HomeMy WebLinkAbout4905 9 & 11 Woodbine Ave Decision RecordedBk 34424 Pg183 #56956
08-30-2021 @ 02:21p
FILED WITH TOWN CLERK:
PETITION NO:
HEARING DATE:
PETITIONER:
TOWN OF YARMOUTH
BOARD OF APPEALS
DECISION
July 14, 2021
4905
July 8, 2021
Felix Torres and Teodora I. Dimitrova-Torres
PROPERTY: 9 & 11 Woodbine Avenue, West Yarmouth, MA
Map 37, Parcel 92 and 93
Zoning District: R-25
Title: Book 29437, Page 150
MEMBERS PRESENT AND VOTING: Chairman Steven DeYoung, Richard Martin, Toin
Baron and Jay Fraprie
Notice of the hearing has been given by sending notice thereof to the Petitioner and all those owners of
property as required by law, and to the public by posting notice of the hearing and publishing in The
Register, the hearing opened and held on the date stated above.
The Petitioner seeks to overturn a Decision of the Building Commissioner, and if so overturned, a
Special Permit pursuant to Zoning Bylaw § 104.3.2, in order to construct a single family dwelling on
a pre-existing non -conforming lot, or in the alternative, a Variance to allow for the construction of a
single family dwelling on this lot.
The Property is located in the R-25 Zoning District and is currently a bare lot containing 9,000
square feet and 100 feet of frontage on Woodbine Avenue, It is actually 2 separate lots, denoted
as Lot 98 and 99 on a plan recorded in the Barnstable County Registry of Deeds in Plan Book 16,
Page 75. in addition, the Town of Yarmouth also views these lots separately, and has assigned 2
different street numbers, and they are assessed separately. There is currently a 24 foot by 36
foot poured concrete foundation on the lot at 9 Woodbine Avenue, which was constructed in the
early 1970s, which the Building Department has confirmed. In January of 1972, the property
was the subject of a Zoning Board of Appeals matter (Decision 1095) in which the applicant
sought the construction of a commercial office building on the lot. The building would measure
26 feet, parallel to Woodbine Avenue, and 36 feet deep, and straddle the common boundary.
The applicant testified that the Board of Health would not permit the installation of a septic
system on the lot due to its size. The Board denied the relief and relied on the fact that this lot
was in a residential zoning district and that a commercial use would not be compatible with the
surrounding properties.
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Since that time, the property has also been the subject of several Lot Inquiries with the
Building Department, beginning with two in 1999, and one by the applicants in 2017. The
Building Department has deternuned that the lot was not buildable in each case, but did note the
presence of the foundation on the lot, and that it had been there since the early 1970s.
In May of 2021, counsel for the Petitioners wrote to James D. Brandolini, the then -
Deputy Building Commissioner for the Town of Yarmouth, and outlined his client's position that
based on this information, a Special Permit from the Zoning Board of Appeals is all that would
be needed'in order to construct a single family dwelling thereon, and provided caselaw which
supported his position. Specifically, Petitioners provided cases which demonstrate that a garage
or shed, and even a movable trailer were sufficient to retain grandfathering rights as a developed
parcel. Mr. Brandolini's response, dated May 26, 2021, was that a variance would be needed to
develop this property as the foundation was not a complete structure. It is from this Decision that
the Petitioners appeal. All three forms of relief were requested for the fact that if this Board
upholds the Decision of the Building Commissioner, and by doing so undermines the basis for
two recent Decisions of this Board to other applicants, then a Variance is what is required. If this
Board overturns the Decision of the Building Commissioner, then a Special Permit is the correct
form of relief in this case.
Petitioners argue that the Building Commissioner's Decision is erroneous for the reason
that the Town of Yarmouth's position on two recent Decisions is being ignored, and that a
different position regarding this lot would be deemed arbitrary and capricious. Petitioner argues
that the current existence of the foundation on the property, having been improved with this
structure, according to the definition of a Structure in the Bylaw, prior to the zoning change in
1972, was no longer a "lot", for purposes of a merger determination. Rather, it was a developed
lot prior to the zoning change, and as such would be classified as a legally pre-existing non-
conforming lot, and was grandfathered. Counsel's 2021 letter to the Building Department
correctly referenced caselaw which supported this position.
The Board appreciates the analysis provided by the Building Department that the
structure was never completed, and discussed that it typically supports the careful consideration
provided by the Department regarding zoning issues. However, after deliberation on this issue,
the Board was in agreement that the Applicants were correct that the foundation is in fact a
structure, which created grandfathered rights in these lots. Having concluded -that the Decision
of the Building Commissioner would need to be overturned, the Board then took up the request
for a Special Permit, and agreed that any proposed structure on this Jot, if meeting all bulls
requirements of the zoning bylaw, would not be substantially more detrimental to the
neighborhood than is the existing non -conforming structure. In addition, the Board found that no
undue nuisance, hazard or congestion will be created Ad that there will be no substantial harm to
the established or future character of the neighborhood or town.
No abutters appeared either in favor or against the project.
Accordingly, a motion was made by Mr. Baron, seconded by Mr. Matin, to Overturn the
Decision of the Building Commissioner, for the reasons stated. The members voted unanimously
in favor of the motion.
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A second Motion was made by Mr. Martin, seconded by Mr. Baron, to grant the Special Permit
as requested, with the condition that Lots 98 and 99 are combined by way of an Approval Not
Required Plan, to be endorsed and recorded in the Barnstable County Registry of Deeds. The
members voted unanimously in favor of the motion.
The applicant moved and was allowed to withdraw the request for relief in the form of a
Variance, as it was the consensus of the Board that no such relief was needed. The members
voted unanimously in favor of the motion.
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, JAGL c40A §91)
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Steven DeYoung, Chairman
CERTIFICATION OF TOWN CLERK
1, Mary A. Maslowski, Town Clerk, Town of Yarmouth, do hereby certify that 20 days have
elapsed since the filing with me of the above Board of Appeals Decision 44905 that no notice of
appeal of said decision has been filed with me, or, if such appeal has been filed it has been
dismissed or denied. All appeals have been exhausted.
Mary A. Maslowski
Town Clerk AUG 2 6 2021
ATRUE COPY ATTEST:
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`01*X11 RAW/ TOWN CLERK
AUG 2 6 2021