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HomeMy WebLinkAbout04-07-22 Decision 4934 - 181 South St TCTOWN OF YARMOUTH BOARD OF APPEALS DECISION FILED WITH TOWN CLERK: April7,2022 PETITION NO: HEARING DATES: PETITIONER: PROPERTY: 4934 February 10,2022 and March 10,2022 Lisbeth N. Kamborian, individually and as Trustee of the LNK Condominium Trust 181 South Street, South Yarmouth, MA Map 34, Parcel259lC2 ZoningDistrict: R-40 Title: Book 29656, Page 338 MEMBERS PRESENT AND VOTING: Mr. Fraprie, Mr. Igoe, Mr. DeYoung and Mr. Martin 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. This petition was heard over two meetings, the first being held on February 10, 2022 and the second on March 10,2022. The petitioner is Lisbeth Kamborian in her capacity as Trustee of the LNK Condominium Trust and concerning property located at 181 South Street, South Yarmouth, MA which property is in a R-40 Zoning District. The petition is seeking to overturn the decision of the Building Commissioner concerning Permit No.2l-006774. The petitioner was very well represented by Douglas A. Troyer, Esquire who provided a thoughtful and eloquent presentation as to why the refusal to revoke the Building Permit referenced above should be overturned. During the first meeting, there were Board members who expressed concems about whether or not the building, as constructed, was within dimensional setback requirements and stated the applicant's argument that the structure should not have been allowed due to the condominium documents/covenants. A letter had been received by counsel for Mr. and Ms. Asaker, owner of the structure in question. These two individuals spoke in opposition to the request to overturn the Building Commissioner's decision. Historically, the Building Commissioner issued a Building Permit onMay 25, 2021 . On July 23,2021 work began on the structure consistent with the Building Permit, and foundational footings were installed. This should have been quite visible to the petitioner who resides across the street. The petitioner and the Askers spoke conceming the specific issue ofwhen the petitioner should have been aware of the construction of the structure. The petitioner suggested that the structure was offending as it blocked her view and yet claimed that she did not become aware of the structure and its construction r.rntil "sometime in late September". The structure was completed consistent with the permit and the petitioner filed her petition on September 29, 2021 . The second hearing on March 10,2022 consisted mostly ofthe presentation and argument ofcounsel for the petitioner and the board discussion and deliberations. The petitioner's representative presented a thoughtful argument that the time in which the petitioner had a right ofappeal was actually six years from the date ofthe issuance ofthe Building Permit per MGL c 40A. In considering the merits of the petition, the Board weighed the credibility ofthe various people who testified. In doing so, the Board generally felt that the petitioner lacked credibility as to when she first became aware of the construction of the structure. The Board found that the Asakers provided more credible testimony relative to the progress ofthe structure, the conversations between them and the petitioner, and the visibility ofthe structure. The Board also considered the argument that the appeal should be six years, not thirty days and found this argument to be without merit. Though no definitive dates were clearly established, the Board was in agreement in the beliefthat it was very improbable that the petitioner was not aware ofthe construction of the structure prior to August 29, 2021. [Which would be thirty days earlier than when she filed her appeal.] The frame of the structure was clearly visible no later than August 18, 2021. Living across the street, it was not credible that the petitioner only became aware of the structure sometime late in September, 2021. This seemed like contrived testimony. More credible was the suggestion that the petitioner and the Asakers had a discussion about the structure that they were having built sometime in late July, early August, 2021 when they met at the site of the construction. The lot upon which the condominiums (3) are located is not large enough that the petitioner could not see the structure as it was progressing. The petitioner's representative requested a continuance so that the Board could benefit from the opinion ofTown Counsel on the merits of the Appeal. Discussion was had as to whether or not any purpose could be accomplished by such requested continuance and the Board members concurred that they had sufficient inlormation to decide the issue as to whether or not the Appeal was timely filed and could proceed to consider whether the appeal was properly before the Board. Accordingly, Mr. Igoe moved to deny the request for the continuance, which motion was seconded by Mr. Fraprie. A roll call vote was taken with all four members agreeing that the continuance should be denied and, so, the motion passed. The Board then went along to consider the merits as to whether the petition was properly before the Board due to the timeliness ofthe filing ofthe appeal. The Board had further discussion, with the members in agreement that the appeal was more than thirty days following when the petitioner had or should have had at least constructive notice of the structure and the granted Building Permit, as it was easily in her view from her home. Moreover, the Board found it credible that the parties (the petitioner and the Asakers) met and discussed the structure in late July, early August, 2021. Mr. Igoe made a motion to deny the relief sought by the petitioner, which motion was seconded by Mr. Fraprie. A roll call vote was taken with all members in agreement that their appeal should not be granted and the relief sought by the petition should be denied. Respectfully Submitted /E*B'g* Steven DeYoung, Chairman 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) CERTIFICATION OF TOWN CLERK I, Mary A. Maslowski, Town Clerk, Town of Yarmouth, do hereby certifu that 20 days have elapsed since the filing with me of the above Board of Appeals Decision #4942 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