HomeMy WebLinkAboutState Appeals Decision 01-02-2019 "'111=:
CHARLES D. BAKER
GOVERNOR JOHN C.CHAPMAN
Massachusetts`` UNDERSECRETARY OF
Commonwealth of Massachusetts CONSUMER AFFAIRS AND
KARYN E.POLITO BUSINESS REGULATION
LIEUTENANT GOVERNOR Division of Professional Licensure
STEL
MIKE KENNEALY Office of Public Safety and Inspections o MMIISSSIONEBDOmSONOF
SECRETARY
DEVELOP HOUSING AND 1000 Washington Street • Boston • Massachusetts • 02118 PROFESSIONAL LICENSURE
Date: January 2,2019 .
Name of . _ ..
AppellantClifford&.Patricia Betron
Service Address: 381 Tahmore Drive
Deerfield,Cr. 06825
In reference to: 9 Flakeyard Lane
West Yarmouth, MA. 02673
Docket Number: 18-0154
Property Address: 9 Flakeyard Lane
West Yarmouth,MA. 02673
Date of Hearing: December 6,2018
Enclosed please find a copy of the decision on the matter aforementioned.
Sincerely:
BUSING C DE APPEALS BOARD
Patricia Barry,Clerk
cc: Building Code Appeals Board,Building Official
a TELEPHONE: (617)727.3200 FAX: (617)727-5732 http:/lwww.mass.gov/dps
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. BUILDING CODE APPEALS BOARD
DOCKET NO.APP-BCAB 18-0154
)
Clifford I. Betron and Patricia S. Betron, )
Appellants )
v. •
)
)
Town of Yarmouth, )
Appellee )
)
DECISION •
Introduction
This appeal ("Appeal") is before the Massachusetts Building Code Appeals Board
("SCAB") as a result of an application filed on October4, 2018, by Attorney Paul R.Tardif, on
behalf of Appellant property owners Clifford I. Betron and Patricia S. Betron, regarding the
construction of a detached garage for a single-family dwelling located at 9 Flakeyard Lane, West
Yarmouth, MA. ("Project"). G. L. c. 143, § 100; 780 CMR 113.1.
•
On or about September 6, 2018 Town of Yarmouth Local Inspector Tim Sears issued a
letter regarding the need for a variance from 780 CMR Table 302.6, with respect to the
construction of Appellants' proposed detached garage. (Exhibit 1A).1
Notices of hearing were issued and the hearing was held on December 6, 2018. All
interested parties were provided with an opportunity to testify and present evidence to the
Board. (For Appellants: Clifford I. Betron); (For the Board: Richard P. Crowley; H.Jacob
Nunfiemacher;John Couture). Patricia Barry,the Board's clerk was also present.
1"Whoever is aggrieved by an Interpretation,order,requirement,direction or failure to act by any state or local
agency or any person or state or local agency charged with the administration or enforcement of the state building
code or any of its rules and regulations,except any specialized codes as described in section ninety-six,may within
forty-five days after the service of notice thereof appeal from such interpretation,order, requirement,direction,or
failure to act to the appeals board.Appeals hereunder shall be on forms provided by the appeals board and shall
be accompanied by such fee as said appeals board may determine." G. L.c. 143,§100.
1
Exhibits
The following documents were entered in evidence:
1. BCAB18-0154 Appeal Application;
1-A. September 6, 2018 letter to Gordon Clark from Tim Sears;
2. December 3, 2018, 3:22 p.m.email from Tim Sears to Patty Barry;
3. Elevator drawings for proposed detached garage,site plan, and aerial photograph of site
(4 pages).
Discussion and Findings
The proposed detached garage will be constructed in nearly complete compliance with
780 CMR, notably in accordance with all Flood Zone requirements,given its location relative to
the ocean and wetlands. But,one side of the building will be too close to a lot line,thus the
Code would prohibit having any window openings. (There was an existing building in this
location,so the construction of a new building,to replace it,was "grandfathered"for purposes
of municipal zoning and wetlands rules.)
The Betrons would like to have window openings on the side the building too close to
the lot line, as shown by the "Rear Elevation, Northeast" drawing in Exhibit 3, sheet A.1. This
drawing shows five windows;two on the first level;three on the second level. Betron testified
that he would like to have only the window openings on the second level (to provide light to a
bathroom) and would eliminate the windows on the first (or garage) level. This wall will be
constructed with additional materials to increase fire resistance.
The Town did not oppose allowing the requested relief. The Building Inspector noted
that, although the proposed wall with windows would be located less than 3 feet from the lot
line,the land on the other side of the lot line is designated as wetlands. Thus,the Building
Inspector concluded that it would be highly unlikely that any building would be allowed on the
directly abutting property.
"The [BCAB] may grant a variance from any provision of[780 CMR] in any particular
case, may determine the suitability of alternate materials and methods of construction, and
may provide reasonable interpretations of the provisions of[780 CMR]; provided, however,
that [BCAB] decisions shall not conflict with the general objectives set forth in" G. L. c. 143,
2
-3
•
•
•
§95.2 In exercising its powers under this section, the [BCAB] may impose limitations both as to
time and use, and a continuation of any use permitted may be conditioned upon compliance
with regulations made and amended from time to time thereafter." G. L. c. 143, § 100.
The proposed windows would create little, if any,additional risk of the harm that the
set-back requirements of Table 302.6 are intended to address. The risk of fire to or from
nearby buildings or structures would be negligible, given the proximity of wetlands and the
amount and sizes of the proposed openings for the new detached garage/guest space. The
BCAB agrees that the evidence shows it would highly unlikely for any structure to be
constructed near the side of the building with proposed non-conforming window openings.
The BCAB found that allowing the requested relief in these particular circumstances would not
conflict with the general objectives of G. L. c. 143, § 95. .
Conclusion and Order
Based on the evidence before the BCAB with respect to only this property,the BCAB
GRANTED a variance to 780 CMR Table 302.6.
SO ORDERED,
BUILDING CODE APPEALS BOARD
By: D, f
quit. do lOc e kJ e.0 ttt )y U�Iu'AdGj G 1f5
H.Jacob Nunnemacher John Couture, Chair Richard P. Crowley
DATED: January 2, 2019
2"The powers and.duties of the board set forth in section ninety-four[the BBRS]shall be exercised to effect the
following general objectives:
(a)Uniform standards and requirements for construction and construction materials,compatible with accepted
standards of engineering and fire prevention practices,energy conservation and public safety.
In the formulation of such standards and requirements,performance for the use intended shall be the test of
acceptability,in accordance with accredited testing standards.
(b)Adoption of modern technical methods,devices and improvements which may reduce the cost of construction
and maintenance over the life of the building without affecting the health,safety and security of the occupants or
users of buildings.
(c)Elimination of restrictive,obsolete,conflicting and unnecessary building regulations and requirements which
may increase the cost of construction and maintenance over the life of the building or retard unnecessarily the use
of new materials,or which may provide unwarranted preferential treatment of types of classes of materials,
products or methods of construction without affecting the health,safety,and security of the occupants or users of
buildings." G. L.c. 143,§95.
•
3
Any person aggrieved by a decision of the State Building Code Appeals Board may appeal to
Superior Court of the Commonwealth of Massachusetts in accordance with M.G.L. c. 30A, §14
within 30 days of receipt of this decision.
•
4