HomeMy WebLinkAboutPetition 4895 Decision Recorded Doc:1,431,201 06-11-2021 11:20
ii*0 TOWN OF YARMOUTH
�{.^G BOARD OF APPEALS 2
Q�152
' � DECISION �1J15
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JUN 25 RECO
FILED WITH TOWN CLERK: May 14,2021
OiVOELOPMENT
PETITION NO: 4895
HEARING DATE: May 13,2021
PETITIONER: David R.Michalowski and Betiva E.Michalowski
PROPERTY: 22 Greenland Circle,Yarmouth Port,MA
Map 135,Parcel 141
• Zoning District:R-40
Title:Document 1274578 on Cert of Title 206934
MEMBERS PRESENT AND VOTING:Chairman Steven DeYoung,Sean Igoe,Dick Martin,
and Tom Baron
Notice of the hearing has been given by sending notice thereof to the Petitioner and all those owners
of property as required by law,and to the public by posting notice of the hearing and publishing in
The Register,the hearing opened and held on the date stated above.
The Petitioner seeks a Variance pursuant to Zoning Bylaw §102.2.2 and §203.5 to allow for the
installation of an in-ground swimmning pool which will encroach into one side yard setback and the
rear yard setback,as accessory to a single-family dwelling in the R-40 Zoning District.
The Property is located in the R40 Zoning District and is improved with a one story single family
structure having 2 bedrooms and 2 baths,and constructed in approximately 1982. The lot
contains approximately 15,619 sf. The existing home,being built recently,complies with all
setbacks and other bulk regulations.
The proposal is to install a 14 x 28 in-ground swimming pool in the northeasterly corner of the
property. The pool will be 13.3 feet from the side boundary and 5.5 feet from the rear boundary.
A cement patio will surround the pool. A 6 foot cedar scallop fence has already been installed
around a majority of the property,which will hide the pool from view outside of the property.
The proposed location of the pool is the most logical as there is no other realistic place to locate
it which would comply with the setbacks. In addition,the pool needs to be placed far enough
away from the existing septic system to comply with Board of Health Regulations. Finally,the
side of the pool which is 13.3 feet from the side boundary abuts four(4)twenty foot easement
areas,all contained in the panhandle portions of lots to the north and east of the applicant's
property.As such,and due to the width of those lots,no structure can be located closer than 80
feet to the applicant's property. There is a 180 foot wide Cape&Vineyard Electric Co Easement
directly across Greenland Circle,which prevents the development of any portion of that swath of
RUES ATTEST: .
SUN,Z�(('r i TOWN CLERK
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land. The direct abutter,located at 20 Greenland Circle,who could be most affected by the
placement of this swimming pool is in favor of the project. The pool not only abuts that
neighbor's back yard,but the neighbor's lot slopes higher than the applicant's property,and the
abutter's garage is located on that side of their home. Lot coverage with the pool will total 12%.
There were several letters of support introduced into the record,including one from the abutter to the
north. There was no opposition expressed at the hearing,either in person or by correspondence. The
Board discussed the project and found that the Applicant meets the variance criteria of Zoning Bylaw
Section 102.2.2. Specifically, if denied this request,the Petitioners will suffer a hardship. A
swimming pool is accessory to the primary use of the property—in this case a residential use in a
residential zoning district. The hardship is not so much financial,as it is the inability to use and
enjoy the property to its fullest extent.
Even with this hardship,this board next needs to find that the hardship arises as a result of the
shape,soil or topography of the lot. In this case,the lot contains an odd shape,with only 50 feet
of frontage and,effectively,an 80 foot wide easement to the east,where dwellings can never be
located. It is also across from a 180 foot wide electric easement,which offers a rare seclusion of
the property. All of these circumstances make this lot unique.
The last criteria is for this Board to determine that desirable relief may be granted without either:
substantial detriment to the public good;or nullifying or substantially derogating from the intent
or purpose of this bylaw.
In this case,thers will be no substantial detriment to the public good with the installation of a
swimming pool located as planned. There already exists a new cedar scallop fence which will
hide the structure,and block much of the noise generated by a swimming pool,used
approximately 12 weeks each year. The use of the back yard for typical recreational purposes
are allowed in conjunction with the residential use. A swimming pool is not going to change the
degree of use of the backyard—just the kind of use. The bylaw is concerned,especially in
residential districts,about noise,congestion,nuisance,hazard and the like. Typically,we see the
need for relief when commercial and residential zoning districts clash. But here,the swimming
pool is an accessory structure to a legal residential use. This will not nullify or substantially
derogate from the intent or purpose of the bylaw.
Accordingly,a Motion was made by Mr.Baron,seconded by Mr.Martin,to grant the Variance as
requested by the petitioner,with the following condition,to which the Board voted unanimously
to grant:
1. The Petitioners will move their shed and fence within their property lines.
Roll call vote was taken on this Motion with the following results:
Mr.DeYoung- In Favor
Mr.Baron - In Favor
Mr.Igoe - In Favor
Mr.Martin - In Favor
A TRUE COPY ATTEST.
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O�d{J7t�4,Fa
7r" '2tArN CLERK
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Accordingly, the Variance was approved on a 4-0 vote in favor.
No permit shall issue until 20 days from the filing of this decision with the Town Clerk. Appeals
from this decision shall be made pursuant to MGL c40A section 17 and must be filed within 20
days after filing-of this notice/decision with the Town Clerk. Unless otherwise provided herein,
the Variance shall lapse if a substantial use thereof has not begun within 12 months. (See MGL
c40A §10)
)�SO,
Steven DeYoun „ Chairman
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A TRUE COPY ATTEST:
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.x144,11.46,
JI.' s 1. )TOWN CLERK
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J••410:,:H
o •- THE COMMONWEALTH OF MASSACHUSETTS
TOWN OF YARMOUTH
BOARD OF APPEALS
Appeal#4895 Date: June 4,2021
Certificate of Granting of Variance
(General Laws Chapter 40A,Section 1l)
The Board of Appeals of the Town of Yarmouth Massachusetts hereby certifies that a
Variance has been granted to:
David R.Michalowski and Betina E.Michalowski
22 Greenland Circle
YarmouthPort,MA 02675
Affecting the rights of the owner with respect to land or buildings at: 22 Greenland
Circle,YarmouthPort,MA;Zoning District:R-40; Map&Lot#: 0135.141;Doc.#:
1,274,578; Ctf. #: 206934 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.
even S.Des iur[g,Chairman
A TRUE COPY ATTEST:
�7vc�ix�a�,•
?;t.1,ti5.. '4 i TOWN CLERK
JUN -8 2021
Doc:1,431,201 06-11-2021 11:20 Page 5 of
.�/ TOWN OF YARMOUTH
s► {-. � -__ Town
1146 ROUTE 28,SOUTH YARMOUTH,MASSACHUSETTS 02664-24451 Clerk
Telephone(508)398-2231 Ext.1285,Fax(508)398-0836
CERTIFICATION OF TOWN CLERK
1,Mary A. Maslowski,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#4895 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. All appeals have been exhausted.
Mary A.Maslowski
Town Clerk JUN -8 2021
JOHN F. MEADE, ASSISTANT RECORDER
BARNSTABLE REGISTRY LAND COURT DISTRICT
RECEIVED S RECORDED ELECTRONICALLY
LAW OFFICES OF
PAUL R. TARDIF, ESQ., P.C.
490 MAIN STREET
YARMOUTH PORT,MA 02675
(508)362-7799 (508)362-7199 fax
Paul R. Tardif,Esq. Stacey A. Curley,Esq.
ptardifgtardiflaw.com www.tardiflaw.com scurleyntardiflaw.com
REFER TO FILE NO.
June 15, 2021
Sandra Clark
Yarmouth Zoning Board of Appeals
1146 Route 28
South Yarmouth, MA 02664
RE: Zoning Appeal—22 Greenland Circle, Yarmouth Port
David R. Michalowski and Betina E. Michalowski - Petition#4895
Dear Ms. Clark:
Enclosed please find a copy of the Board of Appeals Decision, which was registered, for
the above referenced matter on June 11, 2021 in the Land Court Division of the Barnstable
County Registry of Deeds as Document 1,431,201. Please note that a copy of the recorded
Decision has been forwarded to the Building Department for their records. I thank you for your
..-'.tance in this matter.
V; T ly Yours,
aul R. Tardif
cc: David and Betina Michalowski
Mark Grylls, Building Department