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Home My WebLink About5176 94 Pleasant St Application Attachmentsof Va l ZONING BOARD OF APPEALS ABUTTER NOTIFICATION MAILINGS For postage charges, see the ZBA Office Administrator (who will request the certified abutters list from the Assessor's Office and handle the abutter mailings): 508-398-2231, extension 1285; dfallon1,4.yarmduth.ma.us • Fees are nonrefundable. Check or cash (exact change) for total fee (application and postage) is submitted with the application. • Who is an abutter? An abutter is a person who owns property near or next to the property address. • Notices must be sent to the property owner, abutters, and owners of land directly opposite on any public or private street or way, and abutters to the abutters (within 300 feet of the property line) of the property owner as they appear on the most recent applicable tax list. • Postage charges for all applications are determined by the number of abutters (and the parcel(s) in question) multiplied by .56 cents (which is the current cost for the required mailings). Applicant Name: Property Addres! Map Number Lot Number Map Number Lot Number Applicant 5 j Abutters Z r s' MAR-08-01 11:05 AM MARASCO 9783621248 P.02 dr lvFo Ooe/./ N or koT 2, 3df000 p y i otO + - ��• P�.'�y.�.v.�T�D ice_ D N CON 4 ENV I o; on Ld LU xn x z �e m 2 W x F� a U U a] I� O m0 3.0 32 � W z O oZ F-Q aJ , z 11 0LL 0 V zz rrr V! J Xa. W O w C7 n w F- 0 a W a r- c C 01 March 13, 2025 a tl� A44-W Town Administrator Building Commissioner Conservation Commission Town of Yarmouth 1146 Route 28 South Yarmouth, MA 02664 Hand delivered to all Re: Request for Town to Address and Require Relocation of Construction Pole at 40 Crosby Street Beyond its Fall Zone for Public Safety Reasons Dear Town Officials: I am writing to formally ask the Town to address its responsibility to enforce public safety and require the relocation of the utility pole with a platform and extension for migrating osprey at 40 Crosby Street to an area that is well beyond my property line at 94 Pleasant Street. Because the pole broke completely at its base and fell to the ground this past December, it is now undeniably evident that this hue heayy and unregulated pole is located dangerously too close to MV PrODertyand thus ieopardizing the safety of myself, my„ do4. mv guests. and my_propertX. The most reasonable remedy is for the Conservation Commission to revise its wetlands mitigation plan and require the pole to be relocated so that the top of the pole and the platform and extensions are not able to fall in or near my yard, or alternatively for the Building Department to formally review the apparent danger, need, and authority to require the relocation of the pole. The heavy, huge pole regardless of its use broke and fell. It will break and/or fall again. The danger is real. 1. The Conservation Commission allowed the installation of a 40-to 50-foot construction pole at 40 Crosby Street in an area not more than 15-20 feet from my property line via a wetlands mitigation order. (Reference SE 84-120 (2022)). It had a large wooden platform on top, surveillance (camera and sound) equipment as well as electricity. It was used by 5-6 different osprey migrating each year from the Spring to the Fall each year. 2. The pole with extensions was located in within the wetlands where the soil is unstable and becomes more unstable as tides continue to rise. The winds with the platform, like a sail, cause the pole to sway. 3. The pole broke at its base on or about the end of December 2024 and fell . westerly onto 40 Crosby Street. 203.5 Table of Dimensional RegU ements (A) Zoning or OverlayLot District Minimum Size in Sq. Ft. B,C,N,R,S Minimum Frontage g in feet F,G,R Minimum Yard in feet (D,1=,R,U} Front Side Rear 1 Maximum Building Coverage % R Maximum Shape (Factct or R-87 87210 200 30 50 75 25 22 R-40 40000 150 30 20 20 25 22 R-25 25000 150 30 15 20 25 22 RS-40 40000 150 30 20 20 25 22 81 25000 150 30 J, X, Y 25 20 25 (L) 22 62 20000 125 H 30 X,Y 25 20 25 L 22 B3 40000 100 30 K, X, Y 10AK) 30 P 22 R M DO D 40000 100 30 10 30 P 22 MU 217800 5 acres 200 30 25 20 25 22 AED 40000 100 30 10 30 P 22 HMOD1 20000 125 H 30 X, Y 25 20 25 L 22 HMOD2 20000 125 H 30 X, Y 25 20 25 L 22 MOD 20000 75 20 15 15 35 22 APD The Aquifer Protection Overlay District (APD) overlays the town's zoning districts; see the information above for dimensional requirements (P) ROAD The Revitalization Overlay Architectural District (ROAD) overlays other commercial zoning districts, as described in section 411.3 VCOD (all districts The Village Centers Overlay District (VCOD) overlays other districts and the dimensional requirements of Section 414 shall govern. Notes: A. See section 402 for dimensional requirements in a cluster or multi -family development. B. Motels/hotels, where allowed, shall have a minimum lot area of 25,000 square feet and shall be constructed at a density of not more than one (1) unit per one thousand (1,000) square feet of lot area and shall conform to the minimum lot size in the table above. C. Except for properties to which Section 404 applies, two-family dwellings, where allowed, require twice (2 times) the normal minimum lot size of the district. D. The following are specifically excluded from these regulations: 1. Fences, walls, poles, posts, paving and other customary yard accessories, ornaments and furniture, ramps, landings and similar s ruc ures needed for handicapped access. 2. Cornices, window sills, belt courses and other ornamental features may project not more than eighteen (18) inches; bay/bow windows, greenhouse windows and eaves may project not more than twenty-four (24) inches, and chimneys may project not more than thirty-two (32) inches into any required yard. 30 a� •�, .xs� �� -lam f is no more than a twenty foot (20') increase in the height of the existing structure as a result of the installation of a Communications Facility: electric transmission and distribution towers, water towers, telephone poles and similar existing utility structures. This exemption shall not apply in the Old King's Highway Regional Historic District, within 300 feet of the right-of-way of any scenic roadway. 408.7.6.6 Microwave antennas exceeding 12 inches in diameter on a roof or building -mounted facility shall not exceed the height of the structure to which they are attached, unless fully enclosed. 408.7.7 Parking Requirements. All Communications Facilities must meet the parking and buffer requirements of Bylaw section 301 (Parking and Loading Requirements). 408.7.8 Fall Zones. Communications towers, whether free-standing or part of another structure or building, must be set back from all property lines by at least the total height of the tower structure and its appurtenances. 408.7.9 Aesthetics. 408.7.9.1 Landscaping. Existing mature tree growth and natural land forms on sites shall be preserved to the maximum extent possible. Screening for sites buffers and parking lots must meet the criteria outlined in section 301 Parking and Loading. In addition, the base of communication towers shall be screened from view by a minimum four (4) foot wide planting strip maintained with densely planted shrubs not less than six (6) feet in height. Shrubs shall be at least seventy-five percent (75%) evergreens. Fences or walls may be a part of such screening where deemed necessary, as approved by the Site Plan Review Team. In locations where the visual impact of communications towers would not be an issue, these requirements may be reduced or waived by the Building Commissioner upon unanimous vote by the Site Plan Review Team. 408.7.10 Color and Camouflage 408.7.10.1 Color. Communications towers and antennas shall maintain a light gray or light blue finish, unless otherwise required by the Board of Appeals. Communication towers and/or antennas installed on an existing building or structure shall be camouflaged to match the building or structure to which they are attached or the background against which they are most commonly seen. 408.7.10.2 Camouflage by Existing Buildings or Structures: 1. When a Communications Facility extends above the roof height of a building on which it is mounted, a reasonable good faith effort shall be made to conceal the facility within or behind existing architectural features to limit its visibility from public ways. Facilities mounted on a roof shall be stepped back from the front facade in order to limit their impact on the building's silhouette. 2. Communications Facilities which are side mounted shall blend with the existing building's architecture and shall be painted or shielded with material which is consistent with the design features and materials of the building. 91 2. A RWES that requires an ease gent, 407.1 n1.s� 3. A RWES that will have an equipment shelter in excess of 150 square feet in floor area or multi -story; 4. A RWES that serves multiple properties; 5. A RWES that has a total extended height greater than 125% 6. Above ground wiring, cables, or power lines. 413.1.2 Siting Requirements. 1. A RWES located on a residentially zoned lot must have its fall zone located completely within that property's lot lines unless the lot owner is grante a w-r en easement(s) by an abutting property owner(s). Said easement(s) shall be in force at least as long as the turbine is erected and shall be duly recorded at the Barnstable County Registry of Deeds. 2. The base of the RWES tower shall be set back from all public and private rights -of -way and public utility lines a distance equal to the total extended height plus ten feet. Under no condition shall the RWES interfere with public utility lines or rights of way, public or private. 3. Anchors for guy wires which support a RWES may be located within building setbacks, as those setbacks are outlined in section 203.5, Table of Dimensional Requirements. 413.1.3 Sound Requirements. Sound produced by the RWES under normal operating conditions shall not exceed 10 dBA above ambient noise, as measured at the property line. Sound produced by the RWES shall conform to MA 310CMR 7.10 413.1.4 Height Limitation. The total extended height of a RWES shall be less than or equal to 125' unless a special permit is granted by the Zoning Board of Appeals. 413.1.5 Access. No climbing foot pegs or ladder rungs shall be allowed below the first twelve (12) feet of a tower in order to prevent unauthorized access. 413.1.6 Equipment Shelter. An accessory structure used exclusively for battery storage pertaining to a RWES shall be no more than 150 square feet in floor area and single story unless a special permit is granted by the Zoning Board of Appeals. 413.1.7 Aesthetics 1. Wind turbines, blades, towers and all equipment mounted on towers shall have a white, light gray or light blue non -reflective finish to minimize contrast with sky and clouds. 2. Lattice towers shall not be allowed. 3. All electrical wiring, cables and power lines of a RWES shall be placed underground. 110 �qh "Rose M. Marasco Living Trust, Maria Marasco, Trustee Supplemental information to ZBA April 22, 2025 1. Relief Sought: Enforcement of Zoning Authority granted to Town as follows: For safety and liability reasons, I request that the utility pole used for other purposes (osprey nesting and electronic surveillance and transmission) and which is a "structure" and not a "customary yard accessory" be removed and/or relocated in a location where its fall zone does not extend into my beach/yard. The prior pole fell, demonstrating a danger and has been replaced with a new, larger structure. 2. Appeal to ZBA. a. "Under M.G.L. c. 40A, § 8: If the building inspector (or zoning enforcement officer) fails to act on a written request for enforcement or zoning interpretation within 14 days, the request is deemed denied. b. Appeal Deadline to Zoning Board of Appeals (ZBA) Under M.G.L. c. 40A, § 15: The applicant (or any person aggrieved) has 30 days from the date of the denial —whether it is actual or deemed- -to file an appeal with the Zoning Board of Appeals. c. Request for enforcement made by in -person hand -delivered letter to Town dated March 13, 2025. Time Period March to act tolled March 28, 2025. Appeal to ZBA timely filed on April 22, 2025 by in -person, hand -delivery to ZBA. d. Assuming by not agreeing that the prior pole located at 40 Crosby Street was illegal, non -conforming and perhaps somehow "grandfathered" or that pole may have had de facto approval by the Building Department through Conservation Commission authorization (5E-84-120 (2022)) when it broke at the base and fell in December 2024, the then (second) pole ceased to exist and is a new pole subject to the Town's Zoning By-laws and/or broad authority of the Building Commissioner. 3. Application of Zoning By-laws: a. § 101.1 Enforcement. Designation of the Building Commissioner or their designee to enforce the by-law. b. § 102.2.3 Board of Appeals action. c. § 103.1 Required Permits and 103.1.1 Compliance Certification. `Buildings, structures (emphasis provided) or land may not be erected, substantially altered or changed in use without certification by the Building Commissioner..." And alternatively if not certification by the Building Commissioner, then § 103.2.1 Special Permit granting authority. Unless specifically designated otherwise, the Board of Appeals shall act as the special permit granting authority. d. § 104.3.2 Change, Extension, Alteration, and § 104.3.3. Special Permit by BOA. Assuming but not deciding or conceding that the structure was legal, non- conforming through building permit issued for reconstruction of new home, § 104.3.2.A. "itself (accessory structure) conforms to the applicable bylaw requirement...", B. "does not otherwise increase (emphasis provided) the non- conforming nature of the structure. These determinations shall, in the first A�* instance be made by the Building Commissioner as the Zoning Enforcement Officer. [ ]". §104.3.2.3 "Other lawful pre-existing, non -conforming structures may be altered, extended razed and replaced by Special Permit from the BOA if it is determined that: ... A. (1) (conformity) and (2) (not detrimental), B.(not contribute as nuisance, hazard, ...), §104.2.3.4 (determination by BOA). e. § 203 Intensity of Use Regulations: Provides dimensional requirements for structures, such as setbacks, lot coverage, and building height, which are essential for determining the permissible size and placement of structures on a lot. f. § 500 Definitions, Structure, page 169. The combination of materials..., or anything constructed or erected, the use of which requires a fixed location on the ground, including but not limited to buildings, ..., piers, signs, fences, radio antennas, and retaining walls. g. Not applicable., Footnote 203.5 D1, page 30. "The following are specifically excluded from these regulations: 1. Fences, walls, poles, posts, paving and other customary yard accessories, ornaments and furniture, ramps, landings and other similar structures needed for handicapped access." The use of "pole" is framed in the context of "other customary yard accessories." To construe a one -ton utility pole used for any purpose is a gross misinterpretation of this provision. "Customary" limits what kinds of accessories are allowed by referring to what is generally understood to be normal or expected in a residential yard. Argument: The above provision is intended to prevent unusual, oversized, or industrial -like structures from being erected under the guise of being "accessories." In Harvard v. Maxant, 360 Mass. 432 (1971), the Supreme Judicial Court said: "An accessory use must be one that is customarily, habitually, and commonly associated with the principal use." When zoning bylaws refer to "customary poles" in the context of yard accessories, they typically mean: Decorative or functional poles associated with residential use (e.g., flagpoles, light poles, birdhouses). Poles that are consistent in size, placement, and use with what is commonly found in residential areas. If a utility pole is erected for a purpose outside of standard residential use such as mounting surveillance equipment, hosting antennas or communications gear, supporting large-scale solar, lighting, or signage structures, for example, for which there a permitting and Fall Zone requirements under Yarmouth's By-laws, it may not be considered a customary pole. Under this particular case of the pole being used as a wildlife platform (e.g., osprey "nesting" poles), it also may not be considered a customary pole and must conform to other safety and design regulations. 4, Proposed Findings: The pole is: a, a "structure" with electrical conduits and surveillance equipment subject to the jurisdiction of the Building Commissioner, Board of Appeals and/or Zoning By- laws. b. a newly -erected structure of size, location and/or design erected in early January 2026, or alternatively a new structure when it appears to have be larger, with a larger platform and and/or relocated closer to the Applicant's property line; or, alternatively, it is a non -conforming structure that has substantially changed in size and location. c. a hazard by revelation to the Applicant of its dangerous nature when she saw and photographed that the prior pole cracked at the base and fell onto the ground on or about December 23, 2024. d. not a "customary" yard accessory subject to exemption under Footnote 203.5 Di of the Yarmouth Zoning By-laws because it is approximately 50 feet tall and approximately 2,000 pounds, thus capable of falling at a rate of over 45 mph which can cause imminent and serious harm to the affected property owner's person, pets, property and/or invitees. e. located in unstable wetlands soil f. was erected without any permitted engineering plans and review thereof, including known depth and other standard pole locating processes, such as those to which other regulated and regulating entities, such as Eversource and the United States Department of Agriculture, respectively, install, inspect and maintain such structures. g. not exempt from the jurisdiction of the Town's Zoning By-laws, Building Commissioner or Zoning Board of Appeals because of any decision or failure to act by the Conservation Commission as their jurisdiction is limited to the Wetlands Protection Act and cannot supersede any structural or safety matters enforceable by the Building Commissioner, the Zoning Board or Appeals, and/or any Massachusetts Court of competent jurisdiction. h. a structure which has an alternative use as a habitat for wild birds that is regulated by the U.S. Wildlife and Fisheries Department, and can be relocated typically within 25 days with a federal permit. L subject to the broad authority of the Building Commissioner through state building laws and regulations. j. unsafe and exposes the Applicant to an imminent and serious hazard. k. is a taking of the Applicant's property because its Fall Zone lies within the Applicant's south -facing beach and is a danger that outweighs any conservation or other policy or preference that may have been implemented or may be implemented in the future. 1. violates the basic tenants and similarly codified regulations concerning safety, customary use, and quiet enjoyment of property (e.g., permitting of chicken coops, wind towers, radio antennas). m. subject to relocation without undue inconvenience or harm to an area that cannot fall within the Applicant's property, if allowed. n. not a matter of environmental or public interest that can override the safety concerns of an abutting property owner and/or respective town zoning regulations. o. should be reviewed as a structure subject to the minimum engineering and inspection requirements such as those used by Eversource and the United States Department of Agriculture. 1. Eversource pole construction requirements: hitps://www.eversource.coin/content/docs/default-source/bui l_ders- coiitractors/enia-electric-service-regitirenients.pdf See Section 400-406 or so for k_770 where you can put equipment.." rights required to do it. Eversource Poles are 45' poles minimum. Poles *Wl bs sot to do following depths Lwglh of Pak in Feet Brand Location Detanee From BIM in Feet Noevnel 13e0h of So" In Soil fn Solid Rock 25 le 5'-(r 3'-6" 30 t0 5' - 8" T - 6- 35&40 10 8'-0- 4'-0- 45 10 e' -e- 4'-ir 50 10 T-o" 5'-31 55 14 7' - 8" 5' - 8" 60 14 8' - 0- W - tr 85 14 a' - 8- 8- - 4- 70 14 9' - Ir e - Ir 75 14 9'-8" T-2- 80 14 to• -o- r-Ir 85 14 10' - 6- T - 10- 90 14 %1--0- 6'-3' 95 14 11'-0" 8'-3- 100 1 14 t1'-0- 8'-3- Pole Ymots (Los) - satomm Yellow Pine Class CCA Poles teem Number Lend C11- y 586836 35 2 1368 566939 40 1 n 956 Sli®840 566W3 40 45 2 1 1 6 22 2,3511 56OD44 45 2 2046 567017 45 H2 3024 588948 50 t 27 567019 50 H2 3 552 SUM 55 1 3258 507p54 55 2 2,826 5671 55 H2 4 125 2. United States Department of Agriculture. https;//www.rd.usda.gov/files/UEP Bulletin 173.0B-121.12df UNITED STATES DEPARTMENT OF AGRICULTURE Rural Utilities Service RUS BULLETIN 1730B-121 RD-GD-2013-71 SUBJECT: Wood Pole Inspection and Maintenance TO: All Electric Borrowers EFFECTIVE DATE: Date of Approval. OFFICE OF PRIMARY INTEREST: Transmission Branch, Electric Staff Division. DUN Poles been Number uhvm tm Cis" 621715 35 2 1,140 621717 40 1 1 = 62t718 40 2 1.41 82t719 45 1 1105 62t720 45 2 1705 621863 45 H2 2520 2t721 50 1 2.330 621664 50 142 2960 622014 55 t 2 715 821685 55 2 2.355 821722 55 H2 3440 FILING INSTRUCTIONS: This bulletin replaces RI.S Bulletin 173013-121, "Pole InsptTlio ll and Maintenance." issued April 15. 1996. 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