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HomeMy WebLinkAboutDecisioin 4401 .-__._.__._..___ 1j Y , c p'� COMMONWEALTH OF MASSACHUSETTS LAND COURT SUFFOLK COUNTY COURTHOUSE THREE PEMBERTON SQUARE,5`" FLOOR BOSTON,MASSACHUSETTS 02108 Phone: 617-788-7497 May 20, 2014 Edward W. Kirk, Esq. Thomas J. Perrino, Esq. PO Box 393 Rubin,Rudman, Chamberlain and Marsh 901 Main Street PO Box 40 Osterville, MA 02655 99 Willow Street Yarmouthport,MA 02765-0040 Charles J.Humphreys,Esq. Law Office of Charles J. Humphreys 15 Brook Street Cohasset,MA 02025 Re: Case No. 12 MISC 469143 (JCC) Richard W. Shea et al v. Stephen DeYoung Member of the Yarmouth Zoning Board of Appeals et al NOTICE OF DOCKET ENTRY Notice is hereby given that the following docket entry has been made in the above captioned matter re: Defendant Northstar Property Management,LLC and William J. Marasco's Motion for Summary Judgment: May 20,2014: After considering the papers submitted in support of, and in opposition to, the Defendants' Motion for Summary Judgment, the Court has determined,pursuant to Land Court Rule 6,that it may decide the matter on the basis of the submitted papers without oral argument. The submitted papers highlight the existence of factual'disputes as to when the Plaintiffs first had actual notice of the building permit which authorized the alleged zoning violations. Because the disputed facts are material to the determination of the statute of limitations applicable to the Plaintiffs' zoning enforcement actions, and whether Plaintiffs' complaint is jurisdictionally barred as a matter of law,the Motion for Summary Judgment is DENIED. (Cutler, C.J.) EDWARD W. KIRK ATTORNEY AT LAW WIANNO PLACE 901 MAIN STREET P.0.BOX 393 OSTERVILLE,MASSACHUSETTS 02655-0393 FACSIMILE (508)428-4800 (508)428-4111 Stephen Deyoung 691 Willow St. S. Yarmouth,MA 02664 Re: Richard Shea v.Northstar Property Management & Yarmouth Zoning Board of Appeals Land Court Misc.No. 12-469143 To the above named defendant: Enclosed you will please find a copy of the complaint in the nature of zoning appeal which has been filed in the Land Court in Boston. This is an appeal of a decision rendered by the Yarmouth Zoning Board of Appeals(No.4401)in which the Board denied plaintiffs' appeal from the building commissioner's refusal to revoke an occupancy permit with respect to property at 143 River St., South Yarmouth,MA. Thank you for your attention to the enclosed. Very • ly yours, / Edward W 'l August 29,2012 cmrrr ewk/se w/encl. RECEIVED SEP 7- 2012 YARMOUTH BOARD OF APPEALS Sgu 54;i ly dribr vv ft 411'22 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE ss. LAND COURT **************************************** RICHARD W. SHEA PAULA SHEA Plaintiffs v. STEPHEN DeYOUNG, SEAN IGOE, JOSEPH SARNOSKY,DEBRA MARTIN, BRYANT PALMER as they are members of the Yarmouth Zoning Board of Apeals and NORTHSTAR PROPERTY MANAGEMENT Defendants ***************************************** COMPLAINT (Zoning Appeal -G.L. c.40A s. 17) (Declaratory Relief G.L. c. 231A) The plaintiffs appeal from a decision of the Yarmouth Zoning Board of Appeals,wherein the board upheld the building commissioner's decision to decline plaintiffs' request that the commissioner revoke the permit for the defendant Northstar's use and occupancy of the 2nd floor of a garage structure as an apartment.Neither the building commissioner nor the board addressed the merits of the plaintiffs' enforcement request, and based their decisions solely on the fact that the board of appeals had granted a variance allowing such use,which variance is presently the subject of a judicial appeal in Land Court Case No. 11 Misc.457215. Parties I. The plaintiffs are the owners of land and buildings located at 24 Bass River Pkwy. S., Yarmouth,MA. The plaintiffs' land abuts the land of the defendant Northstar. 2. The defendant Northstar Property Management L LC is a Massachusetts limited liability company with a principal address of 21 Aaron's Way W., Yarmouth,MA and the owner of a certain parcel of land containing 24,275 ft.2 together with the building thereon located at 143 River St. S.,Yarmouth,MA 3.The defendant Stephen DeYoung is a duly appointed member of the Yarmouth Zoning Board of Appeals with a residential address of 691 Willow St. S.,Yarmouth,MA 02664 4.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 0273 5.The defendant Joseph Samoski is a duly appointed member of the Yarmouth Zoning Board of Appeals with a residential address of 111 Merchant Ave.,Yarmouth Port,MA 02675 6. The defendant Debra Martin is duly appointed member of the Yarmouth oning Board of Appeals with a mailing address of PO Box 320, South Yarmouth MA 02664 7. The defendant Bryant Palmer is a duly appointed member of the Yarmouth Zoning Board of Appeals with a mailing address of 66 Traders Ln., Yarmouth, MA 02673 Facts 8. The property of the defendant Northstar is shown as Lot 3A on a plan recorded at Bamstable County Registry of Deeds in plan book 62 page 151. 9.The property of the plaintiffs Shea is shown as Lot 13 on the plan recorded at Barnstable County Registry of Deeds at plan book 22 page 131, and abuts the defendant's property. 2 10. 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. 11. Such approval was granted by the building department of the town of Yarmouth. 12. The location and height of the proposed new garage structure did not violate the provisions of the Yarmouth Zoning Bylaw. 13. Based upon certain information provided by Mararsco and others,the building commissioner determined that the use of the second floor of the garage structure as an apartment would not violate the Yarmouth Zoning bylaw and issued a building permit for the construction of the garage on April 19,2006. 14. On or about July 16,2009,having received additional information which cast doubt on the lawfulness of an apartment in the second floor of the garage,the building commissioner issued an order which,in essence, informed the defendant Marasco that unless Marasco could provide new information that there had been a lawfully nonconforming dwelling unit in the garage and that such use had not been abandoned,Marasco's use of the apartment in the new garage would require a variance from the zoning board.A copy of the building commissioner's letter dated July 16,2009 is attached hereto as Exhibit 1. 15. The fair implication of the building commissioner's letter of July 16,2009 was that,in the absence of a variance, the use and occupation of the second floor of the new garage as an apartment was unlawful. 3 16. Marasco has appealed the decision of the building commissioner to the Yarmouth zoning board of appeals,which upheld the decision of the building commissioner. 17. Marasco appealed the decision of the zoning board of appeals to the Land Court,and that case is now pending in Land Court Case No. 10 Misc. 422617 18. Marasco also applied to the zoning board of appeals for a variance as directed by the building commissioner and on or about December 1,2011, the Yarmouth zoning board of appeals granted a variance for the use of the 2'floor of the garage as a second dwelling unit in a two family dwelling. 19. The plaintiffs Shea have appealed the decision of the zoning board of appeals granting Marasco a variance, and that case is now pending in Land Court Case No. 11-Misc. 457215 20. The building commissioner and the board of appeals, having determined that in the absence of a variance,the use of the 2'floor of the garage as an apartment is a violation of zoning, the plaintiffs requested the building inspector to revoke the use and occupancy of the second- floor of the garage as an apartment. A copy of the request for revocation is attached hereto as Exhibit 2. 21. By letter dated March 21,2012 the building commissioner informed the plaintiffs that he declined to act upon the plaintiffs request for the sole reason that the board of appeals had granted Marasco the variance which is now under appeal in the Land Court. A copy of the building commissioner's decision is attached hereto as Exhibit 3. 22. On April 10,2012,the plaintiffs appealed the decision of the building commissioner to the Yarmouth zoning board of appeals. See attached Exhibit 4. 4 23.Following a hearing,the Yarmouth zoning board of appeals in a decision dated August 1, 2012 upheld the decision of the Yarmouth building commissioner.A copy of the board's decision is attached hereto as Exhibit. 24. The plaintiffs are aggrieved by the decision of the board. 25. The creation,use and occupation of the 1275 square-foot apartment located on the 2nd floor of the freestanding garage located 30 feet from an entirely separate from the principal single-family residence does not constitute one of two dwelling units in a two family dwelling 26. The creation,use and occupation of a 1275 s.f. apartment located on the second floor of a free-standing garage located thirty(30)feet from,and(with the exception of a canopy between doors) entirely separate from the principal single family residence constitutes a second dwelling on one lot in violation of the Yarmouth zoning bylaw. 27. The defendant Northstar did not ask for,and the defendant board did not grant a variance for the construction and use of a second dwelling unit on the lot. 28. On its face,the decision in which the board purported to issue the variance establishes that variance conditions are not present and that the board exceeded its authority in issuing the variance to Northstar. 29.There is no lawful basis for the continuing use of the 2"d floor of the garage structure as an apartment. WHEREFORE the plaintiffs request that, at such time as the court should determine that there is no lawful basis for the continuing use of the 2"d floor of the garage structure as an apartment, that the Land Court find, rule,declare and enter judgment as follows: 5 1. That the use and occupancy of the 2"d floor of the garage structure as an apartment is in violation of zoning and that the further use and occupancy of the 2"d floor as an apartment is prohibited. 2. That the owner of the premises be directed to remove from the 2"d floor,any and all kitchen and cooking facilities,appliances,and amenities, including stoves,ovens,microwave ovens and refrigerators. Respectfully submitted: Plaintiffs Richard and Paula Shea By their attorney: Edward W. Kirk BBO #273720 PO Box 393 901 Main St. Osterville,MA 02655 (508)428-4800 6 _i. • July 16,2009 • 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 zoni g bylaw Section 1043 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 reestablished,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 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 Iegal 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 conchision that two family(duplex)use existed prior to the pertinent district requirement being amended to prohibit such use with relief from the ZBA. However,I also feel that point is mooted by the forfeiture of any such grandfathered rig hts which resulted from discontinuance in the latter 1990's."'s He further suites 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 addctional information,I reiterate the opinion set forth in my June 26, 2003 letter." In that letter' Attorney Murphy stated: "Ergo, I S of the opinion that under the facts described in the correspondence,and the reasonable inferences to be draw from them, any lawful. pre-existing use of the premises of 143 River Street lapsed and terminated prior to November of2001 and quit likely sometime in 1999." . .age 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 10222. Please contact me should you wish to discuss this further. Very truly, James D.Brandolini, C.B.O. Building Commissioner End 6 cc:Board of Appeals CERTIFIED MAIL EDWARD W. KIRK ATTORNEY AT LAW WIANNO PLACE 901 MAIN STREET P.O.BOX 393 _'��_-•.i�'.: ._�..�..� OSTERVILLE.MASSACHUSETTS 02655-0393 (508)428-4800 •.....__ .FACSIMILE (408)4284111 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.-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 pm-existing nonconforming use prior to that date. The Cano v 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 constricted,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 Ietter 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 Anneals 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.2 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 ewl✓se w/att. cc: Charles J.Humphreys,Esq. Thomas J. Perrino,Esq. Richard W. Shea LTAGEOCGDOira 'Wealth Management Group TD Ban knorth, 495 Station Avenue P.O.Box 1180 South Yarmouth,MA 02664 Toll Free: 800-673-2300 TOBanknorth WealthManagem ent.com November 16,2007 Richard W. Shea,M.D. 4019 Eagle Cove West Dr. Palm Harbor,FL 34685 Re:Edward L. Coughlin Test&wiill Dear Dr. Shea, I am responding to your letter of November lst 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 I.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 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 mist this answers your questions. Sincerely, / Richard Bussiere,CTFA Vice President Wealth Advisor . _ : March 31.1012 Edward W. Kirk Attorney at Law 9 1 1 Main Street Osterville, MA 02655 Re: 143 River Street South Yarmouth Dear Attorney I=irk 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 1 am denying your revocation request. Very+truly. James D. Brandolini. Building Commissioner cc: Charles J. Humphreys, Esq. Thomas J. Perrino, Esq. EDWARD W. KIRK ATTORNEY AT LAW - WIANNO PLACE 901 MAIN STREET P.O.BOX 393 OSTERVILLE.MASSACHUSETTS 02655.0393 FACSIMILE (508)428-4800 (508)4284111 Office of the Town Clerk April 10, 2012 Town of Yarmouth Yarmouth Town Hall e' � `' ' ,7: E3 1146 Route 28 Yarmouth,MA 02664 j ;'I I BUILDING DEPARTMENT Re: Notice of Appeal of Decision of Building Commissioner I 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 2nd 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. j_ - r NPR , 251:2 :- YARMOUTh :710A7-cO OP APPEALS 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 Apri110, 2012 page three Respectfully submitted: Richard and Paula Shea,Trustees by their attorney: 7f/71: Edward W.Kific PO Box 393 Osterville,MA 02655 (508)4284800 ewk/se cc: Yarmouth ZBA Building Commissioner Thomas J.Perrino,Esq. • Charles J.Humphreys,Esq. . Dr YAC sti4s 3 3ra TOWN OF YARMOUTH S�C,:li.� .- %C BOARD OF APPEALS '�, y ..J, � , DECISION tic FILED WITH TOWN CLERK: August 1,2012 5.r,. .-.. r -:- r. PETITION NO: #4401 HEARING DATE: July 12,2012 PETITIONER: Richard&Paula Shea PROPERTY: 143 River Street, South Yarmouth Map&Parcel:0034.282 Zoning District: RS-40 Book&Page: 22686/215 MEMBERS PRESENT AND VOTING: Steven DeYoung, Chairman, Sean Igoe, Joseph Sarnoslry, Debra Martin and Bryant Palmer. Mr. Garnick, (non-voting Alternate) was recused. 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 Petitioners, Paula Shea and Dr. Richard Shea are parties in interest who were very well represented by Edward Kirk, Esq. The Petitioners reside at 24 Bass River Parkway, South Yarmouth, MA and by their Petition, seek to appeal from and to Reverse the Decision of the Building Commissioner dated 3/21/12 which order declined to issue an order of revocation of a use and occupancy permit for a garage apartment at property located at 143 River Street, South Yarmouth,MA Attorney Kirk presented a well-thought out argument in favor of the requested relief and suggested a compromise position the Board might consider while the underlying controversy(the Board's earlier grant of a Variance in connection with the subject property-See Decision #4365) was pending appeal. After careful analysis and discussion of the Petitioner's requested relief, Motion was made by Mr. Palmer, seconded by Ms. Martin to deny the Petition to which the Board voted unanimously in favor. 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. DeYoung-CSea- Stevenan 1 *Olt c 4t io TOWN OF YARMOUTH ; 'i, H BOARD OF APPEALS 0,` 4.: DECISION t PPA CI" YArROUTEI 1&ii t;_E;RK FILED WITH TOWN CLERK: August 1,2012 '32ALG1 405 DcC PETITION NO: #4401 HEARING DATE: July 12,2012 PETITIONER: Richard &Paula Shea PROPERTY: 143 River Street, South Yarmouth Map& Parcel: 0034.282 Zoning District: RS-40 Book& Page: 22686/215 MEMBERS PRESENT AND VOTING: Steven DeYoung, Chairman, Sean Igoe, Joseph Sarnosky, Debra Martin and Bryant Palmer. Mr. Garnick, (non-voting Alternate) was recused. 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 Petitioners, Paula Shea and Dr. Richard Shea are parties in interest who were very well represented by Edward Kirk, Esq. The Petitioners reside at 24 Bass River Parkway, South Yarmouth, MA and by their Petition, seek to appeal from and to Reverse the Decision of the Building Commissioner dated 3/21/12 which order declined to issue an order of revocation of a use and occupancy permit for a garage apartment at property located at 143 River Street, South Yarmouth,MA Attorney Kirk presented a well-thought out argument in favor of the requested relief and suggested a compromise position the Board might consider while the underlying controversy (the Board's earlier grant of a Variance in connection with the subject property-See Decision #4365) was pending appeal. After careful analysis and discussion of the Petitioner's requested relief, Motion was made by Mr. Palmer, seconded by Ms. Martin to deny the Petition to which the Board voted unanimously in favor. 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 DeYoung-Can 1 q '6z/es • /8 0a/tee,/ c h_Wh aaodea), o.soiin Ter(781)383-0600 Fax(781)383-2734 cj&kw@comcast.net July 9, 2012 Yarmouth Board of Appeals Yarmouth Town Hall 1146 Route 28 Yarmouth, MA 02664 Re: Opposition to Appeal of Building Commissioner's Decision dated March 21, 2012 143 River Street, South Yarmouth, MA Dear Chairman Deoung and Members of the Board ' -T, `''� The following is:ani oppositiontathe appeal taken'by Richardand Paula Sheairegard'ing' a decision of the Building.Commissioner dated March 21,2012,denying thaSliea`s"ri'iue`st for revocation of the occupancy permit granted with respect to the above property in December 2006. Neither my client nor I were aware of this appeal until Dr. Marasco received a card from the Zoning Board on or about June 28, 2012, notwithstanding the fact that Attorney Kirk's Notice of Appeal dated April 10, 2012 indicates a copy was sent to me. I did not receive the same. I am unable to attend the scheduled hearing on July 12;2012; however, I am sending this letter of opposition and request the opportunity to be heard if the Board feels the matter needs further hearing after reviewing this opposition. The present appeal should be summarily denied for the following reasons: 1 The,grant of variance is in full force and effect, Attorney Kirk'sre�resedtatior the variance is not operative is simply false:•Th"e'de nova heating'pia'edure for appeals regarding variances and special permits is a rule of procedure and ),•:" ;i.- t ;:;standard.of proof,which:allows-the trial judge to hear all the evidence and compare the decision of the Zoning Board of Appeals to the evidence to determine whether there are sufficient facts upon which the Board made its decision. The granted variance is the binding law pertaining to zoning issues on the subject property and would only become inoperative if the court annulled the Zoning Board's decision. No such annulment has occurred. 2. The current appeal is in effect the Sheas' attempt to request enforcement of the Zoning Bylaw and is barred by G.L. c.40A, § 8 and § 15. The original permit was granted March 29, 2006. Sections 8 and 15 of Chapter 40A require that an appeal of any decision of the building inspector must be taken within a thirty (30) day period. The Sheas had knowledge of the building permit in the spring of 2006 and have never appealed that decision to the Zoning Board of Appeals. The case law is clear,where adequate notice of the issuance of a building permit exists, a party may not lawfully bypass the remedy provided under Sections 8 Band 15 of Chapter 40A and subsequently litigate the question by means of a ' request for enforcement under G.L. c.40A, § 7. Gallivan v. Zoning Board of Appeals (2008) 71 Mass.App. Ct. 850, review denied(2008)452 Mass. 1104. Given the express language of Section 7, the Zoning Board of Appeals simply lacks jurisdiction to hear this matter. The appeal should be denied. Very truly yours, Charles J. Humphreys, quire Attorney for William Marasco, Individually and as Manager of Northstar Property Management, LLC CJH:epm Enclosures cc: William Marasco RECEIVED JUL 1 12012 YARMOUBOARD OF APPEALS 2 Er TOWN OF YARMOUTH rJl�'C Board of 1146 ROUTE 28,SOUTH YARMOUTH,MASSACHUSETTS 02664-24451 Appeals Telephone(508)398-2231 Ext.285, Fax(508)398-0836 AGREEMENT FOR EXTENSION ,M1W YARttl_LiTi4iTiA '12y"AY 6P 3:e0 k'^c The Petitioner understands and agrees: That the public hearing will not be held within 65 days of the filing of this Application,or XThat the Board will not take "final action" on the request for a Special Permit within 90 days of the conclusion of the public hearing; XThat 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 at , 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 `QNUrit/AIANQ d e 7)IY— S. k4are- Petition# -¢31p ± Applicationaayce.ie filing date:11. 01')....D, . Initial Hearing Date : ///,' 7� A, rtDate: �4j ay 7— Petitioner or Age r Petitio r I.V141210 I-t+. VZ\t2 It—,� )1X,3/4.5:79,tDate '/4 t/,,SJ Board Appealsvf Date Filed with Town Clerk:S/-2. HAMyFiles\Documents\Application\Hearing Extension Agreementwpd 1 I ` Property Location: 143 RIVER ST MAP 10:34/282/// Bldg Name: State Use:1010 ' Vision ID:4905 Account#0531100 Bldg#: 1 of 1 Sec#: 1 of 1 Card 1 of 1 Print Date:06/14/2012 09:00 11111r/f/AKt9/1 f•Y/O)Jnanl4T.KOPYDescription prion I11� Element Cd ® Description Element Cd ® .tyle •es Style 111 WOK 13 1 28 I odd I i'esidential •dc I• I sceilent FUS .tones , Stories 3030 FGR 33 •ccupancy +'IMIXED.USE I xterior Wall l nod Shingle Code Descri.tion Percenta:e I xterior Wall 2 1010 .INGLE FAM MDL-01 100 6 13 28 I.oof Structure I able/Hip I OP roof Cover I ••sph/F Gls/Cmp 1 tenor Wall I I u rywall/Sheet 28 tenor Wall 2 I I lastered 'COST/MARKET VALUATION Interior Fir 1 arpet -dj.Base Rate: 169.64 1 tenor Flr 2 I' i'ine/Soft Wood +07,752 i'TO 8 7 eat Fuel 1 as I et Other Adj: 1 9950.00 22 eat Type I 1 orced Air-Due YB• Cost :860 WDK •C Type I entral 1 860 18 otal Bedrooms I Bedrooms •"p Code G AS 14 oral Bthrms 'emodel Rating 1l6� FUS oral Half Baths I ear Remodeled 0 BAS otal Xtra Fists •-p% 'S Mal Rooms unctional Obslnc - I 34 32 ath Style I verage xtemal Obslnc I 6 I itchen Style I I odern ost Trend Factor 36 ondition A A Complete •124 • erall%Cond - S 'DDrais Val .95,800 "` �w'+.'�- .-z+'S' ' .. b 3t "' ' t t i` o N fit$ 4a '+"1 'S. 4 x set2*w "N'" 3 �'� s l•ep/o Ovr Y4 ,. >t .+ ,3-I, .t ..• Y x � f a s r ' ". i•-p OvrComment r`' y.+ 'kf y°.a.. i+* r €. , t 'I §i ab 1 isc Imp Ovr I „ S+ ,a'S syy. � t I,: '. Z. I isc Imp Ovr Comment ..7.P. 'ra-,CJti+• ° ^ 1 '' y +y- s *A , 3 n a 'St to Cure Ovr I wt H. ^ n ,! 'h *St to Cure Ovr Commenti4 F • °'`"=' " ,I,�lh ,,S - , "� k '�"` OB-OUTBUILDING&.YARD ITEMS(1)/XF-BUILDING EXTRAFEATURES(B) ..: :"4.2.`a..•.;' �'� r �- *•— ri '',- ' ''' Y : + Code Descri.(ion Sub Sub Descri.( ®Unit Price®Gde D.Rt Cnd e,Cnd A.r Value :� `; -� ,y j, _ ,' tor 'AT2 i'ATIO-GOOD ' ..00 1980 S :00 ±s `''^ j.�,+ T`"�" I PL3 .HEDFRAME I � �� Li �11D , STORYCfIB Jj000 1983 1 100 , 100s , 1Li 1S 1 eel Outs Shwl 983 1 100 I t .: til i r `.•r r. .....c.,,,..:4,-....,.,.. OE': titter '.. 'BUILDING SUB-AREASUMMARYSECTION Code Descri.non Liv:n:Area Gross Area Ei.Area Unit Cost ndeerec. Value :x I "AS 1 first Floor 1,874 1,874 1,874 169.64 317908 r a;. 4 K` 1 GR arage 0 1,314 _526 67.91 89,231 t y ' a- N: - ' `' „y{'a., 1 OP r arch,Open,Finished 0 196 • 39 33.76 6,616 :' bs a :•;, .- 4 ?" ""`'�` T I US pper Story,Finished 2,862 2,862 2,862 169.64uh"w•� ,.r Oa �aecly Wood0 372 37 16.87DK 6277 :ith: 1 ;ftt1/hRuI/IiflZ . , r/ - 4736 6870 . 1J3 ° °H�`-+� r 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:06/14/2012 09:00 CURRENT OWNER 'TOPO ---UTILITIES $TRT✓ROAD - LOCATION - ' .:: CURRENT ASSESSMENT J MARASCO WILLIAM 1 Level 2 Public Water 1 aved 2 Suburban Description Code Appraised Value Assessed Value 6 Septic 7(ESIDNTL 1010 697,900 697,900 815 143 RIVER ST - 'RES LAND 1010 645,200 645,200 YARMOUTH,MA SOUTH YARMOUTH,MA 02664 - : SUPPLEMENTAL'DATA RESIDNTL 1010 2,000 2,000 Additional Owners: Other ID: 29/W003/// VOTE MISC 180 VOTE DATE CHANGES PRIVATE R( BETTERMENT VISION PLAN NUMBEI 67 ZIP CODE 2664 GIS ID: 4905 ASSOCPID# Total 1,345,100 1,345,100 RECORD OF OWNERSHIP BK-VOL/PAGE SALE DATE VII 114 SALE PRICE kc .'r- .- PREVIOUS ASSESSMENTS(HISTOR - .. - MARASCO WILLIAM J 25799/ 25 10/31/2011 U I 100 IF Yr. Code Assessed Value Yr. Code Assessed Value Yr. Code Assessed Value NORTHSTAR PROPERTY MGT LLC 22686/215 02/21/2008 U I 100 IF 2012 1010 697,900 2011 1010 756,0002010 1010 756,000 MARASCO,WILLIAM 14509/192 11/30/2001 Q I 660,000 00 2012 1010 645,2002011 1010 682,7002010 1010 758,500 COUGHLIN EDWARD L I 0 2012 1010 2,000 2011 1010 2,000 2010 1010 2,000 Total: 1,345,100 Total: 1,440,700 Total: 1,516,500 - - --- • - ` -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) 695,800 - '.: ASSESSING NEIGHBORHOOD - - - , : —-- 2 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) 645,200 NOTES = Special Land Value 0 VERY GOOD WATER VIEW IN LAW APT LG BOA#3905 Total Appraised Parcel Value 1,345,100 BOA#4365-2011 Valuation Method: C BOA#3908-2004 A/C BD BOA#4023-2006 Adjustment: 0 Net Total Appraised Parcel Value 1,345,100 ' - - HH =:;. BUILDING PERMIT RECORD -- - . ,, - - : z-----:,::-z"-, - VISIT/CHANGE HISTORY .4 _z—'' Permit ID Issue Date Type Description Amount Insp.Date %Comp. Date Comp. omments Date Type IS ID Cd Purpose/Result 08-437 0/01/2007 RP Repair 9,400 0 SIDE 4 SQ'S 06/28/2007 GM BP Building Permit 07-968 2/15/2007 WIN Windows 9,400 0 REPLACEMENT WINO5/172005 GM BP Building Permit 06-1162 3/312006 FD Foundation 8,000 06282007 100 OUNDATION 06/082004 KF BP Building Permit 06-1121 3212006 DE Demolish 10,000 06282007 100 EMOLISH GARAGE/0828/1995 RD 00 MeasurfListed 06-1236 4/19/2005 NC New Construct 179,000 06282007 100 CAR GAR W/2ND FL 05-220 8/162004 AD Addition 80,000 05//72005 100 01/01/2005 STORY FRONTADDI 05-019 7/062004 AD Addition 51,600 05/172005 100 01/0/2005 ND FLOOR W/DECK _> LAND LINE VALUATION SECTION— - 4 __. •, B Use Use Unit I. Acre C. ST. SAdJ # Code Description Zone D Front Depth Units Price Factor SA. Disc Factor Idx Adj. Notes-Adj Special Pricing Fact Adj. Una Price Land Value 1 1010 SINGLE FAM MDL-01 24,394 SF 3.98 1.0000 8 1.0000 3.5010080 1.90 LOC 1.00 26.45 645,200 Total Card Land Units: 0.56 ACI Parcel Total Land Area:L56 AC I Total Land Value: 645,200 YARMOUTH BOARD OF APPEALS ABUTTERS LIST Petition# Pc- Name 6/dint) .- 1 rJq cows- Filing Date: //�/'�y/ 7 Hearing Date: 7 /o�•/c Property Location: 777 r. • .,/ ,LA ,. n( ,s-, 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(only within 300 feet of the property line)of the petitioner as they appear on the most recent applicable tax list. Provide only the abutters map and lot number . Postage charges for all applications will be determined by multiplying the number of abutters (and the parcel (s)in question) times .56e,which is the current cost for the two required mailings. Add that to the application fee and include your check with the application. Map Lot Number Map Lot Number • Number Number 'P�� Applisana— 31 Abutters#'s 3 a`) ci air 3 el Soft 3L( . ?10 a a 1 11{St, 2 Labels-1 Hard Copy Assessors Field Card with photo Matthew Zurowick,Director of Assessing hJ . 42/ 147/ / 34/ 278/ / / CHURCHILL JR TRS FRANZ MARGARET MARY TRS BASS RIV TRUST/C/O DIANA OLEARY PAUL 243 PL SANT ST P 0 BOX 1 SO YARMOUTH,MA 02664 PURDYS,NY 10578 43/ 50/ / / 34/ 279/ / / CHURCHILL W HALLOWELL ISSOKSON,ALAN G TRUSTEES BASS RIVER TRUST 133 RICHARDSON DR 243 PLEASANT ST NEEDHAM,MA 02492 S YARMOUTH,MA 02664 35/ 2/ / / 34/ 280/ / / JORDAN LUCRETIA M ESTATE OF SHEA RICHARD W TRS C/O FREDERICK E CHURCHILL SHEA PAULA F TRS 243 PLEASANT ST 24 BASS RIVER PARKWAY S YARMOUTH,MA 02664 SOUTH YARMOUTH,MA 02664 42/ 146//11/ / 35/ 1/ / / CHURCHILL W HALLOWELL JR STAFF,GAIL E C HARTSHORNE&F CHURCHILL AND 14 OTHERS BASS RIVER TR,243 PLEASANT ST 180 RIVER ST S YARMOUTH,MA 02664 SOUTH YARMOUTH,MA 02664-6000 42/ 145/ / / 34/ 283/ / / JORDAN WINTHROP TRS CHAPPELL PATRICIA PURCELL GRINBERG D A KATHRYN/C/O K 264 HURON AVE 6510 76th ST CAMBRIDGE,MA 02138-1375 CABIN JOHN,MD 20818 34/ 281/ / /. STARKEY,H CHRISTOPHER STARKEY,LOUISA H 149 RIVER ST SOUTH YARMOUTH,MA 02664 34/ 282/ / / MARASCO WILLIAM J 143 RIVER ST SOUTH YARMOUTH,MA 02664 34/ 284/ / / MCNAMARA NEIL J MCNAMARA JOANNE G 23 BASS RIVER PKWY S YARMOUTH,MA 02664 34/ 290/ / / CUNNINGHAM JAMES JOSEPH TRS C/O P J CUNNINGHAM 3 VIA PARAISO WEST TIBURON,CA 94920 34/ 285/ / / JACKSON WILLIAM W JACKSON MARY LOU T • 32 BERKSHIRE ST NORFOLK,MA 02056 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 Yarmouth Zoning Board of Appeals May 31, 2012 1146 Route 28 So.Yarmouth,Mass.02664 Re:Shea Appeal 143 River Street/Marasco Dear Sandy: Enclosed you will please find two(2) original Application(s) For Hearing, each with a Fact Sheet and attached prior decisions of the board with respect to the subject premises.It is my understanding that a hearing on this appeal will take place on Thursday,July 12, 2012 . I thank you for your assistance, and if you have any questions,please do not hesitate to call. Very truly yours, d��xr�f��'J. IGrk ewk/se w/encl. RECEIVED JUN 4 2012 YARMOUTH BOARD OF APPEALS EDWARD W. KIRK ATTORNEY AT LAW WIANNO PLACE 901 MAIN STREET P.0.BOX 393 OSTERVILLE.MASSACHUSETTS 02655-0393 FACSIMILE (508)428-4800 (508)428-4111 Yarmouth Zoning Board of Appeals June 4, 2012 1146 Route 28 So.Yarmouth, Mass.02664 Re:Shea Appeal 143 River Street/Marasco Dear Sandy: As requested,I enclose a check in the amount of$208.60. Thanks again for your patient assistance, and if you have any questions, please do not hesitate to call . Very truly yours, swan ewk/se w/encl. • OF•Ygj Po , , TOWN OF YARMOUTH C• BOARD OF y 1146 ROUTE 28 SOUTH YARMOUTH MASSACHUSETTS 02664-1951 APPEALS n krrncnt*�GIP/ciN • `,v Telephone (508) 398-2231,Ext.1285 — Fax (508) 398-2365 • 4p0r�r l� b' May 10,2012 Edward W. Kirk, Esq. 901 Main Street Osterville, MA 02655-0393 Re: 143 River Street, South Yarmouth Dear Attorney Kirk, The Petition before the Board regarding the above-referenced needs to be filed no later than May 24,2012, before 12:00 p.m. or we will need to proceed with placing the matter on the agenda of 06/14/12 based solely on what has been received by you to date. We would request that you sign and return the attached Agreement for Extension as you indicated in your letter of April 22,2012, and then we would all have greater flexibility in scheduling the hearing. Very truly yours, Steven S. DeYoung, Chairman Enclosure cc Jim Brandolini Jane Hibbert } i Printed on Recycled Paper . 4`', TOWN OF YARMOUTH �. BOARD OF O H� 1196 ROUTE 28 SOUTH ]YARMOUTH MASSACHUSETTS 02664-4451 APPEALS )0*cc a,.,Dib9y-' Telephone (508) 398-2231,Ext. 285 — Fax (508) 398-2365 May 2,2012 Edward W. Kirk,Esq. 901 Main Street Osterville, MA 02655-0393 Re: 143 River Street, South Yarmouth Dear Mr. Kirk, I have yet to receive Petitioners necessary paperwork as per our requirement. It is my understanding that the Board of Appeals Application, along with instructions,was sent to you. Please contact the Board of Appeals Office if you should have any questions. Very truly yours, Steven S. DeYoung, Chairman cc Jim Brandolini Mark Grylls Jane Hibbert w.,4 Printed on Recycled Paper EDWARD W. KIRK ATTORNEY AT LAW WIANNO PLACE 901 MAIN STREET P. 0. BOX 393 OSTERVILLE,MASSACHUSETTS 02655-0393 FACSIMILE (508)428-4800 (508)428-4111 Stephen S.DeYoung, Chairman April 12,2012 Yarmouth Zoning Board of Appeals 1146 Route 28 So.Yarmouth, Mass.02664 by first class mail fax to 1-508-398-2365 Re:Shea Appeal 143 River Road/Marasco Dear Mr.DeYoung: Thank you for your letter of April 11, 2012 acknowledging receipt of the above- referenced appeal. Enclosed please find my check in the amount of$135.00. Beginning tomorrow, I am going to be out of the office until the end of April and upon my return will confer with your administrator with respect to what additional documentation will be needed in order to have the matter scheduled for hearing. In the meantime, please be assured that I will be happy to sign any documents by way of extensions or waivers in matters relating to the timing within which certain procedural events must occur. With kind regards, E•w:r• . 'rk ewk/se RECEIVED APR 18 2012 YARMOUTH BOARD OF APPEALS 4 .sc\ TOWN OF YARMOUTH BOARD OF % -yi A„,. 1146 ROUTE 28 SOUTH YARMOUTH MASSACHUSETTS 02664-4451 APPEALS MATTACM[ES � ,,,o,,,,,a'4 p Telephone (508) 398-2231, Ext. 285 — Fax (508) 398-2365 April 11,2012 Edward W. Kirk, Esq. 901 Main Street Osterville, MA 02655-0393 Dear Mr. Kirk, Your Notice of Appeal of the Decision of Building Commissioner has been received. Attached is the Town of Yarmouth Board of Appeals Application,with instructions. Once this has been completed and proper fees paid,the Request to Overturn the Decision of the Building Inspector shall be scheduled for hearing in the ordinary course. Very truly yours, Steven S. DeYoung, Chairman Encl (s) cc Jim Brandolini Jane Hibbert wi AO Printed on Recycled Paper TOWN OF YARMOUTH BOARD OF APPEALS 1146 Route 28 South Yarmouth, MA 02664 508-398-2231 ex 1285 Fax#508-398-0836 Email: sclark@yarmouth.ma.us Fax Transmittal TO: Ed Kirk FAX: 508-428-4111 FROM: Sandi Clark DATE: July 10, 2012 SUBJECT: Petition #4401-Richard & Paula Shea Hi Ed, Attached please find copies of correspondence received July 9, 2012 from Charles J. Humphreys, Esq. If you have any questions, please feel free to contact me. ` A Xerox WorkCentre 5335 Transmission Report 03-ID 5083980836 Date&Time:07/10/2012 9:06 AM Local Name YARMOUTH TOWN HALL Page:1(Last Page) Company Logo The Job has been sent. Original Size:8.5 x 11' TOWN OF YARMOUTH . BOARD OP APPEALS 1146 Route 28 South Yarmouth,MA 02664 508398-2231 ex 1285 Far/508-398-0836 Email:5clarlct varmoutb.maar Fax Transmittal TO: • Ed Kirk FAX: 508-4284111 FROM Sandi Clark DATE: July 10,2012 SUBJECT:Petition#4401-Richard&Paula Shea Hi Ed, Attached please find copies of correspondence received July 9, 2012 from Charles J.Humphreys,Esq. If you have any questions, please feel free to contact me. # Job Remote Station Start Date Duration Pages Protocol Contents Status &Time 1 5788 15084284111 7-10; 9:05 AM 51 Secs 3/3 ECM Completed • Q9eras ® RECEIVED WieuS • � " - VIA E-MAIL 14 gtoeleifieez, Ceahe4e4'%!�[a44ao�i&ae#' onsi 7 ?et:(781)383-0600 Fax(781)383-2734 cjklaw@comeast.net July 9, 2012 Yarmouth Board of Appeals Yarmouth Town Hall 1146 Route 28 Yarmouth, MA 02664 Re: Opposition to Appeal of Building Commissioner's Decision dated March 21, 2012 143 River Street,South Yarmouth, MA Dear Chairman DeYoung and Members of the Board: The following is an opposition to the appeal taken by Richard and Paula Shea regarding a decision of the Building Commissioner dated March 21, 2012, denying the Sheas' request for revocation of the occupancy permit granted with respect to the above property in December 2006. Neither my client nor I were aware of this appeal until Dr. Marasco received a card from the Zoning Board on or about June 28, 2012, notwithstanding the fact that Attorney Kirk's Notice of Appeal dated April 10, 2012 Indicates a copy was sent to me. I did not receive the same. I am unable to attend the scheduled hearing on July 12, 2012; however, I am sending this letter of opposition and request the opportunity to be heard if the Board feels the matter needs further hearing after reviewing this opposition. The present appeal should be summarily denied for the following reasons: 1. The grant of variance is in full force and effect. Attorney Kirk's representation that the variance is not operative is simply false. The de novo hearing procedure for appeals regarding variances and special permits is a rule of procedure and standard of proof which allows the trial judge to hear all the evidence and compare the decision of the Zoning Board of Appeals to the evidence to determine whether there are sufficient facts upon which the Board made its decision. The granted variance is the binding law pertaining to zoning issues on the subject property and would only become inoperative if the court annulled the Zoning Board's decision. No such annulment has occurred. 2. The current appeal is in effect the Sheas' attempt to request enforcement of the Zoning Bylaw and is barred by G.L. c.40A, §8 and § 15. The original permit was granted March 29, 2006. Sections 8 and 15 of Chapter 40A require that an appeal of any decision of the building inspector must be taken within a thirty (30) day period. The Sheas had knowledge of the building permit in the spring of 2006 and have never appealed that decision to the Zoning Board of Appeals. The case law is clear, where adequate notice of the issuance of a building permit exists, a party may not lawfully bypass the remedy provided under Sections 8 and 15 of Chapter 40A and subsequently litigate the question by means of a request for enforcement under G.L. c.40A, § 7. Gallivan v. Zoning Board of Appeals (2008) 71 Mass.App. Ct. 850,review denied(2008)452 Mass. 1104. Given the express language of Section 7,the Zoning Board of Appeals simply lacks jurisdiction to hear this matter. The appeal should be denied. Very truly yours, Charles J. Humphreys, quire Attorney for William Marasco, Individually and as Manager of Northstar Property Management, LLC CJH:epm Enclosures cc: William Marasco 2 • "Cif Y`glt' sirce' TOWN OF YARMOUTH TOWN CLERK 1�G YARMOUTH Ci _PK O , y BOARD OF APPEALS ': •,-':•s:4 DECISION ,L rr4ehtt FILED WITH TOWN CLERK: December 1,2011 '11DC1PN$:1 '+-eC PETITION NO. #4365 HEARING DATE: November 10,2011 PETITIONER: Northstar Property Management,LLC William J. Marasco PROPERTY: 143 River Street. South Yarmouth,MA Map and Lot#:0034.282; Zoning District: RS-40 Book& Page: 22686/215 MEMBERS PRESENT AND VOTING: Steven DeYoung, Chairman, Sean Igoe, Joseph Samosky,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 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 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 Zoning District. The Petition drew substantial interest from the public, mostly abutters who expressed opposition to the relief sought. No one spoke in support of the Petition except for Petitioner's representative, Charles Humphreys, Esq. Speaking in opposition to the Petition were the following: 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 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. The property consisted of a main house and a connected garage with 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 had been abandoned. As a result on July 16,2009 (and subsequently reiterated on 8/11/09) The Building Inspector directed that the Petitioner "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, Ciriffnan 4 TOWN BOARD OF APPEALS O P LI 4) :ilea with Town Clerk:NQV 6 1967 Hearing Date: 10/19/67 Petitioner: Mrs. Dorothy Farrar Petition: ;/871 ..,.:• • Lv:Z:75 CN The petitioner requested a review of the Building Inspector to a:a,t a permit and a variance from requirements of Yarmouth Zoning by-law to Wi=t etil cation of 1 b= of existing 3 bay garage for sleeping quarters and to remodel garage for this purpose. Shen on assessor's map 4299$13. Rembers of the Board present: Harold Hayes, Walter Anderson, Howard Speer, Zmameel 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 Carte Cod Standard Times on 10/5/67 and 10/1e/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 followingeared in oppostion: Hors. Rusted, Hrs. 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 Seat #29. =ears that the zoning law allows duplex houses in this area,and the Board. following fide presentation of the petitioner determined 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, 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 did not affect many other Tercels in the immediate area. Therefore, the Board felt that tare this granted, there were others in the area who could request the same consideration and any deviation from the requirement for one dwelling in bilis area the Board finds would be contrary to the by-law and would adversely affect the public good. •Sembers of the Board voting: Harold Hayes, Jr., Ifalter Anderson, Howard Spurr, Emanuel. )i?iberio, Albert Webb. Al]. voted to deny. . t<<3redore, the appeal for approval is denied. - Albert Webb Acting Clerk . • b • EDWARD W. KIRK ATTORNEY AT LAW _ WIANNO PLACE 5=~ •' 901 MAIN STREET f 12A R#O=4_:O6 R_`-d P.0.BOX 393 OSTERVILLE.MASSACHUSETTS 02655-0393 FACSIMILE (508)428-4800 (508)428-0111 Office of the Town Clerk Apri110, 2012 Town of Yarmouth Yarmouth Town Hall 1146 Route 28 Yarmouth,MA 02664 Re: Notice of Appeal of Decision of Building Commissioner M.G.L. c.40A ss. 8 & 15 143 River Road Marasco Property-Use of Second Floor of Garage Dear Lathes &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 those 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 2n 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. rz/ ov/ i , 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 by the- attorney: Edward W.KW PO Box 393 Osterville,MA 02655 (508) 4284800 ewk/se cc: Yarmouth ZBA Building Commissioner Thomas J.Perrino,Esq. Charles J.Humphreys, Esq. ,oma'—'q�R` TOWN OF YARMOU'!'E- �,� t� `10 BUILDING DEPARTMENT vta i ; € 1146 Route 28. South Yarmouth. MA 02664 ys C1., * 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. V2_ ' ✓games D. Brandolini, Building Commissioner cc: Charles J. Humphreys, Esq. Thomas J. Perrino,Esq. • RECEIVED EDWARD W.KIRK FEB 28 2312 ATTORNEY AT LAW WIANNO PLACE 901 MAIN STREET BUILDING DEPARTMENT P.O. BOX 993 OSTERVILLE,MASSACHUSETTS 02655-0393 ByFACSIMILE (508)428-4600 (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 find"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 Rd 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 R.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.2 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 • i artnortE 'Wealth Management Group TD Banknorth,N.A. 495 Station Avenue P.O.Box 1180 South Yarmouth,MA 02664 Toll Free: 800-673-2300 TDBanknorth WealthManagement.com November 16,2007 • Richard W. Shea,M.D. 4019 Eagle Cove West Dr. Palm Harbor,FL 34685 Re: Edward L. Coughlin Trust tJwill Dear Dr. Shea, I am responding to your letter of November 151 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 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 . 3anknorth Wealth Management Group TD Banknorth,N.A. 495 Station Avenue P.O.Box 1180 South Yarmouth,MA 02664 'Ibll Free: 800 673-2300 TDBanknorthWealthManagement.com 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 • April 10, 2012 Bruce Gilmore, Esq. 99 Willow Street Yarmouth Port, MA 02675 Dear Mr. Gilmore: Enclosed please find copies of a Notice of Appeal Decision of Building Commissioner 143 River Road Marasco Property—Use of Second Floor of Garage. I am enclosing a copy of Notice of Docket Entry for Davenport Trustee V Yarmouth Board of Appeals Please feel free to contact me if you have any questions or need any more information. Respectfully yours, 9544,- JEH:jeh Jane E. Hibbert, CMC/CMMC Encs Town Clerk Cc: William Hinchey / Town of Yarmouth Board of Appeals James Brandolini File sof.Y44. c~c -� `ttp : TOWN OF YARMOUTH YARMOUTH TOWN CLERK 0 ,we H BOARD OF APPEALS E'. ''+•,��•`� -' DECISION J• L '11DEC1PM3:10 QEC FILED WITH TOWN CLERK: December 1,2011 PETITION NO. #4365 HEARING DATE: November 10,2011 PETITIONER: Northstar Property Management, LLC William J.Marasco PROPERTY: 143 River Street. South Yarmouth,MA Map and Lot#:0034.282; Zoning District: RS-40 Book& Page: 22686/215 MEMBERS 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 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 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 Zoning District. The Petition drew substantial interest from the public, mostly abutters who expressed opposition to the relief sought. No one spoke in support of the Petition except for Petitioner's representative, Charles Humphreys,Esq. Speaking in opposition to the Petition were the following: 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 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. The property consisted of a main house and a connected garage with 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 had been abandoned. As a result on July 16, 2009(and subsequently reiterated on 8/11/09) The Building Inspector directed that the Petitioner "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'airfnan 4 IYA ke:,47" R'trC Sys'^• ., H THE COMMONWEALTH OF MASSACHUSETTS rra oketi TOWN OF YARMOUTH BOARD OF APPEALS Appeal#4365 Date: December 22,2011 Certificate of Granting of Variance (General Laws Chapter 40A, Section 11) The Board of Appeals of the Town of Yarmouth Massachusetts hereby certifies that a Variance has been granted to: Northstar Property Management, LLC William J. Marasco 143 River Street South Yarmouth,MA 02664 Affecting the rights of the owner with respect to land or buildings at 143 River Street, South Yarmouth, MA Zoning District: RS-40; Map & Lot#: 0034.282; Registry of Deeds Book/Page: 22686/215 and the said Board of Appeals further certifies that the decision attached hereto is a true and correct copy of its decision granting said Special Permit and Variance, and that copies of said decision, and of all plans referred to in the decision,have been filed. The Board of Appeals also calls to the attention of the owner or applicant that General Laws, Chapter 40A, Section 11 (last paragraph) provides that no Variance, or any extension, modification or renewal thereof, shall take effect until a copy of the decision bearing the certification of the Town Clerk that twenty days (20) have elapsed after the decision has been filed in the office of the Town Clerk and no appeal has been filed or that, if such appeal has been filed, that it has been dismissed or denied, is recorded in the Registry of Deeds for the county and district in which the land is located and indexed in the grantor index under the name of the owner of record or is recorded and noted on the owner's certificate of title. The fee for such recording or registering shall be paid by the owner or applicant. A.Set Ste enG DeYoungW.liairman • tli =. TOWN OF YARMOUTH 's xi:. orII q_` Town __�l_ 1146 ROUTE 28, SOUTH YARMOUTH,MASSACHUSETTS 02664-4451 Clerk Telephone(508)398-2231 Ext. 1285,Fax(508)398-0836 CERTIFICATION OF TOWN CLERK I, Jane E. Hibbert, Town Clerk, Town of Yarmouth, do hereby certify that 20 days have elapsed since the filing with me of the above Board of Appeals Decision #4365 and that no notice of appeal of said decision has been filed with me, or, if such appeal has been filed it has been dismissed or denied. Jane E. Hibbert, CMC/CMMC Town Clerk t.. z TOWN OF YARMOUTH Board of 1146 ROUTE 28 SOUTH YARMOUTH,MASSACHUSETTS 02664-24451 Appeals Telephone(508)398-2231 ext.285,Fax(508)398-0836 December 22, 2011 Dear Petitioner: In accordance with Massachusetts General Laws, Chapter 40A, Section 11, enclosed is an original Certificate of Granting of a Variance of the Board's decision with the proper certification by the Town Clerk which is to be recorded by you at the Barnstable County Registry of Deeds and/or Land Registration Office. Please ask the clerk to make you a copy of the recorded decision as you must forward a copy of the recorded decision, to the Board of Appeals and the Building Department,to the above address. Sandi Clark Board of Appeals Secretary Enclosures oF.YaR YARMOUTH TOWN CLERK - TOWN OF YARMOUTH o _ ,'' y BOARD OF APPEALS �:„ ,.•'�� APPLICATION '11SEP23PM3C PIOAppeal#: 441434151 Hearing Date: /A/01'/ Fee$/f3•9D • Owner-Applicant: Northstar Property Management, LLC , William J. Marasco (FLamest.ttoo luding d/b/a) 21 Aarons Way (508) 566 .834 wmarasco@massmed.org (Address) (Telephone Number) (Email Address) and is the (check one) [* Owner 0 Tenant 0 Prospective Buyer 0 Other Interested Party Property: This application relates to the property located at: 143 River Street and shown on the Assessor's Map#: 0034 as Parcel#282 Zoning District: RS-40 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: A aaaiance from the use and dimentional requirements of the By—law to permit the continued use of a recently constructed garage apartment as a rental unit. 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. 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) x 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: 102. 2. 2 Relief sought:Variance Section: 202. 5 Relief sought: Two family dwelling (RS-40) Section: 203.5 C Relief sought: Variance frmmmthe minimum lot size For such other or additional relief as may be required. ADDITIONAL INFORMATION: Please use the space below to provide any additional information which you feel should be included in your application: In March and April of 2nn6. Applirant received 'i building permits to raise the existing garage apartment and breezeway and to construct a new garage apattment attached to the main dwelling. The work was completed and a Certificate of Occupancy was issued on September 19, 2006. • FACT SHEET Current Owner of Property as listed on the deed(if other than applicant): Northstar Property Management, LLC, 21 Aarons Way, W. Yarmouth Name&Address Title deed reference:Book&Page# Book 22685,PagrCertificate#e Land Court Lot# Plan# (provide copy of recent deed) Single family Use Classification:Existing:dwel l i ng §202.5# Al Proposed:Two family dwelling §202.5# A2 Is the property vacant: No If so,how long?: N/A Lot Information Size/Area:24, 276 s. felon Book and Page 62 / 151 Lot# 3A Is this property within the Aquifer Protection Overlay District?Yes No X Have you completed a formal commercial site plan review(if needed)? Yes_No X 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: Board of Health granted a disposal works permit for on site septic system for garage apartment. Project is complete. No other reviews are required expett those boards and departments given notice Repetitive Petition:Is this a re-application:N o If yes,do you have Planning Board of this' Approval? NZA petition.. 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: See prior application to overturn Decision of Building Inspector. Petition No. 4268, Decision dated February 2, 2010 attached hereto. See also Petition No. 871 (1967) and Petitmon No. 3908 (2004 ) Building Commissioner Comments: attabhed hereto. "h • Applicant' omey/Ag nt S' afore Owner's Signature Address: 15 Brook Street Cohasset, MA 02025 Phone "-78l;383.0600 E-Mail: cjhlaw@comcast.net A`tote l'^ ilding Commissioner Signature ate I /6• SOJQ%ee4 `6tih4ae4 oton Tel(781)383-0600 Fax(781)383-2734 cjhlaw@comcast.net November 10,2011 RECEIVED AT HEARING // //0 ll Zoning Board of Appeals Town of Yarmouth Yarmouth Town Hall 1146 Route 28 South Yarmouth,MA 02664 Re: Petition for Variance 143 River Street, South Yarmouth,MA Dear Chairperson and Members of the Board of Appeals: I represent William Marasco,owner of the above captioned property. I am submitting this Proposed Statement of Facts and Findings in support of the Petitioner's Application for a Variance to permit a garage apartment. PROPOSED STATEMENT OF FACTS AND FINDINGS 1. The subject lot is an RS40 Zone and the lot contains 24,275 square feet and was created prior to the adoption of zoning. In 1975,the bylaw was amended to increase the minimum area in the RS40 Zone from 20,000 feet to 40,000 feet. The subject lot is a lawful pre-existing non-conforming lot. 2. In 1967,the then owner of the property,Dorothy Farrar, applied for authority to remodel a detached three bay garage as an apartment(Petition No. 871 of 1967). The Board noted that two-family properties are allowed in this district but this Petition should be denied because the proposed apartment was not a duplex but rather a second dwelling on a single lot. 3. Circa 1969, Edward Coughlin and the Coughlin Family Trust connected the garage to the main house and, as evidenced by rental certificates from 1970 on,rented the garage apartment and used the property as a duplex. • 4. The zoning bylaw change of 1975 eliminated duplexes as a matter of right in the RS40 Zone and required that duplexes may only be permitted on lots having twice the required minimum lot size. 5. The Coughlin family is believed to have consisted of five brothers and sisters who,together with their families, shared the premises. By the late 1990s several members were deceased to the point where only two members were still alive. Their use was limited and occasional. Because of the reduced use and cost and expense of maintaining the premises the Trustee of the Coughlin Family Trust elected to sell the property. 6. William Marasco purchased the property on November 29,2001. At the time he purchased the property,the garage apartment located on the premises was fully furnished, linens were on the beds,towels on the racks, silverware,pots and pans, dishes and small appliances were in the cabinets. 7. The property was represented at sale to be a two-family residence. William Marasco confirmed this at the Yarmouth Building Department and obtained in 2001,a Rental Permit and Board of Health Permit. The premises were inspected at that time by the Building Commissioner,James Brandolini. 8. In 2001 and 2002, William Marasco installed two new septic systems, one for the house and one for the garage apartment. 9. The apartment has been rented every year from 2001 to the present. 10. The Town of Yarmouth has and continues to assess the premises as a two- family residence. 11. The last two members of the Coughlin family died in 2001 and 2002 respectfully. These were the last two owners who had actual knowledge of the use of the premises. The Trustee of the property, Richard Bussiere, Vice President of TD Bank North, in correspondence to the Building Department stated that the Trust did not abandon the two-family use but that the Trustee did not get involved directly in the renting of the premises or the collection of rents. This was handled by family members but he believes that the two surviving sisters,their caretakers, and others used the premises on occasion from 1997 to 2001. 12. In 2004, William Marasco obtained a Special Permit(Petition No. 3908) to perform certain upgrades and construct an addition to the premises. James Brandolini, the Building Commissioner, inspected the premises continuously during this work. 13. In October 2005, William Marasco inquired of the Building Commissioner as to what would be required to demolish and rebuild the garage apartment. No application was filed at this time. The Building Commissioner recommended that Mr. 2 Marasco file for a Special Permit. The recommendation was apparently based on the fact that the Zoning Board of Appeals in 1967 had denied a Special Permit/Variance for the garage apartment due to the fact that it was unconnected to the house and constituted two residences on one lot rather than a two-family residence. 14. Records indicate that the then owner architecturally connected the garage to the house thus creating a two-family structure which was permitted under the then zoning bylaw. 15. Over a four month period,the Building Commissioner reviewed the relevant facts and requested legal opinions from the then Town Counsel John Creney regarding the breezeway connection and the use of the garage apartment. In order to obtain evidence of continued two-family use,Mr. Richard Bussiere,Vice President of TD Bank North,who served as trustee of the property, addressed the use of the garage apartment. Based upon the letter of Richard Bussiere and the opinion of Town Counsel dated March 6,2006,opining that"the use of the unit was not discontinued; that Section 104.3.1 of the Zoning Bylaw is not applicable; and that the pre-existing non- conforming use as a duplex may lawfully continue without any necessary relief from the Zoning Board of Appeals." 16. The Building Commissioner issued three permits. On March 21, 2006, allowed the demolition of the existing garage/apartment, on March 31,2006, allowed the construction of a foundation, and on April 19,2006,allowed the construction of the garage and apartment. 17. The demolition of the garage was completed in April 2006. The foundation was completed in April 2006. The construction of the new garage and apartment commenced in April 2006 and continued until completion. A Certificate of Occupancy was issued on December 19,2006. 18. William Marasco expended approximately$180,000.00 to construct a new garage apartment. 19. Richard W. Shea, a direct abutter,was present and observed the demolition, foundation pour, and construction since April 2006. 20. No appeal was taken with respect to any of the permits issued within thirty days of their issuance. 21. From June 2008 through July 2009,there was substantial communication between the Building Commissioner, Town Counsel, and certain abutters who were requesting enforcement of the zoning bylaw regarding the issue of abandonment. These communications culminated in the Building Commissioner ordering William Marasco to take action in accordance with his July 16, 2009 letter. William Marasco appealed the Building Commissioner's letter to the Zoning Board of Appeals. The Zoning Board of Appeals upheld the Building Commissioner's letter. William Marasco appealed the 3 e- W U O o to § a. 0. N V] ROD. b YWco co O y NU Oyy > 0.) .y ° b U a .O-. a) la o. o U a) Jo 'U 'N in Vf .� . O y s,7 N ^[y l° v, CID 0 1-1 > on U 0 0 h .'o.+ N ca hUifl ' ''a N Y 1 ER.2 .`-ii ° 0 0 0 0 --- .9 id 0H o > o a �, O 0 H is "° ° N 4 a 5 n ?, ao >, s 0 . OU 'nN a ••-' O Q VWW O y aO P•-. Is > SanC ° tiO bb O ffa G y ¢. QN o N O 0 o p N.g , . RO O O " oX' NL . C o .+ C Nup is c N Q .G U q a a N g ti 5 � ° bv ° a o° w O y � ° m O � 0 Uo - g •v � 0N y � tiOYAW to al w a0 N nU •� a ° • .L � � p t � 'O OA as ate ... 0 O N o o ' • aa2 -brEgo ? a ° •o6 � wo ° st ° • 3m + ° o • ti -. ° c + o a � w oma °° cX8 a) :4 v `V ' a o . • 0 o00a c' � o• 2 .t0, 2. ,,0, 2. ,,, c) t ° a2 o g > oo q y + EOaNNNw d . •� oU � a 0 . x 2 OD7 WIlD bil ' ^" 16 Ch A •c a Gco0 >❑ aaN 1:1:10Nw0 NU . o NU OwaCU a) a0 . a UN O0 . >, E ° H N ' . o ❑ rn 03 0 —, aV M .•. •.7 p OSbN1 'O ONy •ti U . p T NUV p�ti 0 C h. y E _ fal5 �Rv oa oNQ � a > W° a . a.oaw8 .. .0 2. The hardship is owing to circumstances relating to the particular structure located on this lot which is not typical of structures located in the Zoning District RS40. While garages,per se, are typical in the Zoning District,this particular structure is unique in that the owner,pursuant to building permits obtained in good faith,expended substantial sums of money to create approximately 1,000 square foot finished apartment with kitchen,baths,heat, air conditioning and its own septic system. The hardship in this case is not self imposed. William Marasco has constructed and used this structure and its predecessor in good faith in accordance with permits issued in good faith by the Town of Yarmouth. He has taken no action which would result in a reduction or elimination of zoning rights. 3. The requested relief may be granted without either: substantial detriment to the public good; or nullifying or substantially derogating from the intent or purpose of this bylaw. All variances by their nature involve some derogation from the literal intent of a bylaw. The particular relief sought is a result of unique circumstances. At the time the original garage apartment was built, it was permitted as a matter of right under the zoning bylaw. The zoning bylaw does protect lawful pre-existing non-conforming uses. Both the bylaw and General Laws Chapter 40A, Section 6,provide unique protection for one-and two-family dwellings. There are many two-family dwellings in the Town of Yarmouth and two-family dwellings are permitted as a matter of right from certain provisions of the bylaw. There is a two-family structure abutting the Marasco property. The reconstructed garage apartment is attractive in appearance and does not create any visual adverse impact on the neighborhood. There is no indication that its use as a garage • apartment over the past ten years has created any nuisance,traffic,parking or other activities which would be offensive to the neighborhood. Given the unique history of this property,the granting of this variance does not create a unique privilege for the applicant nor would the same create any precedent for the creation of new garage apartments where none previously existed unless the same fully complied with the provisions of the bylaw. Respectfully submitted, Chell s . Humphreys,Esquire Attorney for William Marasco CJH:epm 5 IN TOWN OF YARMOUTH Board of It1146 ROUTE 28, SOUTH YARMOUTH,MASSACHUSETTS 02664-24451 Appeals Telephone(508)398-2231 Ext. 285, Fax(508)398-0836 YARMOUTH TOWN CLER AGREEMENT FOR EXTENSION '110CT21rm3:31 REG The Petitioner understands and agrees: _That the public hearing will not be held within 65 days of the tiling of this Application,or _ That the Board will not take "final action" on the request for a Special Permit within 90 I 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 he 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 _htagreed that the Hearing shall be held/continued on JO I I , 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. /�f �� Applicant/Petitioners a� m�`fyfdirnm uret Petition It 4�lo5 Application filing date: Initial Hearing Date : /(1�p�. r7— ��l-/�� _ Date: 7 /// G �^+'�[i � J� fettVer A�j/�9y�i` /g,„;;i/r✓pt _� Date: 40 2/// 1 ar1G d of Appe Date Filed with Town Clerk:1.•_„„g/ 1/ /If%ty F'ik IMcomenis, pplication;I tearing Extension Agreenient.Npd /of 000101/1/44 c94 drG, & ranee - otan ¶16(781)383-0600 Fat(781)383-2734 cjbilaw@comcast.net October 26,2011 Zoning Board of Appeals Attn: Sandy Town of Yarmouth Yarmouth Town Hall 1146 Route 28 South Yarmouth, MA 02664 Re: Petition for Variance Applicant: Northstar Properties Management, LLC and William Marasco Property: 143 River Street, South Yarmouth,MA Dear Chairman and Members of the Board of Appeals: The above captioned petition is scheduled for public hearing on November 10, 2011. In the original filing, elevation and floor plan drawings were not included (I believed them unnecessary as all construction is complete). Attorney Tom Perrino called me and asked me to include elevation and floor plan drawings in the filing. Enclosed you will find six(6)copies of the elevation and floor plan drawings. Would you kindly include those in the file. Thank you for your attention to this matter. Verytruly yours,l C-^-1-40 yll-a- PMA-11 Charles J. Humphreys,Esquire CJH:epm Enclosures RECEIVED OCT 2 7 2011 YARMOUTH BOARD OF APPEALS e4 Jain,gei Cec�aaae4 11aaao&e6 alas Ter(781)383-0600 Fax(781)383-2734 ejhlaw@comcasknet September 8, 2011 Zoning Board of Appeals Town of Yarmouth Yarmouth Town Hall 1146 Route 28 South Yarmouth,MA 02664 Re: Petition for Variance Applicant: Northstar Properties Management, LLC and William Marasco Property: 143 River Street, South Yarmouth,MA ,r Dear Chairman and Members of the Board of Appeals: Enclosed you will find the following: 1. Petition for Variance regarding the above captioned property(two (2) originals). 2. Six(6) Certified Plot Plans; 3. Two (2)Abutters Lists; 4. Check to the Town of Yarmouth in the amount of$133.40 which represents the $125.00 filing fee and$8.40 for the necessary postage (15 X .56). I request a waiver on the application requirement for elevation drawings as the structure is existing and complete. Would you be so kind as to schedule this for a public hearing. Please do not schedule the public hearing from October 6, 2011 through October 12, 2011. Thank you for your attention to this matter. Very truly yours. hCkh \ Charles J. Humphre squire CJH:epm Enclosures cc: William J. Marasco Thomas J. Perrino, Esquire /�7 /° ��� ' SEP 13 2011 =� 4 mon Wa&4dea, `[a64ao&erfd- 0l0l3 BUILDING DEPT Ter(781)383-0600 fat(781)383-2734 By cjhlaw@comcast.net September 8, 2011 James D. Brandolini, Building Commissioner Town of Yarmouth Yarmouth Town Hall 1146 Route 28 South Yarmouth, MA 02664 Re: Petition for Variance Applicant: Northstar Properties Management, LLC and William Marasco Property: 143 River Street, South Yarmouth, MA Dear Mr. Brandolini, Enclosed you will find the entire original Application for Variance regarding the above captioned property. Under the Zoning Board of Appeals Regulations,the Building Commissioner must approve and sign the Application(duplicate original required). Would you kindly review, approve and sign both original Applications. Do not hesitate to contact me should you have any questions. Once you have signed the Applications,your assistant, Linda,has agreed to take the file to the Zoning Board of Appeals for their filing. Very truly yours, Charles J. Humphreys, 4squire CJH:epm Enclosures cc: William J. Marasco (w/out enc.) Thomas J. 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F } yi:9 !� tl �:� s �iy is ,: ;- : Nii.?, •• k w .l Ir .tt P�,4% r 13k226&6 Pg 217 #8811 m a, t COi MONwK4LflfoF c�tvssrrs 1 ' � 3A � Norfn!]r,aa. n �; 1 ��' kf" On this 151b day afFe �'` �`.» tnatay,2008,ha5oms me,the uodereip�ted natty public, 4 i ' PerlY aPPe&ed Wilnaw I.Masers,proved t0 me through aarisfecOohy evidence of ' r identification,which was a Masaachuaetts Drivers License,to be the person whose came w ,,;•41.,,-'' is signed On the preceding dncement,and acknowledged to toe thathe signal It I s m r voluntarily for its stated purpose. w '",': _� • _ Vis. , ' f' Notary Fabric rvtyc CommissionExpires: OVOlrog c f.D.! , f • G` CHARLES J.HUMPHAEYS a; t I tb -._: NOTARY FUME ' , - • C014D]HNSAL11feFtp4SOeJt rtg - Gr,. i_,' 4 ''''‘.1:•`:::: i'?-4,-'til''':' MYCC/11.MN.WIP /WIV.F..WY •• Ht' $ail z,' 'X� " ly.'#1K F.Y�tj �l b O Cs N C W 8 O x r1ct. d t 6 3 �� n 4 Vis,g 11r i�1: ¢r.i; P w 4t } rl 4rti kteif 1 yy Lf ' f 1 '- �k 4t s it ► 111111 tit"' a {,N.7Yt s��3y3r tyf''* t,c i'''1 la,'"I. P YtvaT�.f+'„. a'R<{a1.419;4 e; r r3 rcyn .+ N9' !Fit'$'Ai at4A „„ii�7 y. r! fn' ^ Yµ i'1'...."1. I MYlt7,,,{, 1,;„Kt 1 kGrwd � 1-t vi,ugy',I ,, nt:,1,. 1 F0,4,, a. 4—"*" '''' w} ,- $*- • uu4 Ei f t t f � a:. ..,,,,,,,,,,,&,,� YI ,' z- ' . "-� Property Location:143 RIVER ST MAP ID:34/282/// Bldg Name: State Use:1010 Vision 10:4905 Account#0531100 Bldg#: 1 of 1 Sec#: 1 of 1 Card 1 of 1 Print Date:10/24/2011 13:32 CURRENT OWNER TOPO. UTILITIES STRTJROAD "`LOCATION - CURRENT ASSESSMENT -' NORTHSTAR PROPERTY MGT LLC 1 Level 2 blic Water 1 Paved 2 Suburban Description Code Appraised Value Assessed Value 21 AARON'S WAY _ 6 optic RESIDNTL 1010 697,900 697,900 815 II RFS LAND 1010 645,200 645,200 YARMOUTH,MA RESIDNTL 1010 2,000 2,000 WEST YARMOUTH,MA 02673 - --SUPPLEMENTAL DATA Additional Owners: Other ID: 29/W003/.// VOTE _ MISC 180 VOTE DATE CHANGES PRIVATE R( BETTERMENT VISION PLAN NUMBEI67 ZIP CODE 2664 GIS ID: 4905 ASSOC PID# Total 1,345,100 1,345,100 RECORD OF OWNERSHIP BK-VOL/PAGE SALE DATE q/u v/i SALE PRICE V.C. - PREVIOUS ASSESSMENTS(HISTORY) NORTIISTAR PROPERTY MGT LLC 22686 215 02/21/2008 U I 100 1F Yr. Code Assessed Value Yr. Code_ Assessed Value Yr. Code Assessed Value MARASCO,WILLIAM 14509/192 11/30/2001 Q I 660,000 00 2011 1010 756,0002010 1010 756,0002010 1010 756,000 COUGHLIN EDWARD L I 0 2011 1010 682,700 2010 1010 758,500 2010 1010 758,500 2011 1010 2,000 2010 1010 2,000 2010 1010 2,000 Total: 1,440,700 Total: 1,516,500 Total: 1,516,500 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) 695,800 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) 645,200 `:NOTES -'+;Special Land Value - 0 VERY GOOD WATER VIEW IN LAW APT _ UG BOA83908 Total Appraised Parcel Value 1,345,100 Valuation Method: C BOA#3908-2004 A/C BD BOA#4023.2006 Adjustment: 0 Net Total Appraised Parcel Value 1,345,100 '. 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 10/01/2007 RP Repair 9,400 0 RESIDE 4 SQ'S 06/28/2007 CM BP Building Permit 07-968 02/15/2007 WIN Windows 9,400 0 7 REPLACEMENT WD 05/17/2005 GM BP Building Permit 06-1162 03/31/2006 FD Foundation 8,000 06/28/2007 100 FOUNDATION 06/08/2004 KF BP Building Permit 06-1121 03/21/2006 DE Demolish 10,000 06/28/2007 100 DEMOLISH GARAGE'08/28/1995 RD 00 Measur+Listed 06-1236 04/19/2005 NC New Construct 179,000 06/28/2007 100 3 CAR GAR W/2ND FL 05-220 08/16/2004 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 - LAND LINE VALUATION SECTION . - B Use Use Unit L Acre C. ST. SAdt # Code Description Zone D Front Depth_ Units Price Factor S.A. Disc Factor Ids Adj. Notes-Adj Special Pricing Fact 4d j.Unit Price Land Value 1 1010 SINGLE FAM MDL-01 24,394 SF 3.98 1.0000 8 1.0000_ 3.500080 1.90 LOC 1.00 26.45 645,200 Total Card Land Units: 0.56 AC Parcel Total Land Area:1056 AC Total Land Value: 645,200 Property Location: 143 RIVER ST MAP ID:34/282/// Bldg Name: State Use:1010 Vision/D:4905 Account#0531100 Bldg/f• 1 of 1 Sec#: 1 of 1 Card 1 of 1 Print Date:10/24/2011 13:32 !KOemen•A•YtYN I.TCdYCO•`/rl4f✓•NIfDinali/NU7111� Element Cd. ® Description ElDescription tyle •Id Style ________________ 1' WOK 13 1 28 odd I'esidential I rade 1: I xcellent FUS .tones r Stories 3030 FGR 33 • cupancy 1 MIXED USE I tenor Walll Vood Shingle Code Descri.tion Pereenta:e I tenor Wall 2 1010 :INGLE FAM MDL-0l 100 6 13 1 28 I•oof Structure 1 able/Hip FOP I•oof Cover 1 •sph/F Gls/Cmp tenor Wall I 1 I I rywall/Sheet 28 rtenor Wall 2 I I'lastered COST/MARKET VALUAT/ON''. I tenor FU I 1 :rpet di. Base Raze: 69.64 tenor FU 2 "ne/Soft Wood t 17,752 PTO 7 I eat Fuel as I et Other Adj: 9,950.00 6 22 eat Type I• forced Air-Duc I'eplace Cost :27,702 WDK I YB 860 PTO •C Type I entral 18 otal Bedrooms I: : Bedrooms _ •-p Code G AS 14 otal Bthrms • a emodel Rating 1$ FUS otal Half Baths ear Remodeled 0 BAS oral Xtra Fixtrs 1-p% '5 otal Rooms ' unctional Obslnc I 34 32 It ath Style I •verage xtemal Obslnc I 6 I 'schen Style 1 odern os[Trend Factor 36 ondition %Complete 12 •verall%Cond t5 OPrais Val :95,800 .vsl t'gr s }- t • p%Ovr I rire '3 t 7 e , II-p Ovr Continent u- `'-'- .' 3?' w. .� `_ �"� �' ..,=y ,;I. I isc ImpOvr 1 #y, - I isclmp Ovr Commen[ + w"' t kms'-" r . . y os[to Care Ovr I Ss-- r $..,•4P, . : h L"'i 3.w'�`»e ^ .6- ,� , ' .. ost to Cure On Comment a.. rfri L. _ y, OB-OUTBUILDING&YARD ITEMS(L)/XA ATUE Code Descri,tion Sub SubDesert.t r3®Uit Price®F-BUILDINGCde DEXTR�Rt CadFE %CndRS(B)• I� * � E4-- �•"+ei - r AT2 I'ATTO-GOOD '31 ..00n980 I 5 00 st`.-,-;:z.,:-*;;;;...:r i .$••••• `'-" - . . � .. .HDI .HED FRAMs I 140 ; 00 '1104 I 100 1,1 '' ,-- - 'L3 r STORY CHIT I. 1 ',800.00 1 983 100 x+100 -r F - r 1 s '" �_ � I i i I OS • nd Outs Shw II 1 1.611 1 983 1 00 � 1 n i < BUILDING SUBAREA SUMMARY SECTION + — 1 1 k- ?”-.• ':g 7t:: s. ,t l ':. ,,g Code Descri'tion Lwin.Area Cross Area Ei.Area Unit Cast nde ret Value .- AT:- 7.µttrxxr. h�4 rS ay Y in ' r AS I first Floor 1,874 1,874 1,874 169.64 317,908 s �,. -w,•• '� _ &. ' c� `' ^ r "- x ` I GR arage 0 1,314 526 67.91 89,231 ,�_ :x .••-•••-•-: s 4 ., `'c OP Torch,Open,Finished 0 196 39 33.76 6616 4r .�+,.,n• .411.A., _aa "' S pper Story,Finished 2,862 . 2,862 2,862 169.64 485,514 r. x*� ` !''' ' ti �7I' O 'atio 0 252 13 8.75 2,205 ` , , ' . 1 s n:5 :IK 'Teck,Wood 0 372 37 1687 6,277 . ",� 4 _ Ihi$h ;rem. 4736 6870�cm— 927702 .�- . r + _. l 1 Flo u - b p i 11 &: a \ ; s r b' 1 •• mad ; ç7T II5 , , _.. . 411: 1 C� ^ 1 : ••.. 1 , • Ii ', I I Ii 1 II 1 nIR 4A r 1i�/W ❑/ ' I1 1 , c\\ , gam! ; // �}\P -,I 1/4 e / es % I 1 1 I �=to 1\ • • • ••\ 1 I nS .�j1g,.sl411 O S ❑ LED *• e. o g� fg Q r. 1T. _i•• la nrl -moi EsiI UM1� W 7C - yy 9 L ' m ^ 1r. -y m '^ 11-.1 1 1 • F ' 13�� a92111: � r. . ^— 1 I y TAL .I I/l�/� 1JLr11 1 HNA t. 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I 1 _......... ...... 42/ 147/ / / 34/ 279/ / I CHURCHILL W H JR TRS - 1SSOKSON.ALAN G BASS RIVER TRUST/C/O DIANA 133 RICHARDSON DR 243 PLEASANT ST NEEDHAM,MA 02492 SOUTH YARMOUTH.MA 02664 43/ 50/ / / 34/ 280/ / CHURCHILL W HALLOWELL - SHEA RICHARD W TRS TRUSTEES BASS RIVER TRUST SHEA PAULA F TRS 243 PLEASANT ST 24 BASS RIVER PARKWAY S YARMOUTH.MA 02664 SOUTH YARMOUTH.MA 02664 35/ 2/ / ! 35/ 1/ / JORDAN.LUCRETIA M(ESTATE OF) STAFF,GAIL CIO FREDERICK E CHURCHILL AND 14 OTHERS 243 PLEASANT ST 180 RIVER ST S YARMOUTH,MA 02664 SOUTH YARMOUTH.MA 02664-6000 42/ 146/ ! / 34/ 283/ / / CHURCHILL W HALLOWELL JR CHAPPELL PATRICIA PURCELL E C HARTSHORNE&F CHURCHILL 264 HURON AVE BASS RIVER TR.243 PLEASANT ST CAMBRIDGE,MA 02138.1375 S YARMOUTH,MA 02664 42/ 145/ / / JORDAN.WINTHROP TRS GRINBERG.D,A&KATHRYN/C/0 K 6510 76th ST CABIN JOHN,MD 20818 August 3, 2011 34/ 281/ / / Please use the signature below to certify the cwners STARKEY,II CHRISTOPHER - of Real Property within a 300' radious of Yarmouth STARKEY,LOUISA H Assessors Map 34 Loo 282. 149 RST SOUTH YARMOUTH,MA 02664 34/ 284/ / / _ —�- •� MCNAMARANEILJ Matthew Zurowinit •—_._._. MCNAMARAJOANNE G Director of Assessing 19 OLD FARM RD HOPKINTON,MA 01748 34/ 290/ / / CUNNINGHAM,JAMES JOSEPH TRS CIO P 1 CUNNINGHAM 3 VIA PARAISO WEST TIBURON,CA 94920 34/ 285/ J / JACKSON WILLIAM W JACKSON MARY LOU T 32 BERKSHIRE ST • NORFOLK.MA 02056 34/ 278/ / FRANZ MARGARET MARY TRS OLEARY PAUL P 0 BOX 1 PURDYS.NY 10578 � '`,,r c ,'gip TOWN OF YARMOUTH sr `"•w � H BOARD OF APPEALS :; o• " `.i} • ,i, DECISION EXHIBIT £ `m `! =;� ,O FILED WITH TOWN CLERK: February 2,2010 �l 'c PETITION NO: #4268 BEARING 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 correspondence. of 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 thea 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. I . ' •.r:• • 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. M 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. errt,a) Steven D oung-Chaff 2 n �q r y"ter IF) Li i Ii:. L ly . ' a AUG 1 0 2004 ;e u Og YAR 9'T Bk 18921 Ps 145 *63407 W r<••" yip 0y 08-10-2004 8 12:21n t •TOWNDF YARMOUTH ;�;; l H • BOARD OF APPEALS T' ; ` :�'I ; t 41,4 04- DECISION t Q: � • • 209 Sal 20 Pn 2 55 44b 1 ilLErll Wfl li TOWN CLERK: July 20,2004 RECjLI V C� 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 Mondonris,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 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 `I Bk 18921 Pg 146 #63407 No pcmut 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,MOL c40A §9)Unless otherwise provided herein,a Variance shall lapse if the rights authorized herein are not excised within 12 months. (See MGL c40A §10) David S.Reid,Clerk • • 2 4 BOAR OF YARMOUTH t O FY i ., . . BOARD OF APPEALS Filed with Town Clerk:NQV 6 1967 Hearing Date: 10/19/67 f Petitioner: Mrs. Dorothy Farrar Petition: d871 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 utilisation of 1 bay of existing 3-bay garage for sleeping quarters andto remodel garage for this purpose. Shoe on assessor's map 429a13. --------------- 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 Caps Cod '; Standard Times on 10/5/67 and 10/13/67, the hearing was opened and held on the date first above written. b The following appeardd in favor of the petition: Attorney Joseph Reardon The followinggopeared in oppoation: Mrs. Rusted, Mrs. Phillipe, 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 appease that the zoning law allows duplex houses in this area. and the Board. following :he presentation of the petitioner dbtermined that the request was in fact for a second !welling on a sinele lot. It appeared that the lot was not substantially different from the rest of the lots in the subdivision. :t also appeared following consideration by the Board that were this request allowed that she intent and purpose of the zoning by—law would be derogated from, be 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. he Board considered the fact that this was in one of the prime residential sections of the own of Yarmouth and that there were no special conditions that affected this parcel that Ld not affect mamr other parcels in the immediate area. rerefore, the Board felt that tare this granted, there were others in the area who could 'quest the same consideration and arq• deviation from the requirement for one dwelling in :is area the Board finds would be contrary to the by—law and would adversely affect the iblie good. ambers of the Board voting: Harold Hayes, Jr., Walter Anderson, Howard Spurr, D. el :Liberia, Albert Webb. All voted to deny. oredore, the appeal for approval is denied. '. j Albert Webb Acting Clerk • aTOWN OF YARMOUTH •E)uuding Department BUILDING �. (508) 398-2231 ext.281 �L I PERMIT NO F18-0871238 PERMIT ISSUE DATE :. .411.9/2006• ; PROPOSED USE APPLICANT •TroyWallsJOB WEATHER CARD P • PERMIT TO New Cmstructlan AT(LOCATIONK0(11434E1 Al • ING DISTRICTIRS-4 Bldg.Types Residential SUBDIVISION MAP LOT BLOCK 034.282 BUILDING IS TO BE: CONST TYPE[] USE GROUP R-4 LOT SIZE CONTRACTOR construct three car garage with 2nd floor apartment•one bath,one bedroom,1 deck,1 den,1 IMngrocm,one REMARKS workshop as per plans dated 04/13/08. LICENSE 044847 Walls,Troy 87 Cranberry Lane South MA AREA(SO Fr) EST COST($ $179,000.00 PERMIT FEE($) $814.00 Yarmouth02884 5083941205 OWNER WILLIAM MARASCO BUILDING DEPT BY ADDRESS 00143 RIVER ST A South Yarmouth MA 02884 PHONE 5083942288 Certificate Issue Date aXe,,,c" a-60 cM11tiA d1 1�N Departmental Approval for Certificate of Occupancy and Compliance Inspector Date Permit Number Appr• - • =y Remarks BUILDING /////e l/�-v6 -%i3(. Fg-d f PLUMBING/GA WO ELECTRICAL Rition ENGINEERING m7 HEALTH /2////aG n- /8 Z ,ii ,)(infitite Aimm,ui S hedfings.fort 7iN7 bps% a!reen ream fivw. 6- ?‘" P 447Pct FIRE /;fifr �i� � .099' Cil ° oft4 WATER nl • To be filled In by each diNsim Indicated hereon upcn completion of Its final Inspection. • c'3 • Page 1 of 2 Clark, Sandi From: Brandolini, Jim Sent: Wednesday, November 09, 2011 2:34 PM To: Clark, Sandi Subject: FW: (no subject) Sandi: FYI Jim From: Brandolini,Jim Sent:Wednesday, November 09, 2011 2:33 PM To: 'Rwsheamd@aol.com' Subject: RE: (no subject) Dr. Shea: As per your request please be advised of the following: -Pursuant to the provisions of MGL Chapter 40A, Section 17 the petitioner and his attorney filed a court appeal of the Board of Appeals decision which upheld my zoning determination, as you are aware. That case remains pending. -The petitioner and his attorney have decided to seek a Variance through the BOA, as prescribed by MGL Chapter 40A, Section 10. -Because this is a public hearing any person may speak to the Board at the appropriate time during the hearing process. -Because of a conflict, Attorney Gilmore assigned this court case to Attorney Thomas Perino. Because the variance petition process is outside the realm of the pending court case from a legal standpoint, it is my understanding Attorney Perino will not be attending the hearing. -Because this is not an appeal to overturn my determination,which has already been heard, I will not be attending this hearing, which has been my customary historical procedure. -Finally,the Board has significant documented resources to refer to on the history of this matter. Sincerely, James D. Brandolini From: Rwsheamd@aol.com [mailto:Rwsheamd@aol.com] Sent: Friday, November 04, 2011 9:42 AM To: Brandolini,Jim Subject: Re: (no subject) Please give me a brief outline of how the Marasco variance meeting next Thursday will be conducted. How does the ZBA receive a balanced view of the history ?Will you or Attorney Gilmore be there to make sure that the facts,rather than the perceptions/assumptions, are clear to the ZBA? Will representatives of the South Yarmouth Association be allowed to speak if the appellant's portrayal of events does not square with the facts which have been summarized in Attorney Murphy's Feb 2009 letter to you?The notice of the meeting reflects a desire to permit continued use of a garage apartment as a rental unit. One could make the point that the Farrar/Coughlin use of the garage apartment has 11/9/2011 • Page 2 of 2 limited historical pertinence to this 2011 request since grandfathering of that non-conforming use exhausted at least 14 years ago. If the appellant had followed the Yarmouth Zoning Bylaws this request would have been received and heard in 2001. It is difficult for me to give credit today for unauthorized use of the rental unit over the last 10 years. In a message dated 11/3/2011 10:26:05 P.M. Eastern Daylight Time, JBrandolini©yarmouth.ma.us writes: As you may be aware I have retired and am filing in 1-2 days per week. Unfortunately based on next week's schedule(1day)Tuesday only, I will not be able to meet with you. However, I would be happy to answer your inquiries via email. Sincerely, James D. Brandolini From: Rwsheamd@aol.com [mailto:Rwsheamd@aol.com] Sent:Thursday, November 03, 2011 5:36 PM To: Brandolini,Jim Subject: (no subject) Can you give me 10-15 minutes before Thursday Nov 10 7 11/9/2011 BASS A/t ,,,,,,,,,,,,. �,q .I rien y // 0.00 N77.44 00"Iy / CC d /PAVED :W &DRIVE f7 770.9)' - _ '� ` �o \ CONCRETEROOF 04 R X�x WALK n @' r� . 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CHRISTOPHER STARKEY / • i P� pQ Oft 40ft. 80 ft. / SCALE: f INCA = 40 ft I e� 'REF: BOARD OF APPEALS PET. #3908 (APPROVED) PLOT PLAN LOCATION : 143 RIVER STREET, SOUTH YARMOUTH, MA SCALE : 1" = 40' DATE : 9/7/11 REFERENCE : MAP 34 PARCEL 282 PREPARED EXCLUSIVELY FOR: DB 14509 PG 192 Northstar Property I HEREBY CERTIFY THAT THE STRUCTURE Management LLC SHOWN ON THIS PLAN IS LOCATED ON THE 6J4.4ee, GROUND AS SHOWN HEREON. --at1 OF Mqs- DANIEL -1:::,\, o8 508-362-4541f ek Tc, OJA.LA 41)fax 508-362-9880 6oencop&eam o c No.40080 own cape engineering,inc. •F. .,o civil engineers land surveyors �_—I TV R 939 Aloin Street (Rte 6A) ill YARM[WINPORT MA 02675 DATE REGISTERED LAND SURVEYOR • . • YARMOUTH 4 -.l r!--iKdote LL. 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Bass River Parkway -ill po 0n 1317 BREwsrERNA 02431 ea 306 3114 t .. 24 Bass River Parkway South Yarmouth,MA 02664 November 6,2011 Zoning Board of Appeals Town of Yarmouth 1146 Route 28 South Yarmouth,MA,02664 re:143 River Street Dear Chair and Members of the Zoning Board of Appeals: On Thursday,November 10 you will be hearing a request from Dr.William Marasco for a variance that would"permit the continued use of a garage apartment as a rental unit".Dr. Marasco must convince you of the hardship that would occur without this variance and your decision must not nullify or substantially derogate from the intent or purpose of Article 202.5(A2)which prohibits creation of such units in RS-40 where 143 River Street is located. This is not the first time Dr. Marasco has been before you about 143 River Street and there is no need to for me to repeat the extensive record that is already available to you. I am urging you to uphold the existing Town of Yarmouth Zoning Bylaws and deny this request for a variance using the same reasoning that was employed when the issue was first heard in 1967. If you say "yes"to this request you will have a difficult time saying"no" to the succession that will follow. Sincere! yours Richard W. Shea,M.D. RECEIVED NOV 7 2011 YARMOUTH BOARD OF APPEALS 447// e/ek "/ //% `/ ,mac -4-0/ifitja'y.S. SOUTH YARMOUTH ASSOCIATION Post Office Box 533 South Yarmouth,MA 02664 November 7,2011 Zoning Board of Appeals Town of Yarmouth 1146 Route 28 South Yarmouth,MA 02664 Re: Application for variance of William Marasco Dear Members of the Board: • The South Yarmouth Association,a neighborhood association comprised of over 250 members, who reside in the zoning district in which 143 River Street is located,strongly objects to the granting of a variance . The approval of this variance would adversely affect the character of the neighborhood and diminish the value of surrounding property. If a variance were granted it would establish a precedent that would be hard to overcome in future cases. There is nothing about this property relating to the soil conditions, shape,or topography that creates a hardship for William Marasco. Sincerely, The South Yarmouth Association aue 5. kede4(-0-9 -5-41q6 Gail E.JepseriStaff President RECEIVED NOV 8 2011 YARMOUTH BOARD OF APPEALS 180 River Street South Yarmouth,Massachusetts, 02664 November 7, 2011 Zoning Board of Appeals Town of Yarmouth 1146 Route 28 South Yarmouth,MA Re:Variance application for 143 River Street Dear Board of Appeals Members. As neighbors of 143 River Street we object strongly to the granting of a variance to William Marasco. We have lived here for forty years during which the area has been zoned for single family dwelling. To make an exception to the zoning would affect the neighborhood in a negative way diminishing the value of neighboring property,and would be a substantial detriment to the public good. Further no circumstance affecting the soil, shape of lot or topography exists with this property differing from other properties in the district such as to create a hardship to Mr. Marasco. If William Marasco is claiming financial hardship it is self inflicted. If a rental unit were allowed in this single family dwelling it would in effect nullify or substantially derogate from the intent and purpose of the by-law. Res.ectfully submitted, /to ,, �Richaz• : Gail Sta_ • RECEIVED NOV 8 2011 YARMOUTH BOARD OF APPEALS i �. .i November 10, 2011 To: Town of Yarmouth Board of Appeals From: Chris and Louisa Starkey 149 River Street South Yarmouth, Ma. 02664 Marasco Multifamily Appeal 143 River Street Dear Sirs, Health concerns will prevent us from appearing at tonight's meeting, hence this letter. Our property abuts the Marasco property at 143 River St. on the south side of the Marasco property. Our house and the Marasco apartment/garage are approximately 65 feet apart. Here are our specific objections to Marasco's appeal: a) Marasco's Tenants have been Noisy There have been tenants in the Marasco apartment, which abuts our home, for at least the last three summers. These tenants are noisy and disturb us. For example, the tenants regularly engage in cell phone calls at 11:30 PM at night waking us up. They stand outdoors on a second story porch which abuts our property and talk in loud voices with no concern for the neighbors (us). This is not one episode, but rather a regular occurrence during the summer. Marasco himself never experiences these disturbances as he is never around, therefore we take the brunt of his misbehaving tenants. He truly is an "absentee landlord". b) Sets a bad precedent for all of the village of Bass River The village of Bass River is a single family area. If the Board were to allow the exception requested by Marasco, then other requests would likely follow for similar exceptions and, if granted, eventually the area would become a multifamily area with a likely negative effect on property values and quality of life. RECEIVED NOV 10 2011 YARMOUTH BOARD OF APPEALS c) Was Marasco in Compliance with Yarmouth Rental laws? Yarmouth has laws which require that a landlord register his tenants with the town, pay a $20 fee for each tenant family, and inform the tenant not to disturb the peace. Before the Board even considers this appeal, Marasco should be required to prove that he has been in compliance with our existing laws. Because of the noise mentioned in b) above, our position is that he has not been in compliance with the requirement that the tenants be informed not to disturb the peace. We object to the approval of this appeal. Sincerely, oma h'.,474247 / hris Starkey Louisa H. tarkey EDWARD W. KIRK ATTORNEY AT LAW WIANNO PLACE 901 MAIN STREET P.0.BOX 393 OSTERVILLE.MASSACHUSETTS 02655-0393 FACSIMILE (508)428-4800 (508)428-4111 Office of the Town Clerk August 16, 2012 Town of Yarmouth 1146 Route 28 .— -- South Yarmouth, MA 02664 kp HAND DELIVERED nQ,1) RE: NOTICE OF ZONING APPEAL 'VIZ Petition No.4401 �a. Northstar Property Management LLC 143 River St. S., Yarmouth Dear Ladies and Gentlemen: Notice is hereby given that Richard and Paula Shea have appealed the decision of the Yarmouth Zoning Board of Appeals affirming the decision of the building commissioner which declined to revoke the occupancy permit for an apartment on the second floor of a garage at the above referenced property. Said appeal has been taken by the filing of the enclosed complaint with the Land Court Department of the Trial Court of the Commonwealth of Massachusetts. Would you please enter notice of this appeal in your records as of today's date. Thank you for your attention to the enclosed. Very'% y yours, VrI ward W. t/ ewk/se w/encl. :C-10":"!;-7_, ArAiji , 46. TOWN OF YARMOUTH • . > C' OFFICE OF THE TOWN CLERK �\ �h 1146 ROUTE 28, SOUTH YARMOUTH, MA 02664 TELEPHONE (508) 398-2231 FAX (508) 760-4842 Jane E. Hibbert, CMC/CMMC August 16, 2012 Bruce Gilmore, Esq. 99 Willow Street Yarmouth Port, MA 02675 Dear Mr. Gilmore: Enclosed please find copies of a Land Court Notice of Zoning Appeal Richard W. & Paula Shea Plaintiffs VS Stephen DeYoung, Sean Igoe, Joseph Sarnosky, Debra Martin and Bryant Palmer Yarmouth Zoning Board of Appeals and Northstar Property Management Defendents on Petition#4401 143 River Street, South Yarmouth. Please feel free to contact me if you have any questions or need any more information. Respectfully yours,dt/141 JEH:jeh Jane E. Hibbert, CMC/CMMC Encs Town Clerk Cc: William Hinchey Town of Yarmouth Board of Appeals Mark Grylls File RECEIVED AUG 1e2Q12 YARMOUTH BOARD OF APPEALS COMMONWEALTH OF MASSACHUSETTS BARNSTABLE ss. LAND COURT **************************************** RICHARD W. SHEA PAULA SHEA L - ;- "'w '+: Plaintiffs v. STEPHEN DeYOUNG, SEAN IGOE, JOSEPH SARNOSKY,DEBRA MARTIN, BRYANT PALMER as they are members of the Yarmouth Zoning Board of Apeals and NORTHSTAR PROPERTY MANAGEMENT Defendants COMPLAINT (Zoning Appeal-G.L. c. 40A s. 17) (Declaratory Relief G.L.c. 231A) The plaintiffs appeal from a decision of the Yarmouth Zoning Board of Appeals,wherein the board upheld the building commissioner's decision to decline plaintiffs' request that the commissioner revoke the permit for the defendant Northstar's use and occupancy of the 211"floor of a garage structure as an apartment.Neither the building commissioner nor the board addressed the merits of the plaintiffs' enforcement request, and based their decisions solely on the fact that the board of appeals had granted a variance allowing such use,which variance is presently the subject of a judicial appeal in Land Court Case No. 11 Misc.457215. Parties 1. The plaintiffs are the owners of land and buildings located at 24 Bass River Pkwy. S., Yarmouth, MA. The plaintiffs' land abuts the land of the defendant Northstar. 2.The defendant Northstar Property Management L LC is a Massachusetts limited liability company with a principal address of 21 Aaron's Way W.,Yarmouth,MA and the owner of a certain parcel of land containing 24,275 ft.2 together with the building thereon located at 143 River St. S.,Yarmouth,MA 3. The defendant Stephen DeYoung is a duly appointed member of the Yarmouth Zoning Board of Appeals with a residential address of 691 Willow St. S., Yarmouth,MA 02664 4. 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 0273 5. The defendant Joseph Sarnoski is a duly appointed member of the Yarmouth Zoning Board of Appeals with a residential address of I 1 1 Merchant Ave., Yarmouth Port,MA 02675 6. The defendant Debra Martin is duly appointed member of the Yarmouth oning Board of Appeals with a mailing address of PO Box 320, South Yarmouth MA 02664 7. The defendant Bryant Palmer is a duly appointed member of the Yarmouth Zoning Board of Appeals with a mailing address of 66 Traders Ln., Yarmouth,MA 02673 Facts 8. The property of the defendant Northstar is shown as Lot 3A on a plan recorded at Barnstable County Registry of Deeds in plan book 62 page 151. 9. The property of the plaintiffs Shea is shown as Lot 13 on the plan recorded at Barnstable County Registry of Deeds at plan book 22 page 131,and abuts the defendant's property. 2 10. 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. 11. Such approval was granted by the building department of the town of Yarmouth. 12. The location and height of the proposed new garage structure did not violate the provisions of the Yarmouth Zoning Bylaw. 13.Based upon certain information provided by Mararsco and others,the building commissioner determined that the use of the second floor of the garage structure as an apartment would not violate the Yarmouth Zoning bylaw and issued a building permit for the construction of the garage on April 19,2006. 14. On or about July 16, 2009,having received additional information which cast doubt on the lawfulness of an apartment in the second floor of the garage,the building commissioner issued an order which, in essence,informed the defendant Marasco that unless Marasco could provide new information that there had been a lawfully nonconforming dwelling unit in the garage and that such use had not been abandoned,Marasco's use of the apartment in the new garage would require a variance from the zoning board. A copy of the building commissioner's letter dated July 16,2009 is attached hereto as Exhibit 1. 15. The fair implication of the building commissioner's letter of July 16, 2009 was that,in the absence of a variance, the use and occupation of the second floor of the new garage as an apartment was unlawful. 3 YA;idsFH"r_44 CS- # vi 6 ,+_:0r:L`r x;;_66 16.Marasco has appealed the decision of the building commissioner to the Yarmouth zoning board of appeals,which upheld the decision of the building commissioner. 17. Marasco appealed the decision of the zoning board of appeals to the Land Court,and that case is now pending in Land Court Case No. 10 Misc. 422617 18.Marasco also applied to the zoning board of appeals for a variance as directed by the building commissioner and on or about December 1,2011, the Yarmouth zoning board of appeals granted a variance for the use of the 21'd floor of the garage as a second dwelling unit in a two family dwelling. 19. The plaintiffs Shea have appealed the decision of the zoning board of appeals granting Marasco a variance, and that case is now pending in Land Court Case No. 11-Misc. 457215 20. The building commissioner and the board of appeals,having determined that in the absence of a variance,the use of the 2nd floor of the garage as an apartment is a violation of zoning, the plaintiffs requested the building inspector to revoke the use and occupancy of the second- floor of the garage as an apartment. A copy of the request for revocation is attached hereto as Exhibit 2. 21. By letter dated March 21,2012 the building commissioner informed the plaintiffs that he declined to act upon the plaintiffs request for the sole reason that the board of appeals had granted Marasco the variance which is now under appeal in the Land Court. A copy of the building commissioner's decision is attached hereto as Exhibit 3. 22. On April 10,2012,the plaintiffs appealed the decision of the building commissioner to the Yarmouth zoning board of appeals. See attached Exhibit 4. 4 3.2A A;66A 0:62'R:T. 23. Following a hearing,the Yarmouth zoning board of appeals in a decision dated August 1, 2012 upheld the decision of the Yarmouth building commissioner.A copy of the board's decision is attached hereto as Exhibit. 24. The plaintiffs are aggrieved by the decision of the board. 25. The creation,use and occupation of the 1275 square-foot apartment located on the 2nd floor of the freestanding garage located 30 feet from an entirely separate from the principal single-family residence does not constitute one of two dwelling units in a two family dwelling 26. The creation,use and occupation of a 1275 s.f. apartment located on the second floor of a free- standing garage located thirty(30) feet from,and(with the exception of a canopy between doors)entirely separate from the principal single family residence constitutes a second dwelling on one lot in violation of the Yarmouth zoning bylaw. 27. The defendant Northstar did not ask for,and the defendant board did not grant a variance for the construction and use of a second dwelling unit on the lot. 28. On its face,the decision in which the board purported to issue the variance establishes that variance conditions are not present and that the board exceeded its authority in issuing the variance to Northstar. 29. There is no lawful basis for the continuing use of the 2"d floor of the garage structure as an apartment. WHEREFORE the plaintiffs request that,at such time as the court should determine that there is no lawful basis for the continuing use of the 2"d floor of the garage structure as an apartment, that the Land Court find, rule, declare and enter judgment as follows: 5 1 A U iri 7E4'4 j-'4 r. -f 1. That the use and occupancy of the 2nd floor of the garage structure as an apartment is in violation of zoning and that the further use and occupancy of the 2nd floor as an apartment is prohibited. 2. That the owner of the premises be directed to remove from the 2"d floor, any and all kitchen and cooking facilities, appliances,and amenities, including stoves,ovens,microwave ovens and refrigerators. Respectfully submitted: Plaintiffs Richard and Paula Shea By their attorney: Edward W. Kirk BBO#273720 PO Box 393 901 Main St. Osterville,MA 02655 (508) 428-4800 6 g s, . . eCl~r a +'.�i 1' Gi i ''.,. " 2 �5 istl' 3C1 rtz., t . . July 16,2009 ! n,12 prix . 7M10:4!--k YilC I 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 wa' issued on April 19, 2006 that allowed the reconstruction of a garage and second floor apartment t 143 River Street South Yarmouth.. Prior to this issuance there was a series of communications Uetween you, Town Counsel John Creney.and myself, concerning the applicability of zoning bylaw Section 1043.2—Abandonment. This section. provides that"A nonconforming use which has beenandoned or discontinued for a period of two (2)years or more shall not be reestablished,and future use shall conform with the bylaw." i Because of this issue you provided me with a letter from Mr. Richard Bussiere, Vice PIesident/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 me (copies enclosed). The November 16, .007 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 D uglas Murphy. He provided three responses; June 26,2008,September 22,2008 and February 4,2 09 (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 concision that two family(duplex)use existed prior to the pertinent district requirement being amended o prohibit such use with relief from the ZBA. However,I also feel that point is mooted by the forfgiture of any such grandfathered rights which resulted from discontinuance in the latter 1990's."1He further states on page 9: "I do not feel and am not of the opinion that the "special position" of riled to single and two family dwelling under G.L. c. 40A, S 6 would legitimatize the use of the p emises 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 adetional 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 • draw from them, any lawful. pre-existing use of 1the premises of 143 River Street lapsed and terminated prior to November of 2001 and quit like)v sometime in 1999." • 1 1 (21 / eage 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 CERTIFIED MAIL • 1 5;9 I?m f.-..-. yF j' ',`..F t!y EDWARD W.KIRK t 3 ,,,n a ATTORNEY AT LAW 1 1 .�,.t+ '}L I WIANNO PLACE 1 I 3 { l 901 MAIN STREET yy 3U1LDit�!C DEps,"r.T M Fdi Y P.O.BOX 393 OSTERVILLE,MASSACHUSETTS 02655-0393 tl�. (508)426-4800 FACSIMILE 6508)425-4111 James Brandolini February 28,2012 Building Commissioner Yarmouth Town Hall 1146 Route 28 South Yarmouth,MA 02664 711,r4; 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. r;RA101-4 {IVN James Brandolini February 28,2012 page two .;,A ,Tt,A4.1 c j =y= 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 find"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. 'IL 6 I of rood slmn Sunlamp Om;gum aouapisar auo palitljlsuoo amlongs 02uie2 fiossaooe alp pue aouapisar tediouud agl lug luatun2re tIe Suimlou;nuetn;o sasodmd ao;Adoueo uado atg uodn aouetlar ou aq ueo arag•!, •ssaaoid uoiluorlddu uturad luuuou atg gZnaiig luatuiiudap Suippnq aqi;o uoguauu alp of au103 pug 1.i3T Zmuoz iapttn gnsar u gons paonpoid anuq lou pinoo uogellulsnm atg`Sut11amp auo pall psuoa moU samlaiuls om1 ag1 letp.frwagl aql am;ou;ntietu 0l 110El0 tte ur paltelsui sem Adouea aql lualxa alp os, -jiom Bans ro;vttuad uao ouiplogglim agl.10;uoseai ou aq pinom wag`aouaprsai atg pue a2ureS ag1 uaam;aq Sutnotu sem uosiad u uagm sluautaja a111 ntox;iallags i0 ranoo autos apinoid 01 lapTo ut palrelsur sem&douea agl;ualxa agl o,l, •samiontis anxedas flanlua aq 0l papualui pup ding`pau2isap`pude laa; 0£flaluttnxoiddu axe fat" •aouapisar tedrouud agl pus;las;r anuie8 ag1 uaamlaq suorloauuoa jeaisfgd lun;ou ou are crag;`fuadord loafgns alp o1 loadsar gut& •Suiptinq auo palnitlsuoa ptte„pada; tenuoaligare pagnm u aanpord o1 paarsap„atom asnoq put; `fumazaaiq`aaereo atp lege papnlouoo unoo aul.•pref Novi agl 01 pref luau atg tuo.g ssed pinoa auo fgaragm llum atg m Suivado tie pug osle fumaSussed aqs •asnoq aq ;o lnatuasuq atg out!a2etm2 alp moi;ssaaa ZuipT_notd `AumaSsssed loo;9 pasoloua tie sem asnoq agl of luaau[pu a2eie2 atg;o mum agl uigiim pup !low agute2 alp spun •asnoq aql;o smoptnm daols-puooas molaq fggSgs asnoq alp Suruiofpu _Tow anurg2 am tgtm`afs ret ag1 truth noqunap ragZrg a 1u sum asnoq ati•I,•asnoq atg;o apis atg tu0.g;no papualxa pup`01 patio-env f!lea!sfgd sum af.aiuS u `uosp0 uI (6i 6OLS 'ssuyg fZ£ 0.rogap;y fo spnaddvfo pg 2unroz •a uos1O s!uogulnaads alp 01 asp sant5 goigm asna atu -armorials Iudratnrd auo aluaio 02 patios anuq lou pinont 1r`IL6I of rood palotulsuoo sem liar'luunatarn aq mom 11`IL6I rage palotu;suoo sum Adouea ag1;I -uaaq anuq aiatg ptnoa ion`sluadde Jo pieoq agl r0 ranoissleauioo Sniplmq atg Aq apetu uaaq Suinug uoputnuualap u galls Jo pun!AIR Jo prooar ou sr crag! -slum Sunlamp 0m1 Zuiuieluoo`amloiuls redrauud auo olui atnlonrls aSare2 atg pus aouapisar ludrouud ag1 pauuo;suurl anuq mogautos 211211.11,idotieo atg;o uouanr;suoo atg lug;uorluinoads uaaq sug atagl`palontlsuoo SBM Adouea atg uagm 01 su uoileuuoJur;o}lou!atg pup`liutlad a;o 10e!a141 alydsaa-am uo Adoueo alp ro;s;ruuad ou an:crag;pure EL6I Satre.10 azo;aq palan tlsuoa sum Adoueo alp ratgagm uncap!lou s!1I •a2ere2 atp pue aouapisar ludiouud ag1 uaamuaq palonrlsuoa sum)(douea Suol loo;0Z u `paurttualap uaaq ranau seg gonlm`atuq ui ltnod atuos;y n 0ttsJ atl1, •01.2p;ug102 rolyd asn Stnturo;uoouou Zuilsixa-aid fltn3Mel a;o;oord;o aouasge atg amooiano tteo tat daffy pauaddeq anuq Anti lugm 0l loadsar germ suogdmnsse pue amloafuoa`uoqulnaads `uoguttu0JUi palrturl aql;o aum aargl aSud iurlopuuig satue f James Brandolini February 28,2012 ? ;r . ; ; at: d =""i 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 Anneals 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.2 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 t R r i 60.a 6tlOo ra! 'Wealth Management Group TD Banknorth,N.A. 495 Station Avenue P.O.Box 11S0 South Yarmouth,MA 02664 Toll Free: 800-673-2300 TDBanknorth WealthManasementcom November 16, 2007 Richard W. Shea,M.D. 4019 Eagle Cove West Dr. „ Palm Harbor,FL 34685 Re:Edward L. Coughlin Trust w'�xrill Dear Dr. Shea, I am responding to your letter of November 1st 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 Refuse 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. .osinpy q1Igam ;uapisaid aoin FILO `alaissng pizgarg `Alazaouis •suousanb zno4(sza.iisUE srgl lsnr I •suznlaz xEl autoouz imam s.lsrul agl uo papodai uaaq°AEg pinom'Aug;t'aumoui IEluaa•Izno3 alEgozd atp lE spzooaz alglsg uggZnoj°m outgamas autooui Igluaz Jo aouapina pug lou pinom auo `Isg7 '1011M0 wanbasqns arp Act luaurusdh IE4I 3o asn alp buipJEaaz avow uaaq anEg pinogs aouazaJui ON •tlradozd agl paumo Ism;atp amp jo pouad aqI maul oI palaidralut aq pinogs Iuatua2Els igg" •azning a4I ui IuauglEd8 0q2 2utsn alvdiouu8 Ion pip 'saalsnzl am'am imp cluaupzEdaa zaTEAv glnouu8A Jo LIMO"aql oI 'zonal L661/51/6 fur ui 01EIs pip I `zajaz nob goigm of&lanai Am Suip.mfag Mann oc Wealth Management Group TD Banlmorth NA. 495 Station Avenue P.O.Box 1180 South Yarmouth,MA 02664 Toll Free: 800 673-2300 TDBanknorthwealthManasement.com March 7, 2008 Richard W. Shea,M.D. 4019 Eagle Cove West Drive Palm Harbor,FL 34685 Re:Edward L. Coughlin Trust u/will REC 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, LILA Vice President Wealth Advisor JI;h;:j1)."Arr , 13; `'awl u f c c-G !i 1ST SY�:y'� . . �. .J. :_ _•._f 1 fa t. _ ,.. .. .. . EQ March 21,2012 . (cry'. U Pp y Edward W. Kirk A' ?C.( Attorney at Law 911 Main Street Ostervilie, 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. Very truly, • i James D. Brandolini. Building Commissioner cc: Charles J. Humphreys, Esq. Thomas J. Perrino, Esq. • EDWARD W. KIRK ATTORNEY AT LAW WIANNO PLACE 901 MAIN STREET P.O.BOX 393 OSTERVILLE.MASSACHUSETTS 02655.0393 FACSIMILE (S08)428-4800 (SOW 428-4111 Office of the Town Clerk Apri110, 2012 Town of Yarmouth Yarmouth Town Hall C V E D 1146 Route 28 Yarmouth, MA 02664 APR 2012 BUILDING DEPARTMENT Re: Notice of Appeal of Decision of Building Commissioner 3Y' 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 Brassiere) 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°a 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. a€rd's""€ , 04 CLE'-, RECEIVED ) APR 13 2012 YARMOUTH s BOARD OF APPEALS s. - 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 lby l) • attorney: Edward W. c PO Box 393 Osterville, MA 02655 (508) 4284800 ewk/se cc: Yarmouth ZBA Building Commissioner Thomas J.Perrino,Esq. Charles J. Humphreys, Esq. ,.p,,,,,,G, , ,.A 'RE- .01 YAR '4* trO. TOWN OF YARMOUTH k•--dr, BOARD OF APPEALS 0 y DECISION E .a._ t 3 ,v . _ ` : ttz 03: -#1:e-3 ..._ FILED WITH TOWN CLERK: August 1,2012 PETITION NO: #4401 HEARING DATE: July 12,2012 i- -t q F.fr F �Fe �.Y d.�f Cs ._. . PETITIONER: Richard & Paula Shea ,- PROPERTY: 143 River Street, South Yarmouth Map & Parcel: 0034.282 Zoning District: RS-40 Book& Page: 22686/215 MEMBERS PRESENT AND VOTING: Steven DeYoung, Chairman, Sean Igoe, Joseph Sarnosky, Debra Martin and Bryant Palmer. Mr. Garrick, (non-voting Alternate) was recused. 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 Petitioners, Paula Shea and Dr. Richard Shea are parties in interest who were very well represented by Edward Kirk, Esq. The Petitioners reside at 24 Bass River Parkway, South Yarmouth, MA and by their Petition, seek to appeal from and to Reverse the Decision of the Building Commissioner dated 3/21/12 which order declined to issue an order of revocation of a use and occupancy permit for a garage apartment at property located at 143 River Street, South Yarmouth, MA Attorney Kirk presented a well-thought out argument in favor of the requested relief and suggested a compromise position the Board might consider while the underlying controversy (the Board's earlier grant of a Variance in connection with the subject property-See Decision #4365) was pending appeal. After careful analysis and discussion of the Petitioner's requested relief, Motion was made by Mr. Palmer, seconded by Ms. Martin to deny the Petition to which the Board voted unanimously in favor. 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. A True Copy Attesst/t::/ft f(- Ak Steven DeYoung ellairman Ja�(���(((e E. Hibbert, CMC/CMMC Town Clerk 1 Town of Yarmouth • fir , g �;g ` L'?u 2_11-i _ 0.27- ( � R : TOWN OF YARMOUTH o ,'vs y BOARD OF APPEALS : tG MATT. . 1 "1.. Spa*aMilli 3g APPLICATION FOR HEARING Appeal#: i Hearing Date: /• /2• l2 Feesegii (/ Owner-Applicant: RICHARD & PAULA SHEA c/o EDWARD W. KIRK,ESQ. (Full Names-including d/b/a) P.O. BOX 393 24 Bass River Pkway 508-428-4800 (Address) (Telephone Number) (Email Adams it g 5 n c c ) 02655 and is the (check one) ❑ Owner ❑ Tenant 0 Prospective Buyer 'fFOther Interested Party Property: This application relates to the property located at:1 4 3 River St. So.Yarmouth and shown on the Assessor's Map#: 14 as Parcel#: 282 Zoning District: RS 40 If propertyis 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 Bo Appeals: Reverse decision of bldg.commissioner dated Marc ,zu which declined to issue order revoking use/occupancy for garage apartment 1)xx REVERSE THE DECISI `N�`�O, F THE BUILDING INSPECTOR OR THE ZONING ADMINISTRATOR dated¶ a attacta copy of the decision appealed from). State the reason for reversal and the ruling which you request the Board to make. mh, use violates the provisions of the bylaw. Applicant requests the board to address the merits of the appealwithout regard to the variance and find that in the absence of the variance,the use is unlawful 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 PROPERTY MANAGEMENT, LLC Name&Address Title deed reference: Book&Page# 22686/ 215 or Certificate# Land Court Lot# Plan# (provide copy of recent deed) Use Classification: Existing: STNGLE FAMILY §202.5# Proposed: §202.5# Is the property vacant: NO If so,how long?: Lot Information Size/Area24. 275 Plan Book and Page 22 /13 Lot# 3 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:No 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: SPP attached varianre denial See attached variance grant (under appeal) Building Commissioner Comments: Applicant's/Attome Agent Signature Owner's Signature EDWARD W. KIRK Address: p_o- Bn1 393 Osterville, Mass. 02655 Phone 508 428 4800 E-Mail: ilding Commissioner Signature Date