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HomeMy WebLinkAbout60 Broadway Decision 2493 03.04.1988TOWN OF YARMOUTH BOARD OF APPEALS FILED WITH TOWN CLERK: IgNR Hearing Date: 12/10/87 c] Petitioner: Americo Poliseno ZCD %etit*n No: 2493 60 Broadway r- Z West Yarmouth, MA 02673 MC % ) DECISION r S r7 The petitioner requested a special permit to allow: 3> A. The change, extension and alteration of a pre- existing 6JInconf rming use to remove the restriction allowing only periodic occupancy of the premises; and thus to allow the year round occupancy of the premises. B. Such other relief that the Board of Appeals deems meet and just. C. Waiver of strict compliance with the rules and regulations of the Board of Appeals where it may deem such appropriate. Property located at 60 Broadway, West Yarmouth, MA and shown on Assessor's Map #12 parcel B176. Members of Board of Appeals present: David Oman, Leslie CAmpbell, Fritz Lindquist, Ron Schmidt, Richard Halverstadt. 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 that public notice of such hearing having been given by publication in The R-egister on 11/26/87 and 12/8/87, the hearing was opened and held on the date fa.rst above written. The f-)flowing appeared in favor of the petition: Edward J. Sweeney, attorney for ty_e petitioner; Mr. Poliseno; M. Stanley: Myrtle Morin, by letter. The following appeared in opposition: Planning Board. REASON FOR DECISION The petitioner is Declarant and owner of the Englewood Beach Condominiums. By decision of the Board of Appeals on September 12, 1987, in Petition #22217 the petitioner was granted a special permit to allow the change, alteration and extension of structure in accordance with petitioner's plans and of use of Phase Two of Englewood Beach Condomiums from twenty (20) motel units with a kitchen restaurant and lounge, to ten (10) condomium units and one (1) manager apartment. As noted in that decision, the Petitioner agreed that, ".... use and occupancy of the requested ten (10) dwelling units and manager apartment shall not occur until such time that: 1. Final Site Plan Review approval of submitted plans, or nonsubstantial modification thereof, has been obtained. 2. All required Board of Health approval have been obtained. 3. Occupancy permits have been issued by the Building Inspector with copies forwarded to the Board of Appeals. 4. No unit is to have more than two bedrooms...." - 2 - #24,93 Poliseno However, the Board of Appeals in said decision also imposed the following additional condition. #5 With the exception of the managers quarters which may be occupied year round, all other units shall be closed and not occupied for the months beginning, January 10, February and March. This restriction shall be included in all unit deeds." The Petitioner seeks to remove the restriction allowing only periodic occupancy of the premises; and thus to allow the year round occupancy of the premises. The Petitioner feels that the above restriction requiring the units to be closed for several months of every year has prevented any sales and that without relief from the Board, the Petitioner or a successor would be required to seek, out of financial necessity, relief allowing the facility to return to a motel. There was a lengthy public hearing. The Planing Board was opposed and asked this Board to follow its past policy of limiting densely developed properties such as this to seasonal use. The Board finds that 18 units on a 1.4 acre parcel is a very high density over what is allowed under the bylaw. Further, since the original decision the minimum lot sizes in this zoning district has gone from 15,000 to 25,000 squre feet. The Board is of the opinion that the conditions placed on petition #2227 were necessary to eerve the purpose of the bylaw. i The petition did not carry the requisite 4 affirmative votes. Therefore, the petition is denied. Members voting to approve: David Oman, Leslie Campbell. Members voting in opposition: Richard Halverstadt, Ron Schmidt, Fritz Lindquist. lk Fritz Lindquist o Clerk z� 89.� > > i n LO 0 F'WITH TOWN CLERK: TOWN OF YARMOUTH BOARD OF APPEALS MAR 4 I�ti6 EXHIBIT A Hearing Dltte: 12/10/87 Petitioner: Americo Poliseno Petition No: 2493 60 Broadway West Yarmouth, MA 02673 '•7 DECISION The petitioner requested a special permit to allow: A. The change, extension and alteration of a pre --existing rianconforming use to remove the restriction allowing only periodic occupancy of the premises; and thus to allow the year round occupancy of the premises. B. Such other relief that the Board of Appeals deems meet and just. C. Waiver of strict compliance with the rules and regulations of the Board of Appeals where it may deem such appropriate. Property located at 60 Broadway, West Yarmouth, MA and shown on Assessor's Map #12 parcel B176. Members of Board of Appeals present: David Oman, Leslie CAmpbell, Fritz Lindquist, Ron Schmidt, Richard Halverstadt. . 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 that public notice of such hearing having been given by publication in The Register on 11/26/87 and 12/8/87, the" hearing was opened and held on the date first above written. The following appeared in favor of the petition: Edward J. Sweeney, attorney for the petitioner; Mr. Poliseno; M. Stanley; Myrtle Morin, by letter. The following appeared in opposition: Planning Board. REASON FOR DECISION The petitioner is Declarant and owner of the Englewood Beach Condominiums. By decision of the Board of Appeals on September 12, 1987, in Petition #2227 the petitioner was granted a special permit to allow the change, alteration and extension of structure in accordance with petitioner's plans and of use of Phase Two of Englewood Beach Condomiums from twenty (20) motel units with a kitchen restaurant and lounge, to ten (10) condomium units and one (1) manager apartment. As noted in that decision, the Petitioner agreed that, ".... use and occupancy of the requested ten (10) dwelling units and manager apartment shall not occur until such time that: 1. Final Site Plan Review approval of submitted plans, or nonsubstantial modification thereof, has been obtained. 2. All required Board of Health approval have been obtained. 3. Occupancy permits have been issued by the Building Inspector with copies forwarded to the Board of Appeals. 4. No unit is to have more than two bedrooms...." 93 lis"*tj i However, the Board of Appeals in said decision also imposed the following additional condition. #5 With the exception of the managers quarters which may be occupied year round, all other units shall be closed and,not occupied for the months beginning, January 10, February and March. This restriction shall be included in all unit deeds." The Petitioner seeks to remove the restriction allowing only periodic occupancy of the premises; and thus to allow the year round occupancy of the premises. The Petitioner feels that the above restriction requiring the units to be closed for several months of every year has prevented any sales and that without relief from the Board, the Petitioner or a successor would be required to seek, out of financial necessity, relief allowing the facility to return to a motel. • There was a lengthy public hearing. The Planing Board was opposed and asked this Board to follow its past policy of limiting densely developed properties such as this to seasonal use. The Board finds that 18 units on a 1.4 acre parcel is a very high density over what is allowed under the bylaw. Further, since the original decision the minimum lot sizes in this zoning district has gone from 15,000 to 25,000 squre feet. The Board is of the opinion that the conditions placed on petition #2227 were necessary to serve the purpose of the bylaw. The petition did not carry the requisite 4 affirmative votes. Therkfore, the petition is denied. Members voting to approve: David Oman, Leslie Campbell. Members voting in opposition: Richard Halverstadt, Ron Schmidt, Fritz Lindquist. Fritz Lindquist Clerk c z:. A True Copy Attest: -, ape E. Hastings Assistant Town Clerk/ reasurer r, 2-- ' Town of Yarmouth 1, Pages 1 & 2 e } OWNER: TOWN OF YARMOUTH BOARD OF APPEALS 0 x� n ran � NAME: Americo Poliseno MQ) ::0Z �i ADDRESS: 60 Broadway West Yarmouth, MA 02673 �n M3 PETITIONER: NAME: Ame-rico Poliseno ADDRESS: 60 Broadway ---West Yarmouth, MA 02673 a a —eek, 'n APPEALS 9 ,3 41EARINC DATE: , -gAID 00 This application is for the property and/or structure located at: 60 Broadwa West Yarmouth, MA 02673 Including Assessor's Map & Parcel # 12 B176 I, We, hereby appeal from decision of the Building Inspector to grant per an t i r. your Board for a public hearing on this action. Date refused Building Inspector I, We, hereby request the action checked below: 1. APPLICATION for SPECIAL PERMIT under Section (s) 103.2 of the Yarmouth Zonin By -Law and/or for a use authorized in the "Use Regulation Schedule" Section (s) to allow: See Exhibit "A" attached hereto 2. PETITION for VARIANCE from the terms of the Yarmouth Zoning By -Law to allow: In order to grant petition, a variance of Section (s) necessary. of the By -Law is A list of abutters within 300 feet of the perimeter of the property, as shown on the most rec Assessor's Maps is attached, as exhibit B. Ardito, Sweeney, Stusse, rlobertson & Dupuy, P.C. A;�itac.secse rrofessional Building Americo Poliseno, 25 Mid -Tech Drive, Suitc C by his attorney, West Yarmouth, MA Oz673 (617) 775-3433 RECEIVED BY TOWN CLERIC Applicant's Signature EDWARD J. SWEENEY, JR. Copies of the Rules and Regulations of the Board and a general information sheet are availah': from the Board's secretary. EXHIBIT "A" Americo Poliseno Map 12, Parcel B176 The Petitioner is the Declarant of the Englewood Beach Condominium pursuant to a Master Deed dated October 17, 1980 and recorded October 31, 1980 at the Barnstable County Registry of Deeds in Book 3183, Page 193, together with the Bylaws of the Englewood Beach Condominium Association recorded in Book 3183, Page 216, and Master Deed as amended in Book 5521, page 137 relative to Phase II, said Condominium Phase II being subject to the decision of the Yarmouth Board of Appeals recorded with the Barnstable County Registry of Deeds in Book 4817, Page 183. Petitioner hereby appeals for relief requesting a special permit in accordance with Yarmouth Zoning Bylaw Sections 104.3.2, and 103.2; and M.G.L. Chapter 40A, as amended to allow: A. The change, extension and alteration of a pre-existing nonconforming use to remove the restriction allowing only periodic occupancy of the premises; and thus to allow the year round occupancy of the premises. B. Such other relief that the Board of Appeals deems meet and just. C. Waiver of strict compliance with the rules and regulations of the Board of Appeals where it may deem such appropriate. e CD TI v co -sue Pauline Morin, 41 Oakland St.. Wellesley Hills; Alphonse A. & Margaret M. Scott, 129 Chiswick Rd., Brighton; William W. & Judith A. Edmunds, 19 Columbus Ave., W.Yarmouth; Donald & Martha P. Breen, 124 Locust St., Holyoke; Richard A. Savrann, 1 Court St.. Boston; Robert J. Plausky, 367 Thoreau St., Concord; Deborah A. Hyslop, 60 Forest Ave., Framingham; John J. Palmer, et al. 24 Church St.. Auburn; Mary R. McNamara, et al. c/o Dunn & Finucane, 1 Court St., Boston; Rose Marie Kouroyeh, Mass. Ave. Realty Trust, 75 Mass. Ave., W. Yarmouth; Robert S. & Janice A. Hyslop, 60 Forest Ave., Framingham; Hugo A. & Wilma Carbonetti, 61 Broadway, W.Yarmouth; Henry R. & Jean D. Simonelli,'74 South St., Southbridge; Eleanor Brenner, 73 Mass. Ave., W.Yarmouth; Frederick E. & Nellie Connelly, 101 north Franklin St., Holbrook; James M. & Jacqueline Coughlin, 881 Ridge - Rd., Wethersfield, Conn.; Eleanor Brenner, 73 Mass. Ave.. W.Yarmouth; William A. Consalvo, et al, 97 Child St., Hyde Park; Michael J. Yeardi, 420 Washington St., Braintree; William A. Consalvo, et al; Veda M. Paoletta, 90 Commonwealth Ave., Boston; Roy & Hazel C. McKenzie, 53 Bird St., Needham; Joseph S. Lisciotti, 6306 E.78th P1. S. Tulsa, Olk.;Carmen J. & Laura Surro, 64 Mass. Ave., W.Yarmouth! David E. & Joan Nolan, 11 Coughlin Rd., No.Easton; Richard & Jovette Bragdon, 1 Rhode Island Ave., W. Yarmouth; William & Sarah Hogan, 7 Greaton Rd., W.Roxbury; John Francis & Maureen Burke, 16 Garden St., Auburn; Peter & Gloria Siragusa, 26 Lake St., Brighton; William & Bessie Nickandros, 26 Juniper Rd., Avon; Paul & Deanna Kingston, 81 Eaton Rd., Needham; Lloyd V. & Barbara Lawson, 60 Walnut St., W.Bridgewater; Robert & Virginia Hall, 35 M,sple Rd_, Chelmsford; Michael & Susan LesBurl, 64 Vaughn Ave., Newton; Francis & Myrtle Morin, 50 Broadway, W.Yarmouth; Joseph & Wilma Martin, 56 Broadway, W.Yarmouth; Ruth V. Johnson, 46 Broadway, W.Yarmouth; Americo Poliseno, et al; Anthony & Fannie A;ario, 18 Mt. Vernon St., Fitchburg; Margarita M. Farrington, et al, 129 Capt. Nick- erson Rd., S.Yarmouth; Joseph F. & Claire Barrett, 83 Governors Ave., Medford; John J. Phillips, et al, 7 Anvil Rd., Wilbraham; Edward T. & Alice Chiang, 4 Glenfeld. Weston; Hugh F. & Julia O'Brien, 11 Dewitt Rd., Stoneham; Mary E. Arnold, et -al, 9 Lochmere Ave.. N.Weymouth; Anna B. Scanlan, 77 Farragut Rd., S. Boston; Salvatore & Stella Pargoli, 94 Hemlock St., Arlington; Lester & June Goodman, 151 Woodward St., Newton Highland; Richard & Rita Lally, 43 Maine Ave., W.Yarmouth; Myrna S. Framson, 10 Tanglewood Rd., Newton Center; Philip & Joan Ellsworth, Off Hilltop Ave.. Kingston, Penn.; Joseph M. Carney, Tr., Carney Realty Trust, Mary Robbins, Trs., 29 Sofia Rd.. Stoughton; Joseph & Mildred McManus, 132 Lewis Rd., W.Yarmouth; Lawrence & Mary Monaldo, 104 Baker Rd., W.Yarmouth; Erika Ambeel, et al, 55 Maine Ave.. W.Yarmouth. .JOHN C. CRENEY, P.C. ATTORNEY -AT -LAW 86 Wn1ow STREET YARMOUTH PORT, MASSACHUSETTS 02675 (508)362-1 122 JOHN C. CRENEY October 5, 1990 Edward J. Sweeney, Jr., Esquire 25 Mid -Tech Drive West Yarmouth, MA 02673 Re: Americo Poliseno v. Board of Appeals Barnstable Superior Court No. 88-263 Dear Mr. Sweeney: OF COUNSEL JAMES T. CAssioY. JR. The Board of Appeals has voted in executive session to accept the offer of settlement to dispose of this pending appeal by modification of the condition set forth in Petition No. 2227. That condition requires that the condominium units in question shall not be occupied for the period between January 10 and March 31. The vote of the Board of Appeals is to authorize the modification of that condition so as to provide that the condominium units are not to be occupied from January 10 until the first Friday in March of each year. I would be pleased to review an agreement for judgment. Very truly yours, John C. Creney Town Counsel JCC/dma cc: David S. Reid, Esquire Deborah R. David, Secretary Board of Appeals Robert C. Lawton, Jr. Executive Secretary JOHN C. CRENEY, P.C. ATTORNEY -AT -LAW 86 WILLOW STREET YARMOUTH PORT. MASSACHUSETTS 02675 (SM 362-1122 Jots+ C. CRENEY September 4, 1990 David S. Reid, Esquire 1292 Route 28 South Yarmouth, UA 02664 Re: Americo Poliseno v. Board of Appeals Our File No. Y-1256 Dear David: OF COUNSEL JAmm T. CASSmY. JR By decision filed with the Town Clerk on March 4, 1988 in Petition No. 2493, the Board denied a requested modification of a condition contained in a previously granted special permit which condition required that the condominium units in question be closed in each year for the period from January 10 through March 31. An appeal was taken to Barnstable Superior Court (No. 88-263). Counsel for the plaintiff, Edward J. Sweeney, Jr., asks whether the Board would be willing to settle the matter if the plaintiff were willing to close the condominium from January 10 until the first Friday of March in each year. r t Enclosed is a copy of the decision of the Board in "'etition No. 2493. You may wish to discuss this settlement proposal with members of the Board who sat on this petition. V truly yours, John C. Creney Tom Counsel JCC/dma Enclosure cc: Robert C. Lawton, Jr. Executive Secretary TOWN OF YARMOUTH BOARD OF APPEALS EXECUTIVE SESSION DATE EXECUTIVE SESSION: PETITIONER: APPEAL#: September 27, 1990 Americo Poliseno/Englewood Beach Condominiums 2493 MEMBERS PRESENT AND VOTING: Leslie Campbell (Chairman), Fritz Lindquist, David B. Oman, Ronald Schmidt. It appearing that notice of said hearing has'been posted with the Town Clerk's office at least 48 hours prior to the Executive Session, the hearing was opened and held on the date first above written. After proceeding to recess into executive session by unanimous roll call vote, the Board discussed the correspondence from Town Counsel relative to the offer of settlement proposed by the Petitioner's counsel, Mr. Sweeney. A Motion was made by Mr. Oman, seconded by Mr. Schmidt, to authorize Town Counsel to settle the appeal in the terms proposed, as to allow the Board's prior decision to be modified and require the applicant's establishment to be closed from January 10th until the first Friday in March of each year hereafter. The members voted unanimously in favor of this Motion. Mr. Creney will be advised that he is authorized to proceed accordingly and to take whatever steps he feels appropriate to carry out this vote. The Bo d then v ted by unanimous roll call vote to return to t�eg�r op n se of of the Board. v - F �r F itz indquist Clerk, Pro.Tem. ITO. SWEENEY. SE.ROBERTSON. DUPUY. P.C. 'ORNEYS AT LAW YARMOUTH. MASS. 02673 L 4508) 775-3133 COMMONWEALTH OF MASSACHUSETTS Barnstable, ss. AMERICO POLISENO, AS OWNER OF ENGLEWOOD BEACH CONDOMINIUM V. Superior Court Docket No. 88-263 DAVID OMAN, LESLIE E. CAMPBELL, FRITZ LINDQUIST, RONALD SCHMIDT, RICHARD HALVERSTADT, DAVID REID, THOMAS N. GEORGE, AS THEY CONSTITUTE THE BOARD OF APPEALS OF THE TOWN OF YARMOUTH AND JUDITH A. SULLIVAN AND DONALD F. HENDERSON, MEMBERS AS OF SEPTEMBER, 1985 AGREEMENT FOR JUDGMENT CERTIFICATE OF JUDGMENT TO ISSUE FORTHWITH Now comes the Plaintiff, Americo Poliseno, as owner of Englewood Beach Condominium, and the Defendants, David Oman, Leslie E. Campbell, -Fritz Lindquist, Ronald Schmidt, Richard Halverstadt, David Reid and Thomas N. George, as they constitute the Board of Appeals of the Town of Yarmouth and Judith A. Sullivan and Donald F. Henderson, Members as of September, 1985, in the above captioned matter, and hereby agree that judgment may be entered in this action for the Plaintiff herein, with no costs and interest, but that the Plaintiff and his successors, devisees, heirs and assigns, in title, shall be bound by the terms and conditions of the Decision of the Yarmouth Board of Appeals as hereinafter set forth and made a part hereof. The parties further exceptions and appeal. Dated: November 6, 1990 DEFENDANTS, By Their Attorney, hn C. Creney, T A Willow Street Yarmouth Port, MA (508) 362-1122 Counsel 02675 agree to waive all rights to PLAINTIFF, By His Attorney, - Z�'/ a . Dupuy Ardito, Sweeney, Stusse, Robertson & Dupuy, P.C. 25 Mid -Tech Drive, Suite C West Yarmouth, MA 02673 ( 508 ) 775--3433 TOWN OF YARMOUTH BOARD OF APPEALS vat Hearing Date: 12/10/87 Petition No.: 2493 DECISION r Petitioner: Americo Poliseno 60 Broadway West Yarmouth, MA 02673 RELIEF REQUESTED Petitioner has appealed for relief requesting a special permit in accordance with Yarmouth Zoning By -Law Sections 104.3.2, and 103.2; and M.G.L. Chapter 40A, as amended to allow: A. The change, extension and alteration of a pre-existing, non -conforming use to remove the restriction allowing only periodic occupancy of the premises; and thus to allow the year-round occupancy of the premises. B. Such other relief that the Board of Appeals deems meet and just. C. Waiver of strict regulations of the such appropriate. HEARING compliance with the rules and Board of Appeals where it may deem The Petition was duly filed. Notice was given as required by law, including twice publication in the Register, a weekly publication having circulation in Yarmouth. Pursuant to notice, a public hearing was held by this Board of Appeals on the evening of December 10, 1987. In the course of the hearing several questions were posed to the Petitioner's representatives by members of the Board of Appeals. Several Yarmouth residents were heard and response was made by representatives of the Petitioner and by members of this Board. MEMBERS OF THE BOARD OF APPEALS PRESENT: David Oman Leslie E. Campbell Fritz Lindquist APPEAL Ronald Schmidt Richard Halverstadt By Decision filed with the Yarmouth Town Clerk on March 4, 1988, the Petitioner was denied relief sought in Petition No. 2493. The Petitioner by notice of appeal to the Barnstable Superior Court, sought relief from said denial in Superior Court Case Docket No 88-263. By this Agreement for Judgment, the Decision of the Yarmouth Board of Appeals in Petition No. 2493, as filed with the Town Clerk on March 4, 1988, is nullified and rendered void and subrogated by this Decision. r REASONS FOR DECISION LOCUS Englewood Beach Condominium is a twenty unit condominium complex created by Master Deed recorded in Book 3183, Page 193, in 1980 (units 1-8); said (Units 1 through 8) have been and remain year- round units. Unit 20, (Phase III, Third Amendment to the Master Deed recorded in Book 7081, Page 039 as approved by Decision of this Board of Appeals in Petition No. 1412, in 1977) as owner living quarters and manager quarters (a portion of Phase II, First Amendment to the Master Deed recorded in Book 5521, Page 137) as approved by the Decision of this Board of Appeals in Petition No. 2227 (1985) have both been and remain year-round Units. This Decision effects Units 9, 10, 11, 12, 14, 15, 16, 17, 18 and 19 which are a part of Phase II of the Englewood Beach Condominium pursuant to a Master Deed dated October 17, 1980 and recorded October 31, 1980 at the Barnstable County Registry of Deeds in Book 3183, Page 193, together with the By --Laws of the Englewood Beach Condominium Association recorded in Book 3183, Page 216, and Master Deed, as amended, in Book 5521, age 137, relative to Phase II, said Condominium Phase II being subject to the Decision of the Yarmouth Board of Appeals recorded with Certificate dated November 14, 1985 and recorded with the Barnstable County Registry of Deeds in Book 4817, Page 183, and also shown as Lot B176, assessor's map 12. Said ten units have been subject to seasonal restrictions as stated below. PLANS SUBMITTED Plan entitled, Englewood Beach Condominiums, Master Plan of Land in West Yarmouth, Mass., Scale: 1" = 20', October 25, 1986, by Down Cape Engineering. FACTS The Petitioner is the Declarant and owner of the Englewood Beach Condominiums, Phase II, as described above. By Decision of the Board of Appeals on September 12, 1985, in Petition No. 2227, the Petitioner was granted a special permit to allow the change, alteration and extension of structure in accordance with Petitioner's plans and of use of phase two of Englewood Beach Condominiums from twenty '(20) motel units, with a kitchen, restaurant and lounge, to ten 10) condominium dwelling units and one (1) manager apartment. 2 In said Decision the Board of Appeals found that, "...the special permit criteria were satisfied in that: 1. The change in use is from a non -allowed motel use to a residential use. This is a residential area. R. 2. Such a change in use would, not be detrimental to the neighborhood, but would enhance the neighborhood. The Board notes the large number of nearby residents who appeared in person or by letter or by petition and expressed favorable sentiments. 3. The abandonment of twenty seasonal motel units, restaurant with kitchen and cocktail lounge and their replacement with ten dwelling units and one manager apartment will lessen congestion in the neighborhood, especially during the tourist season. 4. No nuisance or hazard will be created in that intensity of use is being lessened. 5. The established and future character of the neighborhood and the town will be enhanced in that: a. The structure will be physically upgraded and modernized. b. Parking and traffic flow will be redesigned and improved. c.' The septic system will be substantially upgraded. d. Water use will be reduced. 6. Section 100 of the Yarmouth Zoning By-law states its purpose as follows: "The purpose of this by-law is to promote the health, safety, convenience and welfare of the inhabitants by dividing the town into districts and regulating the use and construction of buildings and premises therein." The proposed structural and site upgrades do promote the health and safety of the inhabitants. Change from intense seasonal to moderate use over a longer season promotes the welfare and convenience of the neighborhood residents. Change of use from motel to residences brings the site more into harmony with the existing neighborhood. Again we note the favorable response from the neighborhood..." As also noted in the Decision, the Petitioner agreed that, "...use and occupancy of the requested ten (10) dwelling units and manager apartment shall not occur until such time that : 1. Final Site Plan Review approval of submitted plans, or nonsubstantial modifications thereof, has been obtained. 2. All required Board of Health Approvals have been obtained. 3. Occupancy permits have been issued by the Building Inspector with copies forwarded to the Board of Appeals. 4. No unit is to have more than two bedrooms..." All of these conditions have been met. The facility is now complete and occupancy permits have been obtained. However, the Board of Appeals in said Decision also imposed the following additional conditions. "5. With the exception of the manager's quarters which may be occupied year round, all other units (rgferring to Units 9, 10, 11, 12, 14, 15, 16, 17, 18 and 19) shall be closed and not occupied for the months beginning January 10, February and March. This restriction shall be included in all unit deeds." CRITERIA AND AUTHORITY A. This Board has the authority to modify its previously issued special permit, and thus delete condition No. 5 above, via powers vested in M.G.L. Chapter 40A, Section 14, which states in part: "In exercising the powers granted by this section, a Board of Appeals may, in conformity with the provisions of this chapter, make orders or decisions, reverse or affirm in whole or in part, or modify any order or decision and to that end shall have all the powers of the officer from whom the appeal is taken and may issue or direct the issuance of a permit." B. The criteria for the grant of a special permit are stated as follows: 2 r I. Zoning By -Taw Section 103.2.2 Special permits shall not be granted unless the applicant demonstrates that no undue nuisance, hazard or congestion will be created and that there will be no substantial harm to the established or future character of the neighborhood or town. 2. Chapter 40A Special permits may be issued only for uses which are in harmony with the general purpose and intent of the ordinance or by-law, and shall be subject to general or specific provisions set forth therein and such permits may also impose conditions, safeguards and limitations on time or use. 3. The change, extension or alteration of a prior existing, non -conforming criteria are stated in Section 104.3.2 of the By-law as follows: "Pre-existing non -conforming structures or uses may be extended, altered or changed in use on special permit from the Board of Appeals if the Borad of Appeals finds that such -extension, alteration or change will not be substantially more detrimental to the neighborhood then the existing non -conforming use." RATIONALE FOR RELIEF REQUESTED A. Relief Sought as Modified by Agreement for Judgment The change and modification of a prior condition and prior restriction requiring that the above referenced ten, Phase II condominium units not be occupied between January 10 and March 31 so as to provide that the said ten, Phase II condominium units (being Units 9, 10, 11, 12, 14, 15, 16, 17, 18 and 19) are not to be occupied from January 10 until the first Friday in March of each year. B. Rationale 1. Since obtaining the above referenced special permit in 1985, the Petitioner has had great difficulty in marketing units. As a result, the Petitioner converted to a time share estate marketing program. The time share estate marketing program substantially reduces the potential for use of the units as a primary residence, which was the primary rationale for the seasonal restriction. k 2. The length of the restriction now appears severe and is a financial hardship to the Petitioner. 3. This modification does not conflict with the Board's rationale in its earlier decision. 4. The condominium units have been designed and constructed to be suitable for winter living. 5. The existing Title V Septic System is designed for daily year round use. CRITERIA SATISFIED The Board finds that the criteria as stated above are satisfied in that: A. No undue nuisance, hazard or congestion will be created, as follows: 1. The planned extended use period is residential in nature within a residential district. Inasmuch as this is an allowed use, no nuisance or hazard is created. 2. Because of parking design and because of the previous decrease in the number of units, no congestion will be caused. 3. Adequate off-street parking has been provided within a reasonable distance to service all parking demand created by the project. 4. Internal circulation and egress from the site are such that traffic safety is protected and access via minor streets servicing single-family homes is minimized. 5. Adequate access to each structure for fire and service equipment is provided. 6. Utilities and drainage serving the site provide functional service to each structure and fire protection provisions meeting Fire Department regulations are provided. 7. Topogaphic changes or removal of existing trees have been minimized or avoided. 8. Inasmuch as Phase I of the condominium is used year- round, as are many of the nearby residences, extension of these ten condominium units to approximately four additional weeks of use will not cause a nuisance, hazard or congestion. C.1 B. There will be no substantial harm to the established or future character of the neighborhood or town, as follows: 1. Since obtaining the above referenced special permit in 1985, the Petitioner has had great difficulty in marketing units. As a result, the Petitioner converted to a time share estate marketing program. The time share estate marketing 'program substantially reduces the potential for use of the units as a primary residence, which was the primary rationale for the lengthy seasonal restriction. 2. The length of the restriction now appears severe and is a financial hardship to the Petitioner. 3. This modification does not conflict with the Board's rationale in its earlier decision. 4. The condominium units have been designed and constructed to be suitable for winter living. 5. The existing Title V Septic System is designed for daily year round use. 6. Effective use is made of topography, landscaping and building placement to maintain the character of the neighborhood. C.' The criteria that special permits may be issued only for uses which are in- harmony with the general purpose and intent of the ordinance or by-law and that the extension, alteration or change will not be substantially more detrimental to the neighborhood than the existing non -conforming use are met for the reasons stated above, as follows: 1. The general purpose of the by-law is stated in section 100 as follows: "The purpose of this by-law is to promote the health, safety, convenience and welfare of the inhabitants by dividing the town into districts and regulating the use and construction of buildings and premises therein." The existing structure and site plans with redesigned parking, buffers, septic systems, utilities, water system, etc., with a decrease in site density, all promote the health, safety, convenience and welfare of the inhabitants generally and specifically decrease any threat to water quality. 7 2. The project very specifically meets the intent as stated in section 202.2 of the by-law in that the Petitioner's project does promote a choice in housing types, including that for transients and broadens the economic base of the town and creates employment while at the same time protecting the public health by preserving air, water and groundwater qualify and enhances that public welfare in that it does not include any uses which are noisy, dusty, dirty, smelly, dangerous or otherwise a nuisance to the public at large. It is noted that the project is outside of the Zone of contribution. 3. Further, the project meets the objectives as stated in section 402.2.1, which are designed to allow relatively intensive use of the land local while not increasing the population density on a large scale; to preserve open space for conservation and recreation; to introduce variety and choice into residential development; to meet housing needs; and to facilitate economical and efficient provisions for public services. D. The Board's Decision would modify a previously granted special permit, in this case the by-law variance criteria also are met in that: ' 1. A literal enforcement of the provisions of this by-law would involve a substantial hardship, financial or otherwise, to the Petitioner, in that failure to allow an extension of the project would cause the complex to fall into disrepair and causing it to decrease rather than remaining stable or increasing in value. Further the Petitioner has spent substantial sums of money in planning and completing this rehabilitation and reconstruction in accordance with the town's by-laws where same would be practically and financially sound. 2. The hardship is owing to circumstances relating to the solid conditions, shape or topography of such land or structures and especially affecting such land or structure, but not affecting generally the zoning district in which it is located, in that locus is located within an R--25 residential district of which the main use is single family residences. This locus existed as an old motel which is unique and rare within the Distract. 3. Desirable relief may be granted without either: substantial detriment to the public good; or nullifying or substantially derogating from the intent or purpose of this by-law, because of the substantial benefits the extension would bring to the town, the abutters and neighborhood. As to the issue of nullifying or 8 substantially derogating from the intent or purpose of the by-law, same is addressed in detail above. CONCLUSION AND RELIEF GRANTED The Petitioner, in accordance with the Agreement for Judgment as entered in Barnstable Superior Court Case Docket No. 88--263, is granted the following relief for the above stated reasons: Units 1 through 8 together with the owners living quarters (Unit 20), manager's quarters have been and remain year round units; all other units being Units 9, 10, 11, 12, 14, 15, 16, 17, 18 and 19 which were previously subject to the condition restriction that they "shall be closed and not occupied for the months beginning January 10, February and March", shall now be subject to the modified condition restriction that Units 9, 10, 11, 12, 14, 15, 16, 17, 18 and 19 shall be closed and not occupied from January loth until the first Friday in March of each year. The Decision and Relief herein granted shall run with the land and enure to the benefit of the Petitioner and his heirs, devisees, successors and assigns. MEMBERS VOTING David Oman Ronald Schmidt Leslie E. Campbell Richard Halverstadt Fritz Lindqgist All voted unanimously in favor of granting the Petitioner's request. Therefore, the Petitioner's request for relief is granted as stated above for all the above stated reasons. 601 WTO. SWEENEY. SSE. ROBERTSON. A OUPUY. P.C. t'ORNEYS AT LAW -T YARMOUTH. MASS 02573 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS SUPERIOR COURT DOCKET NO. 88 AMERICO POLISENO, AS QWNER OF ENGLEWOOD BEACH CONDOMINIUM V. DAVID..:OMAN, LESLIE CAMPBELL FRITZ'LINDQUIST, RONALD SCHMIDT, RICHARD'HALVERSTADT, DAVID REID, TOM GEORGE, AS THEY CONSTITUTE THE BOARD OF APPEALS OF THE TOWN OF YARMOUTH AND JUDITH A. SULLIVAN AND DONALD HENDERSON, MEMBERS AS OF SEPTEMBER 1985 COMPLAINT 1. Your plaintiff is Americo Poliseno, who resides in Yarmouth, Barnstable County, Massachusetts and he is the owner of the Englewood Beach Condominium located at 60 Broadway, West Yarmouth, Massachusetts. 2. Your plaintiff is aggrieved as defined in M.G.L., Chapter 40A, Section 17 by the decision of the Board of Appeals of the town of Yarmouth denying plaintiff's request for a special permit to allow the change, extension, and alteration of a preexisting, nonconforming use to remove the restriction allowing only the periodic occupancy of the premises. An attested copy of said decision is attached as plaintiff's Exhibit A. 3. Your plaintiff is further aggrieved by the Board of Appeals' original decision imposing the' same periodic occupancy provision on a decision filed with the Town Clerk on October 25, 1985, pursuant to M.G.L. Chapter 231A, §1. An attested copy of that decision is appended hereto as plaintiff's Exhibit B. 3. The defendants are: are the duly constituted members or alternate members of the Board of Appeals of the Town of Yarmouth currently and members who participated in the 1985 decision and reside as follows: a. David Oman of 12 Massachusetts; b. Leslie Campbell Massachusetts; C. Fritz Lindquist, Massachusetts; d. Ronald Schmidt, Massachusetts; Whittier Place, West Yarmouth, of 909 Route 28, South Yarmouth, Pleasant Street, Bass River, 40 Arbutus Road, West Yarmouth, '_L. W17) 775-3433 DITO. SWEENEY. SSE. ROBERTSON. B DUPUY. P C TTORNEYS AT LAW iT YARMOUTH. MASS 02673 EL. 46171 773.3433 e. Richard Halverstadt, 381 Main Street, Yarmouth Port, Massachusetts; f. David Reid, Esquire, 292 Route 28, South Yarmouth, Massachusetts; g. Thomas George, Esquire, 66 Main Street, Yarmouth Port, Massachusetts; h. Judith Sullivan, 213 Main Street, South Yarmouth, Massachusetts; and i. Donald Henderson, Esquire, 776 Main Street, Hyannis, Massachusetts; 4. Your plaintiff is the owner of the Englewood Beach Condominium pursuant to a Master Deed dated October 17, 1980 and recorded at the Barnstable County Registry of Deeds in Book 3183, Page 193, together with the Bylaws of the Englewood Beach Condominium Association recorded in Book 3183, Page 216, and Master Deed as amended in Book 5521, Page 137, relative to Phase II. Said Condominium Phase II being subject to the decision of the Yarmouth Board of Appeals recorded with Certificate at the Barnstable Registry of Deeds in Book 4817, Page 183. . COUNT I 5. Your plaintiff filed a petition for a special permit in accordance with the Town of Yarmouth Zoning Bylaw 104.3.2 and M.G.L. Chapter 40A, §6 to allow the change, alteration, and extension of a prior nonconforming structure in accordance with his plans as submitted. 6. A hearing was held with the Board of Appeals on September 12, 1985. 7. At that hearing, your plaintiff was granted a special permit to change the use from a nonal.lowed motel use to a residential use citing the following in support of its decision: a. The change in use is from a non allowed motel use to a residential use. This is a residential area. b. Such a change in use would not be detrimental to the neighborhood, but would enhance the neighborhood. The Board notes that the large number of nearby residents who appeared in person or by letter or by petition and expressed favorable sentiments. C. The abandonment of twenty seasonal motel units, restaurant with kitchen and cocktail lounge and their replacement with ten dwelling units and one manager apartment will lessen congestion in the neighborhood, especially during the tourist season. O[TO, SWEENEY, SSE. ROBERTSON, & DUPUY. P c TTORNEYS AT LAW 9T YARMOUTH. MASS 02673 EL. f6175 775.3433 d. No nuisance or hazard will be created in that intensity of use is being lessened. e. The established and future character of the neighborhood and the town will be enhanced in that: i. The structure will be physically upgraded and modernized. ii. Parking and traffic flow will be redesigned and improved. iii. The septic system will be substantially upgraded. iv. Water use will be reduced. f. Section 100 of the Yarmouth Zoning Bylaw states its purpose as follows: "The purpose of this bylaw is to promote the health, safety, convenience and welfare of the inhabitants by dividing the town into districts and regulating the use and construction of buildings and premises therein." The proposed structural and site upgrades do promote health and safety of the inhabitants. Change from intense seasonal to moderate use over a longer season promotes the welfare and convenience of the neighborhood residents. Change of use from motel to residences brings the site more into harmony with the existing neighborhood. Again we note the favorable response from the neighborhood . . . it 8. In exchange for said special permit, your plaintiff abandoned the 20 motel units, with kitchen restaurant and lounge to 10 condominium dwelling units with one manager apartment and no restaurant and lounge. 9. Further, the Board of Appeals imposed the following additional condition, "with the exception of the manager's quarters which may be occupied year round, all other units shall be closed and not occupied for the months beginning January 10, February, and March. This restriction shall be included in all unit deeds." 10. Said condition was added pursuant to Section 103.2.4 of the Town of Yarmouth Zoning Bylaw, which states as follows: 103.2.4 Conditions Special permits may be granted with such reasonable conditions or limitations as the special permit granting authority may deem necessary to serve the purposes of this bylaw. DITO. SWEENEY, SSE.ROBERTSON & 4UPUY. P.C. rTORNEYS AT LAW T YARMOUTH. MASS 02673 SL. [6171 775.3433 11. Said seasonal condition imposed by the Board of Appeals must be stricken as violative of the town's zoning power, in that the town has exceeded its authority by regulating condominium ownership through the use of its zoning power. WHEREFORE, your plaintiff prays that this Honorable Court grant a declaratory judgment holding said zoning ordinance invalid pursuant to its statutory power to do so in M.G.L. Chapter 231A, §1. COUNT II 13. Your plaintiff realleges and reavers Paragraphs 1 through 12, inclusive, as if fully set forth herein and incorporates same herein. 14. Subsequent to the 1985 special condition imposed on the plaintiff's special permit, your plaintiff has complied with each and every condition imposed by the Town of Yarmouth. 15. Your plaintiff has been unable to sell even one (1) unit, which is subject to the seasonal restriction, since the date of that earlier decision. Whereas those units as a part of Phase I, not subject to said restriction, of a smaller size and a similar price have been sold and resold. Said Phase I units are located directly adjacent to the Phase II units subject to said seasonal restriction. 16. The inability of plaintiff to sell even one (1) of these units since 1985 has placed a serious financial hardship on him. 17. Your plaintiff has been unable to sell these units due to the restriction imposed by the Town. 18. Subsequently your plaintiff petitioned the Yarmouth Board of Appeals to modify its decision consistent with M.G.L. Chapter 40A, §4, which states in relevant part: "In exercising the powers granted by this section, a Board of Appeals may, in conformity with the provisions of this chapter, make orders or decisions, reverse or affirm in whole or in part, or modify any order of decision and to that end shall have all the powers of the officer from whom the appeal is taken and may issue or direct the issuance of a permit." 19. The plaintiff specifically requested relief in the form of a special permit under Yarmouth Zoning Bylaw Sections 104.3.2, 103.2, and M.G.L., Chapter 40A to allow: ,-o DITO, SWEENEY. SSE. ROBERTSON. & DUPUY. P C 'TORNEYS AT LAW T YARMOUTH. MASS. 02673 :L. (617) 775-3433 "the change, extension and alteration of a pre-existing non -conforming use to remove the restriction allowing only periodic occupancy of the premises; and thus to allow the year round occupancy of the premises." 20. Thereafter,'in a decision filed with the Town Clerk of the Town of Yarmouth on March 4, 1988, the Board of Appeals denied plaintiff a special permit for his requested relief. A certified, attested copy of said decision is appended hereto and incorporated herein as Exhibit A. 21. The reasons for the findings made by defendant members of the Board of Appeals are insufficient in law to warrant the denial of a special permit from the terms of the Yarmouth Zoning Bylaw and under the provisions of Massachusetts General law, Chapter 40A, §9 and 14 and the Special Permit sections of the Yarmouth Zoning Bylaw, to wit: Sections 103.2.2, 103.2.4, 104.3.2 and 100. A copy of these sections of the Yarmouth Town Bylaw is appended herewith as plaintiff's Exhibit C. 22. Said decision exceeds the authority of the Board of Appeals and is invalid for the following reasons: a. The Town bylaw fails to set forth sufficient and adequate and uniform standards for guidance in determining whether to grant or withhold the issuance of special permits. b. The Board of Appeals has failed to consistently and uniformly apply said seasonal standards to other like housing in the Town of Yarmouth as to the length duration of the seasonal restriction. C. The Board is without express authority to regulate ownership through its zoning power. d. ' The decision of the Board to deny plaintiff's requested relief is arbitrary and capricious in that similar housing in the Town has been granted varied seasonal restrictions which differ in length. e. The Board's decision does not make specific findings in support of its decision to deny plaintiff's requested relief. f. 'The decision of the Board fails to indicate neither undue nuisance, hazard, or congestion nor substantial harm to the neighborhood where plaintiff has requested year-round use during the least -congested times of the year, to wit the winter months (see Yarmouth Bylaw Section 103.2.2) g. The decision fails to indicate how petitioner's requested relief does not meet the stated purpose of the DITO. SWEENEY. SSE. ROBERTSON. at DUPUY PC. iTORNEYS AT LAW sT YARMOUTH. MASS 02673 =L. (617) 775.3433 bylaw, within the meaning of M.G.L. Chapter 40A and the Yarmouth Bylaw Section 100. h. The decision fails to address the benefits of petitioner's proposal, that being the more stable year-round use by families consistent with the residential character of the neighborhood: "residential" in common parlance meaning year-round. i. Plaintiff will suffer a severe hardship as a landowner if said restriction is not lifted. Plaintiff's inability to sell units has placed him in serious financial jeopardy. J. The result of financial inability to maintain said property will be far more deleterious to the town and wholly inconsistent with the general purposes of the Bylaw. k. The Board's decision effectively results in an uncompensated taking of his property. 1. The Board's decision is in excess of its authority generally for failure of the evidence to address any of the regulatory or statutory criteria in any detail. WHEREFORE, the plaintiff prays: 1. That the Yarmouth Bylaw Section 103.2.4 be stricken as void for vagueness; 2. That the seasonal special conditions imposed in the decisions of the Board of Appeals in Petition Nos. 227 and 2493 be annulled; 3. That the plaintiff be given a special permit to operate on a year-round basis; 4. That plaintiff be awarded costs and attorney's fees; 5. For such other and further relief as this Honorable Court may deem just and proper under the circumstances. DATED: MARCH 24, 1988 Americo Poliseno, Plaintiff By his attornrey C AMY E. G ODB MATTHEW J. DUPUY ARDITO, SWEENEY, STUSSE, ROBERTSON & DUPUY, P.C. 25 MID -TECH DRIVE, SUITE C WEST YARMOUTH, MA 02673 TOWN OF YARMOUTH PLANNING 1146 ROUTE 28 SOUTH YARMOUTH MASSACHUSETTS 02664 BOARD Telephone 398-2231 M E M O TO: Board of Appeals FROM: Nancy Trafton _ P �.. Vice Chairman, Planning Board RE: Petition #2493 - Americo Poliseno DATE: December 8, 1987 The Planning Board is opposed to allowing year-round use of these units on the grounds that this would result in a much higher density for year-round use than is allowed in is area. According to Tax Assessor's Department recoZ;o:et4!� as �8 units on 1.4 acres, an extremely high density units allowed under current zoning. �O TOWN OF YARMOUTH SOUTH YARMOUTH MASSACHUSE;TTS 02664 BOARD OF HEALTH December 7, 1987 Mr. Americo Policino 60 Broadway West Yarmouth, MA 02673 Dear Sir. This office has reviewed a septic "as built" plan for the Phase II conversion to condominiums of the Englewood Motor Inn in West Yarmouth. This plan, dated October 19, 1987, was prepared by Down Cape Engineering. After said review, it is the opinion of this office that the three septic systems as built conform to Title S of the State Environmental Code "Minimum Requirements for the Sub Surface Disposal of Sanitary Sewage." If you have any questions or comments concerning this matter, please feel free to contact me. Yours Truly, Terence M. Hayes Ass't Health Agent cc. E.J. Sweeney, Esquire file JOHN C. CRENEY JOHN C. CRENEY, P.C. ATTORNEY -AT -LAW 86 WILLOW STREET YARMOUTH PORT. MASSACHUSETTS 02675 (617) 362-1122 March 25, 1988 OF COUNSEL JAMES T. CASSIDY, JR. Mrs. Barbara Holmes Neil, Clerk Barnstable County Superior Court Barnstable, MA 02630 Re: Americo Poliseno Vs. Yarmouth Board of Appeals, No. 88-263 Dear Mrs. Neil: Enclosed herewith for filing please find answer of all defendants, a copy of which has been served this day by first class mail, postage prepaid, upon Amy E. Goodblatt and Matthew J. Dupuy, attorneys for the plaintiff. Very truly yours, John C. Creney Town Counsel JCC/jm Enclosure cc: Amy E. Goodblatt, Esquire cc: Matthew J. Dupuy, Esquire %.e Mrs. Jeanne Bullock, Secretary Board of Appeals cc: Robert C. Lawton, Jr., Executive Secretary cc: Donald F. Henderson, Esquire TOWN OF YARMOUTH Town Clertz's/Treasurer's Office K*UMwn D. Johnson, CMC/CII 1146 Route 28 SOUTH YARMOUTH, MA 02664 (617) 398-2231 fact 20 TO John Creney, Esq. 86 Willow Street i Yarmuthport, MA 02675 DATE March 25, 1988 ❑ URGENT Lj SOON AS POSSIDL FILE NO. ❑ NO REPLY NEEDEL ATTENTION SUBJECT Appeals OKH David Dovell Superior Court #88-263 Americo Pollseno MESSAGE Dear Mr. Creney: Enclosed please find a copy of an appeal for David Dovell VS Yarmouth chid Kings Highway Regiona Historic District Committee and Superior Court #88-263 Americo Poliseno, as owner of Englewood Bea Condominium VS Board of Appeals. If you have any questions please feel free to contact me. Respectfully yours, KDJ:jeh - cc: 01 Kings Highway Board of Appeals RECIPIENT. WRITE REPLY, RETURN WHITE TO SENDER. KEEP THIS PINK COPY. JOHN C. CRENEY. P.C. ATTORNEY -AT LAW 86 WILLOW STREET YARMOUTH W-.RT_ MASSACHUSETTS 02675 (617) 362-11i2 COMMONWEALTH OF MASSACHUSETTS Barnstable, ss. Superior Court Department No. 88-263 AMERICO POLISENO, AS OWNER OF ENGLEWOOD BEACH CONDOMINIUM, Plaintiff VS. ANSWER OF DEFENDANTS DAVID OMAN, LESLIE CAMPBELL, FRITZ LINDQUIST, RONALD SCHMIDT, RICHARD HALVERSTADT, DAVID REID, TOM GEORGE, As They Constitute Members of the Board of Appeals of the Town of Yarmouth, Defendants First Defense This Court lacks jurisdiction over the subject matter of Count I of the complaint. The exclusive remedy of a person aggrieved by a decision of a Board of Appeals is by appeal in accordance with General Laws Ch. 40A §17 by commencement of an action within twenty days after the decision has been filed in the office of the Town Clerk. The decision complained of in Count I was filed with the Town Clerk on October 25, 1985. Second Defense In response to the respective allegations of the complaint, the defendants answer as follows: 1. Admitted. 2. Admitted. 3. Denied. 3. (sic) Admitted. 4. Admitted. 5. Admitted. -I- JOHN C. CRENEY. P.C. ATTORNEY -AT -LAW 86 WILLOW STREET YARMOUTH PORT, NASSACHUSETTS 02675 [617)362-1122 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. 11. Denied. 12. The complaint contains no paragraph numbered 12. 13. The defendants reallege their answers to Paragraphs 1 through 12, inclusive, as if the same were fully set forth herein. 14. The defendants are without knowledge or information sufficient to form a belief as to the allegations set forth in Paragraph 14 of the complaint and call upon the plaintiff to prove the same. 15. The defendants are without knowledge or information sufficient to form a belief as to the allegations set forth in Paragraph 15 of the complaint and call upon the plaintiff to prove the same. 16. The defendants are without knowledge or information sufficient to form a belief as to the allegations set forth in Paragraph 16 of the complaint and call upon the plaintiff to prove the same. 17. The defendants are without knowledge or information sufficient to form a belief as to the allegations set forth in Paragraph 17 of the complaint and call upon the plaintiff to prove the same. 18. Admitted. 19. Admitted. 20. Admitted. 21. Denied. 22. Denied. -2- WHEREFORE, the defendants demand: 1. That Count I of the complaint be dismissed. 2. That this action be dismissed as to all defendants who did not participate in the 1988 decision of the Board of Appeals. 3. That after hearing, the 1988 decision of the Board of Appeals be affirmed. 4. For such further relief as the Court deems appropriate. Defendants, By Their Attorney, John C. Creney, Town Counsel 86 Willow Street Yarmouth Port, MA 02675 (617) 362-1122 March 25, 1988 JOHN C. CRENEY, P.C. ATTORNEY -AT -LAW 86 WILLOW STREET YAPMOUTH PORT. MASSACHUSETTS 02675 -j- 1617)362-1122 Barnst le -- - SS. 'r. UNTIFF(S) Americo PO 1 enS O nglewood Beach Condominium MASSACHUSETTS TRIAL COURT CIVIL ACTION COVER SHEET (To be filed with each Complaint) ds owner ATTORNEY(S) (Firm Name, Address, Tel.) Amy E. Goodbl atthew J. Dupuy, Ardito, Sweeney, Stusse & Mid -Tech Dr., W. Yarmouth,' MA 02673 3130 # 775-3433 Place an ® In one box only 1. F01 Complaint , i Q 2. F02 Removal to Sup. Cf. c.231, s.104 ❑ 3. F03 Retransfer to Sup. Cf. c.231, s.102C Place an ® in one box only CONTRACT ] A01 Services, labor and materials ] A02 Goods sold and delivered ] A03 Commercial paper ] A08 Sale or lease of real estate 3 A99 Other (specify) TORT ] B03 Motor vehicle negligence -personal injury/property damage 3 804 Other negligence -personal Injury properly damage 3 1305 Products liability 3 806 Malpractice -medical 3 B07 Malpractice -other (specify) 3 BOB Wrongful death, G.L. c.229, 5.2A ] B15 Defamation (libel -slander) 3 B99 Other (specify) S THIS A JURY CASE? ❑ YES SUPERIOR COURT DEPARTME [7 !> NO. �(_ 0( DEFENDANT(S) David Omanr Les 3e Camp , Fr1t Lindquist, Ronald Schmidt, as they constitute Board of Appeals Of Yarmouth and Judith A. SL: t & Va-nr nor! __—L____ John Creney, Esquire 86 Willow Street, Yarmotth, MA 02675 o ZE ORIGIN 1 r, -_ I ❑ 4. F04 Dist. Ct. peal c.231, s.97 ;aC_) ❑ 5. F05 7KRibctivaiEb after Rescript; Relief 9-Jrom juVent/ordeir (Mass. R. Civ. P. 60) y NATURE OF ACTION�� A. REAL PROPERTY ❑ C01 Land taking (eminent domain) 2 ft2l Zoning appeal, G.L. c.40A Dispute concerning title ❑ C04 Foreclosure of mortgage ❑ C99 Other (specify) EOUITABLE REMEDIES ❑ D01 Specific performance of contract ❑ D02 Reach and apply, G.L. c.214, s.3(6)-(9) ❑ 006 Contribution or indemnification ❑ D07 Imposition of trust ❑ D08 Minority stockholder's suit ❑ D10 Accounting ❑ 012 Dissolution of partnership ❑ D13 Declaratory judgment, G.L. c.231A Q D99 Other (specify) MISCELLANEOUS ❑ E02 Appeal from administrative agenc' G.L. c.30A ❑ E03 Action against Commonwealth or Municipality, G.L. c.258 ❑ E04 Taxpayer suit, G.L. c.40 s.53 ❑ E05 Confirmation of arbitration awards G.L. c.251 ❑ E06 Massachusetts Antitrust Act, G.L. c.93 ❑ E08 Appointment of receiver ❑ E09 General contractor's surety bond, G.L. c.149, ss.29, 29a ❑ E10 Summary process appeal ❑ Ell Workman's Compensation ❑ E12 Small Claims Appeal Cl E13 Labor Dispute ❑ E14 Chapter 123A Petition — SDP ❑ E15 Abuse PetRtion, G.L. c.209A ❑ E16 Auto Surcharge Appeal ❑ E17 Civil Rights Act, G_L. c.12, ss.11H- ❑ E99 Other (specify) SUPERIOR COURT RULE 29. Requirement of statement as to money damages to prevent the transfer of civil actions to District or Municipal Court Departments. 1. Superior Court Rule 29, as amended requires the statement of money damages on the reverse side be completed. Failure to complete the statement, whe e a ile 29(2). C— —, RN CE USE ONLY --DO NOT WRITE BELOW THIS LINE) DISPOSITION A. Judgment Entered ❑ 1. Before jury trial or non -jury hearing ❑ 2. During jury trial or non -jury hearing ❑ 3. After jury verdict ❑ 4. After court finding ❑ 5. After post trial motion priate, will result in transfer of this action (Superior B. No Judgment Entered ❑ 6. Transferred to District Court under G.L. c.231, 5102C Disposition date DATE: 3/24/88 RECEIVED BY: DATE: DISP ENTERED BY: DATE: CLERK'S OFFICE COPY mtC003.07/ 84 COMMONWEALTH OF MASSACHUSETTS Barnstable. 'SS Superior Court Department Statement of Damages Pursuant to Superior Court Rule 29 To Prevent Transfer to District or Municipal Court Departments (Applicable to Civil Actions) 1. This action is not subject to Rule 29 Remand for the following reason(s): (concise statement as to why this action is not remandable, e.g., party seeking equitable relief, declaratory judgment, action against commonwealth or municipality, etc.) This matter is not remandable because it is an action of Zoning Appeal under Chapter 40A, Section 17. 2. This action is subject to Superior Court Rule 29 and the following detailed statement pursu- ant to Rule 29 sets forth the facts in full and itemized detail upon which the plaintiff relies as constituting the damages in this action: (if tort action, for example, specify doctors' bills, hospital bills, out of pocket expenses, etc. that would warrant a reasonable likelihood that recovery will exceed $7,500.) (if contract action, state with particularity damages which would warrant a reasonable likelihood that recovery will exceed $7,500.) A - 4 O x + 31 4, { 3 4 88 t $t# {signatur f altorne record ar pro se) Amy_E. Goodblatt TO. SWEENEY. E. ROBERTSON. DUPUY. P.C. )RNEYS AT LAW fARMOUTH. MASS 02673 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS SUPERIOR COURT ! DOCKET NO. `Xr� AMERICO POLISENO, AS OWNER OF ENGLEWOOD BEACH CONDOMINIUM V. f �•r.� DAVID OMAN, LESLIE CAMPBELL 8� MAR 24 FRITZ LINDQUIST, RONALD SCHMIDT, P3;45 RICHARD HALVERSTADT, DAVID REID, IpW 'r :t, BOARDEOFGAPPEALSHOF THESTOWNTOFTOM GORE, AS TEY CONTITUETYARMOUTH NHE C�E�H ��tNA 5 r,, AND JUDITH A. SULLIVAN AND DONALD HENDERSON, MEMBERS AS OF SEPTEMBER 1985 COMPLAINT 1. Your plaintiff is Americo Poliseno, who resides in Yarmouth, Barnstable County, Massachusetts and he is the owner of the Englewood Beach Condominium located at 60 Broadway, West Yarmouth, Massachusetts. 2. Your plaintiff is aggrieved as defined in M.G.L., Chapter 40A, Section 17 by the decision of the Board of Appeals of the town of Yarmouth denying plaintiff's request for a special permit to allow the change, extension, and alteration of a preexisting, nonconforming use to remove the restriction allowing only the periodic occupancy of the premises. An attested copy of said decision is attached as plaintiff's Exhibit A. 3. Your plaintiff is further aggrieved by the Board of Appeals' original decision imposing the samo' periodic occupancy provision an a decision filed with the Town Clerk on October 25, 1985, pursuant to M.G.L. Chapter 231A, §1. An attested copy of that decision is appended hereto as plaintiff's Exhibit B. 3. The defendants are: are the duly constituted members or alternate members of the Board of Appeals of the Town of Yarmouth currently and members who participated in the 1985 decision and reside as follows: a. David Oman of 12 Massachusetts; b. Leslie Campbell Massachusetts; C. Fritz Lindquist, Massachusetts; d. Ronald Schmidt, Massachusetts; Whittier Place, West Yarmouth, of 909 Route 28, South Yarmouth, Pleasant Street, Bass River, 40 Arbutus Road, West Yarmouth, 1617) 775.3433 'O. SWEENEY. E. ROBERTSON. )UPUY. P C -RNEYS AT LAW ARMOUTH. MASS. 02673 e. Richard Halverstadt, 381 Main Street, Yarmouth Port, Massachusetts; f. David Reid, Esquire, 292 Route 28, South Yarmouth, Massachusetts; g. Thomas George, Esquire, 66 Main Street, Yarmouth Port, Massachusetts; h. Judith Sullivan, 213 Main Street, South Yarmouth, Massachusetts; and i. Donald Henderson, Esquire, 776 Main Street, Hyannis, Massachusetts; 4. Your plaintiff is the owner of the Englewood Beach Condominium pursuant to a Master Deed dated October 17, 1980 and recorded at the Barnstable County Registry of Deeds in Book 3183, Page 193, together with the Bylaws of the Englewood Beach Condominium Association recorded in Book 3183, Page 216, and Master Deed as amended in Book 5521, Page 137, relative to Phase II. Said Condominium Phase II being subject to the decision of the Yarmouth Board of Appeals recorded with Certificate at the Barnstable Registry of Deeds in Book 4817, Page 183. COUNT I 5. Your plaintiff filed a petition for a special permit in accordance with the Town of Yarmouth Zoning Bylaw 104.3.2 and M.G.L. Chapter 40A, §6 to allow the change, alteration, and extension of a prior nonconforming structure in accordance with his plans as submitted. 6. A hearing was held with the Board of Appeals on September 12, 1985. 7. At that hearing, your plaintiff was granted a special permit to change the use from a nonallowed motel use to a residential use citing the following in support of its decision: a. The change in use is from a non allowed motel use to a residential use. This is a -residential area. b. Such a change in use would not be detrimental to the neighborhood, but would enhance the neighborhood. The Board notes that the large number of nearby residents who appeared in person or by letter or by petition and expressed favorable sentiments. C. The abandonment of twenty seasonal motel units, restaurant with kitchen and cocktail lounge and their replacement with ten dwelling units and one manager apartment will lessen congestion in the neighborhood, especially during the tourist season. 61 71 775.3433 ro. SWEENEY. E. ROBERTSON. DUPUY. P.C. )RNEYS AT LAW •ARMOUTH. MASS. 02673 d. No nuisance or hazard will be created in that intensity of use is being lessened. e. The established and future character of the neighborhood and the town will be enhanced in that: i. The structure will be physically upgraded and modernized. ii. Parking and traffic flow will be redesigned and improved. iii. The septic system will be substantially upgraded. iv. Water use will be reduced. f. Section 100 of the Yarmouth Zoning Bylaw states its purpose as follows: "The purpose of this bylaw is to promote the health, safety, convenience and welfare of the inhabitants by dividing the town into districts and regulating the use and construction of buildings and premises therein." The proposed structural and site upgrades do promote health and safety of the inhabitants. Change from intense seasonal to moderate use over a longer season promotes the welfare and convenience of the neighborhood residents. Change of use from motel to residences brings the site more into harmony with the existing neighborhood. Again we note the favorable response from the neighborhood " 8. In exchange for said special permit, your plaintiff abandoned the 20 motel units, with kitchen restaurant and lounge to 10 condominium dwelling units with one manager apartment and no restaurant and lounge. 9. Further, the Board of Appeals imposed the following additional condition, "with the exception of the manager's quarters which may be occupied year round, all other units shall be closed and not occupied for the months beginning January 10, February, and March. This restriction shall be included in all unit deeds." 10. Said condition was added pursuant to Section 103.2.4 of the Town of Yarmo.uth Zoning Bylaw, which states as follows: 103.2.4 Conditions Special permits may be granted with such reasonable conditions or limitations as the special permit granting authority may deem necessary to serve the purposes of this bylaw. 16 171 775.3433 $. SWEENEY. ROBERTSON. )PUY. P.C. VEYS AT LAW iMOUTH. MASS 32673 11. Said seasonal condition imposed by the Board of Appeals must be stricken as violative of the town's zoning power, in that the town has exceeded its authority by regulating condominium ownership through the use of its zoning power. WHEREFORE, your plaintiff prays that this Honorable Court grant a declaratory judgment holding said zoning ordinance invalid pursuant to its statutory power to do so in M.G.L. Chapter 231A, §1. . COUNT II 13. Your plaintiff realleges and reavers Paragraphs 1 through 12, inclusive, as if fully set forth herein and incorporates same herein. 14. Subsequent to the 1985 special condition imposed on the plaintiff's special permit your plaintiff has complied with each and every condition imposed by the Town of Yarmouth. 15. Your plaintiff has been unable to sell even one (1) unit, which is subject to the seasonal restriction, since the date of that earlier decision. Whereas those units as a part of Phase I, not subject to said restriction, of a smaller size and a similar price have been' sold and resold. Said Phase I units are located directly adjacent to the Phase II units subject to said seasonal restriction. 16. The inability of plaintiff to sell even one (1) of these units since 1985 has placed a serious financial hardship on him. 17. Your plaintiff has been unable to sell these units due to the restriction imposed by the Town. 18. Subsequently your plaintiff petitioned the Yarmouth Board of Appeals to modify its decision consistent with M.G.L. Chapter 40A, §4, which states in relevant part: "In exercising the powers granted by this section, a Board of Appeals may, in conformity with the provisions of this chapter, make orders or decisions, reverse or affirm in whole or in part, or modify Any order of decision and to that end shall have all the powers of the officer from whom the appeal is taken and may issue or direct the issuance of a permit." 19. The plaintiff specifically requested relief in the form of a special permit under Yarmouth Zoning Bylaw Sections 104.3.2, 103.2, and M.G.L., Chapter 40A to allow: 175 773.3A33 O. SWEENEY. Z. ROBERTSON. IUPUY. P.C. ANEYS AT LAW ARMOUTH. MASS. 02673 "the change, extension and alteration of a pre-existing non -conforming use to remove the restriction allowing only periodic occupancy of the premises; and thus to allow the year round occupancy of the premises." 20. Thereafter, in a decision filed with the Town Clerk of the Town of Yarmouth on March 4, 1988, the Board of Appeals denied plaintiff a special permit for his requested relief. A certified, attested copy of said decision is appended hereto and incorporated herein as Exhibit A. 21. The reasons for the findings made by defendant members of the Board of Appeals are ins.ufficient in law to warrant the denial of a special permit from the terms of the Yarmouth Zoning Bylaw and under the provisions of Massachusetts General law, Chapter 40A, §9 and 14 and the Special Permit sections of the Yarmouth Zoning Bylaw, to wit: Sections 103.2.2, 103.2.4, 104.3.2 and 100. A copy of these sections of the Yarmouth Town Bylaw is appended herewith as plaintiff's Exhibit C. 22. Said decision exceeds the authority of the Board of Appeals and is invalid for the following reasons: a. The Town bylaw fails to set forth sufficient and adequate and uniform standards for guidance in determining whether to grant or withhold the issuance of special permits. b. The Board of Appeals has failed to consistently and uniformly apply said seasonal standards to other like housing in the Town of Yarmouth as to the length duration of the seasonal restriction. C. The Board is without express authority to regulate ownership through its zoning power. d. The decision of the Board to deny plaintiff's requested relief is arbitrary and capricious in that similar housing in the Town has . been granted varied seasonal restrictions which differ in length. e. The Board's decision does not make specific findings in support of its decision to deny plaintiff's requested relief. f. The decision of the Board fails to indicate neither undue nuisance, hazard, or congestion nor substantial harm to the neighborhood where plaintiff has requested year-round use during the least -congested times of the year, to wit the winter months (see Yarmouth Bylaw Section 103.2.2) g. The decision fails to indicate how petitioner's requested relief does not meet the stated purpose of the 6171775,3433 . SWEENEY. R0BERTSON. PUY, P.C. 11EY5 AT LAW ZMOUTH.MASS )Z873 bylaw, within the meaning of M.G.L. Chapter 40A and the Yarmouth Bylaw Section 100. h. The decision fails to address the benefits of petitioner's proposal, that being the more stable year-round use by families consistent with the residential character of the neighborhood: "residential" in common parlance meaning year-round. i. Plaintiff will suffer a severe hardship as a landowner if said restriction is not lifted. Plaintiff's inability to sell units has placed him in serious financial Jeopardy. .i. The result of financial inability to maintain said property will be far more deleterious to the town and wholly inconsistent with the general purposes of the Bylaw. k. The Board's decision effectively results in an uncompensated taking of his property. 1. The Board's decision is in excess'of its authority generally for failure of the evidence to address any of the regulatory or statutory criteria in any detail. WHEREFORE, the plaintiff prays: 1. That the Yarmouth Bylaw Section 103.2.4 be stricken as void for vagueness; 2. That the seasonal special conditions imposed in the decisions of the Board of Appeals in Petition Nos. 227 and 2493 be annulled; 3. That the plaintiff be given a special permit to operate on a year-round basis; 4. That plaintiff be awarded costs and attorney's fees; 5. For such other and further relief as this Honorable Court may deem just and proper under the circumstances. DATED: MARCH 24, 1988 Americo Poliseno, Plaintiff By his attorney C AMY E. G ODB MATTHEW J. DUPUY ARDITO, SWEENEY, STUSSE, ROBERTSON & DUPUY, P.C. 25 MID -TECH DRIVE, SUITE C WEST YARMOUTH, MA 02673 737753433 TOWN OF YARMOUTH BOARD OF APPEALS' EXHIBIT A FILED WITH TOWN CLERK: HAR 4 WO Hearing DAte: 12/10/87 Petitioner: Americo Poliseno Petition No: 2493 60 Broadway C= West Yarmouth, MA 02673 DECISION The petitioner requested a special q p permit to allow: A. The change, extension and alteration of a pre — exifting Tianconforming use to remove the restriction allowing only periodic occupancy of the predrses; a d thus to allow the year round occupancy of the premises. Vi A B. Such other relief that the Board of Appeals deems meet and just. C. Waiver of strict compliance with the rules and regulations of the Board of Appeals where it may deem such appropriate. Property located at 60 Broadway, West Yarmouth, to and shown on Assessor's Map #12 parcel B176. Members of Board of Appeals present: David Oman, Leslie CAmpbell, Fritz Lindquist, Ron Schmidt, Richard Halverstadt. 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 that public notice of such hearing having been given by publication in The Register on 11/26/87 and 12/8/87, the hearing was opened and held on the date first above written. The following appeared in favor of the petition: Edward J. Sweeney, attorney for the petitioner; Mr. Poliseno; M. Stanley; Myrtle Morin, by letter. The following appeared in opposition: Planning Board. REASON FOR DECISION The petitioner is Declarant and owner of the Englewood Beach Condominiums. By decision of the Board of Appeals on September 12, 1987, in Petition #2227 the petitioner was granted a special permit to allow the change, alteration and extension of structure in accordance with petitioner's plans and of use of Phase Two of Englewood Beach Condomiums from twenty (20) motel units with a kitchen restaurant and lounge, to ten (10) condomium units and one (1) manager apartment. As noted in that decision, the Petitioner agreed that, "..., use and occupancy of the requested ten (10) dwelling units and manager apartment shall not occur until such time that: 1. Final Site Plan Review approval of submitted plans, or nonsubstantial modification thereof, has been obtained. 2. All required Board of Health approval have been obtained. 3. Occupancy permits have been issued by the Building Inspector with copies forwarded to the Board of Appeals. 4. No unit is to have more than two bedrooms...." #2493 Poliservi However, the Board of Appeals in said decision•also imposed the following additional condition. 05 With the exception of the managers Quarters which may be occupied year round, all other units shall be closed and not occupied for the months beginning, January 10, February and March. This restriction shall be included in all unit deeds." The Petitioner seeks to remove the restriction allowing only periodic occupancy of the premises; and thus to allow the year round occupancy of the premises. The Petitioner feels that the above restriction requiring the units to be closed for several months of every year has prevented any sales and that without relief from the Board, the Petitioner or a successor would be required to seek, out of financial necessity, relief allowing the facility to return to a motel. There was a lengthy public hearing. The Planing Board was opposed and asked this Board to follow its past Policy of limiting densely developed properties such as this to seasonal use. The Board finds that 18 units on a 1.4 acre parcel is a very high density over what is allowed under the bylaw. Further, since the original decision the minimum lot sizes in this zoning district has gone from 15;000 to 25,000 squre feet. The Board is of the opinion that the conditions placed on petition #2227 were necessary to serve'the purpose of the bylaw. The petition did not carry the requisite 4 affirmative votes. Therefore, the petition is denied. Members voting to approve: David Oman, Leslie Campbell. Members voting in opposition: Richard Halverstadt, Ron Schmidt, Fritz Lindquist. Fritz Lind uist Clerk A True Copy Attest: z r, ape E. Hastings Assistant Town Clerk/ reasurer'. Town of Yarmouth - ! Pages 1 & 2 D c BOARD OF APPEALS EXHIBIT B Vy Filed with Town Clerk i �tT'" RE('7P,i �'_�'� nr� Hearing Date: 9/12 Petitioner:' Americo Poliseno 1� 1 60 Broadway '85 OPT 25 P 239 Petition No: 7.227 West Yarmouth, MA 02673 DECISION TOW14 CLERK ?� Hi�LASURER The petitioner has appealed for relief, in the form of a special permit, in accordance with Yarmouth Zoning Bylaw 104.3.2, and Massachusetts General. Laws, Chapter 40A, Section 6, as amended, To Allow: the change, alteration and extension of structure in accordance with petitioners plans and of use of phase two of Englewood Beach Condominiu from twenty (20) motel units, with a kitchen restaurant and lounge, to ten (10) condominium dwelling units an6 one (1) manager apartment; said structu are located as shown on Yarmouth Assessor's Map#12, Lot B176. Members of Board of Appeals Present: Donald Henderson, David Oman, Judy Sullivan, Leslie Campbell, Fritz Lindquist. 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 that public notice of such hearing having been,given by publication in The Register on 8/29/85 and 9/5/85, the hearing was opened and held on the date first above written. The Following appeared in favor of the petition: Mr. Cowgill; Atty E.J. Sweeney; Mr. Lalley; R. Crowell; M. Corey; A. Luke. The following appeared in opposition: Planning Board. REASONS FOR THE DECISION: Facts: The petitioner is the declarant of the Englewood Beach Condominiums pursuant to a Master Deed dated October 17, 1980 and recorded October 31, 1980 at the Barnstable County Registry of Deeds in Book 3183 Page 193, together with the bylaws of the Englewood Beach Condominiums Association recorded in Book 3183 Page 216. Condominium site plans and floor plans were recorded in plan book 347 pages 36, 37, and 38. All of said documents and plans were submitted to the Board. The above referenced condominium documents and plans were recorded prior to the enactment of the Yarmouth Condominium Conversion bylaw, Section 104.4 in 1982. In said condominium documents the declarant declared Phase I of said condo- minium and reserved the right to later declare Phase II of said condominil�. The declarant now intends to declare said Phase II in accordance with the first Amendment to Master Deed of Englewood Beach Condominiums, submitted to the Board, and in accordance with the petitioners plans as filed with the Board. Inasmuch as Englewood Beach Condominium is a condominium predating the Yarmouth Condominium Conversion Zoning bylaw section 104.4, no relief is required thereunder. :riteria for special permit: Zoning bylaw section 104.3.2 provides in ff-Cine'lit Dart that pre- 'xisting non conforming structures and uses of the type in question may re extended, altered or changed in use on s ci oard )f Appeals if the Board of Appeals finds that s�uch��ex�tens5ion,n altetile ration )r change will not be substantially more detrimental t.o �he neighborhood .Ilan the existing nonconforming use. I�,AI; tf r��•�:�'. g TOWN CLUK & I r"'LASURL11 Zoning bylaw §103.3.3: Special permits shall not be granted unless the •pplicant demonstrates that no undue nuisance, hazard or congestion will Pe created and that there will be no substantial harm to the established ,r future character of the neighborhood or town. . Chapter 40A: Special permits may be issued only for uses which are in armony with the general purpose and intent of the ordinance or bylaw,and hall be subject to general or specific provisions set forth therein; and uch permits may also impose conditions, safeguards and limitations on ime or use. . The above criteria are satisfied in that: I. The change in use is froin a non allowed motel use to a residential use. This is a residential atea. 2. Such a change in use would not be detrimental to the neighborhood, but would enhance the neighborhood. The Board notes the large number of nearby residents who appeared in person or by letter or by petition and expressed favorable sentiments. 3. The abandonment of twenty seasonal motel units, restaurant with kitchen and cocktail lounge and their replacement with ten dwelling units and one manager apartment will lessen congestion in the neighborhood, especially during the tourist season. 4. No nuisance or hazard will be created in that intensity of use is being lessened. 5. The established and future character of the neighborhood and the town will be enhanced in that: a. The structure will be physically upgraded and modernized. b. Parking and traffic flow will be redesigned and improved. c. The septic system will be substantially upgraded. d. Water use will be reduced. 6. Section 100 of the Yarmouth Zoning Bylaw states its purpose " The purpose of this bylaw is to promote the Health, safety, convenience and welfare of the inhabitants by dividing the town into districts and regulating the use and construction of buildings and premises therein." as follows: The proposed structural and site upgrades'do promote the health and safety of the inhabitants. Change from intense seasonal to moderate use over a longer season promotes the welfare and convenience of the neigh- borhood residents. Change of use from motel to residences brings the site more into harmony with the existing neighborhood. Again we note the favorable response from the neighborhood. - J - Conditions upon Grant of Relief The petitioner agrees that use and occupancy of the requested ten (10) dwelling units and manager apartment shall not occur until such time that: I. Final site plan review approval of submitted plans, or nonsubstantial modifications thereof, has been obtained. 2. All required Board of Health Approvals have been obtained. 3. Occupancy permits have been issued by the Building Inspector with copies fowarded to the Board of Appeals. 4. No unit is to have more than two bedrooms. 5. With the exception of the manager". quatters hich may be occ4ed year round, all other units shall be closed andw wnot occupied forpthe months ;begining—January '10., February', and March. This restriction shall be -included in"all'unit deeds. The Petitioner is hereby granted a Special Permit as requested, for the reasons cited herein, but subject to the conditions cited herein. Members voting Donald Henderson, David Oman, Jud Fritz Lindquist. All voted in favor of g'raritin Y'Sullivan, Leslie Campbell g the Petitioner's request. Therefore, the Petitioner's request for special permit is granted as above for all the above stated reasons.' No permit issued until 20 days from the date of filing the decision with the Town Clerk. A True Copy Attest: ane E. Hastings Assistant Town Cler /Treasurer Town of Yarmouth Pages 1 - 3 11"Ier R. Singer UlerV_------ ..4 0 Cd 7D C-j7,- r '.�l r_0 "! L�R ''q rn EXHIBIT C 100. PURPOSE The purpose of this bylaw is to promote the health, safety, convenience and welfare of the inhabitants by dividing the town into districts and regulating the use and construction of buildings and premises therein. 103.2.2 Criteria. Special permits shall not be granted unless the applicant demonstrates that no undue nuisance, hazard or congestion will be created and that there will be no substantial harm to the established or future character of the neighborhood or town. 103.2.4 Conditions. Special permits may be granted with such reasonable conditions, regulations or limitations as the special permit granting authority may deem necessary to serve the purpose of this bylaw. 104.3.2 Change, Extension, or Alteration. As provided in G.L. ch. 40A sec. 6, as amended, a nonconforming single or two-family dwelling may be altered or extended, provided that the building inspector determines that doing so does not increase the nonconforming nature of said structure. Other pre-existing nonconforming structures or uses may be extended, altered or changed in use on special permit from the Board of Appeals if the Board of Appeals finds that such extension, alteration or change will not be substantially more detrimental to the neighborhood than the existing nonconforming use. Once changed to a nonconforming use, no structure or land shall be permitted to revert to a nonconforming use. For the purpose of this section, the change of a seasonal use to a year-round use shall be deemed an extension of use. SWEENEY. tOBERTSON. 'UY. P.C. =Y$ AT LAW 40UTH. MASS. i673 'i 775.3433 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS SUPERIOR COURT DOCKET NO. AMERICO POLISENO, AS OWNER OF ENGLEWOOD BEACH CONDOMINIUM o V . rr' +� 71 DAVID OMAN, LESLIE CAMPBELL x " FRITZ LINDQUIST, RONALD SCHMIDT,�" a RICHARD HALVERSTADT, DAVID REID,l-'' = TOM GEORGE, AS THEY CONSTITUTE THE w f BOARD OF APPEALS OF THE TOWN OF 4ARMOWH AND JUDITH A. SULLIVAN AND DONALD HENDERSON, MEMBERS -AS OF SEPTEMBER 1985 NOTICE OF APPEAL TO THE SUPERIOR COURT Notice is hereby given that Americo Poliseno, as owner of Englewood Beach Condominium, plaintiff, hereby appeals from the decisions rendered by the Town of Yarmouth Board of Appeals, dated October 25, 1985 and March 4, 1988 to the Barnstable Superior Court, Barnstable, Massachusetts. Americo Poliseno, As Owner of Englewood Beach Condominium Plaintiff, By his attorneys, AMY E. GO DBLATT, ESQUIRE MATTHEW J. DUPUY ARDITO, SWEENEY, STUSSE, ROBERTSON & DUPUY, P.C. 25 MID -TECH DRIVE, SUITE C WEST YARMOUTH, MA 02673 DATED: MARCH 24, 1988 (617) 775-3433 TO. SWEENEY. E. ROBERTSON. DUPUY. P.C. )RNEYS AT LAW MRMOUTH. MASS. 02673 t617; 776.3433 BARNSTABLE, SS COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT DOCKET N0. �e AMERICO POLISENO, AS OWNER OF ENGLEWOOD BEACH CONDOMINIUM a V. 5 a: od r rs� DAVID OMAN, LESLIE CAMPBELL FRITZ LINDQUIST, RONALD SCHMIDT,P- RICHARD HALVERSTADT, DAVID REID,:-:-�4�- TOM GEORGE, AS THEY CONSTITUTE TYIE BOARD OF APPEALS OF THE TOWN OF `YARMOP'TH AND JUDITH A. SULLIVAN AND DONALD' o. HENDERSON, MEMBERS AS OF SEPTEMBER 1985 AFFIDAVIT OF NOTICE ?7 I, Amy E. Goodblatt, attorney for the plaintiff, hereby certify that a Notice of Appeal and a copy of the Cover Sheet, Complaint, with Exhibits attached, were served to the defendants this date, within the 14-day period allowed by law and that a copy of said Notice of Appeal and Complaint with Exhibits was hand delivered to the Town Clerk of the Town of Yarmouth and the following persons: a. David Oman of 12 Whittier Place, West Yarmouth, Massachusetts; b. Leslie Campbell of 909 Route 28, South Yarmouth, Massachusetts; C. Fritz Lindquist, Pleasant Street, Bass River, Massachusetts; d. Ronald Schmidt, 40 Arbutus Road, West Yarmouth, Massachusetts; e. Richard Halverstadt, 381 Main Street, Yarmouth Port, Massachusetts; f. David Reid, Esquire, 292 Route 28, South Yarmouth, Massachusetts; g. Thomas George, Esquire, 66 Main Street, Yarmouth Port, Massachusetts; h. Judith Sullivan, 213 Main Street, South Yarmouth, Massachusetts; and SWEENEY, tOt3ERTSON. 'UY. P.G. =YS AT LAW /OUTH. MASS, t673 t '1 775.3433 i. Donald Henderson, Esquire, 776 Main Street, Hyannis, Massachusetts; j. John Creney, Esquire, Town Counsel, 86 Willow Street, Yarmouth, Massachusetts DATED: MARCH 24, 1988 O. SWEENEY, _, ROBERTSON. 1UPUY, P.C. RNEYS AT LAW ARMOUTH, MASS. 02673 Americo Poliseno As Owner of Englewood Beach Condominium, Plaintiff By his attorneys, AMY E. GOODBLATT, ESQUIRE MATTHEW J. DUPUY .ARDITO, SWEENEY, STUSSE, ROBERTSON & DUPUY, P.C. 25 MID -TECH DRIVE, SUITE C WEST YARMOUTH, MA 02673 (617) 775-3433 e -„ r Jam" ills ; ■ C_ kI 6171 776.3I33