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Home My WebLink About5171 23 Iroquois Blvd Attorney Letter 03.19.25SENIE Assoc'IATES, 1). C 15 Cape Lane Brewster, MA 02631 Phone (774) 323-3027 Cell (508) 221-0358 jpollani(is;,cnic;-la�v.corn WWW.S1=NIE-LAW.CONl March 19, 2025 Zoning Board of Appeals Town of Yarmouth Yannouth Town Hall 1146 Route 28 South Yarmouth, MA 02664 Re: John Tolley - 23 Iroquois Blvd enforcement order Dear Board members, This office represents Jon Talley, as the owner of 23 Iroquois Blvd, West Yannouth, MA. 23 Iroquois Blvd is owned by Jon Frederick Tolley, as Trustee of the Jon Frederick Tolley Living Trust, by deed dated March 16, 2015. Mr. Tolley had previously inherited the property from his mother, Rosamond G. Tolley, by deed in 1999. Prior to that he had grown up at this property, which his parents had owned since 1957 as shown by Certificate of Title No. 21388. Since his early childhood, Mr. Tolley recalls fishing with his father. It was also during this time that Mr. Tolley helped his father sell his catch from their residence. Mr. Tolley has testified to as much in the attached affidavit by him, stating that since his father purchased the property at 23 Iroquois Blvd in 1951 there has been active retail sale of fish, shellfish and lobsters from the premises. Yarmouth has a long history of allowing the sale of personal catch from residences located in the residential district. Lip to 1982, Yarmouth allowed retail sale of fish as a commercial use in the Residential district by -right and without furtherpennission. The 1981 Yannouth Zoning Bylaw includes the following provision: E--8 Handl i na of fish on Yes No Yes Yes` same premises where brought in from sea, including sale this language goes back to at least 1958, where the zoning bylaw contained a much more basic set of allowed uses, but included the same language: Yarmouth Zoning Board of Appeals March 19, 2025 Page 2 �__- -- v- - -- 6. The handling of fish on the same premises where brought in from the sea, including sale; No version of the Yarmouth Zoning Bylaw defines "fish", but in context it generally includes animals that are caught at sea, including shellfish and crustaceans like lobster. This accords with the present usage of the word "fishing" generally in the Bylaw to refer to the method of catching seafood, and which is also not defined. Regarding the reference to "premises", and whether this is meant to include a personal residence in a residential zoning district, the question is directed to where the fish are "brought in". According to Mr. Tolley, the fish were "brought in" in the boat which was hauled to 23 Iroquois Blvd. The catch was brought to 23 Iroquois Blvd from the sea, and not brought to a pier or landing to be unloaded, distributed or sold. As this is the case, it is appropriate and necessary to treat 23 Iroquois Blvd as the "premises where brought in from the sea". This is in fact the practice that has born out for the past 50 - years since 1957. In 1981, the bylaw was amended to create a separate category of agricultural uses. The category of agricultural uses included not just activities on land, but also "aquaculture, fishing, shellfishing". Section 175-2300 (Yarmouth Zoning Bylaw, 1981) created a separate principal use category, permissible by -right in every zoning district, which treated aquaculture, fishing and shellfishing as essentially a protected agricultural use. Through various amendments, the zoning bylaw has been refined to refer simply to "fishing" (along with hunting and trapping) as an allowed use in the Residential District (and every other district but the RMDOD). In 1982, the provision allowing by -right use of personal residence in the Residential district for the handling and retail sale of "fish" was eliminated, although "fishing" remained a permissible use. As a result of this change in the bylaw, Mr. Tolley's use of 23 Iroquois Blvd for retail sale of his catch became non -conforming, unless otherwise allowed by another section of the Bylaw. Currently, the Yarmouth Zoning Bylaw does allow accessory uses that are "customarily incidental to any of the above permitted uses and not detrimental to the neighborhood". This language has not changed since 1958, and allows a lesser and minor use to exist, regardless of whether it is specifically allowed, so long as it is customary and `incidental' to an allowed principal use. Mr. Tolley has stated that his father fished and sold his catch, including lobsters and shellfish, from this residence. See Affidavit of Jon Fred eiick_Tolley_dated December 12, 2024, included herewith. It was Mr. Tolley's personal experience going back to the age of about 3 years old that this was how his father ran his business. This is also the reason why he has continued the business and remained in the same location over the years. The attached affidavits attest to the fact that Mr. Tolley has actively run the business and used this property for commercial retail of fish, shellfish and lobster since 1975 to the present. See also Affidavit of Stephen Ferguson dated December , 2024, included herewith. Yannouth Zoning Board of Appeals March 19, 2025 Page 3 Based on these statements and the state of the Yarmouth Zoning Bylaw over the years, Mr. Tolley's retail sale of fish from his personal residence can, and should, be classified as a lawful pre-existing use protected from subsequent amendments to the bylaw. The 1981 Yarmouth Zoning Bylaw clearly allowed the active sale of catch, as a retail business, in the residential district, and Mr. Tolley and his father have run a continuous operation from this property since 1957. The historical existence of Yannouth as a fishing village is reflected in this Bylaw provision, as well as the testimony of Mr. Tolley and others to the activities going on at this property. Even if the Board were to consider the retail sale of fish was not protected under prior versions of the Bylaw, the current Bylaw permits fishing as a principal use in every district except the RMDQD. The retail sale of fish is certainly an allowable accessory use, being customarily incidental to fishing, an allowed principal use. Mr. Tolley only sells his own catch not anyone elses. He does not operate a fish market, but is selling his catch that he himself brings in in his own registered boat. Where fishing is an allowed use, it is illogical to suggest that the selling of one's own catch is not accessory to fishing for it. In order for an accessory use to be permissible, in addition to being customarily incidental, the accessory use must not be detrimental to the neighborhood. This requirement is similar to the general standards used during special permit review. Lydon v. Town ol' Milton Cad. of Appeal;, 20 LC'R 251, 257 (Mass. Land Ct. 2012) (finding a similar requirement in special pen -nit review "that a use must not be substantially detrimental to the public good"). Section 103.2.2 makes similar provision ("no substantial harm to the established or future character of the neighborhood or town,"). Similar to the facts found in Lydon, Iroquois Blvd is presently subject to commercial and conunuter traffic and is used as a through way. 23 Iroquois Blvd has also been used in the same fashion for over 50 years, and there is broad support for this continued use here by the neighbors. The long history of the use of this property, the community support in favor of its continuing use, and the limited effect on current traffic patterns all support a lack of detriment to the neighborhood. In addition, to the signed petition and emailed support submitted in Case #5134, several residents along Iroquois Blvd and Navajo Road are supportive of Mr. Tolley's business operations. Based on the above, it is my position that Mr. Tolley should be pennitted to continue operating his retail business from his personal residence, and that this use should not require additional permitting to qualify as a lawful use. Given its long history of operation and the language of the previous Bylaws, there is support for a finding that Mr. Tolley's use is a protected non- conforming use. Alternatively, the language of the current Bylaw supports finding Mr. Tolley's use is a permissible accessory use customarily incidental to fishing, and that it is not detrimental to the neighborhood. For these reasons, we request you overturn the determination that the retail sale of fish, shellfish and lobsters at 23 Iroquois Blvd violates the Bylaw. Very truly yours, Yamnouth Zoning Board of Appeals March 19, 2025 Page Polloni Cc: Client