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Home My WebLink About02-08-22 Opposition Letter to BoardGELERMAN AND CABRAL, LLC ATTORNEYS AT LAW 30 WALPOLE STREET NORWOOD, MA 02062 RICHARD A. GELERMAN MICHAEL B. CABRAL JEFFERY D. UGINO TESSA L. MANION SUSAN M. BENHAM STEPHEN T. ALLEN SHEILA E. GRANT MICHAEL B. CABRAL MCABRAI,6%GELERMANCABRAL.COM VIA FEDERAL EXPRESS Town of Yarmouth c/o Zoning Board of Appeals 1146 Route 28 South Yarmouth, MA 02664 TELEPHONE (781) 769-6900 FACSIMILE (781) 769-6989 ADDITIONAL OFFICES 611 MAIN ST., #303, WINCHESTER, MA 01890 BOSTON (BY APPOINTMENT) MEDFORD (BY APPOINTMENT) February 8, 2022 Re: Opposition to Appeal 181 South Street, South Yarmouth, MA 01908 Dear Members of the Zoning Board of Appeals: This firm serves as counsel to Bahige Asaker, owner of the property located at 181 South Street, Unit 2, in South Yarmouth, MA (the "property"). We are in receipt of a copy of Lisbeth N. Kamborian's appeal of the Building Inspector's denial of zoning enforcement against the property. This letter will serve as an opposition to Ms. Kamorian's appeal. First, as explicitly noted by Mr. Grylls in his correspondence to Ms. Kamorian in response to her Zoning Enforcement Request, Ms. Kamorian's appeal is improper and must be dismissed as she failed to timely appeal the Building Inspector's grant of our client's building permit. A copy of Mr. Grylls' correspondence is attached hereto as EXHIBIT A. On May 25, 2021, our client was issued Building Permit No. 21-006774, which authorized the construction of a storage shed on the property (the "Building Permit"). More than four months later, on or about September 29, 2021, Ms. Kamorian filed a Request for Zoning Enforcement with the Building Inspector. A copy of the Request for Gelerman and Cabral LLC February 8, 2022 Zoning Enforcement is attached hereto as EXHIBIT B. In her request, Ms. Kamorian requests an order requiring removal of the completed shed built pursuant to the Building Permit. The law is very clear that if Ms. Kamorian took issue with the Building Permit, then she was required to appeal the decision in a timely manner, as set forth by statute. G.L. c.40A, §8 states in part that an appeal to the permit granting authority as the zoning ordinance or by-law may provide, may be taken by any person aggrieved by reason of his inability to obtain a permit or enforcement action from any administrative officer under the provisions of this chapter .... Additionally, and to be read in concert with G.L. c.40A, §8 , G.L. c.40A, § 15 states, in part, that any appeal under section eight to a permit granting authority shall be taken within thirty days from the date of the order or decision which is being appealed. The petitioner shall file a notice of appeal specifying the grounds thereof, with the city or town clerk, and a copy of said notice, including the date and time of filing certified by the town clerk, shall be filed forthwith by the petitioner with the officer or board whose order or decision is being appealed, and to the permit granting authority, specifying in the notice grounds for such appeal. Accordingly, under G.L. c.40A, § 15, a party aggrieved by a building commissioner's determination must file an appeal within thirty days of the decision. Miles-Matthiass v. Zoning Bd. of Appeals of Seekonk, 84 Mass.App.Ct. 778, 780 (2014). As a result, Ms. Kamorian had until June 25, 2021 to file an appeal of the Building Inspector's determination with this Board. She failed to file any such appeal, and as a result, she waived her right to challenge any and all allegations set forth in her Zoning Enforcement Request and this Appeal. In Ms. Kamorian's appeal, she conveniently and misguidedly attempts to invoke the six (6) year appeal deadline available pursuant to G.L. c.40A, §7. The remedies set forth in § § 8 and 15, and § 7, with their respective time limits of thirty days and six years, apply in distinct situations and do not operate to provide an aggrieved person with an option of substituting one for the other. Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass.App.Ct. 850, 851 (2008). The Court in Gallivan explains that, if a party has adequate actual or constructive notice of the Building Permit's issuance in time to challenge it within the thirty days then said party is obligated to appeal within thirty days under §§ 8 and 15. Gallivan, 71 Mass.App.Ct. at 859; Miles —Matthias v. Zoning Bd. of Appeals of Seekonk, 84 Mass.App.Ct. 778, 782 (2014); Gavin v. Haas, 2014 WL 904925, * 12-13. A party has constructive notice when the evidence is "sufficient to place on [that party] a duty of inquiry" regarding the building permit's issuance. Gallivan, 71 Mass.App.Ct. at 887. Here, the Building Permit issued on May 25, 2021. Ms. Kamorian did not file any appeal within 30 days of this date. For the sake of argument, even if Ms. Kamorian did not have knowledge that the Building Permit was issued on May 25, 2021, she surely had constructive notice that a permit was issued on some date before August 29, 2021. Ms. Kamorian had adequate constructive notice of the Building Permit because Gelerman and Cabral LLC February 8, 2022 construction of the shed commenced on or about July 23, 2021, and not in September 2021 as alleged by Ms. Kamorian. Ms. Kamorian owns and resides in 180 South Street in South Yarmouth which is located directly across the street from the property. In fact, Ms. Kamorian drives by the subject property with an open view to the shed when she leaves her property at 180 South Street. Moreover, she owns the property and garage structure located at 177 South Street which directly abuts the property. Based on the following timeline of events relative to the construction of the shed pursuant to the Building Permit, it is without question that Ms. Kamorian had constructive, if not actual, notice of the Building Permit: a. On or about July 23, 2021, our client's contractor arrives at site with truck and equipment to start commencement of site work and excavation for footing. b. The footings for the shed were constructed. c. At the end of July or first days of August after the footings were installed and visible, our client and his wife met with Ms. Kamorian at the property, by the newly poured shed footings, where they discussed what would be built and the dimensions of the shed. It was Ms. Kamorian who initiated this meeting. d. The initial footings inspection by the Town occurred on August 9, 2021. e. Contractor continues on site to erect shed structure, involving supplies, lumber, cutting, nailing, and hammering and other associated construction activity. f. By August 18, 2021, the full frame of the shed was erected and fully visible from the street abutting the property. A photo of the shed construction on August 18, 2021 is attached hereto as EXHIBIT C. Given these circumstances, Ms. Kamorian not only had ample opportunity to observe the construction occurring at the property, but she actually met with our client on the property when the footings were already in place because Ms. Kamorian had questions for my client about what was being built. Under the law, this is actual notice. Therefore, Ms. Kamorian had a duty to inquire whether a permit had been issued in connection with such construction. In fact , our clients had the actual permit in their window the entire time and Ms. Kamorian was certainly able to view it. Yet, despite all the above -referenced activity and an actual face-to-face meeting with our client, Ms. Kamorian claims to have only made inquiries to the Building Department "in or around September, 2021" as to whether a Building Permit had issued for the shed. Consequently, Ms. Kamorian's contention that she had no knowledge of the Building Permit is false, unjustified and prejudicial to my client. She was aware that work was taking place, yet she did not act. She failed to file a timely appeal, and as result, she waived her right to challenge any and all allegations set forth in her Zoning Enforcement Request. Accordingly, Ms. Kamorian has no legal standing to bring this appeal and, as a result, this Board has no jurisdiction to decide the merits of Ms. Kamorian's appeal. Respectfully, in accordance with G.L. c.40A, § 15, the Board must dismiss Ms. Kamorian's appeal. Gelerman and Cabral LLC February 8, 2022 Without waiving his position that Ms. Kamorian has no standing to bring this appeal, my client does wish to set forth his responses to Ms. Kamorian's allegations set forth in her Appeal to this Board. 1. Special Permits and Master Deed Ms. Kamorian alleges that the Building Permit was issued in violation of certain Special Permits granted in 2012 relative to the property (the "Special Permits"). In granting the Special Permits, the Board found that the lots located at 179 and 181 South Street could be combined and reformed into a condominium form of ownership. The decisions issued in connection with the Special Permits note that no changes to the existing three structures or uses on the land would be changed in connection with the relief requested therein. In his correspondence to Ms. Kamorian, Mr. Gyrlls stated unequivocally that "the language of the SP granted specifically stated that there are no new structures proposed, however the conditions do not prohibit the owner's ability to add an accessory structure or make changes to the existing structures." See EXHIBIT A. It is clear from the language of the decisions that the Board was simply noting the lack of change in connection with the proposed condominium formation and was not conferring a permanent restriction on the property. Ms. Kamorian's reliance on these Special Permits to extend restrictions on any change to the existing structures or uses is grossly misplaced. Ms. Kamorian references the Master Deed relative to the property as further reason that the shed be removed. However, the Master Deed permits accessory structures "if allowed by and subject to the Yarmouth Zoning Bylaw and all other applicable laws, codes, rules and regulations." Further, the Master Deed is a private contract between the parties that does not involve the Town. Here, our client used the appropriate channels to apply for the Building Permit and it was duly granted pursuant to the Yarmouth Zoning Bylaw. Accordingly, contrary to Ms. Kamorian's assertion, the language of the Master Deed is further evidence that the issuance of the Building Permit was proper. 2. Zoning Bylaw 104.3.2 Ms. Kamorian correctly asserts that the property is located in zoning district R-40. However, contrary to her suggestion otherwise, there is nothing in the Yarmouth Zoning Bylaw which prohibits the construction of an accessory structure on a non -conforming lot such as the subject property. Ms. Kamorian's reliance on Section 104.3.2 of the Zoning Bylaw is wholly misplaced as that section restricts only the change, extension or alteration of an existing structure located on a nonconforming lot. This section of the Bylaw does not prohibit the construction of a new accessory structure, as was permitted and constructed by our client on the property. It follows that, for non -conforming lots, the construction of my client's shed is allowed under the Zoning Bylaw so long as it complies with the Zoning Bylaw. Based on the foregoing, the Building Permit was properly issued by Mr. Grylls. Gelerman and Cabral LLC February 8, 2022 3. Zoning Bylaw § 203.5(E) Finally, Ms. Kamorian states that she is "concerned" that the shed does not comply with applicable setbacks and dimensional requirements. Ms. Kamorian's argument is replete with unsupported allegations, which are really just opinion and conjecture. These allegations are made without a single shred of evidence or factual support. Indeed, as shown in the As -Built plans drawn by a professional land surveyor and attached hereto as EXHIBIT D, the front yard setback of the shed is more than 30 feet and therefore complies with the Bylaw. Therefore, any "concerns" alleged by Ms. Kamorian should be disregarded as my client properly complied with the Building Permit and Bylaws. Mr. Grylls extensively reviewed this matter, the dates of the Building Permit, the timeline of construction, and the date of Ms. Kamorian's request for enforcement. After taking all into account, Mr. Grylls made his determination that the Building Permit would not be rescinded. Moreover, upon inspection and due diligence, Mr. Grylls confirmed compliance with the Building Permit and the Bylaws. As building inspector, he is entitled to deference in his interpretation the permit and applicable Bylaws. Pinecrest Vill., Inc. v. MacMillan, 425 Mass. 70, 75, 679 N.E.2d 216, 220 (1997); Stevens v. Zoning _Bd. of Appeals of Bourne, 97 Mass. App. Ct. 713, 717, 150 N.E.3d 793, 797 (2020) (court extends deference to the reasonable interpretation of local zoning regulations by the officials charged with their administration and enforcement). In conclusion, Ms. Kamorian failed to appeal to the Board in the thirty -day period allotted to her, in failing to do so, she lost her appeal rights on the matters set forth in this appeal. Furthermore, and as set forth above, my client is in compliance with all cited Sections of the Zoning Bylaw. As a result, we respectfully submit the Ms. Kamorian's appeal must be denied. Thank you for your attention to this matter. If you have any questions, please do not hesitate to contact me at your convenience. Very truly yours, Michael B. Cabral Enclosures cc: Building Inspector Kimberly A. Bielan, Esq. Client Kimberly A. Bielan From: Grylls, Mark <mgrylls@yarmouth.ma.us> Sent: Wednesday, November 10, 2021 3:15 PM To: Kimberly A. Bielan Cc: Sears, Tim Subject: RE: 181 South St complaint Hello Atty. Bielan, While it appears that the 30 day appeal period had lapsed regarding the issuance of the building permit, I would like to provide the following information for your records. After review the SP relief for the condominium creation, I have determined that the language of the SP granted specifically stated that there are no new structures proposed, however the conditions do not prohibit the owners ability to add an accessory structure or make changes to the existing structures. As you are aware, you have the right to appeal this decision with the ZBA as indicated in MGL CH 40a. Thank you, Mark MARK GRYLLS DIRECTOR OF INSPECTIONAL SERVICES J BUILDING COMMISSIONER TOWN OF YARMOUTH (508) 398-2231 x 1260 From: Grylls, Mark Sent: Thursday, September 30, 20212:37 PM To:'kbielan@lawmtm.com' <kbielan@lawmtm.com> Cc: Sears, Tim <tsears@yarmouth.ma.us> Subject: 181 South St complaint Hi Atty. Bielan, I am in receipt of your request for enforcement on the above referenced property. I will review with my assistant and discuss with town counsel which will likely take several weeks. If you have any questions in the meantime, I can be reached at the number below. Thank you, Mark MARK GRYLLS DIRECTOR OF INSPECTIONAL SERVICES J BUILDING COMMISSIONER TOWN OF YARMOUTH (508) 398-2231 x 1260 EXHIBIT B TON:`_" 1446 Route 2 1, 508-398-2214 Office of OUTH ttjth, MA 0266 I-� COMPLAINT FORNI Date: 9/29/2021 Type of Complaint: Building — Zoning x General This is a formal request for enforcement of an alleged violation. The following are facts in the case: Property Address of Alleged Violation: 181 South Street, Unit 2, South Yarmouth Property Owners Name (s).- Property Owners Mailing Address: 1020 Pleasant Street, Brockton, Massachusetts 02301 Description of Complaint: Please see attached correspondence. Date (s) of Alleged Violation (s): Ongoing (building hermit apparently issued 5/21/2021 and recently exercised) Name (s) of Person (s): Bahige Asaker The following information is required. Failure to t-rovide your name, address, and telciahone number will result in the Insmetor ofBuildinp ZAt-iin Enforcement Officer tO Dror-ess, the COMDlaint at his/her discretion. ] FASE jj— i' 1 T) Complainant Name: Kimberiv A. Bielan, Esq. on behalf of Lisbeth N. Kamborian, individually and as Trustee of the LNK Condominium Trust Address of Complainant: 859 Willard Street. Suite 440. Quincy, Massachusetts 02169 Telephone Number: 781-sip-4900 Email Address Preferred Method of Contact (check one): Telephone: Email: x I am basing my allegations on the above facts. I understand that as the complainant, in the event the Building Commissioner is personally unable to bring the matter in to compliance, 1 may be required to attend legal proceedings to enforce the regulation referenced above in a court of law. Pursuant to the above allegations I am requesting an investigation and enforcement if applicable. Signature of Complainant: I Prefer to Remain Anonymous: [ ] (check box) ATTORNEYS AT LAW Kimberly A. Bielan Direct Dial: (781) 817-4607 kbielan@lawmtm.com Admitted in MA & RI September 29, 2021 Via Email (mgrylh(ayarmouth. ma. us) and Federal Express Overnight Mark Grylls Director of Inspectional Services/Building Commissioner Yarmouth Town Hall 1146 Route 28 South Yarmouth, MA 02664 Re: Reaaaest for Zonha En orcetatent 181 South Street (Unit 2), South Yarmouth, Massachusetts 02664 Dear Mr. Grylls: Please be advised this office represents Lisbeth N. Kamborian, individually and as Trustee of the LNK Condominium Trust ("Kamborian" ). Kamborian owns and resides at 180 South Street, which is improved with a single-family dwelling, and Kamborian also owns 177 South Street (Unit 3), which is improved with a wood -frame garage and is part of the LNK Condominium ("Condominium"). Pursuant to G.L. c. 40A, § 7 and Yarmouth Zoning Bylaw ("Zoning Bylaw") § 101.1, this letter is submitted in supplement to the Complaint Form to notify you of certain zoning violations on the property known and numbered as 181 South Street (Unit 2), including its attendant exclusive use area ("Subject Property"), and to seek enforcement of the Zoning Bylaw. Specifically, Kamborian seeks revocation of Building Permit No. 21-006774, which authorizes the construction of a "14 x 17 storage shed" on the Subject Property (`Building Permit"), and an order requiring the removal of same. FACTUAL BACKGROUND Kamborian and her family have had an ownership interest in the property that now comprises the Condominium 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. One Adams Place, 859 Willard Street, Suite 440; Quincy, I1viA 02169 • 18I-8174900 . www.lawmtm.com Boston - Falmouth - Quincy Mr. Grylls, Building Commissioner September 29, 2021 Page 2 of 5 In or around 2012, Kamborian decided to submit the property to the provisions of G.L. c. 183A, § 1 et seq. and create a condominium. To facilitate the submission of the land to condominium status, Kamborian required two special permits from the Yarmouth Board of Appeals. First, by Decision No. 4389 filed with the Town Clerk on May 8, 2012, the Board of Appeals 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 correct copy of Decision No. 4389 is appended hereto as Attachment A). In Decision No. 4389, the Board of Appeals expressly found that "[t]here will be no change to the three existing structures or uses on the land." (Att. A). Second, by Decision No. 4390 filed with the Town Clerk on May 8, 2012, the Board of Appeals granted a special permit pursuant to Zoning Bylaw § 104.4.1 and Use Regulation Schedule § 202.5, Al, 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 correct copy of Decision No. 4390 is appended hereto as Attachment B). 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 Iand." (Att. B). 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 correct copy of the Condominium Site Plan is appended hereto as Attachment C). 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 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. 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 correct copy of the Quitclaim Deed is appended hereto as Attachment D). Subsequent to taking title to the Subject Property, Asaker has undertaken certain renovations to Unit 2, including remodeling a bathroom, replacing kitchen cabinets, and Mr. Grylls, Building Commissioner September 29, 2021 Page 3 of 5 replacing a second floor balcony. Such work was undertaken pursuant to Building Permit No. 17-001366.1 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 2 02 1, Kamborian ].earned that, on or about May 21, 2021, 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.).2 (A true and correct copy of the application details available on the Building Department website are appended hereto as Attachment E). 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 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 this submission, the accessory structure remains in a state of construction, as shown in the photograph appended hereto as Attachment F. ARGUMENT 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, Kamborian is concerned that 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. As an initial matter, Asaker is not entitled to the Building Permit in the absence of zoning relief. As set forth herein, the Condominium property (of which Assaker's Subject Property is only a portion) is nonconforming and undersized in the R-40 Zoning District. Section 104.3.2 of 1 Subsequent to the close out of said building permit, 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. 2 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 Asaker's address as 185 South Sea Avenue, West Yarmouth, which address is associated with one Harry Laird III. Perhaps uncoineidentally, 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. Mr. Grylls, Building Commissioner September 29, 2021 Page 4 of 5 the 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)). 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 of Appeals. However, pursuant to the plain and unambiguous language set forth in § 104.3.2(1), the Zoning Bylaw does notpermit 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. Additionally, and as identified herein, the Condominium project was authorized pursuant to two special permits issued by the Board of Appeals. 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." (Att. A & B). 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 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 Pen -nit .3 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 (b) feet in all districts, but in no case shall 3 Kamborian anticipates that 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, 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)). Mr. Grylls, Building Commissioner September 29, 2021 Page 5 of 5 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.' Additionally, the structure appears to be larger than 14 ft. by 17 ft., and thus violative of the Building Permit. As 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 3tructure.5 CONCLUSION For the foregoing reasons, Kamborian respectfully requests, in accordance with G.L. c. 40A, § 7 and Zoning Bylaw § 101.1, that you enforce the Zoning Bylaw, revoke the Building Permit, and issue an order requiring Asaker to raze the accessory structure on the Subject Property. If this office can be of any assistance as you investigate and consider this request for enforcement, please do not hesitate to contact me. We look forward to hearing from you. Thank you for your time and consideration of this matter. Sincerely, Kimberly A. Bielan cc: Lisbeth N. Kamborian Bahige Asaker 4 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. 5 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. ATTACHMENT A Appeal #4389 Dom :1 * 266 v 863 04--09-20' 5 2 : 24 BAR14S,TABLE LAND CaUnT REGISTRY Bk 28791 P :9180 -0151846 04-09-2(D 15 a 02 = 5;Ba, COMMONWEALTH OF MASSACHUSETTS TOWN OF YARMOUTH BOARD OF APPEALS Date: May 29, 2012 Cpfftcate 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: Lisbeth N. Kamborian 17 Pelham Terrace Arlington, MA 02174 Affecting the rights of the owner with respect to land or buildings at,179 & 181 South Street, South Yarmouth, MA Zoning District: R.S-40; Map & Lot* 0034.259.1 & 0034.259.2; Doc.#:1,021,228; Ctf.#:178781 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 that 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. 444 o COURT, TON, try LVA #wa s c3e b 3 t shom c Steven do� ng, Clza- . ate. v as Bk 28791 Pg181 #15186 N TOWN OF YARMOUTH Town 1146 ROUTE 28, SOUTH YARMOUTIL MASSACHUSE'ITS 02664-4451 Clerk Telephone (508) 398-2231 Ext. 1285, Fax (508) 398-0836 CERTIFICATION OF TOWN CLERK I, Jane E. HibbeM 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 #4389 and 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. ,l �,E. Hibbem CMCiCMMC TowriClerk Bk 28791 Pg182 #15186 TOWN OF YARMOUTH BOARD OF APPEALS DECISION FILED WITH TOWN CLERK: May 8, 2012 PETITION NO; #4389 HEARING DATE: April 26, 2012 PETITIONER: Lisbeth N. Kamborian PROPERTY: 179 & 181 South Street, South Yarmouth, MA Map & Parcel: 0034.259.1; 0034.259.2; Zoning District: RS-40 Ctf: #178781; Doc.#: 1,021,228 MEMBERS PRESENT AND VOTING: Steven DeYoung, Chairman, Joseph Sarnosky, Debra Martin, Bryant Palmer and Robert Howard. 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. Lisbeth N. Kamborian is the Petitioner who, at hearing, was well represented by Andrew Singer, Esquire. The hearing proceeded without controversy. No one spoke in opposition to the Petition. A letter was received at the hearing from Ralph Cadman, Trustee of the Bass River Drummer Realty Trust. The Petitioner seeks a Special Permit from Bylaw § 104.3.5 in connection with property located within a RS-40 Zoning District at 179 & IS 1 South Street, South Yarmouth, Massachusetts, so as to allow for the reeombinmg of two lots split in 2005 back to one lot. The land is shown as Lot 1 on a Plan of Land entitled "#179 and #180, South Street, Yarmouth MA, prepared for Lisbeth N. Kamborian, Land Cotut. Plan. #9187, Feb. 22, 2012. Scale 1" = 30'. There will be no change to the three existing structures or uses on the land. Finding that there will be no change of use and given the history and status of the property, the Board found that the grant of a Special Permit will not create any undue nuisance, hazard or congestion, nor any substantial harm to the established or future character of the neighborhood or Town. Bk 28791 Pg183 #15186 Accordingly, on Motion to approve the grant of the Special Permit as set forth within the Petition without condition as made by Mr. Sarnosky and seconded by Mrs. Martin, it was voted unanimously in favor. No permit shall issue until 20 days from the filing of this decision with the Town Cl AL This decision must be recorded at the Registry of Deeds and a copy forwarded to the Board of Appeals.. Appeals from this decision shall be made pursuant to MGL c40A section 17 and must be filed within 20 days after filing of this noticeldecision 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, MGL c4OA §9) S€even DeYoung, Chalffm BARNSTABLE COUNTY REGISTRY OF DEEDS A,TRUE COPY, ATTEST a k�»�hi F 14tEi«. Pct�ICTFS7 ATTACHMENT B L- Appeal #4390 Do+c:Is2667864 04-09-2015 2.24 BARNSTABLE LAND COURT REGISTRY Bk 28791 Po 1$4r �151a7 04-89-2015 & 02 ; 58P COMMONWEALTH OF MASSACHUSETTS TOWN OF YARMOUTH BOARD OF APPEALS Date: May 29, 2012 Certificate of Granting Of R Special EkEglk (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: Lisbeth N. Kamborian 17 Pelham Terrace Arlington, MA 02174 Affecting the rights of the owner with respect to land or buildings at,179 & 181 South Street, South Yarmouth, MA Zoning District: RS40; Map & Lot#: 0034.259.1 &; 0034.259.2; Doc.#:1,021,23.8; 00:178781 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 that 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. Ili I L614D COURT . The Latin h9mh cia ' • vd be Shama Steven DeYu"ftd, Chairman W r DEC �S IQl3 e& Bk 28791 Pg185 #15187 TOWN OF YARMOUTH Town 1146 ROUTE 28, SOUTH YARMOUTH, MASSACHUSETTS 02664-4451 Clerk Telephone (508) 398-2231 Ext. 1285, Fax (508) 398-0836 CERTIFICATION OF TOWN CLERK 1, Jane E. Hibbert, 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 #4390 and 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. 4 y� a J e E.-14 ert, IC. CIINQ C - v.-�Cl Bk 28791 Pg186 #15187 TOWN OF YARMOUT 4 v, BOARD OF APPEALS DECISION FILED WITH TOWN CLERK: May 8, 2012 PETITION NO: #4390 HEARING DATE: April 26, 2012 PETITIONER: Lisbeth N. Kamborian PROPERTY: 179 & 181 South Street South Yarmouth, MA Map & Parcel: 0034/259.1 & 0034/259.2; Zoning District: RS40 Certificate #178781, Doc: 1,021,228 MEMBERS PRESENT AND VOTING: Steven DeYoung, Chairman, Joseph Sarnosky, Debra Martin, Bryant Palmer and Robert Howard. 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. Lisbeth N. Ka.mborian is the Petitioner who, at benfing, was well represented by Andrew Singer, Esquire. The hearing proceeded without controversy. Abutter Paolo Petrillo spoke about a parking concern to the Petition; and a letter was received at the hearing from Ralph Cadman, Trustee of the Bass River Drummer Realty Trust, regarding the use of the garage building. The Petitioner seeks a Special Permit from Bylaw §104.4.1 and Use Regulation Schedule §202.5 A1, Q2 and Q3, in connection with property located within a RS40 Zoning District at 179 & 181 South Street, South Yarmouth, Massachusetts, 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 as set forth in the condominium documents submitted to the Board. The Property is shown on a Plan of Land entitled "Condominium Site Plan prepared for INK Condominium, #179 & #181 South Street, Yarmouth, MA, prepared for Lisbeth N. Kamborian, Land Court Plan #9187, March 1, 2012, Scale 1" = 20'. There will be no change to the three existing structures or uses on the land. After a brief discussion regarding the garage building and possible conditions on use, the Board found that there will be no change of use and that the Petitioner has made adequate provisions defining the uses and restrictions on such uses within the Condominium Master Deed and Condominium Bylaws and has further provided adequate provisions governing the management authority of the condominium to insure maintenance and repair of public health and safety aspects of the property, and that the grant of a Special Permit, with conditions, will not create any undue Bk 28791 Pg187 #15187 nuisance, hazard or congestion nor substantial harm to the established or future character of the neighborhood or Town. Accordingly, on Motion to approve the grant of a Special Permit as set forth within the Petition and with the conditions as made by Mrs. Martin that 1) there shall be no storage of commercial vehicles or commercial goods in the garage building, and 2) there shall be no installation of central heating and plumbing in the garage building. Further, these conditions shall be duly -noted in the Master Deed. The Motion was seconded by Mr. Palmer and the Board, on Motion to grant with conditions as staked, voted unanimously in favor. No permit shall issue until 20 days from the filing of this decision with the Town Clerk. This decision must be recorded at the Registry of Deeds and a copy forwarded to the Board of Appeals. Appeals from this decision shall be made pursuant to MGL c40A section 17 and most be filed within 20 days after filing of this noticeldecisionwith the Town Clem. Unless otherwise provided herein, the special Permit shall lapse if a substantial use thereof hos n*t begun within 24 mouths. (Set bylaw §103.2.5, MGL cdOA §9) 5iAi3L U. F3=.��iR� OFLceE� q'- K UE CC3 a, A� i ce, �s<SEOSTER BARNSTABLE REGISTRY OF DEEDS John F. Meade, Register 2 ATTACHMENT C yp U) 45 r-- o b ca CN CL 0 4t wo- E c CL — 0 4k 0 0 it 0 cc 1.f cj c co E aZ 05 0 E 0 CD C,4 Co CC om -g 0 r. IS 2 'D g 9 S -1 . '! 2 SIZ W, E -8O 1 '.! ; 01�: MN Fri. 715 s 07-53'5T '39'27' ui oleo 0 �jm co — z F: I po 110 019 Gd LSO) -49 ATTACHMENT D BIB 29656 P:9338 �24 4-51 05---17-2016 chi 03 =08P MASSACHUSETTS STATE EXCISE TAX BARNSTABLE COUNTY REGISTRY OF DEEDS Date: 05-17-2016 8 03:08Pm Ctla-: 1322 Docv': 24451 Fee: $1060,20 Cons: $310 0W .00 9P,RHSTr' ALE C'ii€fNT-f EXCISE i`AX UITCLAIM L? ED �AKWSTA '.E LINTY REGTSTW( DF M�ECS D�aw 05-17 2016 a 03:05" t1Y. 23?? DaT-T: 2Y451 KNOW ALL MEN BY THESE PRESENTS that Fee. sS37.00 CUT"S: � aY:�►��,6s+� LISBETH N. KAMBOR.IAN, individually Being unmarried of 180 South Street, South Yarmouth, MA 02664, For consideration paid and in full consideration of THREE HUNDRED TEN THOUSAND & 00/100 Dollars ($310,000.00), grant to: BAHIGE ASAKER, Individually, of 1020 Pleasant Street, Brockton, MA 02301. with QUITCLAIM COVENANTS Unit 2 of the LNK CONDOMINIUM, (hereinafter, the "Unit") created by a Master Deed dated May 5, 2014, and recorded with the Barnstable County Registry of Deeds in Book 28791, Page 188, as Amended by First Amendment dated August 7, 2015, recorded in Book 29078, Page 4. Said Condominium is Iocated at 181 South Street, South Yarmouth, Barnstable County, Massachusetts. The Unit conveyed is further identified as containing approximately 1,200 square feet as shown on "Condominium Site Plan prepared for LNK Condominium" recorded in Plan Book 657, Page36 and to which is affixed a verified statement in the form provided in G.L.C. 183A, Section 9. The Unit is conveyed together with a 40% undivided fractional interest appertaining to said Unit in the common areas and facilities of the LNK Condominium, and together with the rights and easements appurtenant to the Unit as set forth in said Master Deed, including the appurtenant exclusive rights and easements in the areas adjoining the Unit. This conveyance is made 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, which trust is created pursuant to the Declaration of Trust of LNK Condominium Trust, dated May 5, 2014, and recorded in the Barnstable County Registry of Deeds in Book 28791, Page 206, as it has been amended by First Amendment of Declaration of Trust dated August 7, 2015, and recorded in Book 29078, Page 22. Property Address: 181 South Street, Unit 2, South Yarmouth, Massachusetts 02664 0 Bk 29656 Pg339 #24451 1, Lisbeth N. Kamborian, the Grantor named herein do hereby voluntarily release all my rights of Homestead as set forth in M.G.L. Chapter 188, if any, and there are no other persons entitled to any such rights 1 SIGNED under the pains and penalties of perjury this day of Lisbeth N. K.arnborian COMMONWEALTH OF MASSACHUSETTS Barnstable, ss On this — day of , 2016, before me, the undersigned notary public, personally appeared Li.sbetb N. K tnborian, and proved to me through satisfactory evidence of identification, being (check vwhichever applies): e ' rivees license or other state or federal governmental document bearing a photograph image, o oath or affirmation of a credible witness known to me who knows the above signatory, or a my own personal knowledge of the identity of the signatory, to be the persons whose name is signed above, and acknowledged to me that she signed the foregoing instrument voluntarily for its stated purpose and who swore or affirmed to me that the contents of this document are truthful and accurate to the best of her knowledge and belief. Subscribed to and sworn before me ,�tigt1ti51�21f(ilfP€tptt,�r�r +...-' � -� �, , yc Notary Public — _ �.�. 1�1 W S 4� t My commission expires. tow.. .. tom. ' +7tYllPj 41N� BARNSTABLE REGISTRY OF DEEDS John F. Meade, Register ATTACHMENT E Logged in as: Kimberly Bielan Collections (0) Reports (1) *0' Account Managerni Welcome to the Town of Yarmouth's online permitting websitel Home Board Of Health Committees Create an Application Search Applications Record BLD-21-006774: Add to coil I & 2 Family Dwelling Record Status: Issued Expiration Date: 11/21/2021 Record Info - Payments v Custom Component Work Location 181 South Street Record Details Applicant. Project Description: 181 Sc,,,.,t.h St:reet-Alteration LAIRD MADFUNF. Alteration -build 14 x 17 storage shed -(50 8-479-444 8) A ID 0.t- ST Y A R tj 0 ljT N1 ? 6� MoNte Phone5084-1794448 Owner: AsakeSahige 125 S0l,.JTH 5FAA,,vE WES-1 NIA 026-7,'5 ,rMore Details B Additional Information Job Value($): Construction Type, $7,000.110 v B 9 Application Information TYPE OF IMPROVEMENT Alteration: Y(,- WORKERS COMPENSATION INSURANCE Workers Compensation Insurance: I am the homeowner ESTIMATED CONSTRUCTION Building: 17000,00 ADDITIONAL INFORMATION T otal Job Cost- 17000 BUILDING CHARACTERISTICS Principle Type of' Frame: vVoud ZONING INFORMATION Zoning District: R-25 Total Land Area: 25000 BUILDING SETBACKS Front yard required: Side yard required: 1.5 Rear yard required. 20 Uz Application Information Table SITE IMPACT REPORT Type: Zoning Features Present: m B U I I OVe 1 7� Min Lot 25 um .50 Minimum Yard Side: 1.5 Minimum Yard Rear: 20 Ordinances- Pesidenlial. Type. Wind Borne Debris Zone Features Present. Town: Yarmouth Ordinances. Your parcel is in a Wind Borne Debris Zone 13 Parcel Information Parcel Number: Block: 017 95A 95,1 Book: Page: 2847 309 Parcel Area: 39204 ATTACHMENT F EXHIBIT C em . � � ? W., August 18, 2021 � .07 om Edit Imlollowl ira([)��uWPP1 cp+POPa'nW� � � Y,r,mome wec m m muar,.mw, n .mn rm•nw m,oai mruuv au •oaw P ru,c u,e,u. A W amoca->o�t�% oc aF zvo Z MRvmvo omen vci�o0 moN S y Crl ��czy�Op o� o� m?Lz `o' �`��-FiA t�i7 AooOm KSo yo O In m��ir rr c�vN o Z vzzz000 �yo oa loZ Y�zc> om oN o v O 6a Inv ymao? opt -'off Sy my vi� os- oo0 A =�A M"MM 5pAIvil�� zm Wo �r ooC 1wf� o mzAD O m m$ H g O N �w� gr�ai_561 N000V(n0f�l � m y O y S y Z fTl rsn y v 1 1 t i 58703'02'W 150.04't. --1y t : t i ,i t P. \' E'Oo \ # t 7 t z o i o _;1 STA , 1 1 4, •• SL'40ILS r# Q �� ,SZ54 CI o > t{?kA I 1. m 0 v� 1 IZI �vm e 2 y0� O In Om-O yDy N y � m oo. A � I m N N m z • ; �•1q��L.iiiiiiiiiinl�\�� r��101� 3 .��5 � :i��i%i■ ago m g SHED AS -BUILT PLAN�d `�, mc��) �"` e e WYYQN a 181 SOUTH STREET _ „' SOUTH YARMOUTH, MASSACHUSE TS >`f e - Nnvvur�+r Engineers and Land Surveyors 427 COLUMRM ROAD, HANOVER, MA 02339 / T. (781) 826-92DO o r a ��+`� PL S'X tOZO ASW STREET 26 UNION SIREEi, PLYMOUTH T: 746-6060 RROKCTON, MA 02301 IAA 02360 / (508) —.MERRILLINC.COM 51115�