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Home My WebLink AboutAmended Appeal of 5024 184 South Sea Ave Unit 1 Land Court 10.13.2023COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT BARNSTABLE, ss. CASE NO. 23 MISC 000313 WAKEBY DEVELOPMENT, INC., } Plaintiff, ) VS. STEVEN DEYOUNG, DICK MARTIN, JAY FRAPRIE, JOHN MANTONI and SEAN IGOE, as they are Members of the YARMOUTH ZONING BOARD OF APPEALS and the YARMOUTH ZONING BOARD OF APPEALS, Defendants. NOTICE OF FILING AMENDED COMPLAINT Pursuant to G.L. c. 40A, § 17, notice is hereby given by the Plaintiff, Wakeby Development, Inc., to the Yarmouth Town Clerk, of the Amended Complaint filed by Wakeby Development, Inc. with the Land Court on October 13, 2023. A true copy of the Amended Complaint is appended hereto as Attachment 1. Respectfully submitted, Wakeby Develop nt, Inc., By its attome , Christopher J. Kirrane, Esq. Dunning, Kirrane, McNichols & Garner 133 Falmouth Road Mashpee, MA 02649 (508) 477-6500 ckirrane@dunningkirrane.com BBO 4660542 Date: October 13, 2023 COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT BARNSTABLE, ss. CASE NO. 23 MISC 000313 WAKEBY DEVELOPMENT, INC., Plaintiff, VS. STEVEN DEYOUNG, DICK MARTIN, JAY FRAPRIE, JOHN MANTONI and SEAN IGOE, as they are Members of the YARMOUTH ZONING BOARD OF APPEALS and the YARMOUTH ZONING BOARD OF APPEALS and SOUTH SEA VILLAGE CONDOMINIUM changed name to TCI FINANCIAL SERVICES, INC. and merged with TELE COMMUNICATIONS INC. Defendants. AMENDED COMPLAINT PRELIMINARY STATEMENT This is an appeal by Wakeby Development, Inc. (hereinafter referred to as "Applicant" or "Plaintiff'), pursuant to G.L, c. 40A, § 17, in which Plaintiff seeks to annul a decision of the Yarmouth Zoning Board of Appeals (`Board"). By vote made on May 25, 2023, and filed with the Yarmouth Town Clerk on June 14, 2023 ("Decision"), the Board denied Plaintiff's application for a Special Permit to raze and rebuild a pre-existing, non -conforming, single-family home located at 184 South Sea Avenue, Unit 1, West Yarmouth, Barnstable County, Massachusetts ("Subject Property"). Plaintiff contends thafthe Board's decision is improper as, inter alia, Plaintiff demonstrated its entitlement to a Special Permit pursuant to Yarmouth Zoning By -Laws ("Zoning By -Laws") § 104.3.2 (2) and 104.3.2 (4). The Board's Decision exceeded its authority and/or was arbitrary and capricious and should be annulled. JURISDICTION Jurisdiction is appropriate in this Court pursuant to G.L. c. 40A, § 17. PARTIES 1. The Plaintiff, Wakeby Development, Inc. is a Massachusetts Corporation with an address of 27 Melissa Avenue, Mashpee, Massachusetts 02649, and the owner of the subject, 184 South Sea Avenue, Unit 1, West Yarmouth, Barnstable County, Massachusetts 02673. 2. The Defendant, Steven DeYoung, is Chair of the Yarmouth Zoning Board of Appeals, c/o Yarmouth Zoning Board of Appeals, 1146 Route 28, South Yarmouth, Barnstable County, Massachusetts 02664. 3. The Defendant, Dick Martin, is a Member of the Yarmouth Zoning Board of Appeals, c/o Yarmouth Zoning Board of Appeals, 1146 Route 28, South Yarmouth, Barnstable County, Massachusetts 02664. 4. The Defendant, Jay Fraprie, is a Member of the Yarmouth Zoning Board of Appeals, c/o Yarmouth Zoning Board of Appeals, 1146 Route 28, South Yarmouth, Barnstable County, Massachusetts 02664. S. The Defendant, John Mantoni, is a Member of the Yarmouth Zoning Board of Appeals, c/o Yarmouth Zoning Board of Appeals, 1146 Route 28, South Yarmouth, Barnstable County, Massachusetts 02664. 6. The Defendant, Sean Igoe, is Vice -Chair of the Yarmouth Zoning Board of Appeals, c/o Yarmouth Zoning Board of Appeals, 1146 Route 28, South Yarmouth, Barnstable County, Massachusetts 02664. 7. The Defendant, Yarmouth Zoning Board of Appeals ("Board"), is the Zoning Board of Appeals for the Town of Yarmouth and has a business address of Yarmouth Town Hall, 1146 Route 28, South Yarmouth, Barnstable County, Massachusetts 02664. 8. The Defendant, South Sea Village Condominium a/k/a South Sea Village Resort Investment, Inc. a/k/a South Sea Village, Inc. has changed its name to TCI Financial Services, Inc. and merged with Tele Communications, Inc. pursuant to the Secretary of State — Corporation Division (see attached). TCI Financial Services, Inc. and Tele Communications, Inc. is a domestic profit corporation with a principal office located"at 694 Center Street, Chicopee, Massachusetts 01020. FACTUAL ALLEGATION 9. Plaintiff repeats and revers the allegations contained in Paragraph I through 11, as if fully set forth herein. 10. Plaintiff purchased the Subject Property pursuant to a Quitclaim Deed, dated March 3, 2021, and fled with the Barnstable County Land Court as Document No. 1,421,619. 11. The Subject Property is a stand-alone single-family condominium built in the 1940's. 12. It is one of many single-family Condominium buildings on a lot comprising 11.36 acres. 13. The Subject Property is a one and a half story, three -bedroom dwelling comprising of approximately 1,064 square feet. 14. In 2023 Plaintiff filed an application for a Special Permit with the Yarmouth Zoning Board of Appeals pursuant to §§ 104.3.2(2) and 104.3.2(4) of the Zoning By -Laws to raze and rebuild the pre-existing, non -conforming structure. 15. At 25.81' from the South Sea Avenue, the existing structure does not meet the existing Front Yazd Setback requirements. 16. The Subject Property is located in the R-25 zoning district which has the following dimensional requirements: a. Minimum Lot Size — 25,000 square feet b. Minimum Lot Frontage ---150 feet c. Minimum Front Yard Setback — 30 feet d. Minimum Side Yard Setback — 15 feet e. Minimum Rear Yard Setback -20 feet f. Maximum Height — 35 feet g. Maximum Lot Coverage — 25% 17. The R-25 is a residential district which allows a single-family dwelling as of right. 18. The Plaintiff proposes to raze the existing structure and replace it in the same footprint with a two-story three -bedroom single-family residence. 19. Proposal does not increase the number of bedrooms. 20. The project would not intensify any existing non -conforming or create any new ones. 21. § 104.3.2(2) of the Yarmouth Zoning Bylaw allows for the raze and replace of a pre- existing, non -conforming structure upon the grant of a Special Permit by the Zoning Board. 22. To make the required Finding, the Board must determine that the raze and replace will not be substantially more detrimental to the neighborhood then is the existing non- conforming structure. 23. A Public hearing was held on May 25, 2023. at which Plaintiff's representative presented substantial information concerning the proposed development of the Subject Property. 24. At the end of the May 25, 2023 hearing, the Board by a vote of two in favor and three opposed, denied Plaintiff's application for a Special Permit. 25. The neighborhood surrounding the subject property contains single-family residences of varying sizes. 26. The Plaintiff's project was reviewed and approved by the Condominium Association. 27.On June 14, 2023, the Board filed its decision on the Plaintiff's application with the Yarmouth Town Clerk (Decision). A certified copy of the Decision is appended hereto as Attachment 1. 28. The Board's Decision inexplicably denied the project on the basis that if they granted this Special Permit they would have to allow the other buildings to be altered in a similar manner changing the character of the property which they claimed was seasonal as opposed to year round. 29. The existing house can be used year-round so the Board's concern about the history of the property as seasonal is without merit. 30. There is no restriction by the Condominium Association or the Zoning By -Law which prohibits year-round use of the property. 31. The Board erred in failing to find that Plaintiff is entitled to a Special Permit, as there was substantial evidence to support a finding that the proposed structure would not be substantially more detrimental to the neighborhood that what was currently exists. 32. Plaintiffs demonstrated satisfaction of the Special Permit criteria pursuant to Zoning By - Laws § 104.3.2(2) and § 104.3.2(4). 33. Plaintiffs are aggrieved due to the Board's Decision to deny the application for Special Permit for the Subject Property. 34. The Board's Decision exceeded its authority and/or was arbitrary and capricious because, inter alia, Plaintiffs submitted evidence and demonstrated satisfaction of the Special Permit criteria pursuant to Zoning By -Laws §§ 104.3.2(2) and 104.3.2(4). 35. The Board's Decision must be annulled. 36. Pursuant to Article IV, Section C of the Master Deed, the common areas include "All land, lawns, trees and facilities thereof, shed, lighting fixtures, plants and parking and other improved areas not within the units..." COUNT APPEAL PUSUANT TO G.L. c. 40A 17 37. Plaintiff repeats and revers the allegations contained in Paragraph 1 through 39, as if fully set forth herein. 38. For all the reasons detailed above, the Board's Decision to deny Plaintiff's Special Permit application is ultra vires, unreasonable, arbitrary, capricious, without substantial basis in fact, invalid and illegal, and exceeds the authority of the Board in that the Board, without limitation, improperly and in violation of both the requirements and intent of G.L. c. 40A and the Zoning By -Laws: (a) Failed to set forth any findings pursuant to Zoning By -Laws; (b) Failed to consider the evidence presented to the Board that demonstrated satisfaction of the Special Permit criteria pursuant to Zoning By -Laws. 39. As a consequence of the above, the Decision of the Board should be annulled. REQUEST FOR RELIEF WHEREFORE, Plaintiff prays that this Honorable Court: (a) Enter Judgement for Plaintiff to the effect that the Yarmouth Zoning Board of Appeals exceeded its authority in denying the Special Permit application and order the issuance of a Special Permit; (b) Order that the Board's Decision filed with the Yarmouth Town Clerk on June 14, 2023, be annulled and declared invalid and of no force or effect; (c) Award Plaintiff their reasonable attorney's fees and costs; and (d) Grant such other and further relief as may be just and necessary. Dated: October 13, 2023 Respectfully submitted, Wakeby Develop a t, Inc., By its attorney�� Christoph6r J. Kid ne; Bsq' Dunning, Kirrane, McNichols & Garner 133 Falmouth Road Mashpee, MA 02649 (508) 477-6500 ckirrane dunnin kirrane.com BBO #660542 1, Christopher J. Kirrane, attorney for the Plaintiff, Wakeby Development, Inc., hereby certify that I have served the within Amended Complaint by serving via through the E-file MA system and by serving in -hand and by first-class mail, postage prepaid upon Defendants as Members of the Town of Yarmouth Zoning Board of Appeals c/o Yarmouth Town Hall, 1146 Route 28, South Yarmouth, MA 02664 and by first-class mail, postage prepaid upon Defendants, South Sea Village Condominium changed name to TCI Financial Services, Inc. and merged with Tele Communications, Inc. a Center Street, Chicopee, Massachusetts 01020 Dated: October 13, 2023 l Christopher 'jrrane, Esq. COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT BARNSTABLE, ss. CASE NO. 23 MISC 000313 WAKEBY DEVELOPMENT, INC., ) Plaintiff, ) VS. STEVEN DEYOUNG, DICK MARTIN, JAY FRAPRIE, JOHN MANTONI and SEAN IGOE, as they are Members of the YARMOUTH ZONING BOARD OF APPEALS and the YARMOUTH ZONING BOARD OF APPEALS, Defendants. NOTICE OF FILING AMENDED COMPLAINT Pursuant to G.L. c. 40A, § 17, notice is hereby given by the Plaintiff, Wakeby Development, Inc., to the Yarmouth Town Clerk, of the Amended Complaint filed by Wakeby Development, Inc. with the Land Court on October 13, 2023. A true copy of the Amended Complaint is appended hereto as Attachment 1. Respectfully submitted, Wakeby Develop nt, Inc., By its attorney-,-" Christopher J. Kirrane, Esq. Dunning, Kirrane, McNichols & Garner 133 Falmouth Road Mashpee, MA 02649 (508) 477-6500 ckirrane@dunningkirrane.com BBO #660542 Date: October 13, 2023