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HomeMy WebLinkAbout04-28-22 Decision 4949 - 6 Merrymount Rd TCTOWN OF YARMOUTH BOARD OF APPEALS DECISION - 220-MY E2P + 12:10 RE C FILED WITH TOWN CLERK: May 12, 2022 PETITION NO: 4949 HEARING DATE: April 28, 2022 PETITIONER: James Igoe PROPERTY: 6 Merrymount Road, West Yarmouth, MA Map 23, Parcel 81 Zoning District: R-25 Title: Document # 68377, Cert of Title No. 26404 MEMBERS PRESENT AND VOTING: Chairman Steven DeYoung, Douglas Campbell, Megan Homer and Jay Fraprie 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 Applicant seeks to reverse the March 9, 2022 decision of the Building Commissioner; and/or a Variance from §203.5 to establish the lot as buildable, and allow a single family dwelling on the lot. Petitioner also seeks, in the alternative, either a Special Permit or a Variance to allow for the construction of a single family dwelling on this lot. The Property is located in the R-25 Zoning District and is currently a bare lot containing 9,600 square feet and 80 feet of frontage on Merrymount Road. The current owner of the property, Eleanore Townsend, took title pursuant to a deed dated January 18, 1961, and this information has been verified in a letter of former Deputy Building Commissioner James D. Brandolini dated January 21, 2021, and again in a letter dated March 9, 2022 from the present Building Commissioner, Mark Grylls. It is from this letter that the Applicant's appeal arises, seeking to overturn the Decision of the Building Commissioner. The abutting property, which shares a common rear boundary with the subject property, is located at 45 Pine Cone Drive. This deed was conveyed to Ms. Townsend in December of 1960, and it is this common ownership, as of 1961 which the building department believes merged the lots, pursuant to the common law doctrine of merger, and rendered the Property unbuildable. 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." The applicant argues that no merger has occurred in this case, and relies upon Section 104.3.4(2) of the Yarmouth Zoning Board of Appeals, entitled "Two (2) or three (3) adjoining lots", which states 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 of frontage, or contained fifteen thousand (15, 000) square feet and fifty (50) feet of frontage 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. One abutter appeared and asked questions, while another appeared virtually and opposed the request. However, and based on the clear language of this section of the Zoning Bylaw, the Board agreed 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 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. The Petitioner also relied upon the reasoning of Koines v. Cohasset, 91 Mass. App. Ct. 903 (2017), to demonstrate that this section of the Yarmouth Zoning Bylaw provides "perpetual grandfathering" for such commonly owned lots, and which nullifies the merger doctrine. The Board appreciates the analysis provided by the Building Department in its denial letter, and discussed that it typically supports the careful consideration provided by the Department regarding zoning issues. However, after deliberation on this issue, the Board was in unanimous agreement that the Applicants were correct that the property qualifies as a buildable lot pursuant to Section 104.3.4(2) of the Zoning Bylaw, and has not merged with any contiguous lot. Accordingly, a motion was made by Mr. Fraprie, seconded by Mr. Campbell, to Overturn the Decision of the Building Commissioner, for the reasons stated. The members voted unanimously, by roll call vote, as follows: Mr. DeYoung AYE Mr. Fraprie AYE Ms. Homer AYE Mr. Campbell AYE The applicant moved and was allowed to withdraw all other requests for relief, as it was the consensus of the Board that no such relief was needed. Accordingly, a motion was made by Mr. hraprie, seconded by Mr. Campbell, to allow the petitioner to withdraw, without prejudice, all remaining forms of relief requested. The members voted unanimously 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. Steven DeYoung, Chairman 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 #4949 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 Town Clerk Aw