HomeMy WebLinkAboutBOA #4914 Bk 34551 Pg181 #66118
10-07-2021 @ 02:09p
TOWN OF YARMOUTH
�; C BOARD OF APPEALS
DY/ DECISION
FILED WITH TOWN CLERK: September 13,2021
PETITION NO: 4914
HEARING DATE: September 9,2021
PETITIONER: Vito Solimini,Trustee of the Vito Solimini Realty Trust
PROPERTY: 121 Town Brook Road,West Yarmouth,MA
Map 45,Parcel 87
Zoning District:R-40
Title:Book 26835,Page 9
MEMBERS PRESENT AND VOTING:Chairman Steven DeYoung,Sean Igoe,Richard
Martin,Tom 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 requited 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,who determined that the
Property at 121 Town Brook Road,West Yarmouth is not a buildable lot,or in the alternative,to
amend the existing Variance,or issue a new Variance from Yarmouth Zoning Bylaw Section
203.5 to allow for the construction of a single family dwelling on this lot.
The Property is located in the R40 Zoning District and is unimproved. The lot contains 33,287
square feet of area,with a total street frontage of 308 feet on a 40 foot wide public way.It is
shown as Lot A2 on the plan recorded in the Barnstable County Registry of Deeds in Plan Book
266,Page 24,and is triangular in shape,was created in 1972 for Morris Johnson,and its mirror
image is shown on that plan as Lot Al.
The Petitioner purchased the property at 121 Town Brook in June of 1999. In September of
2000,the Petitioner also acquired the abutting property at 109 Town Brook,which is currently
improved with a steel frame building and used for commercial purposes,all pursuant to a
Variance issued by this Board in 1963 and a second Variance issued in 1973 for the use. In
November of 1977,the then-owner of the property at 121 Town Brook applied for a variance to
build a steel building,measuring 6000 square feet,with 2 floors,which was granted(Decision
1453). In addition,the Variance was issued without a date of expiration,and issued under the
old statute which did not have a time period for execution of same. It was only on June 30,1978
that the new version of Chapter 40A was adopted in the Town of Yarmouth,which contained a
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time period during which the Variance would need to be exercised or lost. As such, this parcel
has already been approved to have a 6,000 square foot steel building constructed, which can be
exercised now if the applicant wished to do so.
Applicant filed a letter with the Building Commissioner dated March 10, 2021, inquiring if the
property was buildable, and explaining why he thought it was. Deputy Building Commissioner
James D. Brandolini's decision, which opined that the property and the abutting property had
merged, consisted of two letters—one dated May 19, 2021 and a follow-up letter of May 27,
2021. A follow-up letter was also sent to Mark Grylls dated August 10,2021, requesting that he
affirm the Decision as of August 10,2021, which he did. This appeal followed in a timely
fashion.
The Board heard the explanation of the Applicant,who claims that Section 104.3.4(2),entitled
"Two (2) or three (3) adjoining lots", demonstrates why the property is buildable. That section
states in relevant part as follows:
2. Any increase in area,frontage or other dimensional requirements of this zoning bylaw shall
not apply to a lot for single family residential use, provided the plan for such lot was duly
recorded or endorsed and such lot was held in COAlrrror1 ownership with contiguous lots and
had less than the dimensional and density requirements of the newly effective zoning but
contained at least seven thousand five hundred(7,500)square feel and seventy-five (75)feet
of frontage, or contained fifteen thousand(15,000) square feet and fifty (50)feet of frontage
if approved under section 203.2 of this bylaw. This exemption shall not apply to more than
three (3)such adjoining lots held in common ownership.
Based on this section of the Zoning Bylaw,the Board agreed that the Property is a buildable
lot. First, the lot was duly recorded or endorsed, and it was held in common ownership with one
(1) contiguous lot and had less than the dimensional and density requirements of the newly
effective zoning (i.e. 40,000 square feet of area), but did contain at least 7,500 square feet and
seventy-five(75) feet of frontage. Finally, the Property was not held in common ownership with
more than 3 adjoining lots. The Petitioner also relied upon the reasoning of Koines v. Cohasset,
91 Mass. App. Ct. 903 (2017), to demonstrate that this section of the Yarmouth Zoning Bylaw
provides "perpetual grandfathering" for such commonly owned lots, and which nullifies the
merger doctrine.
In addition, The Board heard the explanation of the Applicant, who claims that Section
104.3.4 (5), entitled "Other Nonconforming Residential Lots", also demonstrates the buildability
of this lot, and that section states as follows:
5. Except as set forth in this paragraph, area, lot frontage or other dimensional requirements
of this zoning by/our shall not apply to a lot for single-family residential use, provided a
plan for such lot was approved or endorsed by the Planning Board on or before June 3,
1996, duly recorded, filed, or registered and such lot was not held in common ownership
with more than two abutting lots as ofJune 3, 1996; as provided said lot contains at least
ten thousand(10,000)square feet of non-wetland lot area and either seventy-five (75)feet
of lot frontage or fr 1 , (S 0)feet of lot frontage if the minimum dimensional requirements
A
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of Section 203.2 of this zoning bylaw are met, each side of the square described therein
being seventy-five (75)feet.
In this case, the lot appeared on a plan approved or endorsed by the Planning Board on or before
June 3, 1996, which plan was duly recorded. In addition this Property was not held in common
ownership with more than two abutting lots as of June 3, 1996. Finally, the lot contains at least
10,000 square feet of non-wetland lot area and has at least 75 feet of frontage.
The Board appreciates the analysis provided by the Building Department in its denial
letter, 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
almost unanimous agreement that the Applicants were correct that the property qualifies as a
buildable lot pursuant to Section 104.3.4(2)and (5) of the Zoning Bylaw, and has not merged
with any contiguous lot. One Board member was unconvinced that any error in this analysis was
made, and would not support overturning the decision.
No abutters appeared either in favor or against the project.
Accordingly, a motion was made by Mr. Igoe, seconded by Mr. Martin, to Overturn the Decision
of the Building Commissioner, for the reasons stated. The members voted as follows:
Mr. DeYoung AYE
Mr. Igoe AYE
Mr. Martin AYE
Mr. Fraprie AYE
Mr. Baron NAY
The Motion passed by the requisite super majority of a 4-1 vote.
The applicant moved and was allowed to withdraw all other requests for relief, as it was the
consensus of the Board that no such relief was needed. Accordingly, a motion was made by Mr.
Martin, seconded by Mr. Igoe, to allow the petitioner to withdraw, without prejudice, all
remaining forms of relief requested. 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 MCI, c40A section 17 and must be filed within 20
days after filing of this notice/decision with the Town Clerk.
Steven DeYoung, Chairman
TRUE C PY ATTEST
TOWN CLERK
•
OCT - 5 2021
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CERTIFICATION OF TOWN CLERK
I, 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 #4914 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.
WAIV-aNi-di-X1-4141
Mary A. Maslowski
OCT - 5 2021
Bk 34551 Pg185 #66118
or .. .�i.l;� COMMONWEALTH OF MASSACHUSETTS
' F��ro.� M TOWN OF YAROUTH
BOARD OF APPEALS
O
Petition#4914 Date: October 4, 2021
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:
Vito Solimini,Trustee of the Vito Solimini Realty Trust
121 Town Brook Road,
West Yarmouth, MA 02673
Affecting the rights of the owner with respect to land or buildings at: 121 Town Brook Road, West Yarmouth,
MA; Map & lot#: 45.87; Zoning District: R-40; Book/Page: 26835/9 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 11 (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.
lee
Steven S. DeYoung, Chairman
TRUE C PY ATTEST:
061 c;-1TOWN CLERK
JOHN F. LIEADE, REGISTER
OCT - 5 2021 BARNSTABLE COUNTY REGISTRY OF DEED:
` ocnvilmn r ncnnoncn cr cOmonrarrnr ry
RECEIVED
LAW OFFICES OF
PAUL R. TARDIF, ESQ., P.C. OCT 15 2021
490 MAIN STREET BUILDING DEPARTMENT
YARMOUTH PORT, MA 02675 By:---�__
(508) 362-7799 (508) 362-7199 fax �`
Paul R. Tardif, Esq. Stacey A. Curley, Esq.
ptardif@tardiflaw.com www.tardiflaw.com scurley@tardiflaw.corn
REFER TO FILE NO.
October 13, 2021
Celina Villa
Yarmouth Zoning Board of Appeals
1146 Route 28
South Yarmouth, MA 02664
RE: Zoning Appeal — 121 Town Brook Road, West Yarmouth
Vito Solimini, Trustee of the Vito Solimini Realty Trust - Petition #4914
Dear Ms. Villa:
Enclosed please find a copy of the Board of Appeals Decision, which was recorded, for
the above referenced matter on October 7, 2021 in the Barnstable County Registry of Deeds in
Book 34551 , Page 181 . Please note that a copy of the recorded Decision has been forwarded to
• = :uilding De I artment for their records. I thank you for your assistance in this matter.
T 1 Yo rs,
lip
!'.ulR. Ta ?if
cc: Vito Solimiru, Trustee
Mark Grylls, Building Department