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HomeMy WebLinkAboutAppeal M.G.L. 051822 RECEIVED. The Law Office of MAY 18 2022 DAVID V. LAWLER, PC 540 Main Street, Suite 8 BUILDING DEPARTMENT Hyannis, MA 02601 Telephone: (508) 778-0303 Facsimile: (508) 778-4600 962 Main Street Email Address: Osterville,MA 02655 david@dlawlerlaw.com Tel:(508)428- 0542 May 18, 2022 Mary Naslowski, Town Clerk Mark Grylls, Building Commissioner Yarmouth Town Hall 1136 Route 28 APPEAL M.G.L. c. 40A §15 South Yarmouth,MA 02664 Re:Nelson Hall/St.David's Episcopal Church,205 Old Main Street Dear Clerk Naslowski,and Building Commission Grylls: Now comes St.David's Episcopal Church,by and thru their attorney and in accordance with M.G.L.c. 40A §15 respectfully appeal the notice of continuing zoning violation(s) dated May 11, 2022, relating to the above- captioned matter. Specifically,the appeal relates to notice violation letter dated May 11,2022,issued to St.David's Episcopal Church by Building Commissioner Mark Grylls.The Appellants state that the alleged uses of Nelson Hall as "commercial assembly hall"are allowed uses in accordance with local zoning, state and federal law.The alleged violations are uses that are permissible activities of the nonprofit and religious institution as detailed in The Bible Speaks v. Board ofAppeals Lennox 8 Mass.App.Ct.19(1979)and Shrine of Our Lady of La Salette,Inc.Board of Assessors Attleboro. SJC 12-021(2017)The Appellants are in full compliance with the zoning regulations,any existing special permits or variances and under any pre-existing,non-conforming uses allowed under zoning. Moreover,any attempt to enforce alleged violations would constitute a violation of my client's constitutional rights under the First Amendment of the United States Constitution and under Article II of the Massachusetts Declaration of Rights. Additional reasons for the appeal, include but are not necessarily limited to the following: the Order is defective on its face, is unenforceable as a matter of law, the Appellants did not violate the zoning ordinance and enforcement of the ordinance has been arbitrary and capricious and the enforcement officers failed to properly interpret the Zoning Ordinances of the Town of Yarmouth.Further,the activities being held at Nelson Hall are non-commercial activities. The above is true for all allegations. The Appellants seek a hearing before th d of Appeals on these alleged violations.Please docket the same and schedule a hearing. Very t y yours.. David 1 1 TOWN OF YARMOUTH 1146 Route 28, South Yarmouth, MA 02664 508-398-2231 ext. 1261 Fax 508-398-0836 Office of the Building Commissioner St. David's Episcopal Church December 14,2021 205 Old Main St. South Yarmouth,MA 02664 Attn: Reverend Taylor Re:Nelson Hall Dear Reverend Taylor, This letter constitutes notice of your continuing violation of the Yarmouth Zoning Bylaws. Specifically,this office has been notified that the church continues to operate a commercial assembly hall for rent to the public. As previously notified in a violation letter dated May 3,2019,this is a direct violation of the relief granted by the ZBA in Oct.2002. Petition# 3788,Oct 24, 2002. The petitioner at that time, St. David's Episcopal represented that Nelson Hall would be used for church sponsored events and non-commercial activities and the Special Permit was conditioned upon such representation. You did not appeal the 2019 Order and, as a consequence,are precluded from challenging the merits thereof. Accordingly,you are hereby ordered to immediately abate and or correct said perceived violations or seek further relief from the Zoning Board of Appeals as allowed by MGL Ch. 40A, §7& §15. You are also advised that violations of the Town of Yarmouth Zoning Bylaws may result in penalties as described in Section 101.3: 101.3 Penalties. Any person violating any of the provisions of this bylaw shall be fined not more than three hundred dollars ($300,00)for each offense. Each day that such violation continues shall constitute a separate offense. You are required to confirm your compliance with this Order within 7 days of receiving this letter. Should you fail to do so,we may be compelled to proceed directly to Court and seek injunctive relief against you. Question regarding t ' matter may be directed to this department. 4GVeuly, Building Commissioner CC: Town Counsel Robert Whritenour—Yarmouth Town Administrator Bill Scott—Asst. Town Administrator David S. Reid, ESQ. file 59 "105048 • Bk 15951 Pam....2 � , 'tr 11-21-2002 a 10:39ct 01°G TOWN OF YARMOUTH ti;0 y BOARD OF APPEALS -� r- RY ,r C n �` • DECISION 2 ? t I01 -1 FH 1: 116 FILED WITH TOWN CLERK: November 1,2002 PETITION NO. #3788 HEARING DATE: October 24,2002 PETITIONER: St.David's Episcopal Church PROPERTY: 205 Old Main Street,South Yarmouth Assessors Map:51,Lot:38 (45/P11) Zoning District: RS40 MEMBERS PRESENT AND VOTING: David Reid, Chairman, John Richards, Diane Moudouris,Joseph Sarnosky,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 petitioners seek a Special Permit and or a Variance in order to be relieved of the requirements of an upgrade of its parking facilities, in connection with the construction of a new • parish ball on the property. The site is located within the RS40 zone. • The site contains approximately 4.7 acres of land: While originally two lots,the petitioner agrees that they have long ago merged into a single lot • for zoning purposes. The Site Plan Review Team has reviewed the matter. The proposed use and building construction are allowed and conforming. The site presently has 99 parking spaces available. According to its calculation of parking demand, only 92 spaces are required for the existing structure and uses. Pursuant to bylaw§301.3.1 the Site Plan Review Team unanimously agreed to waive the need for additional spaces based upon the occupancy limit of 274 for all site uses. However, should actual parking demand exceed expected demand, additional space may be required and shall, at the time, be constructed in compliance with the bylaw unless further relief is granted. • As to the existing parking areas,the front portion is paved the rear portion is gravel. Pursuant to Board of Appeals decision #1782-1981, the petition granted relief from the requirement of pavement for this rear lot area. No changes to the curb cut or driveway separations are proposed or reasonably available. No alteration of the existing parking lot is proposed except that the handicapped parking spaces shown on the petitioners plan located in the rear parking area, closest to the new hall, will be paved and lined in conformance with the bylaw requirements. • 4 1 Bk 15951 P9260 0105048 The petitioner represents that the nature of its uses are such that the sanctuary and the new hall will never be fully occupied at the same time. As a result, additional parking is not needed. The existing parking facilities reportedly have worked well for the site. No one spoke in opposition to these representations or proposals. • Further, the cost to upgrade the parking lot, with buffers,trees and related improvements would be prohibiting expenses and could jeopardize the ability to build and operate the hall. The hall will be used for church and,church sponsored (non-commercial) activities. The petitioner agrees to abide by the recommendations of the Site Plan Review Report and the Engineering Department, except that it prefers not to incur the expense of an ANR plan to formally merge the lots at this time. The petitioner represents that the sanctuary was built in 1969,and both lots have been owned and used as one lot at least since that time. The petitioner concedes that they could not now separate the lots, in terms of use or ownership and therefore they are already merged and a plan is unnecessary. The petitioner represents that the trash collection facilities will be enclosed within a solid wooden structure to be located near the new hall. The Board finds that the Special Permit may be granted, to relieve the petitioner of the requirement of further upgrading of the parking facilities, at this time, especially in light of the mandates of c.40A §3. The petitioner agrees to return to the Site Plan Review Team for further review upon any change of use or further expansion, alteration or construction. Therefore, a motion was made by Mr. Richards, seconded by Mrs. Moudouris, to grant so much of the petition as requested a Special Permit,to allow the construction of the Parish Hall, and to utilize the parking facilities, as shown on the petitioner's site plan dated April 19,2002,revised August 23,2002,on the condition that the use is restricted to the current use and uses,that the petitioner voluntarily return for further Site Plan Review upon any further expansions, alterations or new construction and comply with the Health and Fire Departments requests (Site Plan Review report), except that no sprinkler system for the entire hall is required unless otherwise mandated by the appropriate fire codes, the new handicapped parking spaces will be paved and lined, as represented, and the petitioner will file with the Board a sketch plan, demonstrating that additional parking could be constructed on site, if required in the future, and on the finding and condition that the original two (2) lots that comprise this site shall be considered to have merged and become one lot for all zoning purposes hereafter. The members voted unanimously in favor in favor of the motion. The Special Permit is therefore granted. The petitioner requested to withdraw the Variance request contained in its petition. A motion was made by Mr. Richards, seconded by Mr. Sarnosky, to allow the withdrawal of the balance of the petition without prejudice. The members voted unanimously in favor. 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 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 1 onths.(See MGL c40A §10) David S.Reid,C erk 2 TOWN OF YARMOUTH 1146 Route 28, South Yarmouth, MA 02664 508-398-2231 ext. 1261 Fax 508-398-0836 Office of the Building Commissioner St. David's Episcopal Church May 3, 2019 205 Old Main St. South Yarmouth,MA 02664 Attn:Reverend Taylor Re:Nelson Hall Dear Reverend Taylor, This letter constitutes a formal Zoning Violation Notice in accordance with MGL CH. 40a. This office has received notification that the church has been operating a commercial assembly hall for rent to the public. This appears to be a direct violation of the Special Permit granted as a result of Petition# 3788,Oct 24,2002 which clearly states, in part," the hall will be used for church or church sponsored(non-commercial) activities" You are hereby ordered to abate and or correct said violations or seek further relief from the Zoning Board of Appeals as allowed by MGL Ch. 40a§7 & §15. You are required to respond within 7 days of receiving this letter. You also have the right to appeal this decision with the Zoning Board of Appeals within 30 days of this letter. Question regarding this matter may be directed to this department. Very Truly, Mark Grylls Building Commissioner CC: Town Counsel Dan Knapik—Yarmouth Town Administrator Chris Dwelley—Asst. Town Administrator David S. Reid,ESQ. file TOWN OF YARMOUTH 1146 Route 28, South Yarmouth, MA 02664 508-398-2231 ext. 1261 Fax 508-398-0836 Office of the Building Commissioner St. David's Episcopal Church December 14, 2021 205 Old Main St. South Yarmouth, MA 02664 Attn: Reverend Taylor Re:Nelson Hall Dear Reverend Taylor, This letter constitutes notice of your continuing violation of the Yarmouth Zoning Bylaws. Specifically,this office has been notified that the church continues to operate a commercial assembly hall for rent to the public. As previously notified in a violation letter dated May 3, 2019,this is a direct violation of the relief granted by the ZBA in Oct. 2002. Petition# 3788, Oct 24, 2002. The petitioner at that time, St. David's Episcopal represented that Nelson Hall would be used for church sponsored events and non-commercial activities and the Special Permit was conditioned upon such representation. You did not appeal the 2019 Order and, as a consequence, are precluded from challenging the merits thereof. Accordingly, you are hereby ordered to immediately abate and or correct said perceived violations or seek further relief from the Zoning Board of Appeals as allowed by MGL Ch. 40A, §7 & §15. You are also advised that violations of the Town of Yarmouth Zoning Bylaws may result in penalties as described in Section 101.3: 101.3 Penalties. Any person violating any of the provisions of this bylaw shall be fined not more than three hundred dollars ($300.00)for each offense. Each day that such violation continues shall constitute a separate offense. You are required to confirm your compliance with this Order within 7 days of receiving this letter. Should you fail to do so,we may be compelled to proceed directly to Court and seek injunctive relief against you. Question regarding this matter may be directed to this department. Very Truly, Mark Grylls Building Commissioner CC: Town Counsel Robert Whritenour—Yarmouth Town Administrator Bill Scott—Asst. Town Administrator David S. Reid, ESQ. file * 0"1 ..t. '` Commonwealth of Massachusetts o. f f .: , Alcoholic Beverages Control Commission yo+4 ��` 95 Fourth Street, Suite 3 `'?b AF"�j5 °‘ Chelsea, Massachusetts 02150 Jean M. Lorizio, Esq. Chairman GUIDELINES FOR OUTDOOR ALCOHOLIC BEVERAGE SERVICE AREAS 1. The licensure of outdoor alcoholic beverage service areas that are outside of the "suitable building" as provided in M.G.L. c. 138, §1, must follow the license application and approval process as provided in Chapter 138 for retail on-premises consumption licenses. 2. Local Licensing Authorities ("LLAs") have discretion to apply reasonable conditions to the outdoor alcoholic beverage service areas, such as the requirement of food service and/or seated service. 3. All applications for outdoor alcoholic beverage service areas must include documentation demonstrating the right of the Licensee to occupy or permission to use the outdoor alcoholic beverage service area(s). This must include permission to transport alcoholic beverages over public property, if applicable, such as over public sidewalks. 4. Outdoor alcoholic beverage service areas should be contiguous to the licensed building premises with a clear and direct view of the outdoor area from inside the licensed building premises. Further, the Licensee must actively supervise the outside alcoholic beverage service area. 5. Outdoor alcoholic beverage service areas that are noncontiguous to the premises' building are permitted. However, they must be in the immediate vicinity of, and within clear and direct view of, the existing licensed building premises. Licensees are reminded that their applications may be denied if, in the LLA's or ABCC's discretion, it is determined that any proposed noncontiguous outdoor alcoholic beverage service area is in an unsuitable location, such as being too far from the premises' building or being in an unsafe location. For noncontiguous outdoor alcoholic beverage service areas, the licensee must have an adequate number of employees that are physically present in the outdoor alcoholic beverage service area at all times when alcoholic beverages are being sold or consumed. 6. All outdoor alcoholic beverage service areas must be enclosed by a barrier, fence, or partition, sufficient for the licensee to maintain control of access to the area and to provide a safe environment for patrons. 7. The LLA should consider the type of neighborhood and the potential impact of noise in the environs before approving outdoor alcoholic beverage service areas. Questions concerning this Advisory may be directed to Ralph Sacramone, Executive Director of the Massachusetts Alcoholic Beverages Control Commission at (617) 727- 3040 x 731. (Issued April 7, 2022) Telephone: (617) 727-3040 *Fax: (617) 727-1510 *www.mass.gov/abcc