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HomeMy WebLinkAboutNarrative & Supporting Documents. MORIARTY TROYER &MALLOY LLC ILVAN11 ATTORNEYS AT LAW Kimberly A. Bielan Direct Dial: (781) 817-4607 kbielan@lawmtm.com Admitted in MA & RI December 10, 2021 Steven DeYoung, Chairman Zoning Board of Appeals Yarmouth Town Hall 1146 Route 28 South Yarmouth, MA 02664 Re: NOTICE OF APPEAL Subject Property: 181 South Street (Unit 2), South Yarmouth, Massachusetts 02664 Petitioner: Lisbeth N. Kamborian, individually and as Trustee of the LNK Condominium Trust Dear Chairman DeYoung & Members of the Yarmouth Zoning Board of Appeals: Please be advised this office represents the Petitioner, Lisbeth N. Kamborian, individually and as Trustee of the LNK Condominium Trust ("Kamborian"), who hereby files this appeal with the Zoning Board of Appeals ("Board") pursuant to G.L. c. 40A, §§ 8 & 15 and in accordance with Town of Yarmouth Zoning Bylaw ("Zoning Bylaw"), § 102.2.3. Kamborian appeals the November 10, 2021 determination of the Director of Inspectional Services/Building Commissioner, Mark Grylls, in which he declined to enforce said Zoning Bylaw with respect to the property located at 181 South Street (Unit 2), South Yarmouth ("Subject Property"). (A true and accurate copy of Mr. Grylls's determination accompanies this filing). Mr. Grylls's determination was sent in response to Kamborian's September 29, 2021 request for zoning enforcement at the Subject Property. Kamborian is requesting that the Board overturn Mr. Grylls's determination and refusal to enforce the Zoning Bylaw with respect to the Subject Property. Specifically, Mr. Grylls's statement to the effect that the thirty (30) day appeal period had elapsed is irrelevant, where Kamborian did not learn of the issuance of Building Permit No. 21-006774, which authorizes the construction of a "14 x 17 storage shed" on the Subject Property ("Building Permit"), until construction of the subject shed commenced in September 2021. In such circumstances, it is well -settled that G.L. c. 40A, § 7 permits a party to seek enforcement of the Zoning Bylaw. Further, Mr. Grylls's determination that, because the special permits concerning the Subject Property do not expressly prohibit the construction of accessory structures, they are necessarily permissible, is in error. For the reasons set forth herein, zoning relief from this Board is necessary as a precondition to undertaking the construction of the shed that has been authorized by the Building Permit on the Subject Property. As there is a demonstrated violation of the Zoning Bylaw and previous decisions of this Board occurring on the Subject Property, Kamborian respectfully requests that the Board overturn Mr. Grylls's refusal to enforce the One Adams Place, 859 Willard Street, Suite 440, Quincy, MA 02169 - 781-817-4900 ■ www.lawmtm.com Boston ■ Falmouth ■ Quincy Yarmouth Zoning Board of Appeals December 10, 2021 Page 2 of 7 Zoning Bylaw and order the revocation of the Building Permit and removal of the accessory structure. FACTUAL BACKGROUND Kamborian and her family have had an ownership interest in the property that now comprises the LNK Condominium ("Condominium"), of which the Subject Property is part, dating back to 1963. The property was formerly known and numbered as 179, 180, 181 and 182 South Street and consisted of land on both the west and east side of South Street. The property comprising the Condominium consists of approximately 25,910 sq. ft., which is nonconforming and undersized in the R-40 Zoning District in which it is sited (requiring minimum lot size of 40,000 sq. ft.). The property is situated between South Street and Run Pond in South Yarmouth, and it has historically been improved with two single-family dwellings and a one-story, wood - frame garage. In or around 2012, Kamborian decided to submit the property to the provisions of G.L. c. 183A, § I et seq. and create a condominium. To facilitate the submission of the land to condominium status, Kamborian required two special permits from this Board. First, by Decision No. 4389 filed with the Town CIerk on May 8, 2012, the Board granted a special permit pursuant to Zoning Bylaw § 104.3.5, "so as to allow for recombining of two lots split in 2005 back to one lot." (A true and accurate copy of Decision No. 4389 accompanies this filing). In Decision No. 4389, the Board expressly found that "[t]here will be no change to the three existing structures or uses on the land." Second, by Decision No. 4390 filed with the Town Clerk on May 8, 2012, the Board granted a special permit pursuant to Zoning Bylaw § 104.4.1 and Use Regulation Schedule § 202.5, A1, Q2 and Q3, "so as to allow for the conversion of the two existing dwellings and one detached garage building at the combined property to the condominium form of ownership ...." (A true and accurate copy of Decision No. 4390 accompanies this filing). In Decision No. 4390, the Board of Appeals expressly found that "[t]here will be no change to the three existing structures or uses on the land." Subsequent to obtaining the above -identified special permits, on April 9, 2015, Kamborian submitted the property to condominium status by recording a Master Deed, which created the Condominium that is comprised of three (3) units and their respective exclusive use areas. (A true and accurate copy of the Condominium Site Plan accompanies this filing). As is relevant to your review of this matter, the First Amended and Restated Master Deed of LNK Condominium ("Master Deed"), recorded with the Barnstable County Registry of Deeds in Book 29078, Page 4, provides as follows with respect to accessory structures: Subject to the provisions set forth below, each owner or occupant shall have the right ... to place customary outdoor furniture, but no buildings or structures, within their Exclusive Use Area, except as for Units 1 and 2, respectively, for future attached decks or ` Kamborian owns the property located at 177 South Street (Unit 3), which is part of the Condominium, and the property located at 180 South Street. Yarmouth Zoning Board of Appeals December 10, 2021 Page 3 of 7 accessory structures if allowed by and subject to the Yarmouth Zoning By -Law and all other applicable laws, codes, rules and regulations. (Master Deed, § 5(B)) (emphasis added), Thus, Kamborian recognizes that, pursuant to the Master Deed, the owner of the Subject Property may construct an accessory structure within their attendant exclusive use area, so long as it is in accordance with applicable provisions of the Zoning Bylaw. On May 17, 2016, Kamborian conveyed the Subject Property (i.e., Unit 2 of the Condominium) to Bahige Asaker by Quitclaim Deed recorded with the Barnstable County Registry of Deeds in Book 29656, Page 338. Mr. Asaker's deed expressly provides that it is conveyed "subject to and with the benefit of the obligations, restrictions, rights and liabilities contained in General Laws Chapter 183A, the aforesaid Master Deed and the LNK Condominium Trust ...." (A true and accurate copy of the Quitclaim Deed accompanies this filing). Subsequent to taking title to the Subject Property, Mr. Asaker has undertaken certain renovations to Unit 2, including remodeling a bathroom, replacing kitchen cabinets, and replacing a second -floor balcony. Such work was undertaken pursuant to Building Permit No. 17-001366.2 After observing construction activities on the Subject Property in or around September 2021, Kamborian inquired with the Yarmouth Building Department to ascertain whether any permit had been issued for the site. Upon making such inquiry in September 2021, Kamborian learned that, on or about May 21, 2021, Mr. Asaker was issued the Building Permit. Based upon information accessible on the Yarmouth Building Department website, it appears that the application for the Building Permit erroneously identifies that the Condominium is sited within the R-25 Zoning District (requiring a minimum lot size of 25,000 sq. ft.).3 (A true and accurate copy of the application details available on the Building Department website are appended hereto as Attachment A). Thus, the Building Permit application improperly suggests that the Condominium property is compliant with the Zoning Bylaw, when it is actually undersized for the R-40 Zoning District. Further, based upon observations made of the Subject Property, and 2 Subsequent to the close out of said building permit, Mr. Asaker impermissibly enclosed the area beneath the balcony to create an interior room. Upon information and belief, such work was unauthorized by the Yarmouth Building Department. Additionally, it was in violation of the First Amended and Restated LNK Condominium Trust, which requires Trustee consent to "exterior structural addition, alteration or improvements" in and to Condominium units, including Unit 2. 3 The Yarmouth Building Department website also has certain other anomalies with respect to the application for the Building Permit. Despite the fact it states that "the homeowner" has submitted the application for Workers Compensation Insurance purposes, it identifies the Applicant as "Madeline Laird." It also incorrectly identifies Mr. Asaker's address as 185 South Sea Avenue, West Yarmouth, which address is associated with one Harry Laird 11I. Perhaps uncoincidentally, the Laird property at 185 South Sea Avenue is located in the Town's R-25 Zoning District, which may explain the discrepancies on the face of the application. Yarmouth Zoning Board of Appeals December 10, 2021 Page 4 of 7 without means to confirm same, Kamborian is concerned that the accessory structure may be constructed in violation of the dimensional regulations of the Zoning Bylaw, including but not limited to within the front yard setback of thirty (30') feet, and the terms and provisions of the Building Permit. As of the date of Kamborian's request for enforcement on September 29, 2021, the accessory structure remained in a state of construction, as shown in the photograph appended hereto as Attachment B. ARGUMENT Kamborian properly and timely pursued enforcement pursuant to G.L. c. 40A, § 7 seeking revocation of Building Permit, where she had no actual knowledge or reason to know of the issuance of such permit until construction commenced in or around September 2021. The Building Permit was issued in violation of the Zoning Bylaw, as the Condominium property is nonconforming and subject to special permit relief. Further, even if the accessory structure was properly authorized, it appears that Mr. Asaker has undertaken to construct it in a manner that fails to conform to the Zoning Bylaw's dimensional requirements and the provisions of the Building Permit, I. Kamborian's Request for Zoning Enforcement Is Timely, Where She Did Not Learn of the Issuance of the Building Permit Until September 2021. While it is unclear if Mr. Grylls's determination is premised upon his assessment that Kamborian's request for enforcement is untimely, his passing reference to the 30-day appeal period having lapsed necessitates response. It is well -settled that, where a person has no actual knowledge or reason to know a building permit has issued, they are not required to appeal such permit within the 30-day appeal period and may, instead, pursue enforcement pursuant to G.L. c. 40A, § 7. Here, Kamborian's request for enforcement brought pursuant to G.L. c. 40A, § 7 is timely and not barred, as she filed the request forthwith upon learning of the issuance of the Building Permit following observations of the shed's construction in September 2021. In Connors v. Annino, 460 Mass. 790 (2011), the Supreme Judicial Court considered the appropriate administrative procedure that one must pursue when they are aggrieved by the issuance of a building permit to another person. Citing to the Appeals Court's decision in Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 (208), the SJC held that "where the aggrieved parry has adequate notice of the building permit's issuance, he or she is required to appeal to the appropriate zoning board of appeals within thirty days of the permit's issue date under G.L. c. 40A, §§ 8 & 15" and cannot pursue the alternative enforcement procedures contained in G.L. c. 40A, § 7. Connors, 460 Mass. at 791 (emphasis added). However, the SJC expressly noted that a party may pursue an enforcement action pursuant to G.L. c. 40A, § 7 to challenge a building permit in "appropriate circumstances," including "if the aggrieved party can establish that he or she was without adequate notice of the order or decision being challenged." Id. at 797-798, citing Fitch v. Bord of Appeals of Concord, 55 Mass. App. Ct. 748, 751 (2002), citing Vokes v. Avery W. Lovell, Inc., 18 Mass. App. Ct. 471, 480-483 (1984) (§ 7 request for enforcement procedure created independent avenue to challenge building permit, because if appeal within thirty days of issuance under § 15 were sole remedy, aggrieved party Yarmouth Zoning Board of Appeals December 10, 2021 Page 5 of 7 without notice in thirty -day window would be foreclosed from relief); Gallivan, 71 Mass. App. Ct. at 857 ("The availability of a request for enforcement answers the potential unfairness of holding an aggrieved party to a thirty -day appeal period where the permit recipient can foreclose review by simply taking no action under the permit for thirty days."). 1n the instant matter, Kamborian timely pursued enforcement pursuant to G.L. c. 40A, § 7, where she did not learn of, and had no reason to inquire about, the issuance of the Building Permit for the Subject Property within the Building Permit's 30-day appeal window. Neither the Zoning Act nor the Zoning Bylaw impose upon a neighboring property owner an obligation to monitor the Building Department's files to ascertain whether any permits have been issued. Here, while the Building Permit was issued on or about May 21, 2021, construction of the shed did not commence until September 2021. Mr. Asaker did not provide notice to neighboring property owners, and no site activities commenced within 30 days of the Building Permit's issuance. Thus, Kamborian had no actual knowledge of, and no duty to inquire whether, any permit had issued for the Subject Property. Upon observing the construction activities on the Subject Property, Kamborian diligently contacted the Building Department, learned the Building Permit had been issued in May 2021, and engaged counsel to pursue an enforcement action on her behalf. Indeed, Kamborian's request for enforcement, which was filed September 29, 2021, demonstrates by the inclusion of a contemporaneous photograph that the accessory structure remained under construction at that time. For the reasons articulated in both Connors and Gallivan, Mr. Grylls's statement that the 30-day appeal period for the Building Permit had lapsed is irrelevant and does not preclude Kamborian's enforcement request, as G.L. c. 40A, § 7 provides an alternate means to seek revocation of a building permit where notice of such permit is lacking.4 II. Zoning Relief Is Required to Authorize the Construction of the Shed on the Subject Property. Mr. Grylls's determination to the effect that, because the special permits do not expressly prohibit the construction of accessory structures, such structures are necessarily permissible wholly ignores the requirements of the Zoning Bylaw and the ramifications of the relief previously granted by the Board. As the Subject Property is preexisting nonconforming as to lot size, the construction of a new accessory structure is prohibited. Moreover, this Board granted special permit relief based upon the maintenance of the existing site conditions; as the construction of the shed alters such conditions in a matter that contravenes that contemplated by the Board at the time it rendered its decisions, zoning relief is required. Mr. Asaker is not entitled to the Building Permit in the absence of zoning relief. As set forth herein, the Condominium property (of which Mr. Asaker's Subject Property is only a portion) is nonconforming and undersized in the R-40 Zoning District. Section 104.3.2 of the ' As Kamborian's request for enforcement was instituted within months of the Building Permit issuing, the six (6) and ten (10) year statutes of limitation contained within G.L. c. 40A, § 7 are clearly inapplicable. Yarmouth Zoning Board of Appeals December 10, 2021 Page 6 of 7 Zoning Bylaw, "Change, Extension or Alteration," provides, in relevant, part as follows concerning nonconforming lots: [L]awfully pre-existing single-family and two-family structures, and their accessory structures, located on non -conforming lots, may be altered, extended or razed and replaced ... . (Zoning Bylaw, § 104.3.2(1)) (emphasis added). It follows that preexisting structures (including accessory structures) on nonconforming lots may be modified as of right so long as certain conditions are satisfied, and, if said conditions are not satisfied, a special permit must be obtained from the Board. However, pursuant to the plain and unambiguous language set forth in § 104.3.2(1), the Zoning Bylaw does not permit the construction of new structures — such as the accessory structure authorized by the Building Permit in this circumstance — on nonconforming lots. As the accessory structure is a new structure and does not constitute an alteration, extension or replacement of an existing accessory structure, it may not be constructed on the Subject Property in the absence of zoning relief, which Mr. Asaker has not obtained. Additionally, and as identified herein, the Condominium project was authorized pursuant to two special permits issued by this Board. Each of those special permits (Decision Nos. 4389 and 4390) expressly finds that "[t]here will be no change to the three existing structures or uses on the land." Such findings are indicative of the Board's understanding that the structures on the Condominium property would remain the same upon its submission to the provisions of G.L. c. 183A. The Building Permit, thus, purports to authorize the construction of a new accessory structure as of right and in contravention of such special permits. As there are extant special permits controlling the construction and use of the structures on the Condominium property, any modification to, or increase in number of, the structures — including upon the Subject Property — cannot be undertaken as of right. Further, even if the Building Permit was properly issued notwithstanding the fact the Condominium property is nonconforming and there are special permits relating to the Subject Property, Kamborian is concerned construction of the accessory structure is inconsistent with applicable setbacks in the Zoning Bylaw and the dimensions authorized by the Building Permit — a concern which Mr. Grylls failed to respond to.' With respect to accessory structures less than 150 sq. ft. and single story, Zoning Bylaw § 203.5(E) provides as follows: Side and rear yard setbacks for accessory buildings contained one hundred fifty- (150) square feet or less and single story, shall be six (6) feet in all districts, but in no case shall 5 Kamborian anticipates that Mr. Asaker will attempt to rely upon the preexisting nonconforming front -yard setback of the Unit 3 structure in support of his position that he may construct the accessory structure closer than the 30 ft. front -yard setback required under the Zoning Bylaw. However, Mr. Asaker cannot rely upon such preexisting nonconformity as he is constructing a new structure and is not altering, extending or replacing an existing structure. (See Zoning Bylaw § 104.3.2(1)). Yarmouth Zoning Board of Appeals December 10, 2021 Page 7 of 7 said accessory buildings be built closer than twelve (12) feet to any other building on an adjacent parcel. (Zoning Bylaw, § 203.5(E)). Not only would the accessory structure authorized by the Building Permit not qualify for such reduced setbacks as it is 238 sq. ft., but the note to the Table of Dimensional Regulations does not set forth a modification to the front -yard setback for accessory structures in any event. Kamborian is concerned, based upon observations made of the Subject Property, that the accessory structure is being constructed closer than 30 ft. to the front property line on South Street.6 Additionally, the structure appears to be larger than 14 ft. by 17 ft., and thus violative of the Building Permit. As Mr. Asaker appears to be constructing the accessory structure in a manner violative of the dimensional regulations of the Zoning Bylaw and the terms of the Building Permit, the Building Permit should be revoked, and he should be ordered to remove the offending structure. Mr. Grylls's determination offers no conclusion as to the conformance of the accessory structure with respect to the provisions of the Building Permit. On the basis of the foregoing, Mr. Asaker was required to obtain zoning relief in order to construct the accessory structure on the Subject Property. It follows that, in the absence of such relief, the Building Permit was improperly issued. CONCLUSION For the foregoing reasons, Kamborian respectfully requests, in accordance with G.L. c. 40A, §§ 8 & 15 and Zoning Bylaw § 102.2.3, that that the Board overturn Mr. Grylls's refusal to enforce the Zoning Bylaw and order the revocation of the Building Permit and removal of the accessory structure on the Subject Property. Thank you for your time and consideration of this matter. Sincerely, i9�� Kimberly A. Bielan 6 Without undertaking further analysis, it is unclear whether the construction of the accessory structure renders the Condominium property nonconforming (or more nonconforming) with respect to any additional setback. Kamborian expressly reserves her right to advance arguments to such effect. Kamborian also notes that, while technically on the same lot as the Unit 3 structure, the close proximity of the new accessory structure to her garage is contrary to the intent of the Zoning Bylaw, which requires buildings to be at least twelve (12') feet apart. The close proximity of the structures raises safety concerns, including but not limited to what may happen in the event one structure catches fire. EXHIBIT A Logged in as: Kimberly Bielan Collections(0) Reports (1) W Account Managem, Welcome to the Town of Yarmouth's online permitting websitel Search... Home Buiirliog Board Of Health Committees Create an Application Search Applications Record BLD-21-006774: 1 & 2 Family Dwelling Record Status: Issued Expiration Date: 11/21/2021 Record Info - Payments v Custom Component Work Location 181 South Street t1�a 5 OU -Tld Record Details Applicant: Project Description: 181 South Street -Alteration Add to coil LAIRD MADELINE Alteration -build 14 x 17 storage shed- (508-479-4448) WEST YARMOUTH, MA, 02673 Mobile Phone:5084794448 dasaker@verizon.net Owner: Asaker Bahige 185 SOUTH SEA AVE WEST YARMOUTH MA 02673 wMore Details W Additional Information Job Value($): Construction Type: $7,000.00 V B C) Application Information TYPE OF IMPROVEMENT Alteration: Yes WORKERS COMPENSATION INSURANCE Workers Compensation Insurance: I am the homeowner ESTIMATED CONSTRUCTION Building: 7000.00 ADDITIONAL INFORMATION Total Job Cost: 7000 BUILDING CHARACTERISTICS Principle Type of Frame: Wood ZONING INFORMATION Zoning District: R-25 Total Land Area: 25000 BUILDING SETBACKS Front yard required: 30 Side yard required: 15 Rear yard required: 20 CJ Application Information Table SITE IMPACT REPORT Type: Zoning Features Present: Zoning: R-25 -- Maximum Building Coverage: 25 -- Minimum Frontage: 150 -- Minimum Lot Size: 25000 -- Maximum Lot Coverage: 25 -- Minimum Yard Front: 30 -- Minimum Yard Side: 15 -- Minimum Yard Rear: 20 Ordinances: Residential Type: Wind Borne Debris Zone Features Present: Town: Yarmouth Ordinances: Your parcel is in a Wind Borne Debris Zone B Parcel information Parcel Number: Block: 017.95.1 95.1 Book: Page: 2847 309 Parcel Area: 39204 EXHIBIT B