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HomeMy WebLinkAbout07-08-21 Decision 4905- 9, 11 Woodbine AveRECE,VFa LAW OFFICES UP (SC[S n PAUL R. TARDIF, ESQ., P.C. vCr V zd21 E30A YARMOU 490 MAIN STREET OIL APPE-ALS YARMOUM PORT, KL .02675 (508) 362-7799 (508) 362-7199-fax Paul R Tardifi Erg. Stacey A. Curley, Esq. ntardif(a tardiflaw.coin www.ta rdiflaw. corn scurlevntardiflaw.com REFER TO FILE NO September 3, 2021 Celina Villa Yarmouth Zoning Board of Appeals 1146 Route 28 South Yarmouth, MA 02664 RE: Zoning Appeal — 9 & 11 Woodbine Avenue, West Yarmouth Felix Torres and Teodora I. Dimitrova-Torres - Petition #4905 Dear Ms. Villa: Enclosed please find a copy of the Board of Appeals Decision, which was recorded, for the above referenced matter on August 30, 2021 in the Barnstable County Registry of Deeds in Book 34424, Page 183. Please note that a copy of the recorded Decision has been forwarded to lepartment for their records. I thank you for your assistance in this matter. ours, cc: Felix Torres and Teodora I. Dimitrova-Torres Mark Grylls, Building Department Bk 34424 Pg183 #56956 08-30-2021 @ 02:21p FILED WITH TOWN CLERK: PETITION NO: HEARING DATE: PETITIONER: TOWN OF YARMOUTH BOARD OF APPEALS DECISION July 14, 2021 4905 July 8, 2021 Felix Torres and Teodora I. Dimitrova-Torres PROPERTY: 9 & 11 Woodbine Avenue, West Yarmouth, MA Map 37, Parcel 92 and 93 Zoning District: R-25 Title: Book 29437, Page 150 MEMBERS PRESENT AND VOTING: Chairman Steven DeYoung, Richard Martin, Toin Baron and Jay Fraprie 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 to overturn a Decision of the Building Commissioner, and if so overturned, a Special Permit pursuant to Zoning Bylaw § 1043.2, in order to construct a single family dwelling on a pre-existing non -conforming lot, or in the alternative, a Variance to allow for (lie construction of a single family dwelling on this lot. The Property is located in the R-25 Zoning District and is currently a bare lot containing 9,000 square feet and 100 feet of frontage on Woodbine Avenue. It is actually 2 separate lots, denoted as Lot 98 and 99 on a plan recorded in the Barnstable County Registry of Deeds in Plan Book 16, Page 75. In addition, the Town of Yarmouth also views these lots separately, and has assigned 2 different street numbers, and they are assessed separately. There is currently a 24 foot by 36 foot poured concrete foundation on the lot at 9 Woodbine Avenue, which was constructed in the early 1970s, which the Building Department has confirmed. In January of 1972, the property was the subject of a Zoning Board of Appeals matter (Decision 1095) in which the applicant sought the construction of a commercial office building on the lot, The building would measure 26 feet, parallel to Woodbine Avenue, and 36 feet deep, and straddle the common boundary. The applicant testified that the Board of Health would not permit the installation of a septic system on the lot due to its size. The Board denied the relief and relied on the fact that this lot was in a residential zoning district and that a commercial use would not be compatible with the surrounding properties. RUE C PY A17EST: Bk 34424 Pg184 #,56956 A Since that time, the property has also been the subject of several Lot Inquiries with the Building Department, beginning with two in 1999, and one by the applicants in 2017. The Building Department has determined that the lot was not buildable in each case, but did note the presence of the foundation on the lot, and that it had been there since the early 1970s. In May of 2021, counsel for the Petitioners wrote to James D. Brandohni, the then - Deputy Building Commissioner for the Town of Yarmouth, and outlined his client's position that based on this information, a Special Permit from the Zoning Board of Appeals is all that would be needed'in order to construct a single family dwelling thereon, and provided caselaw which Supported his position. Specifically, Petitioners provided cases which demonstrate that a garage or shed, and even a movable trailer were sufficient to retain grandfathering rights as a developed parcel. Mr. Brandolini's response, dated May 26, 2021, was that a variance would be needed to develop this property as the foundation was not a complete structure. It is from this Decision that the Petitioners appeal. All three forms of relief were requested for the fact that if this Board upholds the Decision of the Building Commissioner, and by doing so undermines the basis for two recent Decisions of this Board to other applicants, then a Variance is what is required. If this Board overturns the Decision of the Building Commissioner, then a Special Permit is the correct form of relief in this case. Petitioners argue that the Building Commissioner's Decision is erroneous for the reason that the Town of Yarmouth's position on two recent Decisions is being ignored, and that a different position regarding this lot would be deemed arbitrary and capricious. Petitioner argues that the current existence of the foundation on the property, having been improved with this structure, according to the definition of a Structure in the Bylaw, prior to the zoning change in 1972, was no longer a "lot", for purposes of a merger determination. Rather, it was a developed lot prior to the zoning change, and as such would be classified as a legally pre-existing non- conforming lot, and was grandfathered. Counsel's 2021 letter to the Building Department correctly referenced caselaw which supported this position. The Board appreciates the analysis provided by the Building Department that the structure was never completed, and discussed that it typically supports the careful consideration provided by the Department regarding zoning issues. However, after deliberation on this issue, the Board was in agreement that the Applicants were correct that the foundation is in fact a structure, which created grandfathered rights in these lots. Having concluded -that the Decision of the Building Commissioner would need to be overturned, the Board then rook up the request for a Special Permit, and agreed that any proposed structure on this lot, if meeting all bulk requirements of the zoning bylaw, would not be substantially more detrimental to the neighborhood than is the existing non -conforming structure. In addition, the Board found that no undue nuisance, hazard or congestion will be created hd that there will be no substantial harm to the established or future character of the neighborhood or town. No abutters appeared either in favor or against the project. Accordingly, a motion was made by Mr. Baron, seconded by Mr. Matin, to Overturn the Decision of the Building Commissioner, for the reasons stated. The members voted unanimously in favor of the motion. Bk 34424 Pg185 #56956 A second Motion was made by Mr. Martin, seconded by Mr. Baron, to grant the Special Permit as requested, with the condition that Lots 98 and 99 are combined by way of an Approval Not Required Plan, to be endorsed and recorded in the Barnstable County Registry of Deeds. The members voted unanimously in favor of the motion. The applicant moved and was allowed to withdraw the request for relief in the form of a Variance, as it was the consensus of the Board that no such relief was needed. The members voted unanimously in favor of the motion. No permit shall issue until 20 days from the filing of this decision with the Town Clerk. Appeals from this decision shall be made pursuant to MGL c40A section 17 and must be filed within 20 days after filing of this notice/decision with the Town Clerk. Unless otherwise provided herein, the Special Permit shall lapse if a substantial use thereof has not begun within 24 months. (See bylaw § 103.2.5, MG c40A §9) xq-� s��' Steven DeYoung, Chairman CERTIFICATION OF TOWN CLERK I, Mary A. Maslowski, Town Clerk, Town of Yarmouth, do hereby certify that 20 days have elapsed since the filing with nie of the above Board of Appeals Decision #4905 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. IF Mary A. Maslowski Town Clerk AUG 2.6 2021 AIRUE COPY ATTEST FlkL 6'�u r37A—/ TOW CCLERK AUG 2 6 2021 Bk 34424 Pg186 #56956 Appeal #4905 COMMONWEALTH OF MASSACHUSETTS TOWN OF YARMOUTH BOARD OF APPEALS Date: August 5, 2021 Certificate of Granting of a Special Permit (General Laws Chapter 40A, section 11) The Board of Appeals of the 'Town of Yarmouth Massachusetts hereby certifies that a Special Perinit has been granted to: Felix Torres and Teodora I. Dimitrova-Torres 9 & 11 Woodbine Avenue, West Yarmouth, MA Affecting the rights of the owner with respect to land or buildings at: 9 & 11 Woodbine Avenue, West Yarmouth, MA; Map & lot#: 37.92 & 37.93; Zoning District: R-25; Book/Page: 29437/150 and the said Board of Appeals further certifies that the decision attached hereto is it true and correct copy of its decision granting said Special Permit, and 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) and Section 13, provides that no Special Permit, 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 (20) days 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. Steven S. DeYoung, Chairman JOHN F. MEADE, REGISTER BARNSTABLE COUNTY REGISTRY OF DEEDS RECEIVED 6 RECORDED ELECTRONICALLY A TRUE COPY ATTEST �M JO QW,' 70WN CLERK