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HomeMy WebLinkAbout4994 Remand Hearing on 09.14.23 Request to Modify Special PermitT TROY WALL ASSOCIATES WATTORNEYS AND COUNSELLORS AT LAW A PROFESSIONAL ASSOC[Ai'{ON OF INDIVIDUAL PRACMIONERV 40 ROUTE 6A. SANDWICH, MASSACHUSETTS 02563 TELEPHONE: (508) 888.5700 ROBERT S. TROY rsta troywallassociates.com BRIAN J. WALL Bj W wroywallassociates. com August 22, 2023 Steven DeYoung, Chair Zoning Board of Appeals Yarmouth Town Hall 1146 Route 28 Yarmouth, MA 02664 Re: Remand Hearing — Request to Modify Special Permit No. 4994 Evangelical Baptist Church of South Yarmouth, Inc. 10 Carter Road; 63 & 69 Pond Street; 1240 Route 28 South Yarmouth, MA Dear Chair DeYoung: Please be advised that I represent the Evangelical Baptist Church of South Yarmouth, Inc. ("Applicant") with respect to the above -referenced remand hearing. The purpose of the remand is to enable the Applicant to request the Board of Appeals (`Board") to modify Special Permit No. 4994 by adding certain conditions. The proposed conditions are the result of settlement discussions with an abutter, Mark Fallon. If the Board agrees to add the conditions to the Special Permit, it will resolve the pending Superior Court appeal of the Board's Special Permit decision. BACKGROUND The Applicant owns and operates the Evangelical Baptist Church Iocated at 1240 Route 28 in South Yarmouth. The premises consist of six parcels plus a twenty -foot former right-of-way owned by the Applicant with a total of 67,930 square feet. These six parcels comprise the following properties: 10 Carter Road; 63 & 69 Pond Street; and 1240 Route 28. The parcels are developed with six structures: the church, the associated school, a residence, a one car garage, two sheds, and paved parking areas. The properties are in the B-2 and R40 Zoning Districts. EACH ATTORNEY IN THIS OFFICE IS AN INDEPENDENT PRACrMONER WHO 18 NOT RESPONSIBLE FOR THE PRACTICE OR THE LIABUM OF ANY OTHER AT DRNEY IN THE OFFICE August 22, 2023 Page 2 In November 2022, the Applicant applied to the Board for a Special Permit pursuant to Zoning Bylaw Section 104.3.5 to combine and redivide the six parcels into three improved and non -conforming lots, each with one structure thereon. The one car garage will be removed as part of the process. The Board held a hearing on the application on January 6, 2023. At the conclusion of the hearing, the Board voted 4-0 to grant the requested Special Permit. A copy is attached as Exhibit 1. One abutter appeared at the hearing and was opposed to the proposal on grounds that the lot in the B-2 District may ultimately be used for business purposes After the Special Permit was issued, the abutter, Mark Fallon, appealed the Board's decision by filing an action with the Barnstable Superior Court pursuant to M.G.L. c. 40A, § 17. The Applicant and Mr. Fallon have, through Counsel, engaged in settlement discussions and reached an agreement that, if certain conditions were to be added to the Special Permit to address Mr. Fallon's concerns, then Mr. Fallon would dismiss his appeal. The parties, with the cooperation of Town Counsel and the Board, then jointly requested the Superior Court to remand the matter to the Board for a further hearing. On July 14, 2023, the Superior Court granted the request and entered an Order that remanded the matter to the Board of a further hearing to consider the proposed modification of the Special Permit. A copy of the Order of Remand is attached as Exhibit 2. THE REQUESTED CONDITIONS The Applicant and Mr. Fallon have agreed upon the following conditions and respectfully request that the Board adopt the conditions and include them in the Special Permit: 1. The newly created lots 2A and 3A shall each only be available for single- family residential use and permissible uses accessory thereto, or for educational and/or religious uses pursuant to General Laws Ch. 40A, Section 3; no other uses shall be allowed. 2. As a result of being created under the auspices of this Special Permit, Lots 2A and 3A have status as legally pre-existing non -conforming lots. August 22, 2023 Page 3 3. Condition # 1 governs the use of the newly created lots; it shall not preclude the existing structures from being altered, extended, or razed and replaced provided such alteration, extension or raze and replacement is authorized by a building permit or a special permit under Section 104.3.2 of the Zoning Bylaw. CONCLUSION The Applicant, with the agreement of the abutter, Mr. Fallon, respectfully requests that the Board grant this request and modify Special Permit No. 4994 by adopting the proposed conditions. Thank you. Respectfully submitted, Brian J. Wall, Esq. Enclosures cc: Clients David S. Reid, Esq. Paul Tardiff, Esq. Jason R. Talerman, Esq. EXHIBIT 1 Date Filed 211412023 M5 PM Superior Court- Barnstable Docket Number FILED WITH TOWN CLERK: PETITION NO: HEARING DATE: TOWN OF YARMOUTH BOARD OF APPEALS DECISION February 2, 2023 4994 January 26, 2023 YARNIbI. TH TOWN CLERK MFE02AM10:46 REG PETITIONER: Evangelical Baptist Church of South Yarmouth, Inc. PROPERTY: 10 Carter Road, 63 and 69 Pond Street, and 1240 Route 28, South Yarmouth, MA Map 60, Parcels 101,102,103 and 104 Zoning District: B-2 and R40 Title: Book 1512, Page 517 and Book 2956, Page 226 MEMBERS PRESENT AND VOTING: Sean Igoe, Dick Neitz, Jay Fraprie and Tim Kelley 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 77mes, the hearing opened and held on the date stated above. The Petitioner seeks a Special Permit 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 zoning districts. 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 garage, and 2 sheds, plus paved parking areas on either side of the church along Route 28. The property is comprised of 6 parcels, plus a twenty -foot former Way from Pond Street, which is owned by the Petitioner. The entire 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. The properties are divided into two different zoning districts, with the portion lying closest to Route 28 being in the B-2 zoning district, and the rear portion of the campus being in a R`4. zoningdistrict. The common zoning line actually runs throw the rear half ofth�'.exi's g Y through �....-..�_. . church, with the school and the house structures being located fully within thelk,,40.-Aj ig district. " A TRUE-Cb tA FEB 10 2023 CMCI TOW. ' K Date Filed 2114/2023 3:05 PM Superior Court - Barnstable Docket Number In the warmer 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 through 2003. The house at 63 Pond Street 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, when the applicant acquired most of the properties. The proposal is to combine and redivide 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 1 A will contain the church building, and a parking lot. The zoning district line will continue to run through the building. The majority of the lot will be located in the B2 zoning district, 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 R40 zoning district, but having 25,573 square feet. Finally, Lot 3A 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 that Lot 2A, 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 what uses would be allowed on the lot, and that the Petitioner was not proposing, nor legally able, to rezone the lot without approval at an annual Town Meeting. Although not expressed as relief from the Zoning Board of Appeals, as it is not necessary for future uses of the property, it was the consensus of the Board that the most likely use of the school would either be to 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 relief be granted, that the proposal would maintain the residential atmosphere, 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 alternatives were considered, they agreed that the applicant's proposed lot layout was within the applicant's sole discretion. The Board then considered the request pursuant to Zoning Bylaw Section 104.3.5, the purpose of which is to "provide for the orderly, 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 maximum 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 of non -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 of the lots involved or affected by the combination or re -division, that 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.aa ' A TRUE COPY ATTESTk' FES 101023 Cmc I TOWN CLERK. Date Filed 2/14/2023 3:05 PM Superior Court - Bamstable Docket Number zoning district, would not cause or substantially contribute to any undue nuisance, hazard, or congestion in the neighborhood or zoning district, would substantially promote the intent and purpose of the Bylaws currently in effect, and the entire combination or redivision proposal would be consistent with the intent and purpose of Section 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 relief from the Board, which would also protect the abutters and the neighborhood from any intrusion of business uses in the residential zone. Accordingly, a motion was made by Mr. Fraprie, seconded by Mr. Kelley, to grant the request for the Special Permit, without conditions. 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 noticeldecision with the Town Clerk. Unless otherwise provided herein, the Special Permit shall lapse if a substantial use thereof has not begun within 24 months. (See bylaw § 103.2.5, MGL c40A §9) Sean Igoe, Vice Chair CERTIFICATION OF TOWN CLERK I, Mary A. Maslowski, Town Clerk, Town of Yarmouth, do her&fcertify that 20 days have elapsed since the filing with me of the above Board of Ap Decision #4994 that no notice of appeal of said decision has been filed with me, or such appeal has been filed it has been dismissed or denied. All appeals have been a ed. Mary A. � ( ` ` .s cTq A TRUE COPY ATTEST. cFEB. CM0 I :, o EXHIBIT 2 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. SUPERIOR COURT DEPARTMENT C1V1L ACTION NO.2372CV0067 MARK FALLON ) Plaintiff, ) Y. } EVANGELICAL BAPTIST CHURCH ) OF SOUTH YARMOUTH, INC, ) ET AL ) Defendants. ) ORDER OF REMAND Following the Court's consideration of the Parties' Joint Motion for Remand, it is hereby ORDERED that the matter be remanded to the Yarmouth Zoning Board of Appeals ("Board' consistent with the following terms and conditions: 1. Within thirty (30) days of entry of this Order, the Defendant, Evangelical Baptist Church of South Yarmouth, Inc. ("Church"), shall submit a written request ("Request") to the Yarmouth Board of Appeals ("Board") for a hearing to consider a modification of the Special Permit decision granted to the Defendant Church in its case #4994. 2. Except as otherwise necessary to reflect the proposed modifications to the Special Permit, identified herein, the Defendant Church shall not be required to file a new application, supportive plans, and filing fee; instead, Defendant shall be entitled to rely upon the materials filed in support of Decision ##4994. 3. The Board shall notice and schedule a new public hearing in accordance with O.L. e. 40A. The new public hearing shall be opened within sixty (60) days of entry of this Order for consideration of the Defendant's Request of the Hoard. 4. Within thirty (30) days of the close of the public hearing on Defendant's Request, the Board shall file a decision on the Request with the Yarmouth Town Clerk. 5. In the event the Request is granted by the Board and the conditions contemplated in Paragraph 1 of this Order are contained therein and/or incorporated into the Decision, upon the expiration of twenty (20) days following the filing of the decision with the Yarmouth Town Clerk, the Parties shall file a Stipulation of Dismissal in the above -captioned matter. 6. In the event the Requested modification is not granted by the Board, within twenty (20) days of the filing of the decision with the Yarmouth Town Cleric the Plaintiff may so notify the Court and the matter shall be restored to the active civil list. In the event the Plaintiff does not timely notify the Court of the remand decision, the Parties shall file a Stipulation of Dismissal in the above -captioned matter. 7. in the event the Request is denied by the Board and/or contains conditions objectionable to the Defendant Church, nothing contained herein shall deprive the Church of the right to appeal the Remand decision inaccordance with G.L. c. 40A, § 17. This Court shall retain jurisdiction of the instant action and the remand decision without the necessity of the filing of a new action, and further proceedings shall be conducted in this Court as necessary and appropriate following the Board's decision on remand. ENDORSED AND APPROVED BY THE COURT W1 useice Superior Court �+j Dated:711q 2423 K