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HomeMy WebLinkAbout33 Summer Street AppealXQUvI&[OWAI1F:1NIwo 901WUv voVyWy:twin W BARNSTABLE, SS. SUPERIOR COURT C.A. NO. } SARAH HINKLEY AND } MATTHEW R. HAGOPIAN } Plaintiffs } } VS. } COMPLAINT } STEVEN DeYOUNG, SEAN } IGOE, RICHARD MARTIN, } TOM BARON, and JAY } FRAPRIE, as they are Members } of the YARMOUTH ZONING } BOARD OF APPEALS, and the ) YARMOUTH ZONING BOARD) OF APPEALS, and IRINA S. ) WEATHERLY-MacPHEE, ) Defendants ) INTRODUCTION 1. This is an appeal, pursuant to M.G.L. c. 40A, § 17, of a Decision of the Yarmouth Zoning Board of Appeals purporting to grant the Defendant, Irina S. Weatherly-MacPhee, a Special Permit to alter a pre-existing non- conforming single-family dwelling on an undersized nonconforming lot located at 33 Summer Street in Yarmouth Port, Massachusetts. PARTIES 2. The Plaintiff, Sarah Hinkley ("Hinkley"), is an adult individual with a principal residential address of 29 Summer Street, Yarmouth Port, Massachusetts. 3. The Plaintiff, Matthew R. Hagopian ("Hagopian"), is an adult individual with a principal residential address of 39 Summer Street, Yarmouth Port, Massachusetts. 4. The Defendants, the Members of the Dennis Zoning Board of Appeals, are as follows: a. Steven DeYoung c/o Yarmouth Zoning Board of Appeals Town Hall 1146 Route 28 South Yarmouth, MA 02664 b. Sean Igoe c/o Yarmouth Zoning Board of Appeals Town Hall 1146 Route 28 South Yarmouth, MA 02664 C. Richard Martin c/o Yarmouth Zoning Board of Appeals Town Hall 1146 Route 28 South Yarmouth, MA 02664 d. Tom Baron c/o Yarmouth Zoning Board of Appeals Town Hall 1146 Route 28 South Yarmouth, MA 02664 2 e. Jay Fraprie c/o Yarmouth Zoning Board of Appeals Town Hall 1146 Route 28 South Yarmouth, MA 02664 5. The Defendant, the Yarmouth Zoning Board of Appeals, is the Board of Appeals for the Town of Yarmouth and has a business address of Town Hall, 1146 Route 28, South Yarmouth, MA 02664. 6. The Defendant, Irina S. Weatherly-MacPhee ("Weatherly-MacPhee"), is an adult individual with an address of 8 South Street, Dennis Port, MA 02639. FACTUAL ALLEGATIONS 7. The Defendant, Weatherly-MacPhee, is the owner of the property located at 33 Summer Street, Yarmouth Port, Massachusetts (the "Property"). 8. The Property is in an R-40 Zoning District and is currently improved with a single-family dwelling that was built circa 1850. 9. The dwelling is nonconforming because it is situated 10.9 feet from the northerly side lot line, where 20 feet is required. 10. The Property is nonconforming because it has an area of 14,831 square feet, where 40,000 square feet is required. 11. The Plaintiff, Hinkley, owns the property abutting on the north, and the Plaintiff, Hagopian, owns the property abutting on the south (hereinafter, collectively, the "Abutters"). 3 12. On or about August 11, 2021, Weatherly-MacPhee filed an application with the Yarmouth Zoning Board of Appeals seeking a Special Permit under Section 104.3.2(2) of the Yarmouth Zoning Bylaw to lift the existing house, construct a new foundation, position the house on the new foundation, add a substantial addition at the rear of the house, add a new deck and porch, a swimming pool, and a barn. 13. Section 104.3.2 of the Yarmouth Zoning Bylaw provides, in relevant part: [S]ingle family and two-family structures, and their accessory structures, may be altered, extended or razed and replaced only upon Special Permit from the Board of Appeals, if it is determined that such alteration, extension or raze and replacement will not be substantially more detrimental to the neighborhood than is the existing non -conforming structure. 14. The proposed project will result in an increase in the height of the structure, an increase in the amount of building within the side yard setback on the northerly side of the property, and a significant increase in building coverage, from 13.2% to 24.8%, on an undersized nonconforming lot. 15. The significant increase in size of the building on a nonconforming lot will increase the nonconforming nature of the building. 16. These changes to the Property on an undersized lot will result in increased density of the neighborhood, adverse impacts to the Abutters, decreases in light and air, increases in shading, and decrease in privacy. 17. The proposed structure will be substantially more detrimental to the neighborhood than the existing structure. C! 18. The Zoning Board of Appeals held a hearing on the application on September 9, 2021. 19. Weatherly-MacPhee, through her attorney presented the project. 20. The Abutters, through Counsel, voiced their concerns and objections to the project. 21. The Board closed the hearing, deliberated, and voted to grant the requested Special Permit. 22. Subsequently, the Board issued a written decision which was filed with the Yarmouth Town Clerk on September 13, 2021. An attested copy of the Special Permit Decision is attached hereto as Exhibit "A." 23. The Abutters are aggrieved, within the meaning of M.G.L. Chapter 40A, § 17, by the Decision of the Zoning Board of Appeals, and will suffer special injuries different in kind than suffered by any member of the public. 24. The Abutters assert that the Decision of the Zoning Board of Appeals with respect to Weatherly-MacPhee's permit application is erroneous, in excess of its authority, arbitrary, capricious and whimsical because, inter alia: the substantial increase in size of the structure on an undersized lot will increase the nonconforming nature of the structure and the proposed structure will be substantially more detrimental than the currently existing structure. WHEREFORE, the Plaintiffs respectfully request this Honorable Court to issue an Order and Judgment as follows: A. That the Decision of the Yarmouth Zoning Board of Appeals exceeded its authority, was against the weight of the evidence, is arbitrary, capricious and unreasonable; B. That the Decision of the Yarmouth Zoning Board of Appeals issued on September 13, 2021 be vacated and annulled; and C. That the Court grant such other and further relief as the Court may deem meet, just and proper under the circumstances. Dated: September 29, 2021 Respectfully submitted, For the Plaintiffs, Sarah Hinkley, and Matthew R. Hagopian, By their Attorney, Is/ Brian J. Wall Brian J. Wall BBO No. 560063 Troy Wall Associates 90 Route 6A Sandwich, MA 02563 (508) 888-5700 bjw@troywallassociates.com R EXHIBIT A TOWN OF YARMOUTH BOARD OF APPEALS DECISION FILED WITH TOWN CLERK: September 13, 2021 PETITION NO: 4913 HEARING DATE: September 9, 2021 PETITIONER: Irina S. Weatherly McPhee PROPERTY: 33 Summer Street, Yarmouth Port, MA Map 113, Parcel 23 Zoning District: R-40 Title: Book 33221, Page 277 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 a Special Permit per § 104.3.2(2) to lift and reposition pre-existing, nonconforming structure, including additions and extended living space. In the alternative, the applicant seeks a Variance from §203.5 to permit the construction of a barn in a front yard setback. The Property is located in the R-40 Zoning District and is currently improved with a 1 1/z story single family home built in approximately 1850. The property also has a deck, patio and a shed located in the rear of the property. In its history, the property was improved with 3 porches and a large barn connected to the house in the rear. The lot contains 14,831 square feet and 73 feet of frontage on Summer Street. The property also abuts a private way, Tranquil Trail, by approximately 74 feet. However, the Applicant has no right to use that way for access. The existing structure complies with the front, rear and left side setback requirements of the existing zoning bylaw, but does encroach into the right side setback, and sits 8.9 feet from that boundary. The house is approximately 22.5 feet in height and lot coverage is at 13.2%a. The existing foundation is decaying and must be replaced to preserve the house. The proposal is to lift the antique house, construct a new foundation, and to position the existing house back down on the new foundation. Then, an addition to the property will be constructed to the rear portion of the house, along with a new deck and porch, swimming pool and a 12 x 20 barn. The structure will still sit approximately 9 feet from the right side boundary, but will continue to comply with all other bulk requirements of the bylaw. The abutting property to the northeast has a driveway located on that side of the property and would provide additional buffer to that portion of the property, which will not have outdoor space. The height of the proposed structure will increase by approximately 15 inches, to 23.8 feet, and lot coverage will increase to 24.8%, which meet the bulk requirements of the zoning bylaw. Petitioner requires a Special Permit because the property is being lifted by 15 inches onto a new and necessary foundation, triggering the requirements of Yarmouth Zoning Bylaw Section I04.3.2 (2). The revival of this antique home, in this historic part of town, in the same general location, albeit further from the northeast abutter than the existing structure, will in no way be substantially more detrimental to the neighborhood than the existing structure. The work being done on this property will benefit the neighborhood. The proposal was previously approved by the Old Kings Highway Historic District Committee, at which time abutters were provided an opportunity to comment about aesthetics and the setting of the project. Several abutters, and other nearby residents, voiced concerns that the extension of this house would not be in keeping with the charm of the neighborhood, would interfere with the tranquility of the area, would cause shadowing and interference with sunlight, and set a bad precedent for encroachments. However, the Board was unanimously unable to find such detriment based on the plans for this project. Rather, the Board found that the improvements would not be substantially more detrimental to the neighborhood than is the existing non -conforming structure. In fact, the Applicant proposes to decrease the existing encroachment into the right side setback. In addition, the careful proposal demonstrates that no undue nuisance, hazard or congestion will be created and that there will be no substantial harm to the established or future character of the neighborhood or town. In fact, the Applicant explained that the barn, although not needing any zoning relief, was planned to harken back to the prior existence of such a structure on this lot. Finally, the exhaustive efforts of the Petitioner were noted by the Board, in that the original antique home was being preserved, generally, in the same location on the lot as the existing location of the home. The Board found that the Applicant had clearly met all of the requirements of Zoning Bylaw Section 104.3.2(2) and that she was eligible for the issuance of a Special Permit. Accordingly, a motion was made by Mr. Martin, seconded by Mr. Baron, to issue a Special Permit as requested, with the condition that the front parking area denoted on the filed plans be eliminated and not constructed. 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, MGL c40A §9) Steven DeYoung, Chairman CERTIFICATION OF TOWN CLERK 1, Mary A. Maslowski, Town Clerk, Town of Y outh, do hereby certify that 20 days have elapsed since the filing with me of the above and of Appeals Decision # 4913 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 ha-vot5een exhausted. Mary A. A TRUE COPY ATTEST: FkAA4j k. SEP 2 0 2021 1 TOWN CLERK *AS OF THE DATE OF ISSUANCE OF THIS ATTESTED COPY, THE 20 DAY STATUTORY APPEAL PERIOD HAS NOT YET EXPIRED. DOCKET NUMBER CIVIL TRACKING ORDER (STANDING ORDER 1- 88) 1 2172CV00362 Trial Court of Massachusetts JL The Superior Court CASE NAME' Scott W. Nickerson, Clerk of Court Hinkley, Sarah vs. Yarmouth Zoning Board Of Appeals el al Barnstable County To: Brian J Wall, Esq. Troy Wall Associates 90 Route 6A Sandwich, MA 02563 COURT NAME & ADDRESS Barnstable County Superior Court 3195 Main Street Barnstable, MA 02630 TRACKING ORDER - F - Fast Track You are hereby notified that this case is on the track referenced above as per Superior Court Standing Order 1-88. The order requires that the various stages of litigation described below must be completed not later than the deadlines indicated. STAGES OF LITIGATION DEADLINE SERVED BY FILED BY HEARD BY Service of process made and return filed with the Court 12/28/2021 Response to the complaint filed (also see MRCP 12) 01/27/2022 All motions under MRCP 12, 19, and 20 01/27/2022 02/28/2022 03/28/2022 All motions under MRCP 15 01/27/2022 02/28/2022 03/28/2022 All discovery requests and depositions served and non -expert 07/26/2022 depositions completed All motions under MRCP 56 08/25/2022 09/26/2022 Final pre-trial conference held and/or firm trial date set 01/23/2023 Case shall be resolved and judgment shall issue by 09129/Z023 The final pre-trial deadline is not the scheduled date of the conference. You will be notified of that date at a later time. Counsel for plaintiff must serve this tracking order on defendant before the deadline for filing return of service. This case is assigned to DATE ISSUED I ASSISTANT CLERK 09/29/2021 1 Scott W Nickerson PHONE (508)375-6684 DatdT.—Ymsed. MZ92021 14 49'14 sevom Nnott1