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Home My WebLink About5074 32 & 40 Old Church St Decision RecordedBk 36265 Pgl #9622 03-15-2024 @ 01:29p FILED WITH TOWN CLERK: PETITION NO: HEARING DATE: PETITIONER: PROPERTY: TOWN OF YARMOUTH BOARD OF APPEALS DECISION February 20, 2024 5074 February 8, 2024 Francisco C. DaFonte and Karen M. DaFonte 32 and 40 Old Church Street, Yarmouth Port, MA Map 133, Parcel 49 and 50 Zoning District: R40 Title: Book 31187, Page 95 MEMBERS PRESENT AND VOTING: Vice Chair Sean Igoe, Jay Fraprie, John Mantoni, Barbara Murphy and Anthony Panebianco 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 Cape Cod Times, the hearing opened and held on the date stated above. The Petitioner seeks to overturn the Decision of the Building Commissioner, or in the alternative, secure a Special Permit pursuant to Zoning Bylaw Section 104.3.5(2), or amend prior Decision 4001, to allow for the reconfiguration of parcels which will render the property at 40 Old Church Street less non -conforming as to area and frontage, and which will maintain the existing applicable bulk requirements for 32 Old Church Street in the R-40 Zoning District. In February of 2006, the then -owner of the property at 32 and 40 Old Church Street proposed an Approval Not Required Plan, which created a lot at 40 Old Church Street (Parcel 40) containing 8,540 square feet, consisting of a rectangle measuring 80.5 feet by 106.75 feet, improved with a single family dwelling. That plan was endorsed by the Yarmouth Planning Board and recorded in the Barnstable County Registry of Deeds in Plan Book 607, Page 96 (ANR Plan #1). In September o£2023, the petitioners sought to increase the size of the parcel known as Parcel 40, and proposed to move the lot Iines established in the ANR Plan #l, which would result in the increase of the area to 12,487 square feet and the frontage from its present 80 feet to 100 feet along Old Church Street. A new ANR Plan was prepared and submitted to the Yarmouth Planning Board for endorsement. However, it was the opinion of the Yarmouth Town Planner, Kathy Williams, and the Yarmouth Building Commissioner, Mark Grylls, that although the ANR Plan could be endorsed, that a Special Permit pursuant to Zoning Bylaw Section 104.3.5 would A TRUIE COPY ATTEST. •r MAR 12 2024 Bk 36265 Pg2 #9622 need to be secured from the Zoning Board of Appeals pursuant to Zoning Bylaw Section 104.3.5(2). That section of the Bylaw reads as follows: 2. When the owner or owners of abutting lots, whether or not any of such lots are currently developed, wish to combine or redivide such lots, but where one or more of the existing lots do not conform to the current dimensional requirements, and where one or more of the resulting lots will not conform to the current dimensional requirements, such combinations or redivisions may be allowed by Special Permit from the Board of Appeals, upon the following conditions (also see Section 104.3.5, paragraph 5 for other applicable provisions): The Bvlaw then recites 4 conditions, each of wlvch the Board believed that the petitioner's proposal either met or which was not applicable. It was, and is, the petitioner's position that no Special Pen -nit is needed from this Board, based on the language of Zoning Bylaw Section 104.3.5 (4), which reads as follows: 4. Nothing in this section shall be intended to prevent the addition of land area to an otherwise buildable or developed lot, provided that such addition renders the resulting lot less non -conforming and does not create any additional non -conforming building lots, and does not otherwise make any other lot more non -conforming. On December 6, 2023, the Yannouth Planning Board did indeed endorse the new ANR Plan (ANR Plan #2). With the application, tiled on December 23, 2023 with the Yarmouth Clerk's office, a copy of an email exchange, dated November 29, 2023, between Yarmouth Building Commissioner Mark Grylls and the petitioner's attorney was submitted. It is from this Decision that the petitioner is appealing. In the alternative, petitioner is seeking a Special Permit pursuant to Zoning Bylaw Section 104.3.5(2). The Board heard testimony from the petitioner regarding the interpretation of differing Zoning Sections and contained in Section 104.3.5(2) and 104.5.3(4). After analyzing the criteria for a Special Permit pursuant to Section 104.3.5(2), it was the consensus of the Board that the petitioner met the requirements for a Special Permit. The Board agreed that sub -sections 104.3.5(2) and (4) need more clarity regarding when lots could be combined by right and when they must be authorized pursuant to Special Permit from the Board of Appeals. Accordingly, a motion was made by Mr. Fraprie, seconded by Mr. Panebianco, to grant the request for a Special Permit pursuant to Bylaw Section 104.3.5(2), for the reasons that the petitioner met all of the criteria for that relief. The members voted as follows: Mr. Mantoni AYE Mr. Igoe AYE Mr. Fraprie AYE Mr. Panebianco AYE Ms. Murphy AYE A TRUE <<C.}P ,17rECI T- MAR 1 2 2024 Bk 36265 Pg3 #9622 On the second form of relief requested, a motion was made by Mr. Fraprie, seconded by Mr. Mantoni, to deny the request to Overturn the Decision of the Building Commissioner. The members voted as follows: Mr. Mantoni AYE Mr. Igoe AYE Mr. Fraprie AYE Mr. Panebianco NAY Ms. Murphy AYE 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 noticeldecision 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) Sean Igoe, Vice Chair 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 #5074 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, CMC MAR 12 2024 c, TRUF COPY TE ~;: MAR 12 2024 Bk 36265 Pg4 #9622 COMMONWEALTH OF MASSACHUSETTS TOWN OF YARMOUTH BOARD OF APPEALS Petition #: 5074 Date: March 12, 2024 Certificate of Granting of a Special Permit (General Laws Chapter 40A, Section 11) The Board of Appeals of the Town of Yarmouth Massachusetts hereby certifies that a Special Permit has been granted to: Francisco C. DaFonte and Karen M. DaFonte Affecting the rights of the owner with respect to land or buildings at: 32 and 40 Old Church Street, Yarmouth Port, MA; Map 133, Parcel 49 and 50; Zoning District: R40; Title: Book 31187, Page 95 and the said Board of Appeals further certifies that the decision attached hereto is a true and correct copy of its decision granting said Special Permit, and copies of said decision, and of all plans referred to in the decision, have been filed. The Board of Appeals also calls to the attention of the owner or applicant that General Laws, Chapter 40A, Section l l (last paragraph) and Section 13, provides that no Special Permit, or any extension, modification or renewal thereof, shall take effect until a copy of the decision bearing the certification of the Town Clerk that twenty (20) days have elapsed after the decision has been filed in the office of the Town Clerk and no appeal has been filed or that, if such appeal has been filed, that it has been dismissed or denied, is recorded in the Registry of Deeds for the county and district in which the land is located and indexed in the grantor index under the name of the owner of record or is recorded and noted on the owner's certificate of title. The fee for such recording or registering shall be paid by the owner or applicant. Sean Igoe, Vice Chair 1, TRUE- COPY JOHN F. , I HARNSTABLP% MRY OF DEED! nvrrruv�n r DPn^DnVn VTvr n~Tr xrry