HomeMy WebLinkAbout23-D003 33 Summer Street OKH Commision Decision fro Appeal No 2023-6OLD KING' S HIGHWAY REGIONAL HISTORIC DISTRICT
COMMISSION
P.O. Box 140, Barnstable, Massachusetts 02630-0140
Tel: 508-775-1766
Matthew Hagopian, Appellant
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Decision for Appeal No. 2023-6:,°�!,,a,,i
Old King's Highway Regional Historic
District Committee for the Town of Yarmouth &
William & Elizabeth Rubidge, Applicant/Appellee
On Tuesday, September 19, 2023, at 1:30 P. M. the Old King's Highway Regional
Historic District Commission, herein after called the Regional Commission, held a public
hearing at the West Barnstable Fire Station Meeting Room, 2160 Meetinghouse Way
(Route #149), West Barnstable, Massachusetts, on Appeal No. 2023-6 filed by Matthew
Hagopian seeking reversal of the Yarmouth Town Committee's decision granting a
Certificate of Demolition or Removal in application No. 23-DO03 to William & Elizabeth
Rubidge for the complete demolition or removal of the back section of the dwelling
located at 33 Summer Street, Yarmouth Port, Massachusetts. The property is identified as
being shown on Town Map 113 Lot 23.
The Yarmouth Town Committee's decision was filed with the Yarmouth Town Clerk's
Office on Tuesday, August 15, 2023. The Appeal Petition was filed with the Regional
Commission on Friday, August 25, 2023, within the ten-day appeal period. Copies of the
Appeal Petition and Certificate of Appropriateness were available for public viewing at
the Yarmouth Town Clerk's Office, 1146 Route 28, South Yarmouth, Massachusetts
during regular business hours.
Present at the public appeal hearing for the Regional Commission were Chairman
William E. Bohlin of Dennis; Vice -Chairperson James Trabulsie of Brewster; Member
Michael T. Sullivan of Sandwich; Member Elizabeth McCarthy of Barnstable; Member
Robert Wilkins of Yarmouth; Member Richard Weeks of Orleans; and Attorney James R.
Wilson, Regional Commission Counsel.
The Appellant, Matthew Hagopian of 39 Summer Street, Yarmouth Port, Massachusetts
appeared pro se in support of the appeal.
Present for the Applicant/Appellee were Contractor/Agent Wesley D. Price of W. D.
Price, Inc., 161 Main Street, Yarmouth Port, Massachusetts, and William Rubridge of I8
West Parish Road, Westport, Connecticut, the Applicant and Owner.
Background Information:
1.) The Regional Commissioners had reviewed the August 25, 2023, Appeal Petition
stating that the Appellant's reason for the appeal is: "The application for demolition was
described as demolition/removal of the 2nd floor back Section of house. The photos
included show shaded 2nd floor of back Section. Total demolition of the back Section was
approved at meeting."
2.) The Regional Commissioners had reviewed the Yarmouth Town Committee's file for
Application No. 23-DO03 which includes the initial Application with signed approval by
the Yarmouth Town Committee, Submitted Waiver of 45-Day Determination, Abutter's
List with Portion of Town Map 113, Site Plan dated April 11, 2022, by Down Cape
Engineering, Inc., 3 Photographs of back Section highlighting 2d floor of house, and a
copy of a letter dated August 11, 2023, from Sarah Hinckley of 29 Summer Street
indicating that she could not attend the meeting, but expressed support for the Applicant's
construction plans.
3.) The Regional Commissioners had individually visited the site and observed the
setting, general design, size, and the exterior architectural features of the 33 Summer
Street house and the houses and structures within the immediate surrounding area.
4.) The Regional Commissioners had observed and reviewed the Agenda, Minutes, and
video recording of the August 14, 2023, Yarmouth Town Committee public hearing and
meeting at which the application was approved.
Applicant/Appellee's Presentation:
The Applicant/Appellee's contractor, Wesley D. Price acknowledged that the language in
the application for the complete demolition of the back of the building had been
wrongfully written and that he had failed to review the form before it had been filed. He
stated that the correction was made during the August 14, 2023, public review hearing at
which time it became clear that the full and complete demolition and removal was being
requested.
He stated that the appeal only asserts an inaccuracy in the paperwork and that nothing
was shown to indicate that the requested removal of the whole back portion of the rear
section was not a reasonable determination on the merits.
He concluded by claiming that the Yarmouth Town Committee was fully informed about
the extent of the project when it voted to approve the application. He suggested that the
Yarmouth Town Committee did not exceed its authority, act in an arbitrary or capricious
manner and that the determination should be affirmed.
Appellant's presentation:
The Appellant Matthew Hagopian, a listed Abutter to the project, stated that he filled the
appeal because of the defective legal notice to the Abutters. He suggested that the
neighbors and public were not properly notified about the extent of the project.
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Yarmouth Town Committee's Presentation:
Robert Wilkins, Chairman of the Yarmouth Town Committee, pointed out that the
application was approved by a 4-1 vote. He indicated that the vote was based upon the
fact that the rear section of the dwelling was barely visible from the streets in the area and
that the portion of the building did not rise to the level required under the Old King's
Highway Regional Historic District Act, herein after called "Act", to deny the
application.
He stated Section 10b of the Act states: "The demolition or removal of any building or
structure or any part thereof within the district. The Committee may refuse a permit for
the demolition or removal of any building or structure of architectural or historic interest,
the removal of which in the opinion of the Committee would be detrimental to the public
interest."
He indicated that after having made a site visit, the majority of Yarmouth Town
Committee agreed that the demolition did not rise to the level of allowing a denial of the
application.
Public Comment:
Chairperson Bohlin announced that the Regional Commission would hear public
comments on the appeal.
Sarah Hinckley of 29 Summer Street, Yarmouth Port, Massachusetts, indicated that she
was frustrated by the failure to accurately describe the extent of the demolition in the
application and its advertisement.
Christine Marzigliano past president of the Historic Society of Old Yarmouth indicated
that she felt that the matter should be remanded back to the Yarmouth Town Committee
for new hearing with public notice that indicated the full extent of the proposed
demolition.
Lisa A. Grady of 415 Main Street, Yarmouth Port, Massachusetts, expressed support for
the Appellant and favored sending the application back to the Yarmouth Town
Committee for a new public hearing with proper public notice.
There being no further requests to offer public comments Chairman Bohlin closed the
public comment session and proceeded to the rebuttal and concluding statements.
Applicant/Appellee's Rebuttal & Conclusion:
William Rubidge, the Applicant/Appellee, repeated the acknowledgment of the mistake
shown on the application form, but argued that it was clear to the Yarmouth Town
Committee that the demolition was properly acted upon and met the criteria for an
approval on the merits.
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He pointed out that there had been no opposition to the total removal of the rear section
of the dwelling and that the process of going back to the Yarmouth Town Committee
would add significant delay to the reconstruction of the replacement section of the
dwelling.
He asked that the Regional Commission confirm the approval by the Yarmouth Town
Committee and allow the restoration of the dwelling to be allowed to move forward
without the delay of another public hearing.
APAellant's Rebuttal & Conclusion:
Mr. Hagopian expressed an opinion that the extent of the demolition was so much greater
than what had been requested in the initial application and reflected in the public notice
that the application needed to be remanded back to the Yarmouth Town Committee for a
new hearing.
He asked that the Regional Commission vacate the approval of the application for a
Certificate of Demolition or Removal and send the matter back to the Yarmouth Town
Committee for a new review.
Yarmouth Town Committee Rebuttal & Conclusion:
Mr. Wilkins, Chairman of the Yarmouth Town Committee stated that while there may
have been some confusion about the extent of the demolition, that as a practical point of
view he expressed an opinion that sending application back for another hearing would not
change the vote to approve the application.
Commissioner Sullivan of Sandwich asked if the plans for the replacement dwelling had
been available for public viewing prior to the August 14, 2023, public hearing.
There were mixed responses to the question by the parties with the Applicant/ Appellee
claiming that the plans had been submitted with the application for the Certificate of
Appropriateness and the Appellant reporting that they were not available with the
application for Certificate of Demolition or Removal.
Closure of Public Hearing:
There being no further questions for the parties, Chairperson Bohlin announced the
closure of the public hearing and stated that the Regional Commissioners would
deliberate in an attempt to decide on the appeal.
Regional Commission Discussion:
Commissioner Trabulsie of Brewster Megan the discussion by suggesting that an
administrative error had been made by the Yarmouth Town Committee. He expressed the
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opinion that the abutters and public had a right to know that the Applicant/Appellee was
seeking the complete and total demolition of the rear section of the dwelling.
He stated that he believed that it would set a bad procedural practice to overlook or
ignore the fundamental inaccuracy of the hearing notice to the abutters.
He suggested that a remand would not be appropriate in this situation and that the only
way to fix the error would be for the Applicant/Appellee to start the process all over
again with a new application.
Commissioner Sullivan of Sandwich stated that there was obviously an error and that
there was no way of getting around it. He suggested that the Regional Commission
should deal with the error. He expressed the opinion that the error was de minimis and
that the decision of the Yarmouth Town Committee should be affirmed. He indicated that
sending the matter back to the Yarmouth Town Committee would only delay the project
and would provide no benefit to the process or the parties in interest.
Commissioner Weeks of Orleans stated that he felt somewhat conflicted by the issues
before the Regional Commission. He indicated that the requirement of sending proper
notice to the abutters is an important foundation for the review and administration of the
Act. He noted that when he visited the site and observed the structure, he agreed with
Commissioner Sullivan's opinion that the problem appeared to be relatively de minimis.
However, when he observed the August 14, 2023, public hearing he felt that the review
procedure indicated confusion and hesitancy on the part of the Yarmouth Town
Committee in acting on the application.
Commissioner McCarthy of Barnstable stated that on her site visit she observed the poor
condition of the rear part of the building and agreed with the opinion that complete
demolition of the structure and its foundation ought to be permitted. However, she agreed
that the issue of the defective procedure remained to be addressed.
Commissioner Bohlin of Dennis stated that he agreed that the demolition appeared to be
the right determination on the merits, but that the proper procedure needed to be
followed. He indicated that he agreed with the opinion of Commissioner Trabulsie.
He asked if there were any more comments from the Regional Commissioners and there
were none.
With the assistance of Administrative Counsel, he distributed sets of possible draft
findings to the Regional Commissioners. After reviewing the sets of possible draft
findings, Commissioner Trabulsie moved, seconded by Commissioner Weeks, that the
following eight findings of fact be approved and incorporated into the Regional
Commission's decision. The motion was adopted by a vote of 4-1-1. (Trabulsie, Weeks,
McCarthy & Bohlin, in favor; Sullivan, opposed; Wilkins, abstaining)
The Regional Commission findings:
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1. The project No. 23-DO03 consists of an Application for a Certificate of Demolition or
Removal with a description of the proposed work being "Demolition/remodel of 2"a
floor, back section of house." Said house is located at 33 Summer Street, Yarmouth fort,
Massachusetts, and the property is identified as being shown on the Yarmouth Town Map
No. 113 as Lot No. 23.
2. The property is located within the Old King's Highway Regional Historic District.
3. The Yarmouth Town Committee had jurisdiction under the Old King's Highway
Regional Historic District Act (Chapter 470 of the Acts of 1973, as amended), to review
and act on the Application.
4. At the August 14, 2023, public hearing the Applicant's agent requested that the
demolition be expanded to include the complete demolition and removal of the back
section of the of the house so that the existing foundation could be replaced with a new
foundation.
5. The Yarmouth Town Committee discussed the architectural and historic interest in the
back section of the house and whether the removal would be detrimental to the public
interest.
6. The Yarmouth Town Committee determined that the complete demolition and removal
of the back section of the house would not be detrimental to the historic or public
interests.
7. The Yarmouth Town Committee exercised poor judgement in granting the Certificate
of Demolition or Removal for the complete back section of the house without giving
prior notice to the public and neighbors of the expanded amount of demolition and
removal being reviewed and acted upon by the Yarmouth Town Committee.
8. The approval of the Certificate of Demolition or Removal should be annulled, and the
matter should be remanded to the Yarmouth Town Committee for a new public hearing
with full disclosure of the extent of the proposed demolition or removal.
Regional Commission's Determination:
Commissioner Trabulsie moved seconded by Commissioner Weeks that the Regional
Commission vote to reverse the decision by the Yarmouth Town Committee granting a
Certificate of Demolition or Removal for the complete back Section of the house located
at the 33 Summer Street, Yarmouth Port, Massachusetts, and being shown on Town Map
113 as Lot 23. It is hereby noted that we find that the Yarmouth Town Committee
exercised poor judgment and that the approval is annulled and the matter is remanded to
said Yarmouth Town Committee for a new public hearing with a more accurate prior
published notice and review for Application No. 23-D003.
The motion was adopted by a vote of 4 - 1 - 1. (Trabulsie, Weeks, McCarthy, & Bohlin in
favor; Sullivan opposed; Wilkins, abstaining)
Any person aggrieved by this decision has a right to appeal to the District Court
Department, Barnstable Division, within 20 days of the filing of this decision with the
Yarmouth Town Clerk.
Dated; October 10, 2023 James Trabulsie, Vice Chairperson
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