessaaau ;ou sv soueuaas asn jo sad4 asaq; pasa;e aney I„asn uou„Smugap o;padsaa q;Le;uals Si Typo' uo;;aaS'etslt(q Smuoz;ty;,eau m't(piuva j yaautsuen v roj paau ay; m Sumnsaa;uawuoputgts JO „asn-uou„ se Apprnb ivy; mom -Junta; JO rainy pa;sara;u; ut gats; aq; o;anp mai osq uty;arow jo pouad t Jolla;nys sa;;;p;n g;I,e;main sr put yauerq Smuuojuoauou Sw;s!zaard ts sasop;ty;wag gunutsq ts aq mom a;dwtsza ray;ouy tt(autsdnaaopsn awnsar o; aautsuen t roj paau aq; SupaSSu; sng; 'Smpaul) Sum.; ajSws v o; asn ay;Smganaa'um;aa;ord Smuoz jo no;ts u;2u 3jnsaa'„asn-uou„ se t(j!;tsnb s;q; p;noM•S;!unwwoa;rosar;euostas e m Spe;na!ued'Apuanbaaj pub rnaao repwis suo!;tsnps put spgy •srtsat( oey utq;arow jo pouad v roj jjo ;nys sa!;f;l;n ay; say raunn0 ay;;paw tsy •aauasge say Suunp(s);!un 2u jjan+p ray;o ay;£dnaao s;utua; aney o; ;ou saysw put amp jo ;no sawn JO 'Lava(jo pouad ts roj a;eaopa o; uosrad;ty;sa unbaa raarts)asoq,e nuptials;e;;uapisar AJ!wtj-;;;nw Smwrojuoauou Sm;s!=a-aad ts jo rauMo OV a esu yaajja ivy; sa;n;9suoa ;eq,e augap pow scop I:'uo;suord aautnupuoasip ro/put ;uawuoputge tut roj sapuord 'Tut uoi aaS Ate;t(q Suluoz mo arq a;eq;not(o;;sa2Sns mom j „•arow JO meat(OM)jo pouad Bag;pasn;ou JO pauopuegt sarn;anr;s put sasn Smwrojuoauou ajuin2ar put auifap Lou, &E gq ro aautmpro Swuoz y„ ;eq; samord 9 uou;aaS 'yoy ra;dey° Thy •S 900Z'n kunuga3;aar;S ranpJ Epi :au •3 •p Sauro;;y z a2td . �f • FEB-28-2006 17:44 RTTY JOHN CRENEY 15083621125 P.01 •11. • TELECOPY COVER SHEET RECEIVED John C. Creney, P.C. OCT ! 5 2009 Attorney at Law 86 Willow Street YARMOUTH Yarmouth Port,Massachusetts 02675 BOARD OF APPEALS If there is a problem with transmission or if all pages are not received,please call 508.362-I 122 for retransmission. Fax 508-362-1125 TO: James D. Brandolini FAX#: 508 398-0836 COMPANY: Town of Yarmouth FROM: John C. Crency DATE: February 28, 2006 RE: Town of Yarmouth with Marasco Number of pages including this cover page: 7 This message is intended only for the use of the individual or entity hr which It Is addressed.and may contain Information that is PRlvu.ECIED. CONFIDENTIAL, and exempt From disclosure under applicable law. if the reader of this message is not the intended rn:inient. or the employee or agent resprnsihlc for delivering the message to die intended recipient,you arc hereby notified that any dissemination. distribution or copying of this communication is strictly prohibited. if you have received this communication in error.please notify its immediately by telephone,and scorn the original to us by mail without making a copy. 'Thank you. Comments:! appreciate your discomfort. Derby is a case involving abandonment. Abandonment is different than nonuse. Derby tells us that abandonment requires both (i) an intent to abandon and (ii) voluntary conduct, whether affirmative or negative, which carries the implication of abandonment. An abandonment could be immediate, without the passage of any particular period of time. In Derby, the court found no intent to abandon. Bartlett v. Board of Appeals of Lakeville, 23 Mass. App. Ct. 664 (1987) is a case involving the nonuse of two of three dwelling units for more than two years in a triplex, due to the declining health of the owner and her inability to manage the two vacant units. The subsequent owner was not able to reestablish the two units. The Lakeville bylaw provided that nonuse for two years meant loss of a nonconforming use. This case discusses the meaning of the word "discontinue", and the court holds that it means not used for two years or more, with intent being irrelevant. Our bylaw covers both (i) abandonment and (ii) discontinuance. FEB-28-2006 17:45 PITY JOHN CRENEY 15083621125 P.02 „..r 7 • • • i BARTLETT v. BOARD OF APPEALS OF LAKEVILLE Mass. 193 CW r nal KE7d Its tMwApp.Ct INr) by the Legislature under G.L. c. 148, 19. of fire prevention problems but also with This court saidjast(at 629, 495 N.E.2d 892), appropriate weighing of other broadly ap- a ' "The fire board's writ to promulgate safety plicable public safety and welfare consider- regulations of general applicability is sure- ations. No unauthorized economic decision ' ly very broad. Our difficulty with the reg- between Hood's special needs and the tom- y �•' ulation in question is that it does something peting interest:woof other industrial coo- . I quite different from protecting against has- terns and business companies was directly ';'-, and in the conventional sense. It pro- involved in the present controversy. • 47• scribes blasting in certain locations irre- Judgment gJ)4rnred specify* of safety concerns The blasting y may threaten no lives, cause no rocks to e I fly, and impair no buildings. It is enough o I mpYMnus.mM that It is within a certain distance of an ti occupation that wants a high degree of Ki- protection from vibration and dust" (em- ' I $ phasis supplied). .: I '. The opinion recognized (at 629, 495 • r:' N.E.2d 892) that"the insulation of cahbn- 23 Mass.App.Ct. 664 -u e' tion equipment from vibration is a form of sateen W. BARTLETT protection of property," but (at 629-630, v, . 495 N.E.2d 892) that what the "regulation BOARD OF APPEALS OF does is to favor one form of economic activ- '. ity, manufacture of microelectronic compo- LAKEVILLE et eV vents,over another form of economic actio- Appeals Court of Massachusetts, r.t ity, quarrying rock and gradingland for Plymouth. development It is quite apparent that eco- M nomic choice, rather than safety, underlies Argued Feb. 12, 1987. ) the regulation." Decided March 18, 1987. i :1.�: The opinion then pointed out(at 630, 495 0 ' N.E.2d 892) that "[')t is not a question of the rationality of the choice. We are aware Building owner appealed a decision of * that high technology is of long term•etc- town board of appeals which refused to '•• nomie importance to Massachusetts. There order town's building inspector to issue a is more future in microchips than rock building permit for use in connection with , ., chips. The Legislature could rationally de- renovation of three dwelling units in build- aide that the public interest requires a limi- ins which previously was a nonconforming tation on blasting activity, even though use. The Superior Court, Plymouth Conn• safety considerations are not implicated. ty, William H. Carey, J.. sustained decision The Legislature could delegate to an ad- of Court of Appeals. The owner appealed. ministrative agency,the fire board or some The Appeals Court, Grant, J, held that other agency, the formulation of rules and owner was not entitled to permit regulations which will govern the making Affirmed. • of such an economic choice." The decision • .i in the Tebo cue was that the Legislature t<• had not yet conferred upon the board the 1. Zoning and Planning 40881 r i authoritychoose. to Statute providing that zoning ordi- (81 No such issue is presented here. Hance or bylaw may define and regulate ; : Safety from fire hazards is the basic clues- nonconforming uses and structures aban- tion with the storage of flammables. That doned or not used fora period of two years question,under our decisions,is to be dealt or more authorizes cities and towns to ex • 1 with by the city council not only in the light tinguish otherwise protected noneonform- I. The building Inspector of the town. i U . FEB-28-2006 17:45 RTTY JOHN CRENEY 15083621125 P.03 194 Mase. 505 NORTH EASTERN REPORTER, 2d SERIES i Img uses if particular premises are not in vided such use has not been_discontinued by-I 1 fact used for protected purposes for a mini- for a period of two years or longer." • mum of two years. M.G.LA. c. 40A, § 6. The case was submitted to the Superior mor I 2. Zoning and Planning 4=1381 Court on a statement of agreed facts which ` sit Under town's zoning bylaw which pro- may be summarized as follows. In 1959,at vided for continuation of any nonconform: the time of the adoption of the first zoning .:r app ing use provided use had not been diacon• by-law in Lakeville,the building in question '. , ' 540A 38 United for a period of two years or longer, contained three dwelling units, all of which 538, -- building owner was not entitled to building were occupied. The by-law did not permit cou. permit to renovate dwelling units in build- three-family dwelling units in the residence 1. ing, which had been a nonconforming use, zoning district in which the property was hist where two of three dwelling units had not placed. The property was protected by the gra been used for more than two years, nonconforming use provisions of the 1959 ir to t S 2oning and Planning 4337, 381 by-law,which were the same as the present tion firs Failure to use two of dwelling units in provisions already quoted except that they and nonconforming use building for a period of concluded with words such as "one year or and more than ten years prior to application of longer"rather than the present"two years c.i buildingor longer." In 1962 the property was ac- ct 4 permit to renovate dwelling unitstow constituted an abandonment and justified qo by a couple by the name of Ryan, §use who ccupied one of the units and let the § 7 denial of grant of building permit o other two out to tenants until Mr. Ryan not died,some time in 1973. Mrs. Ryan contin- b uil I ' Daniel F. Murray, Middleboro, for plain- ued to live in the unit formerly occupied by of : Id{ tiff. Thomas A. Maddigan, Town Counsel, herself and Mr. Ryan until the time of her eath in 1983. The unit in which she lived pur has been unoccupied since her death. The put Middleboro, for defendants. ' • other two units have been unoccupied • gut • Before GREANEY, CJ., and GRANT "from and after approximately January 1, § 2 and PERRETTA, JJ. 1974." The statement of agreed facts also Wil contains the following: "Mrs. Ryan's 192 ,j GRANT, Justice. health steadily declined for several yeah •' to The plaintiff has appealed from a judg until her death. Her ability to maintain ti ens 1 t ment of the Superior Court which, in ef• and manage the house was substantially 1 ten fect,sustained a 1984 decision of the board impaired because of declining health. 4 mu i1 of appeals of Lakeville by which the board B,°3escc of her declining health Mn. . 1 of: i refused to order the town's building inipec- Ryan was unable to rent the premises or to G/ I tor to issue a building permit to the plain- physically alter or eliminate the apart- tiff for use in connection with the renova- menta" (emphasis supplied). 2 tion of three dwelling units in a building In 1984,the plaintiff,as the present own- d - � ' located in the residence zoning district of er of the property, applied to the building sa '• the town. The questions for decision are inspector of the town for a building permit T the proper construction (1) of the third for use in connection with the renovation of h i ; paragraph of G.L.e•40A, § 6, as appearing all three dwelling units. The zoning by-lawc I in SLIM, e. 808, § 8, which provides that still forbids three-family dwelling units un. q "[a]zoning ordinance or by-law may define less they are protected by the noneonform• d ( ` and regulate nonconforming uses and Ing use provisions of the by-law, and the el used fora buildin t C structures abandoned ar not g inspector denied the application. M F period of two years or more," and (2) of The plaintiff appealed to the board of ap- 3. § V(a) of the Lakeville zoning by-law, as peals under G.L. c. 40A amended in 1978, which provides in perti- in St1975, c. 808, § 3. The boardappearing' t nent part for the continuation of any non- uted to the words "discontinued for a per. conforming use of a building or land "pro- od of two years or longer" in the amended , is ° r, tk. +....��..-�.---.�. ...-�-. -----•• FEB-28-2006 17:45 RTTY JOHN CRENEY 15083621125 P.04 , BARTLETT v. BOARD OF APPEALS OF LAKEVILLE Mass. 195 rata..std M221 tea t11asaAae.0. t8e7) Jbylaw the same meaning as the words which provided that "[s]uch an ordinance t "not used for a period of two years or or by-law may regulate non-use of non-con. • ,• more" in the present G.L. e. 40A, § 6, and forming buildings and structures so as not '',;, sustained the action of the building inspect to unduly prolong the life of non-conform. tor.' That action prompted the plaintiffs lag uses."a In that language is found the f,, appeal to the Superior Court under G.L. a first legislative grant of authority to cities i •i :.4..1; 40A, § 17, as amended through St1982, a and towns outside Boston to extinguish 533, § 1. As already noted,a judge of that nonconforming uses. The quoted language ' • ..: court sustained the board's decision persisted until the effective date of the - 1. A careful review of the legislative present G.L. a 40A, § 8.' See St. 1952, C. history of the provisions of the third para. 438; G.I. e. 40A, § 5, as appearing in St graph of the present G.I.c.40A, § 6,leads 1954, c. 368, § 2; St1962, c. 340; St1969, ,. to the conclusion that the board's construct c, 572.4 . don• of the amended by-law L correctThe It became the fashion for cities and ' !!II • first grant of legislative authority to cities zoningacting under the foregoing author!. Y; and towns outside Boston adoptto sat on, to adopt ordinances and by-laws di- •4 4' ordinances and by-laws is found in St. 1920, • ? e 601 ("An Act to authorize cities and rested to the extinguishment of noncom towns to limit buildings according to their forming uses which spoke in terms of"alis- :' use or construction to specified districts"), continuing" such a use for a stated period. ' t. § 7, which provided that 'gt]his act shall In the first case involving such an ordi• r not apply to ... the existing use of any Hance to reach the Supreme Judicial Court r s building,but it shall apply to any alteration it was concluded,after a review of authori. 1 i. of a building to provide for its use for a ties in other jurisdictions, that "discontin- purpose, or in a manner, substantially ued"should be considered the equivalent of t 7different from the use to which it was "abandoned." Pioneer Insulation c0 Mod- h put before the alteration."' That Ian- enticing Corp. v. Lynn, 331 Mass. 560, page found its way into G.L. (1921) c. 40, 565, 120 N.E.2d 913 (1954).jwiThe court 1 § 29, without any change of substance. said: "Hence it uniformly has been state <= With the slight changes effected by St ed—and rightly we think—that the discos- j 'i 1925, a 116, § 3, the language was carried. tinuance of a nonconforming use results I •4 to CS (Ter.Ed.) e. 40, § 29. The zoning from the concurrence of two factors,(1)the enabling legislation was extensively rewrite intent to abandon and (2) voluntary con- f ten by St1933,c. 269("An Act revising the duct, whether affirmative or negative, municipal zoning laws"), § 1. The subject which carries the implication of abandon- = of nonconforming uses resurfaced in a new ment Thus nonoccupancy of the premises f• G.L. c. 40, § 26' the second sentence of and suspension or cessation of business .1 4.r 2. A copy of the board's decision was attached to 5. See Planning III of Reading v. Board of Ap- the complaint,as required by Ct.c. 40A,§ 17, peals of Reading 333 Mass. 657, 658-659. 132 and that copy has been reproduced in the N.E.2d 386(1956). ". ~` record appendix. Copies of other documents similarly attached have not been reproduced. 6. Unless sooner accepted by a particular city or i'; The parries stipulated in writing that "(a)0 ea' town,the provisions of 6.L c.40A,as appearing bibles attached to the temptable shall be eel- in &u975, a 808, i 3, and as amended (in • genus In the sass.' We think It clear from respects not hen material) by certain of the it counsel's response to the Judges opening ins provisions of St.1977,e.629,took effect in every .,l .1.; quiry as to the meaning of the stipulation that qty arid except Boston (as to which see s. there was no intention of blinding the court to Emerson College v. Boston, 393 Masa. 303. 306- the watrnn of the very decision which was m 309, 471 N.E.2d 336 (19841) on July 1, 1978. be scrutinized under§ 17. See Casasenra v. Zoning Bd. of Appeals of Mil- I 3. See Inspector of Buildings of Burlington v, ford 377 Mass. 67, 72-73, 384 N.E.2d 1218 Murphy, 320 Mass. 207, 209, 68 N.E.2d 918 (1979); Shelby v.Board of Appeal of Norwood, (1946). 6 Mass.App.Ct. 521, 526-527, 378 N.E.2d 1001 4. See LaMontagne v. Kenney, 288 M . 363, (1978).MM. 368, 193 N.E.9 (1934). i F il. -. r.' FEB-28-2006 17:45 RTTY 301-IJ CRENEY 15083621125 P.05 ' 196 Mass. 505 NORTH EASTERN REPORTER, 2d SERIES due to causes over which the owner has no sion in the Pioneer Home Insulation case control do not of themselves constitute a in 1954. As the decided eases show, an I' discontinuance; and lapse of time is not the abandonment is something that gen happen a controlling factor, although it is evidential, momentarily,without the lapse of any stat- a especially in connection with facts showing ed period of time. See, e.g., Dawson v. an intent to discontinue the use." Id. The c Board of Appeals of Bourne, 18 Mass. c equivalence of "discontinued" and ""ban- App.Ct. 962, 963, 469 N.E.2d 509 (1984), / doned" has been perpetuated. See, e.g„ which is discussed in note 8 hereof. 2 Dobbs v. Board of Appeals of Noithamp- ' - ton, 339 Mass. 684,685,686, 162 N.E.2d 32 (i1 The other criterion in the new § 6 is a (1959); Medford v. Marinueci Bros. & Co., "not used for a period of two years or r 344 Mass. 50, 60 & n. 1, 181 N.E.2d 584 more." That language, taken on its face, l (1962); Cape Resort Hotels, Inc. v. Alco• appears to contemplate a simple cessation t holic Licensing Ed. of Falmouth 385 of a nonconforming use for a period of at t Mass. 205, 220-221, 431 N.E.2d 213 (1982), least two years. If that is the meaning i Id., 388 Mass. 1013, 446 N.E.2d 1070 properly attributable to the phrase, then ! (1993).T See also Cities Sen. Oil Co. v, the Legislature has authorized the use of • Board of Appeals of Bedford, 338 M . an objective standard which is easily under •• 719, 724, 157 N.E.2d 225 (1959). stood by the public and easily administered We think this case presents a proper by building inspectors and boards of ap- occasion to consider whether the language peal. If, on the other hand, we are to read of the third paragraph of the present G.L. into the phrase a requirement of voluntary c. 40A, § 6, countenances the further per petuation of the equivalence of "discontin- or intentional action on the part of the sed" and "abandoned" in zoning ordi• owner of nonconforming premises amount- nances and by-laws.' It will be cement ing to a traditional"abandonment,"such as ' bared that § 6 now provides that "[a] son- has been done in the past with the word ing ordinance or by-law may define and disconnue tid, then the Legislature must regulate nonconforming uses and sicca be taken to have indulged in a tautology: • 1 tures abandoned or not used for a period of the statute would have to be read as autho- two years or more." By this language the rising cities and towns to regulate noncon- I Legislature has,for the first time,provided forming uses which have been "abandoned express criteria which can be employed by or abandoned for a period of two years or cities and towns outside Bostonthat more." We reject any such construction as ` may be desirous of extinguishing noncom- unreasonable. We think the Legislature, i forming uses. There are two, and only by its choice of the second criterion in § 6, • • two, criteria; they are distinctly stated in intended to authorize cities and towns to • the disjunctive, but a city or town may extinguish otherwise protected noncom- • employ either or both. The first criterion forming uses if particular premises are not . is the familiar"abandonment"on which the in fact used for the protected purposes for cases have concentrated ever since the deci- a minimum of two years. 7. We acknowledge that the Cape Resort Hotels nonconforming use as a nursing home had been I ease was decided well after the effective date of abandoned when the owners of the premises the present 0.L e. 40A, § 6. A perusal of the surrendered their license to operate the home. . ; original papers in the appeal in that case (see Flynn• v.Brassard 1 MassApp.Ct. 678, 681, 306 9. me usual lexical definitions of'discontinue" l N.E2d 446(19741 Id., 4 Mass.App.Ct. 795, 344 do nes embrace any concept of specific intent I N.E.2d 220[1976])discloses that the court was on the part of the person who discontinues ' € not asked to consider the question discussed ini this part of our opinion. banalsomelhDic see, e.g., unabridged New Interns- 1 Dictionary (2d unabridged ed. 1949), I 8. This question lurked in the record In Aawrws which gives the following definitiotu:.'To inter* , v. Board of Appeals o/Bourne, 18 Mass.App.Ct. rapt the continuance of; to intermit,as a prat' i 962,449 N.E2d 509(19841 but was nes reached rice or habit; to put an end to; to cause to because the by-law was framed in the &!alone• cease; to cease using to give up." I rive and the evidence required a finding that the ' 4.:1 FEB-28-2006 17:46 RTTY .101-IN CRENEY 15083621125 P.06 1 f , I BARTLETT v. BOARD OF APPEALS OF I.AICEVII.LE Mass. 197 ..;,: . • • Cll.Y303 N.1.2d 193(aWssSpp.Ct. 1967) r :: [2]_jgi,The proper construction of the al judge, in his memorandum of decision, N present G.L. c. 40A, § 6, assumes a very was obviously disturbed by the fact that I �' real significance once It is understood that two of the dwelling units had not been used 1 ! `1 ' a city or town cannot adopt a new or for more thanisiten years prior to the ` f I; " amended zoning ordinance or byelaw which application for a building permit." He not- f conflicts with pertinent enabling legislation ed the portion of the statement of agreed • of general application. Planning Bd. of facts which dealt with Mrs. Ryan's de- •f' Reading v. Board of Appeals of Reading, clining health and consequent inability to '�' I 333 Mass. 657, 660, 132 N.E.2d 386 (1956), let the premises out following the death of I I and cases cited. In addition, the 1978 an- her husband which has already been quote I nus/town meeting in Lakeville was under a ed (supra, at 194). That portion of the l legislative imperative to modify its zoning statement has to be read with some care. by-law in such fashion as to bring it into It recites that Mrs. Ryan's health"steadily conformity with the provisions of the new declined for several years until her G.L. c. 40A not later than July 1, 1978.10 death" in 1983 (emphasis supplied). The • See the second paragraph of St.1975, c. statement does not disclose when the de- 808, § 7, inserted by St.1977, c. 829, § 4, cline commenced,with the result that there In the circumstances, the town meeting could have been a considerable period of must be taken to have done more thanyears following the agreed date of January , simply enlarge from one year to two the 1, 1974,during which Mrs.Ryan could have I period of time necessary for the extinguish- let the other two dwelling units out if she i ]:: ment of a nonconforming use. The townhad been disposed to do so. i' F 'meeting had a choice of adopting either or i' 1:' both of the criteria set out in the new § 6. In reality,the plaintiff, who had the bur- t.' We think the meeting, by not referring to dens of proof and persuasion on the pies- the "abandonment" criterion, by leaving tions of latent and inability as they related i undisturbed the word "discontinued," and to a possible abandonment (see Dion v f by inserting immediately thereafter the Board of Appeals of Waltham, 344 Mass. words "for two years or longer," opted for 547, 555-556, 183 N.E.2d 479 [1982]; the simple, objective criterion "not used for Bridgewater v. Chuckran, 351 Mass. 20, r r,• M two years or more." 24, 217 N.E.2d 726 [1966]; Framingham i We conclude that the board of appeals Clinic, Inc. a Zoning Bd. of Appeals of . was correct in equating the language of Framingham, 382 Mass. 283, 297, 415 the by-law with that of the cognate provi N.E Yd 840 [1981 Warren v Zoning Bd sion of the statute. As two of the three of Appeals of Amherst, 383 Mass. 1, 10, dwelling units in question had not been 416 N.E.2d 1382 [19811 Cape Resort Ho- ": used for more than two years, a building tela, Ins. v. Alcoholic Licensing Bd. of f'.!• permit was properly refused Fhlmouth, 385 Mass. at 212, 431 N.E.2d - - - 213; Martin a Board of Appeals of Yar• 1' [31 2. The case was submitted to the mouth, 20 Mass.App.Ct. 972, 972, 482 r Superior Court, was decided by that court, N.E.2d 336 [1985]: contrast Brotherhood and was briefed in this court on the tradi• of Alpha Upsilon, Inc. a Zoning Bd. of • tional question of abandonment." The tri- Appeals of Bridgewater, 15 Mass.App.Ct. , t6 It was agreed at argument that the 1976 /2. In the Dobbs case. 339 Mass at 666, 162 amendment of § V(a) of the Lakeville Toning N.E.2d 32, the court calculated the four-year s - by-law was adopted at the 1971 annual town period of nonuse under consideration there to -.. meeting,which necessarily preceded the July 1. extend to the date of the heating in the Superior 1978,effective date of the new CIL c.40.k(su- Coon. In this case, such a calculation would • pre, note 6). See G.L e.39, § 9. have yielded a period of nonuse of eleven years 11. Counsel agreed a argument that they had and mese thin eight months discussed the possibility that this case might go • off on the ground discussed in part one of our 6 opinion. macaw.swam 1.11.24.4 i.. v.. t, 3-28-2006 17:46 ATTY 301-INCRENEY 15083621125 P.07 I' 198 Mass. 505 NORTH EASTERN REPORTER, 2d SERIES 991, 992, 448 N.E.2d 69 (1983]), did not plaintiff's position, there has been a failure give the judge much to work with. In the of proof on the point. circumstances, we cannot fault him for at- Judgment affirmed taching primary importance to the period of more than ten years during which the disputed units had not been used and in o SrmwwursrsnM concluding that there had been an abandon- r • ti.j. ment of the nonconforming use so far as .•:-.' those units were concerned. What hap- ' pened here is nothing more than what was ; fust envisaged in the Pioneer Insulation 23 Mass,App.Ct 657 J ^ ., case, 331 Mass,at 565, 120 N.E.2d 913, and .j4srlanice D. PATTEN 1 .' later adumbrated in the Dobbs case, 339 v. °'' Mass, at 686-687, 162 N.E.2d 32. Stephen S. MAYO. „j1-723. The plaintiff also argues that he Appeals Court of Massachusetts, cannot be deprived of a building permit Essex. because § V(a) of the Lakeville by-law, un- ,like some other nonconforming use by-laws Argued Dec. 12, 1986. which have been considered by the courts, Decided March 18. 1987. does not expressly prohibit the reestablish. • ment of such a use once it has been extin • - 1' guished. See, e.g., the Pioneer Insulation Former wife brought action for con •- case,331 Mass.at 561-562, 120 N.E.2d 913. tempt of support order and former bus- I. The essential predicate of the argument is band filed counterclaim for modification. that§ V(a)u the only portion of the by-law The Probate and Family Court Department, ' bearing on the extinguishment of noncon- Essex County, Edward J. Rockett, J., is- • forming usei. The predicate is shaky. -It sued order of contempt but ruled in favor 1F. is not at all uncommon to fi0dprovlslom in of husband on counterclaim, resulting in . other parts of zoning bylaws which control wiferebeing obligated were offt husband, when ar dem- on-es-such as § V(a) by providing, often in rages due wife offset against dam- i the preface to a table of uses, that no ages awarded husband on counterclaim. Wife appealed, and husband moved to tits party in the town shall be used except miss. Motion to dismiss was allowed, and t for a purpose expressly permitted by the wife appealed. The Appeals Court, Fine, by-law. Indeed, it appears frgm the state-• J.,held that (1)appellant had obligation to meat of agreed facts in this ease that bring statement of evidence and proceed- three family dwelling units were and are ins promptly before trial judge for settle- • not allowed by the initial and [sic) amend- ment and approval, but Appeals Court. ed ... Lakeville [z]oning [b]y-law." We would exercise its discretion to reach men have not been given any part of the by-law its of appeal; (2) oral agreement that wife other than § V, and we cannot take judicial would report otherpart may alimony money received a notice of what any provide. from husband for her support and that of I. Warren v. Zoning Bd. of Appeals of Am- her minor children and that husband would hent, 383 Mass. at 8, 416 N.E.2d 1382. reimburse her for any resulting tax liability i Brotherhood of Alpha Upsilon, Inc. v. was illegal and thus should not be judicially Zoning Bd of Appeals of Bridgewater, 15 enforced; and (3) husband and wife should Mass.App.Ct. at 991, 448 N.E.2d 69. The share burden of interest imposed when • whole notion of reestablishing an extin- wife filed amended tax return reporting ? guiahed nonconforming use is repugnant to money as child support and husband was r41 1, the concept embodied in the proviso of thereby required to pay additional taxes § V(a). If, as matter of fact,there is some and interest c' other part of the by-law which supports the Judgment amended. ;1.1i • • TOTAL P.07 .011'44 TOWN OF YARMOUTH c BUILDING DEPARTM •;a 1146 Route 28, South Yarmouth, MA }t5 C E I �/ E o Phone: 508-398-2231 ext. 261 Fax: 508-398-0836 OCT 1 5 2009 Facsimile Cover Sheet BOARD Fo PPEALS TO: Attorney John C. Creney FAX NO. 508-362-1125 DATE: March 1,2006 FROM: James D. Brandolini Total pages, including cover page: 1 SUBJECT: 143 River Street COMMENTS: John: Dr.Marasco is suggesting that notwithstanding that there may have been a period of time the unit was not occupied,it continued to contain furniture and because the apartment has been occupied for the past 4- 5years,the Town cannot retroactively enforce the non-use provision. It is imperative you provide me with a legal opinion as to following: 1. Does the fact the Health Department issued rental certificates for the past several years and issued a permit allowing a septic system upgrade for the apartment at 143 River Street have bearing on the non-use provision? 2. Has the current owner lost his right to rent or allow occupancy in the apartment in question at 143 River Street because of prior non-use of more than two years? 3. If so,under what provision of the zoning bylaw and/or case law would a past interruption of use for more than two years cause a current extinguishment of the residential use? 4. What provision of the zoning bylaw and/or case law would trigger the enforcement of such a retrospective extinguishment? Again, it is imperative that you provide me with your legal opinion based on the facts provided as to whether the specific apartment at 143 River Street can be legally occupied without relief from the Zoning Board of Appeals. Thank you. kat: TOWN OF YARMOUTH °` BUILDING DEPARTMENT '?' 1146 Route 28, South Yarmouth, MA 02664 Phone: 508-398-2231 ext. 261 Fax: 508-398-0836 Facsimile Cover Sheet TO: Dr. William Marasco FAX NO. 508-771-5202 DATE: March 1, 2006 pFROM: James D. Brandolini Total pages, including cover page: 8 SUBJECT: 143 River Street COMMENTS: Attached is a copy of Attorney Creney's response to my February 24,2006 transmittal. It appears based on his comments and reading the Bartlett v Board of Appeals of Lakeville case law, you will need to proceed with the request for a variance. It now appears the Town will need some sort of zoning bylaw change to avert similar situations with respect to pre-existing nonconforming residential uses such as yours and other such examples noted in my February 24 transmittal. As a side bar note; in looking back, the Cultural Center Use was determined to be exempt pursuant to MGL 40A,Section 3 because it is an educational use and therefore the non-use of the building was moot. 0 j1I(:jiti-2OU8 HUN 12:U4 N11 711 HANANUKIH WU.IH flufll FHA NU, bra dao chat r. mu: Banknolt'th Wealth Management Group TD Bankaorth,N.A. 49S Station Avenue P.O.Box It80 South Yarmouft,MA 02664 • • T:800-6732300 �+ TDBanknorth WealthManagement.com March 6,2006 Tim Brandolini Town of Yarmouth Town Hall Rte 28 S.Yarmouth,MA 02664. Re:Property located at 143 River St.,S.Yarmouth,MA DearMr.Brandolini, I understand that further information is needed from me regarding the property located at 143 River St.pertaining to the rental writ.Dr.William Marasco has asked if 1 would provide more detail pertinent to the usage of said unit. A portion of the building housing the attached garage was rented by Cape Cod Bank& Trust Co,as trustee of the Edward L. Coughlin Trust,dining the 1980's and into the early 1990's at the request of the members of the Coughlin family who also occupied the main residence.During the 1990's,and until the property was sold,the rental unit was occupied by visiting Coughlin family members as well as family members of their caregivers.As a cost saving measure,we asked that the water meter to the rental unit be temporarily removed.Family, and other guests,using the rental unit were allowed to use facilities in the main house. If further information is needed,please contact the undersigned. Sincere1y, Richard Bussiere, CTFA Vice President Wealth Advisor ' TOWN OF YARMOUTH Building Department BUILDING -C§) /Ar (508) 398.2231 ext.261 �c� PERMIT NO F8-06.1121, PERMIT ISSUE DATE :. 3(21/2006, ; PROPOSED USE ; ; APPLICANT .Troy Walls JOB WEATHER CARD PERMIT TO ; New Construction ; LAT(LOCATION) 00143RIVER ST(A) ZONING DISTRICTn Bldg.Type: Residential I SUBDIVISION MAP LOT BLOCK 034.282 BU,■r NL • BE:I \FCES PE 5-B USE GROUP R-4 LOT SIZE C CONTRACTOR demolish e:dsting two car garage with apartment. tOCT 1 5 2009 REMARKS LICENSE 044847 p 87 Cranberry Troy YARMOUTH BOARD OF APPEALS 87CranbertyLane AREA(SO FT) EST COST($ $10,000.00 PERMIT FEE($) I$50.00 South Yarmouth MA 02684 5063941205 OWNER WILLIAM MARASCO BUILDING DEPT BY ADDRESS 143 River Street South Yarmouth 1MA 02864 PHONE 5083942288 INSPECTION RECORD FIELD COPY Date Note rogress-Corrections and Remark Inspector -- 3 .29-OG (,61 0liut o/ eiif 7 /6444,31 7 $ esed/Ytuuc ,Cu or.1 ih TOWN OF YARMOUTH Building Department B U I L DI N G�- (508)398-2231 ext.261 t PERMIT NO •FB-06.1121_ • PERMIT yy ISSUE DATE :, _3/gtam. ; PROPOSED USE ; ; APPLICANT •Troywalls JOB WEATHER CARD PERMIT TO ; New Construction ; IAT(LOCATION) 00143RIVER ST(A) ZONING DISTRICT RS-4 Bldg.Type: Residential SUBDIVISION MAP LOT BLOCK 034.282 BUILDING IS TO BE: CONST TYPE 5-8 USE GROUP R-4 LOT SIZE CONTRACTOR demolish existing two car garage with apartment. REMARKS LICENSE 044847 Walls.Troy 87 Cranberry Lane AREA(SO FT) EST COST($ $10000.00 PERMIT FEE($) I$50.00 South Yarmouth MA 02684 5083941205 OWNER WILLIAM MARASCO BUILDING DEPT BY ADDRESS 143 River Street South Yarmouth MA 02664 PHONE 5083942288 INSPECTION RECORD FIELD COPY Date Note rogress•Corrections and Remark Inspector 3.29-OC . am � / H 7 A .w I S otti ONE & TWO FAMILY ONLY - BUILDING PERMIT 4� . la APPLICATION TO CONSTRUCT,REPAIR,RENOVATE OR DEMOUSH AONE OR TWO FAMILY DWELLING 0g� J, y Town of Yarmouth Building Department - N 2` 1146 Route 28 • Yarmouth, MA 02664-4492 �t`/ '� Tel: (508) 398-2231 x261 • Fax: (508) 398-0836 CQlG2L IAnt, Office Use Only Planning Board Information Assessors Department Information: Permit No.'?l 0(. 1 I24ate31)i fl/D Type 3 Map LM Endorsement Date . '7, / z�j Z Permit Fee $ 5-0- Recording Date New Deposit Recd. $ i Datfl'i flan No. 1.4 Property Dimensions: 1,r()1 keFS t / Z(4 27S `� 170 ticif tyro rs Net Due $ "Z3 a Other Lot Area(sf) Frontage(ft) Lot Coverage This Section for Office Use Onry Building Permit Number~-' - - • Date Issued ,- " - - al `'LL .3' - Certificate`of Occupan , . ' ' . Signature . , , _ / Section 1 -Site Inform- ion Use Group: R-4 Type: 5-B 1.1 Property Address: 1.2 Zoning Information: I yn A "Rt Vcc ST ?S WFeS Scx -ck-1 VAN 9-AA atIT t{ Zoning District Proposed Use 1.3 Building Setbacks(ft) Front Yard Side Yards Rear Yard Required Provided Required Provided Required Provided 30 3 ( 1 3 -7 3 6 11 -Z- 1.4 1.4 Water Supply(MALL c.40.S 54) 1.5 Flood Zone I formation: Comments: Public Private Zone ../APE: Section 2 Property Ownership/Authorized Agent 2.1 Owner of Record: D \,✓iwr,a,-i MA¢.awca I 43 ��v�rL Sr Na riot) Mailing Address Tfl 3S4 z.a82 ignature Telephone 2.2 Authorised Agent: Tey \,✓ACLS S7 C KA-,Qaefly Lia S. Baas Na'. prim Mailing Address 3`^i . ( los' 3Q L( t zeC Signatu - Telephone Fax - ion 3•C.• truction Services FEB 0 005 3.1 - -ed Construction Supervisor: I Not Applicable ❑ TOL/ ACLS 165 i 0 87 `IZAN t/ GA-NE S Yft� License/N'umber Addr-: ( J 'tel 4 g •� 4 I� l ZOS iI�� r rF u; I` _i iII Fl ii{„ e irat. Date 3 lint. // :ignat � Terphone ii P II , / f 0 •7 Li egist- - . Home Improvement Contractor: Iy IL �R L 206Co • �nyJ'ams 4D Not(Applicable U \cl ,4LL-S LONt STtet i 10Ai r Address /; 1 4 License Number/0 r/7? At 34 ! toS Expiration Date / J Si. ature - Telephone 7 /Ce/ 7 'Co • .- "urn I - "' 0I•Y4R, . ONE & TWO FAMILY ONLY - BUILDING PERMIT ' ' I •; ` 4c� % APPLICATION TO CONSTRUCT,REPAIR,RENOVATE OR DEMOLISH AONE OR TWO FAMILY DWELLING pG.: . y Town of Yarmouth Building Department i 1146 Route 28 • Yarmouth, MA 02664-4492 Tel: (508) 398-2231 x261 • Fax: (508) 398-0836 cottountzeli, Office Use Only Planning Board Information Assessors Department Information: Permit No.' �'•O&i I24ate3k4( roType map La Endorsement Date 3 4 / Z g Z Permit Fee $ Sr! Recording Date New Deposit Recd. $ Date2 7 1.4 Property Dimensions: e i ,,,-,4s 31an No. -71.112-7C I?V %g -stuck :sem Net Due $ yerZ} J Other Lot Area(s1) Frontage(ft) Lot Coverage This Section for Office Use Only' Building Permit Number.- .. .;t;;., ~ Date Issued: ,.' '' ` ", "` t ® . j/y Certificate'of Occupan , Signature Section 1 -Site Inform-ion Use Group: R-4 Type: 5-B 1.1 Property Address: 1.2 Zoning Information: yn 4 'RlVeC ST ?S 1IC. Fe5 Sank• tescim % T 4 Zoning District Proposed Use 1.3 Building Setbacks(ft) Front Yard Side Yards Rear Yard Required Provided Required Provided Required Provided 30 3 t 1 1 3 -7 S G lI z- 1.4 Water Supply(KOLL c.40.S 54) 1.5 Flood Zone Information Continents - Public Private Zone: ' BFE: Section 2=Property Ownership/Authorized Agent 2.1I lOwner of Ripcord: \Nlf.AANt MA-CASCO ) 4 % �/�12 ST Na rint) Mailing Address sDs 34L4 zzae) ' ignature Telephone 2.2 Authorized Agent: —T-Foy UtiAas 57 C i 4uatay LANE S. A N-.-- prin Mailing Address .Rq ( 2.0s3aylzo . • Signatur- Telephone'• - Fax - - ion 3-C.• truction Services FEB 0 77006 3.1 - -ed Construction Supervisor Not Applicable ❑ Tpc ` A / my ACLS 14-116c:' .;29.0 Number V / C/2A/tiger—hetl L—A—Alg' J VAie • Lice`LI 4 k 1 Addr-- r i 3r1Li (ZA� 1i 17], � r `l���, I�>?.iratio/�/Date ;ignat ) Terephone I'; - i / c 0 1 are Ii R 2 ZQII6 U • gisHome Improvement Contractor: I Coma-ay/NameComa-ay/Name4 Not,Applicable CI\S ALLS COMST(r.X7T(OA./ By— J License Number Address 1 a 5-1 7 i 34 4 1 Z-0 r Expiration Date Si ature Telephone 7 ((Q/°C0 .- n..rn • • s Section 4-Workers'Compensation Insurance Affidavit(M.G.L.0.152 S 25C(6)1 ' Workers Compensation Insurance affidavit must be completed and submitted with this application. Failure to provide this affidavit will result in the denial of the issuance of the building permit. Signed Affidavit Attached Yes No Section 5 -Description of Proposed Work(check all applicable) New Construction No.of Bedrooms No.of Bathrooms Existing Bldg. ❑ Repair(s) ❑ Alterations ❑ Addition ❑ Accessory Bldg. ❑ Type Demolition Other Specify: Fx(5-rbf/lo 13Utta.v4 Brief Description of Proposed Work: / Ma SCtSrlA/Co ZGA•le cp-A,A6-p- A-NO A')PACTMZN l. a, �Ge. . t O. SAI/�...... - sem_ aS .. SAS.eta i-, , Section 6=Estimated Construction.Costs Item Estimated Cost(Dollars)to be Check Below, completed by permit applicant 1.Building —t rr r 060 ❑ Conservation-Commission Filing 2.Electrical (if applicable) 3. Plumbing/Gas 4.Mechanical (HVAC) ❑ Old Kings Highway&Historical 5. Fire Protection /6/p 0 0 Commission approval 6.Total=(1 +2+3+4+ 5) / t �C�jCY) (if applicable) 7.Total Square Ft. (new houses 8 additions) QAsAgy, M/.G Ama.waer I DD4" Section 7a-Owner Authorization-To be Completed When Owner's Agent or Contractor Applies for Building Permit: ' I, I 1Z t ,as owner of the subject property hereb uthgrize ( Foy ..,(7A1.1-5 to act on my h lf, in all matters relative to work authorized by this building permit applipatio . n re of Owner / Date �g Section 7b Owner/Authorized Agent Declaration I, ( Po'-1 `A/N-C S , as Owner/Authorized Agent hereby declare that the statements and information on the foregoing application are true and accurate, to the best of my knowledge and belief. Signed under the pains and penalties of perjury. Print name �Gl z/p/ 0D gnature ofrer/Agent Date 9.15.99 2 of 2 � TOWN OF YARMOUTH Building Department B U I L DI N .4144) (508) 398-2231 ext.261 Q li PERMIT NO .- B-06-1162 ISSUE DATE :- 3[31/2006_ : PROPOSED USE PERMIT 'V'MIT APPLICANT *Troy Wails . c JOB WEATHER CARD PERMIT TO : Mlscfoundation ; AT(LOCATION) 00143RIVER ST(A) ZONING DISTRICT RS-4 Bldg.Type: Residential SUBDIVISION MAP LOT BLOCK 034.282 BUILDING IS TO BE: CONST TYPE 5-B J USE GROUP R-4 LOT SIZE RECEIVED CONTRACTOR REMARKS foundation only -ApprovalIn Partas Per 780 CMR Sect.111.13 LICENSE 044847 OCT 1 5 2009 Walls,Troy YARMOUTH 87 Cranberry Lane BeAPp cm'rioAPPEALS AREA(SO FT) EST COST($ $8,000.00 PERMIT FEE($) I .00 South Yamtouth '02684 5083941205 OWNER WILLIAM MARASCO BUILDING DEPT BY ADDRESS 00143 RIVER ST South Yarmouth MA 02664 PHONE 5087715200 INSPECTION RECORD FIELD COPY Date////// Note Progress-Corrections and Remark Inspector 7///377(P01 n ����--� ..¢�� � ./� / y/° ct /r -re e- ,- -a-if l� l l -c ,(lr—moi. ,/ . Kew6tj A Flood Elevation Certificate is required prior to issuance of the Certificate of Occupancy. • a •YliA . ONE & TWO FAMILY ONLY - BUILDING PERMIT z ' \0 APPLICATION TO CONSTRUCT,REPAIR,RENOVATE OR DEMOUSH A ONE OR TWO FAMILY DWELLING oky Town of Yarmouth Building Department F M.T..c o - 1146 Route 28 • Yarmouth, MA 02664-4492 !`"""' Tel: (508) 398-2231 x261 • Fax: (508) 398-0836 Office Use Only Planning Board Information Assessors Department Information: s)t. Permit No.f-Ob'I ba Data/Ilan Type Map Lot J Endorsement Date —34 /Z 3z Permit Fee $ Recording Date New lLrp is Deposit Rec'd. $ 1),Ob Date32 4Plan t.a P erry Dim New R t i Sa� Net Due $ �_t/ Otherto Lot � �7O 9q� 3�K� Brea(sf) Frontage(ft) Lot Coverage This Section for Office Use Ony v\ Building Permit Number. Date Issued. 3 3 p v' Certificate ccupan Signature: cy Bulltling )tial /ate - Is is not required - _ Section 1 -Site Information Use Type:Group: R-4 T e: 5-B 1.1 Property Address: 1.2 Zoning Information: 4 I�U+ 3A gtveg. �r 12_S cc) W.6-S ,J . lcrtrr k-k '/,ketA4arrrt+ Zoning District Proposed Use 1.3 Building Setbacks(ft) Front Yard Side Yards Rear Yard -t Required Provided Required Provided Required Provided NI --3a 31 15— 37 S uz J 1.4 Water Supply(MOS.e.40.S 54) 1.5 Flood Zone Information: - Comments: Public Private Zone: /+-/( BF0 Section 2-Property Ownership/Authorized Agent ti 24.11vagyf Recor.d/: M \ g VY. I 44.44/114 MAMSC-o 14 in g -Vsg S T Name(print) Mailing Address 5z5 77( SZo Signature Telephone 2.22 A tlsorized Agent ( ?oy �}LL-S 7 izAttri3p012,776-Attia n Name . ' Mailing Address II U I c 1: C, 1 IJ L. f C3a41zor ;o 8 3R4- rzo�',-r1J II Signature Telephone Fax Ili l MAR 2 9 211n6 [11; v Section : - ruction Services 3.1 License• • •nstruct on Supervisor. Not Applik — ( toy Lc/j4LCS 87Cat AN15alay L4-04License Number Addre - 0 1 4 ?q i 5-62T 3 q 4/tor Expiration Date .ignature Telephone 7co 7 -tistered , ome Improvement Contractor: Compan��/ . e Not Applicable ❑ \. k/1% 5 (to AJSyRc1Ci tdN Address License N tuber p r 10r t7? _`C 5-08 Set q (tole" Expiration D Sign. re / Telephone 7/fre to CD 1 of 7 (1VFR Sedtion 4 Workers'Compensation Insurance Affidavit(M.G.C.c. 152 S 25C(6) ~ Workers Compensation Insurance affidavit must be completed and submitted with this application. Failure to provide this affidavit will result in the denial of the issuance of the building permit. Signed Affidavit Attached Yes • No Section 5-Description of Proposed Work(check all applicable)I New Construction ❑ I No.of Bedrooms I No.of Bathrooms Existing Bldg. ❑ I Repalr(s) ❑ Alterations I ❑ I Addition ❑ Accessory Bldg. ❑ Type I Demolition I Other Specify: Brief Description of Proposed Work: FOC)OC) A(PAzrlcw Cm/1!G y Section 6 Estimated Construction Costs Item Estimated Cost(Dollars)to be Check Below completed by permit applicant 1. Building OQ 2. Electrical 1 C� ❑ Conservation-Commission Filing 3. Plumbing/Gas (if applicable) 4. Mechanical(HVAC) 5. Fire Protection ❑ Old Kings Highway&Historical Commission approval 6.Total=(1 +2+3+4+5) L- 3/0o a (if applicable) 7.Total Square Ft. (new houses&additions) • E{ Section 7a -Owner Authorization -To be Completed When Owner's Agent or Contractor Applies for Building Permit I, ; as owner of the subject property hereby authorize 12o y (AL1- 5 my behalf, in all matters relative to work authorized by this building permit application. to act on Signature of Owner ( Date Section 7b-Owner/Authorized Agent Declaration I, PoL( •-/(7/61(-ts , as Owner/Authorized Agent hereby declare that the statements and information on the foregoing application are true and accurate, to the best of my knowledge and belief. Signed under the pains and penalties of perjury. Zoe a. A 6- Print name c, SigrPatureofOw er/Agent 3/7 ( ate 9. 15-99 2 of 2 Section 4 Workers'Compensation Insurance Affidavit"(M.G.L:c. 152 S 250(6)] , Workers Compensation Insurance affidavit must be completed and submitted with this application. Failure , to provide this affidavit will result in the denial of the issuance of the building permit. Signed Affidavit Attached Yes No Section S. Description of Proposed Work(check all applicable) New Construction ❑ I No.of Bedrooms I No.of Bathrooms Existing Bldg. ❑ I Repair(s) ❑ Alterations I ❑ I Addition U Accessory Bldg. ❑ Type I Demolition ( Other Specify: Brief Description of Proposed Work: /P Pt cw nAle_ y Section 6 -Estimated Construction Costs Item Estimated Cost(Dollars)to be Check Below completed by permit applicant 1. Building Kt 0002. Electrical ❑ Conservation-Commission Filing 3. Plumbing/Gas (if applicable) 4. Mechanical(HVAC) 5. Fire Protection ❑ Old Kings Highway& Historical Commission approval 6.Total=(1 +2+3+4+5) �'/po a (if applicable) 7.Total Square Ft. (new houses&additions) Section 7a-Owner Authorization-To be Completed When Owner's Agent or Contractor Applies for Building Permit I, as owner of the subject property hereby authorize , y `A(/cu S my behalf, in all matters relative to work authorized by this building permit application. to act on /�7 � Signature of Owner -/ / ? 4 fa 111 Date Section 7b Owner/Authorized Agent Declaration , as Owner/Authorized Agent hereby declare that the statements and information on the foregoing application are true and accurate, to the best of my knowledge and belief. Signed —77-2°Y /i2under the pains and penalties of perjury. Print name o Y \� f� Sig afure of Ow er/Agent 3/77ate 9. 15.99 2 oft • `• • f_ } TOWN OF YARMOU �H ' tt,udingoepartment BUILDING 4 (508)398-2231 ext.261 SSETE4j9/2 $DA 00 . PROPOSED USE : : PERMIT APPLICANT ,Troy Walls . WEATHER CARD P PERMIT TO : NewCanstructicn : AT(LOCATION)TO0143RIVER ST(At • ING DISTRICT RS-4 Bldg.Type: Residential SUBDIVISION MAP LOT BLOCK 034.282 BUILDING IS TO BE: CONST TYPE 5-B USE GROUP R-4 LOT SIZE e I V E D CONTRACTOR construct three car garage with 2nd floor apartment•me bath,me bed .'I ■._ r. REMARKS workshop as per plans dated 04/13/06. OCT 'one LICENSE I 044847 1 5 2009 Walls,Troy 87 Cranberry Lane VAR Mol ITH AREA(SO FT) EST COST($ $179,000.00 PE-, WEE-, I$61 f$$L.iL's th Yarmouth MA 02664 OWNER WILLIAMMARASCO 5083941205 BUILDING DEPT BY ADDRESS 00143 RIVER ST A�( f South Yarmouth /� MA 02664 (j �- PHONE 5083942288 Certificate Issue Date /`items.., `q }do VVV j CEftTIFICATE""orOCCUhANCY Departmental Approval for Certificate of Occupancy and Compliance Inspector Date Permit Number Appro" d- y Remarks BUILDING I/2/17/00.F8-14 -%134. rig -0 4_,--1 is.s _ PLUMBING/GA gig/0 ELECTRICAL 0r/O,1 ter/// ENGINEERING ivit HEALTH /21/4/4G Oz- /8 Z 79 L{(2/a/�4(?„ua4Y! c hed.s.`fPk tiv v M94. *WS?" b ySy�een rt/4114 1:61 ( o 411Pc• FIRE /;O ,aiteir 4- (cr r WATER n( lit To be filled in by each dhAsion Indicated hereon upon completion of Its final inspection. a .I Jor""-" � TOWN OF YARMOUTH 'Blinding Department BUILDING +i (508) 398-2231 ext.261 I-T PERMIT NO Fp-o6-maPERMIT ISSUE DATE :- 4/19/2006. ; PROPOSED USE ; APPLICANT iTroy Walls : JOB WEATHER CARD PERMIT TO ; New Construction ; AT(LOCATION) 00143RIVER ST(A) ZONING DISTRICT RS-4 Bldg.Type: Residential SUBDIVISION MAP LOT BLOCK 034.282 BUILDING IS TO BE: CONST TYPE 5-B USE GROUP R-4 LOT SIZE construct three carCONTRACTOR garage with 2nd floor apartment-ale bath,one bedroom,1 deck, den,1 IhMgroorn,ane REMARKS workshop as per plans dated 04/13/06. LICENSE 044847 Walls,Troy 87 Cranberry Lane AREA(SO FT) EST COST($ $179,000.00 PERMIT FEE($) $814.00 South Yarmouth MA 02664 5083941205 OWNER WILLIAM MARASCO BUILDING DEPT BY ADDRESS 00143 RIVER ST South Yarmouth MA 02684 PHONE 5083942288 INSPECTION RECORD FIELD COPY Date �� / Note Progress-Corrections and Remark Inspector - Olv 'in/Sy'. / c?' Zp ct,CP 4:01 F . ._ / ' • / / 4 k-vft 4 , Ffi' o a =a_ �_N0T ' / / aliiivimsinimirio _ • A' r I. of.' I, ausaiinlargelaThL. er— /mob/0er fine . Cif lie < $ . jyy / ;. ;'1,'' .. .z- . , ,4-1-.-. TEMPERED GLASS Vi .w.% :, .• ,.ottik ., ONE & TWO FAMILY ONLY - BUILDING PERMIT ..' • •• h. o- 0 APPLICATION TO CONSTRUCT,REPAIR,RENOVATE OR DEMOUSH A ONE OR TWO FAMILY DWEL INS "m% ,, l C p _ l� � Town of Yarmouth Building Department t 1146 Route 28 • Yarmouth, MA 02664-4492 Tel: (508) 398-2231 x261 • Fax: (508) 398-0836 ,,,�Office,Usse Only Planning Board Information Assessors Department Information: Permit Nd?� nrs-fc2n$ate Plan Type Map Lot Permit Fee $ 43;U I Endorsement Date 3 4 /04 a_ ''U V R ording Date New Deposit Recd. $24 Dae I� ,e 1.4 Property Dlmensions: a*yi�,rltf'4T Net Due $reP L} " Other z ioricr Area(sQ Frontage(ft) Lot Coverage This Seaton for Office Use Ony Building Permit Number. / " Date Issued: ' f Certificat Occupancy Signature: `� "� Buildin facial ! ate .i Is Is not required ' Section 1 -Site Informa on Use Group: R-4 Type: 5-B 1.1 Property Address: 1.2 Zoning Information: I43A2Wig ST g5 Ito Zws 5OUTIA. 7A-RAAoctr Zoning District Proposed Use 1.3 Building Setbacks(ft) Front Yard Side Yards Rear Yard • Required Provided Required Provided Required Provided 30 3 l /r 3 7 30 If Z- 1 A Water Supply(M.O.L e.40.S 54) 1.5 Flood Zone nformatIon.‘ .' .., Comments: Public Private Zone: �� BFE: /° Section 2- Property Ownership/Authorized Agent 2.1 I wner of Record: �( WsA I 14/444 AR/tSri() ,• r . _ T Nal; (print) f-' ii 'v: Mailing •'dress I [t . . A ,• • 4 z¢I ifs Sig .lure �r+AAR 2 9 ZgTelephon.,dP'77/_3 10J 2.2 Authorized Agenf): v -7-12()%4 ".t/ha-S97 ll , , Li}-P/or e(pr t) ay •- --- . '^:" .dress "„ i M, 3q 1zo 39. ito '. \ i'" l'ei' \„ Sign. ure Telephone H (N no* 5 ), • 7 R. 7 nn J L J L. ;:. Section 3-Construction Services D �� Q r R 3.1 Licensed Construction Supervisor r p;u JAN 3 2006 J NotApplic'ble l.; 6 97 C RM geRgY 6l�Mea- \ License Number Ac/#73/4'` 04y 041 -3 4.L+ I 2.0\-- Expiration pate C Signet re Telephone 7/C 0 7 3.2 Regist ome Improvement Contractor: Company Name Not Applicable ❑ W3/4.S COA/SneucrlOM Addrge7 License Number 34 4 + /Or/79 ZC Expiration Dat ignatur Telephone 7 Me%Cy 1 nf7 nitre • Section 4 Workers'Compensation Insurance Affidavit(M.G.L.c.152 S 25C(6) • ' Yapplication' orkers Compensation Insurance affidavit must be completed and submitted with this . Failure .� to provide this affidavit will result in the denial of the issuance of the building permit. Signed Affidavit Attached Yes No Section 5- Description of Proposed Work(check all applicable) New Construction Cit. No.of Bedrooms No.of Bathrooms Existing Bldg. ❑ Repair(s) U Alterations ❑ Addition U Accessory Bldg. ❑ Type Demolition Other Specify: Cxrsn vs eotaa%vG Brief Description of Proposed Work: 30 0 /Vela 17x 41 3 CAA G41,r6 - u. nW Zovo flv 4P1+11--rikta-y in 5NowNo✓ ft4etA Section 6=Estimated Construction Costs Item Estimated Cost(Dollars)to be Check Below completed by permit applicant 1. Building /40 K ❑ Conservation-Commission Filing 2. Electrical 9 K (if applicable) 3. Plumbing/Gas if K 4. Mechanical(HVAC) // IC ❑ Old Kings Highway&Historical 5. Fire Protection Commission approval 6.Total=(1 +2+3+4+5) ,j / qj coo (if applicable) 7.Total Square Ft.(new houses&additions) CM c, Section 7a-Owner Authorization To be Completed When Owne 'r Agent or Contractor Applies for Building Permit , as owner of the subject property hereby aut orize TIO'( '. Ates \.A.4.u..5 Co ust LOoTlO ✓ to act on my be If n all matters relative to work authorized by this building permit application. Signature of Owner Date Section 7b Owner/Authorized Agent Declaration `.VAGG$ t6/'4us Co vsTra;gas Owner/Authorized Agent hereby declare that the statements and information on the foregoing application are true and accurate, to the best of my knowledge and belief. Signed under the pains and penalties of perjury. —7-120‘i `x/A 1-45 Print name / /IVO& Sig eV nor/-a / Date 9- 15.99 2of2 'fes 11P . t�`^ TOWN OF YARMOUTNARMOUTH 0 � 1:4 BOARD OF APPEAL\"'1' CLERK • 4...0..•' DECISION inf FYI 23 PM 3: y0 s REC FILED WITH TOWN CLERK: March 23, 2006 `-`V LD PETITION NO. #4023 HEARING DATE: March 9,2006 PETITIONER: William Marasco PROPERTY: 143 River Street,South Yarmouth Map and Parcel: 34.282 Zoning District: RS40 MEMBERS PRESENT AND VOTING: David S. Reid, Chairman, John Richards, Joseph Sarnosky, Sean Igoe, Diane Moudouris,and Forrest White,Alternate. It appearing that notice of said hearing has been given by sending notice thereof to the petitioner and all those owners of property deemed by the Board to be affected thereby, and to the public by posting notice of the hearing and published in The Register,the hearing was opened and held on the date stated above. The petitioner seeks a Special Permit or Variance, in order to be allowed to reconstruct and enlarge an existing non-conforming garage building containing an accessory apartment. The property is in the RS40 zone,and the lot contains approximately one half of an acre. Prior to the commencement of the hearing, the board received from the petitioner a request to withdraw the application,based upon additional information that had been provided to the Building Commissioner. A motion was made by Mr. Richards, seconded by Mr. Sarnosky,to allow the petition to be withdrawn without prejudice,as requested. The members voted unanimously in favor of the motion. Ce..26) o David S. Reid, Clerk I MAR—O6-2696 15:57 Am JOHN CRENEY • 15083621125 P.01 • TELECOPY COVER SHEET RECEIVED John C. Creney, P.C. OCT 1 5 2009 Attorney at Law 86 Willow'Street YARMOUTH Yarmouth Port,Massachusetts 02675 BOARD OF APPEALS If there is a problem with transmission or if all pages are not received,please call 508-3624122 122 for retransmission. Fax 508-362-1125 TO:James D.Brandolini FAX#: 508 398-0836 COMPANY: Town of Yarmouth FROM: John C. Creney DATE: March 06,2006 • RE: Town of Yarmouth with Marasco Number of pages including this cover page: 2 This message is(mended only for the un of the Individual or entity to which It Is addressed,and may contain innrmtion dim is PRIVILEGED,CONFIDENTIAL and exempt gran disclosers under applicable law. If the reader or this message Is nue the Intended recipient. or the employee or agent responsible for delivering the message to the hitendod recipient. yuu we hereby notified that any dissemination.distribution Of copying of this communication is strictly prohibited. If you hive rewind this communication In error,please notify us Immediately by telephone and return the original to us by mail without making a copy. limit you. • Comments: Our series of correspondence on the matter of the continuation of a nonconforming use as a duplex of the premises at 143 River Street has led us to the question of whether the second dwelling unit was not used for any period of time exceeding two years prior to the time when the current owner, Dr. Marasco, took title in 2001. This duplex was constructed in 1967, and became nonconforming in 1971 when the minimum area requirement for duplexes was increased.. In view of the fact that the Board of Health has issued rental certificates to Dr. Marasco and the septic system has been upgraded,there appears to be no question that the second dwelling unit has been used since Dr. Marasco took title. Had the unit not been used for a period of two years or more, then under section 104.3.1 of the zoning bylaw, then the nonconforming use of the premises would have been lost and the premises would have reverted to the conforming use of a single family dwelling. Your most recent correspondence includes a letter from Richard Bussiere, a trust officer of TD Banknorth, which was the trustee holding title to the property from the death of Edward Coughlin in 1972 until the ./ 15:57 ATTY JOHN CRENEY 15O8362i125 P.O2 • conveyance to the current owner, Dr. William Marasco, in November of 2001. In that letter, Mr. Bussiere states that the unit in question was rented in the 1980's, and was used by Coughlin family members and by members of the families of the caregivers of the Coughlin family in the 1990's, until . the sale to Dr. Marasco in 2001. Taking that letter at face value as fact, then it appears that the use of the unit was not discontinued; that section 104.3.1 of the zoning bylaw is not applicable; and that the preexisting nonconforming use as a duplex may lawfully continue without any necessary relief from the Board of Appeals. °;1* -qRy TOWN OF YARMOUTH ° BUILDING DEPARTMENT tac; ;,,:„ ` 1146 Route 28, South Yarmouth, MA 02 .eE G E Phone: 508-398-2231 ext, 261 I V ED Fax: 508-398-0836 OCT j52009 YARRA Facsimile Cover Sheet soARo FAPPEALS TO: Attorney John C. Creney FAX NO. 508-362-1125 DATE: March 6,2006 FROM: James D. Brandolini (ce) Total pages, including cover page: 6 SUBJECT: 143 River Street COMMENTS: John In order to provide you with the prospective of this matter I am attaching four memos. from Dr. Marasco. Three of which are dated February 21, 2006 but were generated and faxed February 22,March 1 & March 3,2006. Again, I request you legal opinion as relates specifically to this address. Thank you. oe Yqe� TOWN OF YARMOUTH o= c BUILDING DEPARTMENT yr 'T 1146 Route 28, South Yarmouth, MA 02664 508-398-2231 ext. 261 Fax 508-398-0836 ReCeivem MEMORANDUM QCT 1 5 2009 BOAR° APPEALs TO: Zoning Board of Appeals FROM: James D. Brandolini, Building Commissioner DATE: March 7, 2006 SUBJECT: 143 River Street Petition 4023 Attached please find a copy of Attorney Creney's latest transmittal dated March 6, 2006. Based on information provide him it is his opinion that the use of the unit in question was not discontinued and therefore relief from the Board is not necessary in so far as the use is concerned Secondly, the proposed reconstruction of this unit will comply with the provisions of zoning bylaw Section 104.3.2 (1)and therefore may be performed without relief. cc: Dr. William Marasco og•YgR TOWN OF YARMOUTH H: BUILDING DEPARTMENT N .... , s 1146 Route 28, South Yarmouth, MA 02664 Phone: 508-398-2231 ext. ' E Fax: 508-398-0836 C E j V E OCT 15 2009 Facsimile Cover Sheet ao yARMO APE)OFAPPEACS TO: Dr. William Marasco FAX NO. 508-771-5202 DATE: March 7, 2006 / FROM: James D. Brandolini // Total pages, including cover page: 3 SUBJECT: 143 River Street COMMENTS: Attached please find a copy of Attorney Creney's latest transmittal dated March 6, 2006. Based on the information provided him it is his opinion that the use of the unit was not discontinued and relief from the Board of Appeals is not necessary. Accordingly,we can resume processing your building permit application. However,we do need to resolve the second means of egress matter. Please arrange to meet or speak with me so that can be resolved and the permit to demolish and reconstruct may be issued. Thank you. RECEIVED OCT 1 52009 Sirz §) guARD OF (21t0.44(21t0.44 �; APP APPEALS 30 Avd.AmS ft, yv,A °44%w4 pr. Z B c.Q"- iuvicu Idu wM 143 ant sr an -'- 1Nt rid" Walla Aoc Ili. Arty, r a vit ,duo-oiler( �' sa� - 3R4 22_ klArtisktb 0.11711 ti3-Ql or all- 39g - zo itt kre, al‘ r c :dint- OGS VVQ'14 2«r+..na w SW' cd . RECEIVED SEP 2 5 2007 BUILDING DEPT. By: -_ 4r. 4 . ' RECEIVED OCT 1 52009 BOARD OFOUTH APPEALS 4019 Eagle Cove West Dr. Palm Harbor,FL 34685 November 1, 2007 Mr. Richard Bussiere Vice President and Wealth Advisor c%T D Banknorth, N.A. 495 Station Avenue PO Box 1180 South Yarmouth, MA 02664 Dear Mr. Bussiere: You do not know me, but after some brief background and explanation my reason for writing to you will become clear. My wife and I are owners of 24 Bass River Parkway. As such we abut 143 River Street and, together with eleven other families, share membership in the Bass River Parkway Association with Dr. William Marasco who, in 2001, purchased that property from the Estate of Edward Coughlin. Prior to my wife and I taking ownership, my mother had lived full-time at 24 Bass River Parkway since 1957. All of this is to explain that I am familiar with owners of 143 River Street from Farrar to Coughlin to Marasco. In the last several years I have watched renovation, addition, razing and replacement occur at 143 River Street and the extent of these activities prompted me to visit the Yarmouth Town Hall to read the file and to become more familiar with approval process involved. Since rental apartments are rare in this cluster of single-family dwellings, I expected to find involvement by the Board of Appeals. I found that that body was uninvolved if I overlook the 1967 denial of a permit to construct the original apartment which has since been razed and replaced. I did find considerable written communication among Dr. Marasco, Attorney John Creney, representing the Town, and the Town Building Commissioner, Mr. James Brandolini. Also present in the file were two letters from you. The first is dated September 15, 1997 and the second, at Dr. Marasco's request, was written on February 15, 2006. I I am enclosing copies of both of your letters as well as Attorney Crene/s letter dated March 6, 2006. After reading all of this material, especially Attorney Crenegs letter of March 6, 2006, it is very clear to me that your February 16 letter was relied on heavily in the Town's decision process. Even though you had conceded in your 1997 letter that'the apartment has not been used for several years, nor do we anticipate using it in the futurd,Attorney Creney concluded that abandonment had not occurred; that zoning bylaw 104.3.1 did not apply; and then, based on your 2006 letter, that rental had occurred under Coughlin and that'pre-existing non-conforming use as a duplex may lawfully continue without any necessary relief from the Board of Appeals:' You may not have realized when you wrote it that your February 16, 2006 letter was going to have such an impact but, as I see it, it serves as the cornerstone of the 2006 decision by the Town of Yarmouth to permit a rental apartment at 143 River Street without any involvement by the Board of Appeals. When I met with Mr. Brandolini I indicated that, after I had heard from you about rental, I would be back in contact with him to inquire about abandonment, which you have already confirmed, and the applicability of Town bylaw 104.3.1. I am asking that you share with me the basis for your February 2006 statement that rental had occurred under Coughlin. It clashes with everything I know about Coughlin ownership, and I am eager to learn what oral or written information you have that has eluded me. Edward Coughlin left 143 River Street to his brother and sisters for their use and enjoyment until the last should die at which point the property was to be sold and proceeds forwarded to the Trustees of Stonehill College. A thorough search of the Coughlin Estate records on file at the Bristol County Probate Court has yielded no evidence of rental income. Please share with me what documentation you have about rental so that I can resume discussion with Mr. Brandolini. Thank you for your time and cooperation. You should mail your reply to me at the address shown above. Sincerely, Richard W. Shea,MD Enc. Banknorth Wealth Management Group TD Banknorth,N.A. 495 Station Avenue P.O.Box 1180 South Yarmouth,MA 02664 Toll Free: 800-673-2300 TDBanknorthWealthMan.!Reece E I V E D November 16, 2007 OCT 1 5 2009 Richard W. Shea,M.D. YARMOUTH 4019 Eagle Cove West Dr. BOARD OF APPEALS Palm Harbor,FL 34685 Re: Edward L. Coughlin Trust u/will Dear Dr. Shea, I am responding to your letter of November 13t concerning the property located at 143 River St, South Yarmouth. You have asked me to share with you the basis for my February, 2006 letter to Jim Brandolini, Town of Yarmouth Building Commissioner regarding the apartment at that location. During my involvement with this trust, as its administrator, from approximately 1989 to its termination, I had the opportunity to engage in many conversations with Mr. Coughlin's last two surviving siblings,his sisters,Dorothy Olson and Margaret Rafuse. These conversations usually took place during the summer months when they occupied the River Street property. Gradually, I was given a history the Coughlin family, their brother, Edward's ownership of the 143 River Street property and their involvement subsequent to his death. I was told that the apartment was built by Edward for the twofold purposes of 1. possibly providing rental income, and,2. providing accommodations for friends and relatives who visited,particularly during the summer months. The apartment had separate water and utilities. After Edward died(in 19727), the property became an asset of his trust to be held and maintained for the benefit of his siblings. They continued to share the use of the property including the apartment. During the 90's,whenever I would suggest shutting down the utilities to the apartment, Mrs. Olson and Rafuse would adamantly refuse despite the fact that it had not been occupied for some years. They insisted that it should be maintained with the hope of being used once again. It was not until 1997,when they both were in such poor health that their visits to the Cape stopped, that I decided to save trust income and shut down utilities to the apartment. Shortly thereafter, when it was clear the sisters would no longer be able to use the property, the trustee decided to sell. . a • I • Regarding my letters to which you refer, I did state in my 9/15/1997 letter,to the Town of Yarmouth Water Department, that we,the trustees,did not anticipate using the apartment in the future. That statement should be interpreted to mean the period of time the trust owned the property.No inference should have been made regarding the use of that apartment by the subsequent owner. Last, one would not find evidence of rental income searching the Coughlin Estate records at the Probate Court.Rental income, if any, would have been reported on the trust's annual income tax returns. I trust this answers your questions. Sincerely, Richard Bussiere,CTFA Vice President Wealth Advisor OP % 4019 Eagle Cove West Drive Palm Harbor,Florida 34685 RECEIVED December 11,2007 OCT 1 5 2009 H BOARD OFOAPPEALS Mr.Richard Bussiere, CTFA Vice President and Wealth Advisor TD Banknorth,N.A. 495 Station Avenue P.O. Box 1180 South Yarmouth,MA 02664 (certified,return receipt) Dear Mr. Bussiere: I want to thank you for your prompt response to my November 1 n letter and indicate that it failed to provide the clarity I seek concerning actual rental. Your November 16th letter includes such phrases as: "possibly provide rental income" and`rental income, if any, would have been reported. . . " What I seek is documentation that supports the statement in your March 6,2006 letter(enclosed)that the living space being discussed"was rented by Cape Cod Bank and Trust. . ." I am prepared to pay a reasonable fee for you to research the Estate Federal Income Tax filings so that the dates of rental and revenue accruing to the Estate can be documented. Thank you once again for your assistance with this project. Sincerely yours, r 1 t -s- Richard W. Shea,M.D. RWS:sgs enclosure 4019 Eagle Cove West Dr. Palm Harbor, F • .: RECEIVED OCT 1 5 2009 BOA February 28, 2008 RD OFOAPPEALS Mr. Richard Bussiere Vice President and Wealth Advisor TD Banknorth, N.A. 495 Station Avenue PO Box 1180 South Yarmouth, MA 02664 (Certified, Return Receipt) Dear Mr. Bussiere: Again, my thanks for your prompt response. I have to believe that my letter to you must have been trapped in the holiday crunch at the post office. I had not received my "greencard" back and was preparing to send you a duplicate, assuming a Christmas loss, when your response came in. In any event- let me explain what I still find unresolved and see if that can be corrected. On March 6, 2006 you indicated to Mr. Brandolini that "a portion of the building housing the attached garage was rented by Cape Cod Bank and Trust Company as trustee of the Edward L. Coughlin Trust, during the 1980's and into the early 1990's...." The only documents to which I currently have access, i.e., the Probate Court filings make no mention of rental income which is the sine qua non for rental. Without an appropriately secured rental permit and documented compensation, rental has not occurred. I certainly respect the confidentiality of the Trust management documents and because I have no idea where this issue may ultimately land, I would like to have as much clarity as possible about this issue even if I am unable to see the actual documents. I am requesting that you select one of the two statements that follow, sign where indicated and return this letter to me. • tel, • -I Once I have 2008 clarity about rental, I can resume my discussions with Mr. Brandolini. As you consider your response, please be mindful that the trustees of Stonehill College may have renewed interest in the Coughlin estate if it turns out that rental income was received, yet not mentioned in the final and complete filings with the Probate Court. O I affirm the accuracy of my March 2006 statement about rental at 143 River Street and have documentation of rental income to support it. O I am not able to affirm the accuracy of my March 2006 statement about rental at 143 River Street. Richard Bussiere Date Once again, I thank you for your time. I await your response. Sincerely, Richard W. Shea, M.D. Banknorth Wealth Management Group TI)Banknorth,N.A. 495 Station Avenue • P.D.Box 1I80 RECEIVED South Yarmouth,MA 02664 Toll Free:800673-2300 OCT 1 5 2009 TDBanknorthWealthManag n corn BOARD OFOUTH APPEALS January 2,2008 Richard W. Shea,M.D. 4019 Eagle Cove West Dr. Palm Harbor,FL 34685 Re: Edward L. Coughlin Trust under will Dear Dr. Shea, I only received your letter,of December 1 1th, on Friday December 28th. I don't know the reason for the delay. You request further documentation of the rental of the unit at 143 River St. through income tax records of the estate.The property was actually held in a trust funded under the terms of Mr. Coughlin's will. Due to bank confidentiality rules, I am not able to share any detail of the management of this trust. Secondly,we do not retain income tax files beyond five years from date of filing.Therefore,even if I were allowed to share this information,tax filings older that 2002 have been destroyed. Sincerely, agitAl Richard Bussiere, CITA Vice President Wealth Advisor TD Banknorth,N.A. 495 Station Avenue P.O.Box 1180 South Yarmouth,MA 02664 Toll Free: 800 673-2300 TDB anknorth WealthManagement.com March 7,2008 RECEIVED Richard W. Shea,M.D. 4019 Eagle Cove West Drive OCT 1 5 2009 Palm Harbor,FL 34685 BOARD OFOUTH APPEALS Re: Edward L. Coughlin Trust u/will Dear Dr. Shea, I am responding to your letter of February 28,2008 regarding my statements in a March 6,2006 letter to Jim Brandolini regarding the property at 143 River Street,South Yarmouth,MA. You have requested further documentation of rental of the property.As I stated in my letter to Mr.Brandolini, the apartment attached to the garage was rented"at the request of members of the Coughlin family".Perhaps, a more accurate statement would have been that"Cape Cod Bank&Trust, as trustee,granted permission"to the Coughlin family members (two sisters of Edward's)to rent the apartment to their caregivers and their families. This was done to ease the burden on the caregivers' families who would otherwise have had to travel back and forth,daily,between Easton and the Cape house during the summer months that the sisters occupied the Yarmouth house.Rental arrangements were made between the sisters and the caregivers. Cape Cod Bank&Trust did not get involved in that aspect of the arrangement.Therefore,the bank,as trustee,did not collect rent,nor, can I verify that money was actually paid by the caregivers to the sisters. I hope this clarifies the statements in my letter to Mr. Brandolini. Sincerely, —. Richard Bussiere, CTFA Vice President Wealth Advisor ir'YAR TOWN OF YARMOUTH ori c'; BUILDING DEPARTMENT F t.j .$15441 1146 Route 28, South Yarmouth, MA 02664 ;;.. 508-398-2231 ext. 261 Fax 508-398-0836 MEMORANDUM RECEIVED IOCT 1 5 2009 TO: AttorneyDouglas Murphy YARMOUTH g rP Y BOARD OF APPEALS FROM: James D. Brandolini, Building Commissioner DATE: June 17, 2008 SUBJECT: 194 River Street Recant of Information Town Administrator Robert C. Lawton, Jr. has given me authorization to seek your legal counsel concerning the following matter. John Creney,Dr.William Marasco and I had a series of written correspondence in 2006 concerning the non-use and or abandonment of an apartment owned by William Marasco located at 143 River Street. At the tail end of that process a letter from a Mr. Richard Bussiere, Vice President of Banknorth was provided,a copy of which I am enclosing. Mr.Bussiere provided information which • John and I relied heavily on to make our decisions, concerning the issue of non-use/abandonment (see copy of John's March 6, 2006 correspondence). Last week I was presented with the attached correspondence from Dr.Richard W. Shea. He wrote letters of November 1, 2007,December 11, 2007 and February 28,2008 to Mr. Richard Bussiere requesting Mr.Bussiere answer his questions concerning the use of the apartment in question. Mr. Bussiere provided responses of November 16, 2007, January 2, 2008 and March 7, 2008 (copies attached). I draw your attention to the March 7,2008 response and request your legal advice as to whether these latest statements of Mr.Bussiere change the question of whether the apartment was ,abandoned or not used, thus losing it's rights as a pre-existing non conforming dwelling unit. Thank you. JUL,725-20148 08:19 FROM:CDI 5087715202 TO:15083980836 P.1 • RECEIVED IOCT 1 5 2009 To: James Brandolini, CBO $3OARD MOAPPEALS Yarmouth Building Commissioner Y"e `� 34�' - ° ?"From: W. Marasco S Date: July 25 2008 RE: 143 River st I have read your correspondence you have sent me concerning the property. I disagree that the trustee statement have changed at all. In his original statement he describes that the apartment was used and maintained and it was not his intention to change use. The letters from Shea are obviously one of a upset neighbor who thought that the apartment was non-conforming because of a 1967 decision. He is clearly wrong, when the apartment was added it was by right. It never needed a BOA decision. Also if he is trying to assert its use changed. What did it change into? A single family house? That is also a non-conforming use for that area. The lot is not 40000 sq feet and that use would not be allowed today on that size lot. When I bought the property, it was furnished, the apartment contained all cooking utensils a working stove, working electric heat, beds and other furnishings. Once I bought the apartment no upgrades, work needed to be done to begin renting the property. It was a working and used apartment when I bought the property, and the trustees statements do not counter this. A two family dwelling does not need to be rented to be used. If an apartment is not occupied by a rental tenant it does not make it abandoned or make it not being used. The property was maintained both in its interior and exterior as a two family. It was also occupied by the trustee every time he inspected the property, which was clearly many times a year. Also, a trustee can act as an owner, so if this were not a trustee but a full owner who owned the property who lived off cape and came down a few times a year and that did not count as J1L•-25-21108 08:19 FRDM:CDI 5087715202 70:15083980836 P.2 • • using the property, then I can give you a list of at least seven properties on pleasant street and river street which would also have to be deemed unlawful. I hope that this further information will clarify that the property is a valid pre-existing non-conforming use and the complaints of Shea are of a upset neighbor who has complained to any town department that he can about me and my property (natural resources, ect). It is my understanding that he wanted to buy the property and that he has been upset ever since I bought it and also that he is upset because I have placed a fence, by right, which blocks his view of the water. Also, Shea has never complained of noise or any other nuisance caused by the use of the apartment which has been going on for 30 years. BRUCE P. GILMORE RECEIVED ATTORNEY AT LAW 00 WILLOW STREET YARMOUTHPORT, MA 02675 OCT 1 5 2009 I (508) 362-8833 FAX: (508) 382-5344 E-MAIL: capeecodIa dlar.corn OmCast.nat YARMOBOARC' (lFAUpp Sq UNS L` www.capecodlawyer.com x�i N.r+(W RLAIN & MARSH August 7, 2008D T igL fl 7 N 11 AUG 0 8 Z008 D James Brandolini, Building Commissioner By Town of Yarmouth 1146 Route 28 • • South Yarmouth, MA 02664 RE: 143 River Street, South Yarmouth Dear Mr. Brandolini: This letter shall confirm our discussion today relative to the property located at 143 River Street, S. Yarmouth, owned by William Marasco. Your letter of July 23, 2008 does not constitute a decision within the purview of M.G.L. c. 40A §§ 7, 8, and 15. . It is my understanding that you will be having additional communications with Attorney Murphy regarding this matter. Thank you again for your courtesies and meeting with me this afternoon. Should you have any questions,please do not hesitate to contact me. Very truly yours, Bruce P. more /lmm og•Yei TOWN OF YARMOUTH $� p BUILDING DEPART e H O I 1146 Route 28, South Yarmouth, M 026.6 C E I V E D �;• Phone: 508-398-2231 ext. 26 Fax: 508-398-0836 OCT 1 5 2009 YARMOUTH BOARD OF APPEALS Facsimile Cover Sheet TO: Attorney J.Douglas Murphy FAX NO. 508-775-3720 DATE: August 19,2008 FROM: James D.Brandolini SUBJECT: 143 River Street Garage Apartment Total Number of Pages including cover sheet: 3 COMMENTS: On August 7,2008 Attorney Bruce P. Gilmore and I met to discuss the issue of"non use"as it relates to the garage apartment at 143 River Street South Yarmouth. Attached is my letter of July 21,2008 to Dr.Marasco and Attorney Gilmore's letter of August 7,2008. Based on my discussion with Attorney Gilmore I am requesting a legal opinion concerning the special rights afforded one & two family dwellings pursuant to MGL Chapter 40A,Section 6 and how these may or may not effect the"non use"issue with respect to this matter. Also I request your legal opinion concerning the recent MA Appeals Coulcase No.07-355,Gallivan v Zoning Board of Appeals of Wellesley,et al. on the effect?pr.Shea's request for enforcement,if any. Thank you. cc: Robert C. Lawton,Jr., Town Administrator AUG-112009 09:58 FRDM:CDI 5087715202 TO:15083980836 P.1/1 vgd. To: James Brandolini, CBO R E C E ► V E D Yarmouth Building Com issioner OCT 15 2009 Prom: W. Marasco h QOARD pFO p ms`s Date: 10 August 09 RE: Letter 143 River street. I have shown your letter to many people who are familiar with Zoning and Building Permits, and they are perplexed by your position. As you know, the work at 143 was done to specs of the building permit and was inspected with occupancy permit issued. It is clear that it was a pre-existing non-conforming two family, as was the legal opinion by town counsel at that time. The reason this matter is before you is due to the constant complaint to you by a disgruntled neighbor. It is clear that he has no standing to claim that I am in violation of zoning, and your town counsel agrees. If he has a problem, then it would be a private civil matter for the courts. His complaints are not a municipal matter. I believe the use of the town resources to satisfy what is essentially a private matter is not justified. It is unfortunate that there are those who wish to abuse local governmental authority just to harass their neighbor. I would also ask that if there are any further complaints about me, please forward them to me so I may give them to my attorney so I may take legal recourse against the person complaining. Please contact me if you with to discuss this matter further. : :*-1 • So TOWN OF YARMOUTH c BOARD OF APPEALS VT/LOUTH N APPI4IC TION TCvr ; ,^ ' \tO\� o Appeal#: U%7.10A Hearing Date: nn ECHO Fee$ l a"i•80 Owner-Applicant: William Marasco11N ' ��-�` ' _f 1 ncdine d/b/a) 143 River Street, Souti ` rmouth, A U2664 771..42# (Address) (Telephone Number) (Email Address) 3 q g-3363 and is the (check one) Di Owner 0 Tenant 0 Prospective Buyer 0 Other Interested Party J Property: This application relates to the property located at: 143 River Street S. Yarmouth and shown on the Assessor's Map#: 0034 as Parcel#: 282 Zoning District: RS40 If property is on an un-constructed(paper)street name of nearest cross street,or other identifying location: Project: The applicant seeks permission to undertake the following construction/use/activity (give a brief description of the project. i.e.: "add a 10'by 15'deck to the front of our house" or "change the use of the existing building on the property"): RELIEF REQUESTED: The applicant seeks the following relief from the Board of Appeals: 1) X REVERSE THE DECISION OF THE BUILDING INSPECTOR OR THE ZONING ADMINISTRATOR dated 7-14-A1&ch a copy of the decision appealed from). State the reason for reversal and the ruling which you request the Board to make. Building Permit issued, pre-existing non-conforming two-family still valid 2) SPECIAL PERMIT under§ of the Yarmouth Zoning By-law and/or for a use authorized upon Special Permit in the "Use Regulation Schedule" §202.5 .(use space below if needed) 3) VARIANCE from the Yarmouth Zoning By-law. Specify all sections of the by-law from which relief is requested, and, as to each section, specify the relief sought: Section: Relief sought: Section: Relief sought: Section: Relief sought: ADDITIONAL INFORMATION: Please use the space below to provide any additional information which you feel should be included in your application: FACT SHEET Current Owner of Property as listed on the deed (if other than applicant): Northstar Properties MGT, LLC 21' Aaron' s Way, West Yarmouth Name&Address .. Title deed reference: Book&Page# 22686/215 or Certificate# Land Court Lot# Plan# (provide copy of recent deed) Use Classification: Existing: Single Family §202.5 # Al ' Proposed: Two-Family §202.5 # A2 Is the property vacant: If so,how long?: Lot Information Size/Area: 24, 394 Plan Book and Page / Lot# Is this property within the Aquifer Protection Overlay District?Yes No Have you completed a formal commercial site plan review (if needed)? Yes_No Other Department(s)Reviewing Project: Indicate the other Town Departments which are/ have/or will review this project, and indicate the status of their review process: Repetitive Petition: Is this a re-application: If yes, do you have Planning Board Approval? Prior Relief: If the property in question has been the subject of prior application to the Board of Appeals or Zoning Administrator, indicate the date and Appeal number(s) and other available information. Include a copy of the decision(s) with this application: #3908-Granted #4023-Withdrawn #871-Denied Building Commissioner Comments: 6*r, Tivnr to Applicant's/Attorney/Agent Signature Owner's Signature Address: Phone E-Mail: ding Commissioner Signature late of'tilt TOWN OF YARMOUTH e , BUILDING DEPARTMENT y 1146 Route 28,Sow h Yarmouth,MA 02664 P' �'�� H 508-398-2231 ext\261 Fax 508-398-0836 E�. RECEIVED OCT 1 5 2009 August 11, 2009 YARMOUTH BOARD OF APPEALS Dr. William Marasco 143 River Street South Yarmouth, MA 02664 Re: 143 River Street Dear Dr. Marasco: This is to serve as a follow-up to my July 16, 2009 letter, our subsequent phone conversation, and your August 10, 2009 letter concerning the garage apartment use status. As stated in my July 16, 2009 letter and reiterated in our phone conversation, Attorney Murphy's legal opinion is clear. As a result of this legal opinion you were"ordered to provide sufficient documentation that there was no interruption/lapse beyond two(2) years in the apartment use" or "file a variance petition with the Zoning Board of Appeals". Your August 10, 2009 letter addresses neither. Based on this, you are again ordered to take the action stated. You also have the right to appeal this order to the Zoning Board of Appeals, pursuant to the provisions of MGL Chapter 40A, Section 15, within thirty(30)days. Finally, failure to take any action within thirty days will result in appropriate zoning enforcement action, which may include the issuance of tickets with fines of up to $300 per day. So Ordered, Jaxds'D. Brandolini, C.B.O. Building Commissioner cc: Zoning Board of Appeals ot•' '44 TOWN OF YARMOUTH • - 'o' BUILDING DEPARTMENT o t -y 1146 Route 28, South Yarmouth,MA 0266 F „Arihl„ , ; RECEIVED 508-398-2231 ext.261 Fax 508-3I8-0836 AUG 1 1 2009 I YARMOUTH BOARD OF APPEALS August 11, 2009 Dr. William Marasco 143 River Street South Yarmouth, MA 02664 Re: 143 River Street Dear Dr. Marasco: This is to serve as a follow-up to my July 16,2009 letter, our subsequent phone conversation, and your August 10, 2009 letter concerning the garage apartment use status. As stated in my July 16,2009 letter and reiterated in our phone conversation,Attorney Murphy's legal opinion is clear. As a result of this legal opinion you were "ordered to provide sufficient documentation that there was no interruption/lapse beyond two (2)years in the apartment use"or "file a variance petition with the Zoning Board of Appeals". Your August 10, 2009 letter addresses neither. Based on this,you are again ordered to take the action stated. You also have the right to appeal this order to the Zoning Board of Appeals, pursuant to the provisions of MGL Chapter 40A, Section 15,within thirty(30)days. Finally,failure to take any action within thirty days will result in appropriate zoning enforcement action,which may include the issuance of tickets with fines of up to $300 per day. So Ordered, James D. Brandolini, C.B.O. Building Commissioner cc: Zoning Board of Appeals RECEIVED MICHAEL D. FORD ATTORNEY AT LAW OCT 2 1 2009 72 MAIN STREET, P.O. BOX 485 WEST HARWICH,MA 02671 YARMOUTH TEL. (508)430-1900 FAX (508)430-9979 BOARD OF APPEALS EMAIL:mdfesql@verizon.net October 20, 2009 Town of Yarmouth Yarmouth Zoning Board of Appeals Attention: Rhonda La France 1146 Route 28 South Yarmouth, MA 02664 RE: William Marasco—143 River Street, South Yarmouth Petition #4268—Request for Extension Dear Chairman DeYoung and Members of the Board: Please be advised that I will not be representing Mr. Marasco based on a potential conflict,which I discovered when reviewing the town file yesterday. Mr. Marasco is in the process of hiring new counsel to represent him and still respectfully requests that this matter be continued for 60 days as indicated in our October 19, 2009 letter. I have attached a copy of the letter as well for your records. Thank you for your assistance and consideration in this matter. Very nil yours, Michael D. Ford, Esq. MDF/hao CC: Client James Brandolini _. MICHAEL D. FORD ATTORNEY AT LAW 72 MAIN STREET, P.O. BOX 485 WEST HARWICH, MA 02671 TEL. (508)430-1900 FAX (508)430-9979 EMAIL: mdfesel@verizon.net October 19, 2009 Town of Yarmouth Yarmouth Zoning Board of Appeals Attention: Rhonda LaFrance 1146 Route 28 South Yarmouth, MA 02664 RE: William Marasco— 143 River Street, South Yarmouth Petition#4268 — Request for Extension Dear Chairman DeYoung and Members of the Board: Please be advised that this office recently has been retained by the Petitioner. William Marasco. to represent him in regards to Petition#4268, an Appeal of a Decision of the Building Inspector. It will be necessary for me to meet with James Brandolini, the Building Commissioner, to properly prepare for the appeal hearing. Further, it is anticipated that additional information will be provided to the Building Commissioner which may obviate the need for the appeal. To that end, we called the Building ' Commissioner on Friday, October 16, 2009, to request a meeting, and the first time that we were able to schedule a meeting that met our collective schedules is Friday, October 23, 2009. • Accordingly, I would respectfully request that this matter be continued for sixty • days. I am authorized by the applicant to sign any extension necessary to extend the time that the Board has to act on this request. Thank you for you assistance in this matter. Very u" yours, Michael D: Ford • cc: Client James Brandolini 1 Page 1 of 1 LaFrance, Rhonda From: William Marasco]wmarasco@massmed.org] Sent: Friday, October 23, 2009 3:51 PM To: LaFrance, Rhonda Subject: Re: BOA Thank you Sent from my iPhone On Oct 23,2009, at 2:43 PM, "LaFrance,Rhonda" <RLafrance@yarmouth.ma.us>wrote: <image001jpg> Bill: The board voted last night to allow your request for a continuance of your hearing to December 10, 2009,with the condition that no further requests for continuances will be granted. • Rhonda LaFrance Board of Appeals Office Administrator 1146 Route 28 South Yarmouth,MA 02664 508-398-2231 ex 285 508-398-0836 Fax The preceding e-mail message(including any attachments)contains information that may be confidential,may be protected by the attorney-client or other applicable privileges,or may constitute non-public information.It is intended to be conveyed only to the designated recipients)named above.If you are not an intended recipient of this message,please notify the sender by replying to this message and then delete all copies of it from your computer system.Any use, dissemination,distribution,or reproduction of this message by unintended recipients is not authorized and may be unlawful. 10/23/2009 Page 1 of 1 LaFranco, Rhonda From: Rwsheamd@aol.com Sent: Tuesday, October 20, 2009 10:51 AM To: LaFrance, Rhonda Subject: (no subject) Please pass on to your Board of Appeals Chair that,as an abutter, I had made plans to attend the October 22 meeting for the discussion about 143 River Street. I have now cancelled those travel plans in light of the request for a continuance and will await notification about a new date. cRICAciA a 1 -� 10/20/2009 RECEIVED MICHAEL D. FORD OCT 1 9 2009 ATTORNEY AT LAW 72 MAIN STREET,P.O.BOX 485 noyiA pFOgppEgLS WEST HARWICH,MA 02671 TEL. (508)430-1900 FAX(508)430-9979 EMAIL: mdfesgl@verizon.net October 19, 2009 Town of Yarmouth Yarmouth Zoning Board of Appeals Attention: Rhonda LaFrance 1146 Route 28 South Yarmouth,MA 02664 RE: William Marasco— 143 River Street, South Yarmouth Petition#4268—Request for Extension Dear Chairman DeYoung and Members of the Board: Please be advised that this office recently has been retained by the Petitioner, William Marasco,to represent him in regards to Petition#4268, an Appeal of a Decision of the Building Inspector. It will be necessary for me to meet with James Brandolini, the Building Commissioner,to properly prepare for the appeal hearing. Further, it is anticipated that additional information will be provided to the Building Commissioner which may obviate the need for the appeal. To that end,we called the Building Commissioner on Friday, October 16,2009,to request a meeting, and the first time that we were able to schedule a meeting that met our collective schedules is Friday, October 23, 2009. Accordingly, I would respectfully request that this matter be continued for sixty days. I am authorized by the applicant to sign any extension necessary to extend the time that the Board has to act on this request. Thank you for you assistance in this matter. Very t yours, Michael D. Ford cc: Client James Brandolini 1 0V — i " V ' o 3C To: James Brandolini, CBO Yarmouth Building Corn issioner From: W. Marasco Date: 10 August 09 RE: Letter 143 River street. I have shown your letter to many people who are familiar with Zoning and Building Permits, and they are perplexed by your position. As you know, the work at 143 was done to specs of the building permit and was inspected with occupancy permit issued. It is clear that it was a pre-existing non-conforming two family, as was the legal opinion by town counsel at that time. The reason this matter is before you is due to the constant complaint to you by a disgruntled neighbor. It is clear that he has no standing to claim that I am in violation of zoning, and your town counsel agrees. If he has a problem, then it would be a private civil matter for the courts. His complaints are not a municipal matter. I believe the use of the town resources to satisfy what is essentially a private matter is not justified. It is unfortunate that there are those who wish to abuse local governmental authority just to harass their neighbor. I would also ask that if there are any further complaints about me, please forward them to me so I may give them to my attorney so I may take legal recourse against the person complaining. Please contact me if you with to discuss this matter further. FEB 0 5 RatJ. DOUGLAS MURPHY COUNSELOR AT LAW ,4o09 243 South Street By Lock Drawer M Hyannis,Massachusetts 02601-1412 Telephone:508-775-3116 • Facsimile:508-775-3720 • Email:jd.murphjave ' •• . Please reply our File Na E C E I V E D 15961 OCT 1 5 2009 February 4, 2009 YARMOUTH BOARD OF APPEALS Via Facsimile and US Mail 508-398-0836 Mr. James D. Brandolini Building Commissioner Town of Yarmouth Building Department 1146 Route 28 South Yarmouth, MA 02664 Re: 143 River Street, South Yarmouth, MA (the "Premises) Dear Jim: Reference is made to your request for an opinion concerning the Premises at 143 River Street, South Yarmouth(the"Premises")and the"special rights"afforded to one and two-family dwellings under General Laws Chapter 40A, Section 6. More precisely you have inquired whether or not the exception provisions relative to such dwellings bear on the"non-use"issue opined upon in my letter to you dated June 26, 2008. My June 26, 2008 letter opined that based upon the then known facts, any lawful, pre- existing,non-conforming use of the Premises as a duplex appeared to have ceased prior to November of 2001 through non-use and regardless of any actual, manifest intention to abandon. Apparently an inquiry was subsequently posed as the whether or not that opinion would be affected by portions of Section 6 of Chapter 40A which mandates that zoning by-law or ordinance changes shall apply to any, [C]hange or substantial extension of[ . . . structures or uses lawfully in existence. . . ],to a building or special permit issued after the first notice of said public hearing, to any reconstruction, extension or structural change of such structure and to any alteration of a structure begun after the first notice of said public hearing to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent except where alteration,reconstruction,extension or structural change to a single or two-family residential structure does not increase the non-conforming nature of said structure. (Emphasis added). As a general rule, following a zoning amendment rendering an existing use no longer permissible as a matter of right such use may nevertheless be continued if found to be"lawfully pre- existing" and, the lawful pre-existing usage of a non-conforming structure may be extended or altered only upon action by the permit or special permit granting authority making certain findings. Among those findings the Board or other special permit granting authority must conclude that the pre-existing use was lawfully in existence at the time of the change. However,the Legislature inserted an exception to the general rule which is that reflected in the underlined language cited above,the second exception clause applicable to single or two-family residential structures. Furthermore,the Town of Yarmouth has embellished these exceptions for one and two family structures through the adoption of a ByLaw, Section 104.3.2.1.B. which in clarifying the authority to alter, extend or raze and replace lawfully pre-existing, non-conforming single and two family structures provides that: [A]ny alteration or extension of such a structure which will remain within the pre-existing footprint and height of the structure or raze and replacement which meets the current minimum set-back and does not exceed the current minimum building height and current maximum building coverage requirements shall be presumed not to be an increase in the non-conforming nature of the structure. There are also certain"grandfather provisions"of Section 6 applicable to lots for single and two-family residential use which exempt such lots from, or defer the application of changes in dimensional requirements if such lot was in single ownership or was the beneficiary of a Plan recorded or endorsed when the lot was in common ownership and met certain other conditions. I am not aware that the property owner or the inquiring neighbor have provided any information suggesting that the provisions of the fourth paragraph of Section 6 (the grandfathered lot provisions) is implicated in this particular matter,nor does it appear to be. The lot in question, however, appears to have been created by a 1933 subdivision. There are more amelioratoring provisions of Section 6 applicable to subdivision plans but there is no indication in the material I have reviewed or which has been forwarded to me concerning 143 River Street which leads me to believe any of the subdivision grace provisions are implicated in this situation. 2 , The factual background upon which the following opinion is predicated, is as follows: Zoning was first adopted in the Town of Yarmouth prior to 1967, but the date of the residential development of the Premises relative to the onset of zoning is unknown at present. The locus is situated in the residential, RS-40 zoning district. On or about October 19, 1967 (Petition No. 871) the Yarmouth Zoning Board of Appeals entertained an application for a special permit and variance intended to enable one bay of an existing three-bay garage to be converted into sleeping quarters and to remodel the garage for that purpose. In its Decision the ZBA discussed what existed and what was proposed, and noted that while the ByLaw allowed duplex housing in that zoning area, it was denying the application because it concluded that to grant the permit would effectively enable the construction not of a duplex,i.e.two living units in a single residential structure,but of a". . . second,apparently detached,dwelling on a single lot." The Board concluded that such a result would derogate from the intent and purpose of the Zoning ByLaw. The language of the Decision and the conclusion arrived at therein provide reasonably compelling evidence that, at the time of the application: (a) There was a detached single-family dwelling and a detached three-car garage upon the Premises; (b) The then ByLaw permitted duplex dwellings in the zoning district; and (c) The then ByLaw prohibited multiple,detached single-family dwellings on a single lot in the zoning district. The Town of Yarmouth Water Department records reflect that on November 2, 1967,shortly after denial of the requested permit to construct a"second dwelling",a request for water service was filed with the Yarmouth Water Department, bearing the notation "garage apt.". There was no indication of a building permit having been issued (or denied). Similarly,on August 9, 1968 a request for water service transfer was filed and also bore the - —- notation"garage a t" with again,no apparent indication of a building P ( 8 PP permit having been issued or denied). In March of 1971 the Yarmouth Town Meeting approved a zoning ByLaw change requiring that two-family dwellings, i.e., duplexes must have a minimum lot size 150% (now 200%) larger than the lot area required for a single-family dwelling within the district, and must have a lot width of 125 feet and a lot depth of 90 feet. The dimensions of the lot comprising the Premises,which is bounded on three sides by Ways, are approximately 180 feet by 90 feet with a lot width of approximately 100 feet. The lot is not square or rectangular and thus the dimensions are average. 3 The oldest Assessor's records available indicate that on June 4, 1974 improvements on the Premises included a breeze-way(described as a canopy,7 x 30 feet). The floor plans included in the Assessor's records include what appears to be a 424 square feet finished area identified as "occupancy, other-cot", and a 340 square feet garage. The narrative description of the overall property is "hse bzy gar Apt" (quite clearly abbreviation of the words house breeze-way garage apartment). I have not conducted a complete title examination of the Premises, but a cursory review indicates that the Premises were owned by Dorothy Farrar in 1967, and that she conveyed the Premises to Edward L. Coughlin in June of 1968. Mr. Coughlin died in 1972,survived by siblings. He left the Premises in trust, with Cape Cod Bank& Trust Company as Trustee for the benefit of his siblings. The Bank Trust Officer overseeing the Premises from the time of Mr.Coughlin's death until it was sold to the current owner, Dr. Marasco, in 2001, was Richard Bussiere. Mr. Bussiere states in correspondence addressing the issue of usage, that Mr. Coughlin's siblings informed him that Mr.Coughlin constructed the garage apartment sometime prior to 1971. The surviving siblings related to Mr.Bussiere that the garage apartment was utilized for rental income,as well as to provide accommodations for friends and relatives who visited the owner. The siblings, via and in addition to Mr. Bussiere, are the source of much of the information pertaining to usage from 1971 to 2001. Richard Bussiere was able to provide a largely third-hand and somewhat sketchy account of apartment utilization perhaps(but doubtfully)as late as 1997,but no later. In 2001 Cape Cod Bank&Trust Company as Trustee conveyed the Premises to Dr. William Marasco who appears to have owned or controlled the property since that time. Various town records,including rental certificates issued by the Town Board of Health and an upgrade to the septic system indicate that Dr. Marasco utilized the Premises as a duplex residential unit between the time of his acquisition in 2001 and the time of demolition and reconstruction described hereinafter. There appears to be no evidence nor any contention that following Dr.Marasco's acquisition in 2001 and at least until 2007, there was any complaint or allegation lodged with the Building Department of the Town of Yarmouth alleging that any unlawful or improper use was being made of the Premises. On or about January 31, 2006, the Building Department received an application for a demolition and reconstruction building permit from the then owner, Dr. Marasco. A search of the records in the Building Department failed to disclose any prior building permits or other definitive documentation for the Premises which might substantiate the historical usage as a lawful, pre- existing, non-conforming duplex structure. Thus, in February 2006, the Building Commissioner requested advice from Town Counsel, John Creney,to determine whether the then existing garage apartment qualified as a "lawful, pre-existing, non-conforming use" either as part of an existing duplex or as a separate detached apartment/dwelling unit,or whether zoning relief from the Zoning Board of Appeals would be necessary as a condition of issuing the requested demolition and reconstruction permits. 4 Under date of March 6,2006 Attorney Creney responded that upon the basis of the facts then known and represented it appeared that a lawful,pre-existing, non-conforming duplex use existed and could be lawfully continued without the need for relief from the Zoning Board of Appeals. The January 31,2006 applications requested a permit to demolish the 764 square foot,pre- existing,non-conforming garage,which included a 424 square foot dwelling unit,as well as a permit to replace the demolished garage with a 1,440 square foot structure containing a two bay garage and a 1,175 square foot second floor apartment. It appears from this information, that the proposed structure significantly exceeds the footprint of the pre-existing structure. The Building Commissioner's examination of the plans filed with the applications suggested that the existing structure was non-conforming for failure to meet the front setback but that the proposed structure would remedy that situation and bring the structure into compliance with all then current dimensional setbacks, except lot size. Following receipt of the opinion of the Town Counsel (see above) and demolition of the existing structure, the Building Permit issued on April 19, 2006, and a Certificate of Occupancy indicating substantial completion of the reconstruction was issued on September 19, 2006. The Building Commissioner issued the permits for demolition and reconstruction in good faith reliance upon the facts represented to him and those discovered through research of Town records, as well as the opinion rendered by the Town Counsel. Furthermore the razing was obviously conducted out in the open,after issuance of the permit for the demolition and replacement and was, or clearly should have been noticed by anyone in the neighborhood having an interest. Indeed,the conduct of the razing would be inescapable to an abutter. The demolition and building permits enabled replacement of a one story structure containing a two-car garage and single-family apartment,with a two story building housing a three-car garage and second floor apartment. On or about September of 2007 a neighborhood resident,Richard W. Shea,M.D.visited the Building Department to review the records pertinent to the Premises and to discuss the permissibility of the razing and reconstruction which had occurred on the Premises over a year earlier. Dr. Shea - _ and his wife are believed to be the current owners of the property at 24 Bass River Parkway which is directly across the street from the Premises. Dr. Shea asserts that he has had intimate familiarity with the Marasco property since the time it was owned by Farrar(i.e.,prior to 1968 according to my cursory examination of the records in the Registry of Deeds)and it appears that his mother resided at 24 Bass River Parkway from 1957 until Dr. Shea and his wife took title in 1974. By his own admission, Dr. Shea had percipient knowledge as he". . . watched renovation, addition,razing and replacement occur at 143 River Street. . . ."(Shea letter to Bussiere,November 1, 2007). 5 t. Subsequent to September 2007,Dr.Shea made several visits to the Building Department and reviewed records and discussed the context and legalities of the 2006 demolition and reconstruction, as well as the historic use of the Premises. In June of 2008, Dr. Shea shared copies of certain correspondence between himself and Richard Bussiere at TD Banknorth(successor to Cape Cod Bank and Trust Company,Trustee). Dr. Shea challenged the continuing use of the Premises as a duplex, alleging that such use had terminated prior to acquisition of the Premises by Dr. Marasco, as a result of non-use. It was not until such time,June of 2008,that Dr. Shea provided copies of the correspondence between himself and Mr. Bussiere which provided some clarification of the factual basis upon which the Premises were alleged to have been used as a duplex residential property between 1972 and 2001. Such is the history upon which this opinion is based. Should you be aware of further information or actions having a bearing on the foregoing, please advise me at your earliest convenience so that I may determine whether or not they might have an affect on this opinion. It is well established that the burden is on the proponent of an alleged pre-existing, lawful, non-conforming use to provide adequate and satisfactory evidence of the pre-existence of the lawful non-conforming use, if it is to enjoy such status. Lam ofthe opinion that the facts concerning the historical background of the site are either inadequate to meet the test or are insufficient upon which to form a compelling conclusion that two family(duplex)use lawfully existed prior to the pertinent district requirements being amended to prohibit such use without relief from the ZBA. However, rI also feel that point is mooted by the forfeiture of any such grandfathered rights which resulted from discontinuance in the latter 19900 I believe that the "special"position carved-out in G L. c. 40A, Section 6 for alterations to single and two-family residential structures is inapplicable under the circumstances presented here • since the facts alluded to herein, when viewed under currently applicable case law, seem to demonstrate changes in the"nature"of the pre-existing use when viewed under currently applicable case law. The facts alluded to above include, inter alio, the following: (a)— There is inferential, but not in my opinion compelling evidence, that two separate, conforming structures(one a detached single-family dwelling,the other a three-car garage) which were located on a single, conforming lot, were joined together some time around 1967, into a single structure containing two separate living units. At the time the two structures became connected by a breeze-way, a duplex, but not two detached single-family dwellings would have been permissible on a single lot without zoning relief. The By-law was amended in 1971 to impose certain dimensional requirements as conditions of duplex use, which precluded such use of the premises as a matter of right unless they were grandfathered; 6 (b) There is compelling evidence that any so-called grandfather rights that might have arisen through the creation of duplex usage prior to the 1971 amendment were lost when the usage appears to have been discontinued for approximately four years between 1997 and 2001 (and there is strong evidence that the necessary usage had ceased even well prior to 1997); (c) The current owner utilized the premises as a duplex, apparently without complaint or objection from either Town officials or interested abutters or neighbors, between 2001 and 2006. In March of 2006 the owner of the Premises obtained permits to modify the Premises by demolishing the existing attached breeze-way and two-bay garage and ground floor apartment and replacing them with a larger, but dimensionally conforming three-bay garage with a second floor apartment (Note: the description of the new structure indicates it did not and does not occupy the same "footprint"as the former structure); (d) The 2006 building permit application was filed January 31,2006. The actual demolition and re-building permits issued in March of 2006 only after investigation into the history of the premises usage, including uncontested representations of the owner, research of the records of Town inspectional T. departments including Zoning, Building and Board of Health and the solicitation of advice from the Town Counsel which together provided the basis for a reasonable and rational conclusion that the structure was a lawful, pre-existing, non-conforming duplex residential use. The demolition and building permits were issued in good faith reliance upon the results of that investigation; (e) The immediate abutting landowner Dr Richard Shea, and by inference his wife,states in correspondence between him and the former bank officer who oversaw the property prior to its sale to the current owner in 2001,that he has an historic familiarity with the premises perhaps dating back to the late'50's, and that he watched the razing and reconstruction of the Premises into its present configuration and use which occurred between late Winter/early Spring 2006 and late Fall of that year when reconstruction was apparently completed and a Certificate of Occupancy was issued. Dr. Shea did not share this correspondence between him and Mr. Bussiere with the Building Department until June of 2008. (f) No objection, complaint, demand or even inquiry was apparently received from the abutters(or anyone else)after issuance of the demolition and rebuild permits, during the period of demolition and reconstruction, or prior to issuance of the CO.Indeed,none apparently until late spring or early summer of 2008, well after the project was completed. 7 (g) Presumably,and I believe this is a permissible presumption,the owner of the Premises, after applying for the building permit and being privy to the concerns expressed and then addressed as a result of your and the Town Counsels research and analysis, believed that he held lawful authority to do so and proceeded in good faith with the demolition and reconstruction in a patently open and apparent manner,observable to all who had any interest in the property and its usage. Based upon the time-line between the issuance of permits and the issuance of the Certificate of Occupancy, construction proceeded in due course to completion. (h) I am not aware of any suggestion that the demolition and rebuild were accomplished otherwise than in accordance with the permits issued therefore. If your review of the foregoing leads you to conclude that I have somehow mis-constructed or misunderstood any of the salient facts as recited,please advise me at your earliest opportunity so that I may determine whether they are material to my conclusions herein. Notwithstanding the historical use (or non-use) of the premises, under the circumstances I believe that the Gallivan case affirmed by the Supreme Judicial Court last Fall Gallivan v. The .c;;:. t; Board of Appeals of Wellesley, 71 Mass. Appeals Court 850, 887 NE 2" 1087 (2008); review dehied, Gallivan v. Zoning Board of Appeals of Wellesley, 452 Mass. 1104, 893 NE 2" 1238 (Mass, decided 9/8/08), is dispositive of the abutters inquiries to you, which I understand to be something in the nature of a verbal(so far as I am aware no formal,written request has been made?) demand for enforcement,alleging that the construction and use of the premises is not in conformance.::...- with zoning requirements. The Gallivan court concluded that"...a party with adequate notice of an order or decision that violates a zoning provision must appeal that order or decision to the appropriate permit granting ., authority within the thirty-day period allotted for such an appeal." [under c. 40A, § 8] Gallivan at 857.The Court construed the word order to include a building permit. Also see,Kuolas v.Chittick. Mass. Land Ct No. 334159, Jan 5, 2009. In brief,the Gallivan case involved an abutters attempt to obtain enforcement action against — --— an alleged violation of a setback requirement in the construction of a new dwelling. The Gallivan court concluded that". . . a party with adequate notice of an order or decision that violates a zoning provision must appeal that order or decision to the appropriate permit granting authority within the thirty-day period allotted for such an appeal." Gallivan at 857. The court acknowledged the prospect that in certain circumstances there could be disputes over whether an aggrieved person actually has sufficient notice of a permit to require an appeal within the thirty-day period prescribed by General Laws Chapter 40A, Section 15. In the instant case, correspondence from Dr. Shea acknowledges his first hand observation of the razing and 8 it is s reconstruction. If an abutter or other person knowledgeable of the circumstances were aggrieved by the demolition and construction on the Premises,he or she could have appealed to the Zoning Board of Appeals from the decision of the Building Commissioner to issue the permit(as a person aggrieved . by an order or decision . . . in violation of a zoning provision) [GL. c. 40A, § 8], Elio v Zoning Board of Appeals of Barnstable, 55 Mass. Appeals. Court. 424, 427-428, 771 NE 2"d 199 (2002), cited for that proposition in Gallivan v Zoning Board of Appeals of Wellesley, 71 Mass. Appeals Court 850, 887 NE 2nd 1087 at 854. Here, Dr. Shea acknowledges from his own correspondence provided to the Building Department in the Spring of 2008, that he had first hand, percipient knowledge of the razing and reconstruction which occurred pursuant to permits issued by the Department. The demolition activities clearly put the neighbors, and especially immediate abutters upon notice that orders had issued (or should have issued) from the Building Department. The thirty-day appeal period following issuance of the demolition and building permits has long since expired. Since that is the exclusive avenue of appeal from a party with actual knowledge of the order from which appeal could be taken, I am of the opinion that Dr Shea is foreclosed from seeking enforcement at this late date. While it does appear that the usage of the Premises as a duplex did lapse sometime between 1997 and 2001,the issuance of the demolition and reconstruction permit, followed by a Certificate of Occupancy authorizing duplex use,without a timely appeal bars a subsequent appeal under G.L. c. 40A, § 7, seeking enforcement. I do not feel and am not of the opinion that the"special position"afforded to single and two- family dwellings under GL. c. 40A, § 6 would legitimatize the use of the Premises as two-family, duplex under the history as recited above. As noted, if the historical recitation is inaccurate or if additional facts are provided to substantiate the continued use, then my opinion with respect to that aspect of the matter might change. However absent such clarification or additional information I reiterate the opinion set forth in my June 26, 2008 letter. Thank you for the opportunity to be of assistance in this matter. If you have any questions on the foregoing please give me a call or send me a note and I will respond. Sincerely,. / _ J. 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The property was thus a single structure with two dwelling units and attached garages. I understand that a search of your office records did not disclose a building permit for the breeze way addition and conversion, but this is not an unusual situation as many records from that era are missing or incomplete. The surmise is that the circumstances would have warranted a permit issuing and therefore it probably did issue. Buttressing this conclusion are existing records of a new (additional) domestic water service authorization which was unlikely to have occurred without the then building inspector's knowledge and approval. From 1972 until 2001 a local bank,acting as Trustee,was the nominal owner of the property which was occupied in whole or in part by members of the Coughlin family and their caregivers. It appears that the bank was a relatively passive party to these matters, and that if any rental or residential use of the garage living unit was made, it was by the Coughlin family and not the bank. There are apparently no records presently available and documenting the rental,or even the use of the garage unit. Such history as has been submitted suggests that,at least from sometime in 1997 until Dr. Marasco acquired title in 2001,the garage unit was not supported by any utilities,and ergo was likely unused, or at least unused as a distinct dwelling unit. It appears that the current owner engaged in rental of the garage unit from the time he acquired title in 2001,there being records of rental certificates and septic system upgrade permits supporting that cpnclusion. In March 2006,the owner applied for a demolition and rebuild permit seeking to demolish the existing multi-bay garage and dwelling unit and replace it with a three-bay garage(permissible as of right)and a second floor single family dwelling unit. The predicate for these applications was the allegation and belief that the Premises was a lawful,pre-existing,non-conforming duplex use. Some not inconsiderable investigation was conducted through your office and the Town Attorney to ascertain the non-conforming status,the records of which are in the Building Department file for the Premises. The demolition permit was issucajin March and apparently properly completed,as a building permit issued dated April 19,2006. a/ Thereafter,the owner seems to have proceeded diligently with the work during the Summer and Fall,as a Certificate of Occupancy issued in December 2007. In August or September 2007,Dr. Shea visited the Building Department and reviewed the records pertaining to the premises. Several weeks later he made an appointment with you and you mct with him on September 28,2007. At that meeting you explained the rationale and facts relied oar-GC eewJo seen IIUKYHY !S MURPHY 15087753720 P.04 Mr.James D. Brandolini September 22,2008 Page Three upon to issue the building permit resulting in the demolition and rebuild he had observed about one and one-half years earlier. Under date of November 1, 2007,an abutting landowner, Dr. Richard Shea alleges that he wrote to Richard Bussiere, an officer of the Trustee Bank which handled the Coughlin Trust, the predecessor owner of the Premises. This letter recites Dr. Shea's extensive first-hand,historical knowledge of the Premises at 143 River Street,as well as his observation of"[r]enovation,razing and replacement. . . at 143 River Street . . . .'which had occurred over the last several years,and which had prompted him to visit Town Hall to review the tiles pertinent to the premises. No copy of this letter nor any independent correspondence was directed to you at this time. Dr.Shea appears to have questioned Mr.Bussiere on the use of the premises as a duplex and concluded that the information Mr.Bussiere provided to the Building Commission in 2006 served as the"cornerstone"of the Town's decision to permit a rental apartment at 143 River Street without requiring relief from the ZBA. Apparently,subsequent to that meeting Dr. Shea exchanged several letters with Mr.Bussier seeking to clarify or correct the information the latter had previously provided to you and attorney Creney prior to issuance of the permits in 2006. It was not until the second week of June 2008 that Dr. Shea presented you with the wealth of correspondence between he and Mr.Bussiere,dating from November I,2007 through March 7, 2000,and apparently alleged that the 2006 construction was unlawful. Immediately following your receipt of this material you inquired of me for a legal opinion on the permissible continuation of the duplex, non-conforming use of the premises. In reply I opined, based upon the facts as we then understood them, that the non-conforming use appeared to have lapsed. Having set forth the foregoing I am asking you to confirm or correct the facts as I understand them,and to advise me of any significant events which may have occurred and been overlooked by me or are unknown by me. I believe this case may well be not only fact specific but fact determinative,and for that reason want to be sure I understand the history before offering my further opinion. I believe it may be significant that despite being on actual notice that events were about to take place or were taking place which Dr. Shea now alleges were of questionable legality, he apparently sought not to have the By-law enforced until well after demolition and reconstruction of the property abutting his had been completed. There is no evidence I am aware of which would suggest that the demolition and rebuild was 0cr-e4-4iw le:it MURPHY 8MURPHY 15087753720 P.05 Mr. James D. Brandolini September 22,2008 Page Four done surreptitiously,and it was done pursuant to a permit issued by you,the official duly authorized to do so. It was issued on the basis of facts then known or presented and the owner,apparently in good faith,relied on the permit,prosecuted both the demolition and rebuild in plain sight and with reasonable diligence. If the facts are as I apprehend them above I believe case law supports an equitable defense which,if applicable should preclude an objection at this point from an immediate abutter. Vaath..perhaps less clear even assuming that to be the case, is what use the owner may lawfully make of the Premises. Sincerely, / 4 an/ J. Douglas Murphy — IDM: 's SEP-22-2008 1211 MURPHY & MURPHY 1508775S/2t7 H.141 MURPHY AND MURPHY Counselors At Law 243 South Street P. 0. Box M Hyannis,Massachusetts 02601-1412 telephone: 508-775-3116 facsimile: 508-775-3720 Reply Our File No. 15961 FAX COVERSHF.ET Date: September 22. 2008 PLEASE SEND THE FOLLOWING PAGES TO: ATTENTION: James D. Brandolini LOCATION: Towle of YARMOUTH BUILDING DEPARTMENT FACSIMILE#: 508-398-0836 FROM: J.Douglas Murphy.Esq. RE: 143 River Street S Yarmouth TOTAL NUMBER OF PAGE(S)INCLUDING COVER SHEET: 5 COMMENTS:Please see attached correspondence this date. IF YOU DO NOT RECEIVE ALL THE PAGE(S),PLEASE CONTACT THIS OFFICE AS SOON AS POSSIBLE. Applicable U.S.Treasury Regulations require that we Inform you that any Fedend tax advice contained in this communication(including any attachments)is not Intended or written to be uscd.and cannot be used,fir the purpose of(i)avoiding pervades unda the InternalRevenueCode or(ii)promoting,marketing or recommending In another party any transaction or maths nddretsed herein. a•'CONFIDENTIALITY N(yEIC.B aaa The information and documents transmitted by this facsimile are privileged and contain confidential inlbnnation intended only for theperson(s) named above. Any other distribution,copying or disclosure is strictly prohibited. If you have received this facsimile In error,pima notify us , `.. • •'A RECEIVED J. DOUGLAS MURPHY COUNSELOR AT LAW L. 243 South Street OCT 1 s� 1009 Lock Drawer M Hyannis,Massachusetts 02601-1412 YARMOUTH Telephone:508-775-3116 • Facsimile:508-775-3720 • Email: L"4efzinMrALS Please reply our File Na 15601 2 Eflmf n JUN 2 6 2008 Lliji June 26, 2008 By Mr. James D. Brandolini, Building Commissioner Town of Yarmouth Building Department 1146 Route 28 South Yarmouth, MA 02664 Re: Premises at 143 River Street, South Yarmouth, MA Dear Mr. Brandolini: • Pursuant to your request set forth in a Memorandum dated June 17,2008 with accompanying correspondence between yourself, John Creney, Esq., Mr. Richard Bussiere(Vice President atTD • BankNorth), and Dr. Richard W. Shea, I offer the following opinion. According to the correspondence the premises at 143 River Street are and have been owned by Dr. William Marasco since on or about November of 2001. Prior to that date and for a period estimated to be between 1972 and 2001 the property was held in the Edward L. Coughlin Trust (under Edward's will), with Cape Cod Bank & Trust Company and its successors as Trustee. There seems little question from the tenor and content of the correspondence that the premises enjoyed a duplex status with a primary residence and a secondary apartment until sometime in the mid to later 1990s. It also seems clear from correspondence provided by Richard Bussiere (in particular his letters dated November 16, 2007 and March 7, 2008), that a significant gap arose in any active utilization of the rental unit. Specifically, Mr. Bussiere alleges that "During the 90's, . . . it had not been occupied for some years.• - Furthermore,Mr. Bussiere states that in 1997 he shut down the utilitiesto the apartment. He also stated that the Trustee did not anticipate using the apartment in the future. ••:.e' •-•(•. .4 The clear implication of Mr. Bussiere's language is that a three to four year gap arose between sometime in 1997 and 2001 when Dr. Marasco acquired the property. Under prior Massachusetts law it may have been possible for a land owner to establish that, notwithstanding a lapse of two or more years in actual usage there was never any intent to abandon a non-conforming use, and thus no abandonment arose. However under current law an intent to abandon and evidence thereof is simply one means of establishing the termination of a non-conforming use. Alternatively, under the statute and local Bylaw,after a two-year period without exercise of the use(at least absent some coercive factor which might afford some equitable relief), the lawfulness of a non-conforming use ceases. rErgo, I am of the opinion that under the facts described in the correspondence, and the reasonable inferences to be drawn from them, any lawful,pre-existing, non-conforming use of the premises at 143 River Street lapsed and terminated prior to November of 2001 and quite likely sometime in 1999; My opinion is of course predicated upon the information provided. Should subsequent facts come to light establishing that there was no two-year lapse in active use this opinion might then be rendered moot. Please give me a call if you have any questions. In the interim thank you for the opportunity to he of service. c?n%tuc rely. 42,4, J. Douglas Murphy JDM:kjs pi TOWN OF YARMOUTH �� 1141 BUILDING DEPARTMENT o 1146 Route 28,South Yarmouth,MA 02664 s'�, 508-398-2231 ext. 261 Fax 508-398-0836 FILE COPY RECEIVED July 21, 2008 OCT 1 5 2009 Dr. William Marasco YARMOUTH 143 River Street BOARD OF APPEALS South Yarmouth, Ma 02664 Re: 143 River Street Apartment Dear Dr. Marasco: As per our phone discussion of today, enclosed please find copies of the following: - Dr. Richard W. Shea's letters dated November 1, 2007, December 11, 2007 and February 28, 2008, - Mr. Bussiere's letters of November 16, 2007, January 2, 2008 and March 7, 2008 - My memo of June 17, 2008 to Attorney J. Douglas Murphy - Attorney Murphy's letter of June 26, 2008 Based on Attorney Murphy's legal opinion,the issue of abandonment is a matter that has to be revisited and in the final analysis,it appears a variance from the Zoning Board of Appeals is required. You may also seek to appeal this finding pursuant to the provisions of MGL Chapter 40A, Section 8 and 15. Please review the enclosed information and provide your response. Very truly, CCR1 JtraBrandolini, C.B.O. Building Commissioner BOAR OF YARMOUTH t O [DV BOARD OF APPEALS V Filed with Town Clerk:NQV 6 1967 Hearing Date: 10/19/67 - Petitioner: 0/19/67 .Petitioner: Mrs. Dorothy Farrar Petition: i/871 • DECISION The petitioner requested a review of the Building Inspector to grant a permit and a variance from requirements of Yarmouth Zoning by-law to permit utilization of 1 bay of existing 3-bay garage for sleeping quarters and to remodel garage for this purpose. Shen on assessor's map //291943. Members of the Board present: Harold Hayes, Walter Anderson, Howard Spurr, annual DiTiberio,. Albert Webb. It appearing that notice of said hearing has been given by sending notice thereof to the petitioner and all those owners of property deemed by the Board to be affected thereby and that public notice of such hearing having been given by publication in the Cape Cod Standard Times on 10/5/67 and 10/13/67, the hearing was opened and held on the date first above written. The follgwing appeardd in favor of the petition: Attorney Joseph Reardon The following feared in oppostion: Mrs. Rusted, Mrs. Phillips, by letter. Reason for decision: It appeared at the hearing that the petitioner owned property in South Yarmouth lying to the east of South Street and between Bass River and a section known as the Bass River Parkway area. The property is shown on the assessors records on sheet #29. It_ appears that the zoning law allows duplex houses in this area, and the Board, following the presentation of the petitioner dbtermined that the request was in fact for a second dwelling on a single lot. It sppeared that the lot was not substantially different from the rest of the lots in the subdivision. It also appeared following consideration by the Board that were this request allowed that the intent and purpose of the zoning by-law would be derogated from, The Board considered at length whether or not the public good would be adversely affected by the granting of this request and after a lengthy deliberation was of the opinion that the public good would be adversely affected. The Board considered the fact that this was in one of the prime residential sections of the Town of Yarmouth and that there were no special conditions that affected this parcel that lid not affect many other parcels in the immediate area. therefore, the Board felt that here this granted, there were others in the area who could request the same consideration and any deviation from the requirement for one dwelling in :his area the Board finds would be contrary to the by-law and would adversely affect the public good. !eters of the Board voting: Harold Hayes, Jr., Walter Anderson, Howard Spurr, )manual )iTiberio, Albert Webb. All voted to deny. !hereon, the appeal for approval is denied. Albert Webb . Acting Clerk • 1 Oi.YARA Bk 18921 Ps145 63407 ^ W ' .=^ 08-10-2004 8 12:21n Giga; y TOWN OF YARMOUTH Cj H BOARD OF APPEALS m Y�; 'i`'� ''' $.4 DECISION i�• 104 A 20 Pig 2: ;Asp . FILED WITH TOWN CLERK: July 20,2004 REGi_i V'E[) PETITION NO. #3908 HEARING DATE: July 8,2004 PETITIONER: William Marasco PROPERTY: 143 River Street,South Yarmouth Assessors Map&Lot:34.282(29/W3) Zoning District:RS40 MEMBERS PRESENT AND VOTING:David Reid,Chairman,Sean Igoe,John Richards, Diane Mondourts,and Forrest White. It appearing that notice of said hearing has been given by sending notice thereof to the petitioner and all those owners of property deemed by the Board to be affected thereby, and to the public by posting notice of the hearing and published in The Register,the hearing was opened and held on the date stated above. _.. The applicant seeks a Special Permit in order to be allowed to construct an addition to an existing single family home. The property is in the RS40 zone and the lot contains 24,275 square fret and is therefore non-conforming. In addition,the existing garage is located 28' from one of the lots three(3)street fronts. The proposed addition is shown on the petitioners certified plot plan, dated June 16, 2004, and filed with the Board. At the area where the addition will be placed,the corner of the house is located 30' from the lot line. The addition will extend the building to within 28' of the lot line. However,the petitioner explains that this is due to the fact that the house is angled within the lot, not square to the lot lines. In addition, while this is physically the side of the house, it is technically a front line. The addition will extend an existing bathroom and add a closet but will not increase the number of bedrooms or overall occupancy of the home. The addition will remain within the existing building height. No neighbors will be adversely impacted by this modest addition. The Board finds that the proposed addition will not be substantially more detrimental to the neighborhood then the existing single family home. Therefore,a motion was made by Mr. Igoe, seconded by Mrs. Moudouris, to grant the Special Permit for the addition,as represented and as requested. The members voted unanimously in favor of the motion. 1 l� • • ti t hof R TOWN OF YARMOUTI�ARMOUTH o . - A 511 BOARD OF APPEALU Ct..ERK 'rDECISION "`��� i'".R 23 Fil 3: 40 rS` FILED WITH TOWN CLERK: March 23, 2006 R E' f L i PETITION NO. #4023 HEARING DATE: March 9,2006 PETITIONER William Marasco PROPERTY: 143 River Street,South Yarmouth Map and Parcel: 34.282 Zoning District: RS40 MEMBERS PRESENT AND VOTING: David S. Reid, Chairman, John Richards, Joseph Sarnosky,Sean Igoe, Diane Moudouris,and Forrest White,Alternate. It appearing that notice of said hearing has been given by sending notice thereof to the petitioner and all those owners of property deemed by the Board to be affected thereby, and to the public by posting notice of the hearing and published in The Register,the hearing was opened and held on the date stated above. The petitioner seeks a Special Permit or Variance,in order to be allowed to reconstruct and enlarge an existing non-conforming garage building containing an accessory apartment. The property is in the RS40 zone,and the lot contains approximately one half of an acre. Prior to the commencement of the hearing, the board received from the petitioner a request to withdraw the application,based upon additional information that had been provided to the Building Commissioner. A motion was made by Mr.Richards, seconded by Mr. Sarnosky,to allow the petition to be withdrawn without prejudice,as requested. The members voted unanimously in favor of the motion. aa ;i;9) David S. Reid, Clerk 1 • °t.1r444,4_ TOWN OF YARMOUTH o �' y BOARD OF APPEALS YARMOUTH Y.16 �,� ,� TC� .� IERK .• ""/ Fu 13 Pf 3: 5I ,� APPLICATION FOR HEARING' n Appeal#: 4023 Hearing Date: 3191x6 R EC `3( EaSs0 Owner-Applicant: (N.\L / 1fl43'4-'J ri1Av AS c Fall N dins d/b/a) (� C7 p IYZ 2�,,,, It so . y, ou sods _ �� SL (Address) (zip) (Telephone Number) and is the (check one) Owner ❑ Tenant 0 Prospective Buyer ❑ Other Interested Party Property: This application relates to the property located at: 14 2 P-4114" J S agshown on the Assessor's Map#: 3'f as Parcel#: 2-? t Zoning District:R R3property is on an un-constructed (paper) street name of nearest cross street, or other identifying location: Project: The applicant seeks permission to undertake the following construction/use/activity (give a brief description of the project. i.e.: "add a 10'by 15'deck to the front of our house" or "change the use of the existing building on the property"): ADD An„ ?a a 1', Fcs .}r Pie - Com #40•Taw {- . g416 •► ter 4w- rot +- itr A re•A • RELIEF REQUESTED: The applicant seeks the following relief from the Board of Appeals: 1) REVERSE THE DECISION OF THE BUILDING INSPECTOR OR THE ZONING ADMINISTRATOR dated (attach a copy of the decision appealed from). State the reason for reversal and the ruling which you request the Board to make. 93 2)✓SPECIAL PERMIT under §/05‘, 3 2 P of the Yarmouth Zoning By-law and/or for / a use authorized upon Special Permit in the "Use Regulation Schedule" §202.5 .(use space below if needed) 3)/VARIANCE from the Yarmouth Zoning By-law. Specify all sections of the by-law from which relief is requested,yand, as to each section, specify the relief sought: Section: 20.2.6 't/ Relief sought: -Z .a Section: Relief sought: Section: Relief sought: ADDITIONAL INFORMATION: Please use the space below to provide any additional infornatlp h you ceell sshhould be included3 your a'p �adon: t ()ace Jce n.• Ra-lel} 24 C 044 Lola . ` - «.. YARMOUTH f-- • RK PROgFiEkk3ritiEla SET 12-8-05 t1• : 2 • r'�rIVED i=L: 111111111I911OII,UIIIII11I11IUIiiiIU11IlI111II1•11W/IIIII•IIIIIUII111U111.IIIII T 1111... III �IIC1111E'U' ' 111 sil111 111 Ill —In CV _I NMI IlA(1111M� III LIIIu1111 111111 II11 = III III! 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V U gp .' 1ST`, `m, 'D - e - . \ - —Y O 19 IMmila:Nana rn V3 M rn rn M GI rn N 1 O ' LINEAL CONSTRUCTOON MC. [Bass River Parkway W � po box 1737 8AZWS1E7i.MA 02631 308 306 3111 i" �. _ 3aat 18 ne =11 �l_, rii: ea I r ave • 1 1 ' 1 i � I r 1 4 .'"'''‘I\I L r • 11111 11 Iv 1111 I 111 111 li'_• I O 33 • 11 I 1111 � 1 _ q G 4 X m Cn Cnm 21 Z GI N M -L N I Cb I O CM d LINEAL CONSTRUCTION ONC. Bass River Parkway N pa bet 1737 BRE77S7EN• ,NA .. 02531 505 385 3114 a R f••/- . •, r;: x- �•- «7( au--.o Hill JtJHIY LNtNtY 15083621125 P.01/01 4 • v .\ TELECOPY COVER SHEET ` r John C. Creney, P.C. 4 " OP Attorney at Law 86 Willow Street Yarmouth Port,Massachusetts 02675 if there Is a problem with transmission or if all pages are not received,please call 508.362-1122 for retransmission. Fax 508-362-1125 TO:James D. Brandolini FAX ti: 508 398-0836 COMPANY: Town of Yannouth FROM: John C. Creney DATE: February 09,2006 RE:Town of Yarmouth with Marasco Number of pages including this cover page: 1 This message is intended only for the use of the Individual or entity to which it is addressed,and may contain information lhw h PRIVILEOFD. CONFIUI NfIA,. and exempt nom disclosure under applicable law. If the nada of this massage is not the intended recipient, or the employee or agent reaponsibk for delivering the message to the intended recipient, you arc hereby rained diet any dissemination, distribution or copying of this communication Is strictly prohibited. If you have received this communication in error.please natty us Immediately by telephone,and return the original to its by mail without making■copy. Iltank you. Comments: With respect to Olson v. Board of Appeals of Attleboro, I have checked later cases. Olson has not been reversed and appears to still be • good law. The width of the breezeway in that case was six feet, and the Court said that the house, breezeway and garage were designed to produce a unified architectural effect. The width of the breezeway at the Marasco house is about thirty feet. Not having seen the breezeway, I'll leave it to you as to whether the Marasco breezeway is designed to produce a unified architectural effect. I suppose that we now contemplate that the applicant could assert that the proposed structure is neither an accessory building (too large in area), nor an addition to a lawfully existing two family dwelling (can't show lawful existence of two family dwelling), but rather that the proposed structure is an addition to a lawfully existing single family dwelling, defined as in Olson. If you gave the applicant the benefit of the doubt on the unified architectural effect of the thirty foot long breezeway, then it could be justified. t.... 7. t. S.,.. „ .. ...., n, , , .,.w a� r%LtI 1JYJO.3Oe11 4.; r.mid em. l a . . . TELECOPY COVER SHEET fO/� John C. Creney, P.C. Attorney at Law 86 Willow Street Yarmouth Port, Massachusetts 02675 If there is a problem with transmission or if all pages are not received,please call 508.3624122 for retransmission. Fax 508-362-1125 TO: James D. Drandolini • FAX#: 508 398-0836 COMPANY: Town of Yarmouth FROM:John C.Creney' DATE: February 09,2006 RE: Town of Yarmouth with Marasco Number of pages including this cover page: 1 This message is intended only for the use of the individual or entity to which It Is addressed.and may contain Intonation that is PRIVILEGED, CONFIDENTIAL and exempt from disclosure under applicable law, If the reader of this message is not the intended recipient, or the employee or agent responsible foe delivering the message to the intended recipient,you are hereby notified that any disceminalitm, distribution or copying of this communication is strictly prohibited. if you have received this communication In error,please notify is immediately by wlephtme,and return the origind kr us by mail without making a copy. 'Thank you. • Comments:If, instead of this proposed structure being an accessory building (a garage), it is asserted that the proposed structure will be an addition to a • • lawfully preexisting nonconforming two family residence on a nonconforming lot, then it would seem that in order to take advantage of paragraph 1 of section 104.3.2, the applicant has the burden of showing to you that the existing structure is (i) lawfully preexisting; and (ii) a two family residence. We are met again with the 1967 denial by the Board of Appeals of the request for an apartment in the then existing garage, which goes to the "lawfully preexisting" issue; the 1997 termination of the water service, from which one could infer an abandonment of any then illegally existing second dwelling unit; and the effect, if any, of the fact that the canopy, connecting the main house with the existing garage, has no walls. Maybe the lack of walls is of no significance. I don't know. But the documents show the earmarks of an abandoned illegally created dwelling unit in a garage. If the applicant can convince you that the existing house and existing garage constitutes a lawfully preexisting two family residence, fine. However, it bob as if he has a large burden to so convince you. Tf1T0t P e11 s - LEXSEE 324 MASS 57 Robert V.Olson&another v.Zoning Board of Appeal of Attleboro [NO NUMBER iN ORIGINAL] Supreme Judicial Court of Massachusetts 324 Mass.57;84 N.E.2d 544; 1949 Mass.LEXIS 556;7 A.L.R.2d 591 October 25,1948,Argued March 8,1949,Decided PRIOR HISTORY: (•"•1) Bill in equity, filed in the Superior Court on Febru- Briswl, ary 18, 1947. The suit was heard by Goldberg,L HEADNOTES: Zoning. Attleboro. Badding. Real Property, Build- JUDGES: ing. Equity Pleading and Practice, Decree, Zoning ap- Qua, CJ., Lummus, Ronan, Wilkins, & Williams, peal. IJ. SYLLABUS: OPINIONBY: • A garage, physically attached to a dwelling house WILLIAMS and having under its roof and within its walls,adjacent to the house, a paved "breezeway" with open archways at OPINION: the front and back and doors at the sides opening Into the [.58) ("544] This a bill in equity by way of ap- house and the garage proper,was not a separate "accp - from the decision of the zoning board of appeal of • say building," but was a component pert of the house the city of Attleboro brought under the provisions of§ and formed therewith one building,within a provision of 30, inserted in U.L.(Ter.Ed.)c.40, by St 1933,e.269, the zoning ordinance of Attleboro requiring certain side yards in connection with "every building or structure § 1, as amended by St 135,dec a 388, and St 1941, c. (other than an accessory building . . .)" in a residential 198, § § 1,2,toec annul the tor n of said board of ap- diatrict peal and to direct the inspect r of buildings to issue to the plaintiffi a permit for an addition to their garage at 33 in a suit in equity brought under O.L.(Ter.Ed.)c.40, § Ashton Road in said city. The plaintiffs [x•345] have 30,as appearing in 5t 1933, c.269, § 1,by way of ap" appealed from a decree entered by a judge of the Supe- peal from a decision by a zoning board of appeals,where Aar Court the decision of the board was within its Jurisdiction and From the evidence,which is reported and essentially was correct on the merits, the decree of the Superior is not in dispute, it appears that the plaintiffs are the Court, besides providing that the decision was within the owners of a lot of land with a single family dwelling and Jurisdiction of the board [•••2) and should not be an" thereon located in a "single residence disnict" as nulled and that the clerk send certain attested copies of dfiinetby [ 2 of the zoning ordinance of the city of the decree, should have provided that "no modification Attleboro [w•+3] which became effective on February or the decision"is required." 10, 1942. The house, containing seven rooms, is of wooden'construction, Dutch colonial type, is thirty-five COUNSEL: feet wide on its front or street side,and has a depth from J. W.McIntyre,for the plaintiff front to back of twenty-five feet.As one faces it from the street there is a covered porch or piazza on the end of the No argument nor brief for the defendant house to the left and a one-car garage not over one and ASA"a. -•- ---. — * - - Page 2 324 Mass.57,';84 N.E2d 544,'*; 1949 Mass.LEXIS 556,"';7 A.L.R.2d 591 one half stories In height on the end to the right. The and riled that the plaintiffs were not entitled to a permit house, both on the front ander a rear,as well as the as a matter of right, and entered a decree "that the deci- garage�orate front, has a double pitched or gam el sion of the zoning board of appeal of the city of Attie- roof. Tie roofs are of similar design, except that, in the born . . . was within the jurisdiction of the said zoning rear, the garage roofas a s a The garage rf" board of appeal;that the said [*60] decision should not physi oned or"fastened" to theluousa The garage be, and it Is not, annulled; and that the clerk of the court is somewhat lower than the house, which Is built upon a within thirty days of the entry of this decree send an at- terrace, and thegoof adjoins the house slightly tested copy thereof to the zoning board of appeal of the below the level of 1nnals second story windows.Be- city of Attleboro and['•*6] to the inspector of buildings tweed ht a onlinetin the of the city of Attleboro." In our pinion the garage, so too acrd walls of the lana U an Brea s eat in width called breezeway and house constitute one building. We anise-'feet in denth nave�w flagstones.At the lett aft atdErtn reaching this conclusion by a photograph a door leads from this area down a few steps into the which is in evidence. Certain! than were designed to basement of the house and at the right a door opens into produce a unified architectural effect T sttsg$f edgy ('59] the garage. The area '*'4) has two open arch- exists in the case of bay windows, dormer windows and ways, front and beck;each den feet in wi&Entering piazzas which, although not within the walls nor under the front archway one passes through this archway,over the roof of the house, usually [•'546] are considered the paved ares, out through the rear archway and along a extensions of and constituent parts of the house itself pathway to the kitchen door at the back of the house. See Sanborn v.Rice, 129 Mass.387;Bagnall v.Davies, This area,so described,was termed a"breezew "In the 140 Mass. 76, 2 N.E. 786; Payson v. Bromham, 141 testimony. The plaintith' garage as present orated is Mass. 547, 6 N.E. 708; Loud v. Pendergast, 206 Mass. four feet from the right side line of their lot. They desire 122, 92 N.E.40.The decision in H. Jr.Robinson Carpet to extend the right side of the garage three feet farther to Co. v. Fletcher, 315 Mass. 350, 353, 52 N.E.2d 681, the right, which would bring the side wall of the garage where it was held that buildings on opposite sides of a as so extended to a distance one foot from the side line of driveway connected by an overhead passageway were the lot. A petition filed by the plaintiffs with the inspee- separate buildings, depended on the consmtctionof a tor of buildings fora permit to make such extension was lease and is nota precedent in the present case. The rul- denied by the inspector as a matter of law, and on appeal ing of the judge was right the zoning board of appeal sustained the decision of the In the decision of the board of appeal after findings inspector. Section 14 of the zoning ordinance provides, of fact it was stated, "application [for the permit] is "There shall be provided on each side of every building hereby [*••7] dented and dismissed." The judge int the or structure (other than an accessory building not over one and one-half(1 1/2)stories in height and not used for dea entered by his order adjudged that such denial and habitation) hereafter erected or placed upon any lot in a dismissal were within the jurisdiction of the board of • resident district,a side yard not less than fifteen(15)feet appeal and,thereforeIts decision should not be annulled in width*" Section 9, paragraph ['*'S] e, of the same The refine! to annul, being based on jurisdictional ordinance provides that the inspector of buildings, on grounds (see Clap v. Mnntclpal Council of Attleboro, whom is imposed the duty of executing the provisions of 310 Mass.605,39 N E 2d 431),only amounted to a find- the ordinance,"shall net issue any permit...for the con in&in the language of the statute,that the decision of the struction, . . . alteration, enlargement, [or] extension . . . board of appeal did not "exceed the authority of such of any building or structure which would be in violation board." To dispose of the merits of the Issues raised by of any of the provisions of this ordinance." ammo the plaintiffs'bill the words "and that no modification of it is is not an "accessory building"but is a component part of See fiber v. Board ofired.should be f A peals of Lowafter the e l 295 Mass. the horse, un a said 14 such extension o 8 224, 228, 3 N.E.2d 784. As so modified the decree is would be a violation of the ordinance.It u the contention affirmed with costs. of the plamtr"lfs that the horse,breezeway and garage do not constitute one building but that the garage is a sops- So ordered rate building accessory to the house. The Judge found • ' o1•YARTOWN OF YARMOUTH Fr4--)It% BUILDING DEPARTMEN E c E � E p 1146 Route 28, South Yarmouth, MA 026 ey 508-398-2231 ext. 261 Fax 508-398-083 v MAR 2006 BOARDD OFOAF'EA Ls MEMORANDUM TO: Zoning Board of Appeals FROM: . James D. Brandolini, Building Commissioner DATE: March 7,2006 SUBJECT: 143 River Street Petition 4023 Attached please find a copy of Attorney Creney's latest transmittal dated March 6,2006. Based on information provide him it is his opinion that the use of the unit in question was not discontinued and therefore relief from the Board is not necessary in so far as the use is concerned Secondly, the proposed reconstruction of this unit will comply with the provisions of zoning bylaw Section 104.3.2 (1) and therefore may be performed without relief. cc: Dr. William Marasco ' MAR-96-2966 15:57 Am JUAN CRENEY 15Gts21125 P.01 ✓ , • • TELECOPY COVER SHEET John C. Creney, P.C. Attorney at Law 86 Willow Street Yarmouth Port,Massachusetts 02675 If there is a problem with transmission or if alt pages are not received,please call 508-362.1122 for retransmission. Fax 508-362-1125 TO: James D.Brandolini FAX#: 508 398-0836 COMPANY:Town of Yarmouth FROM: John C. Creney DATE: March 06,2006 RE: Town of Yarmouth with Marasco Number of pages including this cover page: 2 This message is Intended only for the use of the Individual a entity to which h Is nddrcssed.mut may contain information that is PRIVILLOEI). C(NJFIDENfIAI. and exempt ?TM disclusum under applicable law. If the reader of this message is not the Intended recipient a the employee or agent responsible for delivering the message to the intended re:ipznl, you are hereby notified that any dnsenina ion•distributixn or espying of this communication is strictly prohibited. If you have received this communication M error.please notify us immediately by telephone.and return the original to us by mail without making a copy. Think you. Comments: • • • Our series of correspondence on the matter of the continuation of a nonconforming use as a duplex of the premises at 143 River Street has led us • to the question of whether the second dwelling unit was not used for any period of time exceeding two years prior to the time when the current owner, Dr. Marasco, took title in 2001. This duplex was constructed in 1967, and became nonconforming in 1971 when the minimum area requirement for duplexes was increased. In view of the fact that the Board of Health has issued rental certificates to Dr.Marasco and the septic system has been upgraded,there appears to be no question that the second dwelling unit has been used since Dr. Marasco took title. Had the unit not been used for a period of two years or more, then under section 104.3.1 of the zoning bylaw, then the nonconforming use of the premises would have been lost and the premises would have reverted to the conforming use of a single family dwelling. Your most recent correspondence includes a letter from Richard Bussiere,'a trust officer of TD Banknorth, which was the trustee holding title to the property from the death of Edward Coughlin in 1972 until the - 1557 ATTY JOHN CRENEY 15083621125 P.02 conveyance to the current owner, Dr. William Marasco, in November of 2001. In that letter, Mr. Bussiere states that the unit In question was rented in the 1980's, and was used by Coughlin family members and by members of the families of the caregivers of the Coughlin family in the 1990's,until the sale to Dr. Marasco in 2001. Taking that letter at face value as fact,then it appears that the use of the unit was not discontinued; that section 104.3.1 of the zoning bylaw is not applicable; and that the preexisting nonconforming use as a duplex may lawfully continue without any necessary relief from the Board of Appeals. ite TOWN OF YARMOUTH g Board of 1146 ROUTE 28, SOUTH YARMOUTH MASSACHUSETTS 02664-2445.E Appeals Telephone(508)398-2231 Ext. 285,Fax(508)398-0836 �' AGREEMENT FOR EXTENSION The Petitioner understands and agrees: _That the public hearing will not be held within 65 days of the filing of this Application,or That the Board will not take "final action" on the request for a Special Permit within 90 days of the conclusion of the public hearing; ✓ That the decision of the Board on an Appeal or Variance request will not be made within 100 days of the filing of the application. Further, the petitioner agrees with the Board to extend the time frames within which the hearing, re-hearing or continuance are to he held and the decision(s) are to be made and filed by the Yarmouth Board of Appeals, and to waive any rights to the Constructive Grant of this petition, provided that the Board does act within the time frame of this agreement. It is therefore agreed that the Hearing shall be held/continued on .0 //2-61/Q , and that the Board's decision shall be made and filed with the Town Clerk within 14 days of the conclusion of that public hearing. Applicant/Petitioner' l'. Urn. LAO, raSe0 Petition# - 4Zb. Application Pilin! date: S I(3//1 p9 Initial Hearing Date : L21(Oki sC� Date: /Df•A ar—'.ner or Age . Petitioner • Date: /1.710^D / Board of Appeals Date Filed with Town 1 2.1111 39 H:\MyFiles\Documentsspplication\Hearing Extensio `. post-ir Fax Note 7671 int)0 pages► 'a • From A... •. ,I • % .p. Co ./Do. Pyony./t 39a 2231 X Phon a - A rat Fax* M L Fax# Confirmation Report — Memory Send Date & Time: 12-11-2009 10:00 Tel line . Machine ID : Job number : 004 Date & Time : 12-11 10:00 To : 17813832734 Number of pages : 001 Start time : 12-11 10:00 End time : 12-11 10:00 Pages sent : 001 Status : ON Job number : 004 *** SEND SUCCESSFUL *** orta TO WN OF 'y- & a rOUTH C A award or I I46 ROUTE 28. SOUTH YARMOUTH,MASSACEIUSETTS 02664-244'51 assels Telephone(308)398-2231 Ext. 253,Fax(5:)8)398-0836 AOREEMENI-FOR.EX-FENS]ON The Petitioner understands and agrees: 7.3 . ' That the public hearing will not be held within 65 days of The filing of this Application.or That the Board will not take "final action" on the request for a Special Permit within 90 days of the conclusion of the public hearing; v••••• That the decision of the Board on an Appeal or Variance i equest will not be made within 100 days of the tiling of the application. Further, the petitioner agrees with the Hoard to extend the time frames within which the hearing, re-hearing or continuance are to he held and the decislolt(s) are to be made and filed by the Yarmouth Board of Appeals, and to waive any rights to the Constructive Cram of this petition, provided that the Board does act within the time frame of this agreement. It is therefore agreed that the Hearing shall be held/continued on 14e3 f/2 S// n . and that the Board's decision shall be made and flied with the Town Clerk v.ithin 14 days of the conclusion of that public hearing. Applicant/PetitionerThr• 1J.) Vika.vtt• • t a. t-w '5 C's") _Petition# - H 2-4s Sc Application Ellin- date: aim!09 Initial Henri ng Date : t I tO Ioq Bate: �'s"�l 's"--ttrer or A-_ 'etitioner eCal ala Cie Date: / >.�fO Board of Appeals Date Filed with Town - . i 2/itI n4 . . .- --... 0-1pMypllancharampntnAFplluation\H.urin8 E,.t.nlle Past-its Fax Note 7,rrt a+4i 1O i :p.� t9['.- .;.!„' r 0_ ' I(�— a- B o:At_ Zao.-+ 'Asst. 44A ZZ 3% 2t pl•w^ La Ycr...-sS Fan• -a 5 Fe.. L tte\ TOWN OF YARMOUTH �� 1146 ROUTE 28, SOUTH YARMOUTH, MASSACHUSETTS 02664-24451 Appeals Telephone(508)398-2231 Ext.285, Fax(508)398-0836 Board of AGREEMENT FOR EXTENSION Ri 4 The Petitioner understands and agrees: b That the public hearing will not be held within 65 days of the filing of this Application,...or , — N That the Board will not take "final action" on the request for a Special Permit within 90 days of the conclusion of the public hearing; ✓ That the decision of the Board on an Appeal or Variance request will not be made within 100 days of the filing of the application. Further, the petitioner agrees with the Board to extend the time frames within which the hearing, re-hearing or continuance are to he held and the decision(s) are to be made and filed by the Yarmouth Board of Appeals, and to waive any rights to the Constructive Grant of this petition, provided that the Board does act within the time frame of this agreement. It is therefore agreed that the Hearing shall be held/continued on .0 //zebu , and that the Board's decision shall be made and filed with the Town Clerk within 14 days of the conclusion of that public hearing. - Applicant/PetitionerT'. Wyn. (AA ra 5cLO Petition# - 4 2_ , Application filin! date: $I l3/I 09 Initial Hearing Date : tZ(LOW/ -/ l ./C7 7 „ Date: /b'/��A 'e/•ner or Age sr Petitioner • Date: / Z--forpg Board of Appeals / Date Filed with Towns 24t t L 09 H:\MyFiles\Documents\Application\Hearing Extension Agreement.wpd I 1 N a y, N M ; > o 1' _ la 0< 0. r1Oi W ,. ?0 W o a W4 a �� 4 C umi / o ♦ / t o to i1� lr— /7D. 9/V A _ f 1 ��. 31. PRvEA�,�t�caiia�ca C�� i �► ��—I X R or i `, LI N Dare - i &. - - N -J� L� L _ __ 1 } _ opain 7 ja y t 1 ' rum a.+9R,ysE Q oto I Pi 3E--��� ,• / - i`. I 11) As- L 'I `� — — 3_ L SD J/ 0% ' Et kl cl. 1 ) r 6-° of ��� 25Fv 275 4; 44 �j P. >3,83 ' 0 r N h I - --- Papa 33 +. (Pi Faorr. lo\ m Moot K. k Un. . •L!/R/srenwsztAbvls/Q H. ST+¢,1KE ,, o y a TOWN OF YARMOUTH t „ Board of 1146 ROUTE 28, SOUTH YARMOUTH, MASSACHUSETTS 02664-24451 Appeals Telephone(508)398-2231 Ext. 285,Fax(508)398-0836 AGREEMENT FOR EXTENSION ITl n =< The Petitioner understands and agrees: C.) w r {� J_ That the public hearing will not be held within 65 days of the filing of this A'plicatidn,or ' That the Board will not take "final action" on the request for a Special Permit within 9U'7 days of the conclusion of the public hearing; That the decision of the Board on an Appeal or Variance request will not be made within 100 days of the filing of the application: Further, the petitioner agrees with the Board to extend the time frames within which the hearing, re-hearing or continuance are to he held and the decision(s) are to be made and filed by the Yarmouth Board of Appeals, and to waive any rights to the Constructive Grant of this petition, provided that the Board does act within the time frame of this agreement. It is therefore agreed that the Hearing shall be held/continued on —be_ lOt 2OO`j' , and that the Board's decision shall be made and filed with the Town Clerk within 14 days of the conclusion of that public hearing. Applicant/Petitioner LA V t i a m rn fl c ft's C O Petition# 4 Z to Application filing date: 31D 7 Initial Hearing Date : /°IL z I A°/ " Date: /4 /94 5 Petitioner or A! nor Petitioner Date: R° 19/0 Board of Appeals Date Filed with Town Clerk: /0/I 9/el • H:\MyFiles\Documents\Application\Hearing Extension Agreement.wpd ,p 4 r • J. DOUGLAS MURPHY COUNSELOR AT LAW 243 South Street Lock Drawer M Hyannis,Massachuseta 02601-1412 Telephone:508-775-3116 • Facsimile:508-715-3720 • Email; d J .murphytraizmr.net Please reply our File No. 15961 RECEIVED July 22,2008 OCT 1 5 2009 Mr. James Brandolini, YARMOUTH Building Commissioner BOARD OF APPEALS Town of Yarmouth 1146 Route 28 South Yarmouth,MA 02664 Re: Premises at 143 River Street, South Yarmouth,MA Dear Mr. Brandolini: With regard to the above referenced matter,I forwarded you a letter under date of June 26, 2008 setting forth my opinion,based upon the available information,with regard to the use of the Premises for duplex purposes. Upon further reflection,I believe it might be of some benefit if I were to elaborate somewhat on that earlier opinion letter. In particular,I would like you to be aware of the basis upon which I feel case law in the Commonwealth which might formerly have provided a more benevolent interpretation of the statute and by-law,now precludes the owner from maintaining what appears to have been a previously lawful,pre-existing,non-conforming use. I note for reference that Section 104.3.1 of the current Yarmouth Zoning By-Law states: "A. Abandonment. A non-conforming use which has been abandoned or discontinued for a period of two(2)years or more shall not be re-established,and any future use shall conform with the By-Law." i have taken it as a given that the information set forth in Attorney John Creney's facsimile to you dated March 6,2006 was and continues to accurately describe the history of the Premises,i.e. this duplex property became non-conforming in 1971 when the minimum lot size for duplex use was increased under the By-Law. I also assume that the revision to the By-Law(and any subsequent revisions)were lawfully adopted. There is case law,notably Derby Refininz Company v Chelsea,407 Mass. 703 (1990)and Cape Resort Hotels. Inc. v Alcoholic licensing Board of Falmouth, 385 Mass. 205 (1982)which have arguably presented judicial precedent requiring some affirmative declaration or event confirming intention,rather than mere passive non-user,to terminate a lawful,pre-existing,non- conforming use. ' Mr.James Bnmdolini July 22, 2008 Page Two In Derby,the Court noted that: "To constitute an abandonment, the discontinuance of a non-conforming use must result from 'the concurrence of two factors, (I)the intent to abandon and(2)voluntary conduct whether affirmative or negative, which carries the implication of abandonment'. [Case cited]. Derby at 708. A reasonably succinct,and I believe accurate reviewofprior law,a similar By-Law provision and a statement of what I believe is the current consensus may be found in the Supreme Judicial Court's Opinion in the matter of Ka-Hur Enterprises. Inc. v Zoning Board of Appeals of Pmvincetowq,424 Mass.404(1997)("JCa-Hw- SJC"). In the Ka-Hur - SJC case, the Supreme Judicial Court reviewed some of its own and the Appeals Courts earlier decisions on the matter of abandonment or discontinuance and cited favorably the Appeals Court's earlier opinion in Ka-Hur Enterprises. Inc. v Zoning Board of Appeals of Provincetown, 40 Mass. Appeal Court 71, (1996) ("Ka-Har- App") which recapped matters as follows: "Prior to the passage of the Zoning Act in 1975, the word 'discontinued' in Zoning Ordinances and By-Laws was interpreted to be the legal equivalent of'abandoned'. [Case cited]. In Bartlett v Board of Appeals of Lakeville,23 Mass.Appeal.Court.664, 669 [505 N.E. 2s 193](1987),however,we rejected the notion that the phrase'not used for a period of two (2) years or more' in §6 was the legal equivalent of abandonment requiring a voluntary and intentional relinquishment of the use. In that case, we concluded that a municipality now has two choices for terminating non-cenfornting uses one being abandonment and the other a simple cessation of a non-conforming use for a period of at least two years", (Emphasis added).Ka-Hur-App, 73. In adding its own imprimatur,the Supreme Judicial Court concluded: "Thus, our statement in Derby Refining should not be read to require an abandonment in order to extinguish a non-conforming use,but rather as a reaffirmation that abandonment is simply one of the two ways in which a non-conforming use can be extinguished." Ka-Hur -SIC,407. Thus,while there may have been a period of time during which the Derby and Cape Resort cases successfully fostered a belief that some affirmative intention to abandon (or some demonstration of intention not to abandon)was necessary in order to forfeit rights grandfathered as lawful,pre-existing,non-conforming uses, that theory is no longer viable under Massachusetts decisional law. • Mr. James Brandolini July 22,2008 Page Three The"judicial gloss"applied by both the Supreme Judicial Court and the Appeals Court to the language of General Laws,Chapter 40k Section 6,and the by-laws it has fostered regarding the authority to regulate non-conforming uses"abandoned or discontinued"for aperiod of two(2)years or more, leaves no room for argument that affirmative intention to abandon must be established. Mere non-user(absent some extraordinary circumstance which might compel a courtto apply its equitable remedies)is sufficient. If,under the current By-Law,the owner does not affirmatively exercise the non-conforming use for a period of two(2)years,the right to do so lawfully, is lost. I hope that the foregoing will be of some further assistance to you in resolving this matter. If not or if you should like some further clarification, please let me know and I will do my best to provide it promptly. Sin , �� 1M , , Douglas J. .hy � i,1/1 (1�r JDM/tlh ___ ccmw MURPHY & MURPHY ' 15087753720 P.01 r , MURPHY AND MURPHY Counselors At Law 243 South Street P. O. Box M Hyannis,Massachusetts 02601-1412 telephone: 508-775-3116 facsimile:508-775-3720 Reply Our File No. 15961 FA-X COVERS t'T Date: July 2Lg PLEASE SEND THE FOLLOWINO PAGES TO: ATTENTION: . Jam•s Bran.o 'r" LOCATION: 'a WN OF `;MOT : .DIN,DE AR tvia FACSIMILE#: 08-398-08 FROM: J. i . _ as M ,. E • turn RE: It er Sire•t Soul r 1, o th TOTAL NUMBER OF PAGE(S)=Om COVER SHEET: �I IF YOU DO NOT RECEIVE ALL TIE PAGE(S).PLEASE CONTACT THIS OFFICE AS SOON AS POSSIBLE. Applicable U.S.Treasury Reguladions squire that we inform you that any Federal lax advice contained in this communication(including any attachments)is not intended or written to be used,and cannot housed,forthe purpose of(I)avoiding penalties under the Internal Revenue Code or(ll)promising,marketing to recommending to another party any transaction or matter addressed herein. ••'CONFIDENnAW1Y NOTICE"a The infomwsionand documents transmitted by this facsimile areprivilcgrxl and contain confidential intbrmati.m intended only fnaleperson(s) named above. Any other distriburion,copying or dIselca, is strictly prohibited. if you have received this Thcsiinhlc in an,r,please notiry us imm liately by telephone,and velum the original to us without making a copy. ''''POVAqk TOWN OF YARMOUTH• I • a o BUILDING DEPARTMENT FILE COPY ,g o Ht41 a y 1146 Route 28,South Yarmouth,MA 02664 cs " {' 508-398-2231 ext. 261 Fax 508-398-0836 E ,i July 23, 2008 Dr. William Marasco 143 River Street South Yarmouth, MA 02664 Re: 143 River Street& 84 Pleasant Street Dear Dr. Marasco: Enclosed please find a copy of a letter I received from Attorney Douglas Murphy dated July 22,2008. This letter addresses the matter of non use and abandonment in more depth. He cites specific case law and how it should be applied Very truly,�oA\ \S C James D. Brandolini, C.B.O. Building Commissioner Encl 1 JUk-25-3008 08:20 FROM:CDI 5087715202 TO:15083980836 P.3 FILE CO ' To: James ]Brandolini Yarmouth Building Inspector July 25, 2008 From: W. Marasco RE: 84 Pleasant st. St. S. Yarmouth This is in response to your recent letter. When I acquired the property (1994) it was a functioning two family unit. I have always had the property rented. When I went to Town Hall to make sure all was right with the property, the Assessors Office had it listed as a single family (1996-1997). At that time the Yarmouth Building Inspector had an inspection with me and made a determination that the two family was pre-existing and the change to a two family was made at the Assesors Office. I hope this is helpful. Thank you for your time and consideration on this matter. OCT-243-2009 13:48 FROM:CDI 5087715202 70:1`'083980836 P.1/1 RECEIVED OCT 2 0 2009 BOARD 0,- UTHgLS To :Yarmouth Board of Appeals Frwom:Bill Marasco Date:Oct 20 th 2009 Re:Hearing Oct 22 nd Due to the complexity of this matter,I would request that the hearing be extended to December 10 th 2009, to allow me more time to gather and present information to the Building Inspector to clarify this matter. Thank you for your time and consideration 1 Page l of l LaFrance, Rhonda From: William Marasco (wmarasco@massmed.org] Sent: Wednesday, October 21, 2009 2:57 PM To: LaFrance, Rhonda Subject: Re: Fax As fat as Thursday night I was not planing on coming Thank you Sent from my iPhone On Oct 21,2009,at 2:44 PM, "LaFrance, Rhonda" <RLafrance@yarmouth.ma.us>wrote: <image001.jpg> Bill: I got your fax requesting a continuance to December 10th, and that date will be fine as far as the schedule goes. Do you plan on coming in person, or having a representative come on your behalf to request the further continuance? I did receive this afternoon a letter from Attorney Mike Ford informing the Board that he can not represent you in this matter due to a conflict. Rhonda LaFrance Board of Appeals Office Administrator 1146 Route 28 South Yarmouth,MA 02664 508-398-2231 ex 285 508-398-0836 Fax The preceding e-mail message(including any attachments)contains information that may be confidential,may be protected by the attorney-client or other applicable privileges,or may constitute non-public information.It is intended to be conveyed only to the designated recipient(s)named above. If you are not an intended recipient of this message,please notify the sender by replying to this message and then delete all copies of it from your computer system.Any use, dissemination,distribution,or reproduction of this message by unintended recipients Is not authorized and may be unlawful 10/21/2009 Page 1 of 1 LaFrance, Rhonda From: William Marasco[wmarasco@massmed.org] Sent: Wednesday, October 21, 2009 2:56 PM To: LaFrance, Rhonda Subject: Re: Fax Hi not sure will be talking to building inspector next week Thank you Sent from my iPhone On Oct 21,2009,at 2:44 PM, "LaFrance,Rhonda" <K afrance@yarmouth.ma.us>wrote: <image001.jpg> Bill: I got your fax requesting a continuance to December 10th, and that date will be fine as far as the schedule goes. Do you plan on coming in person, or having a representative come on your behalf to request the further continuance? I did receive this afternoon a letter from Attorney Mike Ford informing the Board that he can not represent you in this matter due to a conflict. Rhonda LaFrance Board of Appeals Office Administrator 1146 Route 28 South Yarmouth,MA 02664 508-398-2231 ex 285 508-398-0836 Fax The preceding e-mail message(including any attachments)contains information that may be confidential,may be protected by the attorney-client or other applicable privileges,or may constitute non-public information.It is intended to be conveyed only to the designated recipient(s)named above.If you are not an intended recipient of this message,please notify the sender by replying to this message and then delete all copies of it from your computer system.Any use, dissemination,distribution,or reproduction of this message by unintended recipients is not authorized and may be unlawful. 10/21/2009 �F q TOWN OF YARMOUTH °s: ,ly.�'o BUILDING DEPARTMENT C v� � ra . o – 1146 Route 28,South Yarmouth,.MA 02664 � �;*, ,V508-398-2231 ext.261 Fa?�508-398-Q836 H.'.K( r,, '^ '"S 13 `F. 3: 36 July 16, 2009 r L VI"1 Dr. William Marasco 143 River Street South Yarmouth, MA 02664 Re: 143 River Street Dear Dr. Marasco: As you know, Building Permit No. FB-06-1236 was issued on April 19, 2006 that allowed the reconstruction of a garage and second floor apartment at 143 River Street South Yarmouth. Prior to this issuance there was a series of communications between you,Town Counsel John Creney and myself, concerning the applicability of zoning bylaw Section 104.3.2—Abandonment. This section provides that"A nonconforming use which has been abandoned or discontinued for a period of two(2)years or more shall not be re-established, and future use shall conform with the bylaw." Because of this issue you provided me with a letter from Mr.Richard Bussiere,Vice-President/Wealth Advisor for Banknorth,dated February 15,2006. The issuance of Building Permit No.FB-06-1236 and Certificate of Occupancy,to allow the garage apartment were predicated on the facts provided by Mr. Bussiere. Subsequent to the issuance of the Certificate of Occupancy,Mr.Bussiere wrote letters dated November 16, 2007,January 2, 2008 and March 7, 2008 that were provided to me (copies enclosed). The November 16,2007 letter is of particular importance,in that the time frames Mr.Bussiere provides show a lapse of use. In order to obtain legal clarity on the matter, I requested a legal opinion from Attorney Douglas Murphy. He provided three responses; June 26, 2008, September 22, 2008 and February 4, 2009(copies enclosed). In Attorney Murphy's February 4,2009 letter he states on page 6 that"I am of the opinion that the facts concerning the historical background of the site are either inadequate to meet the test or are insufficient upon which to form a compelling conclusion that two family(duplex)use existed prior to the pertinent district requirement being amended to prohibit such use without relief from the ZBA. However,I also feel that point is mooted by the forfeiture of any such grandfathered rights which resulted from discontinuance in the latter 1990's." He further states on page 9: "I do not feel and am not of the opinion that the"special position" afforded to single and two family dwelling under G.L. c.40A, S 6 would legitimatize the use of the premises as two family,duplex under the history as recited above. As noted, if the historical recitation is inaccurate or if additional facts are provided to substantiate the continued use,then my opinion with respect to that aspect of the matter might change. However,absent such clarification or additional information, I reiterate the opinion set forth in my June 26, 2008 letter." In that letter Attorney Murphy stated: "Ergo, I am of the opinion that under the facts described in the correspondence,and the reasonable inferences to be drawn from them,any lawful, pre-existing use of the premises of 143 River Street lapsed and terminated prior to November of2001 and quite likely sometime in 1999." ! Page 2—Dr. W. Marasco July 16, 2009 Re: 143 River Street As a result of these circumstances, and within the six year statute of limitations provided,pursuant to MGL,Chapter 40 A,Section 7—Enforcement of Zoning Ordinance,you are hereby ordered to provide sufficient documentation demonstrating that there was no interruption/lapse beyond two(2)years in the apartment use. However, should you be unable to provide such documented facts, you shall file a variance petition with the Zoning Board of Appeals to legitimize/re-establish the two family use. The Board has the authority to hear use variance petitions, pursuant to the provisions of zoning bylaw Section 102.2.2. Please contact me should you wish to discuss this further. Very truly, James D. Brandolini, C.B.O. Building Commissioner Encl 6 cc: Board of Appeals Attorney Douglas Murphy CERTIFIED MAIL TOWN OF YARMOUTH SL-. Board of ~''I 1146 ROUTE 28, SOUTH YARMOUTH, MASSACHUSETTS 02664-24451 Appeals Telephone(508)398-2231 Ext.285,Fax(508)398-0836 AGREEMENT FOR EXTENSION The Petitioner understands and agrees: r {� , w :� That the public hearing will not be held within 65 days of the filing of this ApplicatitG, or ' 11 1 I _ That the Board will not take "final action" on the request for a Special Permit within 96J days of the conclusion of the public hearing; That the decision of the Board on an Appeal or Variance request will not be made within 100 days of the filing of the application. Further, the petitioner agrees with the Board to extend the time frames within which the hearing, re-hearing or continuance are to he held and the decision(s) are to be made and filed by the Yarmouth Board of Appeals, and to waive any rights to the Constructive Grant of this petition, provided that the Board does act within the time frame of this agreement. It is therefore agreed that the Hearing shall be held/continued on —be..C. let 2.00`r , and that the Board's decision shall be made and filed with the Town Clerk within 14 days of the conclusion of that public hearing. Applicant/Petitioner ?uq \k i 4m Y114 f f}5a O Petition# H Z10 Application filing date: 2'/13107 Initial Hearing Date : /Ch. ?_-1 A/ I / •'. Date: /409/05 Petitioner or A 9 "*for Petitioner E1 Date: I q `1/o ? Board of Appeals Date Filed with Town Clerk: jolt 7/07 H:\MyFiles\Documents\Application\hearing Extension Agreenient.wpd are lea,* eTOWN OF YARMOUTH BUILDING DEPARTMENT 1146 Route 28,South Yarmouth,MA 02664 P 4 508-398-2231 ext. 261 Fax 508-398-0836 RECEIVED July 16, 2009 OCT 1 5 2009 Dr. William Marasco BOARD o°PPEALs 143 River Street South Yarmouth, MA 02664 Re: 143 River Street Dear Dr. Marasco: As you know, Building Permit No. FB-06-1236 was issued on April 19, 2006 that allowed the reconstruction of a garage and second floor apartment at 143 River Street South Yarmouth. Prior to this issuance there was a series of communications between you,Town Counsel John Creney and myself, concerning the applicability of zoning bylaw Section 104.3.2—Abandonment. This section provides that"A nonconforming use which has been abandoned or discontinued for a period of two(2)years or more shall not be re-established, and future use shall conform with the bylaw." Because of this issue you provided me with a letter from Mr.Richard Bussiere,Vice-President/Wealth Advisor for Banknorth,dated February 15,2006. The issuance of Building Permit No.FB-06-1236 and Certificate of Occupancy, to allow the garage apartment were predicated on the facts provided by Mr. Bussiere. Subsequent to the issuance of the Certificate of Occupancy,Mr. Bussiere wrote letters dated November 16, 2007, January 2, 2008 and March 7, 2008 that were provided to me(copies enclosed). The November 16,2007 letter is of particular importance, in that the time frames Mr.Bussiere provides show a lapse of use. In order to obtain legal clarity on the matter, I requested a legal opinion from Attorney Douglas Murphy. He provided three responses; June 26, 2008, September 22, 2008 and February 4, 2009 (copies enclosed). In Attorney Murphy's February 4,2009 letter he states on page 6 that"I am of the opinion that the facts concerning the historical background of the site are either inadequate to meet the test or are insufficient upon which to form a compelling conclusion that two family(duplex)use existed prior to the pertinent district requirement being amended to prohibit such use without relief from the ZBA. However, I also feel that point is mooted by the forfeiture of any such grandfathered rights which resulted from discontinuance in the latter 1990's." He further states on page 9: "I do not feel and am not of the opinion that the "special position" afforded to single and two family dwelling under G.L. c.40A, S 6 would legitimatize the use of the premises as two family,duplex under the history as recited above. As noted, if the historical recitation is inaccurate or if additional facts are provided to substantiate the continued use,then my opinion with respect to that aspect of the matter might change. However,absent such clarification or additional information, I reiterate the opinion set forth in my June 26, 2008 letter." In that letter Attorney Murphy stated: "Ergo, I am of the opinion that under the facts described in the correspondence,and the reasonable inferences to be drawn from them,any lawful, pre-existing use of the premises of 143 River Street lapsed and terminated prior to Novemberof2001 and quite likely sometime in 1999." for 't • Page 2—Dr. W. Marasco July 16, 2009 Re: 143 River Street As a result of these circumstances, and within the six year statute of limitations provided, pursuant to MGL,Chapter 40 A,Section 7—Enforcement of Zoning Ordinance,you are hereby ordered to provide sufficient documentation demonstrating that there was no interruption/lapse beyond two(2)years in the apartment use. However, should you be unable to provide such documented facts, you shall file a variance petition with the Zoning Board of Appeals to legitimize/re-establish the two family use. The Board has the authority to hear use variance petitions, pursuant to the provisions of zoning bylaw Section 102.2.2. Please contact me should you wish to discuss this further. Very truly, James D. Brandolini, C.B.O. Building Commissioner Encl 6 cc: Board of Appeals Attorney Douglas Murphy CERTIFIED MAIL .y-• Page 1 of 3 Clark, Sandi From: LaFrance, Rhonda Sent: Tuesday,January 26, 2010 9:31 AM To: Clark, Sandi Subject: FW:Yarmouth Board of Appeals RE: 143 River St January 2i8th hearing Sandi: Print this out for the Board members and email to attorneys. From: Frank Rudewia [mailto:frudewia@bdo.com] Sent: Monday,January 25, 2010 4:43 PM To: Frank Rudewia; LaFrance, Rhonda; Brandolini,Jim Subject: RE: Yarmouth Board of Appeals RE: 143 River St January 218th hearing My name is Frank Rudewia and I am the current owner/permanent resident of 190 River St and a member of the "Bass River Park a Residential Subdivision in South Yarmouth, Mass" (as shown on our respective deeds). The property at 143 River St Is also Included in this subdivision. I am writing in regards to the upcoming January 28th continuation of the Hearing concerning 143 River St., with the caveat that I do not know if additional information has been presented by the petitioner. I base my comments on what was in the record from the last hearing date. With that said, I ask the Board again,to deny the petition. I wish to present some information that I believe has been overlooked to date. The following comments are my opinion and are based on the facts as I now know them. Contrary to what petitioner's attorney states in the petition, it is my opinion,that based upon the record presented so far, that the facts of this matter show that the permit in question was issued as a result of,at a minimum, misrepresentation.Therefore, it Is the obligation of the Building Commissioner to obtain additional information from the petitioner or through the vetting process of special variance. As support, I point to the facts not in dispute in this matter: • In 2006. prior to the Issuance of the permit, the Building Commissioner raised questions about Abandonment. To address those concerns, the Petitioner requested a letter from the former trustee of the property. • The trustee submitted a letter that served as the primary authority for the issuance of the permit. • The trustee subsequently admitted that his initial letter misrepresented the facts of the situation. These facts alone should be sufficient to deny the petition. However, there are several other facts also not in dispute that I believe are very relevant that, in my opinion, identify ethical considerations and the possibility of perceptions of impropriety. Additional reasons why the petition must be denied and more information be presented: • At all relevant times, the trustee was a local business leader with a business located in Yarmouth. • Also, at all relevant times, specifically during the application, request for the letter, and issuance of the permit, the petitioner was a member of the Board of Selectman for the Town of Yarmouth. • The petitioner,while a member of the Board of Selectman, requested a letter from this local businessman, 1/26/2010 N • Page 2 of 3 for his(petition) benefit. • The letter was subsequently shown to be a misrepresentation and it resulted in a benefit to a member of the Board of Selectman. Please be clear that I am not implying that the Trustee or the petitioner have acted intentional or malicious. However,we are at this point because there is evidence of misrepresentation,even if unintentional, that was relied upon. There should be additional Information that will clarify the situation and It is the responsibility of the Building Commissioner to gather those facts. Without assigning blame or inquiring as to motivations or intentions, and in light of all of the circumstances, a reasonable accommodation is to have the petitioner submit supporting evidence or apply for a variance, EXACTLY what he would have had to do if the misrepresentations had not occurred. For all of the reasons stated above,as well as all others already heard, I respectfully request that the petition be denied for reasons that include the protection of the integrity of the process,ethical considerations and to alleviate any possible perception of impropriety that may exist. Frank E. Rudewicz, CPP, CAMS I Managing Director BDO Consulting I A division of BDO Seidman, LLP 100 High Street 1 Boston,MA 02110 El External:(617)422-751910 Internal:315-75191 O Cell:(860)604.7011 1❑ Fax:(617)422-0909 O E-mail:FBudewicz@BDO.com 1 O Website:www.bdoconsulting.com BOO Consulting 1 A division of BDO From: Frank Rudewicz Sent:Tuesday, December 08, 2009 11:16 AM To: RLafrance@yarrnouth.ma.us Subject: Yarmouth Board of Appeals RE: 143 River St My name is Frank Rudewicz and I am the current owner/permanent resident of 190 River St and a member of the"Bass River Park a Residential Subdivision in South Yarmouth, Mass" (as shown on our respective deeds). The property at 143 River St is also included in this subdivision. I am writing in regards to the upcoming December 10th Zoning Board of Appeals hearing regarding the property at 143 River St. I specifically request that the Board deny the home owner's request to reverse Building Inspector Brandolini's order for sufficient documentation demonstrating that there was no interruption/lapse beyond two years in the apartment use on the property. Additionally, I request that an order for a variance petition be ordered to be filed with the Zoning Board of Appeals to review the renovations to the property. My reasons for my request are several: I have owned my property at 190 River St since December of 2004.The house remained vacant while I completed extensive renovations to it. In April of 2007, my family moved into the property and we have been here ever since. I have recently been provided with the history of the property at 143 River St. I am concerned of the differing opinions concerning past use and that the property may be considered multi family. This was not something that I was aware of(or made aware of)when purchasing my home. I am concerned that this could have an impact on my home as an abutter and adjoining property. Additionally, I was never given notice of the extent of the proposed renovations that began in 2006 and how they may impact my property, otherwise I would have raised this issue before. Due to the fact that I owned my property but was not living there at the time, I was not in a position to observe the extent of ongoing construction. I naturally assumed that there was no issue as to permits and restrictions. Due to the varying legal opinions and varying information available as to the historical use of the property, I believe it is in the best interests of the Town and all adjacent property owners that a full and open review be 1/26/2010 • Page 3 of 3 • conducted as it relates to this property. With the a full and complete airing of all applicable information,The Town will be able to make the appropriate decision. Thank you for your consideration. Please contact me via email or phone at 508-760-5760 if you have any questions Frank E. Rudewicz,CPP,CAMS Managing Director I BDO Consulting I A division of BDO Seidman, LLP 100 High Street 1 Boston,MA 02110 External:(617)422-75191 Internal:315-75191 Cell:(860)604-7011 Fax:(617)422-0909 E-mail:FRU&ewii @BPQ.com 1 Website:www,bdoconwultIng conn BDO Consulting is a division of BDO Seidman, LLP,a New York limited liability partnership and the U.S.member of BDO International Limited. BOO International Limited Is a UK company limited by guarantee,and forms part of the international BDO network of independent member firms. BDO is the brand name for the BOO network and for each of the BDO Member Firms. 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If you have received this e-mail in error,please notify BDO Seidman,LLP by e-mail immediately. 1/26/2010 RICHARD 0.STAFF 180 River Street South Yarmouth,MA 02664 January 24, 2010 Zoning Board of Appeals Town of Yarmouth 1146 Route 28 South Yarmouth, MA 02664 Re: 143 River Street hearing Dear Chairman and Members of the Board: As neighbors concerning the use of the subject property my wife and I respectfully request that the Board consider the following points. 1). An initial question arises as to whether the property ever had a legal apartment. The covering of a walkway between the house and the garage did not make it a single building. Furthermore no building permit exists in the record for the creation of the covering. 2). Each of the cases cited by the attorney for the applicant is either not on point or supports the opponents' arguments of the abutters and neighbors. In the Freetown case it was the owner(not a neighbor)who appealed the building inspector's decision too late. In the Wellesley case the abutter had written notice of the building inspector's decision not to act, and failed to appeal that decision within the time frame. The case of Vokes vs. Lovell decided by a Superior Court Judge and the Massachusetts Appeals Court specifically found the thirty day period for an appeal by an abutter does not begin when the building permit issued but began when the building inspector notified the abutter in writing his decision. In this case the building inspector had advised the land owner that a special permit to build a fifty foot garage was unnecessary and relying on that advice, the owner built the garage. After more than thiry days had expired from the date of the issuance of the building permit the abutter appealed to the zoning board of appeals and the board upheld the building inspector's decision and further found that the abutter's appeal was too late because it was made after the expiration of the thirty day period. The court overturned the board's decision finding that the abutter could appeal;that the thirty day period did not begin from the date of the issuance of the building permit did not apply to an abutter. The fourth case cited by appellant's attorney,Elio vs. Zoning Board of Appeals of Barnstable went to the Appeals Court which upheld the building inspector's and Board of Appeals decision because the building inspector had not issued a written decision and hence there was no appealable decision. In conclusion the court said"We also note as did the Land Cout judge,that Clark(or Crowley)can still file an entirely new request for enforcement should she choose to do so, and thereafter obtain any relief to which she is entitled under the zoning ordinance with respect to plaintiff's building" n • 3). A statement that all the witnesses are dead is not true. Immediate neighbors, including myself are witnesses and able to testify. Mr. Bussiere,the representative of the trustee, the legal owner of the property is probably available. Mr. Creney who supplied a letter probably had no personal knowledge of the facts other than what he might gather from Mr. Bussiere's letter and information given to him by Dr. Marasco. It seems likely that the Coughlin sisters were probably deceased or in an nursing home during the period after 1997 when the utilities were shut off. I point out that Dr. Marasco has the burden of proof. It is up to him to show that the apartment was used and not up to the neighbors to prove that it was not. 4). The statement by a board member that a neighborhood feud exists is fallacious. Efforts by neighbors to protect their investments and to have the zoning laws adhered to does not amount to a feud. , 5). The property was unoccupied and unused from before 1997 when the utilities were shut off. It is likely that Dr. Marasco learned of this after he bought the property and had the water turned on or before he bought the property and was considering buying it. 6). The trustee,the legal owner of the property never collected rent at any time for the use of the property 7). Dr. Marasco is not denied the use of the property if it is decided that he needs to apply for a variance or not rent the property. He simply cannot have a rental unit which is not allowed in the zoning district in which the building is located. 8). When Dr. Marasco originally applied for a variance or special permit and then withdrew his application,I believed as did other neighbors that he had given up his idea of trying to have an rental unit in his home. 9). The applicant says that he seeks to correct a substantial injustice. I and my neighbors also seek to correct a substantial injustice that seems to exist with Dr. Marasco's attempt to create a two family unit in an area that is zoned for single family units. 10). The agenda distributed at the December 10, 2009 hearing was incorrect in that the building commissioner's July 16 letter asked for evidence of two family use rather than that a variance was needed. The letter asked for evidence. The board has the function of reviewing on appeal decisions of the building commissioner. It should not interfere with the investigations which the building commissioner needs to make in order for him to come to a decision. Respectfully submitted, tS W Richard O. Staff � p,� ,, Gail Jepsen-Staff r7 i s Wit( —.S,- f6 � . • RECEIVED JAN 2 6 2010 YARMOUTH BOARD OF APPEALS l f • 24 Bass River Parkway South Yarmouth, MA, 02664 January 3, 2010 Zoning Board of Appeals Town of Yarmouth 1146 Route 28 South Yarmouth, Massachusetts,02664 Re: 143 River Street Dear Chair and Members of the Board of Appeals: This is a follow-up to my letter to you dated October 8, 2009. It incorporates elements of the discussion that took place at the ZBA meeting on December 10, 2009. At that meeting you deferred action on Petition 4268 preferring to continue discussion on January 28, 2010. I am once again urging you to endorse and support the enforcement order that was issued to Dr. Marasco by Building Commissioner Brandolini on July 16, 2009 and reiterated on August 11, 2009. The ZBA deliberations on December 10, 2009 raised issues, ramifications and potential solutions that, to my eye, were tangential to what you are being asked to decide. The question before you is to either support or overturn Mr. Brandolini's enforcement order to Dr. Marasco. While I am not a lawyer, it seems that there are a few basic points that control this analysis. First,current Town Counsel has issued a clear legal opinion that any pre-existing, non-conforming use at 143 River Street lapsed due to discontinuance. Second, Dr. Marasco has been invited to offer additional facts to refute Town Counsel's conclusion and, as of this date, has chosen not to do so. As Town Counsel has correctly stated, it has been, and remains, Dr Marasco's burden to establish and convince that the duplex apartment was continuously used prior to his purchase of 143 River Street. Following this analysis,there should be just one appropriate action at this time: support Mr. Brandolini's enforcement order. Dr. Marasco and Attorney Humphreys are eager to divert your attention away from the current zoning violation at 143 River Street by focusing on the issuance of a building permit and pointing to construction already completed and rented. It is critical to avoid this trap. The zoning problems at 143 River Street were not removed or corrected by the issuance of a building permit. Those who would propose that would have you overlook the gap from, at least 1997 through 2001. That gap of lapsed continuance simply cannot be ignored. It persists to this day as an unaddressed deficiency in this process. They have also accused me of acting tardily in raising objections to construction activities at 143 River Street. Hopefully, my statements at your December 10, 2009 meeting have been responsive to those accusations.Anyone who insists that adequate notice was provided to the abutters, and ignored, is being disingenuous. If there are any on this Board who are unclear about what I presented to you orally on December 10, 2009, I am prepared to put it in writing with my own history accompanied by statements from others. Whatever Dr. Marasco may have known or believed when he purchased 143 River Street, review of the facts now shows that he did not purchase a property with a viable non-conforming use. He purchased a single family residence where a previously permitted duplex designation had been lost well before he purchased the property. Please, do not be swayed by his insistence. He has been,and still is, in violation. Mr. Brandolini has the responsibility to seek enforcement when zoning violations are brought to light. This is what he is attempting to do at 143 River Street. His actions are consistent with Town of Yarmouth Bylaws, including Article 104.3.1, and Massachusetts General Laws, including MGL, Chapter 40A, section 7. Please allow Mr. Brandolini to do his job by supporting his enforcement order. Sincerely yours, Richard W. Shea, MD RECEIVED I JAN 1 3 2010 I YARMOUTH BOARD OF APPEALS I ' DICK AND PAULA SHEA , 4019 Eagle Cove W. Palm Harbor.FL 34685 t., .te.:_,..a . '_a:Ift_tTr FIFIr nvsm.JR,r; Fki".`' iii? ny"" 1 -, ( . . _etterIkr.t. t.3.`efr • - h i (TT 11.-ttP1 7.217.0 ittl. 0: " 4771tm t "'.11.' z^I" oellic.,0 ' - . . . _ ... Zoning Board of Appeals / •3 Town of Yarmouth . 1146 Route 28 South Yarmouth,Massachusetts,02664 , . . . , • / •-44 - CoS642:443i , 11 II I II II III III I I I II I IIIIMIMIIIIIIIIIIIIII//1111Ii1/11/1/11/Milil/h111111/11 • Page 1of1 Clark, Sandi From: LaFrance, Rhonda Sent: Wednesday,January 27,2010 1:48 PM To: Clark,Sandi Subject: FW:Jan.28th Board of Appeals meeting From: CPB128@aol.com [mailto:CPB128@aol.com] Sent:Wednesday,January 27, 2010 1:41 PM To: LaFrance, Rhonda Cc: Brandolini,Jim Subject: Jan. 28th Board of Appeals meeting Dear Ms. LaFrance, • I would appreciate your forwarding this e-mail to the appropriate person. I own property on Bass River Parkway and am strongly opposed to a multifamily unit at 143 River Street. I respectfully request that the application for this unit be denied as it is not compatible with our single-family-zoned neighborhood. Thank you in advance for your help in this matter. Carolyn P. Brown cell:571-243-4012 e-mail: cpb128@aol.com r 1/27/2010 ,t.. ..Jettor TOWN OF YARMOUTH F . . rrBOARD OF ll� _ 1146 ROUTE 28, SOUTH YARMOUTH,MASSACHUSETTS 02664-4451 APPEALS Telephone(508)398-2231 Ext. 1285,Fax(508)398-0836 December 14,2009 Attorney Charles J.Humphreys 15 Brook Street Cohasset,MA 02025 " Attorney J. Douglas Murphy 243 South Street Lock Drawer M Hyannis,MA 02601-1412 RE: Petition#4268-Marasco Dear Attorney Humphreys &Murphy: As an afterthought to the meeting on December 10,2009, it has been suggested by one of the Board members that it would be helpful if you would provide any authority beyond that provided for the proposition that the Building Commission has/does not have the authority to reconsider the grant of a building permit on his own motion. If there is any such authority either for/against such powers, it would be helpful if you would provide it to the Board prior to the next hearing. On behalf of the Board, I thank you for any assistance you can offer. Very truly yours, Steven DeYoung, Chairman,Board of Appeals Cc Mr. Brandolini,Building Commissioner File SEP-2-2009 08:02 FROM:CDI 5087715202 TO:15083980836 P.1/1 0901-2001 14:01 Free, 'NOV P.UUtl001 F-bbl 7 art.t TOWN OF YARMOUTH vicciss Board of 1146 ROUTE 28,SOUTH YARMOUTH,MAS 64-24451 Appeals Telephone(508)398-2231 Ext.285 ax(503)398-0836 AGREEMENT FOR EXTENSION n w> The Petitioner understands and agrees: rn e AZThat the public hearing will not be held within 65 days of thr filing of this Appiattio e r n C C I � _. That the Board will not take "final action" on the request for a Special Permit withra 077 I days of the conclusion of the public hearing; _ That the decision of the Board on an Appeal or Variance nquest will not be made widtin 100 days of the filing of the application. . Further, the petitioner agrees with the Board to extend the;time frames within which the . hearing, re-hearing or continuance are to he held and the decision(s) are to be made and filed by the Yarmouth Board of Appeals, and to waive any rights to the Constructive Grant of lis petition, provided that the Board does act within the time frame of this agreement. It is therefore agreed that the Hearing shall be held/continued on Oc-t0131,,,a,,Q1. and that the Board's decision shall be made and filed with the Town Clerk within 14 days of the conclusion of that public hearing. Applicant/Pe titioner /0 i Mrs nt miaetg an _Petition# H a b g App ati n filing date: 4 1 t3)i 7 Initial Hearin Lg Date: - l 01 Date_Q 1 t (WI Petite or Aged for Petitioner C Date: 51/411 09 Board of Appeals Date Filed with Town Clerk:• ql4 to q H:UNyFileADocumentstAppticadon\Hmfielg Extension Ag eemrnt.wpd ' _ h • ' 8:00 ,- air 1:00 _ le . 8:30' 1 .,� 1:30 i C 9:00 E .J • 2:00 • ® 9:30 $ - 2:30 1'. F 10:00 / . ± 3:00 _; 10:30 ���.4W \ A.ii, dl 3:30 C 11:00 Ili # At 4:00 >% 11:30 1��i 4 - _ : 4:30 m p 12:00 \00 P ' 5:00 jes 12:30 �(��pWNIP � J�"/u��`�'�`b5:30 MARCH 2010 6 APRIL 2010 9 n7 AY 20101 MOM TUE WED TW EN SAT MO TUE WED MU FRI SAT MOM TUE WED TW FWSAT 1 2 3 4 5 6 1 2 3 1 200 201 202 203 204 205 231 232 233 261 8 9 10 11 12 13 5 6 7 8 9 10 3 4 5 6 7 8 207 208 209 210 211 212 235 236 237 238 239 ar,3 263 264 265 266 267 258 15 16 17 18 19 20 12 13 14 15 16 17 10 11 12 13 14 15 214 215 216 217 218 219 242 243 244 245 246 247 1/1 271 272 273 274 275 22 23 2425 26 27 19 20 21 22 23 24 17 18 19 20 21 22 221 222 223 224 225 226 249 250 251 252 253 254 277 278 279 280 231 282 29 30 31 • 26 27 28 29 30 24 25 26 27 28 29 228 229 230 256 257 258 259 260'° 284 285 286 287 288 289 31 a • 10 JUNE 2010 11 JULY 2010 12 AUGUST 2010 MON TUE WED D4U FRI SAT MON TUE WED T4 EN SAT MON TUE WED NO FRI SAT 1 2 3 4 5 1 2 3 2 3 4 5 6 7 292 293 294 295 296 322 323 924 354 355 956 357 358 959 7 8 9 10 11 12 5 6 7 8 9 10 9 10 11 12 13 14 298 299,39e 301 302 303 m 327 328 329 4330 331 P 362 363 364 365 366 14 15 16 17 18 19 12 13 14 15 16 17 16 17 18 19 20 21 305 306 307 308 309 310 333 334 335 336 937 338 368 369 370 371 372 373 21 22 23 24 25 26 19 20 21 22 23 24 23 24 25 26 27 28 312 313 314 315 316 317 340 341 342 341 944 345 375 375 377 378 379 380 28 29 30 26 27 28 29 30 31 30 31 319 320 321 347 348 349 350 351 352 382 383 BACK COUNTER(Call Loan Chart)...Counts Days Back From Today FACTOR FOR FACTOR FOR FACTOR FOR JULY 2009 - 44 MAR.2009- 166 NOV.2008 - 286 JUNE 2009 - 74 FEB.2009 - 194 OCT.2008 - 317 MAY 2009 - 105 JAN.2009 - 225 SEPT.2008- 347 APR.2009 - 135 . DEC.2008 - 256 AUG.2008 - 378 (Instructions:See Page 1) THURSDAY —AUGUST 13, 2009 s . FRIDA///Y'''��� AUGUST 2009 ♦.._ > SUN MON TUE WED THU FRI SAT R HOLIDAYS 2 3 4 5 6 7 8 in US F.SS LIST MONTH JULY 9 10 11 12 13 14 `15 am Canadian SMTWIF Calacian 9 1 NOM OM0 5 8 7 8 9 10 mHolidays 16 17 18 19 20 21 22 yy 12 momma 2 3 4 5 6 7 8. BBIow. 1213 14 15 16 17 18 23' 24 25 26 27 28 •29 OTHER PAGE ORTANT 19 20 21 22 23 24 25 25 27 28 29 30 31 9 10 11 12 13 14 15 us 6 "I"30. 31 DATE3 16 17 226th day of year—139 remain el 1 SEPTEMBER 2 i OCTOBER 3 NOVEMBER MON TIE WED THU FRI EAT MON TUE WEO THU FRI EAT MON TUE WED THU FW BAT 1 2 3 4 .5 1 2 3 2 3 4 5 6 ,7 18 19 20 21 '22 48 49 50 BO 81 82 B3 84 65 7 8 9 10 11 12 5 6 7 8 9 10 9 10 11 12 13 14 m 25 26 27 28 -29 52 53 54 55 56 57 87 88 as 904 91 92 14 15 1617 18 19 12 13 1415 16 17 1617 1819 20 21 .I 32 33 34 35 36 prir 61 62 63 64 94 95 96 97 98 99 21 22 23 24 25 26 19 20 21 22 2324 23 24 25 26 27 28 38 39 40 41 42 43 66 67 68 69 70 71 101 102 103 m 105 106 28 29 3026 27 28 29 30 31 30 45 46 47 73 74 75 76 71 78 108 4 DECEMBER 5 JANUARY 2010 6 FEBRUARY 2010 MON TUE WED THU FRI BAT MON TUE WED THU FRI EAT MON TUE WED THU FRI EAT 1 2 3 4 5 1 2 1 2 3 4 5 6 109 110 111 112 113 0 141 171 172 173 174 175 116 7 8 9 10 11 12 4 5 6 7 8 9 8 9 1011 12`13 115 116 117 118 119 f7'7' 143 144 145 146 147 148 178 179=I 181 182 '183 14 15 16 17 18 19 11 12 13 14 15 16 15 16 17 18 19 20 122 123 124 125 126 127 V 151 152 153 154 155 m 186 187 188 189 190 21 22 23 24 25 26 18 19 20 21 22 23 22 23 24 25 26 27 129 130 131 132 m 134 m 158 159 160 161 162 192 193 194 195 196 197 28 29 30 31 25 26 27 28 29 30 136 137 138 139 - 164 165 166 167 168 169 MONTHLY DUE DATES From Today MO. DUE DAYS MO DUE DAYS MO. DUE DAYS 1 SEPT.14,2009 31 5 JAN.14,2010 153 9 MAY 14,2010 273 2 OCT.14,2009 61 6 FEB.16,2010 186 10 JUNE 14,2010 304 3 NOV.14,2009 92* 7 MAR.15,2010 213 11 JULY 14,2010 334 4 DEC.14,2009 122 8 APR.14,2010 243 12 AUG.14,2010 365* AUGUST 14, 2009— FRIDAY or an&or**-See Page 1) Page 1 of 2 LaFrance, Rhonda From: William Marasco[wmarasco@massmed.org] Sent: Tuesday, September 01, 2009 1:47 PM To: LaFrance, Rhonda Subject: Re: Extension Form 508 771 5202 Sent from my iPhone On Sep 1, 2009, at 1:43 PM, "LaFrance, Rhonda" <RLafrance@yarmouth.ma..us>wrote: What is your fax number From: William Marasco [mailto:wmarasco@massmed.org] Sent:Tuesday, September 01, 2009 1:38 PM To: LaFrance, Rhonda 9P-A-11 Subject: Re: Extension Form 14Pc1I Hi No I did not . If you want to email it to me and I can fax it back Thank you Bill Sent from my iPhone On Sep 1, 2009, at 1:36 PM, "LaFrance, Rhonda" <RLafrance a yarmouth.ma.us> wrote: <image00I.jpg> Bill: Did you receive the extension form. Could you please sign it and return it ASAP so I may clock it in with the clerk's office. Rhonda LaFrance Board of Appeals Office Administrator 1146 Route 28 South Yarmouth, MA 02664 508-398-2231 ex 285 508-398-0836 Fax The preceding e-mail message(including any attachments)contains information that may be confidential, may be protected by the attorney-client or other applicable privileges,or may constitute non-public information.It is intended to be conveyed only to the designated recipient(s)named above. If you are not an intended recipient of this message,please notify the sender by replying to this message and then delete all copies of it from your computer system.Any use,dissemination,distribution,or reproduction of this message by unintended recipients is not authorized and may be unlawful. 9/1/2009 TOWN OF YARMOUTH FI-.. 111 Board of ~''I 1146 ROUTE 28, SOUTH YARMOUTH,MASSACHUSETTS 02664-24451 Appeals Telephone(508)398-2231 Ext. 285,Fax(508)398-0836 AGREEMENT FOR EXTENSION The Petitioner understands and agrees: ✓That the public hearing will not be held within 65 days of the filing of this Application,or That the Board will not take "final action" on the request for a Special Permit within 90 days of the conclusion of the public hearing; That the decision of the Board on an Appeal or Variance request will not be made within 1 100 days of the filing of the application. Further, the petitioner agrees with the Board to extend the time frames within which the . hearing, re-hearing or continuance are to he held and the decision(s) are to be made and filed by the Yarmouth Board of Appeals, and to waive any rights to the Constructive Grant of this petition, provided that the Board does act within the time frame of this agreement. It is therefore agreed that the Hearing shall be held/continued on Oc—to a a, 07, and that the Board's decision shall be made and filed with the Town Clerk within 14 days of the conclusion of that public hearing. Applicant/Petitioner 10 i Ilia, 'AarQ scp Petition# 4 a b g Application filing date: g 11),01 Initial Hearing Date : 9110109 — 171/09 Date: Petitioner or Agent for Petitioner Date: Board of Appeals Date Filed with Town Clerk: H:\MyFiles\Documents\Application\Hearing Extension Agreement.wpd • From: LaFrance, Rhonda Sent: Friday, September 04, 2009 9:00 AM To: 'William Marasco' Subject: Extension Form Bill: Please sign that extension form and get it back to me ASAP (fax and US Mail). If we don't get that we will have to open the hearing on September 10th. Fax#508-398-0836 Thanks, Rhonda LaFrance Board of Appeals Office Administrator 1146 Route 28 South Yarmouth,MA 02664 508-398-2231 ex 285 508-398-0836 Fax The preceding e-mail message(including any attachments)contains information that may be confidential, may be protected by the attorney-client or other applicable privileges,or may constitute non-public information.It is intended to be conveyed only to the designated recipient(s)named above.If you are not an intended recipient of this message,please notify the sender by replying to this message and then delete all copies of it from your computer system.Any use,dissemination,distribution,or reproduction of this message by unintended recipients is not authorized and may be unlawful. Page 1 of 2 LaFrance, Rhonda From: William Marasco[wmarasco@massmed.org] Sent: Tuesday, September 01, 2009 1:47 PM To: LaFrance, Rhonda Subject: Re: Extension Form 508 771 5202 Sent from my iPhone On Sep 1,2009,at 1:43 PM, "LaFrance, Rhonda" <RLafrance@yarmouth.ma.us> wrote: What Is your fax number From: William Marasco [mailto:wmarasco@massmed.org] Sent: Tuesday, September 01, 2009 1:38 PM ,o�To: LaFrance, Rhonda Subject: Re: Extension Form r ct1 Hi No I did not . If you want to email it to me and I can fax it back Thank you Bill Sent from my iPhone On Sep 1, 2009,at 1:36 PM, "LaFrance, Rhonda" <RLafrance@yarmouth.ma.us> wrote: <image001.jpg> Bill: Did you receive the extension form. Could you please sign it and return it ASAP so I may clock it in with the clerk's office. Rhonda LaFrance Board of Appeals Office Administrator 1146 Route 28 South Yarmouth,MA 02664 508-398-2231 ex 285 508-398-0836 Fax The preceding e-mail message(including any attachments)contains Information that may be confidential, may be protected by the attorney-client or other applicable privileges,or may constitute non-public information. It Is Intended to be conveyed only to the designated recipient(s)named above.If you are not an Intended recipient of this message,please notify the sender by replying to this message and then delete all copies of it from your computer system.Any use,dissemination,distribution,or reproduction of this message by unintended recipients is not authorized and may be unlawful. 9/1/2009 . orr ` TOWN OF YARMOUTH 711 Board of Al 1146 ROUTE 28, SOUTH YARMOUTH,MASSACHUSETTS 02664-24451 Appeals Telephone(508)398-2231 Ext.285, Fax(508)398-0836 AGREEMENT FOR EXTENSION The Petitioner understands and agrees: /That the public hearing will not be held within 65 days of the filing of this Application,or _ That the Board will not take "final action" on the request for a Special Permit within 90 days of the conclusion of the public hearing; _ That the decision of the Board on an Appeal or Variance request will not be made within 100 days of the filing of the application. Further, the petitioner agrees with the Board to extend the time frames within which the hearing, re-hearing or continuance are to he held and the decision(s) are to be made and filed by the Yarmouth Board of Appeals, and to waive any rights to the Constructive Grant of this petition, provided that the Board does act within the time frame of this agreement. It is therefore agreed that the Hearing shall be held/continued on dent? a a, 07, and that the Board's decision shall be made and filed with the Town Clerk within 14 days of the conclusion of that public hearing. Applicant/Petitioner to► Oick" 14arQsa.n Petition# Halo $ Application filing date: g 1131pe Initial Hearing Date : 9110109 - 104o1 Date: Petitioner or Agent for Petitioner. Date: Board of Appeals Date Filed with Town Clerk: H:\MyFiles\Documents\Application\ fearing Extension Agreement.wpd • • From: LaFrance, Rhonda Sent: Friday, September 04, 2009 9:00 AM To: William Marasco' Subject: Extension Form Bill: Please sign that extension form and get it back to me ASAP(fax and US Mail). If we don't get that we will have to open the hearing on September 1O's. Fax #508-398-0836 Thanks, Rhonda LaFrance Board of Appeals Office Administrator 1146 Route 28 South Yarmouth,MA 02664 508-398-2231 ex 285 508-398-0836 Fax The preceding e-mail message(including any attachments)contains information that may be confidential, may be protected by the attorney-client or other applicable privileges,or may constitute non-public Information.It Is intended to be conveyed only to the designated recipients)named above. If you are not an intended recipient of this message,please notify the sender by replying to this message and then delete all copies of it from your computer system.Any use,dissemination,distribution,or reproduction of this message by unintended recipients is not authorized and may be unlawful. Confirmation Report — Memory Send Date & Time: 10-20-2009 11:28 Tel line Machine ID : Job number : 779 Date & Time : 10-20 11:27 To : 5087753720 Number of pages : 002 Start time 10-20 11:27 End time : 10-20 11:28 Pages sent 002 Status : OK Job number : 779 *** SEND SUCCESSFUL *** o I - - - ..4. o TOWN OF YA22MOLITI7 3 'YR • a' BOARD OF AI'I'EAL13 `'..n.:2:. 11-1.-1 •••••- -2-.- 0 i r�dS. Ar•rtac�j.TTON - r - :.,�. o `O`ZC"v per[ "r. •1"7. 13 mi 3' 36 Appeal#: IA Z ISA Hearing Date: 144: _ Pees O Owner- William Marasco t�-I •'- 'i =- APP1lcantx 143 River St est t Sou tegintaaltinectaleitraigerbef2664 7T♦....SZ adarerrl CTplepboaa sti (Emailr0the Address) e 9 ea 3s3 and is the (check one) a Owner 0 Tenant 0 Prospective Buyer ❑ Other Interested Patty Property: This application relates to the property located at: 143 River Styes 4S. Yarmouth and shown on the Assessor's Map M: t2'-i4 as Parcel#: 9 9 9 I Zoning District: R9 40 If property is on an un-constructed(paper)street name of nearest oss street, or other identifying location: Projects The applicant seeks permission to undertake the Following construction/use/activity (give a brief description of the project. i.e.: **acid a 10'by 15'deck to the front of our house"o "change the use of the existing building on the property"): RELIEF 1tEQUESTEDx The applicant seeks the Following relief from the Board of Appeal-: I) X nfVER5n THE DECISION OP THn nVILDINO INSPECTOR OR THE ZONING ADMINISTRATOR dated 7-14-62lich a copy of the decision ay pealed from). State the rens•n for reversal and the ruling which you request the Board to make._ Rut lding Permit issued , pre-existing non- conforming two-family still valid 2) SPECIAL.PERMIT under§ of the Yarmouth Zoning By-law and/or For a use authorized upon Special Permit in the "I-Tse Regulation Schedule" §202.3 .(use spaces below if needed) 3)_VARIANCE from the Yarmouth Zoning By-law. Specify ill sections of the by-law Fro n which relief is requested, and, as to each section, specify the relief sought: Section: Relief sought: Section: Relief sought: Section: Relief sought: ADDITIONAL INFORMATION: Please use the space below tc•provide any additional information which you feel should be included in your application: Page 1 of I LaFrance, Rhonda From: LaFrance, Rhonda Sent: Wednesday, October 14, 2009 12:05 PM To: 'marasco william' Cc: 'Steven'; Brandolini, Jim Subject: October 22 BOA Attachments: Board of Appeals Agenda 10-22-09.doc Bill: Here is a copy of the Agenda. As noted,you are listed first on the Agenda, however the Chairman may take the other filings first as they are more straight forward and quick matters. (fyi#4278 is being withdrawn). Rhonda LaFrance Board of Appeals Office Administrator 1146 Route 28 South Yarmouth,MA 02664 508-398-2231 ex 285 508-398-0836 Fax The preceding e-mail message(including any attachments)contains information that may be confidential,may be protected by the attorney-client or other applicable privileges,or may constitute non-public information.It is intended to be conveyed only to the designated recipients)named above. If you are not an intended recipient of this message,please notify the sender by replying to this message and then delete all copies of it from your computer system.Any use,dissemination,distribution,or reproduction of this message by unintended recipients Is not authorized and may be unlawful. 10/14/2009 E©Opv lift, TOWN OF YARMOUTH t Board of • " �• 1146 ROUTE 28, SOUTH YARMOUTH,MASSACHUSETTS 02664-4451 Appeals IIATMCHEL Telephone(508)398-2231 Ext. 1285,Fax(508)398-0836 MEMORANDUM To: William Marasco From: Rhonda LaFrance, Office Administrator Date: August 25, 2009 Subject: Petition #4268-143 River Street The hearing originally scheduled for September 10, 2009, and rescheduled for October 8, 2009, needs to be further scheduled to October 22, 2009 as our Town Council, Douglas Murphy can not attend on the 8th, as he will be out of town. Please sign the enclosed Agreement for Extension as soon as possible, in order to extend the time frames and I will file it with our Town Clerk. H33-13-2009 14:30 Mal:CDI SO87715202 TO:15033980836 P.1/1 • RECEIVED AUG 1 3 2009 YARBOARD OFOAPPEALS To Board of Appeals Date: 13Aug09 I have been contacting different lawerys to represent me,One cannot make the September 10 date,I would request that the date be moved to the next available date. Thank you for your attention to this matter Bill Marasco 143 River St al 1 s-v d`> 3e1 d'3 6 � l.J • 24 Bass River Parkway South Yarrnouth,MA,02664 October ft, 'Ong RECEIVED Yarmouth Board of Appeals 1146 Route 28 OCT 9 2009 South Yarmouth, MA,02664 YARMOUTH BOARD OF APPEALS •Dear Members of the Board of Appeals : • r RE:143 River Street I 0 It is my understanding that on October 22,2009 you will hear a request from Dr. (7 William Marasco to reverse the order he has received from Building Commissioner Brandolini. ) _ , Mf interest in the permitting process followed at 143 River Street is well chronicled in the file you have reviewed and need not be repeated here. I art:writing to urge you to reject Dr. Marasco's plea and fully endorse Mr. Brandolini's'prder. It is a logical extension of what a fresh review of the facts has shown, • i.e.'• pre-existing,non-conforming duplex use at 143 River Street terminated at least two years prior to Dr. Marasco taking ownership. ;, While you may not remember it,143 River Street was on your agenda in early 2006 but was scratched after notices had gone out to abutters. It is fitting that it is back before you. f• Sincerely yo rs, m Richard W. Shea, MD 24 Bass River Parkway South Yarmouth,MA,02664 October R, 2BBA Yarmouth Board of Appeals RECEIVED 1146 Route 28 OCT 9 2009 South Yarmouth, MA,02664 YARMOUTH BOARD OF APPEALS Dear Members of the Board of Appeals : RE:143 River Street It is my understanding that on October 22,2009 you will hear a request from Dr. William Marasco to reverse the order he has received from Building Commissioner Brandolini. Mf interest in the permitting process followed at 143 River Street is well chronicled in the file you have reviewed and need not be repeated here. I am writing to urge you to reject Dr. Marasco's plea and fully endorse Mr. , Brandolini'sorder. It is a logical extension of what a fresh review of the facts has shown, i.e. pre-existing, non-conforming duplex use at 143 River Street terminated at least two years prior to Dr. Marasco taking ownership. While you may not remember it,143 River Street was on your agenda in early 2006 but was scratched after notices had gone out to abutters. It is fitting that it is back before you. I Sincerer Richard W. Shea, MD Page 1 of 2 LaFrance, Rhonda From: Frank Rudewicz[frudewicz@lido.com] Sent: Tuesday, December 08, 2009 11:17 AM To: LaFrance, Rhonda Subject: Yarmouth Board of Appeals RE: 143 River St Importance: High My name is Frank Rudewlcz and I am the current owner/permanent resident of 190 River St and a member of the"Bass River Park a Residential Subdivision in South Yarmouth, Mass*(as shown on our respective deeds). The property at 143 River St is also included in this subdivision. I am writing in regards to the upcoming December 10th Zoning Board of Appeals hearing regarding the property at 143 River St. I specifically request that the Board deny the home owner's request to reverse Building Inspector Brandollni's order for sufficient documentation demonstrating that there was no interruption/lapse beyond two years in the apartment use on the property. Additionally, I request that an order for a variance petition be ordered to be filed with the Zoning Board of Appeals to review the renovations to the property. My reasons for my request are several: I have owned my property at 190 River St since December of 2004.The house remained vacant while I completed extensive renovations to it, In April of 2007, my family moved into the property and we have been here ever since. I have recently been provided with the history of the property at 143 River St. I am concerned of the differing opinions concerning past use and that the property may be considered multi family. This was not something that I was aware of(or made aware of)when purchasing my home. I am concemed that this could have an impact on my home as an abutter and adjoining property. Additionally,I was never given notice of the extent of the proposed renovations that began in 2006 and how they may impact my property, otherwise I would have raised this issue before. Due to the fact that I owned my property but was not living there at the time, I was not In a position to observe the extent of ongoing construction. I naturally assumed that there was no issue as to permits and restrictions. Due to the varying legal opinions and varying information available as to the historical use of the property, I believe it is in the best interests of the Town and all adjacent property owners that a full and open review be conducted as it relates to this property. With the a full and complete airing of all applicable information,The Town will be able to make the appropriate decision. Thank you for your consideration. Please contact me via email or phone at 508-760-5760 if you have any questions Frank E.Rudewlcz,CPP,CAMS I Managing Director I BDO Consulting I A division of BOO Seidman,LLP 100 High Street I Boston,MA 02110 0 External:(817)422-751910 Internal:315-7519 D Cell:(860)604-7011 1❑ Fax:(817)422-0909 D E-mail:FRudev4a4121500.corn I 0 Website:www.bd000nsulting.com ® BDO Consulting I A division of BOO n-u�-� ''n J Please read the following disclaimer If the above communication includes fax advice.Ifit does not include tax advice,please disregard the following information In bold. 12/8/2009 Page 1 of 2 • RECEIVED LaFrance, Rhonda VIA E-MAIL From: Frank Rudewicz(frudewicz@bdo.com] Sent: Tuesday, December 08, 2009 11:17 AM To: LaFrance, Rhonda Subject: Yarmouth Board of Appeals RE: 143 River St Importance: High My name is Frank Rudewicz and I am the current owner/permanent resident of 190 River St and a member of the"Bass River Park a Residential Subdivision in South Yarmouth, Mass" (as shown on our respective deeds). The property at 143 River St is also Included In this subdivision. I am writing in regards to the upcoming December 10th Zoning Board of Appeals hearing regarding the property at 143 River St. I specifically request that the Board deny the home owner's request to reverse Building Inspector Brandolini's order for sufficient documentation demonstrating that there was no interruption/lapse beyond two years in the apartment use on the property. Additionally, I request that an order for a variance petition be ordered to be filed with the Zoning Board of Appeals to review the renovations to the property. My reasons for my request are several: I have owned my property at 190 River St since December of 2004.The house remained vacant while I completed extensive renovations to it. In April of 2007, my family moved into the property and we have been here ever since. I have recently been provided with the history of the property at 143 River St, I am concerned of the differing opinions concerning past use and that the property may be considered multi family. This was not something that I was aware of(or made aware of)when purchasing my home. I am concerned that this could have an impact on my home as an abutter and adjoining property. Additionally, I was never given notice of the extent of the proposed renovations that began in 2006 and how they may impact my property, otherwise I would have raised this issue before. Due to the fact that I owned my property but was not living there at the time, I was not in a position to observe the extent of ongoing construction. I naturally assumed that there was no Issue as to permits and restrictions. Due to the varying legal opinions and varying Information available as to the historical use of the property, I believe it is in the best interests of the Town and all adjacent property owners that a full and open review be conducted as it relates to this property. With the a full and complete airing of all applicable information,The Town will be able to make the appropriate decision. Thank you for your consideration. Please contact me via email or phone at 508-760-5760 if you have any questions Frank E.Rudewicz,CPP, CAMS I Managing Director I BDO Consulting I A division of BDO Seidman,LLP 100 High Street I Boston,MA 02110 ❑External:(617)422-7519 I D Internal:315-751910 Cell:(860)604.7011 1 O Fax:(617)422-0909 ❑E-mail:FRudewicz@BpO.com I❑ Website:www.bdoconsulting com BDO Consulting I A division of BDO Please read the following disda/mer if the above communication includes tax advice.If it does not Include tax advice,please disregard the following information in bold. 12/8/2009 Page 2 of 2 7.1 To ensure compliance with Treasury Department regulations,we wish to Inform you that,unless expressly stated otherwise in this communication(Including any attachments)any tax advice that may be contained in this communication is not Intended or written to be used,and cannot be used,for the purpose of(I)avoiding tax-related penalties under the Internal Revenue Code or applicable state or local tax law provisions or(II)promoting,marketing or recommending to another party any tax-related matters addressed herein. NOTICE: The contents of this email and any attachments to it may contain privileged and confidential Information from BDO Seidman,LLP.This Information Is only for the viewing or use of the Intended recipient.If you are not the intended recipient,you are hereby notified that any disclosure,copying, distribution or use of,or the taking of any action In reliance upon,the Information contained In this e-mail,or any of the attachments to this a-mall,Is strictly prohibited and that this e-mail and all of the attachments to this a-mall,If any,must be Immediately returned to BDO Seidman,LLP or destroyed and,in either case,this a-mall and all attachments to this a-mall must be immediately deleted from your computer without making any copies hereof.If you have received this e-mail In error, please notify BDO Seidman,LLP by e-mail immediately. BDO International Is a world wide network of public accounting firms,called BDO Member Firms. Each BDO Member Firm is an Independent legal entity In Its own country.The network is coordinated by BDO Global Coordination B.V.,Incorporated In the Netherlands with its statutory seat in Eindhoven(trade register registration number 33205251)and with an office at Boulevard de la Woluwe 60, 1200 Brussels,Belgium,where the International Executive Office Is located. • 12/8/2009 Property Location: 143 RIVER ST MAP ID:34/282/// Bldg Name: State Use:1010 Vision ID:4905 Account#0531100 Bldg#: 1 of 1 Sec#: 1 of I Card 1 of 1 Print Date:08/14/2009 09:34 -" CONSTRUCTION DETAIL- CONSTRUCTION DETAIL(CONTINUED) ' '`. .. '= Element Cd C/a Description Element Cd Ch. Description Style 63 Old Style , NCH 13 1 28 Model 01 Residential Grade 06 Excellent FUS Stories 2 2 Stories 3060 FGR 33 Occupancy I 'MIXED USE Exterior Wall 1 14 Wood Shingle Code Description Percentage Exterior Wa112 1010 SINGLE FAM MDL-01 100 6 13 28 Roof Structure 03 Gable/Hip FOP KoofCover 03 Asph/F GIs/Cmp Interior Wall 1 05 Drywall/Sheet Interior Wall 2 03 Plastered COST/MARKET VALUATION 28 Interior Fit 1 14 Carpet Adj.Base Rate: 187.86 Interior Flr 2 09 Pine/Soft Wood Section.RCN: 1,005,252 PTO 5 7 Heat Fuel 03 Gas Net Other Adj: 0.00 22 Replace Cost 1,005,252 WDK Heat Type 04 Forced Air-Duc AYB 1860 PTO 18 AC Type 03 Central Total Bedrooms 06 6 Bedrooms Dep Code • VG AS 14 Total Bthrms 4 Remodel Rating 106 FUS Total Half Baths 0 Year Remodeled 50 BAS Total Xtra Fixtrs Dep% 25 34 Total Rooms Functional Obslnc D 32 Bath Style 02 Average External Obslnc 0 6 Kitchen Style 02 Modern . Cost Trend Factor 36 Condition %Complete 12 Overall%Cond 75 Apprais Val 753,900 - V.,yi't •ar''� ^ st4 s ...--,f4;')7. i Dep%Ovr D dr,,� sI r ' .,� .a * Dep OwComment 'r " i` . ''E �, .e-ry , q L �. , � Misc Imp Ovr D_ �,Sra7,4477, . } '` ;_jr *�" •til ' " ^ 'tt" t ccr;n, ar--4.4 ' '+{ t. -cw2'�t ` + tl' 1Misc ImpOvr Comment » R»5xrsaCO, ;of ` ”r � 4i, + a. 0Cost to Cure Ovr 0 { Cost to Cure Ow Comment ti • OB-OUTBUILDING&:YARD ITEMS(L)/XF-BUILDING EXTRA FEATURES(B) :.r -�``yt a.r_'gr-`.,., .�ttt ta-- .,,:.._ —:._. 1 ':r' •.' - Code Descri•tion ub ub Descrier B Units Unit Price Yr 5de I.Rt nd %.Cnd er Value � . ._ r„.....44, o ni 'r - PAT2 PATIO-GOOD L 231 5.00 1980 0 75 900 ^ s "�`� ""' r SHD1 SHED FRAME L 140 8.00 2004 0 100 1,100 " � t ( ( � ~+ c r `? FPL3 2 STORY CHIT B 1 2,800.00 1983 1 100 2,100 r r als 1 rti 4 k (((,,,,,,,��� . EOS End Outs Shm B 1 0.00 1983 1 100 0 ' 1 x t. BUILDINGSUBAREASUMMARYSECTION `'"�' Code Description Livin:Area Gross Area Ei.Area Unit Cost Unde'rec. Value ,,,._.,, jjre_ i-;-- BAS First Floor 1,874 1,874 1,874 187.86 3; ,11:162 • '+*'-i, s r,Jn r v t ^4 FGR Garage 0 1,314 526 75.20 {•. °rvS' . ,.; '-...11.1•4754474 'r,xe s '«*x' FOP Porch,Open,Finished 0 196 39 3738N'�'`�r "F v v �a w `" gym,# • 't FUS Upper Story,Finished ' 2,862 2,862 2,862 187.86 537,662 `.:4Lif -r w.".12,140 4 • • I PTO Patio 0 252 13 9.69 2,442 3r `fir d * • s ,- , 9 WDK Deck,Wood - 0 - :372 37 18.69 6,951 moiy a! . 1° m ' it g C' e • -r• 4736 6870 5 SI 1 005 252 e ` bt.nt. '•r sr .. —. " .-_ Property Location:143 RIVER ST MAP ID:34/282/// Bldg Name: State Use:1010 Vision ID:4905 Account#0531100 Bldg#: 1 of 1 Sec#: 1 of 1 Card 1 of 1 Print Date:08/14/2009 09:34 'CURRENT OWNER .- TOPO. F UTILITIES -' ;STRT✓ROAD LOCATION - '', 'C(IRRENT4SSESSMENT NORTHSTAR PROPERTY MGT LLC 1 Level 2 Public Water 1 Paved 2 Suburban Description I Code (Appraised Value Assessed Value 21 AARON'S WAY — 6 Septic RESIDNTL 1010 756,000 756,000 815 RES LAND 1010 758,500 758,500 YARMOUTH,MA RESIDNTL 1010 2,000 2,000 W EST YARMOUTH,MA 02673 SUPPLEMENTAL DATA - Additional Owners: Other ID: 29/W003/// MISC 180 CHANGES BETTERMENT VISION PLAN NUMBEI67 ZIP CODE 2664 GIS ID: 4905 ASSOCPID# Total 1,516,500 1,516,500 .= RECORD OF OWNERSHIP - _BK-VOL/PAGE SALE DATE q/u v/i SALE PRICE V.0 PREVIOUS ASSESSMENTS(HIS TOR NORTHSTAR PROPERTY MGT LLC 22686/215 02/21/2008 U I 100 IF Yr. Code Assessed Value Yr. Code Assessed Value Yr. Code Assessed Value MARASCO,WILLIAM 14509/192 11/3012001 Q I 660,000 00 2009 1010 781,2002008 1010 781,2002007 1010 459,300 COUGHLIN EDWARD L I 0 2009 1010 971,400 2008 1010 990,100 2007 1010 1,074,100 2009 1010 2,000 2008 1010 2,000 2007 1010 2,000 Total: 1,754,600 Total: 1,773,300 Total: 1,535,400 . EXEMPTIONS = OTHER ASSESSMENTS This signature acknowledges a visit by a Data Collector or Assessor Year Type Description Amount Code Description Number Amount Comm.Int. APPRAISED:VALUE.SUMMARY -- '_: Total - Appraised Bldg.Value(Card) 753,900 j ASSESSING NEIGHBORHOOD = Appraised XF(B)Value(Bldg) 2,100 NBHD/SUB NBHD NAME STREET INDEX NAME TRACING BATCH Appraised OB(L)Value(Bldg) 2,000 0080/A Appraised Land Value(Bldg) 758,500 -- NOTES - -- - :,,'.Special Land Value 0 VERY GOOD WATER VIEW LN LAW APT I/G BOA#3908 Total Appraised Parcel Value 1,516,500 Valuation Method: C BOA#3908-2004 Adjustment: 0 A/C BD BOAIt4023-2006 Net Total Appraised Parcel Value - 1,516,500 BUILDING PERMIT RECORD -- --VISIT/CHANGE HISTORY Permit ID Issue Date Type Description Amount Insp.Date %Comp. Date Comp. Comments Date Type IS _ ID Cd. Purpose/Result 08-437 10/012007 RP Repair 9,400 0 RESIDE 4 SQ'S 6282007 GM BP Building Permit 07-968 02/15/2007 WIN Windows 9,400 0 7 REPLACEMENT WIN 5/17/2005 CM BP Building Permit 06-1162 03/31/2006 FD Foundation 8,000 06282007 100 FOUNDATION 6/82004 KF BP Building Permit 06-1121 03212006 DE Demolish 10,000 06/28/2007 100 DEMOLISH GARAGE t 8/28/1995 RD 00 MeasurrListed 06-1236 04/19/2005 NC New Construct 179,000 06/2812007 100 3 CAR GAR W/2ND FL 05-220 08/162004 AD Addition 80,000 05/17/2005 100 01/01/2005 2 STORY FRONT ADD( `05-019 07/06/2004 AD Addition 51,600 05/17/2005 100 01/01/2005 2ND FLOOR W/DECK - - LANDLlNEVALUATIONSECTION B Use Use Unit L Acre C. ST. # Code Description Zone D Frontage Depth Units Price Factor SA. Disc Factor Idz Adj. Notes-Adj Special Pricing M/. Unit Price Land Value 1 1010 SINGLE FAM MDL-0I 24,394 SF 4.68 1.00 8 1.0000 3.50 0080 1.90 LOC 31.09 758,500 Total Card Land Units: 24,394 SF Parcel Total Land Area:24,394 SF I Total Land Value: 758,500 r {r, pF-"A. • 1 ory TOWN OF YARMOUTI�ARMOUTH C s, ._i BOARD OF APPEAL \-/\/N,I CLERK (� ` DECISION 4)1 776 NAR 23 F11 3: 40 RI FILED WITH TOWN CLERK: March 23, 2006 =C CiVCD PETITION NO. #4023 HEARING DATE: March 9,2006 PETITIONER William Marasco PROPERTY: 143 River Street, South Yarmouth Map and Parcel: 34.282 Zoning District: RS40 MEMBERS PRESENT AND VOTING: David S. Reid, Chairman, John Richards, Joseph Sarnosky, Sean Igoe, Diane Moudouris,and Forrest White,Alternate. It appearing that notice of said hearing has been given by sending notice thereof to the petitioner and all those owners of property deemed by the Board to be affected thereby, and to the public by posting notice of the • hearing and published in The Register,the hearing was opened and held on the date stated above. - The petitioner seeks a Special Permit or Variance,in order to be allowed to reconstruct and enlarge an existing .. non-conforming garage building containing an accessory apartment. The property is in the RS40 zone, and the lot contains approximately one half of an acre. Prior to the commencement of the hearing, the board received from the petitioner a request to withdraw the application,based upon additional information that had been provided to the Building Commissioner. A motion was made by Mr.Richards,seconded by Mr. Samosky,to allow the petition to be withdrawn without prejudice,as requested. The members voted unanimously in favor of the motion. C14)-e/fzi0-64l39 QDavid S. Reid, lerk 1 .Y9R TOWN OF YARMOUTH }4. a BOARD OF APPEALS YARMOUTH ir �'„ ' y TOWN CLERK %o sg FEB 13 Pit 3: 51 APPLICATION FOR HEARING Appeal#: 4023 Hearing Date: 31404 R E C ivie`s t )co Owner-Applicant: (N,\ /'"8 '''n-" nIAv As Y Fall Nama�lncluding d/b/a) I ? .a - � �•A r So • Wirt V co - o° (Address) (zip) (Telephone Number) and is the (check one) Oi\Owner 0 Tenant 0 Prospective Buyer 0 Other Interested Party Property: This application relates to the property located at: I y 2 ire S.1 a�shown on the Assessor's Map#: 3'{ as Parcel#: ZP z Zoning District:ft RS property is on an un-constructed (paper) street name of nearest cross street, or other identifying location: Project: The applicant seeks permission to undertake the following construction/use/activity (give a brief description of the project. i.e.: "add a 10'by 15'deck to the front of our house" or • "change the use of the existing building on the property"): ADD IA ,.,i_ 3o a s� E e.-i +6PK - Gi s t.1 itm- Ca.. 1,v4 Ara ax-ACRA 1 r ,F 11144s- t ,- Ailm-rc..A RELIEF REQUESTED: The applicant seeks the following relief from the Board of Appeals: • • 1) REVERSE THE DECISION OF THE BUILDING INSPECTOR OR THE ZONING ADMINISTRATOR dated (attach a copy of the decision appealed from). State the reason for reversal and the ruling which you request the Board to make. (e 2) ✓ SPECIAL PERMIT under§/O3/4 3.2 P of the Yarmouth Zoning By-law and/or for / a use authorized upon Special Permit in the "Use Regulation Schedule" §202.5 .(use space pbelow if needed) tig 3)/VARIANCE from the Yarmouth Zoning By-law. Specify all sections of the by-law from which relief is requested,9and, as to each section, specify the relief sought: Section: 20.2.6 'i/ Relief sought: f- Section: Relief sought: Section: Relief sought: ADDITIONAL INFORMATION: Please use the space below to provide any additional information which you feel should be included in your application: XLUt,4•.- et11,. on 3vo an, n.0t R.1�*424 ck...�„ acs �-� . FACT SHEET Owner of Property(if other than applicant): .A-...i, (Full Name) (Address) (Telephone Number) How long has the owner had title to the above property: 2 co J Book: Page: (Give title reference) Use Classification: Existing: 2. — ^-L-1 §202.5 # /--t. Proposed: caw: ' '§202.5 # Is the property vacant: UUtJL If so, how long?: Lot Information Size/Area: ' � A-•U Plan Book and Page / Lot# Is this property within the Aquifer Protection Overlay District? Yes No Have you completed a formal site plan review(if needed)? Yes No Other Department(s) Reviewing Project: Indicate the other Town Departments which are/ have/or yyo�uu nevi r this project, and indicate the status of their review process: • 4- 14e•-vid, Repetitive Petition: Is this a re-application: If yes, do you have Planning Board • Approval? Prior Relief: If the property in question has been the subject of prior application to the Board of Appeals or Zoning Administrator, indicate the date and Appeal number(s)and other available information. Include atopy of the decision(s)with this application: S7/ - 1967 V o az - . Building Commissioner Comments: 47 a „e,64..,,:/ ane/o✓ a �‘ 7 , / _i4 r Yr '' Applicant's/Attorney/Agent Signature Owner's Signature Address: ilding Commissioner Signatur Da e of•YaR TOWN OF YARMOUTH 0-3 BUILDING DEPARTMEN F' E c E / V E D O .- c w .� 1146 Route 28, South Yarmouth, MA 026, .:>::• 508-398-2231 ext. 261 Fax 508-398-083 r MAR ? 2006 BOARD OFOUTH APPBALg MEMORANDUM TO: Zoning Board of Appeals FRCiM: . James D. Brandolini, Building Commissioner / 6) DATE: March 7,2006 SUBJECT: 143 River Street Petition 4023 Attached please find a copy of Attorney Creney's latest transmittal dated March 6,2006. Based on - . information provide him it is his opinion that the use of the unit in question was not discontinued and therefore relief from the Board is not necessary in so far as the use is concerned Secondly, the proposed reconstruction of this unit will comply with the provisions of zoning bylaw Section 104.3.2 (1) and therefore may be performed without relief. cc: Dr. William Marasco MAR-06-2006 15:57 ATTY JOHN CRENEY 15083621125 P.01 • ' • TELECOPY COVER SHEET John C. Creney, P.C. - Attorney at Law 86 Willow Street Yarmouth Port,Massachusetts 02675 If there is a problem with transmission or if all pages are not received,please call 508-362-1122 for retransmission. Fax 508-362-1125 TO:James D.Brandolini FAX#: 508 398-0836 COMPANY:Town of Yarmouth FROM: John C. Creney DATE: March 06, 2006 RE: Town of Yarmouth with Marasco Number of pages including this cover page: 2 This message is Intended only for the use of the individual or entity to which it is addressed.and may contain ihtbrmatiat that Is • p(t1VILL'UEI). C(NdF-IDI Nl IAI. and exempt from disclosure under applicable law. If the reader of this message is not the Intended recipient. or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination,distribution or copying of this umlmunication is strictly prohibited. If you have received this • commtnication hi error,please notify us immediately by telephone.and reams the original to us by mail without making a copy. Thank you. Comments: Our series of correspondence on the matter of the continuation of a nonconforming use as a duplex of the premises at 143 River Street has led us to the question of whether the second dwelling unit was not used for any period of time exceeding two years prior to the time when the current owner, Dr. Marasco, took title in 2001. This duplex was constructed in 1967, and became nonconforming in 1971 when the minimum area requirement for duplexes was increased. In view of the fact that the Board of Health has issued rental certificates to Dr. Marasco and the septic system has been upgraded, there appears to be no question that the second dwelling unit has been used since Dr. Marasco took title. Had the unit not been used for a period of two years or more, then under section 104.3.1 of the zoning bylaw, then the nonconforming use of the premises would have been lost and the premises would have reverted to the conforming use of a single family dwelling. Your most recent correspondence includes a letter from Richard Bussiere;-a trust officer of TD Banknorth, which was the trustee holding title to the property from the death of Edward Coughlin in 1972 until the - 1557 RTTY 3094 CRENEY 15083621125 P.O2 /, conveyance to the current owner, Dr. William Marasco, in November of 2001. In that letter, Mr. Bussiere states that the unit in question was rented in the 1980's, and was used by Coughlin family members and by members of the families of the caregivers of the Coughlin family in the 1990's,until the sale to Dr. Marasco in 2001. Taking that letter at face value as fact, then it appears that the use of the unit was not discontinued; that section 104.3.1 of the zoning bylaw is not applicable; and that the preexisting nonconforming use as a duplex may lawfully continue without any necessary relief from the Board of Appeals. ao•-ao ri i i r J UIIN t�ttNhY 15083621125 P.01/01 TELECOPY COVER SHEET e. John C. Creney, P.C. v©@P y Attorney at Law 86 Willow Street Yarmouth Port,Massachusetts 02675 If there is a problem with transmission or if all pages are not received,please call 508.362-1122 for retransmission. Fax 508-362-1125 TO:James D. Brandolini FAX#: 508 398-0836 COMPANY: Town of Yarmouth FROM:John C. Creney DATE: February 09,2006 RE:Town of Yarmouth with Marasco Number of pages including this cover page: I This message is intended only for the use of the Individual or entity to which it is addressed,and may contain Information that is PRIVILEUFD. CONFItWN'I'IAI. end exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intucded recipient, you arc hereby • notified that any dissemination, distribution or copying of this communication Is strictly prohibited. If you have received this communication in error.please notify us Immediately by telephone,and Tatum the original to us by mall without making a copy. Thank you. • Comments: With respect to Olson v. Board of Appeals of Attleboro, I have checked later cases. Olson has not been reversed and appears to still be • good law. The width of the breezeway in that case was six feet, and the Court said that the house, breezeway and garage were designed to produce a unified architectural effect. The width of the breezeway at the Marasco house is about thirty feet. Not having seen the breezeway, I'll leave it to you as to whether the Marasco breezeway is designed to produce a unified architectural effect. I suppose that we now contemplate that the applicant could assert that the proposed structure is neither an accessory building (too large in area), nor an addition to a lawfully existing two family dwelling (can't show lawful existence of two family dwelling), but rather that the proposed. structure is an addition to a lawfully existing single family dwelling, defined as in Olson. If you gave the applicant the benefit of the doubt on the unified architectural effect of the thirty foot long breezeway, then it could be justified. I LDly.:GEJcn.JJ 1J.JG MI I JUrIIY LFC.i'GI sJGOJOGIIGJ r.Gl/GL TELECOPY COVER SHEET 470,,;\ John C. Creney, P.C. • Pk Attorney at Law 86 Willow Street Yarmouth Port,Massachusetts 02675 If there is a problem with transmission or if all pages are not received,please call 508.362-1122 for retransmission. Fax 508-362-1125 TO: James D. Brandon's' • FAX#: 508 398-0836 COMPANY: Town of Yarmouth FROM:John C.Creney ' DATE: February 09,2006 RE: Town of Yarmouth with Marasco Number of pages including this cover page: I This message is intended only for the use of the individual or entity to which It is addressed.and may contain Information that is PRIVILEGED. CONFIDENTIAL and exunpt from disclosure under applicable law. If tic reader of this ',image is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dixteminatitm, distribution or copying of this communication Is strictly prohibited. If you have received this communication In error,please notify us immediately by telephone.smd return the original to us by mail without making a copy. Thank you. Comments:If, instead of this proposed structure being an accessory building (a garage), it is asserted that the proposed structure will be an addition to a lawfully preexisting nonconforming two family residence on a nonconforming lot, then it would seem that in order to take advantage of paragraph I of section 104.3.2, the applicant has the burden of showing to you that the existing structure is (i) lawfully preexisting; and (ii) a two family residence. We are met again with the 1967 denial by the Board of Appeals of the request for an apartment in the then existing garage, which goes to the "lawfully preexisting" issue; the 1997 termination of the water service, from which one could infer an abandomnent of any then illegally existing second dwelling unit; and the effect, if any, of the fact that the canopy, connecting the main house with the existing garage, has no walls. Maybe the lack of walls is of no significance. I don't know. But the documents show the earmarks of an abandoned illegally created dwelling unit in a garage. If the applicant can convince you that the existing house and existing , garage constitutes a lawfully preexisting two family residence, fine. However, it looks as if he has a large burden to so convince you. Tf1T01 P 1711 LEXSEE 324 MASS 57 Robert V.Olson&another v.Zoning Board of Appeal of Attleboro (NO NUMBER IN ORIGINAL) Supreme Judicial Court of Massachusetts 324 Mass.57;84 N.E.2d 544; 1949 Mass.LEXIS 556;7 A.L.R.2d 591 October 25,1948,Argued March 8,1949,Decided PRIOR HISTORY: [•"11 Bill In equity, filed in the Superior Court on Febru- Brtstol. ary IS, 1947. The suit was heard by Goldberg,J. HEADNOTES: Zoning. Attleboro. Building. Real Property, Build- JUDGES: ing. Equity Pleading and Practice, Decree, Zoning ap- Qua, Cl, Lummus, Ronan, Wilkins, & Williams, peal. 11. SYLLABUS: OPINIONBY: A garage, physically attached to a dwelling house WILLIAMS and having under its roof and within its walls,adjacent to the house, a paved"breezeway" with open archways at OPINION; the front and back and doors at the sides opening into the ("58] [++544] This a bill In equity by way of ap- • house and the garage proper, was not a separate "aeon- peal from the decision of the zoning board of appeal of • sory building," but was a component part of the housethe city of Attleboro brought under the provisions of§ and formed therewith one building,within a provision of the zoning ordinance of Attleboro requiring certain side 30, Inserted in Q.L.(Ter.Ed.)c.40,by St 1933,c.269, yards in connection with "every building or strtrcntre § 1, as amended by St. 1935, c 388, and St 1941, c. (other than an accessory building . . .)" in a residential 198, § § 1, 2,to annul the decision of said board of ap- district peal and to direct the Inspector of buildings to issue to the plaintlft3 a permit for an addition to their garage at 33 In a suit in equity brought under G.L. (Ter.Ed.)c. 40, § Ashton Road in said city. The plaintiff: ( 945] have 30, as appearing in St. 1933, c.269, § 1,by way of ap- appealed from a decree entered by a judge of the Supe- rior peal from a decision by a zoning board of appeals,where Cou2 the decision of the board was within its Jurisdiction and From the evidence,which is reported and essentially was correct on the merits, the decree of the Superior is not in dispute, it appears that the plaintiffs are the Court, besides providing that the decision was within the owners of a lot of land with a side family dwelling and Jurisdiction of the board (6"2] and should not be an- garage thereon located in a "single residence district" as nulled and that the clerk send certain attested copies of darned-by § 2 of the zoning ordinance of die city of the decree, should have provided that "no modification Attleboro (*"31 which became effective on February of'the decision"is required." 10, 1942. The house, containing seven moms, is of wooden'construction, Dutch colonial type, is thirty-five COUNSEL: feet wide on its from or street side,and has a depth from J. W.McIntyre,for the plaintiff front to back of twenty-five feet As one faces it from the street there is a covered porch or piazza on the end of the No argument nor brief for the defendant house to the left and a one-car garage not over one and ons MI V) rtrrnr enrnrn ..... -_.-_ ..._ ._. ._. • r, „ Page 2 324 Mass.57,*;84 N.E.2d 544,**; 1949 Mass.LEXIS 556,***;7 A.L.R.2d 591 one half stories in height on the end to the right. The and ruled that the plaintiffs were not entitled to a permit house, both on the front and on the rear, as well as the as a matter of right, and entered a decree "that the deci- garage-on the front, has a double pitched or gambrel cion of the zoning board of appeal of the city of Aide- Inc ldo-roof.f e roofs are of similar design, except that, in the bona . . , was within the jurisdiction of the said zoning rear, a garage mo as a sm a pets . garages board of appeal;that the said [*60] decision should not physicallyowed or "fastened" to the house.The be, and it is not,annulled; and that the clerk of the court Cs-rim-Ear lower than the house, which is built upon a within thirty days of the entry of this decree send an at- terrace, tterrace, and the garage rains the house slightly tested copy thereof to the zoning board of appeal of the below the level of till-Tina's second story windows.Be- city of Attleboro and[•**6] to the inspector of buildings tweenthen t under sat-within the of the city of Attleboro." In our opinion the garage, so roof andwalls of the latter is an area six eet m width called breezeway and house constitute one building. We an'3�It iree- et in depth oavedwith flagstones. At the left are aided-m reaching this conclusion by a photograph a door leads from this area down a few steps into the which is in evidence. Certainly they were designed to basement of the house and at the tight a door opens Into produce a unified architectural effect. A siigat analogy [*59] the garage. The area ***4] has two open arch- exists in the case of bay windows, donna windows and ways, front and back;each three feet in war. Entering piazzas which, although not within the walls nor under the front archway one passes through this archway, over the roof of the house, usually [**546] are considered the paved area, out through the rear archway and along a extensions of and constituent parts of the house itself. pathway to the kitchen door at the back of the house. See Sanborn v. Rice, 129 Mass. 387;Bagnall v.Davies, This area,so described,was termed a"breezeway" In the 140 Mass. 76, 2 N.E. 786; Payson v. Burnham, 141 testimony. The plaintiffs' garage as presently ocated is Mass. 547, 6 N.E. 708; Loud v. Pendergast,206 Mass. four feet front the right side line of their lot. They desire 122, 92 N.E.40.The decision in H. W. Robinson Carpet to extend the right side of the garage three feet farther to Co. v. Fletcher, 315 Mass. 350, 353, 52 N.E2d 681, the right, which would bring the side wall of the garage where it was held that buildings on opposite sides of a as so extended to a distance one foot from the side lime of driveway connected by an overhead passageway were the lot A petition filed by the plaintiffs with the inspec- separate buildings, depended on the construction• of a for of buildings for a permit to make such extension was lease and is not a precedent in the present case. The rul- • denied by the inspector as a matter of law,and on appeal kg of the judge was right the zoning board of appeal sustained the decision of the• In the decision of the board of appeal after findings inspector. Section 14 of the zoning ordinance provides, of fact it was stated, "application [for the permit] is "There shall be provided on each side of every building hereby [***7] denied and dismissed." The judge In the • or structure (other than an accessory building not over decree entered by his order adjudged that such denial and • one and one-half(1 1/2)stories in height and not used for dismissal were within the jurisdiction of the board of habitation) hereafter erected or placed upon any lot in a appeal and,therefore,its decision should not be annulled. • resident district,a side yard not less than fifteen(15)feet The refusal to annul, being based on jurisdictional in width." Section 9, paragraph [***5] B, of the same grounds (see Clap v. Municipal Council of Attleboro, ordinance provides that the Inspector of buildings, on 310 Mass.605,39 N.E.2d 431),only amounted to a find- whom is imposed the duty of executing the provisions of ing in the language of the statute,that the decision of the the ordinance, "shall not issue any permit...for the con- board of appeal did not "exceed the authority of such sanction, . . . alteration, enlargement, (or] extension . . . board." To dispose of the merits of the Issues raised by of any building or structure which would be in violation the plaintiffs'bill the words "and that no modification of of any of the provisions of this ordinance." If the garage it Is requited"should be added after the word"annulled." is not an "accessory building'but is a component pari of See Lambert v. Board of Appeals of Lowell, 295 Mass. the house under said § 14 suchextension of the garttgb 224, 228, 3 N.E2d 784, As so modified the decree is would be a violation of the ordintina, i't's the°antennae affed with costs. of the plaintiffs that the house, breezeway and garage do not constitute one building but that the garage is a sepa- So ordered rate building accessory to the house. 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'11111111m11n11I11m1111 Illn■IIIn111111111111111n11111111111111111111111111111118111111111111111 .11111111111111111111111111I1Wg1. 1111111111111111■•IIn2111111111m11n211111■111111111111uun/1uim11 Iu1112111111111.Illnt'1111■111I U 111111P...'-'-•-'-1_- 111111.",-'••••_••••LInn111mIIlUIInnunlli 111mm111n - .' 1m111 3 8 111111 1 ■11 .lII11l1 iii 111112111 11111111111 11111111111111111: ;111, -m111 �J 1111111 ' 1111111 1111//11 ■1■ '1111111111 uln■1111.11111I VIII 11111111= ii■ ._1111111_ ill 111111111 ■l. 1111111111 1111111111111111 1111 -_11121 1.111111=1.iii =11111- ,• i '_111/11111 II1I1111■II 1111111■11111■II ll■ 111111 1111111: IIaii,ll`11111111 iii,I-�--__-11111111 1111/11111 111■1111111111111- 711 .1111 11111111_,_ L - 111121--- . - ,111111111 1111111111 211111111.IIIIRm `--_-' ...11111' 1111111118■11111111111111111111I111111IlT1111■111111 111111111 11111 h il1111111■III-11■11i1111111■1 111111111111121111111118■1111111111111111111111111 II■1111111 1111111111/111111111821111.111111 11/11111■111111011111111111111111111111111111111111 a 1111211/1 11111111111111111111111111111111111 111I111IIII.11111.11111.II111.N111.II111.11111.II.11 sae MINIUM 1011.10111111110III111111111111111111111111 immiTI••••• ®Bit Elmtlm A3 , date: PROGRESS MEETING SET 124-05 :IF; Deck i % ,a. c CD to - r. .r Ing cz 2 .. s H fr , Id 1 1 © N---- _r d N F I��1.11111.1 ., 1 '� �'rJlck^ ..— {a3� _ I r ^Y p i{ TT 18 ,._ r 11 BaIA BMaaoom 1111 n- __, 05 y8 { . 1,11= g r/. w, 111,4nc`frr11F�i`N�9,11ii,Y f��9,�',/'A4 d`oL i foil J ) )13) .114c is 3-3 —) - Al r 38 � .. 3a7' tem • so. I I IpL, 1 Ile ' I 1 9 I r 1 • • • 1 J I-I .: • _• 11���1q, I I 1 ' I .. z 13 111e01 I I Ii�.1 1�t O I I 1 YYYff'"I I I I 1 11—_ !at- h l ►— t,e,a`a I —I m Ca M m m - I Z C, Ca Ill N 1 co O CT1 LLOfEALCONSmUCTION OW. Bass River Parkway WUU1 pobox 1737BREWST1E5t,MA625315083853114 I3" 11/4 r.,:;92,,,,..:,„,": L.:,. 'waw r r� � March 7, 2006 Town of Yarmouth Board of Appeals I would like to request to withdrawn without prejudice my application for relief. Based upon determination by the Building Commissioner, relief will not be necessary. TM ou, William Marasco 143 River Street South Yarmouth,MA 02664 MEMO To: William Marasco From: Rhonda LaFrance, Board Secretary Subject: Board of Appeals application Date: February 13, 2006 The Building Commissioner has returned your Board of Appeals application to me and • has indicated on the application that relief is needed in the form of a Special Permit or Variance from bylaw §104.3.2, and 202.5, use A2, and he signed it and I clocked into the Clerks Office today. Your hearing is scheduled for Thursday, March 9, 2006. • Would you please forward a check made out to the Town of Yarmouth for $102.50, which represents your filing fee. The Board of Appeals will need plans which show all four sides of the new proposed garage. The plan you provided shows two sides, Sheet A3, front and one side elevation. Basically, the Board needs to see"existing" floor plans and elevations and "proposed" floor plans and elevations. Sketches to scale are acceptable, and photographs are helpful as well. We would need those by Feb. 22, 2006, at which time the notices are mailed to abutters. If you have any questions, please call me at 508-398-2231 ex. 285. L. 1 1 Tf,-------- _ ! 86 .00 A - '3? I to 2 . ca /Co 1 3 1+ 63. 3it� I— 1 I r-- V �i--,-0n aID h4-' `l rs O Via _ c it m I " N "1 ri h `. t -r'' v y Ir ' I •b t o til c a 43 I a IV •• H i Its , i MMsbZEp a 4 283 W y o� _`�� b Jell X r-i", 4 L par"o , I 1 F Ne v � �-I 1 r iO t 912 T , AX' "bcvc> 4445, NOT>': Extsriwc Gvittestoro BE DE/AocicWED Il- E isinic• Sart) it gEMoveD rW ei/4.,e#77t' a: zwit04:2W/s Non/i✓ 77/C APuiFe7z.. 40/2o/acrl_a _Or/ezt ._o/371vcr. YAW,faitre-.1_ A.33,'5:56g5./Pr�PAO3¢`12&2 CERTIFIED. PLOT PLAN Wore: We'Pr-Cregrry is CoCOrvO/x.) PC.00D LOCATION A43.QlbW2 sr.4,99-Z texy?t og -Z0410" 4y -.silS •51404..h.l oiti Commas/ITV17,0r/Vt. ' SCALE . .C...17--.-?.---:. DATE �Z BIOS 7j0.. zsaazcfr cIDo6.p a mndo ase 7t/t-yi 121 - - S/DxJ.LaT5 2-3 JTrzr_ZFLE,..1J.:4. PLAN REFERENCE r? __Ze/ED-_2125"__44._.. 0, .-s.C.4'/1/=fl;4471936 . . . ,,1 �, N OF i \ fr' $ PSeW/A/ Q t/� 612S 137 LUw.� m !'1�iz•¢sco ..NN` G I,CERTIFY 'N'14Tmt'$2/! " ?t M'N65 io . :', H SHOWN:,ONfrHIS.PL'AN IS`LOCATED ON THE GROUND N AS SHOWN HEREON �� \� .p o 7"' p ` .h STE / ' su DaTE!12_.12 fl�o-,- PETITIONER: • • ` REQ..PROFESSIONAL LAND SURVEYOR Property Location: 143 RIVER ST MAP ID: 34/282/// Vision ID:4905 Other ID: 29/W003/// Bldg#: 1 Card 1 of 1 Print Date:02/15/2006 09 - rCONSTRUCTIONDETAIL - _ -` 'SKETCH Element Cd I Ch. Description Commercial Data Elements $tyle/Type 06 Conventional Element Cd. Ch. Description Model 01 Residential Heat&AC WDK,J Grade OS Average+20 Frame Type 8 12 Baths/Plumbing 11 g8 g Stories 2 2 Stories - Occupancy 01 Ceiling/Wall - 18 4 Rooms/Prtns 5 BAS Exterior Wall 1 14 Wood Shingle %Common Wall 10 FOP 2 Wall Height 7 FGR .Roof Structure Dl Cable/Hip 1919 18 Roof Cover 07 Asph/F Gls/Cmp PTO BAS 13 14 interior Wall 05 Drywall/Sheet CONDO/MOBILE HOME DATAI 20 20 22 • 18 16 2 03 Plastered Element Code Description Factor 22 28 28r Interior Floor 1 14 Carpet Complex 10 TOS 2 09 Pine/Soft Wood Floor Adj 10 Unit Location 6 13 BAS 13 Heating Fuel 03 Gas Number of Units 1 7 22 7 Heating Type 04 Poreed Air-Due 6 36 AC Type 01 None Number of Levels %Ownership Bedrooms 04 4 Bedrooms FUS Bathrooms 3 3 Bathrooms COST/MARKETVALUAT/ON'' BAS Unadj.Base Rate 100.00 2424 BAS 24 Total Rooms Size Adj.Factor 0.91429 26 Bath Type 02 Modern Grade(Q)Index 1.27 Kitchen Style 02 Modern 36 _ Adj.Base Rate 116.11 Bldg.Value New 406,385 12 6 Year Built 1860 Eff.Year Built 1978 Nrml Physcl Dep 24 Funcni Obslnc 0 .. MIXEDintinnUSE: F nn Obslnc 0 '- • v'4 'o�ti.. " ..,: '"`" t.. '.y'` �`` t ': ' "re"-`441....,F �,.a,. en- Dvsrrintinn Parranmov Specl.Cond.Code .,., w /' 's^ 1010 SINGLE FAM 100 Sped Cond% i d +w v a.' 7- ,111 _"- , : ,c , _ Overall%Cond. 76 '"'7r rT3xlrr^'al ¢ 4a, ° i� } �' b' I ,,�:C, sm .yi e .; m kc Deprec.Bldg Value 308,900 ItrtiA,{ 'r� kla As _ +'iv-g art -"S„,-”, iv."."‘. ) kiIr �t E �,. s- yy---,7 ` .. ?i`c.+�`., OB-OUTBUILDING& YARD/TEMS(L)/XF-BUILDING EXTRA FEATURES( - 14.-7,..444.0.:vh �. ,,a .. . "+ a.. a Code Descriptiono a z; ,. r� „...:....7.v UB Units Unit Price Yr DP Rt �.Cnd ADr Value ?h x ^"* s v=,4 FPL3 2 STORY CHI111 B 1 2,800.00 1978 1 100 2 100 ' �"£`S�' X �' '`' d” x#=r,�Fn �, ,..,t, s;� +r'dx PAT2 PATIO-GOOD L 231 5.00 1980 0 75 900 *^"' ''}':?•d� - �. _ `./.....t EOS End Outs Shwr B 1 -0.00 1978 1 100 0 M-4- n `t ems, s, > v� - lij u �: SHDI SHED FRAME L 140 . . 8.00 2004 0 100 1 100 i 1:4 ...., 6 F vs� r,,,v, z` '.. BUILDING SUB-AREA SUMMARY SECTION - ° -Y'Rv`-`' P c.:.,-.7... t. ' Code Descri•lion Ltvin:Area Gross Area E(.Area Unit cost Unde•rec Valve �A"""" ` ,-; ,/ �i15 t +#3 ��s '�-,-,t-t- ` BAS int Floor 2,230 2,230 2,230 116.11 258,925 „ --='.'... 'p''fr .'- ,.._ .- s + � cIM �: FGR arage 0 342 137 46.51 15907 r z +-'.-<'or�'�`s '<4 4t v3. 3j , *arta.,.,4 POP roreh,Open,Finished 0 196 - 39 27.10 4,528 - ' z „y .vs .e�` - � ;IT t• FUS pperStory,Finished 864 864 864 116.11 100,319 °` r v c t e s• ', a �.�r r+= 4 PTO �'atio 0 200 IO 5.81 1,161 t- �? 7' a x r`` s n.1 F TQS hree Quarter Story 2I5 286 - 215 87.29 24y64 np """- i WDK neck,Wood 0 - 48 5 12.09 581 4 �, , ;�. . � t� - ' v £L. : L t ;tee' '.a ' _ 3 09 4 166 3 00 J . . • 406 85 • Property Location: 143 RIVER ST MAP ID: 34/2821// Vision ID: 4905 Other ID: 29/W003/1/ Bldg#: 1 Card 1 of 1 Print Date:02/152006 09:59 CURRENT OWNER -` TOPO. UTILITIES STRTJROAD -LOCATION -- CURRENT ASSESSMENT - MARASCO,WILLIAM I Level 2 Public Wate:1 Paved 2 Suburban Description Code Appraised Value Assessed Value 6 Septic RES LAND 1010 936,200 936,200 815 143 RIVER ST - ' SIDNTL 1010 311,000 311,000 S YARh1OUT11,MA 02664 - RESIDNTL 1010 2,000 2,000 YARMOUTH,MA SUPPLEMENTAL DATA Additional Owners: Account 11 0531100 Subdivision 180 Photo Ward Y VISION PLAN NUMBER 67 GIS ID: 4905 Total 1,249,200 1,249,200 RECORD OFOWNERSHIP % BR-VOL/PAGESALE DATE q/u vii SALE PRICE VC - _ PREVIOUS ASSESSMENTS(HISTORY) MARASCO,WILLIAM 14509/192 11/30/2001 Q I 660,000 00 Yr. Code Assessed Value Yr. Code Assessed Value Yr. Code Assessed Value COUGHLIN EDWARD L 1 0 2006 1010 756,700 2005 1010 756,700 2003 1010 386,400 2006 1010 311,000 2005 1010 293,900 2003 1010 181,400 2006 1010 2,0002005 1010 2,0002003 1010 300 Total: 1,069,700 Total: 1,052,600 Total: 568,100 ` - EXEMPTIONS - ,= : - ` OTHER ASSESSMENTS . ' This signature acknowledges a visit by a Data Collector or Assessor Year Type/Description Amount Code Description Number Amount Comm.Int =APPRAISED.VALUE SUMMARY. Appraised Bldg.Value(Card) 308,900 Appraised XF(B)Value(Bldg) 2,100 Tata? Appraised OB(L)Value(Bldg) 2,000 "' ^- -NOTES Appraised Land Value(Bldg) 936,200 VERY GOOD WATER VIEW IN LAW APT Special Land Value UG BOA#3908 Total Appraised Card Value 1,249,200 Total Appraised Parcel Value 1,249,200 Valuation Method: Cost/Market Valuation BOA#3908-2004 Net Total Appraised Parcel Value 1,249,200 'BUILDING PERMIT RECORD' '` YISIT/CHANGE HISTORY Permit ID Issue Date Type Description Amount Insp.Date %Comp. Date Comp. Comments Date ID Cd. Purpose/Result 05-220 8/16/2004 AD Addition 80,000 5/17/2005 100 1/1/2005 2 STORY FRONT ADDI 5/17/2005 GM BP Building Permit 05-019 7/6/2004 AD Addition 51,600 5/17/2005 100 1/1/2005 2ND FLOOR W/DECK 6/8/2004 KF BP Building Permit 04-429 10/12003 SD Shed 3,000 - 100 10 X 14 8/28/1995 RD 00 Measur+Listed 811. 12/22/1997 RS Residential 2,000 100 REROOF _... - - -� -LAND LINE VALUATION SECT/ON -' R# Use Code Description Zone D Frontage Depth Units Unit Price I.Factor SI.. C.Factor Nbad Ad/. Notes-Adj/Special Pricing Ad/. Unit Price Land Value 1 1010 SINGLE FAM 24,393.60 SF 5.33 2.40 8 3.00 0080 1.00 38.38 936,200 Total Card Land Units 24,394.00 SF Dorsal Altai Laad Area: , 24,394 SF Total Land Value 936,200 s 9 r b ; ' YARMOUTH BOARD OF APPEALS /� ,^ Assessors Certification for Abutters List Petition# 4013 Name Li• `L.- PA v Filing Date: Hearing Date: 3/9 id Property Location: i K3 a& Notices must be sent to the petitioner(applicant),abutters,and owners of land directly opposite on any public or private street or way,and abutters to the abutters within 300 feet of the property line of the petitioner as they appear on the most recent applicable tax list. Map`N1 Number Lot Number , Map Number Lot Number Applicant# Abutters#'s 7-8 z 80 w i l 4 6 J( x.13 S � 3< / / • 2 Labels-1 Hard Copy ` Assessors Field Card with photo Matthew Zurowick,Director of Assessing V- 'n V' 6� �PAlb ti l I CJI : � U Ucs.c... ilt } sol aanra o eartilk ar • ; O s :- 45 1L'll i t, - q Uewes, /iIfirAir i .Wei r_' tli�tlZd h- -ZgaWai a [ SO ( i lT � 4 � 1 � } 7 yl S t ct f 1--- - ... .-1 ,--,•-•• r,•,,, -,,,,,.. t . , , ,,,..,., , ... , ,, ,,,, .-mi • . c, _fl. ... , ��:1-ILLS oi, _ ypc • iiil .......„,, Dill, ,0 ,,.. ,.m. c 'CI 1{5 2 I , :it f rd cLii U > ❑ n lb FO N .V 5 _ ;A• - 35/ I/ / / PHILLIPS,LARZ H C/O GAIL STAFF I80 RIVER ST SOUTH YARMOUTH,MA 02664-6000 34/ 280/ / / SHEA,RICHARD W SHEA,PAULA 4019 EAGLE COVE W DRIVE PALM HARBOR,FL 34685 34/ 282/ / / MARASCO,WILLIAM 143 RIVER ST S YARMOUTH,MA 02664 34/ 281/ / / STARKEY,H CHRISTOPHER • STARKEY,LOUISA H 149 RIVER ST SOUTH YARMOUTH,MA 02664 42/ 146/ / / CHURCHILL,W HALLOWELL JR E C HARTSHORNE&F CHURCHILL BASS RIVER TRUST,76 HIGH ST BROOKLINE,MA 02445 43/ 51/ / / • JORDAN,LUCRETIA M(ESTATE OF) C/O FREDERICK E CHURCHILL 76 HIGH STREET BROOKLINE,MA 02445 I r ' 1 1 pft..iTilitL. Bk 18921 Ps149 *63407 ,^ ,r W F'..s^ `. •�+0 08-10-2004 8 12=210 /6'.. G TOWN OF YARMOUTH ,y ar'A 1 H H BOARD OF APPEALS v. . ;--. 'r i Q';'':'s , ----:Tx „vi. DECISION — 204 SI 20 PA 2 55 iji / FILED WITH TOWN CLERK: July 20,2004 Rai V t[) PETITION NO. #3908 HEARING DATE: July 8,2004 PETITIONER: William Marasco PROPERTY: 143 River Street,South Yarmouth Assessors Map&Lot:34.282(29/W3) Zoning District:RS40 MEMBERS PRESENT AND.VOTING:David Reid,Chairman,Sean Igoe,John Richards, Diane Moudouris,and Forrest White. It appearing that notice of said hearing has been given by sending notice thereof to the petitioner • and all those owners of property deemed by the Board to be affected thereby, and to the public by posting notice of the hearing and published in The Register,the hearing was opened and held on the date stated above. .Y A The applicant seeks a Special Permit in order to be allowed to construct an addition to an existing single family home. The property is in the RS40 zone and the lot contains 24,275 square feet and is therefore non-conforming. In addition,the existing garage is located 28' from • ' one of the lots three(3)street fronts. • The proposed addition is shown on the petitioners certified plot plan, dated June 16, 2004, and filed with the Board. At the area where the addition will be placed, the corner of the house is located 30' from the lot line. The addition will extend the building to within 28' of the lot line. ' However,the petitioner explains that this is due to the fact that the house is angled within the lot, not square to the lot lines. In addition, while this is physically the side of the house, it is technically a front line. The addition will extend an existing bathroom and add a closet but will not increase the number of bedrooms or overall occupancy of the home. The addition will remain within the existing building height. No neighbors will be adversely impacted by this modest addition. The Board finds that the proposed addition will not be substantially more detrimental to the neighborhood then the existing single family home. Therefore,a motion was made by Mr. Igoe, seconded by Mrs. Moudouris,to grant the Special Permit for the addition, as represented and as requested. The members voted unanimously in favor of the motion. 1 ll Bk 18921 Pg 146 4163407 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, the Special Permit shall lapse if a substantial use thereof has not begun within 24 months. (See bylaw §103.2.5,MGL c40A §9)Unless otherwise provided herein, a Variance shall lapse if the rights authorized herein are not excised within 12 months.(See MOL c40A §10) .0a/trate_ David S.Reid,Clerk 2 TOWN OF YARMOUTH YARMOUTH BOARD OF APPEALS TOWN CLERK '�� APPLICATION FOR HEARING 2fQ JUN 16 PSI I: 00 - .:;; *-:. .. R RECEIVED Appeal#: 39 dN Hearing Date: 11$1/D'6 Fee$ 45.93 Owner-Applicant: (PI K dw N"` A Q AS C 2 (Full Name-including d/b/a) 14 3 R uer Sr S .y. ozee4 Sob -394-ota3,8 (Address) (zip) (Telephone Number and is the (check one) ISL Owner,. 0 Tenant 0 Prospective Buyer ❑,Other Interested Party ''-- Prope : This application relates to the property located at: I Lt 3 R i.vc.. S (- So-.tirrn ot5*..- which is also shown on the new Assessor's Map: .. 4 3 46- as Parcel: a$a. (old Map &Lot #) a Zoning District: RSI-10 Project: The applicant seeks permission to undertake the following construction/use/activity :(give a brief description of the project. i.e.: "add a 10'by 15'deck to the front of our house"or"change the use of the existing • building on the property"): ADO:tea." w L"c L. tkp \a 7_1 /1,..c.t I :‘,ct...c 1w—, A 3O F.rat SA- qtr- (1 Aoo,VI. -'V' * a • 1 - '111 6, er,, - 4_4_:14.�i h i A -- (J.,1-se S j-4,.�j-..-'•- ,,,,a._ a b . l a csa:�zr 4 add. Vt- bat--; EL REQU RESTED: The applicant seeks the following relief from the Board of Appeals: 1) REVERSE THE DECISION OF THE BUILDING INSPECTOR OR THE ZONING - ADMINISTRATOR dated (attach a copy of the decision appealed from). State the reason for reversal and the ruling which you request the Board to make. 49 2)v SPECIAL PERMIT under § 10 y .3 .2.. . (.2 '#.f the Yarmouth Zoning By-law and/or fora use authorized upon Special Permit in the "Use Regulation Sc edule" §202.5t9-/ .(use space below if needed) 3)VARIANCE from the Yarmouth Zoning By-law. Specify all sections of the by-law from which relief is requested, and, as to each section, specify the relief sought: Section: Relief sought: Section: Relief sought: Section: Relief sought: ADDITIONAL INFORMATION: Please use the space below to provide any additional information which you feel should be included in your application: 1 1-2 1' Mc 2 C4Lrin L t- A- 6 M LITS FACT SHEET Owner of Property(if other than applicant) Li.\ 4.N.. NaQA'SL4 (Full Name) I 4 3 eu.K. S1- • V, P- 3gk— ZLBO (Address) (Telephone Number) How long has the owner had title tothe above premises: S ` •r,-2.001 t., \-4 .'-'410 `: ; (Give title reference also if available) Use Classification: Existing: .54`' Carl §202.5 # Proposed: §202.5 # Is the property vacant: kiD How long has it been vacant: a4-1, a-7s= Lot Information Size/Area: i A c/✓ Subdivision/Plan Reference: / Is this property within the Aquifer Protection Overlay District: Yes No th„ Other Department(s)Reviewing Project: Indicate the other Town Departments which are/have/or will review this project, and indicate the status of their review process: • Repetitive Petition: Is this a re-application: If yes, do you have Planning Board Approval: Prior Relief: If the property in question has been the subject of prior application to the Board ofAppeals or Zoning Administrator, indicate t the date'r'and' lineal '`Lumber(s)"arid''-other:—kvailable information:' * $11-141,01 Thtuitl Varionke , Building Commissioner Comments: fradt,.., Applicant's/Attorney/Agent Signature Owner's Signature Address: ' Site Plan Review Required Completed ❑ Yes ❑No ❑ Yes ❑ No ` A - ' G -et ding Commissioner Signature Application.wpd 11111111. 111141r1,3-1 "•41 ,0: 1., I, - . t I ti ll i 'A lel 11 11 I ' ttAti 111111 4,--rr I .I. 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'0 i'! rs 'a•`• t h ami 1 ' ; rZ,: S ..ALM ' v TElfrt 't ,,,t,„ t 4 tr {E _"i+ �„ sla3a � EDGE OF ADDITION TO BE 3" a etr # ` ,' .,� t t:, ,._, SHORT OF EXISTING BULKHEAD R 7 , ,,,,,,,,„i ,. ..,„.„.., .. ,,, .. II „ ..,. ,.. ,,,,,,,,,t,„ KITCHENII ' r, ;; �1 13'-6"+/— ' .. II ALIGN W/ EDGE OF EXISTING 0c t DI 3'-1” ri, 3$-8 1/2" r r {.� '''.1,,..,;7,1::::,:',11::::.'''1.,...:1: �„ 3'-1" s �I f I Ii 6 R II N 'v L II ,� a BENCH 2� iv,. NEW . 41 CLOSET I IY ar;. 11 x: r Q�� _.._ REMOVE DOOR O�' \ 1 .. ,,,, ���' REMOVE WINDOW ' tea ' " .. OUTDOOR 1/2 FL M. BATH SHOWER LINE OF 4 I EXTERIOR W I lip DESK • � 1 ez �P, REMOVE WIN II = / L,,,,,-, -- is v A.II ilir i \ r i i' ,. IJA'44?M tiY J i I y i • , I __ .. ii _- . , - - - _ __ _ - �niiri _ - _ , __- _ • - _ .• 1`I t _ , -' 'P!! 'moi • A •111111111111111W.. _ _+ _ 411111111.11.0!`- r1*. , r+ " � h !iffh 77 - • _ .. .a. - _Ai - ` View South from Bass River Parkway Shows proposed set back U ,. \ .. : ,"_ - •�_ !!II . r• • i _ " ;'',0s.4: . --- - 3 tom.: ti -` - _ _ : 1.n,..t ,,• , .j. 1.1,j "OW �..I 42 + f r — Existing set back 8 ue ag (30 feet) Proposed set back red flag (28 feet jinchet) .:'.4. , as ;r y=. a. • . . . • .';',....--- 1. '1 ' ��. a ]r :m ` r r R IIIIIII � IIIIIII View East from Bass River Parkway Shows set back proposed • JIM e. - .ilitkt's ''..." ..-. - t4A5.4014144.111r -.- '-- 1: -.y i .,..:11: L ,-r . , ; .J Mid i ilkff Cr . , isilog --;;A1j . i'k ' i :I, Same spot East from Bass River Parkway Shows current set back of North abutter i_ i_ • r� 1. .. , ..- . • • �.. •: fn s ri 4 II TR c... '. ' ..1i.-.N iew 'vest trom ' iver stree Proposed addition would not change front view of house t.k. x ...4x .� :Jfly • • • 't4 a 11.f • _ -,� as-..•. •.' .gyp r _' - r '271°4. ter! .. _ - View of South abutter front on Bass River Parkway -„,\ „ ' 1 -/ 86 .00 A _ - .. ,,3., cI V J 1 N I ft J I I I V ' I IN . n 1Zgi= r,I 41r • • k I h- tr '� , 1 Fki 1 �j X `-g r [ • Vy i t I -C' t 0 (IGv is ti 1 B , c a s I d // w ( , 1: 1 , 4 n ( ` L /YIEi}Su2Ep 1 j t 28.1 � �— w f I o _r-1 . . • b L -.I 01 Iv c c1.3 ±--� m L. 'o I j 11. F i 6 � ' �J Ph I I Z I ' 0 Ifs ls i ; 1 I - I . • s e&r—L .7.64‘14.-i-4445? o4‘1v 4. 1YQz : 7-4-"A:o-C&s:7siV'oT7n✓_T7/�ApuiF Z. p/247 C2QNtalez.LAyTD/s712L YN2NO.arH A556-45aes-s�rpp-A/0.-31128z. • CERTIFIED PLOT PLAN 1rerE: i'E_P2CPG Ty i/5146CnZ-bJAI j=GooD .:.- LOCATION "0.3(2!/!FJL.Fr.S.Y IZ"y9 gf.SL .7Zr_/uSTA71 -.AS5Ff&sO i,V.CoitmoiT7TY135WELT /" 30 SCALE . - � DATE .6� 6�� 7roso6cP-:lnFIZ ScD :racy-21T . nrSrig, ._._ _ PLAN REFERENCE X �s o')-Lo752t3 4-rS,es Pi.471L,/? n -Soo>"94!7a?7* Z&�[ D..--TLS': 5'77 44S.-scM- /" c• e'S�l/936 NiFe.fa.iBE7wsc-C 44..E10Yre. V/CCG- H1H OF M 4, p9m..s. 51� "i i.I/ 9118! 62/r. /37 • ''4'' • • . . . . . .CD cS �p��t 9G I CERTIFY THAT THE tr. /!t:Cr. $v'�4? •6s zL4�g4� .1Ir y SHOWN ON THIS;PLAN IS LOCATED ON THE GROUND • NE ON ti AS SHOWN HEREON ca s 7030 O -. !;!ND SUR 6y04 DATE. tw/'6y�.. . . . . PETITIONER: I sv rx 2moazv,�lf2Ss. REG. 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IiA • ., •• Itti t . - kinV.71:71t1E1:-1 - 711.a.77-S_SlrEr. -. • I rc; t i h . , . • . . . 70 hd a r• lk • rs. : - " - . - • .. . . - tg I ri . , 9.02 (OR SLEEVE WHERE WITrIIN 10' OF COMPONENTS) a95 PAVED DRIVE. RE-ROUTE GAS LINE . • / _--' ` "+6.94 +6.84 - M ,.� +9.3. 1-8.2Z,........... APPROx. LOCADON Of /� • • .Q ; �,�...�__�� -_ Ex5Tu0 LE/CH FIELD Cr i t9. 73c"°u° 9.72 - 14008 4741011(4,11/ell ��/wl •,•S; -- -"-+.7.J167.87 `A� �- to I O t ,x}64 "` `�``+G,43 C 4 � II '.87 .� `�'�.91 • I Fo it SCO. E T. CAR/APT. 9. ` . •.06 1 9.18 7.72 ` _ 47 Mb 1ACIFrt.4 , • Q i . 28 qq,4, �'9.0 / i / +9.5' 9.588.65 ' yt • *7.92 (meq' �$. t8.18 C +9 0 Howl' .17 // 8.80 •® V - / +.P..79 , / CO • _ 0 / 6.62 +8.47 / EXIST. DWELL. / / \ / / Q] _ --49.50._,�__ TP .. DWEL - % (0 / / ' 4.9432 I / + :. Pq `t9.17 C`�'`0. LI 4t^ 4''b.y / / l �fD bq i +9.0. - ..36 l / / 4 , \ '/ ; / +8.7. Nf / / .. • _ �'.• /1 / - , C - 8.7/ $.45 t 7.69 `49.10 (B.0 / +8.40 ' c2 f8.17 �I % 4x .95 / 8.44 �S- / / / J3 j" - 6.01 / '83 LOT 3A +8.16 , / �' 24,275t5F 1� �� // �� / • / l / 700. / /,te�a 114.95. i�• P796 1.0 m� p, = ' 4„1 1 A»AI . 6.15• / C., • , 2 Saar..0�� /o +8.35 • ` 1' k L ,at-.c,.' +8.38 72 ; )d 4''''-- v1 / - Dt ;L (',RLQ, 1,. : 3 0 ..,l.«.. • . BOARD OF APPEALS Assessors Certification for Abutters List Petition# d P Name 1'11 a rct S GO Filing Date: 6/0 Hearing Hearing Date: 7/i4 c/ Property Location: 143 f u e r Sr Abutters to the Abutters within 300 feet Map Number Lot Number Map Number Lot Number Applicant# 39- ol` 13 Abutters #'s a 9 a23 1 d8� a3o fi 4a 1145 4 vz 1y(0 3•C 43 S / 2 Labels-1 Hard Copy Assessors Field Card w/photo C° OPO5 t natal surto,1}!3'.153 I L Lea ei SOOWIZ = as err"— ! . 4EB zzz '� I' .. INO� ` tl3AR1 064 / ila . 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".W.� �aVnRYY • " ACCT# 034.283 CHAPPELL, PATRICIA PURCELL 92 OXFORD AVE CAMBRIDGE MA 02138 ACCT# 042.147 CHURCHILL, W H JR TRS BASS RIVER TRUST/C/O DIANA CHURCHILL 76 HIGH ST BROOKLINE MA 02446 ACCT# 043.50 CHURCHILL, W HALLOWELL TRUSTEES BASS RIVER TRUST 76 HIGH STREET BROOKLINE MA 02445 ACCT# 042.146 CHURCHILL, W HALLOWELL JR E C HARTSHORNE & F CHURCHILL BASS RIVER TRUST, 76 HIGH ST BROOKLINE MA 02445 ACCT# 034.290 CUNNINGHAM, JAMES JOSEPH TRS PERINI, JENNIFER MAY 167 RIVER ST SOUTH YARMOUTH MA 02664-6049 ACCT# 034.279 ISSOKSON, ALAN G 20 BASS RIVER PARKWAY SOUTH YARMOUTH MA 02664 ACCT# 043.51 JORDAN, LUCRETIA M (ESTATE OF) C/O FREDERICK E CHURCHILL 76 HIGH STREET BROOKLINE MA 02445 ACCT# 042.145 JORDAN, WINTHROP TRS GRINBERG, D, A & KATHRYN 400 MURRAY ST OXFORD MS 38655-2914 ACCT# 034.282 MARASCO, WILLIAM 143 RIVER STREET SOUTH YARMOUTH MA 02664 ACCT# 035.1 PHILLIPS, LARZ H C/O GAIL STAFF 180 RIVER ST SOUTH YARMOUTH MA 02664-6000 ACCT# 034.284 REILLY, ELAINE G 736 ANDOVER ST LOWELL MA 01852-2036 ACCT# 034.280 SHEA, RICHARD W SHEA, PAULA 632 EDGEWATER DR #634 DUNEDIN FL 34698 ACCT# 034.281 STARKEY, H CHRISTOPHER STARKEY, LOUISA H 149 RIVER ST SOUTH YARMOUTH MA 02664 TOWN OF YARMOUTH p BOARD OF APPEALS ' C O PY Filed with Town C1erk:NOV 6 1967 Hearing Date: 10/19/67 Petitioner: Mrs. Dorothy Farrar Petition: #871 DECISION The petitioner requested a review of the Building Inspector to grant a permit and a variance from requirements of Yarmouth Zoning by—law to permit utilization of 1 bay of existing 3-bay garage for sleeping quarters and to remodel garage for this purpose. Shan on assessor's map ,/298143. Members of the Board present: Harold Hayes, Walter Anderson, Howard Spurr, Emanuel DiTiberio, Albert Webb. It appearing that notice of said hearing has been given by sending notice thereof to the petitioner and all those owners of property deemed by the Board to be affected thereby and that public notice of such hearing having been given by publication in the Cape Cod Standard Times on 10/5/67 and 10/1a/67, the hearing was opened and held on the date first above written. The following appeardd in favor of the petition: Attorney Joseph Reardon The following eared in oppootion: Mrs. Rusted, Mrs. Phillips, by letter. Reason for decision: It appeared at the hearing that the petitioner owned property in South Yarmouth lying to the east of South Street and between Bass River and a section known as the Bass River Parkway area. The property is shown on the assessors records on sheet #29. It appears that the zoning law allows duplex houses in this area, and the Board, following the presentation of the petitioner dbtermined that the request was in fact for a second dwelling on a single lot. It appeared that the lot was not substantially different from the rest of the lots in the subdivision. It also appeared following consideration by the Board that were this request allowed that the intent and purpose of the zoning by—law would be derogated from. Tho Board considered at length whether or not the public good would be adversely affected by the granting of this request and after a lengthy deliberation was of the opinion that the public good would be adversely affected. The Board considered the fact that this was in one of the prime residential sections of the Town of Yarmouth and that there were no special conditions that affected this parcel that did not affect many other parcels in the immediate area. Therefore, the Board felt that here this granted, there were others in the area who could request the same consideration and any deviation from the requirement for one dwelling in this area the Board finds would bo contrary to the by—law and would adversely affect the public good. Members of the Board voting: Harold Hayes, Jr., Walter Anderson, Howard Spurr, Ltanuol DiTiberio, Albert Webb. All voted to deny. Therefore, the appeal for approval is denied. ' :.Albert Webb . .; _. r .. ' ,Acting Clerk TOWN OF YARMOUTH BOARD OF APPEALS Filed with Town Clerk: NOV 6 1967 Hearing Date: 10/19/67 Petitioner: Firs. Dorothy Farrar Petition: ,/871 DECISION The petitioner requested a review of the Building Inspector to grant a permit and a variance from requirements of Yarmouth Zoning by-law to permit utilization of 1 bay of existing 3-bay garage for sleeping quarters and to remodelgarage for this purpose. Shen on assessorts map 429W3. Members of the Board present: Harold Hayes, 'Walter Anderson, Howard Spurr, Emanuel DiTiberio, Albert Webb. It appearing that notice of said hearing has been given by sending notice thereof to the petitioner and all those owners of property deemed by the Board to be affected thereby and that public notice of such hearing having been given by publication in the Cape Cod Standard Times on 10/5/67 and 10/1$/67, the hearing was opened and held on the date first above written. The following appeardd in favor of the petition: Attorney Joseph Reardon The fo]lowing aspeared in opposbion: Mrs. Rusted, Mrs. Phillips, by letter. Reaton for.decision: It appeared at the hearing that the petitioner owned property in South Yarmouth lying to the east of South Street and between Bass River and a section knorgt as the Bass River Parkway area. The property is shown on the assessors records on sheet #29. It appears that the zoning law allows duplex houses in this area, and the Board, following the presentation of the petitioner dbtermined that the request was in fact for a second 4well.ing on a single lot. It appeared that the lot was not substantially different from the ' rest of the lots in the subdivision. It also appeared following consideration by the Board that were this request allowed that the intent and purpose of the zoning by-law would be derogated from; The Board considered at length whether or not the public good would be adversely affected by the granting of this request and after a lengthy deliberation was of the opinion that the public good would be adversely affected. The Board considered the fact that this was in one of the primo residential sections of the Town of Yarmouth and that there were no special conditions that affected this parcel that did not attest many other ptrcels in the i:saediate area. Therefore, the Board felt that Isere this granted, there were others in the area who could request the same consideration and any deviation from the requirement for one dwelling in this area the Board finds would bo contrary to the by-law and would adversely affect the public good. Members of the Board voting: Harold Hayes, Jr., Walter Anderson, Howard Spurr, a - uol DiTiberio, Albert Webb. All voted to deny. There&ore, the appeal for approval is denied. Albert Webb Acting Clerk OWNER Name: ��11h o •,\)pry t- r A r APPEAL ii 5'7/ Address: \ `t 3 1.r-t r PETITIONJER: Name (11 )re, "30 BOARD OF APPEALS YARMOUTH, MASS. This petition when completed and sigred must be filed with the Board of, - Selectmen. Yarmouth. Massachusetts, along with the fee of $20.00. ' - Date 1 - Paid 1. . I, We hereby appeal iron decision of the Building Inspector and petition your Board for a -.public is Y earLng on the action checked below: . Review 'tense . of Building Inspector to grant permit. 2. Decision of c 2, I. We hereby requ s;, the action checked below: fl. Variance from oui;ersnt s of Yarmouth Tor-ins-By-Law. r 2. Approval of the Board of Appeals. 3. A special percit from the Board of Appeals to allow; , fo Fes '7,is, zArio"✓ Or / EA7 OsriNG 3. 13 Ay CARAc,E Pot? Sbe,0 ;, ' Icdf.ers/05 4ii/ C414 a .fo t rA is / 04,059 it• 3. Reaoon for the Board of Appeals action as checked below: 1, Contra: to u:r. By-Laas ;.s follows: 1. 2. 3. 2. Approval of iaard of 1upr.Lls or Specihi Peanut requested under the following soctbn of Zoning By-Law: 2. _ Name and addresses of abutting property owners,and those persons deemed affected by this fLp71i.catior.. (:4t least three) /7 , i .!� .', r. / / r.- i ... . r. cd'7 J.. AI r/ ; %\ - /Y ' n r y s brdtted.