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Home My WebLink About5176 94 Pleasant St Letter of Opposition 3Law Offices of Bruce A. BierhanS, LLC ATTORNEYS AT LAW ........................................................................................................... Mailing address: 540 Main Street, Suite 17, Hyannis, MA 02601 - t: 508.775AS00 - f: 508-775-45I 1 brute@bierlaw.com - www.bierlaw.com ATTORNEY ROBERT A. GEORGE OF COUNSEL May 20, 2025 Sent via Email to dfallon(q'yarmouth.ma.us RECEIVED MAY 2 0 2025 Ms. Dolores Fallon, Office Administrator YAHMotfrH Yarmouth Zoning Board of Appeals St)ARD OF APPE-AL.9 Yarmouth Town Hall 1146 Route 28 South Yarmouth, MA 02664 Re: Ya_r._mouth. Zoning Board of Anneals: Appeal # 5176 Dear Chairman Igoe and Members of the Yarmouth Zoning Board of Appeals, This office represents A.J. and Tina Luke in Appeal Number 5176 which is scheduled to be heard on May 22, 2025. 1 regret that I am unable to attend due to a prior commitment. The appeal concerns Maria Marasco's request that the Luke family to relocate the existing osprey nesting utility pole in their yard. 'File Luke family have had an osprey nesting utility pole installed in the yard of their home since Spring 1998.On November 14, 2024, the pole broke and fell and the Luke family sought to install a new pole. On December 16, 2024, Ms. Marasco sent a letter to Mark Grylls, the Yar111outh Municipal Inspections Director/ Building Commissioner, where she expressed her opposition to the reinstallation of the pole. On December 23, 2024, Farrell Electric Inc. then installed a new utility pole in the Lukes' yard. Fat -ell Electric is a family -owned business that specializes in private pole replacement. Farrell Electric was recommended to the Lukes by Eversource, as Farrell has completed projects for both federal and state agencies, private developers, and private companies. On January 23, 2025, Brittany DiRienzo emailed Ms. Marasco and stated that the osprey pole was approved as part of SE83-2120, and the Luke family may repair or replace the pole at the permitted location. A copy of the invoice for the pole installation is attached here as Exhibit "A." A copy of the email from Ms. DiRienzo is attached here as Exhibit "B." On March 13, 2025, Maria Marasco, wrote a letter to the Town Administrator, Building Commissioner and Conservation Commission requesting that they forbid the utility pole to be installed in the Luke's yard. In her letter, Ms. Marasco complained about how the utility pole should not be permitted in the family's yard as it was allegedly unsafe. On April 29, 2025, Mark Grylls, the Yarmouth Municipal Inspections Director/ Building Commissioner, forwarded a memorandum to Sean Igoe, Chair Yarmouth Board of Appeals, regarding Ms. Marasco's complaints. In the memorandum, Mr. Grylls addresses the two arguments which Ms. Marasco articulated for why pole should not be permitted, and concluded that Ms. Marasco's complaints were unenforceable. A copy of the memorandum by Mark Grylls is attached here as Exhibit "C." The first argument which is addressed by Mr. Grylls is that the utility pole does not meet the dimensional requirement exceptions outlined in Yarmouth Zoning Bylaws - Table 203.5 footnote DI. Ms. Marasco argues that the pole fails to meet the exception outlined in DI as the pole is not a customary yard accessory. However, Mr. Grylls concludes that poles are specifically excluded from Table 203.5 regulations as Sable 203.5 Footnote D1 states, "The following are specifically excluded from these regulations: Fences, walls, Doles, posts, paving and other customary yard accessories, ornaments and furniture, ramps, landings and similar structures needed for handicapped access." Given that a utility pole is classified as a pole, and poles are explicitly listed in the D1 exemption, the osprey nesting pole is exempt from the requirements specified in Table 203.5. Ms. Marasco's second argument which is addressed by Mr. Grylls is that the osprey nesting utility pole is a communication tower, and that she herself, and her property are within the fall zone outlined in Yarmouth Zoning Bylaws Section 408.7.8. Mr. Grylls concludes in his memorandum that the osprey nesting utility pole is not a communication tower so 408.7.8 does not apply. According to Yarmouth Zoning Bylaws Section 501 Definitions, a communication tower is, "Any building, structure, pole, mast, tripod, monopole, or tower, free-standing or supported, or in association with a building or other permanent structure or equipment, utilized for the generating, transmitting, receiving, or detecting of electromagnetic radiation." According to section 408.7.8 a fail zone relates to, "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." Yarmouth Zoning Bylaws Section 408.7.8. is inapplicable to the Luke's utility pole, as it does not fit the definition of a communication tower as outlined by Section 501. The Luke's utility pole does not generate, transmit, receive, or detect electromagnetic radiation, as outlined in the definition of a communication tower. -rhe utility pole is merely just a pole with a platform on the top designed with the purpose to attract osprey to nest. As the utility pole does not fit the definition ofa communication tower as defined by section 501. then section 408.7.8 does not apply to the utility pole. As you may already be aware, Ms. Marasco has unsuccessfully appealed to Yarmouth Town Officials regarding the Luke's utility pole for over a decade. For example, in 2014 she appealed to the Conservation Commission who denied her appeal. She also complained to the Board of Health in 2016 and was denied. Beyond the utility pole, Ms. Marasco has complained about other activities of the Luke Family, including the location of the Luke's fire pit, the time of their generator test, asked them not cut tree limbs in their own yard, and not put out bird seed. Overall, the utility pole is not the large looming danger alleged by Ms. Marasco, but merely just one more complaint intended to harass the Luke family. denied. For the aforementioned above reasons, I am requesting that Ms. Marasco`s appeal be 4 Exhibit A FARRELL ELECTRIC, INC. P 0 BOX 253 NORTH EASTHAM, NIA 0265 l I ARRisL_1_LiLOI'f'1C'Cui �TR17.ON NFT Bill To C HRISTINA LUKE 40 C'ROSBY ST 1;XT YARMOUTH. MA 02664 Invoice Dale Invoice # 12 262024 9000711 Phone # i08-253-1697 Fax # 508-255.1735 Terms Nei 30 Description Qly Amount 40 CROSBY ST FXT YARMOUTH MA TO REPLACIF BROKEN OSPREY POLE WITH NEW 4U FT UTil.rn' Pot -I!. 01t'NI:R REMOVED OLD POLE AND SUPPLIED MATTING. LABOR_ 2 MEN TRUCKS & EQUIPMENT 2.600.00 1.I ATFRIAI_S 900.00 We no\+ accept CreditC ards. There \%ill be it Y�o wrchurge to iu%oi.:cs tier,ili credit tard pa, mclus. Total 5�.500 00 Plcasc call to pay b) Crcdtl Card Payments/Credits sn.n0 Balance Due S3.30000 Exhibit B R+ 4[- [.r'.- by klROKEN POLE r4 + r+- .l, .. .. .�'-ri r A" rl Ir,r f.i ti ��.- ,� li. h Y.i ... 1/ kI I �+4 �... - "6W4ifi+ n'C �+Itr+i1YYI+r,ii5.�:,5�t:.iiii��ri�.r.Y".a1�M•�I�{.I I.�r+IF-i21.ii�yt �K Ir•si..�i Y1 TIC-,^i:+w l�l �wrk+�'il�wl,Ki...r 4., L ,: N I' 7`TC REVIEW OF CON COM FILES OOC 2120 Photos 9.15.17 Photos Mitigatlon Incomplete 8.11.23 Revised Plan 9.7.2017 APPROVED PLAN NOI Folder: Site Plan 8-22-17 Request for Extension 2020 Folder: Photos 11.3,2020 Request for Extension 2022 Folder: Photos 9.28,2022 Request for Extension 2022 Folder: draft m'tigation plan rvsd 11.28.22 Request for Extension 2022 Folder: draft mitigation plan 11,9.2022 Request for Extension 2022 Folder: APPROVED mitigation plan 12.2.22 Exhibit C TOWN 101'VARMOUT11 1146 Rotole 28, South Yarmotllth, NIA 02664 ,508-398-2231 ext. 1261 Fax 508-398.-O836 d 11-ice of lire Building C'ounnissio>r a r° MEMORANDUM TO: Sean Igoe, Chair -Yarmouth Zoning Board Appeals FROM: Mark Grylls — Municipal Inspections Director / Building Commissioner DATE: April 29, 2025 SUBJECT: Utility Pole — 40 Crosby St. I received a request to enforce certain sections of the Yarmouth Zoning Bylaw and 780 CMR — MA State Building Code via a letter dated March 13, 2025. 1 did not respond in the timeframe required by MGL 40a § 15, and therefore, provide this memo to the Board. Having spoken with Marc LaPointe, MA State Building Inspector as well as Town Counsel regarding this request, it does not appear that any of these concerns are enforceable. Paragraph 7 in the March 13«' request for enforcement references the Yarmouth Zoning Bylaw - Table 2035, footnote D1. Specifically, the letter contains only the words "and other customary yard accessories." The full context of Table 203.5, footnote D1 reads "Fences, poles, posts, paving and other customary yard accessories." Customary yard accessories are in addition to fences, poles, and posts, not that those listed are considered customary yard accessories, In fact, poles are specifically excluded. Paragraph 7 in the March 1311 request also references section 407.7.8 which does not exist. I assume the reference is a typo and should have read section 408.7.8 which reads as follows: 408.7.8 Pali Zones. Communications towers, whether free-stonding or part of another structure or building, must be set back from all property lines by of least the total height of the tower structure and its appurtenances. This paragraph specifically refers to Communication Towers and not utility poles. The utility pole does not appear to meet the definition of a structure in the Yarmouth Zoning Bylaw.