Loading...
HomeMy WebLinkAboutviolation notice/court papers TOWN9FNAPIOUTH 1146 Route 28. $ . a riouth, MA 02664 31 508-398-22 e 261fax- 508-398-0836 Office of the;Ruin frtommissioner VIOLATION NOTICE Stephanie L Babetto 44 Madison Ave South Yarmouth, MA 02664 July 2, 2019 RE: 44 Madison Ave—Accessory apartment Dear Ms. Babetto, This letter constitutes a formal zoning enforcement order under MGL Ch 40A. It has come to the attention of the building department through a police report, that there is an accessory apartment at this property without the required relief from the zoning board of appeals. This is a violation of section 407.2 of the Town of Yarmouth Zoning Bylaws; 407.2 Standards and Requirements. "The Board of Appeals may authorize accessory apartments only by special permit" Failure to comply with the provisions of the zoning bylaw may result in penalties as prescribed. 101.3 Penalties.Any person violating any of the provisions of this bylaw shall be fined not more than three hundred dollars ($300.00)for each offense. Each day that such violation continues shall constitute a separate offense. At the September 27, 2018,Zoning Board of Appeals hearing wherein you withdrew your application once the board indicated that you did not appear to meet the requirements of section 407. You are hereby ordered to abate and or correct said violations immediately,or seek relief from the Zoning Board of Appeals as allowed by MGL Ch 40a§7 & §15. Failure to do so may result in criminal/civil complaints being filed against you. You also have the right to appeal this decision with the Zoning Board of Appeals within 30 days of this letter. You are required to respond to this letter within 7 days of receiving this letter. Very Truly, Tim Sears CBO Local Inspector Town of Yarmouth C: Town Counsel,Mark Grylls,Bruce Murphy Sears, Tim From: Sears,Tim Sent: Tuesday,July 9, 2019 3:52 PM To: 'Babetto, Stephanie' Cc: Grylls, Mark Subject: RE:Violation Tracking: Recipient Read 'Babetto,Stephanie' Grylls,Mark Read:7/9/2019 5:25 PM Stephanie, Thank you for the response.We will be looking forward to hearing from your lawyer. Timothy Sears CBO Building Inspector Town of Yarmouth 508-398-2231 Ext. 1259 mailto:tsears@yarmouth.ma.us From: Babetto,Stephanie [mailto:sbabetto@capecodfive.com] Sent:Tuesday,July 9, 2019 3:48 PM To:Sears,Tim<tsears@yarmouth.ma.us> Subject:Violation ^: z =-:'%�' YG1ryx1}�� »ll�l,A - a - s• �"la �; tnDooto t ulssyou this ema Oder and you°lunar ~ °+ � 1"to verify if •. "'.. se elete th 16a �' i� u � Good afternoon: I just wanted to touch base to say that I received your letter yesterday and my lawyer will be touching base with you on my behalf. Stephanie Babetto 1 TOWN OFY"AVTOUTH 1146 Route 28, Solth, Yar outh, MA 02664 508-398-223 Fax e It Office of the Boil Commissioner µ 5_ Stephanie L Babetto 44 Madison Ave South Yarmouth,MA 02664 August 15,2019 RE: 44 Madison Ave—Accessory apartment Dear Ms. Babetto, The Building Department received a Yarmouth Police Department report on June 28,2019 about an incident which occurred on June 23, 2019, regarding a landlord/tenant dispute. As you are aware,the Building Department served you with a formal zoning violation notice dated July 2,2019,regarding the accessory apartment at this address. You indicated in an email on July 9, 2019 that your attorney would be contacting this department on your behalf. To date we have not received any communication regarding this matter. The 30 day appeal period allowed under MGL Ch 40A§15 has lapsed.Accordingly,the zoning violation may not be contested and your compliance is required.Therefore,if the violation is not remedied in 30 days from the date of this letter,the town will seek all available remedies including, but not limited to injunctive relief in Superior Court. Question in this matter may be directed to this department. Very Truly, Tim Sears CBO Local Inspector Town of Yarmouth C: Town Counsel,Mark Grylls, s / Yarmouth Police Department Page: 1 t Incident Report 06/28/2019 ;;H, 1 Incident #: 19-766-OF Call #: 19-15303 Date/Time Reported: 06/23/2019 1823 Report Date/Time: 06/28/2019 1023 Occurred On: 06/23/2019 1823 Status: No Crime Involved Reporting Officer: Patrol Ofc. Mary Gibney Signature: LOCATION TYPE: Residence/Home/Apt./Condo Zone: South Yarmouth 44 MADISON AVE YARMOUTH MA 02673 1 LANDLORD/TENANT DISPUTE - POSS BY-LAW VIOLS # PERSON(S) PERSON TYPE SEX RACE AGE SSN PHONE 1 TEIXEIRA, MARGARETE COMPLAINANT F W 47 *********** ************ 44 MADISON AVE YARMOUTH PORT MA 02675 DOB: ********** EMPLOYER: SELF-EMPLOYED • ************ 2 BABETTO, STEPHANIE L PARTICIPANT F W 27 *********** ************ 44 MADISON AVE YARMOUTH MA 02673 DOB: ********** Yarmouth Police Department Page: 1 PERSONNEL NARRATIVE FOR PATROL OFC. MARY F GIBNEY Ref: 19-766-OF Entered: 06/28/2019 @ 1034 Entry ID: 5276 Modified: 06/28/2019 @ 1109 Modified ID: 5276 On Sunday June 23,2019,I, Officer Gibney was on patrol in the Town of Yarmouth in marked patrol unit J17. I was dispatched to 44 Madison Avenue for a landlord tenant dispute. The tenant,Margaree Teixeira reported that her landlord had turned off the utilities. I arrived and knocked on the door, a female answered while holding back two dogs and I asked if she was Stephanie. She stated no and directed me to a door to the right through a gated and fenced in area. I arrived and met with Teixeira. She stated she has no power and hasn't since yesterday She stated she had spoken with Officer Eccleston who called the landlord and told them to turn the power back on. She stated the landlord is now home and the power is still off. Teixeira explained that she will be in the apartment for one more week and will be out by July 1st. She stated she is using her security deposit to pay for the month of June. I asked her the what the tenants name was and she stated Stephanie but did not know her last name. The landlord was later identified as Stephanie Babetto. I went outside and returned to the door I initially went to. Babetto and answered and I asked if I could step in so the dogs didn't escape and they allowed me to step inside. She was with another male party. I stated the tenant didn't have power and asked what was going on. She responded that she had power. I repeated again that the tenant did not. She stated all her lights worked. There were no lights on which I pointed out that it didn't look like it. She then stated the television was on and pointed to it, requiring me to look a bit further in to see it was on. The male party then stated I could look at the breaker panel. I responded that I just wanted the power turned back on and added that it is a crime to turn off the utilities to an apartment. The male party responded by asking if I could prove that they turned it off. They added they have on going work at the house including plumbing. They offered again to show me the breaker panel so I took them up on the offer. We walked out the rear of the apartment and around the side of the house. We entered through a newly constructed walk out door and into a basement that was in the process of being finished. This basement area was directly under Teixeira's apartment. He showed me a very small room where I observed two breaker panels. The male opened them up made a statement indicating they were all on. I was able to clearly see that at least three were not on. They were marked for the right side of the house which appeared to be Teixeira's apartment. I had the male turn the power back on. There was discussion about how it should not require a police officer to visit them to have them turn the power back on after they had been advised by phone. They claimed they did not know what was going on with the power because of the work. I again reiterated they could have checked the panel themselves. I returned to Teixeira and she advised she now had power. While on site, I did not note a displayed permit for work to be done on the house. I advised the building inspector and commissioner of my observations who have requested a copy of my report. The request was forwarded to the records department. Respectfully submitted, Yarmouth Police Department Page: 2 PERSONNEL NARRATIVE FOR PATROL OFC. MARY F GIBNEY Ref: 19-766-OF Entered: 06/28/2019 @ 1034 Entry ID: 5276 Modified: 06/28/2019 @ 1109 Modified ID: 5276 Mary Gibney Patrol Officer#141 ** Portions of this report have been redacted ** COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss SUPERIOR COURT C.A. NO. TOWN OF YARMOUTH by and through its BUILDING COMMISSIONER, VERIFIED COMPLAINT FOR Plaintiff INJUNCTIVE RELIEF v. STEPHANIE L. BABETTO, Defendant INTRODUCTION This is an action, pursuant to G.L. c. 40A,to enforce the Town of Yarmouth's Zoning Bylaws as well as the Town of Yarmouth Building Department's formal Notice of Violation mandating that defendant Stephanie Babetto ("Ms. Babetto") immediately cease use of and remove the second dwelling unit/accessory apartment she created at her property in violation of Zoning Bylaw Section 407.2 which authorizes accessory apartments only by special permit. Ms. Babetto both failed to appeal the Notice of Violation and failed to comply with it and the time in which to do either has long since passed. For these reasons,the Town of Yarmouth now asks this Court to take necessary action to enforce the Town's order and the Zoning Bylaw by ordering the Ms. Babetto to immediately cease and desist any use of her property as a two-family dwelling and to remove any and all unlawful construction by which she created the second dwelling unit forthwith. 1 JURISDICTION AND PARTIES 1. The jurisdiction of this court is founded upon the general equitable powers of G.L. c. 214, § 1, and G.L. c. 40A, § 7. 2. Plaintiff Town of Yarmouth (the "Town"), by and through its Building Commissioner, is a municipal corporation with a usual place of business at Yarmouth Town Hall, 1146 Route 28, South Yarmouth, Massachusetts. 3. Stephanie Babetto("Ms.Babetto")is an individual residing at 44 Madison Avenue, Yarmouth, Massachusetts. FACTS 4. Ms. Babetto is the record owner of property known and numbered as 44 Madison Avenue, Yarmouth, Massachusetts ("the Property") and shown on the Town Assessors Maps as Parcel 88-100. A true and accurate copy of the Town Assessor's Property Card is attached hereto as Exhibit A. 5. Upon information and belief, Ms. Babetto resides at the Property. 6. The Property is in the Town's Residential Zoning District and is improved with a single-family home. 7. On or about July 15, 2014, the prior owner of the Property had received certain zoning relief to construct an addition on the Property including a garage, master bedroom suite and subsequently a Building Permit to convert the existing garage into a kitchen, finish the basement space and install a sliding, walk-out door to the basement. That Building Permit explicitly forbid the creation of another dwelling unit stating that additional relief was required under the Zoning Bylaw from the Zoning Board of Appeals. 2 8. On or about September 13, 2018, Ms. Babetto sought a permit for an accessory apartment and appeared before the Town's Zoning Board of Appeals(the"Zoning Board")to seek a Special Permit under Zoning Bylaw Section 407 for a Family Related Apartment and a Variance from Section 407.2 to exceed the 800 square feet maximum area requirement. True and accurate copies of relevant provisions of the Zoning Bylaw are attached hereto as Exhibit B. A true and accurate copy of the Zoning Board's record of decision is attached hereto as Exhibit C. 9. At the public hearing,the Town's Building Inspector stated that a Stop Work Order had already been issued on the Property as to the ongoing construction and that it still had open permits. The Building Inspector explained that the Building Permit stated: "convert existing garage into a kitchen, finish basement space,and install slider for walkout basement,no additional bedrooms per Board of Health. Creating a separate dwelling will require approval from the Board." 10. During the public hearing, the Zoning Board expressed concern regarding the square footage of the proposed apartment that Ms. Babetto had created which exceeded the Zoning Bylaw's maximum area limit. Given the Zoning Board's that concern as well as many others over the project it appeared that the Ms.Babetto would not receive a favorable vote. Ms.Babetto shortly thereafter withdrew her application voluntarily without prejudice. 11. On June 23, 2019, the Yarmouth Police Department received a complaint concerning a landlord tenant dispute at the Property. A Yarmouth Police Officer was dispatched to the Property to investigate that complaint. A true and accurate copy of the Incident Report is attached hereto as Exhibit D. 12. Upon arrival at the Property, the Officer asked to meet with the tenant and was directed to a door around the right side of the house,through a gated and fenced in area. The tenant 3 reported that her landlord, Ms. Babetto, had turned off the power within her apartment and that she had not had power since the day before. The Officer then met with Ms. Babetto to inquire further about the power. See Exhibit D. 13. The Officer was then directed to the Property's breaker panel. He exited Ms. Babetto's living space, walking around the side of the house through a newly constructed walk- out door, and into a basement that was in the process of being finished. Here, he inspected the breaker panels and observed that three switches marked for the right side of the house—which the Officer observed to be the tenant's apartment—were not on. See Exhibit D. 14. In his report,the Officer noted that Ms. Babetto had displayed a permit for work to be done on the house. He then informed the Town Building Inspector and Commissioner of his observations. 15. On July 2,2019,following his receipt of the Incident Report,the Building Inspector issued a formal zoning enforcement order(the "Notice of Violation") to Ms. Babetto, pursuant to G.L. c. 40A, stating that the Town had since become aware of Ms. Babetto's creation of an accessory apartment at the Property without the required relief from the Zoning Board—a violation of Section 407.2 of the Yarmouth Zoning Bylaws. The Building Inspector ordered Ms. Babetto to abate and/or correct the violations, or else seek relief within 30 days from the Town's Zoning Board of Appeals, under G.L. c. 40A § 15 and 17. A true and accurate copy of the Notice of Violation is attached as Exhibit E. 16. On July 9, 2019, Ms. Babetto emailed the Building Inspector to "touch base" and inform him that her lawyer would be contacting him on her behalf. 4 17. By August 1, 2019, Ms. Babetto's the 30-day period in which to appeal the Notice of Violation to appeal to the Zoning Board, pursuant to G.L. c. 40A, § 15, had lapsed without any communication to the Building Inspector or the Zoning Board by Ms. Babetto or anyone on her behalf. 18. On August 15, 2019, the Building Inspector again wrote to Ms. Babetto and reminded her of her obligation to comply with the Notice of Violation and decommission the second dwelling unit. A true and accurate copy of the August 15, 2019 correspondence is attached hereto as Exhibit F. 19. On September 10, 2019, the Yarmouth Board of Health conducted a follow-up inspection of the Property and confirmed that Ms. Babetto had closed off a portion of her newly renovated addition, making it into an accessory apartment—in violation § 407.2 of the Yarmouth Zoning Bylaws. A true and accurate copy of the September 20, 2019 Health Inspection report is attached hereto as Exhibit G. 20. As of the date of the verification of this Complaint, Ms. Babetto has not complied with the Notice of Violation nor has she appealed it to the Zoning Board and the time to do either has long since passed. 21. As of the date of verification of this Complaint, the Town has received no communication from either Ms. Babetto or anyone on her behalf 22. Notwithstanding good service of multiple orders, the Ms. Babetto has failed to comply and the second dwelling unit on the Property remains in the same unlawful manner as before and the same unlawful conditions continue to exist. 5 23. Ms.Barbetto's failure or inability to comply and remove the unlawfully constructed accessory apartment poses a danger to the health, safety and well-being of any occupant and the general public. COUNT I Violation of the Zoning Bylaws 24. The facts asserted in paragraphs 1 through 23 of this Complaint are hereby incorporated and reasserted as if fully restated herein. 25. Pursuant to G.L. c. 40A, § 7, and Section 101.1 of the Zoning Bylaws,the Building Commissioner is responsible for enforcing the provisions of the Zoning Bylaws. See Exhibit B. 26. Section 407.2 of the Town's Zoning Bylaw provides that an accessory apartment must be approved by special permit from the Zoning Board; and that it shall be no larger than 800 square feet, including all habitable space, closets, and storage. 27. There has been no zoning relief granted that would allow an accessory apartment at the Property. 28. As detailed above, the Yarmouth Police Department discovered that an accessory apartment had been constructed and occupied on the Property. 29. The addition of an accessory apartment at the Property without a special permit violates Sections 407 and 407.2 of the Town's Zoning Bylaws. 30. As detailed above, the Building Inspector, acting on behalf of the Building Commissioner, issued an order to Ms. Babetto mandating that Ms. Babetto cease use of the accessory apartment on the Property. 31. Ms. Babetto did not comply with the order nor did she appeal it and the time to do either has long since passed. 6 32. Notwithstanding good service of that order, Ms. Babetto has failed to comply with it and the dwelling on the Property remains in the same unlawful manner as before. 33. To date, Ms. Babetto has not given any indication that she is capable of, or interested in, complying with the order and/or bringing the Property into compliance with the Zoning Bylaws. 34. The Town is, therefore, entitled to injunctive relief compelling Ms. Babetto's compliance. RELIEF REQUESTED WHEREFORE, the Town of Yarmouth, by and through its Building Commissioner, respectfully request this court to: A. Following a hearing, issue a Preliminary Injunction: (1) restraining any use and occupancy of the Property and structures thereon for an accessory apartment,unless and until complete and proper relief is granted therefor and the Town certifies so in writing, or until further order of the Court; (2) requiring the defendant to schedule and allow an inspection of the Property by the Town's duly appointed inspection agents; (3) requiring any and all Zoning Bylaw violations be cured forthwith by removing any unlawful construction undertaken to create the second dwelling unit as instructed by the Town's inspection agents following the above inspection. B. Issue a Judgement and Permanent Injunction in the form of the above requested injunction; C. Award the Town its costs and attorney's fees owing to the prosecution of this matter; and 7 D. Grant such additional relief as the Court deems just and proper. TOWN OF YARMOUTH by and through its BUILDING COMMISSIONER, By its attorneys, Brian Winner(BBO#654997) MEAD, TALERMAN& COSTA, LLC Town Counsel 730 Main Street, Suite 1F Millis,MA 02054 (508) 376-8400 Brian@mtclawyers.com Dated: 8 TOWl .V`, 1.a OUTH 1146 Route 28 y, ®1; $ ,4 ,� th MA 02664 508-398-223 , ;.r 4008-398-0836 Office of Y i , . 1 .0. 770k iimissioner \VtitTTACri LSE! Stephanie L Babetto 44 Madison Ave 15 South Yarmouth,MA 02664 August le,2019 RE: 44 Madison Ave—Accessory apartment Dear Ms. Babetto, The Building Department received a Yarmouth Police Department report on June 28,2019 about an incident which occurred on June 23,2019,regarding a landlord/tenant dispute. As you are aware,the Building Department served you with a formal zoning violation notice dated July 2,2019,regarding the accessory apartment at this address. You indicated in an email on July 9, 2019 that your attorney would be contacting this ,department on your behalf. To date we have not received any communication regarding this matter. The 30 day appeal period allowed under MGL Ch 40A§15 has lapsed.Accordingly,the zoning violation may not be contested and your compliance is required.Therefore,if the violation is not remedied in 30 days from the date of this letter,the town will seek all available remedies including,but not limited to injunctive relief in Superior Court. Question in this matter may be directed to this department. Very Truly, Tim Sears CBO Local Inspector Town of Yarmouth UERTI S. PosFItaEDl ServiceAILT C MAIL® RECEIPT rn Domestic Mail Only C:Town Counsel,Mark Grylls, For delivery information.visit our website at wtvw.usps.cotn co ru Jim ces&Fees( oew a$teems pRewm aeceivs Postmark O ❑�m Recelvt( Delivery $ Here Celled MailRye $_ al ['Adult Ridredure O p,4dun Required 'RefWerY$-- a Postage 43 .D Total P $ ln Stephanie L Babetto _____ 44 Madison Ave C) $iieei South Yarmouth, MA 02664 --------- CO .tructio PS Form "'." • - TOWN F .. OUTH 1146 Route 28,,-No uth, MA 02664 508-398-2231 1 Fax 508-398-0836 Office of the Build i Commissioner Stephanie L Babetto 44 Madison Ave South Yarmouth,MA 02664 August 13, 2019 RE: 44 Madison Ave—Accessory apartment Dear Ms. Babetto, The Building Department received a Yarmouth Police Department report on June 28,2019 about an incident which occurred on June 23, 2019,regarding a landlord/tenant dispute. As you are aware, tThe Building Department notified-served you with a formal zoning violation notice dated July 2, 2019, regarding the accessory apartment at this address. You indicated in an email on July 9, 2019 that your attorney would be contacting this department on your behalf. To date we have not received any communication regarding this matter. The 30 day appeal period allowed under MGL Ch 40Aa§15 has lapsed.Accordingly,the zoning violation may not be contested and your compliance is required. Therefore,itf the violation is not remedied in 30 days from the date of this letter,the town will seek all available remedies including, but not limited to injunctive relief in Superior Court. Question in this matter may be directed to this department. Very Truly, Tim Sears CBO Local Inspector Town of Yarmouth C: Town Counsel,Mark Grylls, . , 1 . . . ... - • • , :!:::€izal."Ta-.,rx.vsiff*,7°. 0 SZ-LT-9 S6SO-ZZEG* 9VE911171799Z0 :318 3N n asvmso 01 aisaNn oawiv-iNn , , i 6T/ L0/6000 I BO STO B1X IN \ v VIN 'LlInowieA innos 0\\Li eAv uosipeoi t7t7 oneqee 1 epet4dels • (7E1%2) ET9T 2692 0000 0990 9TOL ,,no-cion t 14.,L. iit Igkli 1/99Z0 VW Illnout III I 1 1111111111 I lill I I 8Z g t:,:i!"4-3141 luotuppda( EL CIOIAIIIVA di 1111141 03111111.33 hvfilltiviliftlillifItyllitsfillifitififfiliflifiltilltilill ttvE:F.:43T—t9.9.Z0 f., grA, • . • C--)-1".11-**.? • -.a, tst,444(.44. 4fie t's—*444'4. C131/1111/10Nn oks?bi4ele:;(„ttfirect.„<--,41/04,v)i)0,04:00t6 /\ c,+-- ,_.. _ eAv uospeoi i717 4Ntf,-,44. 44,441,41.414<ecip"...cii,Y00Z,) 1,1 IL .v °floc:leg -I apeLidels 'I, Alb ,41446. v 2hE0 2692 0000 0990 9TOL I I , I Kt/71799W VIN‘11111°111. il nO 6/4 11 ll 11 111 1111111111 1111 luatuppda( , 1 i 11 11 HiflOWNVA,4( 4.7)14340'4* r ,,..........."...............i. ...