The URL can be used to link to this page

Home My WebLink About09-09-21 Decision 4914 - 121 Town Brook RdFILED WITH TOWN CLERK: PETITION NO: HEARING DATE: PETITIONER: PROPERTY: TOWN OF YARMOUTH BOARD OF APPEALS DECISION September 13, 2021 4914 September 9, 2021 Vito Solimini, Trustee of the Vito Solimini Realty Trust 121 Town Brook Road, West Yarmouth, MA Map 45, Parcel 87 Zoning District: R-40 Title: Book 26835, Page 9 MEMBERS PRESENT AND VOTING: Chairman Steven DeYoung, Sean Igoe, Richard Martin, Tom 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, who determined that the Property at 121 Town Brook Road, West Yarmouth is not a buildable lot, or in the alternative, to amend the existing Variance, or issue a new Variance from Yarmouth Zoning Bylaw Section 203.5 to allow for the construction of a single family dwelling on this lot. The Property is located in the R40 Zoning District and is unimproved. The lot contains 33,287 square feet of area, with a total street frontage of 308 feet on a 40 foot wide public way. It is shown as Lot A2 on the plan recorded in the Barnstable County Registry of Deeds in Plan Book 266, Page 24, and is triangular in shape, was created in 1972 for Morris Johnson, and its mirror image is shown on that plan as Lot Al. The Petitioner purchased the property at 121 Town Brook in June of 1999. In September of 2000, the Petitioner also acquired the abutting property at 109 Town Brook, which is currently improved with a steel frame building and used for commercial purposes, all pursuant to a Variance issued by this Board in 1963 and a second Variance issued in 1973 for the use. In November of 1977, the then -owner of the property at 121 Town Brook applied for a variance to build a steel building, measuring 6000 square feet, with 2 floors, which was granted (Decision 1453). In addition, the Variance was issued without a date of expiration, and issued under the old statute which did not have a time period for execution of same. It was only on June 30, 1978 that the new version of Chapter 40A was adopted in the Town of Yarmouth, which contained a time period during which the Variance would need to be exercised or lost. As such, this parcel has already been approved to have a 6,000 square foot steel building constructed, which can be exercised now if the applicant wished to do so. Applicant filed a letter with the Building Commissioner dated March 10, 2021, inquiring if the property was buildable, and explaining why he thought it was. Deputy Building Commissioner James D. Brandolini's decision, which opined that the property and the abutting property had merged, consisted of two letters — one dated May 19, 2021 and a follow-up letter of May 27, 2021. A follow-up letter was also sent to Mark Grylls dated August 10, 2021, requesting that he affirm the Decision as of August 10, 2021, which he did. This appeal followed in a timely fashion. The Board heard the explanation of the Applicant, who claims that Section 104.3.4(2), entitled "Two (2) or three (3) adjoining lots", demonstrates why the property is buildable. That section states in relevant part as follows: 2. Any increase in area, frontage or other dimensional requirements of this zoning bylaw shall not apply to a lot for single family residential use, provided the plan for such lot was duly recorded or endorsed and such lot was held in common ownership with contiguous lots and had less than the dimensional and density requirements of the newly effective zoning but contained at least seven thousand five hundred (7,500) square feet and seventy-five (75) feet of frontage, or contained fifteen thousand (15, 000) square feet and fifty (50) feet of frontage if approved under section 203.2 of this bylaw. This exemption shall not apply to more than three (3) such adjoining lots held in common ownership. Based on this section of the Zoning Bylaw, the Board agreed that the Property is a buildable lot. First, the lot was duly recorded or endorsed, and it was held in common ownership with one (1) contiguous lot and had less than the dimensional and density requirements of the newly effective zoning (i.e. 40,000 square feet of area), but did contain at least 7,500 square feet and seventy-five (75) feet of frontage. Finally, the Property was not held in common ownership with more than 3 adjoining lots. The Petitioner also relied upon the reasoning of Koines v. Cohasset, 91 Mass. App. Ct. 903 (2017), to demonstrate that this section of the Yarmouth Zoning Bylaw provides "perpetual grandfathering" for such commonly owned lots, and which nullifies the merger doctrine. In addition, The Board heard the explanation of the Applicant, who claims that Section 104.3.4 (5), entitled "Other Nonconforming Residential Lots", also demonstrates the buildability of this lot, and that section states as follows: 5. Except as setforth in this paragraph, area, lotfrontage or other dimensional requirements of this zoning bylaw shall not apply to a lot for single-family residential use, provided a plan for such lot was approved or endorsed by the Planning Board on or before June 3, 1996, duly recorded, filed, or registered and such lot was not held in common ownership with more than two abutting lots as of June 3, 1996; as provided said lot contains at least ten thousand (10, 000) square feet of non -wetland lot area and either seventy-five (75) feet of lot frontage or fifty (50) feet of lot frontage if the minimum dimensional requirements of Section 203.2 of this zoning bylaw are met, each side of the square described therein being seventy-five (75) feet. In this case, the lot appeared on a plan approved or endorsed by the PIanning Board on or before June 3, 1996, which plan was duly recorded. In addition this Property was not held in common ownership with more than two abutting lots as of June 3, 1996. Finally, the lot contains at least 10,000 square feet of non -wetland lot area and has at least 75 feet of frontage. The Board appreciates the analysis provided by the Building Department in its denial letter, 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 almost unanimous agreement that the Applicants were correct that the property qualifies as a buildable lot pursuant to Section 104.3.4(2) and (5) of the Zoning Bylaw, and has not merged with any contiguous lot. One Board member was unconvinced that any error in this analysis was made, and would not support overturning the decision. No abutters appeared either in favor or against the project. Accordingly, a motion was made by Mr. Igoe, seconded by Mr. Martin, to Overturn the Decision of the Building Commissioner, for the reasons stated. The members voted as follows: Mr. DeYoung AYE Mr. Igoe AYE Mr. Martin AYE Mr. Fraprie AYE Mr. Baron NAY The Motion passed by the requisite super majority of a 4-1 vote. The applicant moved and was allowed to withdraw all other requests for relief, as it was the consensus of the Board that no such relief was needed. Accordingly, a motion was made by Mr. Martin, seconded by Mr. Igoe, to allow the petitioner to withdraw, without prejudice, all remaining forms of relief requested. 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. ."O�S 8�" 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 me of the above Board of Appeals Decision #4914 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