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HomeMy WebLinkAbout4577 and 5129 41 Standish Way Attorney Letter 06.03.25I.A%T- 011-1 -'Sol PAUL R. TARDIF, ESQ., P.C. 490 INIATN 51'RE YARNIOUTI I TIORT, M.k 02675 (508) 362-7799 (508) 362-7199 fax Paul R Tardif, Esq. Slacg A. Curley, Esq. ptardifoa t.ittidixt.cocn www.tarditlaw.com scnr1c3,La',,tardifljw com REFER TO FILE NO June 3, 2025 Sean Igoe, Chairman Yarmouth Zoning Board of Appeals 1146 Route 28 South Yarmouth, MA 02664 Mary Waygan Affordable Housing/CDBG Coordinator 1146 Route 28 South Yarmouth, MA 02664 Re: Zoning Board of Appeals Decisions 4577 and 5129 Property Address: 41 Standish Way, West Yarmouth Property Owners: Martin J. Dugal, Gerald M. Dugal and Margaret M. Dugal Dear Mr. Igoe and Ms. Waygan: Please be advised that this office represents Martin J. Dugal, Gerald M. Dugal and Margaret M. Dugal, the owners of the property at 41 Standish Way, West Yarmouth, MA. In March of 2015, my client applied to the Yarmouth Zoning Board of Appeals for a Special Permit to allow for the creation of an Affordable Accessory Apartment. Based on the complete compliance with the requirements of Yarmouth Zoning Bylaw Section 407, the Zoning Board of Appeals issued Decision 4577 in favor of the application, and that Decision was recorded in the Barnstable County Registry of Deeds in Book 28837, Page 183. A copy of that Decision is attached to this letter. As you can see, in addition to the Decision, a "Declaration of Covenants Affordable Accessory Apartment" and an "Affordable Accessory Apartment Affidavit", both signed by Mr. Dugal, were also recorded, imposing certain affordable restrictions on the use of the property, and which are intended to provide notice to any future owner of the Property. In September of 2024, my client again appeared before the Zoning Board of Appeals, this time seeking to convert his Affordable Accessory Apartment to a Market Rate rental accessory apartment. The Zoning Board granted this relief and Decision 5129 was prepared, a copy of which is attached hereto. Prior to recording Decision 5129 in the Registry of Deeds, Governor Maura Healy enacted and passed the so-called Affordable Homes Act, which became effective on February 2, 2025. One part of this new law codified the by -right authority of a homeowner to establish Accessory Dwelling Units (ADUs) in residential districts. An ADU must: Maintain a separate entrance, either directly from the outside or through an entry hall or corridor shared with the principal dwelling sufficient to meet the requirements of the state building code for safe egress; Be either no larger than half the gross floor area of the principal dwelling or 900 square feet, whichever is smaller; Meet local municipal restrictions, including, but not limited to, additional size restrictions and/or restrictions or prohibitions on short-term rental if the city or town decides to impose these One thing that municipalities cannot do is require owner occupancy nor family relationship for the Adu or the principal dwelling. At this time, my client is pursuing his rights to convert his accessory dwelling, once deed -restricted affordable, and now having an owner -occupancy requirement, into an ADU. With that said, he is also seeking to clarify the fact that there is no current requirement for affordable restrictions or owner occupancy, contained in both Decision 4577 and 5129. We are requesting a written determination of this Board that both Decisions are now void, and that my client may pursue his legal avenue to an ADU. If you would like to discuss this further, I am next meeting to do so. I thank you in advance. Gerald M. Dugal Margaret M. Dugal Bk 28837 PaI83 018940 05-01--2015 & 09 5 51 CL N 0 T TOWN OF YARMOLj'l? T A N BOARD OF APPEAL§ N O F F I C I A L DECISIblf P I C I A L C O P Y C O P Y rz- N O T N O T A N A N O F F I C I A L O F F I C I A L FILED WITH TOWN CLBPJK:March 30, 2015 C O P Y PETITION NO: HEARING DATE. #4577 March 12, 2015 PETITIONER: Martin J. Dugal PROPERTY: 41 Standish Way, West Yarmouth Map & Lot#: 0029.190; Zoning District: R-25 Book/Page: 27154/292 MEMBERS PRESENT AND VOTING: Steven DeYoung, Chairman, Sean Igoe, Bryant Palmer and Richard Neitz. 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 The Register, the hearing opened and held on the date stated above. The Petitioner is Martin Dugal who seeks relief under Zoning By-law §407.2 in connection with property located at 41 Standish Way, West Yarmouth, MA property in an R-25 Zoning District. The Petitioner seeks approval for the creation of an Affordable Accessory Apartment. The Petitioner has proceeded with improvements to his property. These include living space above a garage with a total of 575 sq. ft. The living space with bath and kitchen area, consists of one -bedroom and is suitable for one -person occupancy. The Community Housing Committee considered the proposal prior to the Zoning Board of Appeals and provided its memorandum dated 315/15 which the Board considered. The Board was unanimous in finding that the Petitioner's proposal coupled with the provisions of §407.2 and that the relief would be desirable with the creation of another affordable housing unit. Mr. Igoe made a Motion to approve the requested relief which Motion was seconded by Mr. Palmer and upon which the Board voted unanimous in favor of upon the following conditions: 1) The unit be limited to one -person occupancy; 2) Should the initial tenant cease occupancy, the next tenant must be selected through an affirmative, fairly marketed affordable housing lottery or wait list approved by the Town; 1 Bk 28831 Pg184 #18940 3) The monthly re t shall not exceed the affordable,�QQtaxirjum allowed; 4) The owner an eAnTshall execute a yearly IeaArAtaFagreement with a copy to the CArAmity Housing Committee; A N 5) The unR rKusFbelo&u jieaoMy by a houghlidyw9clAs AekrAned by the Town to earrAcA tkan)$0% of the Area mediarAnfbrRe;llnd 6) The owner comply with all rules and regulations relating to Affordable Accessory Ap8+ rOrS. N O T A N A N O F F I C I A L O F F I C I A L C O P Y C 0 P Y No permit shall Issue until 20 days from the tiling of this decision with the Town Clerk. This decision must be recorded at the Registry of Deeds and a copy forwarded to the Board of Appeals. Appeals from this decision shall be made pursuant to MGL c40A section 17 and must be filed within 20 days after filing of this notice/decision with the Town Clerk. Unless otherwise provided herein, the Special Permit shall lapse if a substantial use thereof has not begun within 24 months. (See bylaw, MGL c40A §9) �� Steven Delfoung, Chai 2 Bk 28837 Pg185 #18940 N O T N 0 T o F9 %�THOFQWJEFS COPOFY BOARD OF APPEALS N 0 T N 0 T A N A N O F F I C I A L O F F I C I A L C O P Y C O P Y Appeal #4577 Date: April 21, 2015 Certificate of Granting of a Special Permit (General Laws Chapter 40A, section 1 l ) The Hoard of Appeals of the Town of Yarmouth Massachusetts hereby certifies that a Special Permit has been granted to; Martin J. Dugal 41 Standish Way West Yarmouth, MA 02673 Affecting the rights of the owner with respect to land or buildings at: 41 Standish Way, West Yarmouth. Map & Lot#: 0029.190; Zoning District: R-25; Book/Page: 27154/292 and the said Board of Appeals further certifies that the decision attached hereto is a true and correct copy of its decision granting said Special Permit, and copies of said decision, -'sand of all plans referred to in the decision, have been filed. The Board of Appeals also calls to the attention of the owner or applicant that General Laws, Chapter 40A, Section 11 (last paragraph) and Section 13, provides that no Special Permit, or any extension, modification or renewal thereof, shall take effect until a copy of the decision bearing the certification of the Town Clerk that twenty (20) days have elapsed after the decision has been filed in the office of the Town Clerk and no appeal has been filed or that, if such appeal has been filed, that it has been dismissed or denied, is recorded in the Registry of Deeds for the county and district in which the land is located and indexed in the grantor index under the name of the owner of record or is recorded and noted on the owner's certificate of title. The fee for such recording or registering shall be paid by the owner or applicant. Steven De g, hairman Bk 28837 Pg186 #18944 N O T N O T A N A N O F F I C I A L O F F I C I A L TOWN OF YACRMOUTH Town 1146 RO� FP' 8TSOUTH YARMOUTH, S SETTS 02664-4451 Clerk T&IMone (508) 398-2231 Ext. 1285,%.V(508) 398-0836 O F F I C I A L O F F I C I A L C O P Y C O P Y CERTIFICATION OF TOWN CLERK I, Philip B. Gaudet, III, Town Clerk, Town of Yarmouth, do hereby certify that 20 days have elapsed since the filing with me of the above Board of Appeals Decision #4577 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 havc been exhausted. Philip-S. G-audet, III Town Clerk Bk 28837 Pg187 #18940 N 0 DECLARATION OF COV'E19AM AFFORDABLE ACCESSORY A P&RTMENT O F I C I A OFFICIAL Whereas, . o ! the owner of the property .snore particularly described in a deed dated and r=W�%Wthc Barnstable County 4f*b7 of Deeds in Book: 27191 Page, L which real estate is shovyp qF Yarmouth Assessor's Maeoa r 8 IALa OFFICIAL Whereas, n4 :u"�l L has been OgrantA a Special Permit to create an Affordable Accessory Apartment in Appeal # YS 77 Dated p ; 206 Whereas, said Special Perndt and Section 407 of Town of Yarmouth Zoning Bylaw require that the accessory apartment be limited to the term of ownership and occupancy of the premises by the Petitioner; Whereas, said Special Permit and Section 407 of Town of Yarmouth Zoning Bylaw require that accessory apartment shall be rented to a household with a maximum income of 80% or less of the Area Median Income (AMI) of Barnstable -Yarmouth Metropolitan Statistical Area (MSA) and that rent shall not exceed 30% of 700/9 of the most current Area Median Income (AMI) of Barnstable -Yarmouth Metropolitan Statistical Area (MSA) based on household size. Now therefore MA&W ,01- A L- agrees that on sale of premises or transfer of beneficial interest, or when he/she no longer occupies the premises, as his/her principal residence, whichever comes first, that the, rights granted to him/her in Appeal #. 1 5 2 7 Dated:Mecy N3612*16shall lapse and the Special Permit shall be void. No accessory apartment shall be held in separate ownership from the principal structureldwelling unit. Signed r e pains�ad Wties of pedury, this l frday of 20< COMMONWEALTH OF MASSACHUS1rTI'S Barnstable, County, ss. On this ` day of 20 1 before me, the undersigned notary public, personally appeared C t (Owner) pmv ugh satisfactory evidence of identification, w ich was [a current 'vees licen r<current U.S. passport) [my personal knowledge], to be the person signed it voluntarily for its stated purpose WITNESS my hand and official seal. Notary Public ' My commission —exrre;) a eptranie J. c4ppc::', Notary Public IL1 Cpmm Bk 28837 Pg188 #18940 AFFORDABLE ACCESSORY APARTMENT AFFIDAVIT AFFIDAVITOF: -S H n T Jof (Narne Af Petitioner) p` A N � I/WE: /t',itt�°!7N .1� �KC I G�2r �U i M A K Ly. G �-- hereby certify that I/we are the owners in residence, and will occupy the: N O T N O T main portion of the reAidthce O F F I C at (Property location) A N_accessory apartment F F/I C I A L I/WE. further certify that the accessory apartment at said address will be occupied by an income eligible household as established in fair market rental guidelines published by the U. S. Department of Ilousing and Urban Development (HUD). Signed under the pains and penalties of perjury, this_2day of /q_20L. (.I'.i r wnus— COMMONWEALTH OF MASSACHUSETTS Barnstable, ss. f� On this the. - day of /" 1 c,r C. H _ 9015. before me, r' S 1 n t^ M t' 11 a n t t Month Year Name of Notary Public ['he undersigned Notary Public, personally appeared M G r �' ,' C) u q a Name of Signcr(s) Proved to me through satisfactory evidence of identity, which was/were L. C&r1f L _ to be the persons} whose name(s) was/were signed on the preceding or attached document in my presenceand who swore or affirmed to me that the contents of this document is truthful and accurate to the best of his/hen their knowledge and belief. is e'} 7 lV f ��{�yes�rygc>;'i�lgt�'try Seal and/or Any Scamp Above � k Signature of Notary Public k��'S�,nti ML'IIuney w Printed Name of Notary My Commission Expires 1620t 111 /of __ BARNSTABLE REGISTRY OF DEEDS John F. Meade, Register FILED WITH TOWN CLERK: PETITION NO: HEARING DATE: PETITIONER: PROPERTY OWNERS: TOWN OF YARMOUTH BOARD OF APPEALS DECISION October 8, 2024 5129 September 26, 2024 Martin J. Dugal Martin J. Dugal, Gerald M. Dugal, and Margaret M. Dugal PROPERTY: 41 Standish Way, West Yarmouth, I%1A Map 29, Parcel 190 Zoning District: R-25 Title: Book 27154, Page 292 MEMBERS PRESENT AND VOTING: Chairman Steve DeVoung, Sean Igoe, Dick Martin, Jay Fraprie 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 The Cape Cod Times, the hearing opened and held on the date stated above. The petitioner is Martin Dugal who seeks relief in connection with property located at 41 Standish Way, West Yarmouth, Massachusetts, which property is located in an R-25 zoning district. In Decision #4577, dated March 30, 2015, the Board had granted a Special Permit for an Affordable accessory apartment to this petitioner. The current and previous editions of the Town's zoning bylaw require properties with an accessory apartment to be owner -occupied. On March 7, 2015, Martin Dugal signed an affidavit that he would be living at 41 Standish Way. With the recent changes to the Town's zoning bylaw, the petitioner seeks approval per §407.5.2 #3 to convert the Affordable accessory apartment into a market rate rental accessory apartment_ Prior to the hearing, the Board received a letter of opposition from an abutter, John Allen, 33 Standish Way; and a memo from the Building Commissioner regarding the owner -occupancy requirement. TRUE COPY ATTEST. ie. ww&xk�l U.JIB. I i COS N OCT 3 12024 At the September 26, 2024 hearing, Martin Dugal testified that his parents, Gerald M. Dugal and Margaret M. Dugal, are property co -owners and live at 41 Standish Way as full-time residents of Yarmouth, Massachusetts. In that case, the Chairman noted, the petitioner's parents, not the petitioner, should have signed the affidavit to certify that they would occupy the property. Based on the representations by the petitioner, the Board agreed to grant the Special Permit to convert the Affordable accessory apartment into a market rate rental accessory apartment. To support the petitioner's representations, the Board requires an affidavit signed by one of the petitioner's parents, Gerald M. Dugal or Margaret M. Dugal; and a copy of the current driver's license for either Gerald M. Dugal or Margaret M. Dugal. The petitioner agreed to do so. Accordingly, a motion was made by Mr. Igoe, seconded by Mr. Martin, to grant the request for the Special Permit. On a roll call vote (5-0), the motion was approved as follows: Mr. Igoe -AYE, Mr. Martin -AYE, Mr. Fraprie-AYE, Ms. Murphy -AYE, and Mr. DeYoung-AYE. 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 he filed within 20 days after filing of this notice/decision with the Town Clerk. Unless otherwise provided herein, the Special Permit shall lapse if a substantial use thereof has not begun within 24 months. (See bylaw § 103.2.5, MGL c40A §9) Steven DeYoung, Chairman CERTIFICATION OF TOWN CLERK 1, Mary A. Maslowski, Town Clerk, Town of Yarmouth, do hereby certify that 20 days have elapsed since the tiling with me of the above Board of Appeals Decision #5129 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. 1&4e. &dIX44 - Mary A. Maslowski, CMMC, CMC OCT A TRIJE COPY ATTEST. OCT 3 12024 COMMONWEALTH OF MASSACHUSETTS TOWN OF YARMOUTH BOARD OF APPEALS pRPpRAi£0 �? Petition #: 5129 Date: October 29, 2024 Certificate of Granting of a $ ecial Permit (General Laws Chapter 40A, Section 11) The Board of Appeals of the Town of Yarmouth Massachusetts hereby certifies that a Special Permit has been granted to: PETITIONER: Martin J. Dugal PROPERTY OWNERS: Martin J. Dugal, Gerald M. Dugal, and Margaret M. Dugal Affecting the rights of the owner with respect to land or buildings at: 41 Standish Way, West Yarmouth, MA; Map 29, Parcel 190; Zoning District: R-25; Title: Book 27154, Page 292 and the said Board of Appeals further certifies that the decision attached hereto is a true and correct copy of its decision granting said Special Permit, and copies of said decision, and of all plans referred to in the decision, have been filed. The Board of Appeals also calls to the attention of the owner or applicant that General Laws, Chapter 40A, Section 11 (last paragraph) and Section 13, provides that no Special Permit, or any extension, modification or renewal thereof, shall take effect until a copy of the decision bearing the certification of the Town Clerk that twenty (20) days have elapsed after the decision has been filed in the office of the Town Clerk and no appeal has been filed or that, if such appeal has been filed, that it has been dismissed or denied, is recorded in the Registry of Deeds for the county and district in which the land is located and indexed in the grantor index under the name of the owner of record or is recorded and noted on the owner's certificate of title. The fee for such recording or registering shall be paid by the owner or applicant. z1t=, <a�i� Steven DeYoung, Chairman fifR1Jr- COPY ATTEST OCT 3 12024 TOWN OF YARMOiJTH ACCESSORY APARTMENT AFFIDAVIT AFFIDAVIT OF: [Name of Property Owner(s)] I, We hereby certify that [/We will comply with Zoning Board of Appeals Decision # as it relates to the ACCESSORY APARTMENT created by this Decision: [Property Address] -- - - - --------- -- - ---- - I/We further understand that any modifications to the ACCESSORY APARTMENT shall require review by the Town. I/We further certify that: 13 the principal dwelling or the accessory apartment will be used as my/our principal residence and not rented in any manner, and that the remaining unit will be leased for a period of not less than 12 consecutive months, and Lwe will adhere to the requirements of Section 407 of the Zoning Bylaw. A copy of the lease agreement may be required upon request of the Building Commissioner. OR © the principal dwelling or the accessory apartment will be used as my/our principal residence and not rented in any manner, and that the remaining unit will not he rented as it is being utilized by a family member, namely and I/we will adhere to the requirements of Section 407 of the Zoning Bylaw. A family member shall be related to the owncr(s) by blood, marriage or taw, or other long-term family -like relationship that is caregiving or parental in nature. Signed under the pains and penalties of perjury, this day of [Signature of Property Owner(s)] COMMONWEALTH OF MASSACHUSETTS Barnstable- ss. On this the — day of Month —, before me, Year The undersigned Notary Public, personally appeared _ Name of Notary Public Name of Signer(s) 20 Proved to me through satisfactory evidence of identity, which was;were _ _ - , to be the person(s) whose name(s) was'were signed on the preceding or attached document in my presence, and who swore or affirmed to me that the contents of this document are truthful and accurate to the best of his/herftheir knowledge and belief. Signature of Notary Public Printed Name of Notary Place Notary Seal and/or Stamp Above My Commission Expires