HomeMy WebLinkAboutComplaint/documents 9/30/21TOW
1146 Route 28
508-398-223
Office of
OUTH
i5)umissioner
th, MA 02664
08-398-0836
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COMPLAINT FORM
RE.''D
SEEP 3 0 2021
BUILDING DE ' 1k7-MENT
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Date: 9/29/2021
Type of Complaint: Building Zoning X General
This is a formal request for enforcement of an alleged violation. The following are facts in the case:
Property Address of Alleged Violation: 181 South Street, Unit 2, South Yarmouth
Property Owners Name (s): Bahige Asaker
Property Owners Mailing Address: 1020 Pleasant Street, Brockton, Massachusetts 02301
Description of Complaint: Please see attached correspondence.
Date (s) of Alleged Violation (s): Ongoing (building permit apparently issued 5/21/2021 and recently exercised)
Name (s) of Person (s): Bahige Asaker
The following information is required. Failure to provide your name, address,
and telephone number will result in the Inspector of Buildings/Zoning
Enforcement Officer to process the complaint at his/her discretion. (PLEASE
PRINT)
Complainant Name: Kimberly A. Bielan, Esq. on behalf of Lisbeth N. Kamborian, individually and as Trustee of the LNK Condominium Trust
Address of Complainant: 859 Willard Street, Suite 440, Quincy, Massachusetts 02169
Telephone Number: 781-817-4900 Email Address: kbielan(&Iawmtm.com
Preferred Method of Contact (check one): Telephone: Email: x
I am basing my allegations on the above facts. I understand that as the complainant, in the event the Building
Commissioner is personally unable to bring the matter in to compliance, I may be required to attend legal
proceedings to enforce the regulation referenced above in a court of law. Pursuant to the above allegations I am
requesting an investigation and enforcement if applicable.
r
Signature of Complainant:
I Prefer to Remain Anonymous: [ ] (check box)
MORIARTY TROYER & MALLOY LLC
J�VAN
•
ATTORNEYS AT LAW
Kimberly A. Bielan
Direct Dial: (781) 817-4607
kbielan@lawmtm.com
Admitted in MA & RI
September 29, 2021
Via Email (mgrylls@yarmouth. ina. its)
and Federal Express Overnight
Mark Grylls
Director of Inspectional Services/Building Commissioner
Yarmouth Town Hall
1146 Route 28
South Yarmouth, MA 02664
Re: Request for Zoning Enforcement
181 South Street (Unit 2), South Yarmouth, Massachusetts 02664
Dear Mr. Grylls:
Please be advised this office represents Lisbeth N. Kamborian, individually and as
Trustee of the LNK Condominium Trust ("Kamborian"). Kamborian owns and resides at 180
South Street, which is improved with a single-family dwelling, and Kamborian also owns 177
South Street (Unit 3), which is improved with a wood -frame garage and is part of the LNK
Condominium ("Condominium").
Pursuant to G.L. c. 40A, § 7 and Yarmouth Zoning Bylaw ("Zoning Bylaw") § 101.1,
this letter is submitted in supplement to the Complaint Form to notify you of certain zoning
violations on the property known and numbered as 181 South Street (Unit 2), including its
attendant exclusive use area ("Subject Property"), and to seek enforcement of the Zoning Bylaw.
Specifically, Kamborian seeks revocation of Building Permit No. 21-006774, which authorizes
the construction of a "14 x 17 storage shed" on the Subject Property ("Building Permit"), and an
order requiring the removal of same.
FACTUAL BACKGROUND
Kamborian and her family have had an ownership interest in the property that now
comprises the Condominium dating back to 1963. The property was formerly known and
numbered as 179, 180, 181 and 182 South Street and consisted of land on both the west and east
side of South Street. The property comprising the Condominium consists of approximately
25,910 sq. ft., which is nonconforming and undersized in the R-40 Zoning District in which it is
sited (requiring minimum lot size of 40,000 sq. ft.). The property is situated between South
Street and Run Pond in South Yarmouth, and it has historically been improved with two single-
family dwellings and a one-story, wood -frame garage.
One Adams Place, 859 Willard Street, Suite 440, Quincy, MA 02169 - 781-817-4900 - wwwlawmtm.com
Boston ■ Falmouth ■ Quincy
Mr. Grylls, Building Commissioner
September 29, 2021
Page 2 of 5
In or around 2012, Kamborian decided to submit the property to the provisions of G.L.
c. 183A, § 1 et seq. and create a condominium. To facilitate the submission of the land to
condominium status, Kamborian required two special permits from the Yarmouth Board of
Appeals. First, by Decision No. 43 89 filed with the Town Clerk on May 8, 2012, the Board of
Appeals granted a special permit pursuant to Zoning Bylaw § 104.3.5, "so as to allow for
recombining of two lots split in 2005 back to one lot." (A true and correct copy of Decision No.
4389 is appended hereto as Attachment A). In Decision No. 4389, the Board of Appeals
expressly found that "[t]here will be no change to the three existing structures or uses on the
land." (Att. A). Second, by Decision No. 4390 filed with the Town Clerk on May 8, 2012, the
Board of Appeals granted a special permit pursuant to Zoning Bylaw § 104.4.1 and Use
Regulation Schedule § 202.5, Al, Q2 and Q3, "so as to allow for the conversion of the two
existing dwellings and one detached garage building at the combined property to the
condominium form of ownership ...." (A true and correct copy of Decision No. 4390 is
appended hereto as Attachment B). In Decision No. 4390, the Board of Appeals expressly found
that "[t]here will be no change to the three existing structures or uses on the land." (Att. B).
Subsequent to obtaining the above -identified special permits, on April 9, 2015,
Kamborian submitted the property to condominium status by recording a Master Deed, which
created the Condominium that is comprised of three (3) units and their respective exclusive use
areas. (A true and correct copy of the Condominium Site Plan is appended hereto as Attachment
C). As is relevant to your review of this matter, the First Amended and Restated Master Deed of
LNK Condominium ("Master Deed"), recorded with the Barnstable County Registry of Deeds in
Book 29078, Page 4, provides as follows with respect to accessory structures:
Subject to the provisions set forth below, each owner or occupant shall have the right ...
to place customary outdoor furniture, but no buildings or structures, within their
Exclusive Use Area, except as for Units 1 and 2, respectively, for future attached decks or
accessory structures if allowed by and subject to the Yarmouth Zoning By -Law and all
other applicable laws, codes, rules and regulations.
(Master Deed, § 5(B)) (emphasis added). Thus, Kamborian recognizes that, pursuant to the
Master Deed, the owner of the Subject Property may construct an accessory structure within their
attendant exclusive use area, so long as it is in accordance with applicable provisions of the
Zoning Bylaw.
On May 17, 2016, Kamborian conveyed the Subject Property (i.e., Unit 2 of the
Condominium) to Bahige Asaker by Quitclaim Deed recorded with the Barnstable County
Registry of Deeds in Book 29656, Page 338. Asaker's deed expressly provides that it is
conveyed "subject to and with the benefit of the obligations, restrictions, rights and liabilities
contained in General Laws Chapter 183A, the aforesaid Master Deed and the LNK
Condominium Trust ...." (A true and correct copy of the Quitclaim Deed is appended hereto as
Attachment D). Subsequent to taking title to the Subject Property, Asaker has undertaken
certain renovations to Unit 2, including remodeling a bathroom, replacing kitchen cabinets, and
Mr. Grylls, Building Commissioner
September 29, 2021
Page 3 of 5
replacing a second floor balcony. Such work was undertaken pursuant to Building Permit No.
17-001366.
After observing construction activities on the Subject Property in or around September
2021, Kamborian inquired with the Yarmouth Building Department to ascertain whether any
permit had been issued for the site. Upon making such inquiry in September 2021, Kamborian
learned that, on or about May 21, 2021, Asaker was issued the Building Permit. Based upon
information accessible on the Yarmouth Building Department website, it appears that the
application for the Building Permit erroneously identifies that the Condominium is sited within
the R-25 Zoning District (requiring a minimum lot size of 25,000 sq. ft.).2 (A true and correct
copy of the application details available on the Building Department website are appended hereto
as Attachment E). Thus, the Building Permit application improperly suggests that the
Condominium property is compliant with the Zoning Bylaw, when it is actually undersized for
the R-40 Zoning District. Further, based upon observations made of the Subject Property, and
without means to confirm same, Kamborian is concerned that the accessory structure may be
constructed in violation of the dimensional regulations of the Zoning Bylaw, including but not
limited to within the front yard setback of thirty (30') feet, and the terms and provisions of the
Building Permit. As of the date of this submission, the accessory structure remains in a state of
construction, as shown in the photograph appended hereto as Attachment F.
ARGUMENT
The Building Permit was issued in violation of the Zoning Bylaw, as the Condominium
property is nonconforming and subject to special permit relief. Further, even if the accessory
structure was properly authorized, Kamborian is concerned that Asaker has undertaken to
construct it in a manner that fails to conform to the Zoning Bylaw's dimensional requirements
and the provisions of the Building Permit.
As an initial matter, Asaker is not entitled to the Building Permit in the absence of zoning
relief. As set forth herein, the Condominium property (of which Assaker's Subject Property is
only a portion) is nonconforming and undersized in the R-40 Zoning District. Section 104.3.2 of
1 Subsequent to the close out of said building permit, Asaker impermissibly enclosed the
area beneath the balcony to create an interior room. Upon information and belief, such work was
unauthorized by the Yarmouth Building Department. Additionally, it was in violation of the First
Amended and Restated LNK Condominium Trust, which requires Trustee consent to "exterior
structural addition, alteration or improvements" in and to Condominium units, including Unit 2.
2 The Yarmouth Building Department website also has certain other anomalies with
respect to the application for the Building Permit. Despite the fact it states that "the homeowner"
has submitted the application for Workers Compensation Insurance purposes, it identifies the
Applicant as "Madeline Laird." It also incorrectly identifies Asaker's address as 185 South Sea
Avenue, West Yarmouth, which address is associated with one Harry Laird III. Perhaps
uncoincidentally, the Laird property at 185 South Sea Avenue is located in the Town's R-25
Zoning District, which may explain the discrepancies on the face of the application.
Mr. Grylls, Building Commissioner
September 29, 2021
Page 4 of 5
the Zoning Bylaw, "Change, Extension or Alteration," provides, in relevant, part as follows
concerning nonconforming lots:
[L]awfully pre-existing single-family and two-family structures, and their accessory
structures, located on non -conforming lots, may be altered, extended or razed and
replaced ... .
(Zoning Bylaw, § 104.3.2(1)). It follows that preexisting structures (including accessory
structures) on nonconforming lots may be modified as of right so long as certain conditions are
satisfied, and, if said conditions are not satisfied, a special permit must be obtained from the
Board of Appeals. However, pursuant to the plain and unambiguous language set forth in
§ 104.3.2(1), the Zoning Bylaw does not permit the construction of new structures — such as the
accessory structure authorized by the Building Permit in this circumstance — on nonconforming
lots. As the accessory structure is a new structure and does not constitute an alteration, extension
or replacement of an existing accessory structure, it may not be constructed on the Subject
Property.
Additionally, and as identified herein, the Condominium project was authorized pursuant
to two special permits issued by the Board of Appeals. Each of those special permits (Decision
Nos. 4389 and 4390) expressly finds that "[t]here will be no change to the three existing
structures or uses on the land." (Att. A & B). Such findings are indicative of the Board's
understanding that the structures on the Condominium property would remain the same upon its
submission to the provisions of G.L. c. 183A. The Building Permit, thus, purports to authorize
the construction of a new accessory structure as of right and in contravention of such special
permits. As there are extant special permits controlling the construction and use of the structures
on the Condominium property, any modification to the structures — including upon the Subject
Property — cannot be undertaken as of right.
Further, even if the Building Permit was properly issued notwithstanding the fact the
Condominium property is nonconforming and there are special permits relating to the Subject
Property, Kamborian is concerned construction of the accessory structure is inconsistent with
applicable setbacks in the Zoning Bylaw and the dimensions authorized by the Building Permit.3
With respect to accessory structures less than 150 sq. ft. and single story, Zoning Bylaw
§ 203.5(E) provides as follows:
Side and rear yard setbacks for accessory buildings contained one hundred fifty (150)
square feet or less and single story, shall be six (6) feet in all districts, but in no case shall
3 Kamborian anticipates that Asaker will attempt to rely upon the preexisting
nonconforming front -yard setback of the Unit 3 structure in support of his position that he may
construct the accessory structure closer than the 30 ft. front -yard setback required under the
Zoning Bylaw. However, Asaker cannot rely upon such preexisting nonconformity as he is
constructing a new structure and is not altering, extending or replacing an existing structure. (See
Zoning Bylaw § 104.3.2(1)).
Mr. Grylls, Building Commissioner
September 29, 2021
Page 5 of 5
said accessory buildings be built closer than twelve (12) feet to any other building on an
adjacent parcel.
(Zoning Bylaw, § 203.5(E)). Not only would the accessory structure authorized by the Building
Permit not qualify for such reduced setbacks as it is 238 sq. ft., but the note to the Table of
Dimensional Regulations does not set forth a modification to the front -yard setback for accessory
structures in any event. Kamborian is concerned, based upon observations made of the Subject
Property, that the accessory structure is being constructed closer than 30 ft. to the front property
line on South Street.4 Additionally, the structure appears to be larger than 14 ft. by 17 ft., and
thus violative of the Building Permit. As Asaker appears to be constructing the accessory
structure in a manner violative of the dimensional regulations of the Zoning Bylaw and the terms
of the Building Permit, the Building Permit should be revoked, and he should be ordered to
remove the offending structure.5
CONCLUSION
For the foregoing reasons, Kamborian respectfully requests, in accordance with G.L. c.
40A, § 7 and Zoning Bylaw § 101.1, that you enforce the Zoning Bylaw, revoke the Building
Permit, and issue an order requiring Asaker to raze the accessory structure on the Subject
Property.
If this office can be of any assistance as you investigate and consider this request for
enforcement, please do not hesitate to contact me. We look forward to hearing from you.
Thank you for your time and consideration of this matter.
Sincerely,
Kimberly A. Bielan
cc: Lisbeth N. Kamborian
Bahige Asaker
4 Without undertaking further analysis, it is unclear whether the construction of the
accessory structure renders the Condominium property nonconforming (or more nonconforming)
with respect to any additional setback. Kamborian expressly reserves her right to advance
arguments to such effect.
5 Kamborian also notes that, while technically on the same lot as the Unit 3 structure, the
close proximity of the new accessory structure to her garage is contrary to the intent of the
Zoning Bylaw, which requires buildings to be at least twelve (12') feet apart. The close
proximity of the structures raises safety concerns, including but not limited to what may happen
in the event one structure catches fire.
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Bk 251656 P':go 3,3v *24451
05-•-17-2016 a 03 a 0BVP
MASSACHUSETTS STATE EXCISE TAX
BARNSTABLE COUNTY REGISTRY OF DEEDS
Date: 05-17-2016 a 03Z08am
CtI4: 1322 Doc_': 24451
Fee, $1,060.20 Cons; $3107000-00
BARNSTABLE COUNTY EXCISE TAX
QUITCLAIM DEED Date: 65i-17-2016Y& 03:03PO RY OF DEEDS
24451
{:t1Y• i.3..F
FPO$837.iiij Cons: $31E�,inl�}.iii_E
KNOW ALL MEN BY THESE PRESENTS that
LISBETH N. KAMBORIAN, individually
Being unmarried
of 180 South Street, South Yarmouth, MA 02664,
For consideration paid and in full consideration of THREE HUNDRED TEN THOUSAND &
001100 Dollars (S310,000A0),
grant to: BAHIGE ASAKER,
Individually,
of 1020 Pleasant Street, Brockton, MA 02301.
with QUITCLAIM COVENAATTS Unit 2 of the LNK CONDOMINIUM, (hereinafter, the
"Unit") created by a Master Deed dated May 5, 2014, and recorded with the Barnstable County
Registry of Deeds in Book 28791, Page 188, as Amended by First Amendment dated August 7,
2015, recorded in Book 29078, Page 4. Said Condominium is Iocated at 181 South Street, South
Yarmouth, Barnstable County, Massachusetts.
The Unit conveyed is further identified as containing approximately 1,200 square feet as shown
on "Condominium Site Plan prepared for LNK Condominium" recorded in plan Book 657,
Page36 and to which is affixed a verified statement in the form provided in G.L.C. 183A, Section
9.
The Unit is conveyed together with a 40% undivided fractional interest appertaining to said Unit
in the common areas and facilities of the LNIK Condominium, and together with the rights and
easements appurtenant to the Unit as set forth in said Master Deed, including the appurtenant
exclusive rights and easements in the areas adjoining the Unit.
This conveyance is made subject to and with the benefit of the obligations, restrictions, rights
and liabilities contained in General Laws Chapter 183A, the aforesaid Master Deed and the LNK
Condominium Trust, which trust is created pursuant to the Declaration of Trust of LNK
Condominium Trust, dated May 5, 2014, and recorded in the Barnstable County Registry of
Deeds in Book 28791, Page 206, as it has been amended by First Amendment of Declaration of
Trust dated August 7, 2015, and recorded in Book 29078, Page 22.
Property Address: 181 South Street, Unit 2, South Yarmouth, Massachusetts 02664
N
Bk 29656 Pg339 #24451
1, Lisbeth N. Kamborian, the Grantor named herein do hereby voluntarily release all my rights of
Homestead as set forth in M.G.L. Chapter 188, if any, and there are no other persons entitled to
any such rights
1
SIGNED under the pains and penalties of perjury this / 7 day of , 2016.
Lisbeth N. Kamborian
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss
On this day of , 2016, before me, the undersigned notary public,
personally appeared Lisbeth N. K mborian, and proved to me through satisfactory evidence of
identification, being (check whichever applies): ef;driver's license or other state or federal
governmental document bearing a photograph image, ❑ oath or affirmation of a credible witness
known to me who knows the above signatory, or ❑ my own personal knowledge of the identity
of the signatory, to be the persons whose name is signed above, and acknowledged to me that she
signed the foregoing instrument voluntarily for its stated purpose and who swore or affirmed to
me that the contents of this document are truthful and accurate to the best of her knowledge and
belief.
Subscribed to and sworn before me
1 ft t�U;,, 7 ,
-
Notary Public — Ili
My commission expires: / a IT11ce
BARNSTABLE REGISTRY OF DEEDS
John F. Meade, Register
Logged in as: Kimberly Bielan Collections(0) Reports (1) w Account Managem,
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Record BLD-21-006774: Add to coil
1 & 2 Family Dwelling
Record Status: Issued
Expiration Date: 11/21/2021
Record Info - Payments Custom Component
Work Location
181 South Street
c; r-1 i 1 ""
0
0
Record Details
Applicant: Project Description:
181 South Street -Alteration
LAIRD MADELINE Alteration -build 14 x 17 storage shed-(508-479-4448)
WEST YARMOUTH, MA. 02673
Mobile Phone:5084794448
dasaker@verizon.net
Owner:
AsakerBahige
185 SOUTH SEA AVE
WEST YARMOUTH MA 02673
-More Details
IJ Additional Information
Job Value($): Construction Type:
U Application Information
TYPE OF IMPROVEMENT
Alteration:
Yes
WORKERS COMPENSATION INSURANCE
Workers Compensation Insurance:
I am the homeowner
ESTIMATED CONSTRUCTION
Buildino:
7000.00
ADDITIONAL INFORMATION
Total Job Cost:
7000
BUILDING CHARACTERISTICS
Principle Type of Frame:
Wood
ZONING INFORMATION
Zoning District:
R-25
Total Land Area:
25000
BUILDING SETBACKS
Front yard required: 30
Side yard required: 15
Rear yard required: 20
I_I Application Information Table
SITE IMPACT REPORT
Type:
Zoning
Features Present:
Zoning: R-25 -- Maximum Building Coverage: 25 --
Minimum Frontage: 150 -- Minimum Lot Size: 25000 --
Maximum Lot Coverage: 25 -- Minimum Yard Front: 30 --
Minimum Yard Side: 15 -- Minimum Yard Rear: 20
Ordinances:
Residential
Type:
Wind Borne Debris Zone
Features Present:
Town: Yarmouth
Ordinances:
Your parcel is in a Wind Borne Debris Zone
O Parcel Information
Parcel Number:
Block:
017.95.1
95.1
Book:
Page:
2847
309
Parcel Area:
39204
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