HomeMy WebLinkAboutApplicant's Letter Dated 10-26-21LAW OFFICES OF
PAUL R. TARDIF, ESQ., P.C.
490 MAIN STREET
YARMOUTH PORT, MA 02675
(508) 362-7799 (508) 362-7199 fax
Pau! A Tardif, Esq. Stacey A. Curley, Esq.
ptardifritardifla«.eoin wwm?a tardiflawxom scudey@tardiflaw.co
,tardiflaw.com
REFER TO FILE NO.
October 26, 2021
Mark Grylls
Yarmouth Building Commissioner
1146 Route 28
South Yarmouth, MA 02664
Re: 10 Braddock Street, South Yarmouth, MA
Assessor Map 34, Parcel 197
Current Owner: Christopher O'Connell and Mark O'Connell, Trustees of the 10
Braddock Street Realty Trust
Dear Mr. Grylls:
Please be advised that this Office represents Christopher O'Connell and Mark O'Connell,
Trustees of the 10 Braddock Street Realty Trust, the owner of the property at 10 Braddock Street,
South Yarmouth, MA. (the "Property"). I am writing regarding the ability of my client to
redevelop this this property, which they would like to improve with a single family dwelling.
The property is located in the R-25 Zoning District, and contains approximately 4,792 square
feet of area, and 50 feet of frontage on Braddock Street. The lot was created by a plan entitled
"Property of George W. & Marian P. Wood, Plan of Land — South Yarmouth, Mass. As surveyed
for L. Melva Jones, Scale 1 inch = 80 feet, October 1941, Whitney & Bassett Architects &
Engineers, Hyannis, Mass.", recorded in the Barnstable County Registry of Deeds on December
14, 1945 in Plan Book 72, Page 51 (the Plan).
The Property is denoted as Lot 147 On the Plan. Presently, the property is improved with
two (2) sheds. However, the Town of Yarmouth archived documents assigned to this address
demonstrate that there has been, in the past, a dwelling unit, as well as other structures and
facilities, on this property.
I have attached several documents which evidence that the Property has been improved in
the past:
-1977 Rental Permit
-1981 evidence of a 2 bedroom cottage as noted on the Assessor's Field Card
-1983 percolation test
Page 1 of 3 Letter to Mark Grylls
10 Braddock Street, South Yarmouth, MA
-1987 plumbing permit
-2009 application for temporary electrical service
In addition, the field card from 1981 indicates that the structure located thereon at the time was
constructed in approximately 195 0.
I have represented at least 3 petitioners in the last 12 months before the Yarmouth Zoning
Board of Appeals with fact patterns similar to what is outlined herein. Specifically, I have been
able to secure a Special Permit to construct a single family dwelling on a previously improved
parcel at 43 Webster Road, West Yarmouth, MA (Decision 4868), 12 Town Brook Road, West
Yarmouth (Decision 4872) and at 9-11 Woodbine Avenue, West Yarmouth (Decision 4905),
copies of which are attached. The legal authority for each of these is the same and outlined
below.
It is my opinion that the owner of this lot can apply for a Special Permit from the
Yarmouth Zoning Board of Appeals pursuant to Bylaw Section 104.3.2 (2), for the reason that
the lot is not entitled to grandfathered status pursuant to Section 104.3.4. I am writing to
determine whether, based on the information presented herein, you concur.
Typically, and in order to analyze the lot as it pertains to Yarmouth Zoning Bylaw Section
104.3.4, I would provide title history to the property to determine if the "lot" was held in common
ownership with any contiguous lot at the time of, or since, the effective dates of increased bulk
requirements. However, my research and understanding of the principal of merger due to common
ownership is that it only applies to vacant lots, not developed lots, as of the date that the amendment
renders it non -conforming. In this case, there is ample evidence to determine that this property
once housed a single family dwelling, built in approximately 1950. Even today, there are two
sheds located on the property, both of which are old and decaying.
My research indicates that in at least one case, the Massachusetts Land Court determined
that for grandfathering purposes, a structure that would normally be considered "accessory" was
sufficient to remove a lot for the "vacant" category under c. '40A §6. In the case of Lacey v. Board
of Appeals of Gloucester (2008), the presence of a structure described as a garage or a shed was
held to be a structure that took the lot out of the vacant lot category and into the developed lot
treatment. "I find that the type of structure on a lot is irrelevant in determining whether the lot is
`vacant' for purposes of G.L. 40A §6, fourth par."
In another case in 2006, the Land Court held that an unoccupied trailer constituted a structure
sufficient to render a lot not "vacant" for zoning purposes, and the Appeals Court upheld that
decision in 2007, in Kibbe v. Town of Douglas. That Court held as follows:
"[a]n unoccupied dwelling would constitute a use on a lot", and in a footnote, the court
pointed out that "[t]he trailer could also be considered a "structure" in that it was
assembled at a fixed location using a combination of materials for the purpose of giving
shelter, irrespective of whether it was intended for residential or nonresidential use."
Kibbe, 14 LCR at 420 and fn. 8. It is clear from Kibbe, therefore, that a structure's
classification is irrelevant to whether a lot is "vacant."
Page 2 of 3 Letter to Mark Grylls
10 Braddock Street, South Yarmouth, MA
This case is instructive in many ways. First, the Court directs you to look at the definition of a
"Structure". According to Section 500 of the Yarmouth Zoning Bylaw, as Structure is:
STRUCTURE — A combination of materials assembled at a fixed location to give
support or shelter, or anything constructed or erected, the use of which requires a fixed
location on the ground, including but not limited to buildings, mobile homes,
swimming pools having a capacity of four thousand (4,000) gallons or more, piers,
jetties, signs, fences, radio antennas, and retaining walls. The word "structure" shall be
construed, where the context requires, as though followed by the words "or part or parts
thereof." For the purposes of the Sign Code (section 303), a sign is not to be considered
a structure.
Surely, the two sheds on the property are structures under the Yarmouth Zoning Bylaw. Second,
the Lacey case dispels any need to determine if a structure is principal or accessory, substantial or
not, or what the intended use of the structure was when constructed. Rather, the Lacey Court
merely requires a determination that a structure of some kind was on the property.
So I conclude that the existing presence of the two sheds, as well as the town records
indicating that a dwelling was located on the property since at least 1950, rendered the lot at 10
Braddock Street a developed lot. As such, I believe that it was not subject to the principals of
merger that would automatically render it part of the adjoining property merely due to common
ownership. The lot was not shown on a later plan as a single larger parcel, joined with an
abutting parcel. In the absence of evidence to the contrary, this appears to be a case where the
parcel has maintained its separate identity, before and after it became non -conforming.
If you agree to the above, it would be my opinion, going forward, that any alteration (or
replacement) of the current structures for a residential use would need only a Special Permit
under Zoning Bylaw Section 104.3.2(2). The Property is not a vacant lot entitled to
grandfathered status. But it is a lawfully pre-existing developed lot, entitled to treatment under
section 104.3.2 (2).
1�1
I would appreciate a written response, which will verify that the Property, if a Special
iit can be secured from the Zoning Board of Appeals, may be built upon. I thank you for your
and attention to this matter.
II
Cc: Christopher O'Connell
Mark O'Connell
Page 3 of 3 Letter to Mark Grylls
10 Braddock Street, South Yarmouth, MA
Town of Yarmouth
APPLICATION FOR PERMIT TO RENT AND/OR LEASE BUILDING
FOR DWELLING PURPOSES
I, John E• Sullivan hereby apply for a permit
to rent and/or lease my property at 10 Braddook St. So. Yarmouth, Ma'so.
No. Street- Village
Number of tenants (Maximum)
Total number of rooms 6 No. of bedrooms
Number of bathrooms 1
I have read and am familiar with the Yawn of Yarmouth Housing Space and tl$e By —Law as
supplied to me, the Town Anti —Noise By —Law, and the Sanitary Cade Regulation Article II
(minimum Standards for Human Habitation).
Datet April 26. 1977 (Owner) Signatwre:
Home address: 24 arrage Drive
Lincoln R.I. 02865
Home, talephone: 401- 728— 4974
Cape Address:
Phone:
Real Estate Agent:
(if any)
Pandisaio, Realtors
j Rfi. 28 go, YRxmouth.lfans, ,
For Office Use Only:
Square Footage_5 `�2� Licensed for er
H persons
Inspector's Signature:A,° �"� ` „_ Dater?'�_
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MAV_ a PERCOLATION TEST- LOC Time: 8:00
L.or 197 MAP
3�hDUse IO
Lot No./Street: LOT 147 - BRADDOCK ST., S.Y. Date: 3/2/83
Engineer:_S—,p,,c,�'Health Agent:
Expansion-Area:Yes: No: r Suitable/Subsurface Sewage:Yes:_No:—
Expansion Area Tested:Yes.:: No: Leaching Field: —Pits: Trenches:
If No —Why? Unsuitable: Why?
Well: Town Water: Subdivision/Owners Name: D. SLILL
Sketch: a `.
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Notes
-1:
2'
3'
4'
5'
6'
7'
8'
9'
10'
11'
12'
Water At:_Z, _Ft.
'Fee : 110..00
MASSACHUOETTS UNIFORM APPLICATION FOR PERMIT TO DO PLUMBING
(Print fr Type)
Mass.' Bate 7` �% 19 O
CY Permit 0 p�
Build Owner's
r Y~
Name
p Er �- Type of Occupancy:
New Renovation ❑ Replacement ❑
rIXTURES Plans
Submitted; Yes ❑ No
Y
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■■■■■■r■��■s■■■�■■r■■■■,
(Print or Type) ;
# %Check One: CertificatA
Installing Company NameUr
❑ Corp•
Address / rs ❑ partnership
-- - - — ❑ Firm/Company C---'
Business Tele ope�t Name of Licensed Plumber
1 hereby ecrtify Iha1 all of the dclails and lnformalion I have submitted (os catered) in ahiivc appliwinn are sfue and accrxalc to the hest 01 my
knowledge and that all plumbing work and inslallalinns pk:fjLmncd under Pesmil Issued for this appllcaliou will he In compliance with all pertinent pta.
t, visions of the Massachusetts Slate Plurnbing Code and Chapmt 142 of like Ceacial Liws.
APPROVED 1OFFICE USE ONLY]
Signature of Licensed Plumber
�o� ye of Plumbing License
License Number ❑ Master Journeyman
C.ammanweailh a/ Irlamachuiaf Official Use Only
Permit No. Eoct J e �1t�
~ elJepartmenf o�,}ir¢ �arvicaa
BOARD OF FIRE PREVENTION REGULATfONS Occupancy and Fee Checked
[Rev. 11071 leave blank
PLICATION FOR PERMIT TO PERFORM ELECTRICAL WORK
0 All work to be performed in accordance with the Massachusetts Electrical Code (MEC), 527 CMR 12.00
o (PLEE PRINT IN INK OR TYPE ALL INFORMATION) Date: W ,9�)o
11A
City or Town of: _)j)RMotjTN To the Inspecror of Wires:
Bpplication the undersigned gives notice of his or her intentionto perform the electrical work described below.
L' n (Street & Number) G 13IQADP9C,K S i
r.... ---
Q O fpe or Tenant t Telephone No.
Owne s Address Pd , 1093 #.0 i V v i" trap. d G L
t Is t1A ermit in conjunction with a building permit? Yes ❑ No ❑ (Check Appropriate Box)
Purpose of Building UtilityAuthorization No. J 7 )A013
Existing Service Amps / Volts Overhead ❑ Undgrd ❑ No. of Meters
New Service _6b` Amps );ta^ 1A9 a Volts Overhead 0 Undgrd ❑ No. of Meters
Number of Feeders and Ampacity
Location and Nature of Proposed Electrical Work: amp
Comnletinn nfthe fnllnwino tnhta rre s r ha ur i„a !7 r rAe t �., r rur -
No, of Recessed Luminaires
No. of Cell.-Susp. (Paddle) Fans
No. ofTotal
Transformers KVA
No. of Luminaire Outlets
No. of Hot Tubs
Generators KVA
No. of Luminaires
Swimming Pool Above Eln- ❑
o, o mergency g ng
rnd. rnd.
Batter Units
No. of Receptacle Outlets
No. of Oil Burners
FIRE ALARMS
No. of Zones
No. of Switches
No. of Gas Burners
No:of Detection an
Initiating Devices
No. of Ranges
No, of Air Cond. Tots
Tans
No, of Alerting Devices
g
No. of Waste Disposers
eatP
Totals:
.umbe[ons
o. o e - ontaine
Detection/Alerting Devices
No. of Dishwashers
Space/Area Heating KW
Local ❑ unicipal ❑ Other
Connection
No, of pryers
Heating Appliances KW,
Security systmS.7
No. of Devices or ulvalent
E
o. o Water KW
Heaters
o. o o. a
Signs Ballasts
Data Wiring:
No. of Devices or Equivalent
No. Hydromassage Bathtubs
No. of Motors Total HP
a ecommunications Wiring:
No. of Devices or Equivalent
OTHER:
0.-. Attach additional detail if desired, or as required by the Inspector of Wires.
43 Estimated Value of Electrical Work: g O __ (When required by municipal policy.)
Work to Start: L. ;? p Inspections to be requested in accordance with MEC Ride.] 0, and upon completion.
INSURANCE O RAGE: Unless waived by the owner, no permit for the performance of electrical work may issue unless
he licensee provides proof of liability insurance including "completed operation" coverage or its substantial equivalent. The
undersigned certifies that such cov rage is in force, and has exhibited proof of same to the permit issuing office.
CHECK ONE: INSURANCE M BOND ❑ OTHER ❑ (Specify:)
certify, under thepains andpenaldes ofperjury, that the information on this application is true and complete.
F FIItM NAME: VA1 L L t1 LIC. NO.. 215)
Licensee: DeA,1•t1jrt 1, SOU � Signature LIC. NO.:1}► Irl
(If applicable, enter "exempt' in the license number line.) Bus. Tel. No.:
Address, % Alt. Tel. No.:
*Per M.G.L. c. 147, s. 57-61, security work requires Dellfartment of Public Safety "S" License: Lic. No,
OWNER'S INSURANCE WAIVER: I am aware that the Licensee does not have the liability insurance coverage normally
required by law. By my signature below, l hereby waive this requirement. I am the (check one) ❑ owner ❑ owner's agent.
Owner/Agent
Signature Telephone No. L PERMIT FEE: $
Ir
h
WPS - Permit
WPS - Permit
Work Order Inform tion
Page 1 of l
Utility AuthIWO #: 01712013 Date: 04/21/2009 Company SANDRA HEBSHIE
Rep:
Report By: BAS 6 TEMP BRADDOCK ST OCONNELL WALTER
Status: ACTIVE Service: NEW Type: RES
Nature of Work: INSTALL OIH TEMP 50 AMP SERV TO POLE #125/2 --- ABOUT 70FT TO POA.
Service Information;
There is no Service Information.
Permit Information
Permit #: E09-868 Meters: 1 Reseal (Y/N): Y Date: 04/30/2009
Inspector: W10060 Description:
NSTAR Home WPS L000n WPS Helo Comments WO Requeal WPS News
t (a S. IT 60
Copyright 2003 NSTAR, 600 Boylston Street, Boston MA USA. All rights reserved. Reproduction in whole or In part of any graphics,
images, text or other content at this wets site must he granted by NSTAR, Boston, MA, USA. Unauthorized modification of any Information
stored at this site may result in criminal prosecution.
http;//www.nstaronline.comlapps/wps/wpsperrnit.cfm?Page=Permit&Unique=(ts_'2009-0... 4/30/2009
Bk 33714 Pgr101 #5229
01-22-2021 @ 02:20p
VCR[ -ail i, o_l
N 0 T TOWN OF YARMOUTHO T
A N BOARD OF APPEALS N
OFF IC IAL DECISI®NF F IC IAL
C O P Y C 0 P Y
N 0 T N 0 T
A N A N
FILED WITH T(t3 VPX 1ULERK: I ADEcember 15a020 F I C I A L
C O P Y C O P Y
PETITION NO: 4868
HEARING DATE: December 10, 2020
PETITIONER: James Igoe
PROPERTY: 43 Webster Road, West Yarmouth, MA
Map 29, Parcel 233
Zoning District: R-25
Title: Book 25169, Page 180
MEMBERS PRESENT AND VOTING: Chairman Steven DeVoung, Dick Martin, Richard
Neitz and Douglas Campbell
Notice of the hearing has been given by sending notice thereof to the Petitioner and all those owners
of property as required by raw, and to the public by posting notice of the hearing and publishing in
The Register, the hearing opened and held on. (be date stated above.
The Petitioner seeks a Special Permit pursuant to Zoning Bylaw §104.3.2, in order to construct a
single family dwelling on a pre-existing non -conforming lot currently improved with a garage. The
property is located in the R-25 Zoning District and is improved with a one story two car garage.
The lot actually consists of 2 lots, which together form the property in issue. The property
contains approximately 11,175 square feet. The garage is located approximately 6 feet from the
Northwest boundary and approximately 29.5 feet fi•om Webster Road. Based on Yarmouth
Zoning Bylaw §203.3, the front yard setback for this lot need only be 27 feet based on the
averaging calculation of 30% of the depth of the lot, which in this case is 90 feet. The
neighborhood is residential and is comprised of one-story and two-story single family homes, on
lots generally averaging square footage half the total of this property.
In June of 2020, a Lot Inquiry Form was submitted to the Building Department to determine if
the lot was buildable. Assistant Building Commissioner James D. Brandolini determined that the
lot was not buildable for the reason that it had merged with the abutting lot to the rear at 48
Brewster Road. In the fall of 2020, additional information was submitted to the Building
Department which evidenced that this lot, having been improved with the garage prior to the
zoning change in 1972, was no longer a "lot", for purposes of 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. Based on the new evidence, the Building
A TRUE COPY ATTEST.
JA{I 6021 _ �r
1U4
tv l TOWN CLERK
Bk 33714 Pg102 #5229
Department amended its M-169 Jcision and found that a "SVe9aPPermit is required to construct a
single family house" on thfA10V A N
O F F I C I A L O F F I C I A L
The proposal is to leavl! flit FarWge in its present locatiren,OarPd ffi construct a two story single
family dwelling, consisting of 3 bedrooms. The dwelling will be located completely within the
building envelope, and vAll Voffiply with all setbacks, lot bb*rAge requirements, and the height
restriction. The lot coveraft Will be 14.5% and the height ofthN new structure will be 27 feet.
O F F I C I A L O F F I C I A L
Although two abutters pmsed qumtions to the applicant, 00®ppod ion to the project was noted.
The Board was satisfied and agreed that the proposal would not be substantially more
detrimental to the neighborhood, zoning district, or Town than the current state of the project,
nor create any undue nuisance, hazard or congestion, based on the fact that the new structure
would meet all current bulk requirements of the Zoning Bylaw and would host an allowed use.
Accordingly, a Motion was made by Mr. Martin, seconded by Mr. Campbell, to grant the Special
Permit, as requested, without conditions. The members voted unanimously in favor of the
Motion. Roll call vote was taken on this Motion with the following results: Mr. Martin- in
favor; Mr. Neitz-in favor; Mr. Campbell — in favor; and Mr. DeYoung — in favor. Accordingly,
the Special Permit was approved on a 4-0 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 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)
Qt
Steven S. DeYoung, airman
Appeal H4868
Bk 33714 Pg103 #5229
N 0 T N 0 T
COMMbN�6,v�NWEALTH OFpMASSAChUSETTS
O F C O P OF YAlil�l &( g I A L
BOARD OF APPEALS
N 0 T N O T
A N A N
O F F I C I A L O F F I C I A L
C O P Y C O P Y
Date: January 5, 2021
Certificate of Granting of a Sttecial Permit
(General Laws Chapter 40A, section 11)
The Board of Appeals of the Town of Yarmouth Massachusetts hereby certifies that a Special
Permit has been granted to:
.lames Igoe
40 Skeehan Street
Somerville, MA 02143
Affecting (lie rights of the owner with respect to land or buildings at: 43 Webster Road, West
Yarmouth. Map & lot#: 0029.233; Zoning District: R-25; Book/Page: 25169/180 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 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.
Qe
Steven S. DeYo , Chairman
A TRUE COPY ATTEST:
JAB •-fi 7071 &Y'a.
UW�lt I TOWN CLERK
Bk 33714 Pg104 #5229
N O T N O T
A N A N
TEONAOF YAFRMOLUTH
C O P Y C O P Y Tom
1146 ROUTE 28, SOUTH YARMOUTH, MASSACHUSETTS 02664-4451 Clerk
'IrlelohWne (508) 398-2231 Ext. 128-4q,Fkk (T08) 398-0836
A N A N
O F F I C I A L O F F I C I A L
C O P Y C O P Y
CERTIFICATION OF TOWN CLERK
I, Mary 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 #4868 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 Maslowski
Town Clerk
JAN 4
A TRUE COPY ATTEST.
�►h!:l�fiw!1.�•:�'1l1'��ilC�l�i�JJ<[a��le7:i
JOHN F. HFADE, REGISTER
BARNSTABLE COUNTY REGISTRY OF DEEDS
RECEIVED 6 RECORDED ELECTRONICALLY
Bk 33827 Pg350 #13211.
N 0 T TOWN OF YARMOU�HI T
A N BOARD OF APPEAL
SA N
O F F I C I A L DECISI(9N F F I C I A L
C 0 P Y C O P Y
N O T N U T
A N A N
FILED WITH TOI)V9 (TMIR: I AF&ruary 2, 2ftIF F I C I A L
C O P Y C 0 P Y
PETITION NO:
HEARING DATE:
PETITIONER:
4872
January 28, 2021
Kenneth P. Tomasian
PROPERTY: 12 Town Brook Road, West 'Yarmouth, MA
Map 37, Parcel 90
Zoning District: R-25
Title: Book 9729, Page 140
MEMBERS PRESENT AND VOTING: Chairman Steven DeYoung, Sean Igoe, Dick Martin,
Tom Baron, and Tim Kelley.
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, Clio hearing opened and held on the date stated above.
The Petitioner seeks a Special Permit pursuant to Zoning Bylaw §1043.2, in order to construct a
single family dwelling on a pre-existing non -conforming lot which is currently unimproved. The
property is located in the R-25 Zoning District and is currently a bare lot containing 13,095
square feet. The property has been the home of the former Yarmouth Police Station and the
Yarmouth American Post, as well as the polling place for Precinct 4. The building at that time
contained approximately 2,268 of square feet, and the front five feet of the building sat in the
roadway. Relief was requested from this Board in 1983 (Decision 1948) to remove a portion of
the encroaching building, and renovate the remaining portion to house a more modern Legion
Post. Although relief was granted, no work was ever done in furtherance of this relief.
In 1985, a request to remove the encroaching portion of the building and to renovate the
remaining portion of the structure into 4 professional offices was made to this Board (Decision
2188). This relief was granted, but again, never exercised. A new application was filed in 1987
(Decision 2498) to remove the entire now dilapidated building, and to construct a new large
building, in need of many dimensional and parking requirements, which request was denied.
Following a successful appeal to the Barnstable Superior Court, a demolition permit was granted
and the building was removed from the site. A building permit was then issued for the
construction of the proposed building, and a foundation was installed in the fall of 1989.
However, the Yarmouth Building Department stopped further work from proceeding based on
the discovery of a stivetural crack in the foundation. After resolving this issue, and after
A TRUE COPY ATTEST.
Y
FEB 2 4. ati
CMM I CMC I TOWN CLERK
Bk 33827 Pg351 #13211
N O T N 0 T
backfilling the foundationAcWshruction ceased altogetherAbqqed on financial considerations.
Title to the propei6y parpe #ntt tl�e jkretent owner �y # fV•ejloVrg dxc(Lin 1995. Although the
1989 foundation remainfCbigiq a+the site, no further conert6tipn+as been done.
A Lot Inquiry Form was b� i d to the Building Departinei ►i� 017, and it was determined at
that time that the lot was ifd- le as long as it contained lWst 10,000 square feet of upland,
could support of Olive �,5 �e�tic� r. stem, and co�lc s i y Pvsxrytion regulations. The
Conservation Commiss► n 6ot�fi► neck in 2017 that they pa -is le over this property,
and a successful percala ion test was secured in the same year. Petitioner filed a second Lot
Inquiry Form in September of 2020, the result of which was a referral to this Board for a Special
Permit,
The Petitioner proposes to construct a one-story, two bedroom single family dwelling, which
structure will comply with all the existing dimensional requirements of the Zoning Bylaw. Lot
coverage will be at 7% and a new Title 5 Septic System, requiring no Variances, will be
installed.
Because this was a developed lot prior to the zoning change in 1988, it is classified as a legally
pre-existing non -conforming lot, and is grand fathered.
No abutters appeared either in favor or against the project. The Board was satisfied and agreed
that the proposal would not be substantially more detrimental to the neighborhood, zoning
district, or Town than the current state of the project, nor create any undue nuisance, hazard or
congestion, based on the fact that the new structure would meet all current bulk requirements of
the Zoning Bylaw and would host an allowed use.
Accordingly, a Motion was made by Mr. Igoe, seconded by Mr. Kelley, to grant the Special
Permit, as requested, without conditions. The members voted unanimously in favor of the
Motion.
Roll call vote was taken on this Motion with the following results: Mr, Igoe -in favor; Mr.
Martin- in favor; Mr. Baron -in favor; Mr. Kelley — in favor; and Mr. DeYoung — 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 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)
�E)a
Steven , DeYoung, Odirman
Bk 33827 Pg352 #13211
N O T N O T
A N A N
Toc- 6F YAkifyObTH
Town
1146 ROUTE N,BOUTH YARMOUTH, MASSAOCMJSETTS 02664-4451 Clerk
Telgpljqne (508) 398-2231 Exl. 1285, 1axO08) 398-0836
O F F I C I A L O F F I C I A L
C O P Y C O P Y
CERTIFICATION OF TOWN CLERK
I, Mary 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 #4872 that no notice of
appeal of said decision has been filed with me, or, if such appeal has been fled it has been
dismissed or denied, All appeals have been exhausted,
G
Mary A. Maslowski
Town Clerk
FEB 2 4.2021
A TRUE COPY ATTEST.
. r9 f.�7rkd�a
c TOWN CLEM<
FEB 2 4 2021
Bk 33827 Pg353 #13211
N 0 T N o T
A N A N
o 9WM0NWPBALTH OFMASSACHUSE'l TS
c o P TOWN OF YARMO UTtr Y
BOARD OF APPEALS
N O T N O T
A N A N
O F F I C I A L O F F I C I A L
C O P Y C O P Y
Appeal #4872 Date: February 23, 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
Permit has been granted to;
Kenneth P. Tomasian
96 Greenwood Avenue
Hyannis, MA 02601
Affecting the rights of the owner with respect to land or buildings at: 12 Town Brook Road, South
Yarmouth. Map & lat#: 0037.90; Zoning District: R-25; Book/Page:9729/140 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 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.
�t
Leven S. De ng, Chairman
A TRUE COPY ATTEST
ISTER
FEB 2 ZH2COUNTYGREGISTRY OF DEEDS
RECEIVED 6 RECORDED ELECTRONICALLY
Bk 34424 Pg183 #56956
08-30-2021 @ 02:21p
N Q T TOWN OF YARMOUItEp T
A N BOARD OF APPEAL N
OFFICIAL DECISIOW F I C IAL
C O P Y C O P Y
N O T N O T
A N A N
I+ILED WITH T@" CLERK:I AJfiIy 14, 20210 F F I C I A L
C O P Y C O P Y
PETITION NO:
HEARING DATE:
PETITIONER:
4905
July 8, 2021
U
Felix Torres and Teodora 1. Dhnitrova-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, Tom
Baron and Jay Fraprle
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 § 104.3.2, in order to construct a single family dwelling on
a pre-existing non -conforming lot, or in the alternative, a Variance to allow for the 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 99 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 ace 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 ATTEST:
.
�k':Ufkp_'�''` -f�tN��%2fi
Bk 34424 PgI64 #.56956
r
Since that time, thN pRbpWrty has also been the subjdat 6f Rveral Lot Inquiries with the
Building Department, begimfnihk with two in 1999, and one bPy tie applicants in 2017. The
Building Departm6btJfiaFddte€WKcde th5L the lot wa tit bbilfdaGleln badla case, but did note the
presence of the foundati6h on 1helot, and that it had beencirhae Binge the early 1970s.
In May of 2021, cursetlfor the Petitioners wrote tgglaweT D. Brandolini, the then -
Deputy Building CommissWnn for the Town of Yarmouth, WUutlined his client's position that
based on this informi*opr, alSrscifalRea tit from thgozPnin J3ogrdiofpQ►ppeals is all that would
be nceded'in order to coWfymcpa Vingle family dwelling tl erVn arfd 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 Ittree forms of relief were requested for the fact that if this Board
upholds the Decision of the Building Comrunissioner, 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 Pernvt,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 [lie 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
StfUcture, which created grandfathered rights in these lots. Having concluded -that the Decision
of the Building Commissioner would need to be overturned, the Board then took 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 mah 4 Mr. Martin, seconded by MN Mr6b, to grant the Special Permit
as requested, with the condiNoN that Lots 98 and 99 are com%nM by way of an Approval Not
Required Plan, to R c5nd5rAd Cndlreboikied in the MratableIC(Ainly Registry of Deeds. The
members voted unanimooslq Wfafor of the motion. C 0 P Y
The applicant moved and wwallowed to withdraw the regijjst fotCrelief in the form of a
Variance, as it was the conAnNs of the Board that no such rpjiq4 was needed. The members
voted unanimousl}pinEfayorpfOcinlgttign. O F F I C I A L
C O P Y C O P Y
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 Yarmouth, do hereby certify that 20 days have
elapsed since the filing with me of (lie above Board of Appeals Decision #i4905 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 ... .
Town Clerk AUG 2.6 2021
AJBUE COPY ATTEST,
TOWN CI_EFtK
AUG 2 6 2021
Bk 34424 Pg186 #56956
COMN40NWEALTH OF MASSI CT-VJSETTS
A N TOWN OF YARMOUTHN
O F F I C IMARD OF APMALS C I A L
C O P Y C O P Y
N 0 T
N O T
Appeal #4905 DIWPAugust 5, 2021 A N
O F F I C I A L O F F I C I A L
C CW fifi&1e of Granting of a S.aMlPeYmit
(General Laws Chapter 40A, section 11)
The Board of Appeals of the Town of Yarmouth Massachusetts hereby certifies that a Special Permit has been
granted to.
Felix Torres and Teodova 1. Diniitrova-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#: 3792 & 37.93; Zoning District: R-25; Book/Page: 29437/150 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
filed.
The Board of Appeals also calls to the attention of the owner or applicant that General Laws, Chapter 40A,
Section I (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
RXQEIVED 6 RECORDED ELECTRONICALLY
A TRUE COPY ATTEST
�P-�* IIUW TOWN CLERK
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