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HomeMy WebLinkAbout3735 112 Breezy Point REMAND Decision RecordedBk 18328 Po34--19320 rj3-17-2004 a 12 P;35w TOWN OF YARMOUTH BOARD OF APPEALS -i DECISION i 24 i FILED WITH TOWN CLERK: February 24, 2004 i RE,)i_:_IV L'L PETITION NO. 93735 HEARING DATE: February 12, 2004-Remand (2/28/02) PETITIONER: Donald Dellorco PROPERTY: 112 Breezy Point Road, South Yarmouth Assessors Map & Lot: 034.230 (29/T47) Zoning District: R25 MEMBERS PRESENT AND VOTING: David Reid, Chairman, John Richards, Joseph Sarnosky, Sean Igoe and Forrest White. 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 Register, the hearing was opened and held on the date stated above. The petitioner seeks a Special Permit, per § 104.3.2, to add a partial second story to an existing non -conforming single family home. The home is located in the R25 zone. This house, and proposal, was previously before the Board on February 28, 2002. The Board denied the request. However, by judgment dated January 2, 2004, that decision was vacated by the Barnstable Superior Court, and remanded to the Board for a new hearing. The property is shown as lot 46 on the petitioner's 1941 subdivision plan, and plot plan dated January 24, 2003, (filed with the Board by the petitioner). The site reportedly contains 13,500 square feet of area, but only 3,900 square feet of it is upland. The lot appears to be the smallest of its surrounding lots, fronting on a cul-de-sac at the bend in the road. The existing seasonal cottage is located, at its closest points, only 2.5' and 6.1' from its respective side lines. The other houses appear to similarly have insufficient setbacks and lot areas. Some of the other houses in the immediate area have partial second stories. The proposed addition would contain approximately 437 square feet, and would be used as a living area only. No bedrooms would be added to the cottage which currently contains 726 square feet of area on the first floor. Some members of the Board find that the addition, as proposed, would increase the non- conforming nature of the present structure and use. The effective lot area of only 3900 square feet is far below the 25,000 currently required, and substantially less then the minimum lot size ever allowed under the most lenient zoning. It is therefore insufficient to support any residential use. The current seasonal cottage use is therefore an overuse of the area, and adds to congestion and density in the immediate neighborhood. From photographs presented at the hearing it is already evident that there is insufficient room between homes to permit satisfactory privacy and separation between residences. To now add a second story, increasing the size of the dwelling by more then 50%, can only serve to increase the use and non -conformity of the structure. The petitioners indicated that this addition is, in part, a preparation for their expected retirement, and will make it more suitable for more intense use at that time_ In addition, the second story will add to the side yard non -conformity, by increasing the encroaching structure from a single story to a two story within the setback. A greater volume and height of building within the setback (side yard) serves to make it more non -conforming, adding to the physical and visual congestion and excess density on the site, within the setback and in the neighborhood. While other homes already have such second stories, most were built long ago (or are on larger lots). In any event, being now able to see the effect of such additions, the Board is not required to repeat past mistakes nor use them to bolster further non -conformities. Other members of the Board find that the addition would be compatible with the surrounding homes, especially since this and the abutting homes are only seasonal in nature. Since no bedrooms will be added, and no setbacks further reduced, the addition would not be more detrimental to the neighborhood then the existing use. Furthermore, the addition would be comparable to other structures in the immediate vicinity, and it would seem unfair to not allow this property owner to make similar improvements. Accordingly, a motion was made by Mr. Igoe, seconded by Mr. White, to grant the Special Permit as requested. Mr. Igoe, Mr. White and Mr. Richards voted in favor of the motion; Mr. Reid and Mr. Sarnosky voted against the motion. The motion therefore failed to secure the needed majority. After discussion among the Board, a second motion was made by Mr. Igoe, seconded by Mr. Richards, to grant the Special Permit, as requested, but on the following conditions: 1. the shed and utility room on the west side of the building, now 2.5' from the lot line, be either removed or reduced in width so as to restore at least a 6' side yard setback, and 2. it remain a two bedroom home, 3. no further additions or alterations of the structure be permitted without further relief from the board. On that motion, the members voted unanimously in favor, finding that the improvement of the setback to at least the historical 6' standard eliminated the most non -conforming feature of this building. The addition also remained more than 6' from the lot line. Finally, the addition of the limitation on future construction added a measure of over -sight that would be beneficial in the future, should the owners propose to convert the cottage to a year-round dwelling. At the request of the petitioner, a third motion was made by Mr. Igoe, to grant the Special Permit, on the condition that the shed be removed, but that the utility structure be allowed to remain (2.5' from the lot line), and that it remain a two bedroom home, with no further additions or alterations without further relief from the Board. No second to the motion was made. Therefore the Special Permit was granted upon the three (3) conditions set forth in the second motion above. 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 2 days after filing of this notice/decision 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) Unless otherwise provided herein, a Variance shall lapse if the rights authorized herein are not excised within 12 months. (See MGL c40A §10) David S. Reid, Clerk