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Home My WebLink AboutAppeal of Decision 4994 Evangelical Baptist Church 02.15.23SroNp a Rero ATTORNEYS AT LAW A T>ROFLSSIONAL A^SSOCIA IION ' SOLTTFI YARMOUTH PROFESSIONAL BUILDING r 292 RoUTE 28 Sor.nH YARMou"nH, MA o26,64-44s2 TEL (sO8) 394-564a FAX (soa) 398.1699 {ff RI,IDUTH lOI,IhI CLERK ,23FEBL5Pil12:46 REC Dnvro S. REID, ESQ. DSReid@verizon.net Mrcnrul. F. S'roNn, ESQ. MFStoneEsq@comcast.net Febuary JJ2023 Mary Maslowski Yarmouth Town Clerk I 146 Route 28 South Yarmouth MA 02664 RE: Zoning Board ofAppeals #4994 1240 Route 28, S Yarmouth MA Dear Madam Clerk, Please be advised that I have hled an appeal from the recent decision of the Yarmouth Zoning Board of Appeals, on the application of the Evangelical Baptist Church of South Yarmouth, lnc., pertaining to property at 1240 Route28, 10 Carter Road, and 63 & 69 Pond Street, South Yarmouth, MA, being decision # 4994. A copy of the Complaint filed with the Bamstable Superior Court is attached for your records. dS, cc: Yarmouth ZBA Paul R. Tardif, Esq. i Each Atlomey in lhis omce is an independent practitioner who is not responsible for the practic€ or liabiliti€s of any oth€r attomey in the oflice. Rulc 7.5 (d) encl (2) COMMONWEALTH OF MASSACHUSETTS TRIAL COURT OF TI{E COMMONWEALTH SUPERIOR COURT DEPARTMENT BARNSTABLE, ss CIVIL ACTION: 2t t,? c: v 000 (t / COMPLAINT (M.G.L. c. aOA $17) EVANGELICAL BAPTIST CHURCH OF SOLIHYARMOUTH,INC. AND SEAN IGOE, RICFIARD NEITZ, TIM KELLEY, AND JAYFRAPRIE, Defendants L The Plaintifl Mark Fallon is the owner of and resident at 13 Carter Road, South Yarmouth, MA. 2. The Defendant, Evangelical Baptist Church of South Yarmouth, Inc. is the owner of the property at 10 Carter Road,63 & 69 Pond Street, and 1240 Route 28, South Yarmouth MA. 3. The Defendants, -Sean Igoe, of 223 South Sea Ave., West Yarmouth,MA02673 - Jay Fraprie, of 36 Pheasant Cove Circle, Yarmouth Port, MA 02675 - fuchard Neitz, of ll General Holway Road, S. Yarmouth Ilu4.A02664 - Tim Kelley, of 20 Buckwood Drive, S. Yarmouth, MA02664, are the duly constituted and voting members of the Yarmouth Zoning Board of Appeals relative to the matter that is the subject of this action. 5. On or about January 26,2023, the Yarmouth Zoning Board of Appeals held a duely noticed public hearing on the Defendants' said application, and after hearing voted 4:0 to grant the requested special permit. 'tARl'tOUTH T0inN CI-ERK ,2gpgg15ps|!:4? REC V MARK FALLON, Plaintiff 4. On or about November 29,2022, the Defendant (Church) filed an application with the Yarmouth Zoning Board of Appeals seeking a special permit pursuant to bylaw section 104.3.5, to combine and re-divide its developed land at its said addresses, in Yarmouth MA. l l l l l l l l l l l 6. The Decision ofthe Board rendered in the above references action-qpp$ff;$, with the Yarmouth Town Clerk on February 2,2023. ( See copy attaiiti-dddi Exhibit A) 7. The Plaintiffasserts that he is an abutter and neighbor ofthe subject property a Party-in-Interest to this application. 8. The Plaintiff appeared at the said Hearing to oppose the Defendant's request. 9. The Plaintiff asserts that the Defendant (Church) was not eligible for the subject reliei as its original multiple lots have long since merged into a single lot, for zoning purposes. 10. The Plaintiff asserts that the Board exceeded its authority in granting the special permit at issue, as the relief granted is not supported by the facts or the law. I I . The Plaintiff asserts that he is aggrieved ofthe said Decision ofthe Board, and appeals therefrom pursuant to M.G.L. c. 40A, $ 17. WHEREFORE, the Plaintiffrequests that this Honorable Court : 1) Annul the decision ofthe Board, as being beyond the authority and jurisdiction ofthe Board, and being unsupported by the facts and the law, 2) Grant such other or further relief as may be deemed just, proper and equitable. Respectfu lly submitted, Mark Fallon, Bv hi omey: David S. Reid Esq BBO 41s540 1292 Route 28 S. Yarmouth M402664 508-394-5648 DSReid@velizon.net YARTIOUTH TOIilN CLERI( t2:4? REC TOWNOFYARMOUTH BOARD OF APPEALS DECISION zoning district. The common zoning line actually runs through the rear halfof th-r. church, with the school and the house structures being located fully within the VARMOUTH TTI}IhI CLERK '2SFEB2A1410:46 REC YffPitOUTH TI]IIH CLERK ,tBFEtsl5pi,,12:4? REC PETITIONER: Evangelical Baptist Church of South yarmouth, Inc. PROPERTY: 10 Carter Road,63 and 69 pond Stree! and 1240 Route 28, South Yarmouth, MA Map 60, Parcels 101, 102, 103 and 104 Zoning District: B-2 and R-40 Tltle: Book lil2rPageSlT and Book 2956, page226 MEMBERS PRESENT AND vorING: sean lgoe, Dick Neitz, Jay Fraprie and rim Kelley Notice ofthe hearing has been given by sending notice thereofto the Petitioner and all those owners ofproperty 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 Petitioner seeks a special Pern t pursuant to Yarmouth Zoning Bylaw $104.3.5 and./or per $202.5 to combine and redivide lots and create 3 improved and non-conforming lots in two mning distsicts. The properties are divided into two different zoning dishicts, with the portion lfng closest Route 28 being in the B-2 zoning district, and the rear portion ofthe campus being ln e v- A TRUE CO district. FEB l0 2023 cMc/ l/ F'ILED WITH TOWN CLERK: Febrtary 2,2023 PETITION NO: 4994 HEARINGDATE: Jrmuary26,2023 The Property is located in the B-2 and R40 Zoning Districts and is improved with 6 total structures consisting of the Evangelical Baptist church, the associated school, which used to house the Trinity Christian Academy, a two-story house, a one car gamge, and 2 sheds, plus paved parking areas on either side ofthe church along Route 28. The property is comprised of6 parcels, plus a twenty-foot former way from Pond street, which is owned by the petitioner. The antire complex has frontage on Route 28 to the south, carter Road to the west, and pond Street to the east, and consists of a total of 67 ,930 square feet. The existing structures, with a building coverage of 13.2%, comply with front and side yard setbacks. According to the Assessor Field Cards, the school and the house were built in 1910, and the church in 1963. vAFJil0LlTll T'llili Ii'-r:l{K '23trEEiEFHi?:4T fEt In the warmet months, the congregation currently meets in the church for religious services. In the colder months, they meet in the school to save on heating. congregants also meet in the school 3 times each week, year-round, for bible study. The school also houses the church administrative business. Trinity christian Academy operated in the school from 1967 gyorrgh 2003. The house at 63 Pond Stre€t is in some disrepair. Each structure has its own septic system, although none have been tested recently, nor did they need to be as there has been no change of ownership since 1979, whor the applicant acquired most of the properties. The proposal is to combine and tedivide the 6 parcels into 3 separate lots, with each lot having one structure located thereon. The one car garage will be removed. The proposed Approval Not Required Plan shows that Lot 1A will contain the church building, and a parking loi. The zoning district line will continue to run through the building. The majority of the lot wiil be located in the 82 zoning dishicq and will have 21,103 square feet of area, where 20,000 square feet is required in that zoning district. Lot 2A will contain the school building, located in the R-40 zoning district, but having 25,573 square feet. Finally, Iot 34 will be completely in the R-40 zoning district and contain the house, and have 21,254 square feet of area. One abutter opposed the plan, expressing concerns in written correspondence and in person thatlot 24, containing the school and paved lot in the B-2 Zoning District would ultimately be used for business purposes. The Board explained that the zoning districts would dictate whai uses would be allowed on the lo! and that the Petitioner was not proposing, nor legally able, to rezone the lot without approval at an annual rown Meeting. Although not expressed as ielief from the Zoning Board ofAppeals, as it is not necessary for future uses of the property, it was the consensus of the Board that the most likely use ofthe school would either beto continue its educational / religious uses, or the lot would be used for residential purposes. Numerous letters in support from abutters were submitted and read into the record, each expressing that the reliefbe granted, that the proposal would maintain the residential atnospherq and that additional housing could be created without an increase in traffic, noise or nuisance. Although the Board questioned the configuration of the new lots and whether altematives were considered, they agreed that the applicant's proposed lot layout was within the applicant's sole discretion. The Board then considered therequest pursuant to zoning Bylaw section 104.3.5, the purpose of which is to 'lrovide for the ordedy, efficient, and appropriate combination and/or re-division of multiple non-conforming lots where there is insufficient land to permit the resulting lot(s) to comply with the current dimensional requirements of the Bylaw" and to ,,accomplish m*i-urn feasible compliance with the intent and purpose of the current zoning bylaws where full compliance is not possible but where development of the available land may otherwise be accomplished without substantially derogating from the intent and purposes of the bylaws." The Board found that the petitioner was not increasing the number ofnon-conforming individually buildable lots over the number of such lots as presently exist, that the combination or re-division did not increase any pre-existing non-conformity nor create any new non-conformity as to any existing structure or use ofthe lots involved or affected by the combination or re-division, thit , no new vacant non-conforming lots were created, and that the resulting and affected lots as ,,._.- : , proposed would be consistent with the current and future development of the neighborhood ahd-,,. 1. A TRUE COPY ATTESTT'' , FEB 10 zo?'S CMC N CLERK qftRt'tiluTl{ Tr'iHhi *i. iR{' zoning district, would not cause or substantially contribute to any undue nuisance, hazard, or conge;tion in ihe neighborhood or zoning district, would substantially promote the iiE8ftEfll5PHizr4? QE* purpose of the Bylaws currently in effect, and the entire combination or redivision proposal would be consistent with the intent and purpose ofSection 104.3.5. The plan does show lots which are larger and more conforming than the lots previously laid out. Because of the bisecting zoning district line, any future uses which are not allowed in the respective zoning districts would need relieffrom the Board, which would also protect the abutters and the neighborhood from any intrusion ofbusiness uses in the residential zone. Accordingly, a motion was made by Mr. Fraprie, seconded by Mr. Kelley' to grant the request for the speciat Permit, without conditions. The mernbers 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 ofthis notice,/decision with the Town Clerk. Unless otherwise provided herein, the Special Permit shall lapse ifa 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 certi fu that 20 days have elaps ed since the filing with me of the above Board of D ecision #4994 that no notice of appeal of said decision has besn filed wi dismissed or denied. All appeals have been Mary A. Maslows A TRUE COPY ATTES T: th me,or d tcMcl'TOWN ,L.'i; |hL A Aq afU,f''l* hti n{t tXtUal<A M at ifurauftq $'tl.tr Ct('\.FEB .l 0 2023 '"' . G"*-- Sean Igoe, Vice Chair appeal has been filed it has been "r /5: /-J CIVTL ACTION COVER SHEET TRIAL COURT OF MASSACHUSETTS SUPERIOR COURT DEPARTMENT COUNTY BARNSTABLE DOCKET NO OF PLAT TIFF(S) Mark Fallon Evangollcal Baptlst Church ot South DEFENDANT(S)Yarmouth' lNc.' Sean lgoo' Dlck Noltz' Jay Fraprlo, Tim Kolloy Type Plaintifl's AttorneY name, Phone Number and BBO# David S. Reid, Esq. '1292 Route 28 S. Yarmouth MA 02664 508-394-5648 BBO 415540 Address, City/State/Zlp Type Oefendant's Attomey Name, Address,City/State/Zip Phone Number (lf Known) {Yf;Rt'{0UTii TllHil Cl _t- '23FEB15PH12:4T RE Zonlng Appeal G L c 4OA' Fast Track CODE NO. TYPE OF ACTION AND TRACK D ESIGNATION (Sce reverse side) TYPE OF ACTION (specify) TRACK tifufo fo etermd n ehlcnrcfftoesttfehofactsnhetaistaedmtenoeaizeddndtemplalsowlnhTe n le ad m nodlntercasbueretlebsrdodages lydrsthmrorFamesreganodamey (Attach ad Documented medical expenses to date:l. Total hospital exPenses2- Total doctor exDenses3, Total chiropractic expenses4' Total ohvsical therapv expenses5. Total btlier expenses (describe) B. Documented lost wages and compe4sation to date C. Documented proDerfy damages to dateD. Reasonablv ahticlpated future medica-l expenses f : iiilil;bii anticiiiatea lost wages and corhpensation to date F. Other docrimented items of damages (describe) G. Brief description of plaintiffs injury, including nature and extent ofinjury (describe) TORT CLAIMS d-iiional s[eets as necessary) Subtotal Total $ $ b $ $ $ $ $ $ $ A. ) $ ecessary)onal sheets as n(Attach Provide a detailed description of claim(s): COURT DEPARTMENT D ACTION PENDING IN THE SUPERIORPLEASE IDENTIFY, BY CASE NUM rNN, NAUO IXO COUNTY, ANY RELATE ts rrous oate,Ay'y'z) rcquir.mcnt! ofRulc 5 ofthe Suprcmc Judici al Court Uniform Rules on Dispute Resolution (SJC.d with thecertify thrl I h.vG compli"l h.reby rcsolution services rnd discusi with lh.m thciah informrtion rbou( court-conn.ct.d disput.Rulc l:18) rcquiring thrt I providc my hodsxdvrnt ge! ond di$dvtnt.8.s ofthe Signrturr of AttomaY ofRccord A.O.S.C. 3-2007 IS THIS A JURY CASE? c; I yes d I No a or claims;damage TOTAL $............... . CONTRACTS CIVIL ACTION COVER SHEET INSTRUCTIONS ?ft Rt't0uTH T0l4t{ {i-ERi( SELECT CATEGORY THAT BEST DESCRTBES YOUR CA9!-;r=gl5prtZ:4? iiC - REAL PROPERTY MISCELLANEOUS ServlcoS, Labor and Matorlals F) A02 Goodr Sold and Dellvered A03 Commorclal Paper A08 Salo oa Loaae ot Rell Erlrto Al2 ConEt uctlon Dlsputo A99 othor (Speclt) E03 Cl.lm! egalnst Commonwerlth or t unlclpallty (F) (F) (F) (A) (F) (A) .TORT 803 llolorvohlclo Nogllgonc. (F) porsoml ln uryrproporty dlmago Boil Othe, t{egllgenca- (D poEoml ln uryrpropo.ty d.rEgp B05 Pioduct8 Ll.blllty (A) AOG mrlpractlca{od lcrL (A) B0Tilalpractlca-Other(Speclty) (A) 808 Wrongtul Death, G.L. c.229,8.2A (A) Bl5Defamltlon(Llbol.Slandor) (A) Bl9 Arbesto8 (A) 820 PoEonrl lnlury. sllp & fall (F) B2l Envlronmsntal (F) 822 EmployrEnt Dlacrlmlnatlon (F) B99 Othor(Spsclt) (r) E03 Cl.lm. rg.lnlt Commonyrellth (A) Land Taklng (omlnent domaln) Zonlng Appoal, G.L. c.40A Dlsputo concemlng tltlo Foreclo3uro of mortgago Condomlnlum Llon & Chargeg Othor (Speclly) Cl.lms ag.lnst Commonwsalth or Munlclpallty EOUITA'LE RE EDIES Spoclfic Pe.formanca ot Contract Roach and Apply Contdbutlon o, Indemnltlcatlon lmpo3ltlon ota Tru3t lllnorlty Stockholdg/! Sult Accountlng Olaaolutlon of Partno.!hlp Doclaralory Judgm.nt G.L. c. 23lA Othor (Spoclfy) c0t c02 c03 c04 c05 c99 E03 o0'l o02 006 D07 o08 010 012 D13 D99 Appoal t[om Admhlltratlve Agonc, G.L. c. 30A Cl.lms agalnat Commonwgalth or ttlunlclpallty Conllrmatlon ol Arbltr*lon A*ardt G.L. c.ll2, 3.125 (Mary Moo) Appolnlmont of Recglvgr GonoEl Contracto. bond, G.L. c. 149, $. 29, 29a Worker'g Compensatlon G.L.c.123A, s.l2 (SOP Commltment) G.L. c. 123A, 3. 9 (SDP Petttlon) Abuse Potltlon, G. L, c. 2094 Auto Surcharge App€al ClvllRlght Act, G.L. c.ra r,1lH Forolgn Dbcovery Procoodlng Sox Ottondor Reglstry G.L c. l78t$, s.6 Plural Rsglstry (Asb€to€ c8sos) -Fortolturo G.L. c. g4C, s.47 Pd!oner Casqa P lonor Haboa! Corpua other (Spoclfy) E02 E03 E05 E07 E08 E09 (x) (A) (x) (x) (x) E11 E12 El1 E.t 5 E16 El7 El8 El9 (A) (x) (x) (x) (x) (A) (x) (x) E25 E95 E96 E97 E99 (F) (F) (x) (x) .Claims against the Commonwealth or a municipality are type E03, Average Track, cases.*'Claims filed by the Commonwealth pursuant to G L c 94C, s 47 Forfeiture cases are type E95, Fast track. TRANSFER YOUR SELECTION TO THE FACE SHEET, EX,AMPLE: CODE NO. 803 TYPE 0F ACTToN (SPECTFY) Motor Vehicle Negligence-Personal lnjury TRACK (F) IS THIS A JURY CASE? [X]Yes I l SUPERIOR COURT RULE 29 DUTY 0F THE PLAINTIFF. The plaintiffor hisiher counsel shall set forth, on lhe tace sheet (or attach additional sheets as necessary), a slatement specifying in full and itemized detail the facts upon which lhe plaintiffthen relies as constituting money damages. A mpy of such civil action cover sheet, including the statement as to the damages, shall be served on the defendanl together with the complaint. lfa statement of money damag€s, where appropriate is not tilod, the Clerk-ilagiskate shall transfer the aclion as provided in Rule 29(5XC). DUTY OF THE DEFEll0ANT. Should the defendant believe the statement of damages filed by the plaintiff in any respect inadequate, he or his counsel may file with the ansv/er a statement specifying in reasonable detail the potential damages wtlich may result should the plaintiff prevail, Such statement, if any, shall be served with lhe ansv'rer. A CIVIL ACTION COVER SHEET MUST BE FILEO WITH EACH COMPLAINT FAILURE TO CO]IIPLETE THIS COVER SHEET THOROUGHLY AND ACCURATELY MAY RESULT IN DISMISSAL OF THIS ACTION. (F) (F) (F) (x) (x) (F) (A) (A) (F) (F) (a) (A) (A) (F) (A) (F)