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Home My WebLink About4949 6 Merrymount Rd Decision RecordedDoe: 1, 476, 368 02-21-2023 10: 48 TOWN OF YARMOUTH BOARD .OF APPEALS DECISION F LED WITH TOWN CLERK: May 12, 2022 PETITION NO: 4949 HEARING DATE:. April 28, 2022 PETITIONER: James-lgoe, . Manager :of nerrymount LTC PROPERTY: 6 Mcrrymount Road,' West Yarmouth, MA Map 23, Parcel 81 Zoning District. R-25 Title:7Vio'cument No. 1 ,-476, 362 Cert #232296 MEMBERS PRESENT AND VOTING . Chmiirman Steven DeYoung, Douglas Campbell, Megan Homer and Jay `Fraprle 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 Cade Cod Tunes, the hearing opened and held on the date stated above. The Applicant seeks to reverse -the March 9, 2022 decision of the LBuilding Commissioner; and/or a Variance from §203.5 to establish the iot.as buildable,,and allow a single family dwelling on. the lot. Petitioner also seeks; in the alternative; eithera Spechd-Pennit or a 'V'ariartce 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 curvently a bare lot containing 9,600 square feet and. $0 feet of frontage ,on Merrymount Road.: The. current owner- of the` property; Eleanore Townsend, took title pursuant to a deed dated Janaaiy 18, 1961, and this.inforination has been verified in a, letter: of- forrner...Deputy. Building Cornmissiorier Jaynes D. Brandolin ' dated January 21, 2021, and again- .in a -letter dated March 9 2022 '.fi.om the. present Biiildi_ng Commissioner; Mark Giylls. It is from this letter that the Applicant's appeal arises,. seeking to overturn the :Decision of the Building Conunissioner. The. abutiing.property, which shares.a corn mon rear boundary with the subject property, is located at 45 Pi e Cone Dri'Arc, This &6d-was conveyed to Ms. Townsend in December of 1960, and it is this common ownership, as of 1961 which the building depariment 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 tinge the -lot size was wriforming...On-March 7, 1960, the niinitnum lot area f6.r-a.parcel in this zoning district was increased to 10,000 square feet as a minimum. This change resulted in'. these . uE �,E C. 104MC 0MC [TOW .. CEERK Doc:1,476,368 02-21-2023 10:48 Page 2 of 4 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. ,4ny increase in area, frontage or other dimensional requirements of this .zoning bylaw shall not apply to a lot for single family residential use, provided (lie plan for such lot was duly recorded or endorsed and such lot was held'in common ownership with contiguous lots and had less that? the dimensional. and densh), requirements of the newly effective zoning but contained at least seven thousand five hundred (7, 500) square feet and seventy-five (75)feet of;fi-ontage, or contained fifteen thousand (15, 000) square feet and f jty (50) feet of frontage if approved under section 203.2 of this bylaw. This exen?ption 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 clean 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 coninaonly 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 Mar. Fraprie, seconded by W. Campbell, to Overturn the Decision of the Building Commissioner, for the reasons statod. The members voted unanimously, by roll call vote, as follows: Mr. DeYoung. AYE Mt. Fraprie AYE Ms.Homer AYE W. Campbell AYE The applicant moved and was allowed to withdraw a1E other requests for relief, as it was -the consensus.of-tlie-Baled that no such relief was needed. Accordingly, a notion was.made by Mr. A TRUE COPY ATTEST I i'OWCt.i=R�K IIILI 4 4 nnnn Doc:1,476,368 02-21--2023 10:48 Page 3 of 4 Frapric, 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 lriade 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 1, 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, F�u4e- - - Mary.A. Maslowski Town Clerk JUN 1..1 2022 A TRUE COPY ATTEST: CUMC rGMG. r'rVwiV GLERK JUN 1..1 2022 Doc:1,476,368 02-21-2023 10:48 Page 4 of 4 COMMONWEALTH OF MASSACHUSETTS TOWN OF YARMOUTH BOARD OF APPEALS Petition 4: 4949 Date: June 2, 2022 Certificate of Granting (General Laws Chapter 40A, Section 11) The Board of Appeals of the Town of Yarmouth, Massachusetts Hereby certifies that the relief sought has been granted to; James Igoe 6 Merrymount Road . West Yarmouth, MA 02673 Affecting the rights of the owner with respect to land or buildings at: 6 Merrymount Road, West Yarmouth, MA; Map #:.23; Parcel. #: 81; Zoning Distrief: R-25; Book/Page- 32131/3 and the said Board of Appeals further certifies that the deoisioii attached hereto is a true and correct copy of its decision granting said Special Permit, 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 Special Permit; or any extension, iuodification or renewal thereof, sliall.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 cotuity and district in which the land is located and indexed in the grantor index under the naive of the owner of record or is recorded and noted on the owner's .certificate of title. The fee for such recording or registem" ig shall be paid by the owner or applicant. Steven S. DeYoung; Chairman A TRUE COPY ATTEST AT�TEST: emmey CMS. /'ftlVVN 0LEKK JOHN E. MADE, ASSISTANT RECORDER BARNSTABLE REGISTRY LAND COURT DISTRICT JUN 1.1 2022 RECEIVED 6 RECORDED ELECTRONICALLY