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COMMONWEALT}{ OF MAS SACHU SET'TS
LAND COTJRT
DEPARTMENT OF THE TRIAL COURT
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JON FRED ERICK TOLLJ]Y, TRUSTEE
of the JON FREDERICK'IOLLEY LIVING,TRIJST DATED 31161201 5,
Plaintiff
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'|OWN OF YARMOUTH ZONING BOARD
OF APPEALS, by its members:
Sean Igoe
Dick Martin
Jay Fraprie
John Mantoni
Barbara Murphy
Defendant.
VERIFIED COMPLAINT
I' This is a section 17 appeal from a decision of the Town of Yarmouth ("Town',) Zoning
Board of Appeals ('qBoard") on appeal from an enforcement order of the Town Building
Commissioner. The Board entered their Decision in petition #5171on May 2,2025,a
copy of which is included herewith as Exhibit A.
2. Plaintiff Jon Frederick Tolley, Trustee of the Jon Frederick Tolley Living Trust dated
311612015, is a resident of the Town living and workin gat23lroquois Boulevard, S&&
Yarmouth, Massachusetts ("Locus").
3. Defendant Board is the board of relief in the Town and empowered to hear appeals from
an order or decision of the Building Commissioner pursuant to G.L. c. 40A, s. g, and
section 102.2.3 of the Town ZoningBylaw ("Bylaw"). Its individual members are:
Sean Igoe, 138 Bakers path #55, South yarmouth, MA 02664
Richard Martin, 592 Route 28, West Dennis, MA 02670
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Jay Fraprie, 36 Pheasant cove circle, yarmouth port, MA 0267s
John Mantoni, 55 Scholl Ave., West yarmouth, MA 02673
Barbara Murphy, 198 Kates path, yarmouth port, MAQ267S
4. Plaintiff is a lobster fisherman and has sold lobsters (and other catch) at the Locus since
approximately 1975.
5' Plaintiff s father also fished and sold lobster at the Locus since he purchased the property
in 1957.
6. On or about March 7,2025, the Building Commissioner determined that lobsters were
being sold at the Locus in violation of the Bylaw and issued a violation notice. A copy of
the violation notice is included herewith as Exhibit B,
7. Plaintiff timely appealed to the Board in petition #5171.
8. The violation notice references a previous violation notice dated August 28,2024, and a
Board decision #sl34dated November 21,2024.
g. At a hearing in petitio n#5134on October 24,2024,the Board voted to deny a variance
and, on that basis, upheld the decision of the Building Commissioner. A copy of the 5 I 34
Decision is included herewith as Exhibit C.
10. on April 10, 2025,the Board opened apublic hearing on petition #sl7l.
I I ' In Plaintiff s application to the Board, he requested relief based on 1) the protected status
of a use going back to 1957,or alternatively 2) that the use is permissible as accessory to
an allowed use,
12.The Board improperly relied on its prior decision in petition #5134 denying a variance, to
conclude that PlaintifPs subsequent petition #5171 was barred by G.L, c. 40A, s. 7.
Accordingly, the Board denied plaintiff s requested relief.
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I 3. Plaintiff s requested relief in petition #517 1 is substantively different from the relief
requested in petition #5134.
14. The decision to grant or deny a variance is substantively different from the offer of
evidence that the use is protected from changes to the Bylaw.
15. The decision to grant or deny a variance cannot bar an otherwise allowed or permissible
use,
16. The Board has not addressed in any proceeding whether Plaintiff s use is (or is not) a
protected use, or whether it is permissible as accessory to an allowed use.
17. The Board's Decision misapplied the facts and was based on a clearly erroneous
application of law.
18. Plaintiff is aggrieved by the Decision of the Board which directly implicates his
livelihood and business.
WIIEREFORE, Plaintiff respectfully requests that this Honorable Court grant the following
relief:
l. Annul the Decision of the Board as legally untenable, arbitrary and capricious;
2. Enjoin enforcement of the Building commissioners violation order(s);
3. Remand to the Board to take testimony, hear evidence, and make findings on plaintiff s
petition #5171;
4. Any other relief the Court deems necessary and just,
Respectful ly submitted,
JON FREDERICK TOLLEY, TRUSTEE
OF THE JON FREDERICK TOLLEY LIVING
TRUST DATED 311612015
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Date: 5 r(
By his
(BBO #686642)
(BBO #7rs262)
enie &P.C.
15 Cape Lane
Brewster, MA 02631
Tel (77 4) 323-3027
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Dated: May 13,2025
VERIFICATION
I, Jon Frederick Tolley, Trustee, have personal knowledge of all of the facts stated herein andhereby swear under the penalties of perjury those facts aie true and accurate.t'
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Frederick
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EXHIBIT A
Decision on Petition #5L7L
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TOWN OF YARMOUTI{
BOARD OF APPEALS
DECISION
FILED WITH TOWN CLERK: MLy Z,ZLZI
PETITIOT\ NO:5t7 I
HE,ARING DATB:April 10, 2025
PETITIONER &
PROPBRTY OWNER:Jon Frederick Tolley, Trustee of the Jon Frederick
Tolley Living Trust, dated 03/16/201s
PROPERTY:23 lroquois Boulevard, West Yarmouth, MA
Map & Lot #:32.5
Zoning District: R-25
Docurnent #112861092
Certificate #208490
MEMBERS PRESENT AND VOTING: Chairman Sean lgoe, Dick Martin, Jay Fraprle,
John Mantoni, and Barbara Murphy
Notice of the hearing has been given by sending notice thereof to the Petitioner and all those
owners of property as required by law, and to the public by posting notice of the hearing and
publishing in T'he Cape Cod Times, the hearing opened and held on the date stated above.
The petitioner seeks to overturn the decision of the Building Commissioner to allow the retait
sale of lobster at his property at 23 lroquois Boulevard, West Yarmouth, Massachusetts. The
property is located in the R-25 zoning district and is comprised of -13,068 square feet.
The petitioner received a second Violation Notice, dated March 7,2025,from the Deputy
Building Commissioner, about lobsters still being offered for sale at the property. This Violation
Notice references the previous Violation Notice, dated August 28,2024, and the previous Zoning
Board of Appeals Decision #5134 from the hearing on October 24,2024, Decision #5 134 was
tiled with the Yarmouth Town Clerk's Office on November 21,2A24, and was not appealecl.
Prior to the April lO,2025 hearing, the Board received six letters of support for Petition #5171.
One of the six letters of support was from an abutter to the subject property. Two previous letters
of support were submitted with the application.
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The petitioner was represented by Attorney Jorrathan Polloni who arguetl to discuss the retail saleof lobster as a protectecl u$e or accessory use. Attorney Polloni ugreed that the seconct Violation
Notice was essentially the same as the previous Violation Notice, except frlr the references to the
previous Violation Notice and Decision. Attorney Poltoni confirmed that he was aware that the
Board had upheld the decision of the Building Commissioner and denied the request for a
Variance to allow the retail sale of lobster at the residence at the October 24,20i4 hearing.
Per Massachusetts General Law Chapter 40A, Section l6: No appeal, app{icatiott or petition
which has been unfavorablv and finally qcted upon by the special permii granting or permit
granting authority shall be acted favorabl.y upon within tvvo .years after the date offinal
un/avorable aclion unless said special permit granting authority or permit granting authority
finds, by a unanimous vote of a board of three rnembers or b.y a vote offour membirs o.f a boarcl
offive ruembers or two-thtrds vole of a board of more thanfive members, specific and ntaterial
changes in the canditiotts upon which the previous unfavorable action was based,.. "
Chairman lgoe polled the Board which agreed that the petitioner's request for relief was a
repetitive petition. Accordingly, a motion was made by Mr. Fraprie and seconded by Mr.
Mantoni to deny Petition #5 l7l because it was a repetitive petition less than 2 years otd.
The mernbers voted as follows:
Mr. Martin AYE
Mr. Fraprie AYE
Mr. Mantoni AYE
Ms. Murphy AYE
Mr. Igoe AYE
The Board voted unanimously 5-0 in favor of the motion. Therefore, Petition #5171 was denied
because it
Sean lgoe, Chairrnan
CERTIFICATION OF TOWN CLERK
I, Mary A. Maslowski, Town Clerk, Town of Yarmouth, do hereby certiff that 20 days have
elapsed since the filing with me of the above Board of Appeals Decision #5171 that no notice of
appeal of said decision has been filed with me, or, if such appeal has been filed it has been
dismissed or denied. All appeals have been exhausted,
Mary A, Maslowski, CMMC, CMC
Ipg a 5ipetitive petition less than 2 years old.$X*
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Exhibit B
Violation Notice
TOWN O}'YARMOUTH
Office of the Building Commissioner
1146 Route 28, South Yarmouth, MA 02664
508-398-2231 ext. tZO} Fax 508-393-0S36
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WOLATEON NOT'TCE
Jon Fredrick Tolley TRS
don Fredrick Toll.y Living Trust
?3 Irocluois Blvd'ffest Yarmouth, MA 02673
RB: 23 [roquois BIvd - Retail Food Store
This lcttcr constihltes a formal zoning enforcement order under MGL ch 40A.
Dear Mr. Tolley,
The Building Department has been in contact rvith you (letter dated 8124/2024)
this address. There is a
Sommissioner and deny
at this address. This is a
rcgarding thc retail sales of Io
Zoning Board of Appcals dccision #5134 which voted to uphold the decision of the B
the request lor a variance. It has come to our attention that lobsters are still being offered
violation of Section 202 of the Town of Yarn:outh Zoning Bylaw;
"::),,02.1 Application. No builcling or stt'ucttlt'e shull he erectecl cmcl no prernises .shall he used, except as set fot.tlr in
Re gul qt ions Sc:he clul e,
ihall be c,ortsiclerecl to
or in other sectirtrts of this bylav,, I.f o use ,.s not specifically ctllov'ecl, hy right or special
be not allctv,ecl unleJ's (rl7 eppectl is tqken uncler' sec:tion 102.2,3 ctnd it is show,n bet,ortcl ct
doubt to be of sintilqr ncrture and ctt lectst no more noxious nor detrintentul tct lhe ,rrelfare cf' the neighborhoctcl
i pe c:ifi c al h, allov'ed us e,
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Failure to comply with the provisions of the zoning bylaw may result in penalties as prescribed.
'101.3 Penalties.Ant'person violating any of the provisions of this bylerw, shall hefined not mor.e than tlree
dollars ($300.00) for each olfense. Each day thut such t ioltrtion continues shall constitute a sepat.ate qffense
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.You are hereby ordered to abatc and correct said violations or seek relief from the Zoning Board of Appeals as
YGL Ch 40a 5s7 & $ 15. You are required to respond within 7 days of receiving this letter.
Question regarding this mattcr may be directed to this department.
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Very Tr"urly,
'fim Scars CBO
Deputy Building Commissioner
Torvn of Yarmollth
March 7,
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Exhibit C
Decision on petition #5134
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FILED WITH TOWN CLERK:
PBTITION NO:
HEARING DATE:
PETITIONER:
TOWN OF YARMOUTH
BOARD OF APPEALS
DECISION
Novernber 2lr 2024
5134
October 24,2024
Jon Frederick Totley, Trustee of the Jon Frederlck
Tolley Living Trust, dated 03/l 6tz0ls
PROPERTY:23 Iroquois Boulevard, west yarmouth, MA
Map & Lot #t 32,5
Zonlng District: R-Zs
Document #1,286,092
Certiflcate #208490
MEMBERS PRESENT AND VOTING: VICC ChAiT SCAN Igoe, Dick Martin, Jay Fraprie,John Mantoni, and Barbara Murphy
Notice of the hearing has been given by sending notice thereof to the petitioner and all thoseory19r1.of prop€rty as required by law., and to the public by posting notice of ilre hearing anJpublishing in The Cape cod Times, the hearing op"nid ana hild on thJ date stated above,
The petitioner seeks to overtum the decision of the Building Commissioner andior a Variance forB-4 use with retail to sell locally harvested lobster at his pr6perty at23lroquois Boulevard, WestYarmouth, Massachusetts. The property is located in the
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roning distritt and is comprised of13,068 square feet.
The petitioner received a violation notice, dated August28,2024, from the Deputy Building
Commissioner, about offering lobsters for sale at this property. The use is not allowed in a
residential zone without relief from the Zoning Board of Appeals:
202,1 Application. No building or structure shatt be erected and no premises shall be used,
except as setforth in the Use Regulations Schedule, or in other sections of this bytaw, If a use is
not specilfcctlly allowed, by right or special permit, it shatl be considerei to be not alliwed
unless an appeal is taken under section 102.2.3 and it ls shown beyond a reasonable doubt ro be
of stmilar nature and at least no more noxious nor detrtmental to the welfare of the
neighborhood than a speci/ically allowed use,
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Mr. Tolley has both a Retail Boat Seafood Dealer Permit and Retail Truck Seafood DeaterPermit from the Massachusetts Division of Marine Fisheries. These dealer permits allow him tosell lobsters (which are lawfully harvested under the authority of his commlrciat fishing pr*iilfrom his boat or at retail from a mobile unit.
At the hearing, Mr. Tolley testified about his retail business operation:o Hours of operation; mid-June to end of October, Sunday-Saturday,4pm-6:3gpm.o Average 8 vehicles per day.o Sell -30 pounds oflobster per day.o Retail business is a "drive-thru" with cars entering his corner lot frorn lroquois Boulevard
and exiting onto Navajo Road.
The petitioner also has multiple off-premise signs on Route 2g, South Sea Avenue, and lroquoisBoulevard that advertise the sale of lobsters at his property. These off-premise rign, ur. noiallowed per the Zoning Bylaw.
Prior to the hearing, the Board received two letters of support for the petition. One letter of
slpp-ort was signed by 7 abutters. The second letter of support was from an abutter who signed
the first letter, There were no public comments at the hearing.
Because the use is not allowed in this zoning district, the petitioner must qualifi for a Variance:
l. Literal enforcement of the provlsions of this bylaw would involve a substanlial hardship,
tinancial or otherwise, to the petitioner or appellant,
2. The hardship is owing to circumslances relating to the soil condirions, shape or
topography of such land or sftuctures and especiatly affecting such land ot struct4res,
but not alfecting generally the zoning district in which it is licated.
3, Desirable relief may be granted without either: substantial detriment to the pubtic good;
or nullifying or substantiallv derogatingfrom the intent or purpose of this bylau,.
The Board agreed that the petitioner does not meet the criteria for a Variance because the
hardship is not owing to circumstances relating to the soil conditions, shape or topography of
such land or structures.
Accordingly, a motion was made by Mr. Fraprie and seconded by Mr. Mantoni to uphold the
decision of the Building Commissioner. The members voted unanimously (5-0) in favor of the
motion.
A motion was made by Mr. Fraprie and seconded by Mr. Martin to approve the Varianqe as
requested. The members voted unanimously (0-5) against the motion. The Variance was,
therefore, not granted,
Sean lgoe, Vice Chair
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CERTIFICATION OF TOWN CLERK
I, Mary A' Maslowski, Town Cterk, Town of Yarmouth, do hereby certiff that 20 days haveelapsed since the filing with me of the above Board of Appeals Decision #5134 that no notice ofappeal of said decision has been filed with me, or, if such appeal has been filed it has beendismissed or denied. All appeals have been exhausted. ' r -'- --'--
Mary A.
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