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HomeMy WebLinkAboutLot inquiry/appeal paperwork .Y9R TOWN OF YARMOUTH BUILDING DEPARTMENT "C�MATTA �3E 1146 Route 28, South Yarmouth, MA 02664 508-398-2231 ext. 261 Fax 508-398-0836 September 13, 2002 Fuller, Rosenbreg, Palmer Beliveau, LLP Counselors At Law Mr. John P. Donohue 340 Main Street Suite 817 Worcester, MA 01608 RE: Black Thorne Way/Assessors' Map 31 Dear Mr. Donohue: This is to confirm our discussion of August 23, 2002 regarding my letter of August 8, 2002. The following issues were agreed upon: 1. Your client has selected lots 183 and 188 as the two (2) lots qualifying for protection pursuant to M.G.L. Chapter 40A, Section 6, (common lot protection). I concur; these lots are buildable for single-family use provided all other applicable zoning provisions such as setbacks, lot coverage, and building height are met. 2. It is understood that lots 184, 185 and 186 will be redefined, so as to create 2 conforming lots containing at least 25,000 square feet each and the requisite frontage. Once these two conforming lots are created, they would become buildable provided the proposed single- family structures meet all other applicable zoning requirements. Finally, I would suggest a final review of the recreation of lots 184, 185 and 186 once the plan has been developed. Sincerely, James D. Brandolini, C.B.O Building Commissioner cc; John Creney, Town Counsel David Reid, Chairman, Board of Appeals TOWN OF YARMOUTH 1__; y BUILDING DEPARTMENT cc, .A !ns 1146 Route 28, South Yarmouth, MA 02664 508-398-2231 ext. 261 Fax 508-398-0836 August 8, 2002 Mr. John P. Donahue, Attorney at Law 340 Main Street Suite 817 Worcester, MA 01608 RE: Black Thorne Way Dear Mr. Donohue: Reference is hereby made to your handwritten letter and lot inquiry forms of May 15, 2002 and your follow-up letter of July 9, 2002 concerning lots 183, 184, 185, 186 and 188 shown on assessors' map 31. You have suggested by citing Marinelli v Board of Appeals of Stoughton that three of the remaining five lots are protected. To further clarify this matter in a legal sense, I requested an opinion from Town Counsel, John C. Creney, of which, I believe you have received a copy. Based on his opinion and in consideration of the aforementioned court case I find that the owner of the property would be entitled to build on two (2) of the five lots. Building permits would be issued for the two lots chosen and applied for, provided all other applicable zoning and building code provisions are meet. However, it would be my suggestion that when selecting which of the two lots your client wishes to build on, that consideration be given to the provisions of zoning bylaw section 104.3.5, in light of possible future combination/reconfiguration of the other three lots. Very truly yours, • \‘ VO rn . Brandolini, C.B.O Building Commissioner cc: John C. Creney, Town Counsel David Reid, Chairman Board of Appeals FULLER, ROSENBERG, PALMER & BELIVEAU, LLP COUNSELLORS AT LAW ALBERT E. FULLER 340 MAIN STREET-SUITE 817 JAMES C. CROWLEY,JR. KENNETH F. ROSENBERG WORCESTER, MASSACHUSETTS 01608 JOHN P. DONOHUE PETER A. PALMER — ANN F. SCANNELL THOMAS W. BELIVEAU TELEPHONE (508)755-5225 CYNTHIA A. WELTER ROBERT W. TOWLE TELECOPIER(508)757-1039 BETH A. BAGLEY TELECOPIER(508)751-5155 MARK C. DARLING RICHARD N. BRADLEY STEPHEN G. ANDERSON JAMES P. McKENNA WRITER'S DIRECT DIAL GEORGE E.CLANCY NUMBE14508) 751-5128 JOHN A. GIROUARD PAUL S. RAINVILLE JULIE B. RUSSELL MAUREEN K. McNALLY MARK W. MURPHY RENEE L.WHITENETT BRIAN F.WELSH August 27, 2002 PATRICK K. BURKE JOHN J. FINN GAIL W.TURNER Mr. James Brandolini Building Commissioner Town of Yarmouth Building Department 1146 Route 28 South Yarmouth, MA 02664 Re: Black Thorne Way Dear Mr. Brandolini: Thank you for taking the time to meet and discuss my client's property at Black Thorne Way in West Yarmouth on Friday, August 23, 2002. As per our discussion at that meeting, please confirm in writing that Lots numbered 183 and 188 from Assessor's Map 31 are each buildable lots for single family residences. In addition, please confirm in writing our mutual understanding that the remaining three vacant lots on Black Thorne Way (Lots numbered 184, 185, and 186 from Assessor's Map 31) contain sufficient aggregate lot size and frontage to be recombined into two buildable lots in conformance with current minimum requirements of the zoning bylaws of the Town of Yarmouth. Thank you once again for taking the time to address these concerns. Sincerely, J 41 P. Donohue JPD/kln V},P 1111 AUG 2 9 2002 By Commonwealth of Massachusetts County of Barnstable The Superior Court CIVIL DOCKET# BACV2000-00382 Robert J. Donohue Ic�� �-G vs r \JQ cue, Board of Appeals of Yarmouth CORRECTED JUDGMENT AFTER RESCRIPT This action was appealed to the Appeals Court for the Commonwealth, the issues having been duly heard and the Appeals Court having duly issued a rescript affirming the Judgment of the Superior Court, It is ORDERED and ADJUDGED: 1. that the decision of the Yarmouth Board of Appeals, dated March 9, 2000, did not exceed its authority, and that no modification of it is required; is Affirmed and; 2. that the Clerk of this Court within thirty days after entry of this judgment shall send copies thereof to the Board of Appeals, Building Commissioner, and the Clerk of the town of Yarmouth. JUDGMENT after rescript: AFFIRMED (AP 11/12/2002) Dated at Barnstable, Massachusetts this 6th day of February, 2003. Scott W. Nickerson, Clerk of the Courts Entered on the docket: By PCL�� r�'? (.126, ,. March 18, 2003 JAssistant Clerk A true copy,Attest: ) Clark cvdjudresc.wpd 315539 judrescr bearseli 4 ,,Y _ TOWN OF YARMOUTH • O `l4, , BOARD OF APPEALS kII O\\ DECISION FILED WITH TOWN CLERK: June 21, 2000 PETITION NO: #3610 HEARING DATE: June 8, 2000 PETITIONER: Robert J. Donohue PROPERTY: Black Thorne Way, South Yarmouth Map: 31, Parcels: 183-186 & 188 Zoning District: R25 MEMBERS PRESENT AND VOTING: James Robertson, Vice Chairman, John Richards, Joseph Sarnosky, Diane Moudouris, Richard St. George. 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 to the public by posting notice of the hearing and published in The Register, the hearing was opened and held on the date stated above. The petitioner was represented by Attorney John P. Donohue. The petitioner seeks to overturn the decision of the Building Commissioner, wherein he declined to rule that the lots in question were buildable non-conforming lots. The lots, #183, #184, #185, #186, & #188, on Assessor's Map 31, are all owned by the petitioner, and have been in his ownership since prior to their creation by a subdivision in 1985. Lot 187, also owned by the petitioner, is improved with a single family home, while the others remain vacant. Each lot contains at least 15,000 square feet, the zoning requirement at the time of the subdivision, but none contain 25,000 square feet, the current requirement for the locus. The Building Commissioner has determined that the lots do not meet the statutory or bylaw exceptions for vacant lots (§104.3.4), because they were in common ownership at the time they became non-conforming, and at the time their subdivision freeze expired, and remain in common ownership at this time. Further, since all of the lots are abutting (each other), they do not satisfy the limitations of§104.3.4 (5). The petitioner contended that the Building Commissioner is in error in his conclusion that the lots are abutting "more than two" lots in common ownership. He contended that each lot abuts two, but not more than two other commonly owned lots. Therefore, each lot qualifies as exempt under §104.3.4 (5). The Board disagrees with the petitioners interpretation. Section 104.3.4 (5) is a special exemption, over and above that of C40A §6, which by its terms only applies if that lot in question -1- "was not held in common ownership with more than two abutting lots as of June 3, 1996." If the petitioners theory were correct, a subdivision, having single rows of house lots on either side of a street, would all be exempt regardless of the number of lots. This is not the intention of this provision or its limitations. As of June, 1996, the petitioner owned all of these lots, and each abuts the next. The petitioner has the ability to recombine the lots to make conforming lots, and must do so since even this generous grandfathering provision can not be used in this case. Accordingly, a motion was made by Mr. St. George, seconded by Mr. Richards, to dent the petition and uphold the decision of the Building Commissioner. The members voted in favor of the motion. The petition is therefore denied. No permit shall issue until 20 days from the filing of this decision with the Town Clerk. Appeals from this decision shall be made pursuant to MGL c40A section 17 and must be filed within 20 days after the filing of this notice/decision with the Town Clerk. David S. Reid, Clerk -2- Land Court Decisions-2001 9 LCR 441 FRED MARINELLI Deeds on November 18, 1996, in Book 11594, at Page 572, transferring Lots A and C on the 1991 ANR Plan ti th. of v. .becembe`r fealty Trust(Trust Deed);3 a letter dated December 1, 1998, from the Building Inspector denying a building permit BOARD OF APPEALS OF THE TOWN OF STOUGHTON, application for Lot C(Denial); a copy of the Decision; an attested /0.; acting through its Members DENNIS F. JOHNSON, copy of the By-law and zoning map; a record of the November 12. , ORLANDO D. DiGIAMPIETRO,ROBERT E.MULLEN, 1996 town meeting vote, by which it amended the By-law by • HERBERT MUSMON,STEVEN D.MITCHELL,and increasin the minimum lot size in an R-15 zoning district to 40,00 ALLAN R. KATZ square feet; a copy olthe Trust's declaration of trust,dated 21, 1994, recorded with the Bristol County Registry of Deeds on Misc. Case No. 255729 June 23,1994,in Book 6057,at page 258; two affidavits of Plaintiff November 1, 2001 Fred Marinelli; and an affidavit of Livio P. Marinelli. The Board Karyn Faith Scheier,Justice has submitted the following additional materials: affidavit of At- torney Kathleen M.O'Donnell,to the effect that the Trust's decla- ested Rights-Common Lot Exemption-More Liberal Local Grand- ration of trust is not on record at the Norfolk County Registry of fathering Rule-A dimensionally nonconforming residential lot Deeds; a portion of a transcript of Plaintiff's February 16, 2000 held in common with other lots at the time of a downzoning did not avoid zoning rules applicable to lots held in common where a transfer was deposition; a copy of the purchase and sale agreement between made.but not recorded,before the amendments became effective,but Fred Marinelli(as buyer)and the Trust(as seller); and a May 5, the lot in question was effectively grandfathered under the five-year 1998 letter from Livio P. Marinelli to the Stoughton Board of common-lot rule. Selectmen. Both sides submitted memoranda and a hearing was held on March 13,2000. This court finds that there are no material DECISION GRANTING PLAINTIFF'S MOTION FOR facts in dispute and that summary judgment may be granted in favor SUMMARY JUDGMENT of Plaintiff,based on the following facts established by the record: n this action brought pursuant to G. L. c. 40A, § 17, Plaintiff 1. Lot C,which has an area of 25,095 square feet,is shown on the appeals a decision of the Stoughton Zoning Board of Appeals 1991 ANR Plan. At the time of endorsement ofthe 1991 ANR Plan, (Board) upholding the Stoughton Building Inspector's denial all the land shown on the plan was owned by Livio P. Marinelli, of a building permit to construct a single-family dwelling. Plaintiff and the minimum lot size requirement in the R-15 zoning district, sought a permit to build on a parcel located on Woodpecker Road in which the lots are located, was 25,000 square feet. Lot C (Lot C).I The Building Inspector denied the permit,finding that complied with the By-law at the time of endorsement of the 1991 Lot C lacks the minimum lot size (40,000 square feet) that is ANR Plan. required by the Stoughton Zoning By-law (By-law) in order to 2 On March 26, 1996,Plaintiff entered into a purchase and sale construct a single family residence in an R-15 Zoning District. agreement to�urc ase Lot C from the Trustees of December Realty • Plaintiff appealed to the Board,which upheld the Building Inspec- Trust (Trust). Under the agreement, Plamtifs obligation to pus tor's action by decision dated March 19,1999(Decision). On April chase Lot C is contingent upon his ability to obtain a building permit 8, 1999,Plaintiff filed the instant appeal,and subsequently moved to construct a single-family residence thereon. _ for summary judgment. Essentially,Plaintiff maintains that all lots shown on a certain plan endorsed by the Stoughton Planning Board 3. On November 12, 1996,the By-law was amended to increase p t to G. L.c.41, § 81P,enjoy grandfather protection under the minimum lot area in R-15 zoning districts to 40,000 square feet � (zoning change). Six days later,on November 18, 1996,the Trust th y-law�trrd may be built upon for residential purposes�. The Board takes the position that none of the lots are buildable. While became the owner of record oftLotZ.,_When the I rus�t�)eed was this court does not agree with Plaintiff's position that all lots are record. buildable, the current appeal before the court is resolved in Plain- 4. Although not recorded until after the zoning change,the Trust tiff's favor,as it involves only Lot C,which is buildable under both D;gd bears the date of February 17, 1996, which predate� s die. the B - =and G.L.c.40A(the Zoning Act)._~ zoning change. The Trust Deed, in which the Trust is the buyer, • also predates by several weeks the March 26, 1999 date of the The summary judgment record consists of the following submis- purchase and sale agreement,in which the Trust is the seller. sions by Plaintiff: a copy of a November 14, 1991 plan of land 5. On August 25, 1998,Plaintiff applied for a building permit to showing six lots, lettered A through F, bearing the endorsement construct a single-family residence on Lot C. On December 1, "Approval Under the Subdivision Control Law Not Required", 1998,the Building Inspector denied Plaintiff's application and sent recorded as Plan no. 144 of 1995,on March 13, 1995 (1991 ANR the Denial to Plaintiff. Plan); copy of a quitclaim deed of Livio P. Marinelli, dated February 17, 1996,recorded with the Norfolk County Registry of • * • I.Plaintiff is the purchaser under a purchase and sale agr ,rrent relating to Lot C. 3. Unless otherwise noted, all recording references are to the Norfolk County Registry of Deeds. - 2.There is some confusion on the record as to whether the 1991 AN R Plan created v / lots A-F or only lots A-D,but the resolution of the question is not material. 4.Lots E and F were subsequently sold. .�/ ��` °(/`f 7 r!"g..y, erl-rf- / . 34tvt"* ° I, 9 LCR 442 Land Court Reporter—Volume 9 Plaintiff argues that Lot C is entitled to grandfather protection under for which a building permit has been sought as of right,it must be both G. L. c. 40A, § 6 and Section IX.0 of the By-law. Section considered one of the three lots that will receive grandfather LX.C,entitled"Residential Lot of Record"provides the following: protection under the common ownership protection of G.L.c.40A, "Any lot lawfully laid out by plan or deed duly recorded or any § 6. Defendants respond by arguing that the common ownership lot shown on a plan endorsed by the Planning Board with the protecuo isiailable to Plaintiff because this provision of G.L. words 'approval under the Subdivision Control Law not 6, can only be interoreted annlvine to lots which required'or words of similar import,which complies at the time continue to be held in common ownership after the date of the of recording or such endorsement whichever is earlier with the zo c e. minimum area,frontage.width,and depth requirements,if any, of the zoning by-laws then in effect may be built on for Plaintiff cites Lee v.3oard of Appeals of Harwich, 11 Mass.App. residential use provided it has a minimum area of 5,000 square Ct. 148(1981),as support for his argument that Section IX.0 must feet with front footage minimum of 50 feet and is otherwise in be interpreted as more liberal than the Zoning Act, allowing for accordance with the provisions of Section 5A of the Zoning Act. ('slow section 6 in chapter 40A of the Zoning Act)" greater (and perpetual) grandfather protection for lots held in common ownership. In Lee, the court held that the grandfather G. L.c.40A, § 6 provides,in part,the following: provisions of the Harwich zoning by-law were more liberal than "Any increase in area, frontage, width, yard, or depth those set forth in the Zoning Act It so held,despite a provision in requirements of a zoning ordinance or by-law shall not apply to Section 4A of the zoning by-law that"whenever the zoning regu- a lot for single and two family residential use which at the time lations differ from those prescribed by any statute,by-law,or other of recording or endorsement,whichever occurs sooner,was not regulation,the stricter standard shall apply." Its reasoning centered held in common ownership with any adjoining land,conformed to then existing requirements and had less than the proposed on the intent of the town,as gleaned from the legislative history of requirement but at least five thousand square feet of area and the relevant by-law sections,which had specifically exempted lots fifty feet of frontage. . ." shown on ANR plans from the provisions of section SA of the Plaintiff maintains that Lot C was not held in common ownershipZoning Act(predecessor to Section 6). Plaintiff believes that in the at the time of the zoning change,as evidenced bv�he Trust Deed,.... tnstant case, this court should likewise elevate the provisions of �•` Section IX.0 that favor perpetual grandfathering over the Zoning which was executed prior to the zoning change.�, ' omt there i a dis ute as to ownership at the time of the zonin ch Act language requiring separate ownership. There is nothing in the record that supports this interpretation,as there was in Lee. Con- Board argues were e in common ownership because the Trust Deed was not recorded until six days after the date of the versely, Defendant interprets the Lee decision as supporting its zoning change. The Board submits that the most recent instrument position that the separate ownership requirement must be read into l of record determines whether lots are held in common or separate Section IX.C. In the Board's view,to hold otherwise would render ownership,thus the date of the Trust Deed relied upon by Plaintiff superfluous the provision that the lot be"otherwise in accordance is of no consequence. Plaintiff's second argument is based on the `� the provisions of Section[6]of the Zoning Act." This court language of By-law Section IX.C,which he argues is more liberal agrees with the Board's construction,and finds that the provisions than G.L.c.40A,§6,in that the ty-law section permits perpetual of Section IX.C,taken as whole,do not provide perpetual grandfa- andfathe� for lots held in common ownership, as well as thenng for lots held in common ownership. zr individual lots. Disagreeing with this view,the Board-argues that Having established that Section IX.0 protection requires separate the common ownership provision must be read into By-law Section ownership, the question becomes whether Lot C "at the time of IX.C, by virtue of the requirement that the lot be"otherwise in recording or endorsement,whichever occurs sooner,was not held accordance with[G.L.c.40A,§6]." in common ownership with any adjoining land." The Board ad- Finally, Plaintiff argues that even if all the lots on the 1991 ANR vances several arguments in support of the position that the lots Plan are 7m grari�thered in perpetuity under either the Zoning were held in common ownership at all relevant times. First, the 17 Board� despite the transfer of lots Aand C under the Trust es that Act or the By-law,at least three of the lots must be grandfathered under the remainder of oaraprdnh 4 of G L c, 40A, § 6, which Deed,Livio P.Marinelli nonetheless maintained control of the lots. Defendant cites DiStefano v. Stoug hton,f 36 Mass. App. Ct. 642 ....... (1994),for the r o 'l" "Any increase in area, frontage, width, yard or depth P � 4board"conveyance is not a valid means of avoiding common ownership where the facts show requirement of a zoning ordinance or by-law shall not apply for a period of five years from its effective date...to a lot for single that the grantor continues to maintain effective control of contigu- and two family residential use, provided the plan for such lot ous lots. There is nothing in the record that establishes checker- w recorded or endorsed and such lot was held in common boarding of the type defined in DiStefano. In fact, Plaintiff has ownership with an adjoining land and conformed to the existing submitted an affidavit of Livio P.Marinelli,in which he states that zoning requirements as of January first, nineteen hundred and he has no beneficial interest in lots Aand C,and the Board's position seventy-six . . . and provided further that the provisions of this I sentence shall not apply to more than three of such adjoining lots that he controls the lots is not substantiated. held in common ownership(common ownership protection)." In any event,a determination of Livio P.Marinelli's control or lack Accordingly, laintiff argues that at least three of the lots owned of thereof over the lots is not essential to the disposition of the instant record by Livio P. anne i on N oven r 1996, �uol...e motion. Under G. L. c. 40A, § 6,whether the lots were held in grandfathered for five years from that date. Advancing this argu- common ownership depends upon the most i um ment, Plaintiff contends that because Lot C is the first of the lots record prior to the zoning change. Adamowiczrecent V. Ipnsst wich,he, 395of Ste- 1 ' 43 'oy. ?. y ��l"As, , _ Land Court Decisions-2001 9 LCR 443 Mass. 757, 762 (1985); Preston v.Board of Appeals of Hull, 51 V.Douglas Enrico Mass. App. Ct. 236, 240 (2001),, In this case, the most recent Thomas O.Moriarty recorded instrument as of the date of the zoning change was the 45 Braintree Hill Office Park-Suite#7 1991 ANR Plan, recorded in 1995,on which all lots were held in Braintree,MA 02184 common ownership. While Plaintiff urges that the Trust Deed was Appears for Plaintiff executed and delivered prior to the zoning change,which the court accepts,there is no dispute that the deed was not recorded until after Barbara J.Saint Andre the zoning change. The importance of recording of a deed or plan Kopelman&Paige,P.C. in order to trigger grandfathering protection is self evident. Without Town Counsel such proof of action taken on a given date,there would be substan- 31 St.James Avenue tial room for mischief by and among parties to agreements and Boston,MA 02116 conveyances, and there would be no mechanism for providing Appears for Dennis F.Johnson et al. notice to the public of the status of a given property. See Dowling v. Board of Health of Chilmark, 28 Mass. App. Ct. 547 (1990). Therefore,since according to the rezistrv_rrcords Lot C.was held in common ywnership with a4j2ininA lots,as of the date of the, iggiagzjaggaz it climanot qualify for perpetual&randfatherprotec- non afforded lots held in separate ownership. Nonetheless,Plaintiff's position that at least three of the lots must (O71e111.14e. be 2.randfathered for five years pursuant to the second sentence of C.L.c.40A,§6,par.4,and the By-law is persuasive. Lot C meets all of the requirements of the statute,but it was held in common ownership with five other adjoining lots when it became non-con; forming as to the area requirement in 1996. While there is no appellate law interpreting the language limiting the protection to three adjoining lots,the statute must be interpreted according to its plain language.5 Al ou the statute states that its provisions shall not apply to more than three such jommg-tots,it does not state tharthe provisions shall not apply to ap�lan containing m�ore than 7nr_�e_ruch lots. G. L. c. 40A, 4 r(emphasis added). Thhu,.sii an ANRplan contains more than three lots,once three lots on the lup _ have received the bene t of the common ownership protection,no additional lots on the plan will be eligible for protection under ecuo 6 Lot is a us of s own on a 1991 an or which a building permit has been requested as of right,advancing the common ownership protection.6 Therefore,it remains eligible for protection under the statute. Finally, there is no merit to the Board's contention that the provisions of the common ownership protection were meant to apply only if the lots remain in common ownership. Such an interpretation of the common ownership protection would prevent owners from conveying buildable lots, and would require them to develop the lots themselves. For the above reasons, summary judgment shall issue in favor of Plaintiff; the decision of the Board is annulled; and the case will be remanded to the Board for action consistent with this decision. 5.This court's decision in Lin v.Jones,5 LCR 118(1997)was cited as supporting 6.Sometime in October, 1998,the owner of Lots E and F obtained variances to the claim that a plan showing more than three lots is not eligible for common peanit building cm the two lots.The substance of the variance decisions isnot before ownership protection under§6. Although this court did cite that fact as one of the this court. factors that rendered unbuildable the lot in question,that fact was not dispositive because the lot in question did not otherwise comply with the local by-law. The issue raised by Plaintiff here was not raised and pressed in the Lin case,and this court's view with respect to the applicability of the relevant provisions of the common ownership protection is more accurately set forth above. JOHN P DONOHUE ATTORNEY AT LAW FULLER, ROSENBERG, PALMER & BELIVEAU 340 MAIN STREET SUITE 817 FAx 508-757-1039 WORCEBTER, MA 01808 TELEPHONE 508-751-5128 • • • • sr 7 cam ?. 1gi- 4,4"t /374,,,16/but' Co o Re- 8(4 c -ro.,c w.5i y - �r4ssE's5 u/'S 741( �1 ! � /'1/ l3 %--r L("f c-`as<9 .4/ f_I 7 re. ,4r 1/"4"). `' ��f _ `�- f�.o c...� ge1,„.s fs 4 /a xi- /F i /t'Y IMMO MOP per C/ fo si ,o� /e y' .?. - , .o ._ _ 1( cam,,:�,• ,•FN 71-e sysset ------- .___.__--------.. .r 'p"F`) `mac l�isj `j��/r �'� J . ' lent ��..�� cv �'u9't iese_ CC)r► 4C fi deg ue-1 f ��.Ks ..Cec ,•0 aX 71..� f /f6 ,�...� e �,��.�.�... 'o5 .� y Life-& 74 O 14 Si. 4 .4-:3 "et>..r(-4-- 74. e- Ie 00"0-0 f mil" ,,/e- 4C.f A- ✓s c efaCAVC — — 6e ly the- CAJC X0e..) 7/i6 d,s /k t ler,J 1 5etv/`()i" / 4i / /O�S f( �. P .j_. 4--t/ /Per e✓. '•••*. "efee ,, 42,..4-4//c r ve. 6‘/ 'j 61-61 Cl/V- 1) 4r ,Iva. ‘,./0a42/ j_C CL.r 747-e— -^,-- de;cre-"filiv A / /4014 / /oK /1 IC -4-4 ig, 44174C,-4.0*:c. C /6' Cie-' '• /44'74- 74. 11 Aw"— /ois /ey /if / (f, yo,J Page 1of1 Brandolini, Jim From: D S Reid [dsreid@capecod.net] Sent: Monday, December 17, 2001 10:46 AM To: LaFrance, Rhonda; Richard Neitz; Sean Igoe; Joe Sarnosky; Dianne Moudouris; Dick St. George; John Richards; Doug Campbell; Bob Reed Cc: Brandolini, Jim; LaFrance, Rhonda Subject: Donohue Appeal I have received an inquiry from Attorney Creney about this appeal. You may recall that it involves 6 lots on a private way known as Black Thorne Way,the first right off of South Sea Ave. heading south from 28. All six are in common ownership. One has a house on it. The owner contends that they all qualify for protection under 104.3.4(5). We ruled that they did not, because that restricts itself to situations were a lot does not abut more than two other lots in common ownership. He argued that no lot on the street abuts more than two other lots ( since they are essentially in a row, around a cul-de- sac). We were sustained in superior court, but the owner has appealed to the Appeals Court. In August the owner offered to settle the case, by combining the three lots on the south into two lots, and leaving the northerly side lots intact. This would result in 5 lots. The bylaw would allow 4 lots, the plan shows 6, they want to settle for 5. I thought we went over this at the time ( last august) but we apparently did not respond to Atty Creney. Would you like to place this on our next available agenda for discussion( in executive session) or does everyone already have their answer from that earlier discussion? D S Reid 12/18/01 NOV-14-2002 13:39 ATTY JOHN CRENEY 15083621125 P.01 • TELECOPY COVER SHEET John C. Creney P.C. Attorney at Law 86 Willow Street Yarmouth Port Massachusetts 02675 If there is a problem with transmission or if all pages arc not received,please call 508 362-1122 for retransmission. Fax 508 362-1125 • TO: James D. Brandolini FA.X#: 508 398-0836 COMPANY: Town of Yarmouth FROM: John C. Creney DATE: November 14, 2002 RE: Town of Yarmouth with Donohue Number of pages including this cover page: 4 This message is intended only for the use of the individual or entity to which it is addressed, and may contain information that is PRIVILEGED, CONFIDENTIAL and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you arc hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone, and return the original to us by mail without making a copy.Thank you. Comments: The Appeals Court has affirmed the decision of the Superior Court, which in turn affirmed the decision of the Board of Appeals. A copy of the memorandum of the Appeals Court is transmitted. Cc: David S. Reid, Esq. NOV 1 2002 �v NOV-14-2002 13:40 ATTY JOHN CRENEY 15083621125 P.02 COMMONWEALTH OF MASSACHUSErTS yy�� APPEALS COURT O L�gMY" CLERK'S OFFICE 1500 NHw COURT HOUSE BosToN, ]VIASSACHUSETTS 02108 (617) 725-8106 B Y:.-- . November 12 , 2002 John C. Creney, Esquire 86 Willow St . Yarmouth Port, MA 02675 RE : No . 2001-P-0528 ROBERT J. DONOHUE vs . BD. OF APPEALS YARMOUTH NOTICE OF DOCKET ENTRY Please take note that on November 12 , 2002 , the following entry was made on the docket of the above-referenced case: Decision: Rule 1 : 28 (J CW KF) . Judgment affirmed. *Notice . (See image on file . ) Very truly yours, The Clerk' s Office Dated: November 12, 2002 To : John P. Donohue, Esquire John C. Creney, Esquire NOV-14-2002 13:40 ATTY JOHN CRENEY 15083621125 P.03 Commonwealth of Massachusetts • Appeals Court for the Commonwealth At Boston, In the case no. 01-P-528 ROBERT J. DONOHUE vs. BOARD OP APPEALS OF YARMOUTH. Pending in the Superior Court for the County of Barnstable Ordered, that the following entry be made in the docket: Judgment affirmed. By the Court, . . ,Clerk T h3 original of!nc within rescript Ni11 isSU®In�'uG oquise,pursuant Date November 12 , 2002 . tc)KR.A,P,23 APPEALS COURT NOV-14-2002 13:40 ATTY JOHN CRENEY 15083621125 P.04 COMMONWEALTH OF MASSACHUSETTS APPEALS COURT O1-P-528 ROBERT J. DONOHUE vs . BOARD OF APPEALS OF YARMOUTH. MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 For the reasons stated in the Superior. Court ' s memorandum of decision and order on plaintiff ' s motion for summary judgment, dated December 19, 2000, we affirm. Judgment affirmed. By the Court (Jacobs, Cowin, & Kafker, JJ. ) , Clerk\ Entered: November 12, 2002 . - -.00' -•••00,144w. ..„--- ----- --' _ - ...----------:4_. 4------ 0-) _ /r Y / 2 .., _ , e-- _ II . - - , 0 -—-,..--r-- 4"->.-e-c4_,,c ___7 ,•(- -- 2---<-7----6e _/(e...---4- . N &a0K5473 HGE 078 9 051 Date December 17 , 1986 PARTIAL RELEASE OF PLANNING !WARD Plan No. 2635 Reference is hcrrin made to ► , ngre en►cnt and covenant b N.wecn the Planning Board in and for the Town of Yarmouth and Robert J. Donohue of Yarmouth , subdividers of land in Yarmouth located northwest of South Sea Avenue Plan of Land in W. Yarmouth, MA, as shown on a subdivision plan entitled for Robert, ,Donohue dated 2/21/8 5 and recorded in the Registry of Deeds. The Planning Board hereby releases all conditions of approval imposed by the above agreement and covenant on Lots 1 through . 6 as they apply to Section 6, Subsections 4 through 6 of the Yarmouth Planning Board Regulations. Barnstable Plan Book No. � -3 Page No. 93 as recorded with the Barnstable Registry of Deeds. Chairman, PPlanning Board COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. Date 2C� °f1.../7..1. Then personally appeared the above mentioned .Rterila(.4_("` l( "r , Chairman of the Planning Board and acknowledged the foregoing instrument to be his free act and deed as Chairman of the Board above mentioned. • ; CA/tritii, (ei— . ... ......• c `Jy Public ,. . My Commission Expires 'f • OM DEC 23 86 JOHN C. CRENEY, P.C. ATTORNEY-AT-LAW 86 WILLOW STREET YARMOUTH PORT, MASSACHUSETTS 02675 (508) 362-1122 FAX(508)362-1125 JOHN C. CRENEY July 25, 2002 James D. Brandolini Building Commissioner 2 11 fh 1146 Route 28 :.:. L. L., ; ; • SouthYarmouth, MA 02664I JUL1 2002 ,J Re: Property of Robert J. Donohue Our 111e No. Y 1799 By Dear Mr. Brandolini: You have been asked, and you in turn ask me, whether, in a six lot subdivision endorsed by the Planning Board on April 17, 1985, a dwelling constructed on one of the lots under a building permit issued in 1988, when none of the six lots conformed to the increased minimum area requirement in effect in 1988, and all of such lots were then, and are now, in common ownership, constitutes one of the three lots exempted from such increased minimum area requirement under section 104.3.4, paragraph 2 of the zoning bylaw(the "bylaw"). At the time of endorsement of the subdivision plan on April 17, 1985, the . land on such plan received the benefit conferred on subdivision plans by the fifth paragraph of G.L. c. 40A, sec. 6, (the "statute"), providing a zoning freeze of eight years from the date of endorsement, or until April 16, 1993. The bylaw was enacted at the annual town meeting of 1983. Thus at the time of issuance of the building permit for one lot in 1988, both the statute and the bylaw were in effect with respect to the plan, and both the statute and the bylaw authorized the issuance of the building permit despite noncompliance of such lot with dimensional requirements in effect in 1988. The landowner suggests that the 1988 building permit was issued under authority of the statute, rather than under authority of the bylaw, and that the landowner is entitled to the issuance of building permits for three of the remaining vacant lots under the bylaw. In support of such position, the landowner points to the opinion of the Land Court in Marinelli v. Board of Appeals of Stoughton,,9 LCR 441 (2001), involving the application, within five years of a zoning amendment, of the fourth paragraph of G.L. c. 40A, sec. 6, to commonly owned lots shown on an approval not required plan. The holding is to the effect that such . JOHN C. CRENEY, P.C. lots had the benefit of such fourth paragraph of G.L. c. 40A, sec. 6, and had no benefit of the exemption provided by a provision of the local zoning bylaw, which bylaw afforded protection only to lots held in separate ownership. Having in mind that in our matter, we are dealing with a subdivision plan, rather than an approval not required plan, and that we are dealing with the fifth paragraph of G.L. c. 40A, sec. 6, rather than the fourth paragraph, and that our bylaw is not applicable only to lots in separate ownership at the time of a zoning change, but rather is applicable to lots in both separate and in common ownership, Marinelli appears to give us no firm guidance in our matter. I agree with the anticipated position of the landowner that he could have built on every one of the six lots, under authority of the statute, had he done so prior to April 16, 1993. Not having done so, however, it seems as if the intent of the bylaw must be taken into account, and that the intent of the bylaw is to afford a limited measure of relief, limited to three lots on a plan, from increased dimensional requirements, before the landowner is required to combine undersized lots in order to meet increased area requirements; that if the landowner in this case had built on three or more of his lots prior to April 16, 1993, then he would have exhausted his relief, whether such relief be characterized as relief under the statute or under the bylaw; and that to adopt the position of the landowner would be, in the words of the Appeals Court in Tsagronis v. Board of Appeals of Wareham, 33 Mass. App. Ct. 55 (1992), one would be"...attempting to parlay one dispensation into entitlement to another". Very truly yours, ,k / John C. Creney Town Counsel JCC/dr cc: John P. Donohue, Esq. (4:-O' - lye; i�' TOWN OF YARMOUTH fi :r , _ , . :: BUILDING DEPARTMENT pp't.1 . 46, ` oute 28, South Yarmouth, MA 02664 508-398-2231 ext, 261 / BUILDING DEPARTMENT 1 L T INQUIRY FORM (ZONING PURPOSES ONLY) Assessors' Map No. 3..1 Lot No. A 5 Street Address 2/ /-21---(cam 77;° t G✓r¢p Endorsement Date of Subdivision Plan and Type(if applicable) /9,5P S Total Land Area(sq.ft.) / 7/ '5 7�, Frontage /.9 F 6/o Cask u� Address , � ,4 Name of Current Owner Tel �/C315F.1 C--S .) / �i'' �o�v oar /-,�t y Telephone No. Inquire's Name(if different from owner) i/o 4-i T. �o,vu h�c, s,6 , Telephone No. coef'rT/-S'(. P ' Inquire's Mailing Address ) i" C - 7-4 (- C74�c-e_ f �„ ccJ, , /11--I 6(C o / / - _ s Adjoining - 1 '177 / Building Intent S�-� -��, �� / Ad oinin Lot Numbers �.� Date of Inquiry f' 46*. /Pi Signature of Applicant .1.� q iry /% ° =� ' FOR OFFICE USE ONLY Does not conform with M.G.L.Chapter 40A, Section 6, Section 104.3.4 of the Zoning bylaw,or Definitive Plan Exemption and/or the applicable zoning bylaw,as per information provided. Reason Conforms with M.G.L.Chapter 40A,Section 6,and/or Section 104.3.4,Para of the zoning bylaw,as per information provided. Comments: Protected pursuant to M.G.L. Chapter 40A,Section 6,Definitive Plan Exemption. Application is incomplete. Comments: Adequate road access must be present. Determination of access shall be made by the Planning Board pursuant to M.G.L.Chapter 41 (if applicable.) Must satisfy Title V requirements. (See Board of Health) Must satisfy Conservation regulations, if applicable. Old Kings Highway Regional Historic District Commission applicability. Investigator's Signature Date Rev. 3/02 1 ACCT# 031. 177 MAP 019 LOT F5 LOC 00022 LEONARD AVE Plan /Z .5"G ' 'AGE DOC. - CERT. PROBATE Nanfaoi, f&r#ie // .. hc, i-34,8' 9 r ' 3/i 74� ' 027 6,c ftEte I,. GR-i FFiN Gr I✓ 1..6-5`1 335 (DOHiu) b 519i htPr11.1'6' L . VEIJ6 ZiA f-tut,e-i 1. 6I1, 'FF i tJ t 173 5 3o l (lift OF rr4 ti) iC j31 /c'I ' l:U i LL A-r( T• LD VC(L i N(, �xG • lac P- o 0-81 .�:. HftPi6 'Zi1} ,5501,7 . ,3at, tq 111,o ) Ft- t.'- .. to/ 3/ 93 #• a 01 I. ACCT# 031. 185 MAP 019 LOT H4nag _Li. PLAN NO. , LOC 00021 BLACK THORNE WAY 1139-i9- SELLING ovvivtrc III LE Fitt-. r ' DATE PRICE ACCOUNT NO. Book/Doc Page/Cert ql 'Li /j -1 l r-/ { �)?� / � j�/je/• 6 • i. l t. rr E n ACCT# 031. 184 MAP 019 LOT H5 PLAN NO. !l LOC 00015 BLACK THORNE WAY SELLING OWNER TITLE REF. DATE PRICE ACCOUNT NO. Book/Doc Page/Cert ACCT# 31 . 186 MAP 019 LOT H3 PLAN NO. � g LOC 00020 BLACK THORNE WAY 11171r SELLING vvvrvcn III LC ncr. DATE PRICE ACCOUNT NO. R Book/Doc Page/Cert /� Sir 1:J /,,-2//6/� °x•Y1)V,p E • '''r,.‘.:..`,,r4f..t.TTAC r.4,$.3„:" O,. , )** TOWN OF YARMOUTH BUILDING DEPARTMENT 1146 Route 28, South Yarmouth, MA 02664 508-398-2231 ext. 261 BUILDING DEPARTMENT LOT INQUIRY FORM (ZONING PURPOSES ONLY) (,I Assessors' Map No. -- -1 Lot No. / , ('- Street Address 874C4e 77 e-,.. ;c d✓4 y Endorsement Date of Subdivision Plan and Type(if applicable) / 9 C'S Total Land Area(sq. ft.) a ?, g 3- �! Frontage 5 c Y, LONS A tie, ,&i.4 Name of Current Owner Dovoil ve Address l-li,(y-o/<, Telephone No. Yi 3/f 3 6-3-) / inquire's Name(if different from owner) Ln 4-4 /� /)o---vQ 4 , ss Telephone No. Sorr717-Se A d' Inquire's Mailing Address 27o „--0111 S/xec f-/ G'✓ Ce JAz, C /( 0 f g S/c X�"f�7 Adjoining Lot Numbers /$' /4 7 _!-,1 l es /7 , i-/3 3 1/4-- S ignature Intent S;..r s Signature of Applicant /76 m�-G�'~-4.- Date of Inquiry t/,.r/0 . . FOR OFFICE USE ONLY Does not conform with M.G.L.Chapter 40A, Section 6, Section 104.3.4 of the Zoning bylaw,or Definitive Plan Exemption and/or the applicable zoning bylaw,as per information provided. Reason Conforms with M.G.L.Chapter 40A, Section 6,and/or Section 104.3.4,Para of the zoning bylaw,as per information provided. Comments: Protected pursuant to M.G.L. Chapter 40A, Section 6,Definitive Plan Exemption. Application is incomplete. Comments: Adequate road access must be present. Determination of access shall be made by the Planning Board pursuant to M.G.L. Chapter 41 (if applicable.) Must satisfy Title V requirements. (See Board of Health) Must satisfy Conservation regulations, if applicable. Old Kings Highway Regional Historic District Commission applicability. Investigator's Signature Date Rev. 3/02 �( ACCT# 031. 133 MAP 026 LOT W2 Ma-l 1 ee LOC 00573 ROUTE 28 1' Plan p T/ /�J • ❑C. CERT. PROBATE 113 Y P'!S € L c � L1 X b!1 ?7! £/kt R /z7/3' 17.2 'J7-9'z/3 Ho win OM I K 3 q6 4t h (/6ô)�0 HvuJi1d DMA EllayA 005 &i ( 37)6°7D► /o )� 02 —�� twill . IAi fiLi 4.711 7 (h • ttvu0AA- u�' K PI1J� •ems 7�� (1 vu i - b -�,� ACCT# 031. 187 MAP 019 LOT H2 3 7 PLAN NO. 1129 LOC 00014 BLACK THORNE WAY c7- SELLING OWNER TITLE REF. DATE PRICE ACCOUNT NO. Book/Doc Page/Cert +.j.(;1 p t zte:, 1' 5 /36 / ./'`G/ 3 _ 4/9 ! ACCT# 031. 176 MAP 019 LOT F6 LOC 00038 JERUSHA LN Plan /Z G ?AGE DOC. CERT. PROBATE 6/44ai7 "�rreehe, /Ze 2-4e. /3/3 061 73—oserh ,. /Va.S 2-c 'i ` eTv /3 d 7-77 tYalrhr Jt���ri-.U�1r�y.� t? O z 9 Ai % 7 f -a�-�- ACCT# 31 . 186 MAP 019 LOT H3 PLAN NO. /f LOC 00020 BLACK THORNS WAY /Zf /Mq_g SELLING ....,vv..,..., lilt i i i �c ncr: DATE PRICE ACCOUNT NO. Book/Doc/ Page/Cert 9v, 1) 9f / 36 /2/2 / 4j ACCT# 031. i85 MAP 019 LOT H4 �``.C9` r� �� PLAN NO. LOC 00021 BLACK THORNE WAY 139_ ;i SELLING uwivtn I ► I LE HEI-. t DATE PRICE ACCOUNT NO. Book/Doc Page/Cert r�fr u - -���'y L4 ` J /:"' /3‘ /2 /G/ ACCT# 031. 187 MAP 019 LOT H2 LOC 00014 BLACK THORNE WAY �� PLAN NO. l/ al- SELLING OWNER TITLE REF. DATE PRICE ACCOUNT NO. t Book/Doc Page/Cert 9:,;(;),A P Ay-La/Li iL.. .„! ✓ / ]6 / i,24 >/6,,7 f-2.-,,,,../ `�� ACCT# 031. 133 MAP 026 LOT W2 Mag."hee LOC 00573 ROUTE 28 1•� Plan /C `� - OC. CERT. PROBATE l eY 7)daS iaZer llx 67I /Id 447 -327 S ET4,V £. £/k1"K /z1/3/17;2 4/ T 3 iocur DM1 K 3 q6 �fb (/ 9,oo6) AD-, �3- 1Hou 1d DiU e 611914 liDD5 ,?i ( 37;.5'7D, ‘,, da -3'1 t : so Ai3i1 i Jij b77i 3 7 ( 6o ) - r i t�6 77l'h 44 Li-o0 IA- b --?it D3I 4CL -�M �� /7 / ACRES A PLAN NO. `lr ? a. Property Location: / �, / / ��?� Lre OWNER TITLE REF. DATE SELLING PRICEACCOUNT NO. ra 3/, f g 6 Book/Doc Page/Cert /3 ACCT# 031. 113 MAP 026 LOT J62 LOC 00023 MCGEE ST Plan 'AGE DOC. CERT. PROBATE so mel " /060 De/u4L-7 >, eR. 3'/ 11/'eSs `t' 2 33/71 '2 • a / S,Q. 33;900,(I48t) ,3' GO P c! i4-' t3; 78' b7 (u01-t i+3� Co _3 `DO (�`. ;%z TOWN OF YARMOUT ` }ITTAGn SEi_ , BUILDING DEPARTMENT 1146 Route 28, South Yarmouth, MA 02664 508-398-2231 ext. 261 BUILDING DEPARTMENT LOT INQUIRY FORM (ZONING PURPOSES ONLY) Assessors' Map No..) i Lot No. / y Street Address /5 /h+c k 2 0 4,,c /-_/_.4- Endorsement Date of Subdivision Plan and Type(if applicable) /7,5 Total Land Area(sq.ft.) /5, 5 y Frontage / . '/ �` 4/b L o-q s i‘.r/.-, /—c Name of Current Owner 00 n'ot u I. Address hit:,ly a K, , Telephone No. `Y/3S'.3G-=3 a t? -Inquire's Name(if different from owner) Jo 14,-; A w-ti,;4r f s , Telephone No. -5-0//V?s 7-s i 0)y Inquire's Mailing Address s yn - 144- I fee_f-- Z ,i.:;.t ee 1l - 4 a l 0 d x.. Building Intent f?-45/e A.• l Adjoining Lot Numbers/gy/f J . /J-r / 7 I /7 9 /k 6 Signature of Applicant I /,-/ 06-Lz�G'!�- Date of Inquiry S"/i /o FOR OFFICE USE ONLY Does not conform with M.G.L.Chapter 40A,Section 6, Section 104.3.4 of the Zoning bylaw,or Definitive Plan Exemption and/or the applicable zoning bylaw,as per information provided. Reason Conforms with M.G.L.Chapter 40A,Section 6,and/or Section 104.3.4,Para of the zoning bylaw,as per information provided. Comments: Protected pursuant to M.G.L.Chapter 40A, Section 6,Definitive Plan Exemption. Application is incomplete. Comments: Adequate road access must be present. Determination of access shall be made by the Planning Board pursuant to M.G.L. Chapter 41 (if applicable.) Must satisfy Title V requirements.(See Board of Health) Must satisfy Conservation regulations,if applicable. Old Kings Highway Regional Historic District Commission applicability. Investigator's Signature Date Rev. 3/02 ACCT# 031. 178 MAP 019 LOT F4 11 PLAN NO. LOC 00018 LEONARD AVE SELLING OWNER TITLE REF. DATE PRICE ACCOUNT NO. /JToo/J 666-1J6 Book/Doc Page/Cert gE9LiryJ . 071/ L3/ 07 b 1-10-160606 0. fictai0 /AU b5 3o6EPh to1Lia-6 cruk L LI I 18b6bfl tvaim-L6 C2O 17 ,3 , ,Toh/0 K. wittow ant 5b_567 LPL r ) tlab61, /67 or IA-co) iw paLcadJi• ciT)4 3q0Z71 /3 5-7060 PAuti Perla,6 a-/912, 13 77 c,266 jp-31-436 it6T9,00 ACCT# 031. 179 MAP 019 LOT F3 LOC 00012 LEONARD AVE Plan /2 -CC kGE DOC. CERT. PROBATE //b/e00 ,6;Peeole c. .57‘ 7 r-Z 54-1'14, /0- ige fag"- 147/5en7Tnek- / / 9'-27 =UAW T, boNovA-Ar Lc-Tux .262-9 145-- 047111_ -• ACCT# 031. 180 MAP 019 LOT F2 M LOC 00008 LEONARD AVE Plan /0.5 G .E DOC. CERT. PROBATE -- be47TerS (- ee-,o, .,L Z 9 Z.he, /e b 6 ! I- ce A< rgail eT c k /.3 -3 F::6°"J ,q d5/ / 7q / -3o -mod r2 rl/ r l/ 3 r� .5— / 7.• -34 C 3" / 3 —.b_ , 0 . ,_., , _,,. _.• _ -�z,.,z.,.�.m.K_- - -.- yip ACCT# 031. 183 MAP 019 LOT H6 � Q+ M PLAN NO. ,!LOC 00005 BLACK THORNE WAY P SELLING OWNER TITLE'REF. DATE PRICE ACCOUNT NO. Book/Doc Page/Cert , -1v e ... 'i i iG/bA,„ ./ii ,-._../..; (/` / g`v . /36 " /2./3/tv 1 ACCT% 031. 184 MAP 019 LOT H5 PLAN NO. /j J G LOC 00015 BLACK THORNE WAY SELLING OWNER TITLE REF. DATE PRICE ACCOUNT NO. Book/Doc Page/Cert r3 � r, e Q 3 02(K k)zo?,,-ny 7, sp{ ACCT# 031. 185 MAP 019 LOT H4 .Lit PLAN NO. //43� LOC 00021 BLACK THORNE WAY r SELLING Uwivtrt I I I Lt !ICI-. i DATE PRICE ACCOUNT NO. Book/Doc Page/Cert 2411 14/ /``1- /3 /2// /6l /,1 fri 6i--u -1 TOWN OF YARMOUTH v"`�.+ltyF .a._a LSt,J 4� -3� P E✓ BUILDING DEPARTMENT 1146 Route 28, South Yarmouth, MA 02664 508-398-2231 ext. 261 BUILDING DEPARTMENT LOT INQUIRY FORM (ZONING PURPOSES ONLY) Assessors' Map No. 31 Lot No. / ,S'`3 Street Address S !3/--)c:(. /C, o N9,..<_ _ -3 Endorsement Date of Subdivision Plan and Type(if applicable) / JI. _( Total Land Area(sq.ft.) / S c Frontage / 7 S Name of Current Owner Do.vo/t u-e Address f,4 is o, .. , Telephone No. l/.s�r3 6 3.)/9 , Inquire's Name(if different from owner) cAv4..r ' 7o-,-04. . / 4c Telephone No. 5 //71-i-s r_,s' Inquire's Mailing Address I Y' fie-' Sf�`C<-- Goer, c'.f 71(r-- /�-9 O i 6 c / ✓ Ii Building Intent S c-Ys 4 7 ^l-7 Adjoining Lot Numbers i q 3 /9 Y /$a / S I /�',Z Signature of Applicant /U o -%..-4-4- Date of Inquiry .f/1 r o a. FOR OFFICE USE ONLY Does not conform with M.G.L.Chapter 40A, Section 6, Section 104.3.4 of the Zoning bylaw,or Definitive Plan Exemption and/or the applicable zoning bylaw,as per information provided. Reason Conforms with M.G.L.Chapter 40A, Section 6,and/or Section 104.3.4,Para of the zoning bylaw,as per information provided. Comments: Protected pursuant to M.G.L.Chapter 40A,Section 6,Definitive Plan Exemption. Application is incomplete. Comments: Adequate road access must be present. Determination of access shall be made by the Planning Board pursuant to M.G.L. Chapter 41 (if applicable.) Must satisfy Title V requirements. (See Board of Health) Must satisfy Conservation regulations,if applicable. Old Kings Highway Regional Historic District Commission applicability. Investigator's Signature Date Rev. 3/02 ACCT# 031. 180 MAP 019 LOT F2 M LOC 00008 LEONARD AVE Plan /Z.5'c. • IE DOC. CERT. - PROBATE /71&d7Ters 6-1'ee uric. ie b *d rtc e l a rgar1 e77. t� d T 1 7_ / / 3o -o 3 . / / 2? ACCT# 031. 183 MAP 019 LOT H6 3L1 /� LOC 00005 BLACK THORNE WAY PLAN NO. fig? P SELLING OWNER TITLE REF. DATE PRICE ACCOUNT NO. Book/Doc Page/Cert J �rU - `'- ' / / 6 /.2//b/ ACCT# 031. 184 MAP 019 LOT H5 PLAN NO. /1 o) f LOC 00015 BLACK THORNE WAY SELLING OWNER TITLE REF. DATE PRICE ACCOUNT NO. Book/Doc Page/Cert g ' / I l/G ,.D_„ 4/9 1 Y sci- , . ACCT# 031. 181 MAP 019 LOT Fi LOC 00002 LEONARD AVE Plan j�.6- 2AGE DOC. CERT. PROBATE JC/JU5 E. CCe w e ,i 1 ale✓ B- Chew -Cad /45 r.3 ��Een, »c_, j.262_ y� y 14 y un/doh >r 6'i'een e /2/ . .1_,G /.3 zs- Lye it-Me/ /1'l. j efa421pr 671a/ /.33 s- Pee 3 /33s' fy..? )i) 1. _4c'_y ,�-. Wil y4'7 r�L_ 133k rot933 ,Zo / I` � ' 1 33 93 i, 1 S �c1�5oD�IyBi� i� ra -: ..., ,t . __, .. ,„-_ ..'zw.k,,,,, ..„.=tea:...-.,.,-„.'" ....'y,,,. a a' ?,,,,,- ,," ,,, i; a `: .. JUL. -09' 02 (TUE) 10:40 FULLER ROSENBERG PALMER TEL:508 756 7475 P. 001 diA FULLER. ROSENBERG. PALMER & I3ELIVEAU. LLP COUNSELLORS AT LAW ALBERT E. FULLER 340 MAIN STREET-SUITE 817 JAMES C. CRowLEY,JR. KENNETH F. ROSENBERG WoRCESTER, MARRAcHUSETTS Oleos JoHN P. DONOHUF PETER A. PALMER - ANN F. RCANNELL THoMAB W. BELIVEAIJ TELEPHONE (BOO) 755-e22e CYNTHIA A. WALTER ROBERT W.ToWLE T«acoPleR(SOS)7a7-�088 BETH A. BAGLEY Til4COPIER (508)751-5155 MARK C. DARLING RICHARD N. BRADLEY STEPHAN G.ANDERSON WRITER' t4R\EC7T p1I�CL� JAMES P. McKENNA GEOF GC E. CLANCY NUMBEI50) /51-5 128 JOHN A. GIROLIARD --- PAUL e. RAINVILLE JULIE B. RUSOELL MAUREEN K. McNALLY MARK W. MURPHY RENEE I-. WHITENETT DRIAN F. WEL8H July 9, 2002 PATRICK K. BURKE JOHN J. FINN GAIL W.TURNER Via Fax—(508) 398-2365 Mr. James Brandolini Building Commissioner Town of Yarmouth Re: Black Thorne Way Dear Mr. Brandolini: As you know, I represent Robert J. Donohue who has before you five buildable lot inquiry 'forms relative to property owned by Mr. Donohue at Black Thorne Way. When] spoke with your office late on Monday, July 8, 2002, 1 was informed that you had not yet had the opportunity to write your decision regarding those requests. 1 would like to take this opportunity to offer a brief clarification of the requests before you and I would respectfully request that you give some consideration to the following arguments as you formulate your decision on these requests. Robert Donohue is asking you to determine that he has a right to ob}:ain building permits for three of the five vacant lots on Black Thorne Way pursuant to Section 104.3.4 Paragraph 2 of the Zoning By-Laws. This request is consistent with the language of the Zoning By-Law as that language has been interpreted in the case of Marinelli v. Board of Appeals of StouQhtor, According to the reasoning of the Marinelli decision, the provisions of Section ]04.3.4 Paragraph 2 give Mr. Donohue a right at this time to building permits for three of his remaining five vacant lots because he has never before requested any building permits pursuant to that Section of the By-Laws. I understand you have discussed these issues with Town Counsel and I am sure you are aware of the language of that case. The current request before you is the first time any request has been presented pursuant to 104.3.4 Paragraph 2. Accordingly, Robert Donohue respectfully submits that this Zoning By-Law provision entitles him to building permits for three of the remaining five vacant lots on Black Thorne Way. JUL. -O9' O2 (TUE) 10:40 FULLER ROSENBERG PALMER TEL:5O8 756 7475 P. 002 Mr. James Brandolini Re: Black Thorne Way July 9, 2002 Page 2 As you also know, Robert Donohue built a home on one of the lots on Black Thorne Way in 1988. A building permit for that property was dated May 25, 1988. That building permit was not issue('pursuant to 104.3A Paragraph 2 of the Zoning By-Laws. The building permit issued on May 25, 1988 was issued to Robert Donohue for construction of his residence because he was entitled to that building permit by the provisions of M.G.L. c.40A, §6 (Fifth Paragraph). That provision of the M.G.L. provided that Mr. Donohue's subdivision plan endorsed by the Planning Board on April 17, 1985 enjoyed an exemption from any zoning changes for eight years, or until April 17, 1993. The building permit which issued for Robert Donohue's residence on May 25, 1988, therefore, was issued as of right to Robert Donohue pursuant to the state statute and not pursuant to any provision of the Zoning Bylaws of.the Town of Yarmouth, Consequently, the building permit issued to Robert Donohue in May, 1988 does not count as one of the three building permits to which Mr. Donohue is now entitled pursuant to 104.3.4 Paragraph 2 of those Zoning By-Laws. Although not required to do so, the Town of Yarmouth chose to enact a generous zoning exemption in Section 104.3.4 Paragraph 2 of its Zoning By-Laws and Mr. Donohue now seeks only to secure the rights applicable to his property pursuant to that By-Law. Please consider this information as you render a decision on the request that for a ruling that Robert Donohue is entitled to building permits for three of his five vacant lots on Black Thorne Way pursuant to Section 104.3.4 Paragraph 2 of the Zoning By-Laws. I will be in Yarmouth along with Robert Donohue on Wednesday afternoon, July 10 and on Thursday, July 11. If it would be helpful to you as you render a decision, we would be available to meet with you during that time period. In addition, you can always contact me at my office if you have any questions. Thank you for your courtesy and consideration in this matter. Sincerely, Jolui P. Donohue JPD/lcln Property 1:ec....an: 14 BLACK THORNE WAY MAP ID: 31/187/// Vision ID: 2120 Other ID: 19/H002/// Bldg#: 1 Card 1 of 1 Print Date:06/07/2002 14 CURRENT OWNER TOPO. UTILITIES STRT./ROAD LOCATION CURRENT ASSESSMENT DONAHUE JOHN P Description Code Appraised Value Assessed Value DONAHUE ROBERT J RES LAND 1010 59,600 59,600 $IS 40 LONGFELLOW DR RESIDNTL 1010 141,600 141,600 HOLYOKE,MA 01040 YARMOUTH, SUPPLEMENTAL DATA Account# 0218200 1 Subdivision 120 Photo Ward VIS1C Precinct ♦ 11,J 1 GISID: Total 201,200 201,200 RECORD OF OWNERSHIP BK-VOL/PAGE SALE DATE Wu vA SALE PRICE�.0 PREVIOUS ASSESSMENTS(HISTORY) DONAHUE JOHN P 0 Yr. Code Assessed Value Yr. Code Assessed Value Yr. Code Assessed Y 2002 1010 59,600 Z001 1010 59,600 Z000 1010 2002 1010 141,600 2001 1010 141,600 Z000 1010 Total: 201,200 Total: 201,200 Total: EXEMPTIONS OTHER ASSESSMENTS This signature acknowledges a visit by a Data Collector or Ass Year Type/Description Amount Code Description Number Amount Comm.Int APPRAISED VALUE SUMMARY Appraised Bldg.Value(Card) 1 Appraised XF(B)Value(Bldg) Total Appraised OB(L)Value(Bldg) NOTES Appraised Land Value(Bldg) Special Land Value 0120 Total Appraised Card Value Total Appraised Parcel Value Valuation Method: Cost/Market V: Net Total Appraised Parcel Value 2 BUILDING PERMIT RECORD VISIT/CHANGE HISTORY Permit ID Issue Date Type Description Amount Insp.Date %Comp. . Date Comp. Comments Date ID Cd. Purpose/Rest 998301 5/25/91 140,460 100 NEW DWELL 7/24/95 PW 01 Measur+lVisit LAND LINE VALUATION SECTION B# Use Code Description Zone D Frontage Depth Units Unit Price I.Factor S.I. C.Factor Nbhd. Adj. Notes-Adi/Special Pricing Adi. Unit Price Land Va 1 1010 SINGLE FAM 16,117.20 SF 2.74 1.35 5 1.00 0050 1.00 3.70 LTotal Card Land Units 16,117.00 SF Parcel Total Land Area: 16,117 SF Total Land Value!, Propert)Locullun: 14 BLACK THORNE WAY MAP ID: 31/187/// Vision ID: 2120 Other ID: 19/H002/// Bldg#: 1 Card 1 of 1 Print Date: 06/07/2002 14 j CONSTRUCTION DETAIL SKETCH Element Cd. Ch. Description Commercial Description Model 01 Residential Heat&AC VDK 16 Grade 04 Average+10 Frame Type Baths/Plumbing Stories 1.5 1 1/2 Stories Occupancy 00 Ceiling/Wall ___—__- 12 121 Rooms/Prtns FGR 22 Exterior Wall 1 14 Wood Shingle %Common Wall 4 16 2 11 Clapboard Wall Height ASS —FHS 3538 28 1916 Roof Structure 03 Gable/Hip UBM Roof Cover 03 Asph/F Gls/Cmp CONDO/MOBILE HOME DATA Interior Wall 1 05 Drywall/Sheet Element Code Description Factor 2 14 2 18 Interior Floor 1 12 Hardwood Complex Floor Ad' 2 14 Carp et Unit Location 10 28 2 Heating Fuel 03 Gas 22 Heating Type 05 Hot Water Number of Units AC Type 01 None Number of Levels /o Ownership 14 Bedrooms 03 3 Bedrooms Bathrooms 2.5 21/2 Bathrms COST/MARKET VALUATION 2821 16 Total Rooms Unadj.Base Rate 60.00 Size Adj.Factor 0.96522 Bath Type Grade(Q)Index 1.13 Kitchen Style Adj.Base Rate 65.44 Bldg.Value New 158,430 Year Built 1988' Eff.Year Built 1988 Nrml Physcl Dep 12 Funcnl Obslnc 0 MIXED USE Fcon Obslnc 0 i • Cndv t)acerintinn Prrcvninov Sped.Cond.Code 1010 SINGLE FAM 100 Specl Cond% Overall%Cond. 88 ` t Deprec.Bldg Value 139,400 •,' ' . OB-OUTBUILDING& YARD ITEMS(L)/XF-BUILDING EXTRA FEATURES(B) <„ .", Code Description LIB Units Unit Price Yr. , Dp Rt %Cnd _ Apr. Value ` 4 "� ,.' �.�.. .4 ' FPL2 1.5 STORY CHIM B 1 2,500.00 1988 1 100 2,200 " r f EOS End Outs Shwr B 1 0.00 1988 1 100 0 It ^•t, t , Y 4. ,j. 1. - C•r. ' ._..., iiti ..- r...-441,t„....... ,,,,,,,r 6 lc, 10 BUILDING SUB AREA SUMMARY SECTION _ Code Description Living Area Gross Area Eft' ,.Unit Cost Undeprec. Value a` . ; i BAS First Floor 1,340 1,340 1,340 65.44 87,690 ' FGR Garage 0 484 194 26.23 12,695 " FHS Half Story,Finished 600 1,200 600 32.72 39,264 , $ UBM Basement,Unfinished 0 1,340 268 13.09 17,538 ,,� ` WDK Deck,Wood 0 192 19 6.48 1,243 t-s.__. TtL Gross Liv/Leas,Area 1,9401 4,556 2,421 Rldo Val: 158,430 TOWN OF YARMOUTH dotys BUILDING DEPARTMENT t=SE, 1146 Route 28, South Yarmouth, MA 02664 n ATTACH j Phone: 508-398-2231 ext. 261 Fax: 508-398-0836 TO: FAX# D _ 2 _ // DATE: FROM: Total pages,, uding cover page: SUBJECT: COMMENTS: V7/61 yS a 4 -,> /2/�-' r „ BUILDING TOWN OF YARMOUTH ELECTRICAL -1�_ i 1 1�+i ROUTE 28 SOL'TI1 YARMOUTH M SSACHCSETTS02664-�451 GAS MATTACMCCS '4'. PLUMBING a . Telephone (508) 398-2231. Ext. 261 — Fax (308) 398-2365 SIGNS BUILDING DEPARTMENT BUILDABLE LOT INQUIRY FORM Lot No. /83 Assessors' Map No. 3 I Street S - Q 14xckT1 o r VL2 �lti y Endorsement Date of Subdivision Plan and Type (if applicable) /9 8 4 I Total Land Area (sq. ft) /5 OD Frontage / ? 5 Y co 64L-6 Name of Current Owner -Dor\o�.v�- Address Elo/y o ,tt14 Telephone No. 53-3 a\'l Inquire's Name (if different fr9m owner) L s S.cA- I Telephone No _39 -3 d 9 C) Inquire's Mailing Address P•O. / $6 Lt.)c 5 lnts , ill 4 C 7C� Building Intent S F Adjoining Lot Numbers /g V Signature of Applicant Date of Inquiry a / 0 O FOR OFFICE USE ONLY ✓ Does not conform with M.G.L. Chapter 40A, Section 6, single lot exemption, or Definitive Plan Exemption and/or the applicable zoning bylaw, as per information provided. Reason T,L,• -z�.C �-��-. �Cs�, = —►'�. C-C.� 2 �-4(' f'- e?- '3. Conforms with M.G.L. Chapter 40A, Section 6, single lot exemption, and/or applicable zoning bylaw, as per information provided. Protected pursuant to M.G.L. Chapter 40A, Section 6, Definitive Plan Exemption. Application is incomplete. Comments: Adequate road access must-be present. Determination of access shall be determined by the Planning Board (if applicable). Must satisfy Title V requirements. • •i. Must satisfy Conservation regulations, if applicable. • Togistigator's Signature �' Date - - c (� BUILDING TOWN OF Y A R M O U T H ELE(TRI(::\L 0 GAS • s 1 11-16 ROUTE 28 SO L'TI i YAR_MOUTH M SSACHUSETTS 0266-I-1451 MATTACHCCS l'LL'\IBI\(; �,,, �,.��': Telephone (508) 398-2231. Ext. 261 — Fax (508) 398-2365 SIGNS BUILDING DEPARTMENT BUILDABLE LOT INQUIRY FORM Lot No. /P, `/ Assessors' Map No. 3 ' Street /5 - Q tcxc,kT1 O r u Endorsement Date of Subdivision Plan and Type (if applicable) /9 • Total Land Area (sq. ft) /5, 5 '2 Frontage / 3 1 .0 cer.9 .11 aw &t Name of Current Owner -Dohc�v4- Address /io/y oL 1 iP Telephone No. 53-3a\9 Inquire's Name (if different from owner) L Ci\L¢AA Telephone No 3e1 y-3C)9 p Inquire's Mailing Address 71 •O. .e7 p y I ()c 5-f- twni5 ii'�4 ' 4O 70 Building Intent 5 Adjoining Lot Numbers / t 3 - /8 5 Signature of Applicant �` Date of Inquiry 2//f O d FOR OFFICE USE ONLY Does not conform with M.G.L. Chapter 40A, Section 6, single lot exemption, or Definitive Plan Exemption and/or the applicable zoning bylaw, as per information provided. Reason A' F . -1� �.-�t� �r�. 5`-/7 -13 %i>y s Conforms with M.G.L. Chapter 40A, Section 6, single lot exemption, and/or applicable zoning bylaw, as per information provided. Protected pursuant to M.G.L. Chapter 40A, Section 6, Definitive Plan Exemption. Application is incomplete. Comments: Adequate road access must-be present. Determination of access shall be determined by the Planning Board (if applicable). Must satisfy Title V requirements. • Must satisfy Conservation regulations, if applicable. • stigator's Signature A Date •" O t • '!' BUILDING TOWN OF Y A R M O U T I I ELECTRICAL 1146 ROUTE`_'s SOUTH YARMOUTH MASSAC:HUSETT'C `1:11 ^\ MATTACH CCS -51 PLUMBING �I131Nc GAS 1e__LLCC Telephone (508) 398-2231. Ext. :261 Fax (508) 398-2365 ,. • SICNS BUILDING DEPARTMENT BUILDABLE LOT INQUIRY FORM Lot No. /g3.5 Assessors' Map No. 3 I Street o .1 - o r VI Q t.LJa-�/ Endorsement Date of Subdivision Plan and Type (if applicable) /c 5 i Total Land Area (sq. ft) 171 876 Frontage /02 y a-,../cclicLu &e'� Name of Current Owner —D o r\ kus'e- Address //y o ,601 Telephone No. 5%-3 a\cl Inquire's Name (if different from owner) L.44- ILtt, Telephone No 3q 4-309C Inquire's Mailing Address Vim.Fes. p / $(o ) Lc) 5-{- t.e.vvim5 m( (fl 7 7 Building Intent 5 Adjoining Lot Numbers /86 /B Signature of Applicant Date of Inquiry Z/l/0 0 FOR OFFICE USE ONLY Does not conform with M.G.L. Chapter 40A, Section 6, single lot exemption, or Definitive Plan Exemption and/or the applicable zoning bylaw, as per information provided. Reason /I- y Conforms with M.G.L. Chapter 40A, Section 6, single lot exemption, and/or applicable zoning bylaw, as per information provided. Protected pursuant to M.G.L. Chapter 40A, Section 6, Definitive Plan Exemption. Application is incomplete. Comments: Adequate road access must-be present. Determination of access shall be determined by the Planning Board (if applicable). Must satisfy Title V requirements. Must satisfy Conservation regulations, if applicable. • stigator's Signature/� <)- ,/�Y _4 Date 3 S'` oG, • G `9� BUILDING ''' /. �` % TOWN OF YARMOUTH ELECTRICAL s�_ 1.,,;i 1146ROUTE`'S SOUTH 1:kR IOLTTH MASSACHL'SETTSO266-1—}-15I �1u MATTACtl Cs 4 I'LL\IB1N(; .. 4*«e. d',: Telephone (508) 398-2231. Ext. 261 — Fax (508) 398-2365 SIGNS BUILDING DEPARTMENT BUILDABLE LOT INQUIRY FORM 71 a Lot No. /86 Assessors' Map No. 3 ( Street Q IAGk-Fl o r Vl_Q tejG�y Endorsement Date of Subdivision Plan and Type (if applicable) /9 6 5- • Total Land Area (sq. ft) el a, cj 35 Frontage .5-6 4(D Ae•v./ce1low 64L. Name of Current Owner -0ohoku.� Address gel,/ o ,itiP _Telephone No. 5,36-3a\9 Inquire's Name (if different from owner) L-44- A wzA., Telephone No 3c!4-3 d 9 C Inquire's Mailing Address l'P•U. Z,p' / $6 t cic 5i V\t 5 1111/7' oaZ4g 70 Building Intent 5 F Adjoining Lot Numbers /$ 7 ' /8 5 Signature of Applicant C-.0 Date of Inquiry L/r/00 FOR OFFICE USE ONLY Does not conform with M.G.L. Chapter 40A, Section 6, single lot exemption, or Definitive Plan Exemption and/or the applicable zoning bylaw, as per information provided. Reason ' - Y / ., Conforms with M.G.L. Chapter 40A, Section 6, single lot exemption, and/or applicable zoning bylaw, as per information provided. Protected pursuant to M.G.L. Chapter 40A, Section 6, Definitive Plan Exemption. Application is incomplete. Comments: __Adequate road access must-be present. Determination of access shall be determined by the Planning Board (if applicable). Must satisfy Title V requirements. Must satisfy Conservation regulations, if applicable. • stigator's Signature , 7% - - Date 3 - 'g-- 6 4ri' • BUILDING: TOWN OF Y A R M O U T H E1.E(TRI( \L ems': `° GAS O „'1 1 14li ROUTE.28 SOUTH 1:LR11OUTH MASSAC:HUSETTS0266-1-4451 MATTACttLCS • I'LL'\IBI\(. 0 +e..,�,�,�� mod,; Telephone (508) 398-`231. Ext. 261 — Fax (508) 398-2365 =+s SIGNS BUILDING DEPARTMENT BUILDABLE LOT INQUIRY FORM Lot No. /ge43 Assessors' Map No. 3 I Street Q kT o r►1Q c,ejay Endorsement Date of Subdivision Plan and Type (if applicable) /9 pj Total Land Area (sq. ft) /5, '1$(o Frontage l6 5 ± y o e-ti.q cJldw 64(3 Name of Current Owner I o ho�•u� Address W,/y c L ,rtt f} Telephone No. 5%-3 a\9 Inquire's Name (if different from owner) A WI, Telephone No 3c3 44-3 CQ9 p Inquire's Mailing Address .9.O- aq / (o Luc tu.yktAt5 11l1 0,16 7C7 Building Intent S Adjoining Lot Numbers / Signature of Applicant ace, Date of Inquiry Z/t/o 0 FOR OFFICE USE ONLY Does not conform with M.G.L. Chapter 40A, Section 6, single lot exemption, or Definitive Plan Exemption and/or the applicable zoning bylaw, as per information provided. Reason .�'�� / Conforms with M.G.L. Chapter 40A, Section 6, single lot exemption, and/or applicable zoning bylaw, as per information provided. Protected pursuant to M.G.L. Chapter 40A, Section 6, Definitive Plan Exemption. Application is incomplete. Comments: Adequate road access must-be present. Determination of access shall be determined by the Planning Board (if applicable). Must satisfy Title V requirements. Must satisfy Conservation regulations, if applicable. • ThOstigator's Signature - 6• / -- - Date 3 f . c FAX Transmittal TO: , e-►� FAX# - j ) z FROM: TEL: (508) 398-2231 EXT. DATE:: - — (s SUBJECT: L ' � . V P/', Total pages, including cover page: COMMENTS: •:i Printed on Recycled Paper COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. TRIAL COURT BARNSTABLE SUPERIOR COURT NO. 00382 ROBERT J. DONOHUE, ) Plaintiff ) ) v. ) ) BOARD OF APPEALS OF ) YARMOUTH, and JAMES ) A. ROBERTSON, JOHN ) RICHARDS, JOSEPH ) SARNOSKY, DIANE ) MOUDOURIS, and RICHARD ) ST. GEORGE, as members ) of the Board of Appeals of ) Yarmouth, ) Defendants ) MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Part One: SUMMARY OF THE CASE The Plaintiff is the owner of five (5) lots of land in South Yarmouth, Massachusetts. The lots were approved as buildable residential lots by the Town of Yarmouth in April, 1985. The Plaintiff has owned each of the five (5) lots since 1985. In February, 2000, the Plaintiff filed a request with the building inspector for the Town of Yarmouth seeking confirmation that each of the five (5) lots is a buildable residential lot in compliance with the Zoning By-Laws of the G L Town of Yarmouth. The building inspector ruled that each of the five (5) lots does not comply Y/ with the Zoning By-Laws and the Plaintiffs request was denied. The Plaintiff appealed to the D tea Board of Appeals of the Town of Yarmouth and once again his petition was denied. The Plaintiff now seeks judicial review of the decision of the Board of Appeals pursuant to Massachusetts General Laws Chapter 40A, Section 17. The Plaintiff requests that the court reverse the decision of the Board of Appeals and order the Board of Appeals to confirm and endorse that each of the Plaintiffs five (5) lots is a buildable residential lot. Part Two: SUMMARY OF THE FACTS 1. The Plaintiff is the owner of five (5) lots in the Town of South Yarmouth. Each of the five (5) lots in question were approved as buildable lots for single family residential use by a decision of the Planning Board of the Town of Yarmouth on or about April 17, 1985 (Affidavit of Robert J. Donohue attached as Exhibit 1). 2. All five (5) lots have been owned by the Plaintiff since 1985. (Affidavit of Robert J. / Donohue attached as Exhibit 1). 3. All five (5) lots contain at least 15,000 square feet, but none of the five (5) lots contain 25,000 square feet or more. (Affidavit of Robert J. Donohue attached as Exhibit 1). 4. All five (5) lots have either 75 feet of frontage, or 50 feet of frontage and meeting the minimal dimensional requirements of Section 203.2 of the Zoning By-Laws of the Town \ of Yarmouth (each side of the square described therein being 75 feet). (Affidavit of 71)611i1A \ Robert J. Donohue attached as Exhibit 11. #A? / r 5. Each of the Plaintiffs five lots abuts two (2), but not more than two (2) other lots which are commonly owned by the Plaintiff, Robert J. Donohue. (Affidavit of Robert J. Donohue attached as Exhibit 1). 6. On or about February 1, 2000 a request was presented to the Building Inspector for the Town of Yarmouth seeking confirmation that each of the five (5) lots was a buildable residential lot according to the Zoning By-Laws of the Town of Yarmouth. (Affidavit of Robert J. Donohue attached as Exhibit 1). 7. On March 9, 2000 the Building Inspector for the Town of Yarmouth issued a decision that none of the plaintiff's five (5) lots was a buildable residential lot in compliance with the Zoning By-Laws of the Town of Yarmouth. (Affidavit of Robert J. Donohue attached as Exhibit 1). �' /"-) G z, Lf 1 ` i2 - 8. An appeal of the Building Inspector's decision to the Yarmouth Board of Appeals was denied on or about June 21, 2000. (Affidavit of Robert J. Donohue attached as Exhibit 1). 9. The exemption of the Zoning By-Laws applicable to each of the Plaintiffs five (5) lots is set forth at Section 104.3.4 Paragraph 5 of the Zoning By-Laws of the Town of Yarmouth (certified copy of the complete Zoning By-Laws of the Town of Yarmouth attached as Exhibit 2). 10. The Zoning By-Laws of the Town of Yarmouth do not contain a definition of the term L "abutting lots". (certified copy of the complete Zoning By-Laws of the Town of Yarmouth attached as Exhibit 2). Part Three: STANDARD OF REVIEW FOR ZONING APPEAL Judicial review pursuant to M.G.L. c.40A, §17 requires a trial judge to hear the case de novo and determine the legal validity of the decision of the Board of Appeals upon facts found by the trial judge. Needham Pastoral Counseling Center,Inc. v. Board of Appeals of Needham, 29 Mass App. Ct. 31, 32, 557 N.E. 2d. 43 (1990). In this case, the Plaintiff asks that the court interpret Section 104.3.4 Paragraph 5 of the Zoning By-Laws of the Town of Yarmouth with meaning." Green v. Board of Appeal of Norwood, 358 Mass 253, 258, 263 N.E. 2d. 423 (1970). As defined by the Defendants, by By-Law Exemption would not be available for a single lot which happened to be owned by the same person who owned three or more connected lots several miles away. Such an interpretation is neither reasonable nor sensible. 3. The Plaintiff's lots that are across the street from one another and are not "abutting lots" The Plaintiff's lots which are located across the street (Black Thorne Way) are not "abutting lots". Dowling v. Board of Health of Chilmark, 28 Mass. App. Ct. 547, 548-549, 552 N.E. 2d. 866 (1990); Aldrich v. Board of Appeals of Nahant, Land Court Misc. Case No. 234009 (1997). Consequently, the only lots commonly owned by the Plaintiff which are relevant to the application of this exemption are those which actually touch or border on the lot in question. 4. Cases from other jurisdictions support the Plaintiff's interpretation The interpretation of the term "abutting lots" offered by the Plaintiff is also consistent with interpretations of the term in other state courts throughout the country. See Eastland Woods v. City of Tallmadge, 2 Ohio St. 3d 185, 187, 443 N.E. 2d. 972 (Supreme Court of Ohio, 1983) (abutting lots must share a common boundary line); Lincoln v. Cather& Sons Construction, Inc., 206 Neb. 10, 16, 290 N.W. 2d. 798 (Nebraska Supreme Court, 1980) (abutting lots meet at more than one point); Davis Water& Waste Industries, Inc. v. Embry Development Corp., 603 So. 2d. 1357 (Fla. App. 1 Dist. 1982) (rejecting definition of"abutting land" which allowed for lots which do not touch); Fortney v. Bell Telephone of Pennsylvania, 407 A. 2d. 391, 393 (Pa. Super. 1979) (defining "abutting property" as property which actually adjoins another property); Clements v. City of Corpus Christi, 471 S.W. 2d. 83, 86 (Tex. Ct. App. 1971) (abutting property is land which touches the land in question); Royal Transit, Inc. v. West Milwaukee, 63 N.W. 2d. 62 (Wis. 1954) (holding lots do not"abut" unless there is direct physical connection to the lot in question). The Plaintiff is not aware of any reported case from any court which supports the Defendants interpretation of the term "abutting lots" as a reference to lots which do not share a common border with the lot in question. riv,,,,,,a, 4. Application of By-Law to Plaintiff's po propertyP/If \.., The Plaintiff sought a building permit for each of his five (5) lots. In essence, the fff Plaintiff put forth five separate petitions before the Board of Appeals and each petition was /I rejected. The Plaintiff asks the court to view each of the Plaintiff's lots individually to see whether or not the individual lot meets the three requirements for the exemption set forth under Section 104.3.4 Paragraph 5 of the Zoning By-Laws. The Plaintiff's argument is common to each of his five (5) lots, and the following is an analysis of the argument with respect to just one lot as an example of the application of the analysis as to all lots. Applying the definition of the term "abutting lots" as set forth above, the critical inquiry for each of the Plaintiffs five (5) lots is whether the Plaintiff's lot was held in common ownership with more than two other lots which share a common border with the Plaintiff's lot. For example, Lot#5 on the plot plan attached to the Plaintiff's Affidavit is also listed as Lot#184 on the Town of Yarmouth Assessor's Map #31. According to the plot plan attached to this Motion, there are five (5) lots which share a common border with Lot#5. That is, there are five (5) lots which are "abutting lots" to Lot#5. The Plaintiff owns only two of the five (5) lots which share a common border with (or abut) Lot#5. Consequently, Lot #5 meets the requirements for a zoning exemption set forth in Section 104.3.4 Paragraph 5 of the Zoning By- Laws of the Town of Yarmouth. Accordingly, the Plaintiff is entitled as a matter of law to an JOHN C. CRENEY, P.C. ATTORNEY-AT-LAW 86 WILLOW STREET YARMOUTH PORT, MASSACHUSETTS 02675 (508)362-1122 FAX(508)362-1125 JOHN C. CRENEY August 11, 2000 James D. Brandolini Building Commissioner 1146 Route 28 SouthYarmouth, MA 02664 Re: Robert J. Donohue v. Board of Appeals Dear Mr. Brandolini: Enclosed is a copy of Plaintiff's Memorandum in Support of a Motion for Summary Judgment, which motion will be filed with the Superior Court on or about August 29th. In order that we can prepare an affidavit and a memorandum in opposition, I would like to have the benefit of your thoughts. Very truly yours, J 't4-1--4 - John C. Creney Town Counsel JCC/eh Enc. 1DL C© 5Illij Ei AUG 14 2000 L i reference to each of the Plaintiff's five (5) lots at issue in this litigation in construing the Zoning By-Laws of the Town of Yarmouth, this court owes no deference to the discretion or judgment of the Board of Appeals of the Town of Yarmouth. Fitchburg Housing Authority v. Board of Zoning Appeals of Fitchburg, 380 Mass 869, 871, 406 N.E. 2d. 1006 (1980). Part Four: LAW APPLICABLE TO SUMMARY JUDGMENT Summary judgment shall be granted to the Plaintiff if there are no genuine issues as to any material fact in dispute and where the Plaintiff is entitled to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass 419, 422, 456 N.E. 2d. 1123 (1983); Community National Bank v. Dawes, 369 Mass 550, 553, 340 N.E. 2d. 877 (1976); Mass.R.Civ.P. 56(c). It is the Plaintiff's burden on a Motion for Summary Judgment to demonstrate the absence of a triable issue and to establish that the Plaintiff is entitled to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass 14, 17, 532 N.E. 2d. 1211 (1989). For the reasons set forth below, the Plaintiff respectfully submits that he has established that there is no genuine issue of material fact in dispute and that he is entitled to judgment as a matter of law. Part Five: DEFENDANTS'ARGUMENT The Zoning Exemption of Section 104.3.4 Paragraph 5 applies to each of the Plaintiff's five lots and the decision of the Board must be reversed. Section 104.3.4 Paragraph 5 of the Zoning By-Laws of the Town of Yarmouth is a "grandfather provision" which protects "once valid lots from being rendered unbuildable for residential purposes, assuming the lots meet modest minimum area and frontage requirements." Adamowicz v. Town of Ipswich, 395 Mass 757, 763, 481 N.E. 2d. 1368 (1985), quoting Sturges v. Chilrnark, 380 Mass 246, 261, 402 N.E. 2d. 1346 (1980). By this By-Law, the Town of Yarmouth has chosen to provide more generous grandfather protection for nonconforming lots above and beyond the protection afforded by M.G.L. c.40A §6. The Town of Yarmouth has the authority "to preserve legislatively certain substandard lots for building purposes" and it is not for this Court to review the wisdom of the town's zoning provisions. Lee v. Board of Appeals of Harwich, 11 Mass App. Ct. 148, 154, 414, N.E. 2d. 619 (1981). See Seltzer v. Board of Appeals ,._ of Orleans, 24 Mass App. Ct. 521, 510 N.E. 2d. 309 (1987) (validating By-Law provision which provided unlimited protection for lots meeting minimal dimensional requirements regardless of ' common ownership with adjoining land); Silun vs. Town of Sutton Board of Appeals, Land Court Misc Case No. 143836 (1991) (recognizing the right of municipalities to provide more liberal grandfather provisions then M.G.L. c.40A §6). By this Motion the Plaintiff seeks a determination by the Court that the Zoning exemption contained in Section 104.3.4 Paragraph 5 of the Zoning By-Laws of the Town of Yarmouth applies to each of the Plaintiffs five (5) lots. According to the By-Law, a lot is exempt from the current dimensional requirements of the By-Laws if the following three requirements are met: (1) The lot was part of a plan approved by the Planning Board before June 3, 1996; (2) Such lot was not held in common ownership with more than two abutting lots as of June 3, 1996; fj4,04A-,4 (3) Such lot had at least 10,000 square feet of non-wetland lot area and either 75 feet of frontage or 50 feet of frontage and capable of containing a square each side of which measures 75 feet. See certified Zoning By-Laws, attached as Exhibit 2.1 The text of Section 104.3.4 Paragraph 5 reads as follows: 5. Other nonconforming Residential Lots. Except as set forth in this paragraph,area, lot frontage or other dimensional requirements of this zoning bylaw shall not apply to a lot for single-family residential use, provided a plan for such lot was approved or endorsed by the Planning Board on or before June 31 1996,duly recorded,filed,or registered and such lot was not held in common ownership with more than two abutting lots as of June 3, 1996; as provided said lot contains at least ten thousand(10,000) square feet of non-wetland lot area and either seventy-five(75) feet of lot frontage or fifty(50) feet of lot frontage if the minimum dimensional requirements of Section 203.2 of this zoning bylaw are met, each side of the square described therein being seventy-five(75) feet. The minimum front yard setback for such a lot shall be pursuant to this bylaw Section203.5 and footnote 1 thereof. The minimum side yard setbacks for such a lot shall be as set forth in Section 203.5 of this bylaw,but not more than the average of the setbacks of the residential dwellings on the lots next thereto on either side,but not less than six(6)feet, Each of the Plaintiffs five (5) lots complies with requirement(1) and requirement(3) as outline above. (Affidavit of Robert J. Donohue attached as Exhibit 1). The key issue to be decided by the court is whether each of the Plaintiffs five (5) lots also meets the second requirement. That is, whether each of the Plaintiff's five (5) lots "was not held in common ownership with more than two abutting lots as of June 3, 1996". The building inspector and the Board of Appeals answered this question in the negative. The Plaintiff respectfully asks the court to reverse those decisions. 1. "Abutting lots" as used in the By-Law means lots which share a common border with the lot that seeks the zoning protection The term "abutting lots" is not defined in the Zoning By-Laws of the Town of Yarmouth. (See certified copy of the Zoning By-Laws attached as Exhibit 2.) Absent a definition of that term in the Zoning By-Laws, the meaning of that term becomes a question of law to be determined by the court applying ordinary rules of statutory construction.Framingham Clinic, Inc. v. Zoning Board of Appeals of Framingham, 382 Mass 283, 290, 415 N.E. 2d. 840 (1981). Where the language of a By-Law is clear, the Court must construe the By-Law as written and need not look beyond the words of the By-Law itself. Massachusetts Broken Stone Company v. Town of Weston, 430 Mass 637, 640, 723 N.E. 2d. 7 (2000). The term"abutting lots" should be given its common, approved, and usual meaning from sources presumably known to the By- Laws enactors, such as its use in other legal context and dictionary definitions. Framingham Clinic, supra. In Black's Law Dictionary, the term "abut" is defined as "to join at a border or boundary; to share a common boundary with." Black's Law Dictionary, 7th Ed. (1999) at pp.10- nor less than twelve(12)feet from any other building. The minimum rear yard setback for such a lot shall be as set forth in Section 203.5 of this bylaw,but not more than the average of the rear yard setbacks of the building(s)on the lot(s)abutting thereto,but not less than twelve(12)feet. The maximum building coverage for such a lot shall be in accordance with Section 203.5 of this bylaw. (emphasis added) 11. It also defines the term "abutter" as "land that joins the land in question." Id. at 11. Webster's New World Dictionary defines "abutting" as "to end on or lean upon at one end; border on." Webster's New World Dictionary 2d. Ed. (1988) at p.6. Both definitions suggest that the term "abutting lots" means lots which share a common border with the lot in question. (i.e. with reference to the individual lot for which a zoning exemption is sought). Although there have been no reported decisions from the courts of the Commonwealth interpreting the term "abutting lots", definitions of other terms do provide some additional support for the Plaintiffs argument that the term "abutting lots" should be interpreted consistent with its plain meaning that"abutting lots" must share a common border with the lot in question. See Sturges v. Town of Chilmark, 380 Mass 246, 261, 402 N.E. 2d. 1346 (1980) (construing the term "adjoining" as a lot which touches the lot in question at more than one point). The Supreme Judicial Court in Sturges interpreted the term "adjoining" lots from M.G.L. c.40A §6 as a term which defined the relationship of the other commonly owned lots to the lot in question. Applying the analysis of the Supreme Judicial Court in Sturges to the By-Law at issue in this case, the Plaintiffs contention that the term "abutting lots" refers to lots which share a common boundary with the specific lot in issue must be accepted. Since the Supreme Judicial Court in Sturges determined that two lots which meet at one point were not"adjoining lots", the Court would certainly have found that a lot or lots which do not touch the lot in issue at any point at all are not"adjoining" or"abutting" lots. 2. The Defendant's interpretation yields absurd results The interpretation of the term "abutting lots" offered by the Defendant Board of Appeals in this case would suggest that a lot which shares no common boundary with the lot in question is an abutting lot according to the Zoning By-Law. Such an interpretation yields "absurd or unreasonable result" which are to be avoided where "the language is susceptible of a sensible order that the Defendants confirm and endorse that Lot#5 (also shown as Lot#184 on Assessor's Map #31) as a buildable residential lot. This same analysis applies to the other lots for which the Plaintiff seeks an exemption. 5. The Board of Appeals exceeded its authority by adding an additional term and a limitation to the By-Law. The written decision of the Defendant Board of Appeals which is the subject of this litigation also provides support for the Plaintiff's argument. (Certified decision of the Board of Appeals was attached to the Plaintiffs Complaint as required by M.G.L. c.40A, §17 and it is thereby part of the pleadings and appropriate for review by the court on the Motion for Summary judgment it is also attached to this Motion as Exhibit 3). The Board of Appeals suggests that there were two reasons why the Plaintiffs requests were denied. First, the Board notes that "since all of the lots are abutting (each other) they do not satisfy the limitations of Section 104.3.4 Paragraph 5". (Certified decision of Board of Appeals at Paragraph 3). The Boards' insertion of the term "each other" is an addition to the language of the Zoning By-Law which restricts the broad zoning protection provided to each of the Plaintiff's five lots by the text of the Zoning By-Law. By adding addition terms to the Zoning By-Law and thereby restricting the broad protection offered to the Plaintiffs lots, the Defendant Board exceeded its authority and their decision must be reversed. See Massachusetts Broken Stone Company, supra, at 642; MacGibbon v. Board of Appeals of Duxbury, 356 Mass 635, 639-640, 255 N.E. 2d. 347 (1970). Similarly, the second element of the reasoning of the Defendant Board of Appeals constitutes the application of a limitation to the Plaintiff's land which is not set forth in the text of Section 104.3.4 Paragraph 5 of the Zoning By-Laws. In Paragraph 5 of the Board's decision the Board suggests that the Plaintiff's interpretation of the By-Law cannot be correct because it would allow for unlimited exemptions for"single rows of house lots." Once again, the Board has attempted to restrict the broad protection offered to the Plaintiff's property by the written By- Law. There is no language in Section 104.3.4 Paragraph 5 which limits the number of lots to which the exemption applies. The Defendant Board of Appeals applied a limitation to the application of the zoning exemption as that exemption applies to the Plaintiffs lots. This limitation is not contained within the text of Section 104.3.4 Paragraph 5. In order to justify its decision to deny the Plaintiffs rights to a zoning exemption, the Defendant Board created a limitation which does not exist. It is clear from a reading of Section 104.3.4 Paragraph 2 (another zoning exemption provision of the By-Law) that the Town of Yarmouth knew how to apply a limitation on zoning exemptions2. The last sentence of Paragraph 2 states "this exemption shall not apply to more than three such adjoining lots held in common ownership." Obviously, the Town knows how to apply a limitation to its zoning exemptions and it chose not to apply such a limitation to the exemption which the Plaintiff seeks pursuant to Section 104.3.4 Paragraph 5. By not including such a limitation in Section 104.3.4 Paragraph 5 the Town must have meant for the exemption to apply to a specific lot regardless of the number of commonly owned lots which are located near to, but do not share a common border with the specific lot in question. See, Board of Selectmen of Hatfield v. Garvey, 362 Mass 821, 824, 291 N.E. 2d. 593) (applying to Zoning By-Law"familiar principle of interpretation that matters mentioned in one section deemed intentionally omitted when absent from another section). 2 Section 104.3.4 Paragraph 2 reads as follows: 2. Two(2)or three(3)adjoining lots. Any increase in area, frontage or other dimensional requirements of this zoning bylaw shall not apply to a lot for single family residential use,provided the plan for such lot was duly recorded or endorsed and such lot was held in common ownership was contiguous lots and had Less than the dimensional and density requirements of the newly effective zoning but contained at least seven thousand five hundred(7,500)square feet and seventy-five(75) feet of frontage,or contained fifteen thousand(15,000)square feet and fifty(50)feet of frontage if approved under Section 203.2 of this bylaw. This exemption shall not apply to more than three(3)such adjoining lots held in common ownership. (emphasis added) It is clear that the Defendant Board added additional terms ("such lots") and a limitation to the application of Section 104.3.4 Paragraph 5 solely in order to deny the Plaintiff's petition with respect to each of his five (5) lots. In so doing, the Board exceeded its authority and its decision must be reversed. See Massachusetts Broken Stone, supra; MacGibbon, supra. Moreover, the Defendant Board's application of additional terms and limitations to a Zoning By- Law establishes that the Board acted in bad faith in denying the Plaintiff's right to the zoning exemptions applicable to each of his five (5) lots. r.a .mac 6. The Town of Yarmouth has taxed the ✓ < / Plaintiff's property as five f 5) separate residential lots since their creation. It is also appropriate for this Court to consider that the Town of Yarmouth has assessed and levied a tax on each of the Plaintiff's five (5) lots as a buildable residential lot since their creation in 1985 and up to the present. (See Seltzer v. Board of Appeals of Orleans, 24 Mass. App. Ct. 521, 524, 510 N.E. 2d. 309 (1987) (noting that separate assessment of individual lots is a"relevant factor" for the court to consider in determining status of property as separate lots). The Plaintiff has continued to pay property taxes for five (5) separate buildable residential lots since their creation in 1985. (See Affidavit attached as Exhibit 1). The town has never attempted to refund or adjust the substantial taxes levied on the Plaintiffs property to reflect the property's status as a single lot and not five (5) separate lots. WHEREFORE, the Plaintiff respectfully requests that the Court enter judgment in his favor as a matter of law. The Defendant specifically requests that the Court order the Defendant Board of Appeals to confirm and endorse that each of the Plaintiff's five (5) lots in question are buildable residential lots. The Plaintiff also requests that the Court award the Plaintiff his costs upon a finding that the Defendant Board acted with bad faith and/or gross negligence in making the decision from which this appeal has been taken. Respectfully submitted ROBERT J. DONOHUE, THE PLAINTIFF By his attorney : 4 J P. Donohue, Esquire uller, Rosenberg, Palmer, & Beliveau 340 Main Street, Suite 817 Worcester, MA 01608 (508) 751-5128 Dated: . v.,1� S;- 1 Zv eDv BBO #567008 COMMONWEALTH OF MASSACHUSETTS INSTABLE, se, TRIAL COURT BARNSTABLE SUPERIOR COURT NO. 00382 3ERT J. DONOHUE, ) Plaintiff ) ) v. ) ) ARD OF APPEALS OF ) .RMOUTH, and JAMES ) ROBERTSON, JOHN ) :,'HARPS, JOSEPH ) .RNOSKY, DIANE ) 3UDOURIS, and RICHARD ) GEORGE, as members ) the Board of Appeals of ) .rmouth, ) Defendants ) AFFIDAVIT QLROBERT J. DONO_HUF Robert 3, Donohue, M.D., on oath depose and state as follows: 1. I am Robert J. Donohue, a resident of Holyoke, Massachusetts and the owner of ve (5) parcels of land on Black Thorne Way in South Yarmouth, Massachusetts. I am the arned plaintiff in the above-captioned case seeking reversal of a decision of the Board of ,ppeals of the Town of Yarmouth. 2. t am the owner of the five (5) lots in the Town of South Yarmouth which are the lhject of this litigation. Each of the five (5) lots in question was approved as buildable lot for ingle family residential use by a decision of the Planning board of the Town of Yarmouth on or bout April 17, 1985. - 3, Since 1985 and up to the present the Town of Yarmouth has assessed each of the five (5) lots separately as a buildable residential lot and 1 have received and paid a separate tax bill for each of the five (5) lots from 1985 to the present. 4. My five (5) lots are listed as Lots #183, 184, 185, 186, and 188 on Assessor's Map 31, and a plan of the lots is on file at the Barnstable County Registry of Deeds, Book 399, Page 35. 5. Attached to this Affidavit as,ExhiDiLl is a copy of the certified plot plan which depicts the five (5) lots in question. The five (5) lots are depicted as Lots #1, 3, 4, 5, and 6 on the map attached as J.xhibit 1.. 6. Each of the five (5) lots contains at least 15,000 square feet. 7. Four (4) of the five(5) lots have at least 75 feet of frontage. One (1) of the five (5) lots (Lot #186 on Assessor's Map 31 and depicted as Lot#3 on plan attached to this Affidavit) contains 50 feet of frontage and meets the minimal dimensional requirements of Section 203.2 of the Zoning By-Laws of the Town of Yarmouth (each side of the square described therein being 75 feet). 8. There are three (3) lots which abut Lot#183 on Assessor's Map 31, and I own only one (1) of the lots which abut Lot #183 (depicted on Exhibit 1 as Lot#6), 9. There are five (5) lots which abut Lot#184 on Assessor's Map 31, and I own only two (2)of the lots which abut Lot #184 (depicted on Exhibit I as Lot#5). 10. There are three (3) lots which abut Lot #185 on Assessor's Map 31, and I own only two (2) of the lots which abut Lot #185 (depicted on Exhibit I as Lot#4). 11. There are four (4) lots which abut Lot #186 on Assessor's Map 31, and I own only two (2) of the lots which abut Lot 4186 (depicted on Exhibit I as Lot #3). . _ '�-5.:--.Y4.riffm iaC. 12, There are three (3) lots which abut Lot #188 on Assessor's Map 31, and 1 own only one (1) of the lots which abut Lot#188 (depicted on Exhibit 1 as Lot #1). 13. An application with the building inspector of the Town of Yarmouth was filed on , my behalf requesting confirmation that each of my five (5) lots was a buildable residential lot. ill 0i The building inspector issued a decision that each of my five (5) lots did not comply with the j 7 '1'oning By-Laws of the Town of Yarmouth. 14. 1 appealed the decision of the building inspector to the Yarmouth Board of Appeals and that appeal was denied with respect to each of my five (5) lots. 15. Some time during 1996 or 1997 i had a conversation with Mr. Forest White who was the building inspector for the Town of Yarmouth and Mr, White informed me that each of myfive (5) lots was a buildable residential lot in compliance with the ZoningBy-Laws of the P Y Town of Yarmouth. _ 16. All of the above is based upon mypersonal knowledge. P t; r - ? Signed under thepains and penalties of perjury this day of August, 2000, � p S Robert J. Donohue gimmi anew TOWN F YARMO UTH Commonwealth of Massachusetts ,,i,,,iiii..,�...„�� 00' � 1 r r' Ii. - . , a Cii : 16 1i 4I4aPi • MATTACHE %$ (,II Q. G G '` 4 ZONING BYLAW YARMOUTH PLANNING BOARD Amended through January 11, 2000 .. 104.3.3 Restoration. Necessary repairs and rebuilding after damage by fire, storm or does not similar disaster are hereby permitted, provided that they are accomplished without undue delay and do not substantially change the character or size of the buildings, nor the use to which they were put prior to such damage. ming 104.3.4 Nonconforming Lots. Except as provided below, lots which do not conform to the dimensional requirements of this by- law, as amended, shall not be individually built upon unless combined and/or re-subdivided so as to meet the revised dimensional requirements. to the 1. Single lots. Any increase in area, frontage or other dimensional requirements of ) this zoning bylaw shall not apply to a lot for single family residential use which, at the time of recording or endorsement, whichever occurs sooner, conformed to may then existing requirements, had less than the new requirement but at least five ais if it thousand (5,000) square feet of area and fifty (50) feet of frontage and was not held in common ownership with any other contiguous lot at the time of, or since, non- the effective date of the increased requirements. Dod, iged to 2. Two (2) or three (3) adjoining lots. Any increase in area, frontage or other !rt to a dimensional requirements of this zoning bylaw shall not apply to a lot for single not be family residential use, provided the plan for such lot was duly recorded or endorsed and such lot was held in common ownership with contiguous lots and had less than the dimensional and density requirements of the newly effective zoning but contained at least seven thousand five hundred (7,500) square feet gazed and seventy-five (75) feet of frontage, or contained fifteen thousand (15,000) mined square feet and fifty (50) feet of frontage if approved under section 203.2 of this bylaw. This exemption shall not apply to more than three (3) such adjoining lots :on- held in common ownership. :urrent -it of 3. Definitive and Approval Not Required Plans. Provided in G.L., ch. 40A, sec. han is 6, as amended. 4. Business and Industrial Lots. In a B1, B2, or B3 District, any increase in area or frontage of this zoning bylaw shall not apply to a lot for business or industrial use which, at the time of recording or endorsement, whichever occurs sooner, conformed to then existing requirements, had less than the new requirement but at n the least eight thousand five hundred (8,500) square feet of area and fifty (50) feet of frontage and was not held in common ownership with any other contiguous lot at the time of, or since, the effective date of the increased requirements. Contiguous will lots in common ownership shall be combined and/or re-subdivided so as to meet 'd the revised dimensional and area requirements with the exception that, except as all hereinafter set forth in this paragraph, area and/or lot frontage dimensional requirements of this Zoning Bylaw shall not apply to a lot in a B1, 82, or B3 zoning district, for allowed uses within said zoning districts or uses allowed by Special red Permit therein, provided a plan for such lot was approved or endorsed by the pan Planning Board on or before June 3, 1996, duly recorded, filed, or registered and such lot was not held in common ownership with more than one abutting or 9 I _ contiguous lot as of June 3, 1996, and provided said lot contains at least ten thousand (10,000) square feet of non-wetland lot area and seventy-five (75) feet of lot frontage. The minimum required frontage may be reduced to fifty (50) feet if the lot is capable of containing a square each side of which is equal to seventy- five (75) feet. The width of any lot between the street line and the proposed building setback line shall be no less than twenty (20) feet. No point along any side of the above requisite square shall exceed five hundred (500) feet from the street. Measurement of this distance to the street abutting the lot shall be taken within the lines of the lot. 5. Other Nonconforming Residential Lots. Except as set forth in this paragraph, area, lot frontage or other dimensional requirements of this zoning bylaw shall not apply to a lot for single-family residential use, provided a plan for such lot was approved or endorsed by the Planning Board on or before June 3, 1996, duly recorded, filed, or registered and such lot was not held in common ownership with more than two abutting lots as of June 3, 1996; as provided said lot contains at least ten thousand (10,000) square feet of non-wetland lot area and either • seventy-five (75) feet of lot frontage or fifty (50) feet of lot frontage if the minimum dimensional requirements of Section 203.2 of this zoning bylaw are met, each side of the square described therein being seventy-five (75) feet. The minimum front yard setback for such a lot shall be pursuant to this bylaw Section 203.5 and footnote 1 thereof. The minimum side yard setbacks for such a lot shall be as set forth in Section 203.5 of this bylaw, but not more than the average of the setbacks of the residential dwellings on the lots next thereto on either side, but not less than six (6) feet, nor less than twelve (12) feet from any other building. The minimum rear yard setback for such a lot shall be as set forth in Section 203.5 of this bylaw, but not more than the average of the rear yard setbacks of the building(s) on the lot(s) abutting thereto, but not less than twelve (12) feet. The maximum building coverage for such a lot shall be in accordance with Section 203.5 of this bylaw. 104.3.5 Other Adjoining Non-conforming Lots 1. Purpose: The purpose of this sub-section is to provide for the orderly, efficient, and appropriate combination and/or re-division of multiple non-conforming lots where there is insufficient land to permit the resulting lot(s) to comply with the current dimensional requirements of the Bylaw. The procedures and relief authorized herein are intended to be considered in conjunction with, and not in place of, any other procedures with which the petitioners must comply, including those of the Subdivision Control Law and the Rules and Regulations of the Planning Board. It is the intention of this sub-section to accomplish maximum feasible compliance with the intent and purpose of the current zoning bylaws where full compliance is not possible but where development of the available land may otherwise be accomplished without substantially derogating from the intent and purposes of the bylaws. 10 TOWN OF YARMOUTH o� Y `� BOARD OF APPEALS DECISION ICAO L„G FILED WITH TOWN CLERK: June 21, 2000 PETITION NO: #3610 HEARING DATE: June 8, 2000 PETITIONER: Robert J. Donohue PROPERTY: Black Thorne Way, South Yarmouth Map: 31, Parcels: 183-186 & 188 Zoning District: R25 MEMBERS PRESENT AND VOTING: James Robertson, Vice Chairman, John Richards, Joseph Sarnosky, Diane Moudouris, Richard St. George. 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 to the public by posting notice of the hearing and published in The Register, the hearing was opened and held on the date stated above. The petitioner was represented by Attorney John P. Donohue. The petitioner seeks to overturn the decision of the Building Commissioner, wherein he declined to rule that the lots in question were buildable non-conforming lots. The lots, #183, #184, #185, #186, & #188, on Assessor's Map 31, are all owned by the petitioner, and have been in his ownership since prior to their creation by a subdivision in 1985. Lot 187, also owned by the petitioner, is improved with a single family home, while the others remain vacant. Each lot contains at least 15,000 square feet, the zoning requirement at the time of the subdivision, but none contain 25,000 square feet, the current requirement for the locus. The Building Commissioner has determined that the lots do not meet the statutory or bylaw exceptions for vacant lots (§104.3.4), because they were in common ownership at the time they became non-conforming, and at the time their subdivision freeze expired, and remain in common ownership at this time. Further, since all of the lots are abutting (each other), they do not satisfy the limitations of§104.3.4 (5). The petitioner contended that the Building Commissioner is in error in his conclusion that the lots are abutting "more than two" lots in common ownership. He contended that each lot abuts two, but not more than two other commonly owned lots. 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' ••.:., . . . . , -• . . ., . - . /SDc��ran or E4 Mns EEF � F� REALTY \UNITED Sr'S a LTD. REALTORS- BUILDERS 11 MAR 2 2000 March 1, 2000 r By Mr. James Brandolini Building Inspector Town of Yarmouth 1146 Route 28 South Yarmouth, MA 02664-4451 Dear Mr. Brandolini; On February 1, 2000, I submitted Buildable Lot Inquiry Forms for 5 lots, all located on Black Thorne Way in West Yarmouth. The lots were subdivided around 1985. The lots are 15,000+ sq.ft. in size. All lots, including the home on lot 2, are still owned by Robert Donohue. Although these lots were given verbal approval from your predecessor, I would appreciate knowing your interpretation on the lots in question. I apologize for being overly cautious. As you know, prospective buyers will spend thousands of dollars preparing a building permit application. The seller is also spending money on fencing and landscaping the entrance as well as drafting protective covenants for the cul-de-sac neighborhood. If there is a possibility of any zoning concerns, I want to address them now rather than after money is spent and liability developed. I know how busy you are. We at REEF REALTY LTD. understand your work load. I hope the above explanation will make this chore a little easier. Thank you in advance for your timely consideration on this matter. Yours truly, � _7 , -- j Lester Allen, CRB REEF REALTY LTD. + J (2) / �F✓ / i 66,4 g(."„te...„, /2 _ 24 School Street P 0 Box 186 West Dennis, Massachusetts 02670 (508) 394-3090 ' / —_____ 1py.�0 N 18.26'i'50" E 234.88 1xS.� -, 1 ' 73 o n 8 qb A ^' P ■ + A Y t0 o .4n CA M O) � a, H w a `, 1 4 S I. Qe '''. _ 4,1-15 y`'6 II'` ® 4,�� ffin —M -1, d P•woo V'2I(Is�' lit -I • I e / I N WI 7.44•]C ) I l� �� WO % r a ,:i 4 4 I n � 4.1 h • �a A�.: u; a - y a D ` % i W f- m I ` 0► • -,:w U u U UI © LI r Ll n R -p N 1 ,r Z r O • n sl N 1� M n 60 f'� f na N . 4. O1z = w,. • u i. n + Cs * w m. ' , )110 -� i 91.37 -_1�� �Qa.�� _ I 1 ---3 23' 27' 40' w PI i WI A ' , _ ,..,.Z 91.37 �� w — s 1 N• f�4 rru I m w +ki y-+. (� =w D 1� m I m O ri. i D p iN _ O D. m " 1 A U M® w a tit Au m • .I,ii W r al a f4 OO X.A u p E A 16 r . * l' W ®FL u M M Oi M p wr+ I • I 8 M ^> i iti(4 1 I 'ii mi j , v (\l; �! _ SA� ��- 8�•31' • f, '.c,.,. $ 30. � 30'w I Lt MC -moo- so �� S E A - , „�-- —,.,. veldt,,T0 V N—,WA V E N D f k.L1timeu„ E CUM as44243 \ ../.4i.....Y.4.: \IQ' allail"4"1"W 1. -----. 207� S 66'32'20•E 493.29 loam loam S •37 7� 0.,E 69164• J 6441 23 I Ile DRAINAGE (1 1 Cw EMMERT I W 1 5 2. \II I. R c Aso pRAS 3. z I AREA• 15,960 Wt.!'Wt.!' _ AREA • 15,486 sq. ttt r of 9 AREA • 22,935 sq.tt.± • 0.366 Aer66! 0.336 Acr6s2 W „d `, '67l5PPGE l51 0.5 2 7 f Acres S ® CI. \b © _ ® ,g i > s. 7\ �1jf.36 y-• 1/1.01 -K. 163.61 :' ..d r Y s 116• 32. 20• Ey "' H 3 s ea•3x 20-e ,,,t �i I B L A Ci K 'I • D R N E W A Y — (40 f t. PRIVATE WAY qft S3 I Oh I 125A0 ila `\ �- N 66• 32. \ 20' ar •- n Wj i II AREA • 17,878 sq.ft.+ ) F . I w $ or AREA• I5,542 sq.tt.± AREA• 15,000 sq.tt+ I =� ty or a a x � o 0.410 Acrest �y + 0.344 Acrest v 0 0.357 Acres- 1 cc 7\ In �5'•91.37' DRAINAGE �' I O f B`3 E AaENENT 1 ,A I sA•O I i / . 243. iS � 1a3.20 - -- �' U) - 10300 —N 67.39'00"W 515.45 ( I to 4 [ 3 • I r Han GRIMMJON1 K.K11 st st. JONI J.itIELEN J. FETTY S dHY6'AN PETER 9CFfl(AS at of c/o GEcbot. 6 SNtNI PEI. DCROYarl BOOT PAGE 115 1 wes•PME 144 BOOK3393.f E 121 BOOK 1312.RIDE 746 (Probst•f 5406n r 4b�` -----0, Rj V / S, e v d 031 , (gg ,�j MAP l 7 PCL /// ACRES . 3 6 PLAN NO. P.operty Location: OWNER TITLE REF. SELLING DATE PRICE ACCOUNT NO. , /0 Book/Doc Page/Cert Al, 8 5,' /3 6 / //b//' 3a35-- yr L - 8 /24-11-'. Dot)1661 f' ACCT# 03:1. 185 MAP 019 LOT H4 _41 PLAN NO. / /3 7 LOC 00021 BLACK THORNE WAY 1/39-# SELLING Uwivtrs s I i Lt FIEF.. ( ' DATE PRICE ACCOUNT NO. Book/Doc Page/Cert 2 ' ' f 4/,. / ./'./I /.CSC.' — 7':2?47/ /36. /2//1/A � - 3) 3 y9 L -er74-z, L�0 <F -n v1 _ •ACCT# 31 . 186 MAP 019 LOT H3 1PLAN NO. F i� 9 LOC 00020 BLACK THORNE WAY i13q-g_ SELLING vvvi crl i i ! LC ncr. 11117 DATE PRICE ACCOUNT NO. Book/Doc Page/Cert — k /a /3 6 /a�/�/ . 9 — 3 3s �q L--y , SOB,zr?ejo 3 i ACCT* 031. 184 MAP 019 LOT H5 y PLAN NO. /l Q 9 L0C 00015 BLACK THORNE WAY 11 SELLING OWNER TITLE REF. DATE PRICE ACCOUNT NO. 71 Bookk/Doc Page/Cert 9,4 /2 gg , /,Y6 l-2//lo/ 3�, s' q9 z - F1 Dagc?� oS M ACCT. 8? ----:* * 031. 183 MAP 019 LOT H6 PLAN NO. 1/ LOC 00005 BLACK THORNE WAY P SELLING OWNER TITLE REF. DATE PRICE ACCOUNT NO. Book/Doc Page/Cert r /c7 `7' / 6 /02-1/(/ ?.I ACCT'E 031. 187 MAP 019 LOT H2 3 7 PLAN NO. it?? LOC O00-14—BLACK THORNE WAY 7 SELLING OWNER TITLE REF. DATE PRICE ACCOUNT NO. Book/Doc Page/Cert I�SS� %. 6 /a/1G//17/ 3 '3S 419 g t2-1-71.,/ 1)68 2 0' i 4 TOWN OF YARMOUTH BOARD OF APPEALS wEE APPLICATION FOR HEARING <,'�- a Appeal #: V 6 l O Hearing Date: 008)0 O Fee$`I?. �O Applicant: Robert J. Donohue 4 0 Longfellow Road (Full Name- including d/b/a) Holyoke , MA 413/536-3219 (Address) (zip) (Telephone Number) and is the (check one) El Owner 0 Tenant 0 Prospective Buyer 0 Other Interested Party Property: This application relates to the property located at: Black Thorne Way which is also shown on the new Assessor's Map: 31 as Parcel: 183 , 184, 185 (old Map & Lot #)19 H b; 19 H 5 ; Zoning District: R-2 5 186 , 188 19H4 ; 19H3 ; 19H1 Project: The applicant seeks permission to undertake the following construction/use/activity :(give a brief description of the project. i.e.: "add a 10' by 15' deck to the front of our house" or "change the use of the existing building on the property"): Confirm that each of lot 183 , 184 , 185 , 186 , and 188 is a Buildable Lot for a Single Family Rome RELIEF REQUESTED: The applicant seeks the following relief from the Board of Appeals: 1) x REVERSE THE DECISION OF THE BUILDING INSPECTOR OR THE ZONING ADMINISTRATOR dated 3/9/00 (attach a copy of the decision appealed from). State the reason for reversal and the ruling which you request the Board to make. Each lot was created by a plan approved oy the Planning Board before June � l9(1.6 am porch Lot is held in common ownership with no more than two abutting lots . Each lot subject to exemption pursuant to Section 104 . 3 . 4 paragraph 5 . 2)� _ SPECIAL PERMIT under § of the Yarmouth Zoning By-law and/or for a use authorized upon Special Permit in the "Use Regulation Schedule" §202.5 3) VARIANCE from the Yarmouth Zoning By-law. Specify all sections of the by-law from which relief is requested. and. as to each section. specify the relief sought: Section: Relief sought: _ Section: Relief sought: Section: Relief sought: Additional comments: FACT SHEET This sheet must be completed and filed at the time of application. Owner of Property (if other than applicant) (Full Name) ( Address) - (Telephone Number) How long has the owner had title to the above premises: 1966 (Give title reference if available) Use Classification: Existing:Single Family §202.5 # Al Proposed: Single Family §202.5 # Al Is the property vacant: YeS How long has it been vacant: A 1 ways 1.R3-15, 000sf Lot Information (if available) Area: 18 4-15, 5 4 3 s f Subdivision/Plan Reference: / 185-17, 878sf ; 186-22, 935sf; 188-15, 486sf Is this property within the Aquifer Protection Overlay District: Yes No x Other Department(s) Reviewing Project: Indicate the other Town Departments which are/ have/ or will review this project. and indicate the status of their review process: None Repetitive Petition: Is this a re-application: No If yes, do you have Planning Board Approval: Prior Relief: If the property in question has been the subject of prior application to the Board of Appeals or Zoning Administrator, indicate the Appeal number(s) and other available information: None ADDITIONAL INFORMATION: Please use the space below to provide any additional information which you feel should be included in your application: c / ,l De- 1 �' '" 1,- i plicant's Signature/Attorney Address Owner's Sure 4 40 Mai:i Street Wo --ster, *^A 01608 Site Plan Review Required Completed I dr7","""74"............� 0 Yes 0 No 0 Yes 0 No B •r ing Inspector's Signature 30 Braeland Ave Newton, MA 02459 J U i3 +% 2000 Junel, 2000 TOIVN OF YARMOUTH Town of Yarmouth Board of Appeals BOARD OF APPEALS 1146 Route 28 So. Yarmouth,MA 02664-4451 To whom it may concern: This is in reference to #3610 Robert J. Donohue (lots 183 to 186 and 188) We are in favor to keep the lots "not buildable". This area is a high water table and with more building the water problem will worsen considerably. We have owned the property at 42 Jerusha Lane since 1971 and have seen the water problems increase. Sincerely, Francis Burokas Y .��. —lib • BUILDING TOWN OF Y A R M O U T H ELECTRICAL O —.a: 1:AS E.► -- I •f L'T 62(. E`8 SOUTH 1ARM 0L'TH MASSACHUSETTSO26ti.1 1451 ~}•• ,,. �� I� \ \11 JTL1� plume (508) 398-2231. Ext. "_61 — Fax (508) 398-2365 I'LL'Nlul\c, I I1, SIGNS \\B ?no U jj BUILDING DEPARTMIENT I. —}' BUILDABLE LOT INQUIRY FORM y- - Lot No. /83 Assessors' Map No. 3 Street S - 5 t L PLC Cda. y Endorsement Date of Subdivision Plan and Type(if applicable) l9 8 • Total Land Area(sq. ft) /5 CPO Frontage / 5 f i y O 4 o-r.q .now 6i13 Name of Current Owner I ohclku,2- Address de /y p 4, I} Telephone No. 5, -3 a\q Inquire's Name(if different from owner) L-k.u— 1t.tt, Telephone No 367 Li-309a Inquire's Mailing Address -1 • I SCE:, j Lc1 1/ , m t4- 7,Z67 Building Intent J Adjoining Lot Numbers / Signature of Applicant Date of Inquiry, a. / O b FOR OFFICE USE ONLY Does not conform with M.G.L. Chapter 40A, Section 6, single lot exemption, or Definitive Plan em tion and/or the applicable zoning bylaw, as per information provided. Reason e 7-l f 3 . AZ Conforms with M.G.L. Chapter 40A, Section 6, single lot exemption, and/or applicable zoning bylaw, as per information provided. Protected pursuant to M.G.L. Chapter 40A, Section 6, Definitive Plan Exemption. Application is incomplete. Comments: Adequate road access must-be present. Determination of access shall be determined by the Planning Board (if applicable). Must satisfy Title V requirements. Must satisfy Conservation regulations, if applicable. • c stigator's Signature - O- Date - - �' pF q 4. BUILDING TOWN OF YARMOUTH ELECTRIC-XL OA 1146ROL'TE2S SOUTH 1ARMOUTH MASSACHUSETTS02664-1-45I MATTACMLCS •r tea..,..,,.+�`� Telephone (508) 398-2231. Ext. 261 — Fax (-588)398.2365 PLUMBING I C i n J i SIGNS BUILDING DEP .A. RT \1E:`.T '; i� BUILDABLE LOT INQU RY FORM e yI Lot No._ /$ Y Assessors' Map No. 3 Street /5 - lac. ..-Ft‘0 r►1.2 C,�a.y Endorsement Date of Subdivision Plan and Type(if applicable) l9 e • t � Total Land Area(sq. ft) /5/ 5 4/2 Frontage / 3 y O <c•w.,ca.11ow 613 Name of Current Owner Dl or‘ok.JQ- Address ,4/y ova ,rjj4 Telephone No. 5 -3ak9 Inquire's Name(if different from owner) kLitA., Telephone No 3'1 L{-3090 Inquire's Mailing Address -1 •C. ?::,Q)1 I ) 1.c1 c 5 f kt ) nA6 7 O Building Intent 5 R Adjoining Lot Numbers / $3 4 /85 Signature of Applicant Date of Inquiry 2/i J 0 0 /Does FOR OFFICE USE ONLY not conform with M.G.L. Chapter 40A, Section 6, single lot exemption, or Definitive Plan Exem ion and/or the applicable zoning bylaw, as per information provided. Reason 1 P v-/7 -f3 /v f, 3. Conforms with M.G.L. Chapter 40A, Section 6, single lot exemption, and/or applicable zoning bylaw, as per information provided. Protected pursuant to M.G.L. Chapter 40A, Section 6, Definitive Plan Exemption. Application is incomplete. Comments: Adequate road access must-be present. Determination of access shall be determined by the Planning Board (if applicable). Must satisfy Title V requirements. Must satisfy Conservation regulations, if applicable. Masticator's Signature 2925A-7 Date 3 .y BUILDING ; p qhi� . ;'tom, . .,�, TOWN OF YARMOUTH ELECTRICAL o _ t',c,► t•; l l 46 RO UTE 28 SOUTH 1:�R.MO UTH MASSAC:HUSE"F S `i' ' S I �.a... MATTAC►1[CS ~� - }e...,.+r +2� Telephone (508) :398-2231. Est. 261 Fax (308) 398-`?36h; I? n 57 _"I. J / r - - ste Ns BUILDING DEPARTMENT BUILDABLE LOT INQUIRY FORM -- _:'OO Lot No. /f3.5 Assessors' Map No._ 3 I Street (2.1 - 13 tckc.VT o r•PLC 6L)CI./y Endorsement Date of Subdivision Plan and Type(if applicable) l9 8 5- IJ • Total Land Area(sq. ft) /71 $ 78 Frontage /02 n- i y o L.o-,,.gcdtccu CIL Name of Current Owner —0oho�.v�- Address �/y o ,AiA Telephone No. 5�-3awl Inquire's Name (if different from owner) irk,— A lU Telephone No 3q t{-3 a 9 p Inquire's Mailing Address -P•O. ;jq' I $(Q j L Jc 5-- W 5 , M(1 C) / 76 Building Intent S R Adjoining Lot Numbers /86 4 /8 Signature of Applicant Date of Inquiry Z i 0 0 FOR OFFICE USE ONLY Does not conform with M.G.L. Chapter 40A, Section 6, single lot exemption, or Definitive Plan Exemption and/or the applicable zoning bylaw, as per information provided. Reason �,c.{ A I Conforms with M.G.L. Chapter 40A, Section 6, single lot exemption, and/or applicable zoning bylaw, as per information provided. Protected pursuant to M.G.L. Chapter 40A, Section 6, Definitive Plan Exemption. Application is incomplete. Comments: Adequate road access must-be present. Determination of access shall be determined by the Planning Board (if applicable). Must satisfy Title V requirements. 1. Must satisfy Conservation regulations, if applicable. • rasisticalt or's Si nature c — �` '74•-4-- Date 3 "7- `'� ��'� BL'ILDI\(: 1S' TOWN OF YARMOUTH ELE(:TRI(.,L O _ — GAS " `; 11-Ili ROUTE 28 SOUTH l:kR.410 LTTH M SSACH USETTS 02664-}.}51 MATTACM[LS � i Telephone (508) 398-2231. Ext. 261 — Fax (508);398=23 i5H yipr - PLL�IBI�\C. ; J`I �i JJ I r ! II : SIGNS BUILDING DEPARTMENT BUILDABLE LOT INQUIRY FORM - 1 2000 ley (b611 Lot No. /R6 Assessors' Map No. 3 j Street - tckc...�e t CdG� y Endorsement Date of Subdivision Plan and Type (if applicable) l9 e • Total Land Area(sq. ft) a.a, 935 Frontage Name of Current Owner —0ohflkve- Address fio/y Q ,►�1f� Telephone No. 53-3 zot Inquire's Name(if different from owner) L k Telephone No 3q(4-3090 Inquire's Mailing Address -1 •C. a p ' / $(Q } Ld c Od 6 7C2 Building Intent 5 t Adjoining Lot Numbers /$' 7 * /S 5 Signature of Applicant ' Date of Inquiry L/t/00 / FOR OFFICE USE ONLY v Does not conform with M.G.L. Chapter 40A, Section 6, single lot exemption, or Definitive Plan Exemption and/or the applicable zoning bylaw, as per information provided. Reason , Conforms with M.G,L. Chapter 40A, Section 6, single lot exemption, and/or applicable zoning bylaw, as per information provided. Protected pursuant to M.G.L. Chapter 40A, Section 6, Definitive Plan Exemption. Application is incomplete. Comments: Adequate road access must-be present. Determination of access shall be determined by the Planning Board (if applicable). Must satisfy Title V requirements. Must satisfy Conservation regulations, if applicable. • A Wstigator's Signature � " `-' Date -9- 6)Ci .Y . ���ti'7::C1 BUILDING TOWN OF YARMOUTH ��i , ELECTRICAL �,, / ; 11-11i ROUTE 28 SOUTH 1ARMOUTH MASSACHUSETTS0266.1 1451 GAS MATTACfI.." ' q. '� I ,_, PLUMBING �•..,,.,,..0,,V' Telephone (508) 398-2231. Ext. _61 — Fax (508) 398-2365 SIGNS BUILDING DEPARTMENT • _ BUILDABLE LOT INQUIRY FORM J i 3v Lot No._ /gib Assessors' Map No. 3 I Street (o - Q Iac.kTh o r YLQ C.da_ y Endorsement Date of Subdivision Plan and Type (if applicable) /9 63 5- - Total Land Area(sq. ft) l S, '/8 fo Frontage /65 4 I if 4dr./1e.Jl04.4, 6/13 Name of Current Owner o ro ku� Address i jy o k ,iii 4 Telephone No. 5!-3 awl Inquire's Name (if different from owner) A-u- Al Telephone No 341 q-3Q9 p Inquire's Mailing Address 'P.O. 'Boy / SC, } Luc 5-1- v\l5 , M t4' Oda:7 70 Building Intent 5 P- Adjoining Lot Numbers /g 7 Signature of Applicant • Date of Inquiry 2.A/0 0 FOR OFFICE USE ONLY Does not conform with M.G.L. Chapter 40A, Section 6, single lot exemption, or Definitive Plan Exemption and/or the applicable zoning bylaw, as per information provided. ' Reason ,,e e. / r Conibrms with M.G.L. Chapter 40A, Section 6, single lot exemption, and/or applicable zoning bylaw, as per information provided. Protected pursuant to M.G.L. Chapter 40A, Section 6, Definitive Plan Exemption. Application is incomplete. Comments: Adequate road access must-be present. Determination of access shall be determined by the Planning Board (if applicable). Must satisfy Title V requirements. . 1. Must satisfy Conservation regulations, if applicable. • 4E) Thsi.stiaator's Signature a----fr„." 4. X-e----�r-4-- _ Date 3 - f • 0 u JAN-0'7-2001 1.0:01 FROM ATTY JOHN C CRENEY TO YARMOUTH TOWN P.01 • eltC1Ck • • • • TELECOPY COVER SHEET 31// 1193 ) 13 4) 1.25) 1 )4 _ 3 '3 8 John C. Creney P.C. Attorney at Law 86 Willow Street • Yarmouth Port Massachusetts 02675 If there ls a problem with transmission or if all pages are nOt received,please call 508 362-1122 for retransmission. Fax 508 362-1125 • TO: Ms. Rhonda La France FAX#: 508 398-2365 .1. COMPANY: Board of Appeals FROM: John C. Creney DATE: January 7, 2001 RE: Town of Yarmouth with Number of pages including this.cover page: 6 This message is intended only for thc uselcif the individual or entity to which it is addressed, and may contain information that is PRIVILEGED,,-CONFIDENTIAL and exempt from disclosure under applicable lave. If the reader.of this raessage•is not the intended recipient or the employee or agent responsible for deliveringr:the message to the:Intenc7674 recipient, You are hereby notified that any dissemination.distribution or copying of this'eoramunication is strictly prohibited. If you have received this communication in error,-please notify us immediately by-telephone, and return the original to us by . mail without making a copy. Thank you. Comments: • • Transmitted is a copy of the Superior Cpurt decision in the case of Robert I Donohue v.. Board of Appeals., it.e. . The Court denied Donohue's motiOn for summary judgment. Treating the opposition of the'Board,aS a croas motion for summary judgment, the .Court granted judgment in,f0pOT,the am ' I would not be surpfited fThis deCiSion Were'appealed to the Appeals Court by the plaintiff *. • P 177. r:"1"11- • •• • • • , • ! 1•; ..10'S ' : . • - . `4•• "et ; • - - JHN-U'(-2001 10:01 FROM ATTY JOHN C CRENEY TO YARMOUTH TOWN P.02 COMMONWEALTH OF MASSACHUSETTS , BARNSTABLE,ss. SUPERIOR COURT CIVIL ACTION NO. 00382 RICHARD J.DONOHUE vs. BOARD of APPEALS of YARMOUTH & others' • •r MEMORANDUM O DECISION AND ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGEMENT Plaintiff Donohue seeks judicial review,pursuant to G.L. c. 40A § 17, as a person aggrieved by a decision of the Board of Appeals of Yarmouth. Before the court is plaintiff's motion for summary judgement, seeking a favorable interpretation of the bylaw on which the Board based its decision. At the hearing on the motion the parties asked that the court treat defendant's opposition as a cross- motion for summary juegment. For the following reasons, the plaintiff's motion is DENIED. BACKGROUND The facts are not in dispute. Plaintiff subdivided laid he owns in South Yarmouth into six (6) smaller lots, on one of which he built a single fam;ly home. The present dispute involves the remaining five (5) lots. The lots were approved as buildable residential lots by the Town of Yarmouth in April, 1985. Since that time, the town has enacted changes to its zoning bylaws. In February of this year,plaintiff sought confirmation from the town's building inspector that each James A. Robertson, John Richards, Joseph Sarnovsky, Diane Moudouris, and Richard St. George, as members of the Board. JAN-07-2001 10:01 FROM ATTY JOHN C CRENEY TO YARMOUTH TOJ.4N P.03 lot remained a buildable residential lot. The.Building inspector ruled that they were not, nor was there any applicable grandfather provision, The plaintiffs appeal was denied by the Board. This appeal followed. ;:. DISCUSSION - Summary judgement shall be granted where there are no genuine issues as to any material fact and where the moving party is,entitled to judgement as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass.419, 422 (1983); Community Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass. R. Civ. P. 56(c). The moving party bears the burden of affirmatively demonstrating both elements. Pederson v Time, Inc., 404 Mass. 14, 16-17 (1989). A moving party who does not bear thevburden of progf at trial demonstrates the absence of a triable issue either by submitting affirmative evidence negating an essential element of the nonmoving party's case or by showing that the nonmoving party is unlikely to submit proof of the element at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991). "A complete failure of proof concerning an essential element of the non-moving party's case renders all other facts immaterial and mandates summary judgement in favor of the moving party. Kourouvacilis v General Motors Corp.,410 Mass. 706, 11 (1991) citing Celotex v. Catrett, 77 U.S. 317, 322 (1986). _...... The standard of review for a zoning appeal is de novo, requiring the judge to hear all evidence, determine the facts, apply the law, and make such decree as justice requires. Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 558 (1954). Proper deference is l given to the local board's reasonable construction ofregulations it is charged with implementing. Manning v. Boston Redevelopment Authority, 400 Mass. 411,1, 453 (1987); Advanced Development Concepts.Inc. v. Town of Blackstone, 33 Mass. App. Ct. 228, 231 (1992). • .. 2 JAN-07-2001 10:02 FROM ATTY JOHN C CRENEY TO YH<r1UUIh IUWN Plaintiff here advances, and stakes his case on, a literal definition of the term "abut," as used in the bylaw provision at issue. Under this interpretation, the provision applies only to lots that"abut" or share common boundaries with more than two other lots held in common ownership. In other words, geometry and geography are the determinative factors, and not the number of commonly-owned adjoining lots. The Board takes the position that it is the number of commonly-owned adjoining lots, however configured or defined, that this section was intended to regulate. This position is supported by a common sense reading of the bylaw as a whole. "A general term in a statute or enactment takes meaning from the setting in which it is employed. -The literal meaning of a general term in an enactment must be limited so as not to include matters that, although within the letter of the enactment, do not fairly come within its' • spirit and intent." Kenney v. Building Comm.'r of Melrose, 315 Mass. 291, 295 (1943), The Town of Yarmouth Zoning Bylaw in question, § 104.3.4 entitled "Nonconforming Lots" contains, in paragraph 2, an exemption for"[t]wo (2) or three (3) adjoining lots," (for single ,; `family residential use),held in common ownership. The tide of the disputed provision, paragraph 5, is "Other Nonconforming Residential Lots." Reading the enactment as a whole, it is clearly intended to provide for tht comprehensive regulation of all non-conforming uses, either by grandfathering them in, or by requiring,where possible, re-subdivision to achieve . . conformity. The literal interpretation advanced by the plaintiff would severely limit the bylaws applicability. • . The enactment at issue tracks the statute in many respects. Its' grandfather provision, however, is even more generous, allowing an exemption for up to three adjoining lots held in common ownership. As is often true in the law, the line needed to be drawn somewhere. Town ,i; I 3 -' ^i1 r'r w�ei1 Ib;b2 F.HUM ATTY JOHN C CRENEY l U YHNIiUU I H I UWN Meeting chose to draw it at"more than three (3) such adjoining lots held in common ownership." Yarmouth, Mass., Zoning Bylaw § 104.3.4, ¶2. Grandfather provisions "protect[] a once valid lot from being rendered unbuildable for residential purposes, . . . but only if there is compliance with statutory conditions. The condition • • that the nonconforming lot not [be]held in common ownership with any adjoining land represents a statutory codification of a principle of long-standing application in the zoning context: a landowner will not be permitted to create a dimensional nonconformity if he could have used his adjoining land to avoid or diminish the nonconformity." Planning Board of• Norwell v. Serena, 27 Mass. App. Ct. 689, 690 (1989) (internal quotes and citations omitted). This is just such a situation. While a more precise drafting may have been possible, an enactment will not be construed so as to produce an unreasonable result when a sensible construction is readily available, nor"in such a way as to make a nullity of pertinent provisions." Manning, 400 Mass. at 453. The Yarmouth enactment generally tracks the statutory language of G.L. c. 40 A § 6. The grandfather provision is somewhat more generous. it does ru..t go so far,however, as to rescue this plaintiff from the lapse of his statutory exemption. 4 JAN-07-2001 10:03 FROM ATTY JOHN C CRENEY TO YARMOUTH TOWN P.06 ORDER For the forgoing reasons, it is ordered that plaintiff's motion for summary judgement be DENIED and that summary judgment enter AFFIRMING the decision of the Board of Appeals. • Dated: December 19, 2000 ary A.Nickerson :�:E Justice of the Superior Court true.copy,Attest: j... l i. • Commonwealth of Massachusetts County of Barnstable The Superior Court CIVIL DOCKET# BACV2000-00382 Robert J. Donohue vs Board of Appeals of Yarmouth CORRECTED JUDGMENT AFTER RESCRIPT This action was appealed to the Appeals Court for the Commonwealth, the issues having been duly heard and the Appeals Court having duly issued a rescript affirming the Judgment of the Superior Court, It is ORDERED and ADJUDGED: 1. that the decision of the Yarmouth Board of Appeals, dated March 9, 2000, did not exceed its authority, and that no modification of it is required; is Affirmed and; 2. that the Clerk of this Court within thirty days after entry of this judgment shall send copies thereof to the Board of Appeals, Building Commissioner, and the Clerk of the town of Yarmouth. JUDGMENT after rescript: AFFIRMED (AP 11/12/2002) Dated at Barnstable, Massachusetts this 6th day of February, 2003. Scott W. Nickerson, Clerk of the Courts Entered on the docket: By. t(' March 18, 2003 /Assistant Clerk A true copy, Attest: ez/tite.-r i-de„) /Clerk MAR 2 0 2003 cvdjudresc.wpd 315539 judrescr bearseli �� rrn-2 2 TOWN OF YARMOUTH / ,,. &1 BUILDING DEPARTMENT , .1 .1A--( �. ti ra+ATTNC .f,.Ti 1146 Route 28, S p, ,^��r..,�,;� South Yarmouth, MA 02664 i �. 'y ' 508-398-2231 ext. 261 Fax 508-398-0836 1 yr,,70. . /a, 7 August 8, 2002 Mr. John P. Donahue, Attorney at Law 340 Main Street Suite 817 Worcester, MA 01608 ' , RE: Black Thorne Way Dear Mr. Donohue: Reference is hereby made to your handwritten letter and lot inquiry forms of May 15, 2002 and your follow-up letter of July 9, 2002 concerning lots 183, 184, 185, 186 and 188 shown on assessors' map 31. You have suggested by citing Marinelli v Board of Appeals of Stoughton that three of the remaining five lots are protected. To further clarify this matter in a legal sense, I requested an opinion from Town Counsel, John C. Creney, of which, I believe you have received a copy. Based on his opinion and in consideration of the aforementioned court case I find that the owner of the property would be entitled to build on two (2) of the five lots. Building permits would be issued for the two lots chosen and applied for, provided all other applicable zoning and building code provisions are meet. However, it would be my suggestion that when selecting which of the two lots your client wishes to build on, that consideration he given to the provisions of zoning bylaw section 104.3.5, in light of possible future combination/reconfiguration of the other three lots. V ly yours, , / James D. Brandolini, C.B.O Building Commissioner cc: John C. Creney, Town Counsel David Reid, Chairman Board of Appeals cNu:Fcr�4iPllFractt- a:.�•�...-••• --j SENDER: or "' IS SECTION COMPLETE THIS SECTION ON DELIVERY • Complete items 1,2,and 3.Also complete A. Sign. item 4 if Restricted Delivery is desired. / 0 Agent • Print your name and address on the reverse X I `j ❑Addressee so that we can return the card to you. B. eceiverfby Printe.Name C. Date of Delivery • Attach this card to the back of the mailpiece, / /)- or on the front if space permits. D. Is delivery address different from item 1? 0 Yes 1. Article Addressed to: If YES,enter delivery address below: ❑ No I(1qr' J0 h1(1 P. 1,00--)&-t c _, :3 yip aiditi Sf (-/, a/7 3. Sr(ce Type L11 Certified Mail El Express Mail W /1 E- � 1 /1 p O/t S ❑ Registered 0 Return Receipt for Merchandise l 1 J // ` ❑ Insured Mail ❑C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number 7001 1140 0002 9388 7779 (Transfer from service label) PS Form 3811,August 2001 Domestic Return Receipt 102595-01-M-2509 U.S.P. ttt�Itfervice !RED MAIL RECEIPT (LTomestic.Mail Only; No Insurance Coverage Provided) R^ f� N $co Postage $ m Q^ Certified Fee Return Receipt Fee Postmark (Endorsement Required) Here DeliveryC:3 Restricted Fee O (Endorsement Reuied) im Total Postage&Fees $ r-q 34▪ Sent To /ln 4 / • v G�l17- rl4. Street,Apt.No.; `77��� or PO Box No. NCity,State,ZIP+ (l l((i� j� PS Form 3800,January 2001 See Reverse for Instructions TOWN OF YARIVIOUTH BUILDING DEPARTMENT 1146 Route 28, South Yarmouth, MA 02664 , e,.....,?,- , - 508-398-2231 ext. 261 Fax 508-398-0836 August 8,2002 Mr. John P. Donahue,Attorney at Law 340 Main Street Suite 817 Worcester, MA 01608 RE: Black Thorne Way Dear Mr. Donohue: Reference is hereby made to your handwritten letter and lot inquiry forms of May 15, 2002 and your follow-up letter of July 9, 2002 concerning lots 183, 184, 185, 186 and 188 shown on assessors' map 31. You have suggested by citing Marinelli v Board of Appeals of Stoughton that three of the remaining five lots are protected. To further clarify this matter in a legal sense, I requested an opinion from Town Counsel, John C. Creney, of which, I believe you have received a copy. Based on his opinion and in consideration of the aforementioned court case I find that the owner of the property would be entitled to build on two (2) of the five lots. Building permits would be issued for the two lots chosen and applied for, provided all other applicable zoning and building code provisions are meet. However, it would be my suggestion that when selecting which of the two lots your client wishes to build on, that consideration be given to the provisions of zoning bylaw section 104.3.5,in light of possible future combination/reconfiguration of the other three lots. Ye ly yours, '-••• ‘,,•••:,..‘4, .• - / James D. Brandolini, C.B.O yu t: „7" Building Commissioner cc: John C. Creney, Town Counsel David Reid, Chairman Board of Appeals • SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY • Complete items 1,2,and 3.Also complete A. Signature item 4 if Restricted Delivery is desired. 0 Agent • Print your name and address on the reverse X • El Addressee so that we can return the card to you. B. Re i ed (Prfrtted Name)' C. Date of Delivery • Attach this card to the back of the mailpiece, y' b or on the front if space permits. D. Is delivery address different from item 1? 0 Yes 1. Article Addressed to: (f) If YES,enter delivery address below: 0 No 1 a }A.v C . C0<f_I cL/ y �,(,)/((a4(2 S f • �n 1,� (/) 3. SServ) e Type j. noe A 1/ t9Cr � (y I G Certified Mail ❑ Express Mail l t`v' 0 Registered 0 Return Receipt for Merchandise 0 Insured Mail 0 C.O.D. 4. Restricted a) 0 Yes 2. Article Number 114[]nUi.k 9388 7786 (transfer from service It 7 U U 1 PS Form 3811,August 2001 Domestic Return Receipt 102595-01-M-2509 U.S. -rvice r'E' D MAIL RECEIPT ( omestic.Mail Only; No Insurance Coverage Provided) .11 1 N N Postage $ . m Certified Fee RJ Return Receipt Fee Postmark O (Endorsement Required) Here Restricted Delivery Fee 6-1 (Endorsement Required) O Total Postage&Fees ' Sent To1-4 - Street,Apt.N ci O orrPO Box No. N City,State,ZIP+4 PS Form 3800,January 2001 See Reverse for Instructions