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Home My WebLink About5214 43, 45, 47, 49 Katharyn Michael Rd Decision Certified 03.04.26FILED QFH TOWN CLERK: PETITION NO: HEARING DATE: PETITIONER & PROPERTY OWNER: PROPERTY: TOWN OF YARMOUTH BOARD OF APPEALS DECISION March 4, 2026 5214 February 12, 2026 Tony Oscar and Altagrace K. Souverain 43 & 45 Katharyn Michael Road and 47 & 49 Katharyn Michael Road, Yarmouth Port, MA Map 125, Parcel 3 and 4 Zoning District: R-40 Title: Book 36414, Page 221 MEMBERS PRESENT AND VOTING: Chairman Sean Igoe, Richard Martin, John Mantoni, Barbara Murphy, and Anthony Panebianco 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 seeks a Special Permit pursuant to Zoning Bylaw § 104.3.5, Paragraph 2, to combine two abutting bare lots to create one buildable lot. These properties are located in the R-40 Zoning District, which currently requires lots to have a minimum of 40,000 square feet. The property at 43 & 45 Katharyn Michael Road contains 8,500 square feet, and is unimproved. The property at 47 & 49 Katharyn Michael Road contains 9,134 square feet, and is also unimproved. The plan is to combine these lots, creating one lot with 17,634 square feet and 175 feet of frontage on Katharyn Michael Road. Pursuant to Yarmouth Zoning Bylaw Section 104.3.5(2), a Special Permit may be granted when the owner or owners of abutting lots, whether or not any of such lots are currently developed, wish to combine or redivide such lots, but where one or more of the existing lots do not conform to the current dimensional requirements, and where one or more of the resulting lots will not conform to the current dimensional requirements. The project must meet the following conditions as recited in Bylaw Section 104.3.5: A TRUE COPY ATTEST: F�k �' NA dy V � CMlPl CMC / TOWN CLERK MAR 2 5 2026 A. the combination or re -division does not increase the number of non -conforming individually buildable lots over the number of such lots as presently exist. The applicant demonstrated that there are currently 2 unimproved lots which, when reconfigured, will become 1 unimproved lot. B. the combination or re -division shall not increase any pre-existing non -conformity nor create any new non -conformity as to any existing structure or use of the lots involved or affected by the combination or re -division; The applicant opined that this section did not apply in this case. Massachusetts has a bifurcated process when it comes to lots created by the division of land under the subdivision control law's "existing structures exemption," codified in Massachusetts General Laws ("M.G.L.") c. 41, § 81 L ("Section 81 L"). Section 81 L allows a Planning Board to endorse a plan through the "approval not required" ("ANR") process when a tract of land, on which two or more buildings were standing when the subdivision control law went into effect in a city or town, is divided into separate lots on each of which one of such buildings remains standing. However, if the new boundary lines create non -conformities based on those structures, then the Zoning Board of Appeals must provide the necessary relief for that non -conformity. The Supreme Judicial Court, in Palitz v. Zoning Board of Appeals of Tisbury, 470 Mass. 795 (2015) held that those lots created by Section 81 L did not entitle the existing structures on newly divided Iots "grandfather" protection against new zoning nonconformities created by the division. In this case, one lot contains 8,500 square feet of area, with 85 feet of frontage, and the other contains 9,134 square feet of area with 90 feet of frontage. It has been established that these lots, pursuant to the newly enacted Affordable Homes Act, are no longer merged. However, in order to improve either lot, each needs to have at least 10,000 square feet of area and 75 feet of frontage. In the R-40 Zoning District, a minimum of 40,000 square feet is needed to build by -right. These lots are insufficient as to lot area. The combination of the lots will not increase that pre-existing non -conformity, nor create any new non -conformity as to any existing structure or use of the lots, and the use of the properties for residential uses in the R-40 Zoning District will not be affected by the combination of lots. C. if more than one adjoining vacant, non -conforming lot is created by, or is the result of the combination or redivision, it/they may be approved for construction of a single family residence thereon provided that each lot... The Board found that this proposal would not create "more than one adjoining vacant non- conforming lot", and as such, this section is not applicable. D. the development and use of all of the resulting and affected lots as proposed would be consistent with the current and future development of the neighborhood and zoning district, would not cause or substantially contribute to any undue nuisance, hazard, or congestion in the neighborhood or zoning district, would substantially promote the intent and purpose of the Bylaws currently in effect, and the entire combination or redivision proposal is consistent with the intent and purpose of this sub -section. A TRUE COPY ATTEST. CM10M CMC / TOWN CLERK MAR 2 5 2026 In this case, the resulting use of the property will be consistent with the neighborhood and zoning district (R-40), will not cause or substantially contribute to any undue nuisance, hazard, or congestion in the neighborhood or zoning district, would substantially promote the intent and purpose of the Bylaws currently in effect, and the entire combination or redivision proposal is consistent with the intent and purpose of this sub -section. Please note that these lots are in the middle of the Gardens Condominiums, and there are multiple duplexes on lots of the same size as one of these lots. Having one single family dwelling on a lot with 17,634 square feet, upon which could have been 4 dwelling units, is consistent with the intent and purpose of the bylaw. The Board noted that Section 104.3.5(1), which explains the purpose of this Section of the Zoning Bylaw, states that "it is the intention of this sub -section to accomplish maximum feasible compliance with the intent and purpose of the current zoning bylaws where full compliance is not possible but where development of the available land may otherwise be accomplished without substantially derogating from the intent and purposes of the bylaws." Accordingly, a motion was made by Mr. Panebianco, seconded by Mr. Martin, to grant the request for a Special Permit pursuant to Bylaw Section 104.3.5(2), for the reasons that the petitioner met all of the criteria for that relief. The members voted as follows: Mr. Martin: AYE; Mr. Mantoni: AYE; Ms. Murphy: AYE; Mr. Panebianco: AYE; Chairman Igoe: AYE. The motion was voted 5-0 in favor. Therefore, the Special Permit was granted. 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 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 § 103.2.5, MGL c40A §9) Sean Igoe, Chairman CERTIFICATION OF TOWN CLERK 1, Mary A. Maslowski, Town Cleric, Town of Yarmouth. do hereby certify that 20 clays have elapsed since the filing with me of the above Board of Appeals Decision #5214 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, MMC, CMMC MAR 2 5 2026 A TRUE COPY ATTEST CM?0 i CMC 1 TOWN CLERK MAR 2 5 2026 O�kot COMMONWEALTH OF MASSACHUSETTS TOWN OF YARMOUTrH �,{,,BOARD OF APPEALS �RPQRAT89� Petition #: 5214 Date: March 25, 2026 Certificate of Granting of a Special 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 & PROPERTY OWNER: Tony Oscar and Altagrace K. Souverain Affecting the rights of the owner with respect to land or buildings at: 43 & 45 Katharyn Michael Road and 47 & 49 Katharyn Michael Road, Yarmouth Port, MA; Map 125, Parcel 3 and 4; Zoning District: R-40 Title: Book 36414, Page 221 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. Sean Igoe, Chairman A TRUE COPY ATTEST: Y&4a- r&4#MAI-4 WOW CMC 1 TOWN CLERK MAR 2 5 2026