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HomeMy WebLinkAboutRemand Decision 3735 Received 01.05.2004iN-0572004 09:31 ATTY JOHN CRENEY 15083621125 P.01 TELECOPY COVER SHEETy � C E IV E D .. ., s /.G04 John C. Creney P.C. �: 1 4 Attorney at Law -10V;N OF YARMOUTH 86 Willow Street BOARD OF APPEALS Yarmouth Port Massachusetts 02675 If there is a problem with transmission or if all pages are not received, please call 509 362-1122 for retnLTISR fission, Fax 508 362-1125 TO: Ms. Rhonda La France COMPANY: Board of Appeals FROM: John C. Creney RE- Town of Yarmouth with Dellorco Number of pages including this cover page: 4 FAX 4: 508 398-2365 DATE: January 5, 2004 This message is intended only for the use of the individual or entity to which it is addressed, and ulay contain information that is PRIVILEGED, CONFIDENTIAL and exempt from disclosure ►order applicable law. If the reader of this mcssagc is not the intended recipient, or the etnployee or agent responsible for delivei-ing the message to the intended recipient, ,you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. if you have received this communication irk error, please nolily us i:mncdiately by telephone, and return the original to us by mail without making a copy. Tbank you, Comments: Transmitted are copies of the Superior Court remand. It would now be appropriate to place this hatter on the schedule for rehearing. Cc: Bruce P. Gilmore, Esq. David S. Reid, Esq. .lames S. Brandolint N-�5-2884 09 31 RTTY JOHN CRENEY 15083621125 P,82 Commonwealth of Massachusetts County of Barnstable �^ The Superior Court BY------------------_ Civif Docket BACV2002-00190 RE: Dellorco v Zoning Board of Appeals TO: John C Creney, Esquire 86 Willow Street Yarmouth Port, MA 02675 CLERK'S NOTICE This is to notify you that in the above referenced case the Court's action on 12/23/2003: RE: .point MoTIoN to file late motion to alter or amend judgment (sent to judge Burnes in Su ffo 7k) is as follows: MOTION allowed (Barnes, J.) notices mailed 1/2/04. Dated at Barnstable, Massachusetts this 2nd day of January, 2004. Scott W. Nickerson, Clerk of the Courts Assistant Clerk Telephone: (608) 375-6684 Copies mailed 01/02/2004 �,VtiCnoulC_2.wpa �i,7:�'jq CwCCcxt w¢:rnar7�� T,-05-2004 09:31 ATTY JOHN CRENEY 15093621125 P.03 Commonwealth of Massachusetts County of Barnstable The Superior Court CIVIL DOCKET##: BACV2002-00190-A RE: Dellorco v Zoning Board of Appeals T0: John C Creney, Esquire 86 Willow Street Yarmouth Port, MA 02675 NOTICE OF DOCKET ENTRY You are hereby notified that on 12123/2003 the following entry was made on the above referenced docket. - JOINT MOTION to amend judgment filed and allowed, by the Court, Burnes, J. (attys. notified 12/31/03) Amended judgment entered January 2, 2004. Dated at Barnstable, Massachusetts this 2nd day of January, 2004, Scott W, Nickerson, Clerk of the Courts A2 �"c� Assis`Cant Clerk Telephone: (508) 375-6684 Mgencrlc 2.wpd 387345 molvavN w irnwnc AN-05-•2004 09:32 ATTY JOHN CRENEY 15083621125 P.04 Commonwealth of Massachusetts County of Barnstable The Superior Court CIVIL DOCKET# 13ACV2002-00190 Donald Dellorco Vs Town of Yarmouth Zoning Board of Appeals AMENDED JUDGMENT This action came on before the Court, Nonnie S_ Burnes, Justice, presiding, and upon joint motion of the parties to alter or amend judgment and upon consideration thereof, It is ORDERED and ADJUDGED: (1) that the decision of the defendant, Town of Yarmouth Zoning Board of Appeals, dated March 14, 2002, denying a Special permit for the proposed additions to 112 Breezy Point Road, Yarmouth (South), Barnstable County, Massachusetts, was arbitrary and capricious and is annulled, (2) that this matter is remanded to the Yarmouth Zoning Board of Appeals, for the purpose of rehearing the plaintiff's application for Special Permit, and (3) that the Superior Court shall retain jurisdiction of this case. Dated at Barnstable, Massachusetts this 2nd day of January, 2004. Copies mailed 01/02/2004 A true copy, }Aft v�d.7udsc .Wpd 3d'1s4J m Uvnc60 WO1r]1d110 Scott W. Nickerson, �- � Clerk, of -the Courts By: ................... /-) Jez ..........c Assistant ...... �. Clerk TOTAL P.04 NOU-03-2003 13:01 �a �O ATTY JOHN CRENEY COMMONWEALTH OF MASSACHUSETTS APPEALS COURT CLERK'S OFFICE Three Center Plaza, Seventh Floor BOSTON, MASSACHUSETTS 02108 (617) 725-8106 John C. Creney, Esquire 86 Willow Street Yarmouth Port, MA 02675 RE: No. 2003--P-1208 DONALD DELLORCO VS. ZONING BD. APPS. YARMOUTH October 31, 2003 NOTICE OF DOCKET ENTRY 15083G21125 P-01/01 IMCM97m, By Please take note that, with respect to the Agreement for dismissal R. 29(B), filed by Parties. (Paper ##2), on October 31, 2003, the following order was entered on the docket of the above -referenced case: RE##2: Denied without prejudice to renewal indicating that the within is solely a dismissal of the appeal, with prejudice and without costs, pursuant to M.R.A.P. 29(b). Any requests regarding instruction to the Superior Court for remand to the Yarmouth Board of Appeals and a request for it to retain jurisdiction may be made there. *Notice. Very truly yours, The Clerk's Office Dated: October 31, 2003 To: Bruce P. Gilmore, Esquire John C. Creney, Esquire V � �GC�� .- TOTAL P.01 JOhN C. CRENEY JOHN C. CRENEY, P.C. ATTORNEY -AT -LAW 86 WILLOW STREET YARMOUTH PART. MASSACHUSETTS 02675 (SOO) 362-1122 FAX (508) 362-1125 Ms. Ashley Brown Ahearn, Clerk Appeals Court 1500 New Courthouse, Pemberton Sq. Boston, MA 02108 RECEIVED 0 C T 2 7 2003" TOWN OF YARMOUTH BOARD OF APPEALS October 23, 2003 Re: Donald Dellorco v. Board of Appeals of the Town of Yarmouth No. A.C. 03-P-1208 Our File No. Y 1839 Dear Ms. Ahearn: Enclosed herewith for filing please find Agreement for Dismissal. JCC/dr Enc. Cc: Bruce P. Gilmore, Esq. Board of Appeals Very truly yours, 0%JtohnC. Creney Town Counsel i eo r COMMONWEALTH OF MASSACHUSETTS BARNSTABLE,ss DONALD DELLORCO V. DAVID REID et al As they constitute members of The BOARD of APPEALS of the TOWN OF YARMOUTH APPEALS COURT No. A.C.-03-P-1208 AGREEMENT FOR DISMISSAL In accordance with Mass. R. A. P. 29(b), the parties hereby agree that this appeal be dismissed, without costs to either party; that the matter be remanded to the Superior Court Department with direction that the matter be remanded to the Yarmouth Board of Appeals for a new hearing; and that the Superior Court Department retain jurisdiction. Boar f Appeals 14A T J hn C. Creney Counsel 86 Willow Street Yarmouth Port MA 02675 508 362-1122 BBO# 105000 1 Donald Dellorco By -i� Bruce P. Gilmore 1170 Route 6A West Barnstable MA 02668 508362-8833 BBO# 192940 JOHN C. CRENEY JOHN C. CRENEY. P.C. ATTORNEY -AT -LAW 86 WILLOW STREET YARMOUTH PORT, MASSACFIUSETTS 02675 (508) 362-1122 FAX (508) 362-1125 October 2, 2003 Ms. Rita Hemenway Bateman & Slade, Inc. 45 Broad Street Boston, MA 02109 Re: Donald Dellorco v. Yarmouth Board of Appeals Our File No. Y1839 Dear Ms. Hemenway: UWE For inclusion in the record appendix, enclosed are the original thirteen exhibits introduced at the trial of this action in Barnstable Superior Court. JCC/dr Encs. Cc: Board of Appeals truly John C. Creney Town Counsel COMMONWEALTH OF MASSACHUSETTS �7 C 01 BARNSTABLE,ss DONALD DELLORCO V. DAVID REID et al As they constitute members of The BOARD of APPEALS of the TOWN OF YARMOUTH APPEALS COURT No. A.C.-03-P-1208 AGREEMENT FOR DISMISSAL I 1n accordance with Mass. R. A. P. 29(b), the parties hereby agree that this proceeding be dismissed, without costs to either party. Board of Appeals By: John C. Creney Town Counsel 86 Willow Street Yarmouth Port MA 02675 508 362-1122 BBO# 105000 Donald Dellorco By: Bruce P. Gilmore 1170 Route 6A West Barnstable MA 02668 508 362-8833 BBO# 192940 JOHN C. CRENEY JOHN C. CRENEY, P.C. ATTORNEY -AT -LAW 86 WILLOW STREET YARMOUTH PORT, MASSACHUSETTS 0261S (508) 362-1122 FAX (508) 362-1125 Mr. George D. Bateman Bateman & Slade, Inc. 45 Broad Street Boston, MA 02109 Re: Donald Dellorco V. Yarmouth Board of Appeals Our File No. Y1839 Dear Mr. Bateman: L September 25, 20 E C E I V E D S E P 2 9 2003' TOWN OF YARMOUTH BOARD OF APPEALS On behalf of the defendant Board of Appeals, I have filed an appeal with the Appeals Court, and I need your services. The appeal was entered in the Appeals Court on September 15, 2003, Case No. A.C.- 03-P-1208. Enclosed is a copy of the trial transcript and of the trial court findings of fact, conclusions of law and order to be included in the appendix. I will order an attested copy of the docket entries. I wish to include in the appendix the thirteen exhibits which are recited on page 2 of the transcript. Will you obtain copies of these exhibits, or do you wish me to order attested copies? At the moment I am working on the brief, but I wanted to give you the enclosed materials in order that you could get a start on this matter. 3CCldr Encs. Cc: Board of Appeals Very truly yours, k. I , i -kit, John C. Crency Town Counsel JOHN C. CRENEY JOHN C. CRENEY, P.C. ATTORNEY -AT -LAW 86 WILLOW STREET YARMOUTH PORT. MASSACHUSETTS 02675 (SOB) 362-1122 FAX (SOB) 362-1125 Ashley Brown Ahearn, Clerk Appeals Court Three Center Plaza, 7t' Floor Boston, MA 02108 Re: Dellorco V. Yarmouth Board of Appeals File No. Y 1839 Dear Clerk Ahearn: tn cop, September 'Aft E I V E D S E P 11 2003 TOWN OF YARMOUTH BOARD OF APPEALS Enclosed is a copy of the Notice of Assembly of Record on Appeal, and our check in the amount of $300.00 representing the entry fee. JCC/dr Encs. Cc: Board of Appeals Ve truly yours, C4 � John C. Creney Town Counsel Commonwealth of Massachusetts r County of Barnstable The Superior Court copf CIVIL DOCKET# BACV2002-00190 RE: Dellorco v Zoning Board of Appeals TO:John C Creney, Esquire 86 Willow Street Yarmouth Port, MA 02675 NOTICE OF ASSEMBLY OF RECORD ON APPEAL In accordance with Rules of Appellate Procedure, Rule 9, subsection (d), notice this day has been sent to the *Clerk of the Appeals Court for the Commonwealth along with two certified copies of docket entries, a copy of the notice of appeal, and a statement of the case. Record has been fully assembled in the Office of the Clerk of Courts for Barnstable County. In accordance with Rules of Appellate Procedure, Rule 10, subsection (a) and (b), the appealing party must enter the case in the Appeals Court for the Commonwealth within ten (10) days of receipt of this notice. This notice does not constitute entry in the Appeals Court for the Commonwealth. Dated at Barnstable, Massachusetts this 8th day of September, 2003. Scott W. Nickerson, Clerk of the Courts BY:.. 1120 � ................................... ................. Assistant Clerk *Effective July 28, 2003 New Address for the Clerk of the Appeals Court is Three Center Plaza, 7th Floor, Boston, MA 02108 cvdreeass_2—pd 353149 recass bearseli JOHN C. CRENEY, P.C. ATTORNEY -AT -LAW 86 WILLOW STREET r] COPY YARMOUTH PORT, MASSACHUSETTS 02675 (SOS) 362-1122 FAX (508) 362-1125 JOHN C. CRENEY September 10, 2003 Bruce P. Gilmore, Esq. P.O. Box 714 West Barnstable, MA 02668 Re: Dellorco V. Yarmouth Board of Appeals File No. Y 1839 Dear Bruce: In terms of designation of parts of the record which I intend to include in the appendix, I intend to include the thirteen exhibits which were introduced at trial. V , truly yours, ohn C. Creney Town Counsel JCCIdr JOHN C- CRENEY JOHN C. CRENEY, P.C. ATTORNEY -AT -LAW 86 WILLOW STREET YARMOUTH PORT, MASSACHUSETTS 02675 (508)362-1122 FAX (508) 362-1125 David S. Reid, Esq. Stone & Reid 1292 Route 28 South Yarmouth, MA 02664 Re: Donald Dellorco v. Board of Appeals File No. Y 1839 Dear David: RECEIVED S E F 1 2003 September 10, 2003 TOWN OF YARMOUTH BOARD OF APPEALS Thank you for your comments in your memorandum of today. 1 look forward to any additional research which you may send. Perhaps we will make new law. As you requested, enclosed is a clean copy of the decision. Also enclosed is a copy of the requests for rulings which we filed. Attorney Gilmore filed no legal memoranda. JCC/dr Enc. Cc: Board of Appeals Very truly yours, L---\ John C. Creney Town Counsel JOHN C. CRENEY JOHN C. CRENEY, P.C. ATTORNEY -AT -LAW 86 WILLOW STREET YARMOLTH PORT, MASSACHUSETTS 02675 (508) 362-1122 FAX (50B) 362-112S Ms. Linda L. Kelly P.O. Box 1023 Barnstable, MA 02630 September 2, 2001 E P 2003 Re: Donald Dellorco v. Yarmouth Board of Appeals No. 2002-00190 Our File No. Y 1839 Dear Ms. Kelly: TOWN OF YARMOUTH E'0ARD OF APPEALS In accordance with our telephone conversation, this is to confirm that I wish to order a transcript of the trial testimony. JCC/dr Cc: Yarmouth Board of Appeals Very truly yours, IX John C. Creney r i0m C_ CRENEY JOHN C. CRENEY, P.C. ATTORNEY -AT -LAW 86 WILLOW STREET 7 04 0 *;j YARSLIOUT*1 PORT, MASSACHUSET S 02675 (508) 362-1122 FAX (508) 362-1125 RECEIVED September 2, 2003 S E P 2003 Scott W. Nickerson, Clerk TOWN OF YARMOUTH Superior Court BOARD OF APPEALS P.O. Box 425 Barnstable, MA 02630 Re: Donald DeIlorco V. Yarmouth Board of Appeals No. 2002-00190 Our File No. Y1839 Dear Mr. Nickerson: Enclosed herewith for filing please find Certificate Re Transcript. JCC/dr Enc. cc: Bruce P. Gilmore, Esq. Board of Appeals Very truly yours, < John C. Creney Town Counsel Tvmmanwraft4 of filassar#uortts BARNSTABLE, ss. DONALD DELLORCO VS. TOWN OF YARMOliTH BOARD OF APPEALS CERTIFICATE RE TRANSCRIPT I hereby certify: (1) That a transcript of testimony was ordered on September 2, 2003 (2) That a transcript of testimony has not nor will be ordered. Dated: September 2, 2003 SUPERIOR COURT No. 02-190 ohn C. Creney, Counsel for ppellant JOHN C. CRENEV JOHN C. CRENEY, P.C. ATTORNEY -AT -LAW 86 WILLOW STREET YARMOUTH PORT. MASSACHUSETTS 02675 (508) 362-1122 FAX (508) 3 62-1 125 Scott W. Nickerson, Clerk Superior Court P.O. Box 425 Barnstable, MA 02630 Re: Donald Dellorco V. Yarmouth Board of Appeals No. BACV2002-190 Our File No. Y 1839 Dear Mr. Nickerson: E C E�� E D Ail G' 2003 TOWN OF YARMOUTH BOARD OF APPEALS August 21, 2003 Enclosed herewith for fining please find Defendants' Notice of Appeal, a copy of which has been served this day by first class mail postage pre -paid upon Bruce P. Gilmore, counsel for plaintiff. JCC/ri Enc. cc: Bruce P. Gilmore, Esq. �armouth Board of Appeals Very truly yours, r John C. Creney Town Counsel COMMONWEALTH OF MASSACHUSETTS BARNSTABLE,ss DONALD DELLORCO u DAVID REID et al As they constitute members of The BOARD of APPEALS of the TOWN OF YARMOUTH SUPERIOR COURT DEPARTMENT No. BACV2002-190 DEFENDANTS' NOTICE OF APPEAL Notice is hereby given that the Defendant members of the Board of Appeals of the Town of Yarmouth hereby appeal to the Appeals Court from the Judgment entered on August 1, 2003. ectfully subm' d Jo C. reney Town Counsel 86 Willow Street Yarmouth Port MA 02675 508 362-1122 BBO# 105000 AUG-21-2003 08:38 ATTY JOHN CRENEY 15083621125 P.01/01 TE.LECOPV COVER SHEET John C. Cheney P.C. Attorney at Law 86 Willow Street Yarmouth Port Massachusetts 02675 Ifthere is a problem with transmission or if all pages are not received, plcasc call 508 362-1122 for retransmission. Fax 508 362-1125 TO: David S. Reid, Esq. COMPANY: Stone & Reid FROM: John C. Creney RE: Town of Yarmouth with .Dellorco Number of pages including this cover page: 1 FAX #: 508 398-1699 DATE' August 21, 2003 This message is intended only for the use of the individual or enlity to which it is addressed, and may contain inforniatiotn that is PRTV.ILF.GED, CONFIDENTIAL and exempt from disclosure under applicable law. if Ilte reader of this tnessage is not the intended recipient, or the employee or agent responsible for delivering the message to the intended rccipicnl, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received Ibis communication in error, please notify us iminediately by telephone, and return the original to us by snail without snaking a copy. Thank you. Coln,ncnts. The ten day period during which a motion for a new trial may be filed under Mass. R. Civ, P, 59 lias expired. Any motion filed under Mass. R. Civ. R 60 for relief from judgment will not affect the finality of the judgment. Accordingly, the best course of action is to rile a notice of appeal, and unless I hear differently from you, I shall file a notice of appeal. Cc: Rhonda LaFrance TOTAL P.01 JG-18-2003 17:38 ATTY JOHN CRENEY 15083621125 P.01 TELECOPY COVER SHEET John C. Creney P.C. Attorney at Law 86 Willow Street Yarmouth Port Massachusetts 02675 if there is a problem with transmission or if all pages are not iweived, please call 508 362-1122 for mtransinissiort, lax 508 362-1125 TO: David S. Reid, Esq. CO PAI\Y: Stone & Reid FROM: John C. Creney RE: Delloreo v_ Board of Appeals Number of pages including this cover page: 4 FAX # - 508 398-1699 DATE: August 18, 2003 This message is intended only for the use of the individual or entity to which it is addressed, and itlay contain infornuitlon that is PRIVILEGED, CONFIDENTIAL and eicinpt from disclosure under applicable law Tf the reader of this message is not the intended recipient, or the ernployce or agertt rCsponsible for delivering the message to the intended recipient, you are h4reby notified that any dissemination, distribution or copying of this communication is strictly proldbited. If you have received tails coinin nicat.ion in error, please notify us inunediaiely by telephone, and return the origiwd to us by mail without making a copy. Thank you. Coll;menl s' With respect to the conclusion of law of Judge Burnes' that the action of the Board in denying the special permit was arbitrary and capricious because the Board failed to articulate what would constitute the increased impact in terms of traffic or density of population, we have' To our favor, the line of cases, as per the enclosed list, holding that in denying a special pennit, a board of appeals need not make detailed findings, and that deference is given to the discretion of a board of appeals. To our disadvantage, we have the line of cases cited in the enclosed list, such as Mahoney v. Board of Appeals of Winchester, and Colangelo v. Hoard of Appeals of Lexington, holding denials of special permits to be arbitrary and capricious where no evidence existed to show increased traffic or where increased traffic would be minilnal, and no other adverse effects on the neighborhood were shown. It didn't help our case that there exist several BUG-18-2003 17:39 ATTY J©HN CRENEY 15083621125 P.02 other homes at 106, 110, 114 and 119 Breezy Point Road which all have second stories, and the one at 106 Breezy Point was built in 2003. Not sui-prisingiy, counsel for Dellorco has called me asking whether you will waive your right to appeal in order that Dellorco can commence construction immediatcly. t ain not left with any firm conviction that the Judge was crazy, On appeal, my guess is that we have less than a 50-50 chance of success, but if the case is important to the Board in terms of precedent, then taking an appeal is relatively easy. And the taking of an appeal may lead to a compromise if you seek to impose some sort of condition on construction of a second story. Judgment entered on August 1, and any appeal must be taken within thirty days thereafter. Cc: Board of Appeals 'UG-18-2'003 17:39 ATT" J:"W C:RENEY 15083621125 P.03 8.14 MASSACIIUSL'TTS ZONING, MANUAL permits and the like. It is unlikely, however, that this requirement will be expan- sively enforced where the board refuses to grant a special permit for the reasons discussed below. (b) Findings for Denial In general, courts have held that refusal to grant a special permit does not re- quire detailed findings. Board of Aldermen of Newton v. Manince, 429 Mass. 726, 732, 711 N.E.2d .563 569-70 (1999), ACW Realty .Wgini., Inc, v. Planning Rd_ of Westfield, 40 Mass,App.Ct. 242. 246, 862 N.E.2d 1051, 1055 (1996); MacGibbon 111, 369 Mass. 512, 340 N_E_2d 487 (1976) (dictum); Brockton Pub, Market, Inc, v, Board of Appeals of Sharun, 357 Mass. 783, 260 N.E.2d 222 (1970) (rc'..sc`r Q; Board gj'APpealy of Sauthaniptnn V. Boyle, 4 Mass.App.Ct. 824, 349 N.E,2d 373 (1976) (rescripi); tf. Feramtc v. Bourn of A1peals of Northampton, 345 Mass. 158, 186 N.E.2d 471 (1962) (variance), However, find- ings of facts relevant to the applicable standards of the statute and of the ordi- nance or bylaw must he matte so as to establish that the denial was not arbitrary or capricious or b;tsed on a legally untenable ground, MavGibbon 111, 369 Mass_ 512. 340 N.E.2d 487 (1976); MucCibbon 11, 356 Mines. 635, 255 N.E.2d .347 (1970); MacGibbon 1, 347 Mass. 690,200 N.E.2d 254 (1964), Vaaza Properlin, Inc. v. Cin, Council of Woburn, 1 Mass.App.Ct. 308, 296 N.E.2d 220 (1973), '111a MacGibbon standard is discussed, and the relevant cases are collected, under `} 8,14.4, Crowids for Decision, above. § 8.15 GENERAL STANDARDS SVMCIFNT TO SUSTAIN VALIDITY The following are cases where general standards were held sufficient to meet tlse rule that an ordinance or hyhm set forth Standards. Glacier Sand & .5rone. Cm v. Rosrd of Ameals of Westwood, 362 Mass. 239, 285 N.E.2d 411 (1972) (use: earth removal; standards: not stated). 7'urnpike Realty Co. v. Dedham, 362 Mass, 221, 2K4 N.E_2d 891 (1972), cerl. denied, 409 U.S. 1 108 (t973) (usc: development of Wedifflds; standards: not subject to fltxxling or not unsuitable. due 0 drainz;e, no interference with general Purposes of flood plain district, no detriment to public health, safisy or welfurc)_ .71tuman v. Bm4rd of Aldermen of Newton, 361 Mass. 718, 282 N.E.2d 653 (1972) (use: group dwelling; standards: public convenience and welfare served, harmony with general intent and purpose, protection of ncigvhhcrrhood). &-48 Supp. 2002 AUG--18-2003 17:39 ATTY JOHN CRENEY 15083621125 P.04 SPEC[AL PERARTS � 8.18 8.18 CONDITIONS LEGALLY UNTENABLE The following case deterrniued that a wndition impn,sc;d upon the grant of a special permit was invalid. V.S,N. Really, Inc. v. Zoning Bd, of Appeals of l'lymoioh, 30 Mass,App.CL. 530, 570 NX.2d 1044 (1991) (unle isonable to condition six:cial permit on road work that could only be done by state governnient.). § 8.19 DENIAL ARBITRARY OR CAPRICIOUS The following rife cases where denials of special permit% or site plan approvals were found improper because the adverse. effects of the requested use were so slight that denial of the special permit was arbitrary or capricious. l ombexrd v. Board of Appeal of" Wellesle ,v, 348 Mass. 788, 204 N1.2d 471 (19()5) (resc)•ipt) (denial of pertnit to widen 25-year-old garage to accnmmotJate modern cars was arbitrrsry and capricious where only one hoard nietnber voted to deny permit and encroachment MIS only 18 inches into required 20-foot .ride yard). Mahoney v_ Boetrd of Appe(ris of Winchesrer, 344 Mass. 598. l83 N.E.2d 850 (1962) Genial of special permit for additional greenhouse at market garden in residential zone was improper a0sent evidence of "consequential" increased traffic or other sdvcrse effects un neighbcxhuod). See also Colangeto v. Board uf' Appeals of Lexington, 407 Maus. 242, 552 N.F.2d 541 (199()) ("�xet»ptian" improperly denied where traffic impacts were minimal); Pr adenrial has, Co. of Arneric a v. Brivni of Appeals of Westwood, 2.1 Mass,App.Ct. 278, 5(Y? NE.2d 137 (1986) (site plan approval improperly denied where adequate provihinn made for traffic). $ 8.20 DENIAL UPHELD The following are cases where special permits were found 10 be properly denied, Glacier Sand & Stone Co. v. Bourn of Appeals of Westwood, 362 Mass. 239. 285 N.E.2d 411 (1972) (use: earth removal; grounds: riwae, dust and NMI). 11arnhle Oil & Ref., Co. V. Board of Appeals oj-Amherst, 3(6 Muss- W4, 276 N,E.21 719 (1971) (uSe: service Station in limited businew; district; grounds: traffic iiarutd, futute development). Supp. 2002 8--53 TOTAL P.04 STONE & REID ATTORNEYS AT LAW A PROFESSIONAL ASSOCIATION * SOUTH YARMOUTH PROFESSIONAL BUILDING 1292 ROUTE 28 SOUTH YARMOUTH, MA 02664-4452 TEL (508) 394-5648 FAX (508) 398-1699 DAVID S. RI u), ESQ. DSReid@CapeCod.net MICI IAEL F. STONE, ESQ. MFS1oneEsq@Juno. con - PLEASE DELIVER THE FOLLOWING PAGES TO: John C. Creney, Esq. FAX# (508) 362-1125 FROM: DAVID S. REID, ESQUIRE Total number of pages sent including cover letter: 2— If you have not received the number of pages shown above, please contact us as soon as possible. Transmitted: Date: 8/ 14/03 Time P ' lY By DESCRIPTION OF DOCUMENTS or MEMORANDUM: Re: Dellorco v. Yarmouth - - BACV2002-00190 Dear Attorney Creney, Several members of the Board of Appeals have spoken with me about their dissatisfaction with the decision recently rendered in the Dellorco case. It is the Board's feeling that, with this grossly undersized lot, and the almost non-existent side yard (2.5') that any additional construction would be undesirable. We are concerned that, if we are overturned on a 2.5' setback, will we ever be able to sustain any denials of Special Permits? We would appreciate your comments and advise on this decision, and your assessment of the propriety of an appeal from this decision. I have re -read our decision, and must concede, in hindsight, that it does not articulate the Board's concerns in full detail. This seems to have been of concern to the Court as well. However, in light of the acknowledged principle that a denial need not set forth detailed findings, to the same degree that a grant of relief must, it would seem that the Court's appropriate remedy should have been to remand the matter to the Board, rather than direct the issuance of the Special Permit. Do you know why this was not considered? Please review this matter and provide us with your advise on this matter. ;Vreyours David S. Reid, Esq. (PS: I am sending this to you directly from my office only because Mrs. LaFrance has today off. Please consider this to be correspondence from the Board of Appeals). cc: Yarmouth Board of Appeals • Each attorney in this office is an independent practitioner who is not responsible for the practice or liabilities of the other. NOTICE: THE FACSIMILE MESSAGE ACCOMPANYING THIS TRANSMITTAL FORM CONTAINS PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED SOLELY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF THE READER OF THIS NOTICE IS NOT THE INTENDED ADDRESSEE, OR THE EMPLOYEE OR AGENT RESPONSIBLE TO DELIVER IT TO THE INTENDED ADDRESSEE, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS FACSIMILE IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS BY MAIL,. THANK YOU. RUG-04-2003 08:57 ATTY JOHN CRENEY 15083621125 I0[51il TELECOPY COVER SHEET John C. Creney P.C. Attorney at Law 86 Willow Street Yarmouth Port Massachusetts 02675 If there is a problem with transmission or if all pages are not received, please call 508 362-1122 for retransmission. Fax 508 362-1125 TO: Ms. Rhonda La France COMPANY: Board of Appeals FROM: John C. Creney RE: Town of Yarmouth with Dellorco Number of pages including this cover page: 13 FAX #: 508 398-2365 DATE: August 4, 2003 This kuessage is intended only .for dte use of the individual or entity to which it is addressed, and may contain inromiation that is PRIVREGED, CONFIDENTIAL and exempt from disclosure under applicable law. If the readcr of I.ltis message is not the intcndcd recipient, or the cluployee or agent Tesponsiblc for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone, and rctun the original to us by mail without jtmking a copy. Thank you, Comments: Transmitted is a copy of the Superior Court decision by which the decision of the Board is annulled. Cc: David S. Reid, Esq. RUG-04-2003 08:57 ATTY JOHN CRENEY Commonwealth of Massachusetts County of Barnstable The Superior Court BY- -------------------- CIVIL DOCKET# BACV2002-00190 RE: Dellorco v Zoning Board of Appeals TO: John C Creney, Esquire 86 Willow Street Yarmouth Port, MA 02675 NOTICE OF JUDGMENT ENTRY 15093621125 P.02 ??}} �� LE; Uc ' 21 V Lz This is to notify you that a judgment in the above referenced action has been entered on the docket. A copy of the judgment is attached. Dated at Barnstable, Massachusetts this 'I st day of August, 2003. Scott W. Nickerson, Clerk of the Courts BY: ..................... ................. Nancy N. Weir Assistant Clerk Telephone: (508) 375-6684 c dnotjua a.wpd 3ne906 ;udtria beareeli AUG-04-2003 08:57 ATTY JOHN CPENEY 15093621125 P.03 Commonwealth of Massachusetts County of Barnstable The Superior Court CIVIL_ DOCKET# BACV2002-00190 Donald Dellorco vs. Town of Yarmouth Zoning Board of Appeals JUDGMENT ON FINDING OF THE COURT This action came on for trial before the Court, Non nie S. Burnes, Justice, presiding, and the issues having been duly tried, and finding having been rendered, It is ORDERED and ADJUDGED; that the decision of the defendant, Town of Yarmouth Zoning Board of Appeals, dated March 14, 2002, denying a Special Permit for the proposed additions to 112 Breezy Point Road, Yarmouth (South), Barnstable County, Massachusetts, was arbitrary and capricious and is annulled; and 2. that the Clerk of Courts shall, within thirty days after entry of this judgment, send attested copies thereof to the Board of Appeals, the Building Inspector, and the Clerk of the town of Yarmouth - Dated at Barnstable, Massachusetts this I S/ day of August, 2003- Scott W. Nickerson, Clerk of the Courts �&vt-rL By :................. .--......, ---------------..._..---------- Assistant Clerk A true copy, Attest: a,;,Y91etk rVdJUdtrip.wpd 341915 memard irvineji. AUG-04-2003 08:58 ATTY JOHN CRENEY 15083621125 P.04 Commonwealth of Massachusetts County of Barnstable The Superior Court CIVIL DOCKET#: BACV2002-00190-A RE: Dellorco v Zoning Board of Appeals TO: John C Creney, Esquire 86 Willow Street Yarmouth Port, MA 02675 NOTICE OF DOCKET ENTRY You are hereby notified that on 07/31/2003 the following entry was made on the above referenced docket: MEMORANDUM OF DECISION AND ORDER: The decision of the Town of Yarmouth, Board of Appeals, dated March 14, 2002, denying a Special Permit for the proposed additions to 112 Breezy Point Road, South Yarmouth, is ANNULLED. (Nonnie S. Burnes, Justice). Dated at Barnstable, Massachusetts this 1st day of August, 2003. Scott W. Nickerson, Clerk of the Courts BY: Nancy N. Weir Assistant Clerk Telephone: (508) 375-6684 avdgener�c .wpd 247915 memord irvinejs RUG-84-2803 08:58 RTTY JOHN CRENEY 15083621125 P.05 BARNSTABLE, s9. COMMONWEALTH OF MASSACHUSETTS DONALD DELLORCO Plaintiff V. DAVID REID, et al.,' Defendants SUPERIOR COURT C.A. No. 02-0190 FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER INTRODUCTION The plainti:fF; Donald Dellorco, appeals from a decision 6fthe Zoning Board of Appeals for the Town of Yarmouffi denying his application for a Special Permit and asks that the decision be aimuiled. Following; a jury -waived trial, the court finds and miles, as follows: IF,INDINCS OF FACT The plaintiff, Donald Dellorco ("Dellorco"), purchased the re4idence azl.d lot located at 112 Breezy Point Road, Yarmouth (South), Barnstable County, Massachusetts (the "Property"), with his wi1:e, it) 1997. This Property is Lot 46 on the Plan crMand, December. 14, 1945. Exhibit 2_ 2. The Yarmouth Zoning Board of Appeals (the ''"Board") is the duly authorized permit gra.n.tirig authority under G.L. e. 40A with a usual place of business at 1 l 46 ROUte 28, South Yarmoutb, Barnstable County, Massachusetts. David Reid, John Richards. Joseph Sw-noxky, Diane Moudris rind Richard St, George (deceased) were the mumbers of the Board at the time of the hearing and decision challenged in this lawsuit. ' John Richards, Joseph Sarnosky, Diane Moudouris, and Richard St_ George, as they are members of tl)e Yarmouth Zoning Board of Appeals. RUG-04-2003 08:58 RTTY JOHN GRENEY 15093621125 P.06 3. The dwelling was built around 1954, prior to the passage of the Town of Yarmouth Zoning Bylaw. 4. The Yropetty is within the R25 zone and comains approximately 13,500 square feet of gross area, of which approximately 3900 square feet is upland. The side yard setbacks are 2.5 feet on the; west side and 6,1 feet on the east. Jn the R25 rune, under the current zoning bylaw, the miniMLE111 Side yard setbacks are to be 15 feet and th o minimum lot size is to be 25,000 square beet of upland. In other words, this lot .is a preexisting, n6n-cordoning vise Dellorco applied for a building; permit to add a family room and second story addition to the dwelling on the property. The application was denied, with the Building Inspector stating that Dellorco had to get a Special Permit .from the Board_ 6. Dellorco them, applied for a Special permit under § 104.3.2 (2) of the Town Of Yarmouth Zoning; Bylaw ("Yarmouth Bylaw"). The pertinent section of the Yannouth Bylaw provides, as Follows: 1. Lawfully pre-existing non-conforinfiag single and two -fancily structures, and lawfully pre-existing single family and two family structures located on non- conforming lots, may be altered or extended provided the alteration or extension: A. 1tsel f conforins to the applicable bylaw requirements, and does not involve a change of use, or: 13. Does not otherwise increase the non-confnr311ing nature of the structure.... [A]ny alteration or extension of such a structure which will remain within the preexisting footprint and height of the structure shall be presumed not to be an increase: in the non -conforming nature of the structure 2. Except as provided in paragraph 1. above, such single family and two-family structure may be altered or extended only upon Special Permit from the Board of Appeals, if it is determined that such alteration or extension will not he substantially inore detrimental to the: neighborhood than is the existing non- 2 AUG---04-2003 06:58 ATTY JOHN CRENEY 15083621125 P.07 conforming structure. Yarmouth Bylaw, Exhibit 7, p. 7_. 7_ The Board held a public hearing on. February 28, 2002 at which the Board voted to deny the application for Special Permit. The decision of the Board is dated Match 13, 2001 8. In the decision, the Board found: The neighborhood is defined principally by similar one story small seassona1 cottages. A iew have been enlarged and a few have second stories. However, they remain the exception. The Board finds that the addition of a second story, acid a proportionately substantial enlargement of this dwelling, will change .its character and impact- on the already congested (by current standards) Deighborhood. Further, the conversioi} of this and/or the other similarly situated seasonal type cottages, to year round single family homes, would also be substantially inorc detrimental to the immediate neighborhood and to the town. Lots of this size are Prot intended, nor capable, of supporting such intensive use, without resulting in neighborhood congestion which will be adverse to the neighborhood and contrary to the intent and purpose oft -lie bylaw. Decision, Town of Yarmouth, Board of Appeals, March 14, 2002 ("llecision"), pp. 1-2. 9. Tbe, existing dwelling is a seasonal, single story, two bedroom house, containing approximately 726 square feet of interior habitable space. The lot has a Title V compliant septic system. The proposed alterations cotisi st of an addition of a partial second floor of one room of approximately 437 square feet, with no additional bathroom facilities or closets, and replacement of an existing ground level deck with a new deck, and a second story deck off of the proposed new room. The new tipper deck would be approximately 120 square 1=eet, exclusive of the stairway. The new room is intended as a faipily room, not a bedroom. 10. At least four houses in the immediate neighborhood have added second floors and other additions_ These houses are in the same zoning district and are all clustered at the end of the cul-de-sac where 112 Breezy Point is located. Two of these additions have occurred since RUG-04-2003 06:58 RTTY JOHN CRENEY 15083621125 P.06 Dellorco bought leis Property in 1997. It does not appear that any of these lets has 25,000 square Meet of upland. See Exhibit 2. a. 110 Breezy Point (Lot 45) which is the neat door neighbor on the east side of the Property was expanded before 1997. This expantion included the addition of a second floor. b. 114 Breezy Point (Lot 47) is the next door neighbor can the west side of the Property_ This expansion occurred about three years ago. The added second floor is above the height of the other cottages. C. 106 Breezy Point (by inference, Lot 43) is -the third house away. This expansion, adding a complete second floor, was effected this past winter, concluding in the Spring 2003. This expansion would have .required a building pernzit. d. 119 Breezy Point is diagonally across the street. It Appears to have expanded its footprint as well as having added at least a partial second floor. 11. The expansion proposed by Dellorco is entirely consistent with the other expansions which have already talcen place in the immediate neighborhood. The expansion does . not further encroach on the side yard set backs. There will be no view irripact on any neighbor; no neighbor has objected. Dellorco has observed no increase in traffic, noise or other problems in the live years he has awned the Property, even with the addition that have been constructed can his neighbor's' houses. 12. 'rhe Dellorcos close the cottage at tli.e end of October. They do not use it in the E RUG-04-2003 08:58 ATTY JOHN CRENEY 15083621125 P.09 winter. 13. The Department of Environmental Protection ("DEP") found that, although the strucrure at 112 Breezy Point is within the buffer zone, the proposed addition will not alter an Area subject to protection and, therefore, does not require the :filing of a Notice of Totent. The DFP ordered that "all roof runoff be directed into drywelis and the proposed deck shall not be enclosed without a future filing." CONCLUSIONS OF LAW 1. Tn a zoning appeal, the court Finds the facts anew, and then applies those facts to determine the validity of the board's decision. Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 558-559 (1954); Anderson v. Planning Board of Norton, 56 Mass. App. C;t. 904,905 (2002). 2_ The decision of the Board should be upheld unless it is based "on an legally untenable or arbin•ary and capricious ground." Davis v. Zoning Board of C hatham, 52 Mass_ App. C'1. 349, 355 (2001). See also MacGibbon v, Board of Appeals of Duxbury, 369 Mass, 512, 515 (1976). A board of appeals denying an application for a special permit is riot required to make detailed findings; any rational basis allowed by the applicable ?aping bylaw, if'SulIported by the record is sufficient to uphold the decisi.oit. T)avis at 356; MacGibbon at 515. On the other hand, any factual basis for upholding a denial must "rightly ... move an impartial mind, acting _judicially, to the definite conclusion reached." Sboppers World v. Beacon Terrace_Realtt , 353 MatiS_ 63, 67 (1967)(citation omitted). The court may consider other presjccts approved or denied in tho, vicinity of the proposed project. See; Colangelo v. Board of Appeals of f,exin ton, 407 Mass, 242, 245-246 (1990)(application for variance or exemption). 5 AUG-04-2003 08:58 ATTY JOHN CRENEY 15063621125 P.10 3_ The parties agree, and the Building Inspector testified, that if Dellorco had 25,000 square :feet. of upland, he could add the second floor as of right. Testimony of' James D. Brandolini, Sr., Building Inspector, Town of Yarmouth. See also Goldhirsh v. McNear, 32 Mass. App. Ct. 455, 459 (1992) ("There can be no dispt{te that had the structure been situated farther back from the side lotline, its use as a residence [with a vertical expansion withila the existing foundational footprint] would have been lawful without a variance.")(citatii)n emitted). 4, Where the applicant may not make tine addition as of right, the Board must first "identify the particular respect or respects in which the existing structure does not confornn to the requirements of the present by-law and then determine whether the proposed alteration or addition would intensify the existing nonconforrnities or result in additional ones." Willard v. Board of ARVeals of Orleans, 25 Mass, App. Ct, 15, 21-22 (1987). Whether the addition of a second story will "intensify the noncon'for.Rwity" is a question of fact to be determined first by the Board. Goldhirsh at 461. That the footprint is not being eiilarged is one factor for the Board to consider. Id. 5. If the addition will intensify the nonconformity, then the Board must determine whether the addition will be "substantially more detrimental than is the existing; nonconforming [structure or] use to the neighborhood-...." G.L. c:. 40A, § 6; Yarmouth Bylaw, § 104.3.2, paragraph 2; Willard at 20-22. See also ritxsimonds v. Board of Appeals of Chathain, 21 Mass. App. Ct. 53, 56 (1985). 6, It is not clear to this court what exactly what "intensify the nonconformity" means in this context. The Town of Yarmouth Bylaw provides that any alteration which retrains within the existing footprint and height of the existing structure shall be "presumed not to be an 2 AUG-04-2003 08:59 ATTY JOHN CRENEY 15083621125 P.11 increase in the non -confirming nature of the structure." Yarmouth Bylaw, § 104.3.2, paragraph I.B. This does not necessarily mean that an increase in height will, in fact, "increase the non- conforming nature of the structure." The Board identified the existing nonconformi ties, but made no Ending that the addition would "intensify the nonconformity." Nevertheless, for purposes of this decision, the court will presunte that it does increase the nonconformity, because the square fibotage of the structure will. increase and the lot size will not. The lot is already not large enough under' the current bylaw.' 7. The Board made no explicit finding that the proposed addition would be substantially more detr.iine.MA to the neighborhood than is the existing stTlucttUe (With the exception of the apparently gratuitous finding that this was to be a conversion to year round use) and the Evidence would not support such a finding. a. The hoard found that the "neighborhood" is defined by similar one story small seasonal cottages and that, while a few have second stories, they are the exception. The Board also fntuid that the addition of a second story would change tliat character of the neighborhood. Decision at 1. While those findings may be tare for other areas of this development, in the neighborhood of this "clam shell turnaround," or cul-de-sac, it certainly is not. See Davis at 361, n, 16 ("neighborhood" is an elastic term, definition will depend on the facts of the case). The houses immediately adjacent to this Property on both the east and the 2 In the context of business use, there must be a "dramatic increase in the intensity of these characteristics," that is, increase in number of hours or volume ofoperation. pakham Sand & (Travel Corporation v. Town of Oalcham, 54 Mass. App. Ct. 80, 84 (2002). It would be hard to say that there was a "dramatic" increase in the nonconformity of this parcel from adding a second story where the living space, although increased by more than half, as a percentage of the upland was a ininuscule increase. 7 RUG-04-2003 08.59 ATTY JOHN CRENEY 15083621125 P.12 west, as well as the third douse to the east and the house across the road, all have second floors. There would. be no view impact on any neighbor from this addition. b_ The Board also found that this addition would "impact on the already congested (by current standards) neighborhood." Id. "f he Board did not describe what that impact would be but the court heard no evidence to support this conclusion. In the context of zoning, "congestion" usually refers to automobile traffic. See, e.g., KC:I Mgglt v. Board of Appeals of Boston, 54 Mass. App, Ct. 254, 259 (2002); Rinalai v_ Board of Al2 Is of Boston, 50 Mass. App. Ct. 657, 660 (2001). The evidence; was that (here had beon no increase in traffic or noise from the other additions in the immediate neighborhood. Indeed, since the addition is of a family room for the existing users of the Property, the courtt cannot see how this would increase congestion in any way. C. The Board also found that this addition would constitute a "conversion" to a year round use. Id. at 2. Again, the court heard no evidence to support this finding. Delloreo testified that he and his wife close the cottage at the end of October and do not return until the summer. There was no evidence that the cottage is, or would be, winterized. 11. The most recent addition, to 106 Breezy Point Road, would have rcquirod a building; permit. TL appears that this lot also does not have 25,000 square feet of upland. The lots to the east and west of 112 Breezy Point Road also appear not to have 25,000 square feet of up.l aut 10, The court, thus, finds that the decision of the Board is arbitrary and capricious. There is no evidentiary basis for the reasons stated by the Board, and the court heard none which would support the denial of the Special Permit. In addition, the hoard., or the Building Inspector K, AUG-04-2003 08:59 ATTY JOHN CRENEY 15083621125 P.13 as the Zoning Enforcement Officer, in the first instance, has.allowed other additions immediately adjacent to fl is Property which are substantially similar to this proposed addition. (31tDEIZ For the reasons stated in this decision, the decision Of the Town of Yarm. outh, Board of Appeals, dated March 14, 2002, denying a Spccial Permit for the proposed additions to 112 Breezy Point Road, South Yarmouth, is annulled. Date: July 2003 0 - A true Copy, Attest: Nonnie S. Rum, Associate; Justice TOTAL P.13 TOWN OF YARMOUTH OFFICE OF THE TOWN CLERK 1146 ROUTE 28, SOUTH YARMOUTH, MA 02664 TELEPHONE (508) 398-2231 FAX (508) 398.2365 GEORGE F. BARABE, CMMC April 1, 2002 John Creney, Esq. 86 Willow Street Yarmouthport, MA 02675 Dear Mr. Creney: Enclosed please find copies of the following to complaints: Damian A. Pareseau VS David Dickey, George Tsoukalas and Town of Yarmouth Civil Case # 02 CV 10453RCL Donald Dellorco Plaintiff VS Board of Appeals Please feel free to contact me with any questions you might have on the above matters. JEH:jeh Encs Cc: Robert Lawton, Jr. Board of Appeals on Dellorco File Board of Appeals Police Respectfully yours, v(/� G_ ie"E�. Hastings Assistant Town Clerk COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. DONALD DELLORCO, Plaintiff, u DAVID REID, JOHN RICHARDS, JOSEPH SARNOSKY, DIANE MOUDOURIS, and RICHARD ST. GEORGE, as They are Members of the Yarmouth Zoning Board of Appeals, Defendants COMPLAINT SUPERIOR COURT DOCKET NO. 0 � v .. ca The Plaintiff, Donald Dellorco, is an adult individual who owns property located at 112 Breezy Point Road, Yarmouth (South), Barnstable County, Massachusetts. 2. The Yarmouth Zoning Board of Appeals (hereinafter "the Board") is the duly authorized permit granting authority under M.G.L. c. 40A with a usual place of business at 1146 Route 28, South Yarmouth, Massachusetts. David Reid, John Richards, Joseph Samosky, Diane Moudouris and Richard St. George are members of the Board. 3. The Plaintiff filed an application for a special permit to add a family room and second story addition to the property at 112 Breezy Point Road. 4. A public hearing was held on February 28, 2002 at which time the Board voted to deny the application for special permit. The decision issued by the Board is dated March 13, 2002. A copy of said decision is annexed as Exhibit A. S. The Plaintiff is aggrieved by the decision of the Zoning Board of Appeals as the decision was arbitrary and capricious; it was made despite the weight of the evidence being against such a decision; it exceeded the authority of the Yarmouth Zoning Board of Appeals; and the Board considered grounds not legally permissible under M.G.L. c. 40A or the Town of Yarmouth By-law. WHEREFORE, the Plaintiff demands judgment that: a. The decision of the Board be annulled;- b. For any other relief that this Court deems mete and just. F- Date: ' Z RI O __ The Plaintiff, �:a -Z By His Attorney, o Bruce P. klp6e PO Box 714 1170 Route 6A West Barnstable, MA 02668 (508) 362-8833 BBO #192940 03/15/02 FRI 09:48 FAX 781 934 7617 DUMMY HIGH SCHOOL 2002 TOWN OF YARMOUTH BOARD OF APPEALS DECISION FILED WITH TOWN CLERIC: Myrrh 14, 2002 PETYTION NO: HEARING DATE: PETITIONER: * 3735 February 28, 2002 Donald Dellorco Yi" r t�� tYl TO k I `ARK 20 MAR 13 Pli 3: 03 RECLNED Un PROPERTY: 1112 Breezy Point Road, South Yarmouth CD Map: 34 Parcel: 230, (29/r47) Zoning Distriet: R25 MEMBERS PRESENT AND VOTING. David Reid, Chairman, John Richards, Joseph Sarnosky, Diane Moudouris, Richard St. George, Seas: Igoe, Alternate. It appearing that notice of said hearing has been given by sending notice thereof to the petitioner and all those owners of property deemed by the Board to be affected thereby, and to the public by posting notice of the hearing and published in The Registex, the hearing was opened and held on the date stated above. The petitioner seeks a Special Permit per bylaw § 104.3.2 (2) to expand an existing single family home. The lot on which the hc-me sits is within the R25 zone, and contains approximately 13,500 square feet of gross area. The existing home is a seaso.► ul, single story two bcdnxom home, built around 1954 (per the assessors records). It reporte:lly contains some 726 squETe feet of interior habitable space. The proposed alterations consist c f an addition of a second floor (partial), to contain one room of approximately 437 square fee;:; and to replace an existing ground level deck with a new deck, including a second story deck i'xff of the proposed new roam. The new upper deck would be 10' x 12' (exclusive of the stairway). The Board finds that the existing building and property are non -conforming in several respects - Notably, whip: the lot is reported to be 13,500 square feet, it appears that only approximately one-third of that is actually upland. The lot appears tc have no actual frontage, touching the public way only at one point (per the applicant's plan). The house is as little as 2.5' from its abutting lot on the west, and 6.1' on the east. Each adjoining lot is developed with a similar cottage also located in the general vicinity of the petitioner's cottage. The neighborhood is defined principally by similar one story small seasonal cottages. A few have been enlarged and a few have second stories. However, they remain the exception. The Board finds that the addition of a s;,cond story, and a proportionately substantial enlargement of this dwelling, will change its chmacter and impact on the a:Zeady congested (by current standards) -1- tX,1A 03/15/02 FRI 09:49 FAX 781 934 7617 DCTIBURY HIGH SCHOOL Q 003 neighborhood. Further, the cc-avcrsion of this and/or the other skawly situated seasonal type cottages, to year round single Jwnily homes, would also to substantially more detrimental to the immediate neighborhood and to the town. Lots of this size an not intended, nor Capable, of supporting such inumsive use, «ithout resulting in neighbortood congestion which will be adverse to the neighborhood and co=aiy to the intent and purpose of the bylaw. A000rdingly, a motion was nWe by Mr. St. George, seconded by Mr. Sarnosky. to deny the petition_ The members voted unaua wusly in favor of she motion. The petition is thmfore denied. Appeals from this decision shaU be made pursuant to MGL c40A section 17 and must be filed within 20 days after fling of this notice/decision with the Town Clerk. David S. Reid, Clerk `-- - rT' = a rr DD rL -2- CIVIL_ ACTION DOCKET NO.(5) Trial Court of Massachusetts 4 COVER SHEET Superior Court Department County: Barnst-ahi P PLAINTIFF(S) DEFENDANT(s) David Reid, John Richards, Joseph Donald Dellorco Sarnosky, Diane Moudouris,and Richard St. George as Tile are Members of the Yarmouth ATTORNEY, FIRM NAME, ADDRESS AND TELEPHONE ATTORNEY (If known) Zoning Board of Appeals Bruce P. Gilmore Jahn C. Creney PO Box 714a}� 7n Soaid of��"rWprs�e9Y�`>11 n b,,, �A 02668 86 Willow Street #tmcode and track designation Place an x in one box only: ❑ 4. F04 District Court Appeal c.231, s. 97 &104 (After [�Pc 1. F01 Original Complaint trial) (X) ❑ 2. F02 Removal to Sup.Ct. C.231,s.104 ❑ 5. F05 Reactivated after rescript; relief from (Before trial) (F) judgment/Order (Mass.R.Civ.P. 60) (X) ❑ 3. F03 Retransfer to Sup.Ct. C.231,s.102C (X) ❑ 6. E10 Summary Process Appeal (X) TYPE OF ACTION AND TRACK DESIGNATION (See reverse side) CODE NO. TYPE OF ACTION (specify) TRACK IS THIS A JURY CASE? --CO?— ( ) ( ) Yes ( ) No The following is a full, Itemized and detailed statement of the facts on which plaintiff relies to determine money damages. For this form, disregard double or treble damage claims; indicate single damages only TORT CLAIMS (Attach additional sheets as necessary) A. Documented medical expenses to date: 1. Total hospital expenses.........................................................$........... 2. Total Doctor expenses..........................................................$........... 3. Total chiropractic expenses...................................................... $ ........... 4. Total physical therapy expenses ............. ...................................... $ ........... 5. Total other expenses (describe) ................................................... $ ........... Subtotal $ ........... B. Documented lost wages and compensation to date ........................................ $ ........... C. Documented property damages to date ............................. ... .. ... , .. $ ........... D. Reasonably anticipated future medical and hospital expenses ................................ $ ........... E. Reasonably anticipated lost wages ............................................ . ....... F Other documented items of damages (describe) G. Brief description of plaintiff's injury, including nature and extent of injury (describe) C'. `�' IOTA CONTRACT CLAIMS —` (Attach additional sheets as necessary) Provide a detailed description of claim(s): TOTAL $........... . PLEASE IDENTIFY, BY CASE NUMBER, NAME AND COUNTY, ANY RELATED ACTION PENDING IN THE SUPERIOR COURT DEPARTMENT "I hereby certify that I have complied with the requirements of Rule 5 of the Supreme Judicial Court Uniform Rules o Dispute Resolution (SJC Rule 1:18) requiring that I provide my clients with information about court -connected dispul resolution services and discuss with them th a tges and disadvantages of the various methods:' Signature of Attorney of Record DATE: 27- 02 AOTC-6 mtc005-11/99 A.O.S.C.1-2000 JUIiN C. CRENEY JOHN C. CRENEY, P.C. ATTORNEY -AT -LAW 86 WfLLOW STREET YARMOUTH PORT, MASSACHUSETTS 02675 (508) 362-1122 FAX (508) 362-1125 James D. Brandolini Building Commissioner 1146 Route 28 SouthYarmouth, MA 02664 Re: Donald Dellorco v. Board of Appeals Our File No. Y 1839 Dear Mr. Brandolini: RECEIVED APR 1 2003 TOWN OF YARMOUTH BOARD OF APPEALS March 31, 2003 Enclosed is a copy of Superior Court notice of trial for June 25, 2003. Would you please plan to be available for testimony on that day. Very truly yours, Lam, John C. Creney Town Counsel JCC/dr Enc. cc: Ms. Rhonda La France, Board of Appeals David S. Reid, Esq. Commonwealth of Massachusetts COPY County of Barnstable The Superior Court CIVIL DOCKET# BACV2002-00190 RE: Dellorco v Zoning Board of Appeals TO:John C Creney, Esquire 86 Willow Street Yarmouth Port, MA 02675 NOTICE TO APPEAR FOR TRIAL A trial has been scheduled for the above referenced case as follows: DATE: TIME: LOCATION: June 25, 2003 09:00 AM Civil A Type: 40A; ZBA Length: 2 days All trial counsel are required to attend. Dated at Barnstable, Massachusetts this 27th day of March,2003. Nancy N. Weir Assistant Cleric Telephone: (508) 375-6684 Check website as to status of case: http.11ma-tria1courts.org/tcic c Ctrinot 2—pd 15363 trijvrn roderick JOHN C. CRY JOHN C. CRENEY, P.C. ATTORNEY -AT -LAW 86 WILLOW STREET YARMQUTH PORT, MASSACHU51--1 L 02675 (506) 362-1122 FAX (SOS) 362-1125 April 4, 2002 Scott W. Nickerson, Clerk Superior Court P.O. Box 425 Barnstable, MA 02630 Re: Donald Dellorco V. Yarmouth Board of Appeals Docket No. 02-190 Our File No. Y1839 Dear Mr. Nickerson: 000py . Enclosed herewith for filing please find answer of Defendants, a copy of which has been served this day by first class mail postage pre -paid upon Bruce P. Gilmore, counsel for Plaintiff JCC/dr Enc. cc: Yarmouth Board of Appeals Robert C. Lawton, Jr., Town Administrator fiery truly our John C. Creney COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS. DONALD DELLORCO, Plaintiff, V. DAVID REID, JOHN RICHARDS, JOSEPH SARNOSKY, DIANE MOUDOURIS and RICHARD ST. GEORGE AS THEY ARE MEMBERS OF THE YARMOUTH BOARD OF APPEALS, Defendants SUPERIOR COURT DEPT. NO. 02-190 ANSWER OF DEFENDANTS In response to the respective numbered allegations of the complaint, the Defendants answer as follows: 1. The Defendants say that the Plaintiff, Donald Dellorco, is one of two owners of the subject property, the other owner being Mary M. Dellorco, by deed recorded with Barnstable County Registry of Deeds in Book 11677, Page 177, a copy of which is attached hereto as Exhibit A. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied. WHEREFORE, the Defendants request that the decision of the Board be affirmed, and for such further relief as the Court deems appropriate. Defendants by their attorney, ohn C. Creney Town Counsel 86 Willow Street Yarmouth Port, MA 02675 (508)-362-1122 BBO No. 105000 Dated: April 4, 2002 BK11677 PC177 GGIGI os-03--1 sse a 09 C 1 S Return To: Kaufman & Bennett 933 Webster Street Marsh field, MA 02050 QUITCLAIM DEED I, Walter W. Tolmie of 430 Franklin Village Drive, #119, Franklin, MA In consideration of Eighty Eight Thousand Five Hundred and 00/100 ($88,500.00) Grant to Donald D. Dellorco and Mary M. Deilorco, husband and wife as tenants by the entirety of 16 Hillside Drive, Hanover, MA With Quitclaim Covenants The land together with the buildings thereon, situate in Yarmouth (South), Barnstable County, Massachusetts, bounded and described as follows: NORTHEASTERLY: by Breezy Pant Road, by a curve having a radius of sixty- eight (68) feet, for a distance of fifty (50) feet as shown on hereinafter mentioned plan; EASTERLY: by Lot 45, as shown on said plan, three hundred sixty- two (362) feet, more or less; SOUTHERLY: by the Run as shown on said plan; and WESTERLY: by Lot 47, as shown on said plan, three hundred ninety- eight (398) feet, more or less. Containing 13,500 square feet, more or less and being shown as Lot 46 on plan entitled "Property of George W. and Marion P. Wood, Plan of Land South Yarmouth, Mass. as surveyed for L. Melva Jones Scale 1 " = 80' October 1941 " duly filed with the Barnstable County Registry of Deeds in Plan Book 72, Page 51 . The above described premises are conveyed subject to and with the benefit EXHIBIT A 61< 11 b77 PG 1 7a 66161 of all rights, rights of way, easements, appurtenances, reservations, and restrictions of record insofar as the same are in full force and applicable. Being the same premises commonly known as 112 Breezy Point Road, Bass River, Massachusetts. For our title see deed dated February 20, 1997 and recorded at the Barnstable Registry of Deeds in Book 10879, Page 256, Wit ess my hand and seal this day of /K f / i 1998 j��,� � COMMONWEALTH OF MASSACHUSE7TS ' {'-` ss August 28, 1998 Then personally appeared the above na ed Walter W. Toimie as aforesaid and acknowledged the foregoing instrume to a his free act and deed, before me r. Notar P}tlljc My c r Wi�pxpires: ` j `71 � J� Gonna s,19" Gad Premise Address: 112 Breezy Point Road, South Yarmouth, MA 62A--lr pia' l6 1� cl� �i� -� c'_is?." -MI", . 03 3 G mm Cnx �° a+rn �a M� co �n ¢ a� =rS H U x CO. .S lrn as } am c• W -I-j WNSTABLE REGISTRY OF DEEDS