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HomeMy WebLinkAbout4890 8 Grove Street - AppealSTONE & REID ATTORNEYS AT LAW A PROFESSIONAL ASS0CIA'1'!ON SOUTH YARMOUTH PROFESSIONAL BUILDING ' 1292 ROUTE 28 SOUTH YARMOUTH, MA 02664-4452 TEL (508) 394-5648 FAX (508) 398-1699 DAME) S. REID, ESQ. MICHAEL F. STONE, ESQ. DSReid@verizon.net MFStoneEsq@comcast.net October 12, 2021 Mary Maslowski Yarmouth Town Clerk 1146 Route 28 South Yarmouth MA 02664 RE: Zoning Board of Appeals # 4890 8 Grove Street, West Yarmouth MA Dear Madam Clerk, RECIVED EOCE- 42021 YARMOUTH BOAD OF AppBRALS 1 Please be advised that I have filed an appeal from the recent decision of the Yarmouth Zoning Board of Appeals, on the application of Michael J. Lenzi, pertaining to property at 8 Grove Street, West Yarmouth, MA, being decision # 4890. A copy of the Complaint filed with the Barnstable Superior Court is attached for your records. encl(1) cc: clerks@yannouth,ma.us cc: Yarmouth ZBA Paut R. Tardif, Esq. • Each Attorney in this office is an independent practitioner who is not responsible for the practice or liabilities of any other attorney in the office. Rule 7.5 (d) COMMONWEALTH OF MASSACHUSETTS TRIAL COURT OF THE COMMONWEALTH SUPERIOR COURT DEPARTMENT BARNSTABLE, ss ANNICK S. COOPER & A. DOUGLAS PEABODY, KULIN SHAH & HELEN SHAH, CRISTIN LUTTANZI & DANIEL ROSENTHAL, and DONALD & PATRICIA QUINLAN, and MARTHA LEAHY, PLAINTIFFS IV MICHAEL J. LENZI & SANDRA M. LENZI, TRUSTEES AND STEVEN DeYOUNG, SEAN IGOE, THOMAS BARON , RICHARD MARTIN, & JAY FRAPRIE, DEFENDANTS CIVIL ACTION: COMPLAINT (M.G.L. c. 40A § 17) �-a:- -..`� 1. The Plaintiffs, Annick S. Cooper and A. Douglas Peabody are the owners and residents at 16 Highland Street, West Yarmouth, MA. 2. The Plaintiffs, Kulin Shah and Helen Shah are the owners and residents at 2 Highland Street, West Yarmouth, MA . 3. The Plaintiffs, Cristin Luttazi and Daniel Rosenthal are the owners and residents at 22 Park Ave., West Yarmouth, MA. 4. The Plaintiffs, Donald Quinlan and Patricia Quinlan are the owners and residents at I I Gr6ve Street, West Yarmouth, MA. 5. The Plaintiff, Martha Leahy, is the owner and resident at 11 Park Ave, West Yarmouth MA. }.. L 6. The Defendants, Michael J. Lenzi and Sandra M. Lenzi, are the Trustees of The 8 Grove Street Realty Trust, and owners of the property at 8 Grove Street, West Yarmouth MA, and have a mailing address of 7 Brianna Way, Dracut, MA, 01826. 7. The Defendants, -Steven DeYoung, of 691 Willow Street, South Yarmouth MA 026645 -Sean Igoe, of 223 South Sea Ave., West Yarmouth, MA 02673 -,Thomas Baron, of 19 Geneva Street, S. Yarmouth MA 02664, -Richard Martin, of 55 Hatch Road, S. Yarmouth MA 026649 - Jay Fraprie, of 36 Pheasant Cove Circle, Yarmouth Port, MA 02675 are the duly constituted and voting members of the Yarmouth Zoning Board of Appeals relative to the matter that is the subject of this action. 8. On or about March 3, 2021, the Defendants, Lenzi, filed an application with the Yarmouth Zoning Board of Appeals seeking a special permit to replace the pre-existing non -conforming single-family home located on their property at 8 Grove Street, West Yarmouth MA. 9. On or about March 25, May 13, May 27, June 10, August 12 and September 9, 2021, the Yarmouth Zoning Board of Appeals held a public hearings on the Defendants' said application, and after hearing voted 5:0 on September 91 2021 to grant the requested special permit. 1 O.The Decision of the Board rendered in the above references action was filed with the Yarmouth Town Clerk on September 22, 2021. ( See copy attached as Exhibit A) 11.The Plaintiffs assert that they are abutters and/or neighbors of the subject property and/or Parties -in -Interest to this application. 12.The Plaintiffs are opposed to the proposed redevelopment of the subject property and/or assert that they participated in the said Hearing, voicing their opposition to the proposed special permit relief and proposed replacement structure. 13.The Plaintiffs assert that they are aggrieved of the said Decision of the Board, and appeal therefrom pursuant to M.G.L.A. c. 40A, § 17. 14.The Plaintiffs assert that the Board exceeded its authority in granting the special permit at issue, as the relief granted is not supported by the facts or the law, including, but not limited to, the fact that the applicant had,the, ability to conform to the requirements of the bylaw, and the fact that�nt'all members who voted in favor of the granting of the permit attendeda (')' f4 hearings thereon, and did not qualify for or satisfy the requirements of M.G.L.A. c. 39 section 23D prior to voting in favor of the special permit, and as a result the application was in fact denied as a matter of law by its failure to receive the required number of qualified affirmative votes. WHEREFORE, the Plaintiffs request that this Honorable Court: 1) Annul the decision of the Board, as being beyond the authority and jurisdiction of the Board, and unsupported by the facts and the law, 2) Grant such other or further relief as may be deemed just, proper and equitable. Respectfully submitted, Annick S. Cooper, et al By t r attorney: David S. Reid BBO 415540 1292 Route 28 S. Yarmouth MA 02664 508-394-5648 DSReid (e-bverizon,net FILED WITH TOWN CLERK: PETITION NO. HEARING DATES: PETITIONER: TOWN OF YARMOUTH BOARD OF APPEALS DECISION Sep temher 22, 2021 4890 March 25, 2021, May 27, 2021, August 12, 2021 and September 9, 2021 Michael J. Lenzi, Sr. and Sandra M. Lenzi Trustees of the 8 Grove Street Realty Trust PROPERTY: 8 Grove Street, West Yarmouth, MA Map 20, Parcel 37 Zoning District: R-25 Title: Doeumen! 1348727 and Certificate of Title No. 216493 MEMBERS PRESENT AND VOTING: Chairman Steven DeYoung, Sean Igoe, Ric -hard Martin, Jay Fraprie and Tom Baron Notice of the hearing has been given by sending notice thereof to the Petitioncr 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 pursuant to section 104.3,2 of the Bylaw to allow for the razing and replacing of the single family dwelling at the property. The Property is located in the R25 Zoning District and is improved with a two story single family structure having 4 bedrooms and 1 '/2 baths, and constructed in approximately 1927, and a detached garage. The lot contains 44,159 square feet of area, with 20,134 square feet of upland, The lot is a very odd shape, and runs from the beach on the south and north to Park Avenue, and is surrounded by salt marshes, a dune and what is considered to be a river. A portion of the lot is in the velocity zone and a portion is in the AE 11 flood zone. The existing house, which is 28.5 feet in height, is approximately 6 inches from Grove Street but complies with all other setback and height regulations of the Zoning Bylaw. There is a Title 5 Septic System on the property, capable of handling up to 5 bedrooms, which will remain. Lot coverage, including the house, garage and deck total 1 1.9% of the upland, The proposal is to remove the house and garage from their present location, and to construct a 2 1/2 story single family dwelling having 5 bedrooms, with decks and swimming pool. The house will be located 12.2 feet from Grove Street layout, but 21.5 feet from the actual paved portion of the road. The second floor roofline will be 20.2 feet from the road layout, before the 1/2 story, EXHIBIT treasuring 34.7 feet from the average grade at the street; is stepped back to ameliorate tlW!kM i1pt t of the height of the structure. Due to the environmental attributes affecting the property, there' ` was no other reasonable place to locate the house further back from the street. The basement will have flood vents and will be used for parking, and storage. No mechanicals or living space will be located in the basement. The lot coverage will decrease to 10.2%, which accounts for the removal of the detached garage. A number of plantings will be .included around the perimeter of the property near the wetlands, and this has been approved by the Yarmouth Conservation Commission, who indicated that they would not permit the new structure io be located any closer to the wetlands than first permitted, and shown on the current plans. The footprint of the proposed structure will be 1,403 Square feet, an increase of 157 square feet over the existing structure's footprint. The Petitioner explained that the property will be used for single family residential purposes only, and will not be used for commercial events. The owner(s) and/or the occupant(s) of the property will not park or store commercial vehicles on the property except during construction or as an invited guest. Pursuant to. Yarmouth Zoning Bylaw Section 104.3.2 (2), single family and two-family 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. -The Board was satisfied and agreed that the Petitioner has met the criteria of Zoning Bylaw Section 104.3.2 (2), as recited above. There were neighbors who opposed the project, but many spoke of tangential issues such as the noise of other rental properties of the Petitioner and beach crowding, which are not in the purview of this Board. Concerns of the size and height of the building were considered, and resulted in several continuances, to allow the Petitioner to revise its plans to decrease the encroachments into tite front yard setback, decrease the impact of the house from Grove Street, and to decrease the square footage of the proposed structure. One abutter, although in favor of the project, spoke of concerns that this property not turn into a venue for commercial uses. The Petitioner agreed to cetlain conditions, listed below, to al lay those fears. The Board noted the positive changes to the plans submitted for the September 9, 2021 hearing, and the efforts of the applicant to present plans for a structure which will not be substantially detrimental to the neighborhood. Specifically; the significant increase in the front yard setback from its present 6 inches to approximately 12.2 feet was a vast improvement to the project. In the addition, the Board found that there will be no undue nuisance, hazard or congestion created and that there will be no substantial harm to the established or future character of the neighborhood or town, all in accordance with Zoning Bylaw Section 103.2.2, The Board also was careful in comparing the present structure to the proposed structure, and noted the existing structure's non -flood compliance, the removal of a detached garage, and the additional off-street parking as great improvements. In addition, and although the height of the proposed structure will be 34.7 feet (where 35 feet is allowed), the design and height is in keeping with many of the homes in the neighborhood, including many of the homes owned by abutters who appeared in opposition to the project, and who have modified their homes and effectively defined the character of the neighborhood. Finally, the project was in keeping with recent relief granted by this Board to other properties in the neighborhood, including properties with more square footage than the subject property. Accordingly, and based upon the foregoing findings, a motion was made by Mr. Igoe, seconded by Mr. Martin, to grant the Special Permit, as requested, with the following condition: 1. The property will be used for single family residential purposes only, and will not be used for commercial events. The owner(s) and/or the occupant(s) of the property shall not park or store commercial vehicles on the property except during construction or as an invited.guest. Roll call vote was taken on this Motion with the following results: Mr. DeYoung - In Favor Mr. Igoe - In Favor Mr. Martin - In Favor Mr. Baron - In Favor Mr. Fraprie - In Favor Accordingly, the Special Permit was approved on a 5,-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 1.7 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 I, Mary A. Maslowski, Town Clerk, Town of Yarmouth, do hereby certify that 20 days have elapsed since the filing with ine of the above Board of Appeals Decision #4890 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 ACTION COVER SHEET I SUPERIOR COURT COUNTY Rr ARP DOCKET NO. Annick Cooper, A. Dou6ifis Peabody, Kulin Shah, Helen Michael J. Lenzi, Sandra M. Lenzi, PLAINTIFF(S)Shah, Crlstin Luttanzl, Daniel DEFENDANT(S)Steven DeYoung, Sean Igoe, Thomas Rosenthal, Donald Quinlan, Baron, Richard Martin, Jay Fraprie Attorney name, Address, Type Defendant's Attorney Name, Address, r.wnv nu111uaa anu oovtr enone Number (If Known) David S. Reid, Esq. 1292 Route 28 S. Yarmouth MA 02664 508-394-5648 3 i ,:_ss_ N BBO 415540 TYPE OF ACTION AND TRACK DESIGNATION (See reverse side) CODE NO. TYPE OF ACTION (specify) TRACK IS THIS A JURY CASE? CO2 Zoning Appeal G L c 40A - Fast Track r, 1 Yes (; ) No The following is a full, itemized and detailed statement of the facts on which plaintiff relies to determine money damages. For this form, disregard double or treble damage claims; indicate single damages only. TORT CLAIMS (Attach additional sheets as necessary) A. Documented medical expenses to date: 1. Total hospital expenses $ 2. Total doctor expenses $ 3. Total chiropractic expenses 4. Total physical therapy expenses $ 5. Total other expenses (describe) $ Subtotal $ B. Documented lost wages and compensation to date $ C. Documented property damages to date $ D. Reasonably anticipated future medical expenses $ E. Reasonably anticipated lost wages and compensation to date $ F. Other documented items of damages (describe) $ G. Brief description of plaintiff's injury, including nature and extent of injury (describe) Total $ CONTRACT CLAIMS (Attach additional sheets as necessary) Provide a detailed description of claim(s): TOTAL $............... PLEASE IDENTIFY, BY CASE NUMBER, NAME AND COUNTY, ANY RELATED ACTION PENDING IN THE SUPERIOR COURT DEPARTMENT "I hereby certify that I have complied wit requirements of Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC Rule 1:18) requiring that I provide toyUientsith information outcourt-connected dispute resolution services and discuss with them the advantages and disadvantages of the thod ." Signature of Attorney of Record bate: /U%/y�j / A.O.S.C.3-2007 CIVIL ACTION COVER SHEET INSTRUCTIONS *CONTRACTS SELECT CATEGORY THAT BEST DESCRIBES YOUR CASE * REAL PROPERTY MISCELLANEOUS A01 Services, tabor and Materials F) C01 Land Taking (eminent domain) (F) E02 Appeal from Administrative A02 Goods Sold and Delivered (F) CO2 Zoning Appeal, G.L. c.40A (F) Agency G.L. c. 30A (X) A03 Commercial Paper A08 Sale or Lease of Real Estate (F) (F) CO3 C04 Dispute concerning title Foreclosure of mortgage (F) (X) E03 Claims against Commonwealth Al2 Construction Dispute A99 Other (Specify) (A) (F) Cos C99 Condominium Lien & Charges Other (X) E05 or Municipality Confirmation of Arbitration Awards (A) X E03 Claims against Commonwealth (A) E03 (Specify) Claims against Commonwealth (F) (A) E07 E08 G.L. c.112, s.12S (Mary Moe) Appointment of Receiver (X) (X) or Municipality or Municipality E09 General Contractor bond, EQUITABLE REMEDIES G.L. c. 149, as. 29, 29a (A) *TORT D01 Specific Performance of Contract (A) E11 Worker's Compensation (X) B03 Motor Vehicle Negligence (F) D02 Reach and Apply (F) E12 G.L.c.123A, s.12 (SDP Commitment) (X) personal Injurylprop" damage D06 Contribution or Indemnification (F) E14 G.L. c. 123A, s. 9 (SDP Petitlon) 804 Other Negligence- (F) D07 Imposition of a Trust (A) E15 Abuse Petition, G. L. c. 209A (X) personal in)urylproperty damage D08 Minority Stockholder's Suit (A) E16 Auto Surcharge Appeal (X) B05 Products Liability (A) D10 D12 Accounting Dissolution of Partnership (A) (F) E17 Civil Rights Act, G.L. c.12, s. 11H (A) B06 Malpractice -Medical- (A) 013 Declaratory Judgment G.L. c. 231A (A) E18 Foreign Discovery Proceeding (X) B07 Malpractice -Other (Specify) (A) 099 Other (Specify) (F) E19 Sex Offender Registry G.L. c. 178M, BOB Wrongful Death, G.L. c.229, s.2A (A) s. 6 (X) B15 Defamation (Libel -Slander) (A) E25 Plural Registry (Asbestos cases) B19 Asbestos (A) E95 **Forfeiture G.L. c. 94C, s. 47 (F) B20 Personal Injury- slip & fall (F) E96 Prisoner Cases (F) 621 Environmental (F) E97 Prisoner Habeas Corpus (X) B22 Employment Discrimination (F) E99 Other (Specify) (X) B99 Other (Specify) (F) E03 Claims against Commonwealth (A) Maims against the commonwealth or a municipality are type E03, Average Track, cases. "Claims filed by the Commonwealth pursuant to G 1_ c 94C, s 47 Forfeiture cases are type E95, Fast track. TRANSFER YOUR SELECTION TO THE FACE SHEET. EXAMPLE: CODE NO. TYPE OF ACTION (SPECIFY) TRACK IS THIS A JURY CASE? 603 Motor Vehicle Negligence -Personal Injury (F) [ X ] Yes i ] SUPERIOR COURT RULE 29 DUTY OF THE PLAINTIFF. The plaintiff or his/her counsel shall set forth, on the face sheet (or attach additional sheets as necessary), a statement specifying in full and itemized detail the facts upon which the plaintiff then relies as constituting money damages. A copy of such civil action cover sheet, including the statement as to the damages, shall be served on the defendant together with the complaint. If a statement of money damages, where appropriate is not filed, the Clerk -Magistrate shall transfer the action as provided in Rule 29(5)(C). DUTY OF THE DEFENDANT. Should the defendant believe the statement of damages filed by the plaintiff in any respect inadequate, he or his counsel may file with the answer a statement specifying in reasonable detail the potential damages which may result should the plaintiff prevail. Such statement, if any, shall be served with the answer. A CIVIL ACTION COVER SHEET MUST BE FILED WITH EACH COMPLAINT. FAILURE TO COMPLETE THIS COVER SHEET THOROUGHLY AND ACCURATELY MAY RESULT IN DISMISSAL OF THIS ACTION.