HomeMy WebLinkAboutDecision 1825 Appeal, Answer of Defendant, Violation Notice.JOHN C. CRENEY. P.C.
ATTORNEY -AT -LAW
HYANNIS PROFESSIONAL CENTER
17 EAST MAIN STREET
HYANNIS, MASSACHUSE-rTS 02601
(617) 771-0049
July 13, 1982
Mrs, Barbara Holmes Neil, Clerk
Superior Court
Barnstable, MA 02630
Re: Benjamin M. Hulley et al vs. Board of Appeals of
the Town of Yarmouth et al - Docket No. 42240
Dear Mrs. Neil:
Enclosed herewith for filing please find Answer of Defendant
Board of Appeals, a copy of which has been served this day upon
Thomas B. Bracken, Esquire, attorney for the Plaintiffs.
Very truly yours,
John C. Creney
Town Counsel
JCC/me
Enclosure
cc: Thomas B. Bracken, Esquire
Michael D. O'Neil, Esquire /
Mrs. Joyce Sears, SecretaryV
Robert C. Lawton, Jr.,
Executive Secretary
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss
BENJAMIN M. HULLEY ET AL, }
Plaintiffs )
VS. )
BOARD OF APPEALS OF THE )
TOWN OF YARMOUTH, ET AL )
}
Defendants )
Superior Court Department
No. 42240
ANSWER OF THE DEFENDANT
BOARD OF APPEALS
Now come the members of the Defendant Board of Appeals and
for answer state as follows:
First Defense
1. No answer is required to Paragraphs 1, 13 and 14 of the
complaint, such paragraphs constituting conclusions of law and
alleged recitations of portions of the special permit in issue,
which special permit speaks for itself.
2. The Defendant admits the allegations set forth in Para-
graph 3 of the complaint.
3. The Defendant is without knowledge or information suf-
ficient to form a belief as to the truth of the allegations set
forth in Paragraphs 2, 4, 7, 8, 15 and 16 of the complaint.
4. The Defendant denies the allegations set forth in Para-
graphs 5, 6, 9, 10, 11, 12, 17 and 18 of the complaint.
-IN C. CRENEY. P.C.
ATTO R N EY-AT-LAW
b PAURRAY ROAD
41419. MASSACHUSETTS
02601
6 17. 771-004P
Second Defense
5. The Defendant says that the Plaintiff Barbara Ackerman
is not a person aggrieved as required by General Laws, c. 40A,
§ 17.
DEFENDANT
By Its Attorney,
John C. Creney
Town Counsel
17 East Main Street
Hyannis, MA 02601
771-0049
July 13, 1982
CERTIFICATE OF SERVICE
I, John C. Creney, of 17 East Main Street, Hyannis,
Massachusetts, hereby certify that on this thirteenth day of
July, 1982, I served the Plaintiffs with a copy of the Defendant'
Answer by mailing the same, first class mail, postage prepaid,
to their attorney, Thomas B. Bracken, Bracken and Baram, 33 Mount
Vernon Street, Boston, Massachusetts, 02108.
Signed under the penalties of perjury.
John C. Creney
HN C. CRENEY. P.C.
ATTORNEY•AT•LAW
5 MURRAY ROA❑
NN19, MASSACHOOVTYS
OZ601
517 - 77 1.0048
0
9
TOWN OF YARMOUTH
BUILDING DEPARTMENT
SOUTH YARMOUTH MASSACHUSEM.02664
June 20, 1984
Mr. Wayne Kurker
D/B/A Hyannis Marine Service Ltd.
Arlington Street
Hyannis, Mass. 02601
Dear Mr. Kurker:
On a recent inspection of your property, parcels Q-1-A, A-1, A-2, I observed
that a so called gang plank or walk way had been installed, which connects the
newly installed floating deck to the existing bulkhead.
In your appeal to the Board of Appeals Petition NO. 1825, you asked for partial
relocation of an existing dock in a residential district: This appeal was approved
and later appealed. While under appeal no work would be allowed in regard to the
variance and/or special permit requested. I consider the moving of the dock on the
lot from one location to another to be an alteration and would require a special
permit from the Board of Appeals. Since the connection of the floating dock to the
bulkhead has been made by a walkway, I consider this to be in violation and must
be removed upon receipt of this notice.
Very my yours,
eD
Fo rest E. White
cc Mr. Bracken Building Inspector
John Creney
Robert C. Lawton, Jr.
Board of Appeals
Certified Mail #P 443 720 510
1
J
THOMAs B. BRACKEN
MICHA£L S. BARAM
J. RAYMOND MIYARES
BRACKEN AND BARA"CEEVED
33 MOUNT VERNON STRM JU14 22 AM 1
0 0 7
BOSTON, MASSACHUSETTS 02iiQ,8lJ Or lAl1MOUTH !
�617� 742-4950 TOWN CLERK & TREASURER
June 21, 1982
Ms. Kathleen D.
Town Clerk
Town of Yarmouth
1 State Road
South Yarmouth,
Johnson
MA 02664
Re: Benjamin M. Hulley, et al.
v. Board of Appeals of the
Town of Yarmouth et al.
Barnstable Superior Court
Dear Ms. Johnson,
Enclosed is Notice of Appeal advising that an
action has been commenced in the Superior Court for
Barnstable County appealing the decision of the Board of
Appeals granting a special permit to Hyannis Marine
Services, Ltd. A copy of the complaint is attached to the
Notice.
Enc.
TBB:pa
Sincerely,
�f /I
00�-
as B. Bracken
RECEIVED
08Z JUN 22 AN 0. 07
NOTICE OF APPEAL TOWN BF YARMOUTH
TOWN CLERK & TREASURER
'o: Town Clerk, Town of Yarmouth,
Massachusetts
?LEASE TAKE NOTICE that Benjamin M. and Joan Hulley and
3arbara Ackermann have filed an appeal in the Superior
court, Barnstable County, from the decision of the
Board of Appeals (No. 1825), that the Board purported
to file with the Town Clerk on June 3, 1982 and refiled
3n June 11, 1982, granting a special permit to Hyannis
Marine Services, Ltd. A copy of the complaint is
attached hereto.
Res ectfully submitted,
Bracken and Baram
33 Mount Vernon Street
Boston, MA 02108
617 742-4950
Attorney for Plaintiffs
ne 21, 1982
'
RECEIVED
1982 JUN 22 AM 10. 07
j COMMONWEALTH OF
MASSACHUSE �T
I5N OF YARMO TH
BARNSTABLE COUNTY, s . s .
SUPERI&MtBa� 19ASMbIMT
No.
****************************
*
BENJAMIN M. HULLEY,
!JOAN HULLEY, and
�ARBARA ACKERMANN,
Plaintiffs
€ V.
jBOARD OF APPEALS OF
��rHE TOWN OF YARMOUTH;
!DONALD
* COMPLAINT
F. HENDERSON,
:bAVID
B. OMAN,
HERBERT RENKAINEN,
;MORRIS I. JOHNSON, JR.,
;and THOMAS N. GEORGE,
as they are members of
ithe Board of Appeals;
jand
HYANNIS MARINE
jPERVICES, LTD.
Defendants
i
i
1. This is an appeal
under Mass. G.L., C. 40A,
17 from a decision of the
Board of Appeals of the
,Town of Yarmouth granting a
special permit to Hyannis
marine Services, Ltd. ("Petitioner" herein). The
special permit allows petitioner to expand its large
commercial marina, located partly in a business district
-of the Town of Barnstable and partly in a residential
district of the Town of Yarmouth, by moving one of its
docks forty to fifty feet further into the residential
district of the Town of Yarmouth and closer to
plaintiffs' property. The permit also allows for the
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;lengthening of the dock, increasing the number of slips,
And providing additional parking spaces. A certified
ropy of the decision appealed from is attached hereto as
it �
Exhibit A.
2. Plaintiffs Benjamin M. and Joan Hulley,
usband and wife, own a lot and permanently reside in a
ouse thereon located in the residential district of
the Town of Yarmouth, that is about sixty-five feet from
i
the proposed location of petitioner's dock. Plaintiff
I
Barbara Ackermann is the daughter of the owners and
visits her parents frequently on weekends and during the
;summer. Plaintiffs are aggrieved by the Board's decision!
ly reason of the fact that their use and enjoyment of t
II
their property and the harbor will be diminished and
i
the economic value of their property will be reduced by
ithe relocation and expansion of a commercial boat dock
'near their property. Specifically, the dock would
(1) interfere with the use by plaintiffs of their
!sailboats, (2) increase noise and congestion in the
leighborhood, (3) increase automobile traffic and the
iatten dant air pollution caused by automobile exhaust,
!and (4) expand a commercial use into a residential
't istrict.
3. The defendants are the Board of Appeals of the
Town of Yarmouth, the five members of the Board who
rendered the decision appealed from, and the petitioner
VA
for the special permit. The addresses of the Board
!members are: Donald F. Henderson, 776 Main Street,
Hyannis; Thomas N. George, 776 Main Street, Hyannis;
David B. Oman, 546 Higgins Crowell Road, West Yarmouth;
Herbert Renkainen, 12 Samoset Road, West Yarmouth;
,Morris I. Johnson, Jr., 176 Winslow Gray Road, West
.Yarmouth.
4. The petitioner's marina presently is located
partly in a business district of the Town of Barnstable,
and partly on two contiguous lots in a residential
district of the Town of Yarmouth. In or about 1958
the petitioner purchased the land in the Town of
Barnstable and a residential lot in the Town of
;Yarmouth abutting the Barnstable land (referred to herein
as "residential lot # 1"). At that time, a private
boat shed and dock were located on the Barnstable lot and
residential lot # 1. Petitioner then obtained a permit
from the Board of Appeals of Yarmouth to build
additional docks, repair and storage buildings, a large
off-street parking lot and other associated facilities on
residential lot # 1. In or about 1959, petitioner
purchased another lot in the residential district of
the Town of Yarmouth that abuts residential lot # 1 and
is one lot away from plaintiffs' property (referred to
herein as "residential lot # 2").
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it5. At the times petitioner purchased residential
mots # 1 and # 2 in Yarmouth, and at the present time,
Ir aid lots were and are located in a residential district
I
i;under the zoning by-laws of the Town of Yarmouth. In
i �
��j 982 the Petitioner t
P purchased the residential lot that
i
1separaues plaintiffs' property from residential lot # 2.
6. Operation of a commercial marina of the type
operated by petitioner, is now and was when the
Ltitioner
purchased residential'lots # 1 and # 2,
ited in a residential district of the Town of
Yarmouth. Neither the petitioner's marina, nor any
�imilar business facility and operation, existed at J
I
present location of petitioner's business, prior to
+the enactment of the Town's zoning by-law that designated
Ithe area in Yarmouth in which the marina is located as
I,
a residential district and prohibited a marina in the
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district.
i� 7. Prior to the issuance of the special permit
'f
'6hallenged in this action, petitioner had not obtained
any permit or other approval allowing petitioner to use
';'residential lot # 2 for a marina, or any associated
lactivities, including docks.
8. In 1982, the petitioner applied to the Board
.of Appeals for a variance and/or special permit to
allow petitioner (a) to move a dock that petitioner had
illegally placed on residential lot # 2, about forty to
i
4
I
fifty feet further onto petitioner's lot and toward the
plaintiffs' property, (b) to lengthen the dock, (c) to '
!increase the number of boat slips, and (d) to increase
fl
_ the number of automobile parking spaces.
i
9.. The Board of Appeals held a hearing on the
,petitioner's application on April 8, 1982. Thereafter,
i
on or about April 14, 1982 members of the Board held an
on -site inspection of the petitioner's marina. Plaintiffs
j
are informed and believe and thereon allege that while
ithe members were on one of petitioner's docks during the
said on -site inspection, the Board voted to grant the
;requested special permit to petitioner. The Board
purported to file its decision with the Town Clerk on
June 3, 1982 and refiled the decision on June 11, 1982.
10. The Board did not properly notify the public
'of its intention to conduct an on -site inspection of
the petitioner's marina and the Board did not give proper
notice of a meeting to be held for the purpose of
deliberating toward and rendering a decision on
petitioner's application.
11. The Board did not conduct its deliberations
and render a decision on the petitioner's application at
I
a "meeting" as that term is defined in Mass. G.L. c. 39,
23A.
12. By reason of the foregoing, the decision of
the Board to issue a special permit to petitioner was
5
of
I:made in violation of the hearing requirement of Mass.
.L. c. 40A, and in violation of the t
� e requirements of
i�he Open Meeting Law, Mass. G.L. c. 39, S 23B. ,
13. The decision states that the Board
Lonsidered the petitioner's request solel under 1532 Y � ,
,of the Town's zoning by-law, which provides that the `
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'Board may grant a special permit to allow preexisting
:I
onconforming structures or uses to be extended,
ltered or changed if the Board finds that such extension,
lteration or change will not be substantially more
etrimental to the neighborhood than the existing
I
onconforming use.
14. The decision states that the Board granted
e special permit simply to confirm that the dock the i
'petitioner proposes to move had been in existence for
I�
23 years, albeit illegally, and that the Board was
,;!"not interpreting Sec. 1532 to allow the expansion of
-
,,a nonconforming use onto property which does not have
I
II history of use in connection with the original use."
i!
I 15. The petitioner's marina did not come into
j�
;existence until on or about 1958, after zoning came
� I
;into effect in the Town of Yarmouth which prohibited a
�i
}marina in a residential district. The petitioner's
l
:marina is a use that is substantially different in
j
Ipurpose, manner and extent from the use of the land
at the time petitioner purchased the lots that now
constitute the marina-.
6
16. Even if petitioner's marina were deemed a
otected preexisting nonconforming use, nothing in
1532, or any other provision of the Town's zoning
by-laws, or in The Zoning Act, Mass. G.L., c. 40A,
authorizes the Board of Appeals to grant a special
rmit (1) to allow a commercial dock, illegally
nstructed in a residential district, to remain in
existence simply because it had existed for 23 years, or
�'(2) to allow the extension of a nonconforming marina,
lI.
,including the commercial docks, from one residential
,lot to a contiguous residential lot.
t
17. The extension of the commercial marina use
Iand the relocation of a commercial structure as allowed
y the special permit will be substantially more
detrimental to the residential neighborhood of the Town
f Yarmouth, and to the plaintiffs in particular, than
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�Ithe existence of the commercial use and commercial
structure in the business district of the Town of
i�
(Barnstable and on residential lot # 1 in the Town of
ii
'.Yarmouth.
!� 18. By reason of the foregoing, the Board of
]]
'(Appeals exceeded its authority and otherwise acted
'arbitrarily, capriciously and with an abuse of discretion
by granting a special permit to the petitioner to
expand its commercial marina onto residential lot # 2 in
the Town of Yarmouth.
7
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'WHEREFORE the plaintiffs pray that this Court enter an
order as follows:
1. Annulling the decision of the Board of
Appeals and setting aside the special permit granted
'to Hyannis Marine Services, Ltd.;
2. Awarding plaintiffs their costs, including
reasonable attorneys' fees; and
3. Granting such other and further relief as
may seem just and proper to the Court.
i
Respectfully submitted,
!� Plaintiffs
I By their attorney
Iho=ma=s B. Bracken
Bracken and Baram
33 Mount Vernon Street
Boston, MA 02108
617 742-4950
Dated: June 21, 1982
TOWN OF YARMOUTH
BOARD OF APPEALS
pWWER. NAME: Wayne Kurker
Hyannis Marine Services Lid
ADDRESS: Arlington Street, Hyannis, MA 02601
PETITIO?aR: -NAME: Hyannis Marine Services Ltd
ADDRESS; Arlington Street, Hyannis, MA 02601
BOARD OF APPEALS, YARMOUTH, MASS.
APPEALS
_ This petition when completed and signed must be filed with the Board of Select-
men, Yarmouth, MassAchusetts, along with the fee of $30.00.
DATE: March 5 1982
PAID:-520.00
1- I, we, hereby appeal from decision of the Building Inspector and petition
your board for a public hearing on the action checked below;
1. Review refusal of Building Inspector to grant permit.
2. Decision of Selectmen.
2. I, We, hereby request the action checked below:
X I. Va-riance frog requirements of Yarmouth Zoning By -Law.
2. Approval of the Board of Appeals.
X 3. A special permit from the Board of Appeals.
To allow:
A. the partial relocation of an existing commercial marina and expansion
in a Residential District
B. the excavation of 400 cubic yards of material from Hyannis inner Harbor
in the Wetlands Conservancy District
Sheet 23 lot Q1A
Sheet 16 lot Al, A2-1 -
3. Reaaon for the Board of Appeals action as checked below:
1. Contrary to Zoning by --laws a: follows:
1' Section 171;-2300Use Regulations _
2- B 3. S-ection 175;4400 Dredging (4472
2. Approval of Board of Appeals, or Special Permit requested under the
following section of Zoning By -Law:
1.
2. f� . SEGTf�•hl �7 -44or,
Na.mos and wddresses of abuttinq property owners, And those per sans deems affected by this application. (At least three.)
dlLt
Signed f Cn Respectfull suhitted
Robert A. Braman, PE, agent
TOWN OF YAP -MOUTH
BOARD OF APPEALS
Filed with Town Clerk: JUN E E 1982
Petitioner: Hyannis Marine Services Ltd.
Arlington St.
Hyannis, Mass.
DECISION
Hearing Date: 4/8/82
Petition No.: 1825
The petitioner requested a variance and/or a special permit from the Board of
Appeals to allow a) the partial relocation of an existing commercial marina and expan-
sion in .a residential district. b) the excavation of 400 cubic yards of material
from Hyannis Inner harbor in the Wetlands Conservancy District. Property located on
Arlington St., West Yarmouth, Mass., shown on Assessors maps #16 & 23, Parcel Q1A, Al,
A2-1.
Members of Board of Appeals present: Donald Henderson, David Oman, Herbert Renkainen,
Morris Johnson, Thomas George.
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 that public notice of such hearing having been given by publication in the
Yarmouth Sun on 3/24/82 and 3/31/82, the hearing was opened and held on the date first
above written.
The following appeared in favor of the petition: Attorney Michael O'IiFil, resent-
ing petitioners. Wayne Kurker. o ev
The following appeared in opposition: Barbara Ackerman, representing ESQ & rrrs.�ulIey.
William & Elinor Bill.
Reasons for decision:
This is a request for a variance and/or
relocation of an existing commercial marina
and b) the excavation of 400 cubic yards of
the Wetlands Conservancy District.
NC �-
special permit to allow z�E `theapartial
nd expansion in a resideTgg al dl�strict;
material from Hyannis Inner Harbor in
With respect to the first part of the request, the Board wishes to make it per-
fectly clear that no variance of any kind is granted. This request was considered
under Sec. 1532 of the by-law, dealing with non -conforming uses. The public hearing
on this appeal was held on April 8, 1982. At the conclusion of the public hearing, t'IE
Board took the matter under advisement and announced publicly that they would take a
view of the premises as a Board on April 14 and a notice was posted in accordance with
the open meeting law that the Board would meet at 12:00 noon on April 14 on the site
to view the property and to .attempt to make a decision on the appeal, Although the
Chairman tried to make it perfectly clear to the petitioner and the abutters that no
new information could be presented, both sides endeavored to add additional information
while the Board was making an on -site inspection and attempting to make a decision.
The marina has been in existence since the 1940's and prior to the adoption of
zoning in the Town of Yarmouth, The dock which petitioner_ seeks to relocate has been
in existence since 1959 and since then it has been used for marina purposes. The lot
from which the dock extends into the Hyannis Harbor has been in comv,on o.nership with
the marina property since at least 1959. Based on our interpretation that Sec, 1532
of the by-law allows the expansion of an existing non -conforming use on the contiguous
1 '-etition No. 1825
.Page 2
land in common ownership with the original non -conforming use, and in view of the fact
for some 23 years, the request for special permit under Sec. 1532, is granted. The
existing dock is to be moved a -few feet to the south and at most, 6 additional slips
will be added, which slips will be in the Town. of Barnstable. The Board realizes that
access to the dock is from the Town of Yarmouth but does not believe that the relocation
oi-
sance, hazard or congestion over and above the present level of use and does not believe
f the dock as proposed or the addition of the 6 slips will create any additional nu
there will be any change in the character of the neighborhood or town because of the
relocation and rebuilding of the dock as proposed. The Board is simply confirming
-what has been in existence for 23 years and is not interpreting Sec. 1532 to allow the
expansion of a non -conforming use onto property which does not have a history of use
in connection with the original property.
Nembers of Board' voting: Donald Henderson, David Oman, Herbert Renkainen, Morris
Johnson, Thomas George. All voted in favor of granting as requested,
Therefore, the petition is granted as requested for the above stated reasons.
No permit issued until 20 days from the date of filing the decision with the Town Clerk.
THOMAS GEORGE
Clerk pro tem
A True Copy Attest:
Kathleen D . J'c,hnson
Town Clerk/Treas.
To of Yarmouth
:
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TOWN OF YARMOUTH
BOARD OF APPEALS
April 14, 1982
Hyannis Marine Service
Appeal No. 1825
Minutes of April 14, 1982 meeting, Board of Appeals held on the
dock at Hyannis Marine Service, which dock is the subject of this
appeal.
Present were Donald Henderson, David Oman, Herbert Renkainen, Morris
Johnson, Thomas George.
Notice of this meeting was posted on the bulletin board at the Yar-
mouth Town Hall in accordance with the open meeting law and a public
announcement of the time and place of the meeting was made on April
8, 1982, at the Board's regular meeting prior to taking the appeal
under advisement.
The Board as a group, looked over the marina property and oriented
themselves with respect to the various parcels making up the marina.
Both proponents and opponents of the petition attempted to present
additional information to the Board, and the Chairman repeatedly
indicated to both sides that the hearing was closed and the Board
was simply taking a view prior to voting on the appeal, Neither side
listened to the Chairman.
The Chairman had with him, the entire file, including plans and other
materials submitted at the hearing so that the Board members could
review these if they wished.
On a motion duly made and seconded, it was unanimously voted to approve
the petition, and in accordance with that vote, the written decision
was prepared and filed with the Town Clerk.
The petitioner and his attorney and Ms. Ackerman, who opposed the
petition, were present at the time and place of the vote.
THOMAS GEORGE
Clerk, pro tem