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Home My WebLink About1-27-22 Decision 4931 - 57 General Lawrence Rd TCFILED WITH TOWN CLERK: PETITION NO: HEARING DATE: PETITIONER: TOWN OF YARMOUTH BOARD OF APPEALS DECISION February 1, 2022 4931 January 27, 2022 Maryann Fells PROPERTY: 57 General Lawrence Road, South Yarmouth, NIA Map 78, Parcel 289 Zoning District: R-40 Title: Book 32718, Page 220 MEMBERS PRESENT AND VOTING: Chairman Steven DeYoung, Sean Igoe, Jay Fraprie and Dick Neitz 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 Cape Cod Times, the hearing opened and held on the date stated above. The Petitioner seeks either a Section 6 finding, pursuant to Massachusetts General Laws c. 40A, in the form of a Special Permit pursuant to Zoning Bylaw § 104.3.2, in order permit a two story two car garage, recently constructed to remain in its present location, or in the alternative, a Variance to allow the applicant to maintain the garage, which encroaches into one of two front yard setbacks of this corner lot. The Property is a corner lot located in the R-40 Zoning District and contains 15,721 square feet of area, with 69 feet of frontage on General Lawrence Road and 115 feet of frontage on Captain Bacon Road. The existing house is located 15.4 feet from the side boundary, where 20 feet is required, but meets or exceeds all other bulk requirements of the Zoning Bylaw. There is also a newly constructed garage on the north portion of the property which is located 28.8 feet from Captain Bacon Road, where 30 feet is required. The Applicant recently contracted for the construction of a new 30 foot by 35 foot garage. The intention was to build the garage on a slab, which would meet all the existing setbacks and other bulk requirements. An application for a building permit was submitted in April of 2021, which included a plan depicting the proposed location of the garage, to be 30.5 feet from Captain Bacon Road, and estimating the construction costs to be in excess of $140,000.00. The Building Department issued Building Permit BLD-21-006782 in July of 2021, and construction commenced. ,=P. AT-CEST� At least two inspections took place by the Building Department — one for the placement of rebar in footings, and one for the poured foundation in August. The garage was then constructed, and when the Applicant sought a final inspection, an as built plan was then required. This is when the error was discovered that the garage had been built 16 inches into the Captain Bacon front setback. Ms. Fells was notified by the engineer preparing the plan about this issue. Apparently, after the foundation hole was dug, no request to the engineer was made to stake the corners before pouring the footings and the foundation, and the project continued. Petitioner asserts that the relief sought is in the alternative, and Petitioner's remedy is either in the form of a Special Permit, or a Variance, to allow the now constructed garage to remain where currently situated on the Property. The Board discussed the different forms of relief sought and determined that the facts of this case required a Variance, and that the Special Permit analysis did not apply to a detached, new accessory structure. Petitioner then set forth the criteria for the issuance of a Variance, as set forth in Section 102.2.2 of the Yarmouth Zoning Bylaw, which states that a Variance shall be granted only in cases where the Board of Appeals finds all of the following: 1. literal enforcement of the provisions of this bylaw would involve a substantial hardship, financial or otherwise, to the petitioner or appellant. 2. The hardship is owing to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affecting such land or structures, but not affecting generally the zoning district in which it is located. 3. Desirable relief may be granted without either: substantial detriment to the public good; or nullifying or substantially derogating from the intent or purpose of this bylaw. In this case, a literal enforcement of the provisions of the by-law would involve substantial hardship to the Petitioner, who now has a two car garage which cannot be moved, as it sits on a slab with rebar. The front 16 inches of this structure cannot realistically be removed to come into full compliance. This situation is certainly not self-created, as her contractor poured the foundation in the incorrect location, creating an encroachment. The Board was unanimous that this was an honest mistake, and not done with the intention of making this garage 16 inches closer to the road for any reason. They also collectively agreed that this error was de minimis, despite the Petitioner spending a total of $179,000.00 on the project. Next the Board found that the hardship is owing to the topography as the lot sloped to the street. The contractor seems to have dug down further for the foundation, and may have lost track of where the line was, which resulted in this slight encroachment. In addition, the septic system's location in the rear of the lot also may have caused the contractor to veer away from that when digging. Finally, the encroachment is only 16 inches into a front setback. In addition, the front setback is measured from the sideline of the road layout, and here, there is an approximate 6 foot area of the road layout which is not developed, and it is unlikely to be expanded. There is no detriment A TRUE COPY ATTEST. 2 NwtX44 FU 22 to the public good. Allowing this relief would not nullify or substantially derogate from the intent or purpose of the Bylaw. A detached accessory structure such as this one is allowed by right, if located correctly. Some abutters appeared and expressed concern, not with the structure's location, but with the size and height of the garage itself. In this case, and had the garage been located correctly, those issues could not be addressed by abutter input. Although the Board agreed that the height and size of the structure was quite large, they did not believe that the correct location of the structure, as planned, would have had any impact on their perception. Accordingly, a motion was made by Mr. Igoe, seconded by Mr. Fraprie, to grant the Variance as requested, with the following conditions: 1. There is to be no habitable living space on the second floor of the garage; 2. Planting of shrubs along the base of the northerly side of the garage will be planted; and 3. Plumbing to the first floor of the garage only will be permitted for the installation of a wash sink. The members voted unanimously (4-0) in favor of the motion, and the Variance was therefore, granted. The Applicant moved and was allowed to withdraw without prejudice the request for relief in the form of a Special Permit, as it was the consensus of the Board that such relief was not appropriate. The members voted unanimously (4-0) in favor of the motion. 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 Variance shall lapse if a substantial use thereof has not begun within 12 months. (See MGL c40A § 10) Steven DeYoung, Chairman A TRUE COPY ATTEST; 3 ��ta FEB 2 2 2022 CERTIFICATION OF TOWN CLERK I, Mary A. Maslowski, Town Clerk, Town of Yarmouth, do hereby certify that 20 days have elapsed since the filing with me of the above Board of Appeals Decision #4431 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 RUE C PY ATTEST. 4 FE?"2 <` COMMONWEALTH OF MASSACHUSETTS TOWN OF YARMOUTH BOARD OF APPEALS Petition #: 4931 Date: February 22, 2022 Certificate of Granting of a Variance (General Laws Chapter 40A, Section 11) The Board of Appeals of the Town of Yarmouth Massachusetts hereby certifies that a Variance has been granted to: Maryann Fells 57 General Lawrence Road South Yarmouth, MA 02664 Affecting the rights of the owner with respect to land or buildings at: 57 General Lawrence Road, South Yarmouth, MA; Map #: 78; Parcel #: 289; Zoning District: R-40; Book/Page: 32718/220 and the said Board of Appeals further certifies that the decision attached hereto is a true and correct copy of its decision granting said Variance, 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 Variance, 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� � U�� Steven S. DeYoung, Chairman A TRUE COPY ATTEST. -- < FEB 2 2 2022