HomeMy WebLinkAbout02-16-22 Attorney Tardif Building Inquiry Letter to BC GryllsLAW OFFICES OF
PAUL R. TARDIF, ESQ.2 P.C.
490 MAIN STREET
YARMOUTH PORT, MA 02675
(508) 362-7799 (508) 362-7199 fax
Paul A. Tarclif, Esq. Stacey A. Curley, Eq.
PtardifCa)taxdiflaw.coin www.t2irdiflaw.com scu rlevia>tardiflav;com
REFER TO FILE NO.
February 16, 2022
Mark Grylls
Yarmouth Building Commissioner
1146 Route 28
South Yarmouth, MA 02664
Re: 6 Merrymount Road, West Yarmouth, MA
Assessor Map 23, Parcel 81
Current Owner: Eleanore M. Townsend
Dear Mr. Grylls:
Please be advised that this office represents James Igoe, the potential owner of the
property at 6 Merrymount Road, West Yarmouth, MA. (the "Property"). After reviewing the
title history of the Property, and having reviewed the plain language of the Yarmouth Zoning
Bylaw, as well as the letter of former Deputy Building Commissioner James D. Brandolini dated
January 21, 2021 (Building Letter), it is my opinion that the Property is a buildable lot, which
entitles my client to a building permit by right. I am writing to determine whether, based on the
information presented herein, you concur.
As you know, the usual inquiry with your office, with regard to the buildability of the lot,
begins with the title history of the lot itself, and the abutting parcels. However, in this instance, I
do not feel that much analysis is necessary. Rather, I would like to address the conclusion reached
by Mr. Brandolini in the Building Letter, a copy of which is attached, and explain why the legal
basis for his decision has already been determined to be erroneous.
6 Merrymount Road, West Yarmouth, MA (Map 23, Parcel 81)
The Property is located in the R-25 Zoning District, contains 9,600 square feet, with 80 feet of
frontage on Menymount Road, and is denoted as Parcel 81 on the Town of Yarmouth Assessor's
Map 23, Title to the Property is currently in the name of Eleanore M. Townsend, and the title is
derived pursuant to a deed registered in the Land Court Division of the Barnstable County Registry
of Deeds as Document 6 83 77, dated January 18, 1961. The property is denoted as Lot 2 as shown
on Land Court Plan 11435-A. (Plan). I have attached a copy of Plan for your review. Currently,
and based on the tax card of the Town of Yarmouth Assessor's Office, the lot is unimproved.
Page 1 of 3 Letter to James D. Brandolini
121 Town Brook Road, West Yarmouth, MA
Title to the property was conveyed from Nils Frederick Anderson to Eleanore M. Townsend by
deed dated January 18, 1961, which is verified in the Building Letter.
45 Pane Cone Drive, West Yarmouth, MA (Map 23, Parcel 60)
The Property is located in the R-25 Zoning District, contains 9,600 square feet, with 80 feet of
frontage on Pine Cone Drive, and is denoted as Parcel 60 on the Town of Yarmouth Assessor's
Map 23. This property shares a common rear property line with the property at 6 Merrymount.
Title to the Property is currently in the name of Kevin S. Schneider and Elaine Amanda Kourafas,
and the title is derived pursuant to a deed registered in the Land Court Division of the Barnstable
County Registry of Deeds as Document 1437709, dated July 19, 2021. The property is denoted as
Lot 19 as shown on the Plan. Currently, and based on the tax card of the Town of Yarmouth
Assessor's Office, the lot is improved with a single family dwelling.
In the chain of title, the property was conveyed from Grace P. Boeske to Eleanore Townsend by
deed dated December 23, 1960, which is also verified in the Building Letter.
ANALYSIS
As noted in the Building Letter, the lots were created by a plan dated in January of 1926, at which
time the lot size was conforming. On March 7, 1960, the minimum lot area for a parcel in this
zoning district was increased to 10,000 square feet as a minimum. This change resulted in these
lots becoming legally pre-existing non -conforming. The Building Letter is clear that the lot at 6
Merrymount Road was "held in separate ownership on the date it became non -conforming and
then was conveyed into common ownership after that time." It is at this point that Mr. Brandolini's
inquiry becomes flawed.
As you may remember, you and I, and the Zoning Board of Appeals, have addressed this analysis
with your Department in the past, regarding the property at 121 Town Brook Road, West
Yarmouth. In that case, Mr. Brandolini found that the lot in question had merged with an abutting
lot due to the fact that it was held in common ownership with that abutting lot after the lots had
become pre-existing nonconforming. I have attached copies of that analysis, found in 3 letters
from Mr. Brandolini. In that case, I filed an appeal to the Zoning Board of Appeals to overturn
that decision based on the fact that our Zoning Bylaw, and specifically in Section 104.3.4(2),
allows the lot to be separately buildable, even to this day based on the clear language of that
section. I have attached a copy of Decision 4914, which as been recorded in the Barnstable County
Registry of Deeds in Book 34551, Page 181. As you can see, the Zoning Board of Appeals did in
fact overturn Mr. Brandolini's determination, and found that the lot in question was still buildable.
af];B►L!'18
As recited above, the Property in question was created by a plan which is registered in the Land
Court Division of the Barnstable County Registry of Deeds in Land Court Plan 11435A, dated
January of 1926. At the time that the plan was created, this lot was conforming. It was on
March 7, 1960 that the minimum lot area for a parcel in this zoning district was increased to
Page 2 of 3 Letter to James D. Brandolini
121 Town Brook Road, West Yarmouth, MA
10,000 square feet as a minimum. This change resulted in this lot becoming legally pre-existing
non -conforming, but the Property was held in separate ownership on the date it became non-
conforming and then was conveyed into common ownership after that time.
Yarmouth Zoning Bylaw Section 104.3.4(2) addresses the buildability of "Two (2) or three (3)
adjoining lots", and states in relevant part as follows:
2. Any increase in area, frontage or other dimensional requirements of this zoning bylaw shall
not apply to a lot for single family residential use, provided the plan for such lot was duly
recorded or endorsed and such lot was held in common ownership with contiguous lots and
had less than the dimensional and density requirements of the newly effective zoning but
contained at least seven thousand five hundred (7,500) square feet and seventy-five (75) feet
offrontage, or contained fifteen thousand (15, 000) square feet and fifty (50) feet offrontage
if approved under section 203.2 of this bylaw. This exemption shall not apply to more than
three (3) such adjoining lots held in common ownership.
Based on this paragraph, I believe that the Property is a buildable lot. First, the lot was
duly recorded or endorsed, and it was held in common ownership with one (1) contiguous lot -and
had less than the dimensional and density requirements of the newly effective zoning (i.e. 10,000
square feet of area) BUT it did contain at least 7,500 square feet and seventy-five (75) feet of
frontage. Finally, the Property was not held in common ownership with more than 3 adjoining
lots. As such, my client's Property is in fact grandfathered, and can be improved with a single
family dwelling.
The relevant facts of this case are the same as in the case of 121 Town Brook Road, with
the obvious result as pronounced in the Zoning Board of Appeals Decision. I would rather save
my client the time and effort of having to appeal Mr. Brandolini's decision, and instead, have you
redetermine the matter, and request that you rescind the same and agree that the lot is buildable.
A building permit should be issued to my client upon the review of a proper building permit
application. If you would like the full analysis of my position, I am happy to provide it.
Cc
I would appreciate a written response, which will verify that the Property may be built
' ;omply with setbacks in existence at the time of the creation of zoning for
lames Igoe
Page 3 of 3
)r your time and attention to this matter.
Letter to James D. Brandolini
121 Town Brook Road, West Yarmouth, MA