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HomeMy WebLinkAbout60 Broadway Decision 1837 05.14.1982Filed with Town Clerk: Petitioner: Americo Poliseno 60 Broadway West Yarmouth, Mass. TOWN OF YARMOUTH BOARD OF APPEALS DECISION Hearing Date: 5/14/82 Petition No.: 1837 The petitioner requested a variance and/or approval and/or a special permit from the Board of Appeals to allow the use of presently constructed deck on the southerly and northerly sides of building #2, together with stairways appurtenant thereto as seen on the plan submitted herewith, the same having been thought author- ized through issuance of building permit #712, dated Dec. 30, 1980, and use of four presently constructed living units created from six previously authorized and con- structed living units as shown as building #2 on the plan noted, said living units having been created in part by removal of interior -exterior walls. Members of Board of Appeals present: Donald Henderson, Morris Johnson, David Oman, Thomas George, Herbert Renkainen. 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 r affected thereby and that public notice of such hearing having been given by publi- cation in the Yarmouth Sun on 4/28/82 and 5/5/82, the hearing was opened and held on the date first above written. The following appeared in favor of the petition: Charles J. Ardito, Attorney, representing petitioner; Mr.Carbonetti; Richard Lally; Myrtle Morin; Angelina Surro; Rita Lally; Kris O'Connell;Richard Bragdon. The following appeared in opposition: Mr. & Mrs. Knowland. Reasons for decision: A hearing was held on this appeal on May 14, 1982, and the specific relief requested is set forth in the newspaper advertisment, which is attatched hereto and incorporated herein by reference. The decision was made the same day. All of the work for which petitioner seeks a special permit, was substantially completed at the time of the hearing. Petitioner alleges that he was unaware that he needed additional permits. The Board is satisfied that the requested construction will not cause any undue nuisance, hazard or congestion and will not cause harm to the character of the neighborhood. However, the Board wishes to eliminate any additional misunderstanding and wants to make it perfectly clear to the petitioner that what we are granting is a permit for an open deck with appurtenant satirways. This permit does not give any right to the petitioner to further enclose the open decks. Secondly, petitioners attorney represented to the Board that no kitchen facilities would be installed in any of the units and no approval for any kitchen sinks and/or stoves or cooking facilities of any kind are granted under this appeal. The special permit is further conditioned on the units being used as rental motel units only. No permits are to be granted by the Building Inspector until petitioner submits to him a certificate by an architect that the construction meets all requirements of the State Building Code. Members of Board voting: Donald Henderson, David Oman, Morris Johnson, Thomas George, Herbert Renkainen. All voted in favor of request with the above stated conditions. Petition No. 1837 Page 2 Therefore, the petition is granted as requested as stated above, with the condition that no right is given to further enclose this deck, and further, that no kitchen facilities would be installed in any units and no approval for any kitchen sinks and/or stoves or cooking facilities of any kind are granted under this appeal. It is further conditioned on the units being used as rental motel units only, and petitioner is to submit to the Building inspector, a certificate by an architect that construction meets all requirements of State Building Code, before any permits are granted. No permit issued until 20 days from the date of filing the decision with the Town Clerk. THOMAS GEORGE Clerk pro tem TOWN OF YARMOUTH BOARD OF APPEALS Appeal No. September 8, 1983 Informal meeting with Mr. Sweeney, Attorney Re: Englewood Motel Sweene , representing Mr. Poliseno: As you know, in 1982, this Board made a decision concerning one of the buildings on the complex, the middle building with the swimming pool and 4 units above. The subject of that hearing was a stairway and deck that had been built and there was some question about the building permits being appropriate. All the issues of the non --conforming status of that building were answered that night, to allow the decision to be rendered. On 5/14/82, during that hearing, Mr. Ardito represented to the Board that at that time Mr. Poliseno did not have the intention of hooking up kitchens within those units, and there is language in the decision made by the Board, that the Board wanted to make it clear that the decision did not allow the installation of the kitchens. I would like to put first, the history behind this. This building as it stands, is an allowable, non -conforming use under decision of this Board. The question is, now I would like to come here with a formal petition, under Sec. 1532, asking you to allow him to extend this prior, existing, non -conforming use, to allow him to hook the kitchens up. The reason we did not at that time request these kitchens, we didn't want to do anything until we could show the Board there were kitchens in those units for quite some time, and they were a part of the non -conforming use of the structure. Since that time, since that night,I have received information from Mr. Poliseno that he did have allowable kitchen in those units. The building has changed since then, the set up is allowed under your decision. I have letters from Robie Refrigeration, the Fire Dept., indicating units did exist at one time. Those units were sold and advertised in the Cape Cod Times, had pictures showing the kitchens. The standard that I will have to show the Board that we need, is under 1532, that this change will not be substantially more detri- mental to the area than the existing use. What we have is a combination motel/condo complex. If the units had kitchens, the people living in them would have them availabl to them. The intensity of use would not increase. The units historically have been used year round. I am not arguing the case tonight, I just wanted to give some back- ground. Tell me what you would be looking for if and when a formal petition is pre- sented to you. Mr.Henderson; I am not really sure why you are here tonight. The kitchens are there apparently... Mr.Sweeney: They are not hooked up, but they are there. Mr. Henderson: How did they get there? Mr. Sweeney: Obviously they were installed because he thought he had the right to install them. Mr. Henderson: Under what authority? Mr. Sweeney: He thought he had the right to upgrade these units, and because there were kitchens in other units, Mr. Henderson: Since the reconstruction of the building, I don't see how he could thi- Informal meeting - Englewood Motel Page 2 he had the right to build anything but motel rooms. He interpreted the decision differently than the Board did. My own opinion is, normally, we discourage informal hearings because generally they don't add anything to a given situation. We wind up having 2 hearings instead of one. You are entitled to come in, using the criteria of the by-law. You may or may not be entitled to relief. Mr.Sweeney: The purpose of informal hearings before the hearing itself - it allows ty Board to give input to the situation. Given the history of this...difference of opinion that has existed and given —because there is such a long history, and the Board members would carry with it the history in their minds —if decisions had been made wrong in the past by the owners. In your opinion, I guess we are looking to see what the owner could do to improve the structure and atmosphere. I think that is a fair question. Mr. Oman: He should save himself some money and don't bother coming in to see us. I remember the questions that we put to Mr. Ardito. I remember he didn't seem to think he didxcjz need permits to add decks, staircases, changing anything, not to have an architect approved plan. We went through all of this. It is very deliberate as to what the bottom line was at that hearing. I can't believe you are standing here tonig and saying he must have interpreted.... Mr. Sweeney: He understands and knows that decision made by this Board...he knows and that decision you were not granting that night to hook up and install kitchens. He knows he has no right to use those kitchens. He is not arguing or saying there is some possibility under the present status that they can be used. Mr. Oman: I am getting rather sick of people doing these things and then coming in for permits. I thought this was all put to rest that night. I don't believe we are being asked to consider what is before us here. Mr.Sherman: You mention year round use - is the property rented year round or in the past before condominiums? Mr. Sweeney: He indicated to me - there are 6 units made into 4 units, At one time they were year round. Mr. Sherman: It was a seasonal hotel in the old days. Mr. Sweeney: He tells me it has a history of being year round. Mr.Poliseno: Since 1962, it was year round. When I built it. Before that,I don't kn Mr. Sherman: I am inclined to think in terms of Mr. Oman's position. Obvious dis- regards of our appeals. He is proceeding on his own completely... Mr. Sweeney: I am not so sure that is right,..I respect your feelings on it. I don't think he has a disregard for this Boards decision. He knows they are not allowed at this time. When the Building Inspector indicated to him the structure was non- conforming, and he had to make a filing with you, he did. He did show and continues to show respect for the Board. Mr. Oman: I am not so sure that in my mind that it was not an easy thing for us to come to that decision. It was not so easy for us to allow that building to remain. There was no question ... we allowed them to remain if the kitchens were not used. We could decide the other way if he came back.... Informal meeting - Englewood Motel Page 3 Mr. Sweeney: If he came in to seek an authorization as he has a right to under the by-law, he is left with either using what he has or living with any new restrictions the Board might put on at that time. I don't think you have the right to recind a decision that has already been made. I think you are saying.... Mr. Henderson: When and if you make a formal presentation, what is his standing? There is a condominium, some units andmccondominiums. Has the whole site been dedi- cated to condominiums? Mr. Sweeney: There is a whole strip that is. This particular building is Phase 2 of the development. Mr. Henderson: That building at this point has not been added to condominiums.... Mr.Sweeney: It is described as Phase 2 at the Registry of Deeds. I have been told by his counsel handling the condominiums that at the Registry it is described as Phase 2. Mr. Henderson: The decision of 2 years ago - Mr. White - did you ever receive the certification that the structure did meet the state building code? That was part of our decision. Mr. White: No. Mr. Sweeney: He cannot use this part until that is received. Mr. Poliseno: I have an architect drawing and everything. Mr. Sweeney: I don't know why that has not been received. Mr. Henderson: Has everything in that decision been complied with? Mr. White: I would have to check. Mr. Sherman: Do the first condominium units have kitchens? Mr. Poliseno: Yes. They do now and they did before. Mr. Sweeney: I thank you for your time. Your comments have been to the point and very helpful to tell us what we should do at this time. Hearing closed. Englewood Motel July 28, 1983 Discussion of letter from Attorney Sweeney, requesting an informal meeting with the Board. Members present: Donald Henderson, David Oman, Myer Singer, Judy Sullivan, Les Campbell. Mr. Sweeney: The purpose of the letter is to ask the Board if it would approve a petition to appear before the Board informally before a filing of a similar petition. There are some instances that are automatically allowed to do this. Given the long history of the Englewood, with the fire, rear building, with the series of appeals before this Board, I would like an opportunity to discuss the reason for coming back requesting a new petition. It directly relates to the last time they appeared before this Board, and the decision that was entered into the minutes of the meeting, discussing the kitchens - they said none would be hooked up in those units. We don't feel at that time that we had enough evidence on the site - we now have that evidence. I do not want to put before you, a long hearing, unless I could get some input and guidelines for a hearing. Mr. Henderson: It is not our custom to have informal hearings. He is right in this case, as there has been a great deal of confusion in this case. The status of the permits, etc., and it might be better for the Board to have an informal one. I see some merit for one. Mr. Oman:When would it take place? Tonight? Mr. Sweeney: I am not prepared for tonight. I am not asking for any specific date or time. Mr.Henderson: We are trying to schedule an extra meeting - depending on how many matters are on for then. Mr. Campbell: Motion to schedule one at our convenience for them, informally. I see no problems with it. Mr.Oman: I second, reluctantly. Maybe informally will save us a lot of grief. I will say...I won't pre judge, but I would be a hiprocrate if I said that. Mr.Henderson: I have thought the same thing. Mr. Oman: I think we have had snow job #3 on that piece of property. Vote - 4 in favor. TOWN OF YARMOUTH BOARD OF APPEALS Americo Poliseno Appeal No. 1837 May 13, 1982 Members present: Donald Henderson, David Oman, Herbert Renkainen, Morris Johnson, Thomas George. The Chairman called the meeting to order and read the petition. All abutters were notified and the necessary correspondence was made in the Yarmouth Sun. Charles Ardito, Attorney for petitioner: It was my understanding - was the original petition - the words "created from 6 units" - in the legal ad, were omitted from the notice. It is not crucial, but I thought I would mention it. The location of this property, bounded by Mass. Ave., Maine Ave., consisting of 3 main buildings. The building in the center is #2, the subject matter of this hear- ing. So called pool building. The Hotel Englewood, which this is, bought in 1963 and 1964, a special permit or variance, unclear as to what it was, was granted in 1964. 10 years later, 1974, a building permit was issued for a pool. A month later, a building permit was issued to enclose that pool. January, 1975, a building permit was issued for 6 living units above the pool. In March, 1977, a permit was issued to enclose the deck serving the 6 units with thermo pane windoes. In Dec. of 1980, a permit was issued to erect a stairway. I have copies of these permits. It is the last item that causes us to be here. The one to erect the stairway. The work done by him was thought by him to include the erection of a new deck. We look at the plan. I have a blowup of a section of the plot plan. This area outlined in red is the deck that was erected, together with the stairway in the striped area on the bottom of the plan. This plot plan is updated as of 4/23/82 and is accurate. The building permit, he felt, included the deck. Otherwise, why would he build a stairway - where would it go? At Site Plan Review, there was a plan submitted. It is not on the building permit. There was a plan submitted, showing this stairway. I have talked with everyone down here and there is no record of that plan anywhere. It cannot be found. I do have an affidavit I will present, by Mr. Spurr, saying he saw that site plan and it contained this particular deck. He recalls it very vividly. Mr. White, the current Building Inspector, says there is no permit for that deck. He will not issue one until we go through this tonight. I have a blowup of the area under the unit which comprises the stairs. You can see 4 steel beams. That area is the area of the original that was approved to be constructed over the pool. The roof line you see is the same roof line that was allowed at the time of the construc- tion of the 6 units. We had to build the new deck because the old one that served the 6 units was closed in and it became an outside wall. In the meantime, we have another problem. When the new outside thermo pane wall was closed in, to become the outside wall, at that time, there was no building permit issued for the removal of the old exterior wall, now the interior wall. The building you would face .... no need for a building permit when you remove non -weight building interior walls that have no structural capability. The truss structure will support the ceiling as it is constructed and as it was constructed at that time. By the removal of the old interior wall, it is our contention that would not require a building permit. That is a technical question. After removing the interior wall and making the new exterior wall, he reduced the number of units £rom 6 to 4. We are asking, in essence, that building permits, that you grant the approval necessary for building permits to remove this interior wall which has already been done and make this wall which has already been done. There is no need to ask for a request to allow the reduction of } Pet. #i837 Page 2 6 units to 4. I would submit to you that to allow these 2 requests would not derogate from the intent of the zoning by-law. No additional noise, hazard or congestion, no harm to the neighborhood. By the allowance of the number of units, there would be less of a burden. Mr. George: In 1977, when you closed in the outer deck with the windows, was there an exterior wall at that time that was eliminated? Mr. Ardito: It was in the rear. That was substituted by a stairway, a portion of wh' remains in the photo. It has been closed in in the photo. Mr. George: Is that the same stairway that now services the units? Mr. Ardito: That is correct. Mr. George: You will end up with 2 stairways? You said you had to add a deck and stairway. Mr. Ardito: I said in the permit that was required, it was for a stairway. The deck they say, was not included. Mr. George: The new deck - when was that built? Mr. Ardito: In 1981. Mr. George: The enclosed stairway - enclosed when? Mr. Ardito: 1981, a portion of it. Expanded in 1981. That is the same stairway we are using now, only larger. He got the permit in 1980 for the new, expanded stairway. It did not say this deck and he thought it included the deck. Mr. George: How can you justify his thinking that that authorizes to put on at least 4' or 5' more of deck? Mr. Aridito: That was the purpose of the expansion of the stairway, to have the new deck. Mr. George: How many bedrooms did the units contain when they were 6 units? Mr.Ardito: That didn't change. There were 2 then and 2 now in each. No kitchens. Mr. Poliseno: Down from 12 to 8. Mr. George: Any lot coverage standard that is in the by-law? Mr. Ardito: Whatever the coverage of this building when the right to build, it was granted in 1974, it hasn't changed 1" since but for the new deck, which is 3'3" more on the one side and 3' on the other. There is also a small storage area. Just the part that is red. Mr. George: Are their doors leading out to the deck? Mr. Ardito: 'There are 4 doors - I have a photo of the units when there were 6, before the windows were put up. These photos are of this unit from the rear, some are ... it is taken from the rear and shows 6 doorways and shows the deck closed in. No longe Pet. #1837 Page 3 are there 6 doorways - there are 4 - there is now an open deck, but it is new. Mr. George: Are those doors the only entrances to these units? Mr. Ardito: That is right. No interior stairway to the pool. You have a lesser use than before, but you have a deck that wasn't authorized, although there was a deck before. Mr. Johnson: Are these units still going to be rental and not for sale under con- dominium ownership? Mr. Poliseno: They are being rented. Mr. Johnson: When you say there is no kitchen in these units, there is counter space shown on the plan.... Mr. Ardito: That is just living space, no kitchen, no stoves. Mr. Johnson: To Mr. White: In changing the partitions on the inside from 6 to 4, how does that line up with the fire wall that goes up in the overhead? Mr. White: There are none. I don't remember them being there. Mr. Poliseno: There are fire walls - they are on the architect drawings. Mr. Oman: This is an architect plan, it is stamped. This would indicate that this wall had better exist as it shows on the plan. It should have been built according to this plan. Mr. Poliseno: It has been done. Mr. George: I don't understand, if you have been on the job 3 or 4 times, if this was completed from 6 to 4 units in 1977, you weren't the Inspector then, were you on inspection here on a building permit? Mr. White: I realized this work had all been done when I got there for the stairs. Mr. George: In your inspection for the conversion of the 6 units to 4? In 1977 when he got the permit to close in the walls, I would imagine someone checked this out, didn't they keep records of what they saw? Is there any evidence in the file that the conversion was properly inspected? Mr. White: We have cards saying it was checked. It doesn't say we saw this or that. Mr. George: If this permit was granted, to approve the conversion from 6 to 4 units, or the removal of the wall, is it affected by the code in 1982 or if we approve this, we are approving the structure as it is, whether it is right or wrong? Mr. Ardito: You will be approving just the deck. The wall - after that ... the buildin inspector would do the rest as to the building code. You don't do that. Mr. Oman: When that wall or deck was enclosed, as referred to as the thereto pane, wouldn't that make it an interior corridor and were you in the department at that time Pet. #1837 Page 4 What is the difference between a hotel or motel? Mr. White: None, Mr. Oman: I thought the corridor made that distinction. Maybe the building, just by the fact by enclosing the deck, would have made it in violation. If the overhang exists and the deck or walkway exists open, you have the right to enclose it at any time. Mr. Ardito: These steel girders, 5 of them, if you have a supporting beam running straight up, that is your support - that would have been your porch ... that any place that you see did not support any weight. If we went to code on this, the code would say there was no need for a building permit. He has 4 units, he does not have a building permit for the deck or for the removal of the wall. He does not have an occupancy permit. He has to make his inspection and if the code is met, he will issue an occupancy permit. Mr. Renkainen: I can't see why he would make such extensive construction work and I cannot see why he didn't have the proper permits. I would think he would have filed for some type of permit for this. Mr. Ardito: If he had asked me, I would have told him he didn't need one for that interior wall. That deck was permitted. The plan that we had for the Site Plan Review... Mr. Poliseno: I gave my only plan to the Building Inspector. I had a rough sketch. Mr. Ardito: I don't want to go on and on. We are here for this permit. The Engle- wood has a long history. I have read every Appeals Board decision since 1958. It is almost impossible to track the rational of the various hearings into a consistent pattern. Even the 1964 decision, granting the right to rebuild the motel. From this point forward, and I think it is fair to say this, we will want it this way... from this point forward, he knows whatever he does, he will have to do it with regulations. He will do everything from now on with counsel. Mr. Knowland: I believe the permit on this section Spbuld be withheld until this whole thing is straightened out, for fire protection. This property should be built considering stoves going in and maybe being sold as condominiums. Mrs. Knowland: I have been in the area from the original motel. We don't know what is going on. We couldn't see your plan. We were never informed of anything of any hearings in the past, I don't know why. I can't believe you can't find plans. There has to be plans somewhere. If not, let's get the act straightened out. Mr. Carbonetti: I bought in 1965. I have been notified of all the hearings taken place here. I watched this grow. I watch this man work day and night. A man in the business, staying in the competition, I think he is entitled to this. Mr.Lally: I have owned since 1962, year round for the past 10 years. I have seen him working extremely hard in keeping that property up. He runs a very fine motel. You don't hear any noise from there. He has done everything to improve the area. Mrs. Knowland: We have no complaint of noise or anything. It is an area that...we ha Pet. #1837 Page 5 no problem. We should know what is going on. If it is to become a time sharing area Mr. Poliseno: How long have you been in here? Mr. Ardito: I would rather you didn't speak, Mr. Poliseno. I want to appologize to you people. It was not my intent to cut you out. I will stay to explain everything to you if you wish. I assure you, everything will be done to code. Nothing will be allowed to go on there that is illegal. I don't want you to feel that anything is being put over on you. I won't speak to time sharing - nothing is being done on that right now. Nothing he has done here has been detrimental to the area. Mr. Knowland: Have fire walls been taken down at any time? Mr. White: The work was done when I got there. Mr. Knowland: Should there be a fire wall between each unit? Mr. White: They are speaking about in the attic area. I don't know what's there, I will inspect that. If I have to cut a whole in the wall, I will. Mr.Oman: This Board is not waiving any building code requirement. It is Mr. Whites responsibility - they will have to prove to him this has been done. We can't waive anything. Mr. Knowland: No more permits should be given until you find all this out. Mr. Oman: What you have here or will have, will be far better than what was there construction -wise at the time of the fire. Hearing closed.