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HomeMy WebLinkAboutAppeal March 20 2012 OpinionTOWN OF YARMOUTH OFFICE OF THE TOWN CLERK 1146 ROUTE 28, SOUTH YAP-NIOUTH, MA 02664 TELEPHONE (508) 398-2231 FAX (508) 760-4842 Jane E. Hibbert, CMC/CMMC �n J To: Bruce Gilmore Town Counsel From: Jane E. Hibbert, CMC/CMMC `• Town Clerk Subject: Appeal Date: March 12, 2012 Attached please find a copy of District Court Department Barnstable Division Civil Action No 1225 -CU -230 Arthur LaFranchise Plaintiff V Members of the Old King's Highway Regional Historic District and Seven Hills Community Services, Inc. for your records. Please feel free to contact me if you have any questions. Cc: William Hinchey, Town Administrator Old King's Highway Regional Historic District File RECEIVED MAR 12 2012 YARMOUTH KING'S HIGHWAY Z COMMONWEALTH OF MASSACHUSETTS a �r BARNSTABLE, ss. '�;� M3' DISTRICT COURT DEPARTMENT, BARNSTABLE DIVISION s:: CIVIL ACTION NO. Cu — �3 Q ARTHUR LA FRANCHISE ) Plaintiff } V. ) } RICHARD GEGENWARTH, ) PETER LOMENZO, ) CARRIE BEARSE, } WILLIAM COLLINS, ) LAWRENCE HOUGHTON ) And PAUL LEACH } as they are members and are ) Collectively the OLD KING'S) HIGHWAY REGIONAL ) HISTORIC DISTRICT ) COMMISSION ) And SEVEN HILLS COMMUNITY ) SERVICES, INC. ) Defendants } NOTICE OF APPEAL The Plaintiff in the above captioned matter hereby gives notice pursuant to Section 11 of Old King's Highway Regional Historic District Commission under the Old King's Highway Act, Chapter 470 of Acts of 1973, as amended (the "Act"), that he has caused to be filed a complaint in the Barnstable District Court on March 9, 2012, seeking review and reversal of the Old King's Highway Regional Historic District Commission's decision to uphold the granting of a certificate of appropriateness to Seven Hills Community Services, Inc. and filed with the Town Clerk's office on February 21, 2012. A copy of said complaint is attached. Respectfully Submitted Paul Revere, III Counsel for Arthur La Franchise B.B.O #636200 226 River View Lane Centerville, MA 02632 (508) 237-1620 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. DISTRICT COURT DEPARTMENT BARNSTABLE DIVISION CIVIL ACTION NO. /�225--- GU -0.�ZO APPEAL FROM A DECISION OF THE OLD KING'S HIGHWAY REGIONAL HISTORIC DISTRICT COMMISSION Introduction 1. This matter involves an appeal of a decision of the Old King's Highway Regional Historic District Commission under the Old King's Highway Act, Chapter 470 of Acts of 1973, as amended (the "Act"). ARTHUR LA FRANCHISE } Plaintiff ) } V. ) } RICHARD GEGENWARTH, ) PETER LOMENZO, ) CARRIE BEARSE, ) WILLIAM COLLINS, ) LAWRENCE HOUGHTON ) And PAUL LEACH ) as they are members and are ) Collectively the OLD KING'S) HIGHWAY REGIONAL ) HISTORIC DISTRICT ) COMMISSION ) And SEVEN HILLS ) COMMUNITY } SERVICES, INC. ) Defendants ) APPEAL FROM A DECISION OF THE OLD KING'S HIGHWAY REGIONAL HISTORIC DISTRICT COMMISSION Introduction 1. This matter involves an appeal of a decision of the Old King's Highway Regional Historic District Commission under the Old King's Highway Act, Chapter 470 of Acts of 1973, as amended (the "Act"). Parties 2. The Plaintiff, Arthur La Franchise, is an individual with an address of 13 Centerboard Lane, South Yarmouth, Massachusetts 02664. 3. The Defendant, Seven Hills Community Services, Inc. ("Seven Hills"), is a Massachusetts nonprofit corporation having a principal place of business of 81 Hope Avenue, Worcester, Massachusetts 01603, whose revenues are nearly exclusively derived from public funding. 4. The Defendants, Richard Gegenwarth (Yarmouth), Peter Lomenzo (Dennis), Carrie Bearse (Barnstable), William Collins (Sandwich), Lawrence Houghton (Brewster), and Paul Leach (Orleans), are the current members of the Old King's Highway Regional Historic District Commission ("Commission") which has an address of P.O. Box 140, Barnstable, Massachusetts 02630. Jurisdiction 5. This court has jurisdiction pursuant to Section I I of the Act. Facts 6. On or about August 23, 2011, Seven Hills submitted an application for a certificate of 2 appropriateness for a "home" for a property located at 19 Centerboard lane, in the Town of Yarmouth, Massachusetts. 7. Notwithstanding the designation of the building as a "home," Seven Hills proposed to build a commercial nursing facility staffed by professionals in a residentially zoned area on the Property. 8. The property is located wholly within the Old King's Highway Regional Historic District. 9. The application was submitted by Luanne Perry of Group 7 Design. 10. Group 7 Design is a for profit corporation 49 percent owned by the primarily publicly funded non-profit Seven Hills. 11. Luanne Perry who is "responsible for the overall operations of the [Group 7 Design] business" is the sister of the Vice President of primarily publicly funded non-profit Seven Hills. 12. The President of Group 7 Design is also the President of Seven Hills. 13. The plan submitted to the Yarmouth Old King's Highway Committee was a stock plan designed by Group 7 Design for a commercial nursing care facility and used by Seven Hills K throughout Massachusetts. 14. The design was for a commercial style building with a footprint of approximately 4500 square feet. 15. The property is hilly and heavily forested and the plan required deforestation and regrading of most of the property to accommodate the massive footprint of the building. 16. A hearing was held on the application by the Old King's Highway Committee of Yarmouth on September 26, 2011, and continued to on or about October 24, 2011 and later to January 9, 2012. 17. Approximately forty neighbors attended and spoke in opposition to the size and design of the proposed nursing facility. 18. No person other than the Applicant andits representatives spoke in favor of the proposal. 19. The only substantial change to the design made by the applicant was that a large attached garage was removed and the amount of parking was reduced to a five parking space commercial style parking lot. 4 20. The five space lot was disingenuous and inadequate as at least one space will be used for an on-site van and two spaces will be used by employees leaving only two spaces employees during shift changes and any visitors and health specialists needed to attend to the disabled nursing care patients. 21. A similar facility operated by Seven Hills in Bourne, Massachusetts has approximately ten parking spaces in addition to the garage. 22. At the January 9, 2012, meeting the Yarmouth Old King's Highway Committee voted 3 to 1 to approve the application. 23. On or about January 10, 2012, the Committee filed a copy of the application form with the "Approved" box checked and the signature of three members of the Committee with the Yarmouth Town Clerk. 24. A copy of the application form as filed with the Town Clerk is attached as Exhibit A. 25. On or about January 20, 2012, the Plaintiff filed an appeal of action of the Yarmouth Old King's Highway Committee with the Commission and filed the appropriate notice with the Yarmouth Town Clerk. W 26. A copy of that appeal as filed is attached as Exhibit B. 27. On or about February 7, 2012, the Commission held a hearing on the Plaintiff's appeal. 28. The procedures for hearing appeals are set forth in 972 C.M.R. 1.04, and specifically explain that the presentations shall be as follows: (a) A clear, concise statement setting forth a description of the proposed project and identifying specific reasons and/or factors supporting the granting of a Certificate shall be made by or on behalf of the Applicant (if different from the Appellant). (b.) A clear, concise statement of the appellant's objections to the Town Committee's decision shall be made by or on behalf of the Appellant. Such statement shall include the grounds for the appeal. (c.) The Chairman of the respective town committee or his designee shall make a clear concise statement of the basis for the decision of the Committee. (d.) Other persons may be heard by the Commission and may present testimony and evidence relevant to the appeal. The Commission may impose reasonable time limits on all debate or discussion 29. Consistent with those procedures presentations were made by the Applicant, the Plaintiff's representatives, and Mr. Gegenwarth on behalf of the Yarmouth Committee, and the Commission allowed rebuttal by each party. 30. Notwithstanding the requirements of the applicable regulations for appeals, the chair over the objection of the Appellant allowed Mr. Gegenwarth to present documents, photographs, and 6 opinion regarding other properties in the area in support of the application rather than a "statement of the basis for the decision of the Committee." 31. Similarly, the Applicant spent a significant portion of their presentation time in ad hominem attack on the Appellant essentially arguing that the Appellant's use of his property was so inconsistent with the Act and that he shouldn't complain. 32. Following the inappropriate presentations, the Commission voted to uphold the Yarmouth Committee. 33. A document signed by the Commission purporting to be the decision of the Commission was filed with the Yarmouth Town Clerk on or about February 21, 2012. 34. A copy of that document is attached as Exhibit C. 35. The Plaintiff is aggrieved by that decision. Count I 36. Plaintiff repeats the allegations in paragraphs 1 through 35 set forth above and further alleges as follows. 7 37. The decision of the Commission exceeds the authority of the Commission. 38. The Decision of the Commission is arbitrary and capricious, not supported by substantial evidence and clearly erroneous. 39. The proceedings before the Commission did not comply with the Act or its implementing regulations. 40. The Decision does not comply with the Act or its implementing regulations. 41. The Decision of the Commission was made in bad faith. 42. The Commission should not have considered the use of the structure in making its decision. 43. The Commission should not have considered the needs of possible residents in deciding whether the structure was "appropriate" under the Act as the use of the structure is not regulated by the Act nor does the Act provide authority for the Committee or Commission to require the structure to be used for such purposes. 44. The failure of the Yarmouth Committee to make any written findings or basis for its 8 decision made it impossible for the Commission to review its decision consistent with the requirements of the Act. 45. The Commission should have considered the decision of the Yarmouth Committee to exceed its authority, was arbitrary and capricious, or constituted poor judgment as it considered the use of the property as the use of the structure is not regulated by the Act nor does the Act provide authority for the Committee or Commission to require the structure to be used for such purposes. 46. The Commission should have considered the decision of the Yarmouth Committee to exceed its authority, was arbitrary and capricious, or constituted poor judgment as the building is simply too large in both size and/or footprint when compared to the relative size of other structures in the neighborhood. 47. The Commission should have remanded the matter to Yarmouth Committee to rehear the matter after Seven Hills obtained necessary permits which are likely to modify the proposed commercial building. WHEREFORE, the Plaintiff requests that this Court: A. Determine that the Commission's Decision denying the appeal exceeds its authority. B. Annul and revoke the Commission's Decision denying the appeal. 9 C. Issue an order that the matter be remanded to the Yarmouth Committee for further proceedings consistent with the requirements of the Act. D. Award the Plaintiff its attorney's fees and costs in this matter. E. Enter such other orders as it deems meet and just. PAUL REVERE, III Counsel for Arthur La Franchise B.B.O ##636200 226 River View Lane Centerville, MA 02632 (508) 237-1620 10 EXHIBIT A 4L YARMOUTH OLD KING'S HIGHWAY REGIONAL HISTORIC DISTRICT COMMITTEE 1146 ROUTE 28, SOUTH YARMOUTH, MASSACHUSETTS 02664 Phone (508) 398-2231 Ext. 1292 - Fax (508) 398-0836 Colleen McLaughlin, Office Administrator (cmciaughiin®yarmouth.ma.us) CERTIFICATE OF APPROPRIATENESS APPLICATION Application is hereby made for the issuance of a Certificate of Appropriateness (CIA) under Section 6 of Chapter 460, Acts of 1973 as amended, for proposed work as described below and on pians, drawings, photographs, and other supplemental information accompanying this application. PLEASE SUBMIT 6 COPIES OF SPEC SHEET(S), ELEVATIONS, PHOTOS, & SUPPLEMENTAL INFORMATION. Check All Categories That Apoirr 1) Exterior Building Construction: ✓ New Building Addition Alterations Reroof Indicate type of Building: Commercial ✓ Residential Garage Shed Other. 2) Exterior Painting: ✓ Siding Shutters Doors Trim O�JR E CE I V_L L 3) Signs/Billboards: New Sign Change to Existing Sign 4) Miscellaneous Structures: Fence ✓ Wall Flagpole Pool AUG 2 3 2011 YARMOUTH Type or rint legibir, i - ULIU KINUCj H1QHVVAY Address of proposed work: 19 C E iii T i✓ R B O A(f -D L hr N E Map/Lot # t . 2- Owner(s): Mailing address: Email. S U Preferred notification method: US Mall Z_Email M Agent/contractor:, IZt bUP�� ES t G - L UA N IV E F, {LP.y Phone : 5 Z O - Z.0 (r 5 X 1 ! Mailing Address: I Zy CrPnVE atkEF:[* _nuiTF- :jol Tf_R-ANKt_j V, NA 02.036 Email:LF I—Kk�)Cfif,n u-P710E5 d, Preferred notification method: US Mail ✓ Email (T�-= ryET Descrintlon of Proposed Work: �Ci_LC_-r 5 13Cb9,0b IA rsE LEVEL 11E ON S1 TF_ 1-I $ lT�c� FOPS 14UYn)'rNIT� WILL P�_ObIDIt 6 NU1[�NF3EV, 5U - CON T a -A C T 09, SEKVICE5 Signed (Owner or agent): I • Owner/contractor/agent is aware that a permit is required from the Building Oeparfinent (Check outer departm( i if application Is approved, approval is subject to a 10 -day appeal period required by the Act, • This certificate Is good for one year from approval date or upon date of expiration of 8uildrng Permit, whichever v All new cotstnxtion will be subject to Inspection by CKH. CKH-approved plans MUST be available on-site for f For Committee use only: Received b&f OKH: Date: 1/ Cash/Ch . Rcvd by: Date signed: t /Approved approved with amendments Reason Signed: )JAN 10 2012 1 be later. Denied .r/ n '-// EXHIBIT B 12 PETITION FOR APPEAL (FORM -D) For Appeal filing procedure see: Docket No. 972 CMR Section 1.02 & 1:03 Date Filed RULES AND REGULATIONS (The ahove for Official use only) (PLEASE TYPE OR PRINT) Old King's Highway Regional Historic District Commission P. O. Box 140, Barnstable, MA 02630 Telephone: 508-775-1766 51 Appellant 1. Y Town of . -r 14 Old King's Highway Regional Historic District Committee 1. This is an appeal from the above listed town Committee's decision (a copy is attached) on application for SIgEDQoaM S' I IV G(,4�r (Applicant's name) located at 11G G BOR (project) and (approved I disapproved) by the local town's historic district Committee on �!A(Q u f N xD a. and filed with the Town Clerk ons U A� (Dated) (Date) 2. The reason for this appeal is: (]F Further remarks are needed, attach additional a 112 z ! l sheet) 3. The relationship of the appellant to the subject of appeal is that of (Applican Abutte /Other aggrieved party) 4. The remedy sought by the appellant is . gA{ L Ca (A mulment of town committee's decision/ Reversal to town Wnunitiee's decision/ Remand application to town committee) 5. 1 hereby certify that 1 have given notice of this appeal to the Town Clerk, Town Committee & Applicant, if different. i have enclosed the required filing fee. 6_ In the event that scheduling does not permit the hearing to take place within 30 days, I hereby grant an extension of time until the next regula ed ed Commission meeting_ (bate) --"---- 5igna oIF _ pellant or designated representative Appellant's Mailing Address:4Q ��i ri n w sr -t /�_ . w . _ S90 171� Y44W du Tel. No. Name, address &telephone of agent and/or att rney: A , The appeal must be flet! within 10 days of the fling of the decision with Town Clerk 36 V /—z A--5 D IBJ -. L YARMOUTH OLD KING'S HIGHWAY REGIONAL HISTORIC DISTRICT COMMITTEE 1146 ROUTE 28, SOUTH YARMOUTH, MASSACHUSETTS 02664 Phone (508) 398-2231 Ext. 1292 -- Fax (508) 398-0836 Colleen McLaughlin, Office Administrator (cmclaughiin®yarmouth.ma.us) CERTIFICATE OF APPROPRIATENESS APPLICATION Application Is hereby made for the issuance of a Certificate of Appropriateness (C/A) under Section 6 of Chapter 460, Acts of 1973 as amended, for proposed work as described below and on plans, drawings, photographs, and other supplemental information accompanying this application. PLEASE SUBMIT 6 COPIES OF SPEC SHEET(S), ELEVATIONS, PHOTOS, & SUPPLEMENTAL INFORMATION. Check AMI Cateacries That Apply-, 1) Exterior Building Construction: ✓ New Building Addition Alterations Reroof Indicate type of Building: Commercial ✓ Residential Garage Shed Other: 2) Exterior Painting* _Siding Shutters Doors _Trim CPR e r C t V C n 3) Signs/Billboards: New Sign Change to Existing Sign 4) Miscellaneous Structures: Fence ✓ Wall Flagpole Pool Othe AUG 2 3 2011 YARMOUTH Type or Print legibly: I- OLD KING'S HIGHWAY Address of proposed work: 19 1 C E N rt F- R F) 0 A -F -Q L& E __ __ Map/Lot #h811q(n • 2— __ Owner(s): Mailing address; Email: RMA TEL L 0 5E4 E ti-th LLS . b AG, Preferred notification method: US Mail, Email Agent/contractor. 11'LduP I ESI G 1l - L UA N N E !✓ .f�Y _� Phone #: �O$ C) ` 6 5 �t I ek Mailing Address: I Z E I T 033 Email: (-� E y no c� u�t E 5 �: _ -- Preferred notification method: US Mail ✓ Email rvE,T Description of Proposed WodS-. Ciz6CT 5 3CbK,0bJ`'1 LEVEL aolAE ON 5f TE. JA8)i-Kr FOk HuM" \NiT� WILL P1-C;vltt 6NUrv\,1�aa_ OV SU8-CONT2ACTD9, 5EKVICt5% Signed (Owner or agent): 0 • Owner/contractor/agent Is aware that a permit is required from the Building Department (Check other departmf • If application is approved, approval Is subject to a 10 -day appeal period required by the Act • This certificate is good for one year from approval date or upon date of expiration of Building Permit, whichever • All new corjstnxtlon will be subject to Inspection by OKH. OKKapproved plans MUST be available on-site for fi For Committee use only: Received OK . Date: 3 �/ CastUCh k . Rcvd by: Date signed: 1 ,19 bola I Acoroved Approved with amendments Reason Signed: 'JAN t 0 2012 k be later. Denied (DomesticOnly. I Insurance Coverage Provided) Q !I U.S. Posta Servimpi ' CERTIEIEG MAIL. RECEIPT U.S. Postal S rvi� , (Domestic Mail Onf);NOInsurance Coverage Provided� CERTIFIEI MAIL. RECEIPT. '(Domestic For delivery information visit our website at www. usps.cornt Mall ONY; Na Insurance Coverage Provided) - For dellvery iniormatfon visit our website at www,usps.corrkY Certified Fes r - '� ., ,5, Certifled Fag 0 Cl Rotum Receipt Foe (Endoroert errt Required) .P rC3 � Pat= RscWpe Frey p (Endorsement pee(ao) © Ln Reatrfcigd tJgffverY Fes (Erxioragment Requf Z T' h Q r"Testrirted Delivery Fee (Endorsement Required) r-1 Total Postage A Fess $ Q _ _ � -_ Ori + .-.._ Ln r-1 Tow Ap�ge A Fees, •: r 1 r� Sant ro 0 + r,. - - a �o Box or PO Box Afa .. P - - C ry Sraee u y rt97 ................ PS Form 31360. Atiqum 20116r __PC Cfty, State Zi '------ .. _. -- N - r (DomesticOnly. I Insurance Coverage Provided) Q !I r� a -AL USE s fL � Certified Fes - '� ., ,5, Certifled Fag 0 Cl Rotum Receipt Foe (Endoroert errt Required) .P rC3 � Pat= RscWpe Frey p (Endorsement pee(ao) © Ln Reatrfcigd tJgffverY Fes (Erxioragment Requf Z T' h Q r"Testrirted Delivery Fee (Endorsement Required) r-1 Total Postage A Fess $ Q _ _ � -_ Ori + .-.._ Ln r-1 Tow Ap�ge A Fees, ri r� Sant ro 0 + r,. - - a �o Box or PO Box Afa .. P - - C ry Sraee u y rt97 ................ PS Form 31360. Atiqum 20116r __PC Cfty, State Zi '------ .. _. -- N EXHIBIT C 13 OLD KING'S HIGHWAY REGIONAL HISTORIC DISTRICT COMMISSION P.O. Boa 140, Barnstable, Massachusetts 02630-0140 Tel: 508-775-1766 Arthur La Franchise, Appellant Vs. Old King's Highway Regional Historic District Committee for the Town of Yarmouth Decision for Appeal No. 2012-1 _ On Tuesday, February 7, 2012 at 1:30 P.M., the Commission held a hearing at the West Barnstable Fire Station Meeting Room, 2150 Meeting House Way (Route 149), West Barnstable, Massachusetts, on Appeal # 2012-1 filed by Arthur La Franchise seeking reversal of the Yarmouth Historic District Committee's granting of a Certificate of Appropriateness to the Seven Hills Foundation for the construction of a five bedroom home to be located at 19 Centerboard lane, South Yarmouth, Massachusetts. Present were Chairman Peter T. Lomenzo, Jr., Dennis; Lawrence Houghton, Brewster; William Collins, Sandwich; Carrie Bearse, Barnstable; Richard Gegenwarth, Yarmouth; James R. Wilson, Commission Administrative Counsel; Paul Revere, III, Attorney for the Appellant and Arthur La Franchise, Appellant; Lucille B. Brennan, Attorney for the Applicant; David M. Sorgman and Luanne Perry of Group 7 Design, Designer for the Applicant; and Richard Martell, Construction Manager for the Applicant, Seven Hills Foundation. Absent was Paul Leach, Orleans, The Yarmouth Town Committee's decision was filed with the Town Clerk on January 11, 2012. The appeal was entered with the Commission on January 20, 2012, within the 10 - day appeal period. Copies of the Appeal Petition with attachments, Town's Decision, Application, Plans and Minutes from the Town Committee's hearings were distributed to the Commissioners for review. Applicant's Presentation: David M. Sorgman of Group 7 Design, addressed the Commission on behalf of the Applicant's Application. He described the proposed dwelling as being designed to accommodate five (5) female residents with disabilities in a non -institutional environment. He claimed that many of the exterior design features were selected to give a "residential" character and to avoid a "commercial" appearance to the building. He indicated that handicap ramps and other similar institutional style features had been omitted from the design. He reported that many design concessions had been incorporated into the final plans. He showed the Commissioners the original submitted plans and highlighted the changes in - r entrance design and other changes in location, size and materials that were reflected in the trial set of plans and specifications approved by the Yarmouth Town Committee. He compared the proposed dwelling with other houses located in the neighborhood and pointed out that many exceeded the height (one story vs. two story) and size (square footage of floor space). He described the large 1.10 -acre size of the Applicant's lot and the proposed dwelling's substantial setback from the Centerboard Lane. He also described the landscape plan and compared the smaller size of the proposed driveway with the Appellant's and other homes located with in the immediate neighborhood. Commissioner Collins asked the height of the proposed building, which was identified as being 21 feet, ti inches to the ridgeline. Chairman Lomenzo asked for clarification of the various changes that had been discussed at the September, October and January public meetings before the Yarmouth Town Committee, which was described in more detail by Mr. Sorgman. The Appellant's Presentation: Attorney Paul Revere, III addressed the Commission on behalf of the Appellant, Arthur La Franchise. He identified his client as an immediate abutter and therefore declared him to be "a person aggrieved" under the Historic District Act. He claimed that while the application process had taken three meetings and involved many modifications to original proposed building, the final submission represented only one major redesign and the deletion of features that were obviously inappropriate for the Historic District. He suggested that the proposed use as a home for five women with disabilities was not a proper factor to be considered by the Town Committee. He asserted that the Yarmouth Town Committee had been wrongfully influenced by the proposed use and argued that the building should be judged solely on its harmony of appearance with other single- family dwellings located in the immediate neighborhood. He described the proposed building as being "a large ranch" that was lacking in Cape Cod character or tradition. He suggested that square footage was too great and that the five parking spaces for the residents would be excessive for the neighborhood. He criticized the large size of the driveway. He concluded by claiming that the Town Committee exercised poor judgment in its action of approving the proposed group home at the proposed site. He requested that the determination be annulled and returned to the local Town Committee for further review. 2 AddAild ally, he suggested that the five -bedroom use might violate Title V of the State Environmental Code and suggested that the health code issue should be resolved before a Certificate of Appropriateness is granted for the proposed building. Commissioner Collins asked for a clarification of the parking space concern. Attorney Revere indicated that the size of the parking area was reflective of the overall excessive size and use of the project. He pointed out that there would be two employees on site per day, visitors, and a large van would be needed to transport the residents. He claimed that this would give a "commercial appearance" to the property. Commissioner Houghton stated that he had visited the site and observed two vans and a very large circular driveway on the abutting property next door. Chairman Lomenzo asked if all of the Commissioners had visited the site and had observed the other homes in the neighborhood. All the Commissioners indicated that they had all visited the site prior to the hearing. Chairman Lomenzo asked for a clarification of the purpose for requesting a remand of the project. Attorney Revere indicated that his Client wanted the size of the building reduced and the Title V septic issue resolved. The Town Committee's Presentation: Richard Gegenwarth addressed the Commission in support of the Yarmouth Town Committee decision to approve the proposed dwelling. He pointed out that Cape Cod ranches have a greater roof pitch than western style ranches. He indicated that the Applicant's proposed dwelling has an eight (8) inch pitch, which is typical of many other houses located within the Historic District. He pointed out that many of the houses in the neighborhood have large blacktop driveways. He showed the Commissioners photographs in support of this observation. He described the Appellant's property (23 Centerboard Lane) located on the northeast side of the Applicant's lot and pointed out in photographs the large blacktop driveway and six (6) vehicles parked in the yard. He described the neighbor's property (15 Centerboard Lane) Iocated on the South side of the Applicant's lot and pointed out its comparable size and exterior features. He pointed out other houses in the neighborhood that were larger than the proposed dwelling and suggested that the Town Committee found the size to be compatible with the other houses located in the neighborhood. He pointed out that the 2,900 square feet of paved driveway and parking area was less than that of the neighbors and therefore compatible with the neighborhood. 3 AN 4 He showed the Commissioners the final landscape plan and suggested that it would bi i hr a the aesthetic quality of the neighborhood. He described the proposed plantings and the relatively large (2.5 inch caliber) trees to be planted by the Applicant. Commissioner Collins asked for clarification of the amount of modification and changes that occurred during the review process. Mr. Gegenwarth highlighted the changes to the site plan, front of the building, deletion of the garage, changes in siding, doors, windows exterior architectural features that were modified in an effort to address neighborhood and Town Committee concerns. Commissioner Carrie asked when the issue of size had been raised and addressed. Mr. Gegenwarth indicated that the initial concerns were focused on the original proposed design features of the building and that the size issue was addressed in the final revised plans that were presented at the January meeting. Chairman Lomenzo asked about the amount of public participation in the meetings. Mr. Gegenwarth indicated that the public attendance at the meeting grew as the review process progressed with the largest public participation occurring at the final January meeting. Public Comment: Chairman Lomenzo asked for public comment on the appeal. Raymond Scichilone of 48 Cranberry Lane, South Yarmouth, Massachusetts stated that he was part of a group of about forty (40) neighbors that opposed the project. He indicated concern about the size of the proposed building and possible traffic problems that the proposed driveway could create. He also indicated that the lot would need to be clear-cut during construction and that it would take five to seven years for the landscaping to properly establish itself Bruce Scott of 15 Centerboard Lane, South Yarmouth, Massachusetts identified himself as the abutter on the south side of the proposed project. He stated that he felt that a four- bedroom building would be more appropriate for the neighborhood. Arthur La Franchise (Appellant) of 23 Centerboard Lane, South Yarmouth, Massachusetts suggested that the exposure of five vehicles parked in a row was not appropriate for a residential neighborhood. He also expressed concern about the removal of trees during construction trash removal by large trucks after construction. Applicant's Rebuttal: David Gorgman reaffirmed that the proposed building is designed to look like a home and to fit into the residential neighborhood. He described the building as being similar to other residences in the neighborhood and suggested that the driveway was very much like 4 the Appellant's paved driveway. He showed more photographs of the Appellant's paved drliay, vans and other vehicles located on his property. He claimed that the septic system had already been engineered to meet the requirements of Title V and suggested that other authorities would address it. He disputed the claim that the proposed dwelling would be too large for the neighborhood by again pointing out other larger house that were located in the geighborhood. On the issue of the ranch style of the proposed building, he pointed out t-61ethe house across the Street had a ranch style and had the same seventy-four foot length as the Applicant's proposed building. He concluded by claiming that proposed building was smaller and in harmony with the residential character of the neighborhood. He requested that the Town committee's determination be affirmed. Appellant's Rebuttal: Attorney Revere suggested that the proposed use as a group home was driving the large size of the foot print of the proposed building and its related driveway and parking area. He suggested that the excessive number of parked cars in located on his client's property was a matter for enforcement but should not be a reason to permit the proposed project. He requested that the decision of the Town Committee be annulled and the application be remanded to the Town Committee for additional study and review. Town Committee Rebuttal: Mr. Gegenwarth stated that the proposed dwelling is in keeping with the character of the neighborhood. He indicated that the scale, height, width, style, color, siding, trim, roofing material and other exterior architectural features were in harmony with the other buildings in the immediate neighborhood. He concluded by suggesting that the proposed building with its landscaping plan would be an improvement to the aesthetic appearance of the neighborhood and asked that the decision be affirmed. Commission Discussion: William Collins of Sandwich began the discussion by stating that it appeared that the Town Committee was very thorough and open in its review of the proposed project. He indicated that the Yarmouth Town Committee appeared to have the authority to deal with the proposed project and asked for changes that the Applicant adopted in the final plans. The Town Committee did not appear to exceed its authority or act in an arbitrary or capricious manner. He suggested that the only issue is whether or not the Yarmouth Town Committee exercised poor judgment in its approval of the revised plans. He stated that the final plans appear to reflect features that are similar to the features of other buildings located in the neighborhood. He noted that he had visited the site and observed that the proposed building would appear to be in harmony with the exterior felils other buildings located nearby. He therefore concluded that he did not believe that the Town Committee had exercised poor judgment or acted improperly. Lawrence Houghton of Brewster stated that he spent a lot of time observing the homes in "..-ppjghborhood and expressed the opinion that he could not fi-nd a bases to believe that the Town Committee had made an error in approving the application. He indicated that he felt that the proposed dwelling was the right size for the lot and suggested that its exterior architectural features would fit in the neighborhood. Carrie Bearse of Barnstable stated that she agreed with Mr. Collins and Mr. Houghton and expressed the opinion that the Yarmouth Town Committee did not make an error in approving the final plans. She stated that she examined the neighborhood and observed the many similar homes, some larger and some smaller, and felt that the proposed building was reasonably compatible in size, style and appearance. She expressed the opinion that the proposed dwelling looks like a single family home and does not look like a "commercial or institutional style" building. She concluded by stating that she felt that Yarmouth. Town Committee acted properly in approving the application. Chairman Lomenzo of Dennis stated that he spent a good deal of time visiting the site prior to the hearing. He thanked the parties for the depth of their presentations and indicated that he felt that the Yarmouth Town Committee did not make an error in approving the five bedroom dwelling at its proposed location. He called for a motion to vote on the appeal. Mr. Collins moved, seconded by Ms. Bearse, to affirm the decision of the Yarmouth Town Committee in their determination to issue a Certificate of Appropriateness for the proposed five bedroom dwelling to be located at 19 Centerboard Lane, South Yarmouth, Massachusetts. The motion carried by a vote of 4-0-1. (Collins, Bearse, Houghton & Lomenzo in favor and Gegenwarth abstaining) The Commission findings: The Commission found as follows: The Yarmouth Town Committee did not act in an arbitrary, capricious or erroneous manner in granting a Certificate of Appropriateness for the proposed dwelling to be located at 19 Centerboard Lane, South Yarmouth, Massachusetts. 2 The Yarmouth Town Committee did not exceed its authority in granting a Certificate of Appropriateness for the proposed dwelling to be located at 19 Centerboard Lane, South Yarmouth, Massachusetts. The Yarmouth Town Committee did not exercise poor judgment in granting a Certificate ; ; ,Q�ppropriateness for a new dwelling to be located at 19 Centerboard Lane, South Ye armouth, Massachusetts. The Yarmouth Town Committee decision of January 9, 2012, to issue a Certificate of Appropriateness to the Applicant should be affirmed. Commission's Determination: As to Appeal #2012-1, the Decision of the Yarmouth Town Committee in granting a Certificate of Appropriateness for a new dwelling to be located at 19 Centerboard Lane, South Yarmouth, Massachusetts is affirmed. (4-0-1). Any person aggrieved by this decision has a right to appeal to the Dis Arrect Court Department, Barnstable Division, within 20 days of thg filing of th' decision with the Yarmouth Town Clerk. �[ Dated: February 21, 2012 Peter � L4menzo, Jr., Chairperson VA