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HomeMy WebLinkAbout08-26-2021 Decision 4912 - 8 Old Church Street RecordedFILED WITH TOWN CLERK: PETITION NO: HEARING DATE: PETITIONER: Bk 34730 Pg252 #79803 12-08-2021 @ 12:21p TOWN OF YARMOUTR BOARD OF APPEALS DECISION November 9, 2021 4912 August 26, 2021 Susan Ann Koelsch and Donald Christian Koelsch PROPERTY: 8 Old Church Street, Yarmouthport, MA Map 124, Parcel 55 Zoning District: R-40 Title: Book 23314, Page 143 MEMBERS PRESENT AND VOTING: Chairman Steven DeYoung, Sean Igoe, Richard Martin, and Tom Baron. Notice of the hearing was given by sending notice thereof to the Pelitioner 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 was held on the date stated above. The subject property is located at 8 Old Church Street, Yarmouthport, Massachusetts. The property is shown as Parcel 55 on Town of Yarmouth Assessor's Map 124. The Petitioners, Susan Ann Koelsch and Donald Christian Koelsch, acquired title to locus by a deed dated December 12, 2008 recorded in the Barnstable County Registry of Deeds on December 15, 2008, in Book 23314, Page 143. The property is located in the R-40 Zoning District. Petitioner is seeking it Variance to Section 2203.5 of the Zoning By -Law to allow a recently constructed garage which encroaches 1 toot I l inches into the required 20 foot side yard setback to remain as built. In the alternative, Petitioner is seeking a Special Permit to allow the garage to remain as built. A TRUE coav ATTEST: CMM / CMC f lWq CLER NOV 3 0 YQ21 Bk 34730 Pg253 #79803 The Petitioner, through their representatives, made a presentation to the Board of Appeals and presented evidence establishing how the proposed project complied with all the requirements for issuance of a Variance set forth in Section IO2.2.2 of the Zoning By -Law. Upon completion of the Petitioner's presentation, the Chairman of the Zoning Board asked if anyone from the public was present to speak either in favor of the requested relief or in opposition. No one spoke in favor. No one spoke in opposition. The Chairman read into the record two letters of support for the Petitioners request for a Variance. One letter was from the owner of the property at 6 Old Church Street, Yarmouthport, MA and the other letter was from the manager of the Sav On Gas Station located at 476 Route 6A, Yarmouthport, MA. The Chairman then closed public comment. The Zoning Board commenced Board discussions of the merits of the Petitioner's request for a Variance. Section 102.2.2 of the Zoning By -Law sets forth the criteria that must be met by the Petitioner in order for the Zoning Board to grant a Variance. The Zoning Board discussed the criteria set forth in Section 102.2.2 and the evidence presented by the Petitioner. The criteria set forth in Section 102.2.2 of the Zoning By -Law and the Board's findings based upon the Petitioners presentation are as follows: 1. literal enforcement of the provisions of this bylaw would involve a substantial hardship financial or otherwise, to the petitioner or appellant. A literal enforcement of the provisions of the by-law would involve substantial hardship to the Petitioners. The Petitioners would be forced to shave off a portion of the barn and remove a portion of the foundation, each totaling one foot l 1 inches, to bring the barn into compliance. It would cost the Petitioners a significant amount of money and would result in an odd shaped, less attractive barn. The Petitioners hired a licensed contractor (since deceased) to construct the barn. An engineering firm was engaged to prepare an "Existing Conditions Site Plan". The contractor proceeded with construction of the barn and it wasn't until a Foundation Plot Plan was prepared that the encroachment problem was discussed. The Zoning Board found that an honest mistake was made, the encroachment is not significant, and it would be a substantial hardship to the Petitioners if required to correct the encroachment. 2. The hardship is owing to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affecting such land or structures, but not affecting generally the zoning district in which it is located. The lot was laid out on a plan created in 1948 and runs back from Old Church Street in an angle. It does not sit perpendicular to the street but instead angles towards the right. It is this side where the setback encroachment occurred. The Zoning Board found that the shape A TRUE COPY ATTEST: CUMfCMC WWV 3 0 2021 Bk 34730 Pg254 #79803 especially affects this land but does not affect generally the zoning district in which it is located. When the engineering firm staked the lot, one of the stakes was in a corner in an easement Right of Way serving the property at 6 Old Church Street. The stake was "removed" or "run over". The builder thought the telephone pole also located at the corner of the lot was on the lot line and used that in his measurements resulting in the miscalculation. e other factor especially affecting locus but not generally the zoning district in which it is located was the existence of a shed on the property which was located in the exact location where the encroachment occurred. When the engineering firm staked the lot and the location of the foundation for the new garage, they were unable to put a stake in to mark one corner of the garage foundation due to the existence of the shed. The other corners were marked but this corner, where the encroachment exists, could not be marked at the time of surveying. Thus, the shape of the lot and the existence of the shed combined to cause the builder to miscalculate the location of one corner of the new structure resulting in the setback violation. 3. Desirable relief can be granted without either substantial detriment to the public good or nullifying or substantially derogating from the intent or purpose of the by-law. The encroachment is only one foot, 11 inches into a twenty -foot side yard setback. Included within the setback is a right of way to the property at 6 Old Church Street. The property is abutted on the encroachment side by the rear of the Sav On Gas Station which fronts on Route 6A. The owner of the property at 6 Old Church Street and the manager of the Sav On Gas Station each submitted letters in support of the Petitioners request for a variance. The encroachment does not result in any detriment to the public good. It does not nullify or substantially derogate from the intent or purpose of the Yarmouth Zoning By -Law. Side yard buffers are generally intended to provide separation between properties to provide privacy. Locus is located in a residential district but is abutted by a commercial use which is not affected by the encroachment. The buffer zone also contains a right of way serving the property at 6 Old Church Street. This side yard buffer is different than side yard buffers normally found in residential districts for these reasons and therefore the requested relief would not substantially derogate from the intent or purpose of the bylaw. The Board was satisfied and agreed that the Petitioner has met the criteria of Zoning By -Law Section 102.2.2, as recited above. Accordingly, a motion was made by Mr. Martin, seconded by Mr. Baron, to grant a Variance, as requested. A TRUE COPY ATTEST cna /cm10"ff 21 Bk 34730 Pg255 #79803 Roll call vote was taken on this Motion with the following results: Mr. Martin - In Favor Mr. Baron - In Favor Mr. Igoe - In Favor Mr. DeYoung - In Favor Accordingly, the Variance was approved on a 4-0 vote in favor. The Petitioner then voluntarily withdrew the request for a Special Permit without prejudice. The request to withdraw was granted unanimously. No permit shall issue until 20 days from the tiling ol'this decision with the Town Clerk. Appeals from this decision shall be made pursuant to MGL c40A section 17 and must he filed within 10 days after filing or this notice/decision with the Town Clerk. Unless otherwise provided herein, the Variance shall lapse il' a substantial use thcreor has not begun within 12 months. (See MGL c40A § 10). Steven DeYoung, Chairman CERTIFICATION OF 'GOWN CLERK 1, Mary A. Maslowski, Town Clerk, Town or Yarmouth, do hereby certify that 20 days have elapsed since the filing with me of the above Board of Appeals Decision # 4912 that no notice of appeal of said decision has been filed with me, or, if such appeal has been tiled it has been dismissed or denied. All appeals have been exhausted. Mary A. Maslowski NOV 3 0 2021 A TRUE COPY ATTEST: ' ' wK.J� • 'tI /L�6�1 CMMC / Ck C / 7D1MN CLEIi NOV 3 0 2p�i Bk 34730 Pg256 #79803 COMMONWEALTH OF MASSACHUSETTS r. TOWN OF YARMOUTH r BOARD OF APPEALS Petition #: 4912 Date: November 30, 2021 Certificate of Granting of a Special Permit (General Laws Chapter 40A, section 1 1) The Board of Appeals of the Town of Yarmouth Massachusetts hereby certifies that it Special Permit hits been granted to: Susan Ann Koelsch & Donald Christian Koelsch 8 Old Church Street ' Yarmouth Port, MA 02675 Affecting the rights of the owner with respect to land or buildings at: 8 Old Church Street, Yarmouth Port, MA; Viap & lot#: 124.55; Zoning District: R-40; Book/Page: 23314/143 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 copies of said decision, and of all plans referred to in the decision, have been tiled. 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 Pcrmit, or any extension, modification or renewal thereof, shall take effect until it 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 l'iled, 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 1he owner's certificate of title. The fee for such recording or registering shall be paid by the owner or applicant. Steven S. DeYoung, Chairman 47UE COPY ATTEST: r - WAdA44 C MC/C / GMT JOHN F. mAVRA94021 BARNSTABLE COUNTY REGISTRY OF DEEDS RECEIVED & RECORDED ELECTRONICALLY