The URL can be used to link to this page

Home My WebLink About2014 Jul 16 - Board of Appeals Decision #4519 oF�'`-�R,� � TOWN OF YARMOUTH � - - � ,O BOARD OF APPEALS � �y DECISION �' ` ,. Z' 1��`M�� FILED WITH TOWN CLERK: July 16,2014 PETITION NO: #4519 HEARING DATE: July 10,2014* PETITIONER: Aspen Properties Group,LLC PROPERTY: 12 Featherbed Lane,West Yarmouth Map 38, Parce169 Zoning District: R-25 Deed Book 27786,Page 164 MEMBERS PRESENT AND VOTING: Steven DeYoung,Chairman, Sean Igce,Debra Martin, Chuck Hart 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 Regis[er,the hearing opened and held on the date stated above. The Petitioner seeks to overturn a Decision of the Yarmouth Building Commissioner pursuant to Section 8 of Massachusetts General Law c. 40A. Specifically,the petitioner seeks to overturn the denial of a building permit for the construction of a single family structure on the unimproved property at 12 Featherbed Lane, West Yannouth(the Proper[y) by Memorandum dated April 11, 2014. By way of background, the Property, denoted as Lot 7 on a plan recorded in Plan Book 171, Page 45, has been held in common ownership with the abutting Lot 8 since approximately 1965. Lot 8 is a corner lot which has been assigned an address of 50 North Road (the House Lot), and has been improved with a single family dwelling since approximately 1965. The Property contains approximately 16,500 square feet, and 157 feet of frontage on Featherbed Lane. In 1997, the then owner of the House Lot had installed a new Title 5 compliant septic system to serve the House Lot, part of which system was positioned on the Properiy, as depicted on a Proposed Septic Design submitted to the Yarmouth Board of Health on November 7, 1997 (the 1997 Plan). In 2010, a third party presented to the Building Department a Lot Inquiry Form for the Property, along with the customary fee for that service. After conducting its due diligence,the Building Department determined that the lot complied with the protections of Zoning Bylaw Section 104.3.2(5), Other Non-Conforming Residential Lots, and had retained it grandfathering rights. In 2013, the petitioner purchased both the House Lot and the Property, described in one Quitclaim Deed,but described separately. As part of that purchase, the petitioner secured a Plot Plan,which depicted 21ots, with the House Lot having a storage shed in its rear corner. The Yannouth Assessor's office ta�ces each lot sepazately, having assigned sepazate pazcel numbers on the assessors records. Upon purchase, the petitioner submitted a building permit application for the Property, and included a copy of the executed Lot Inquiry Form from 2010. It was at this time the Building Commissioner inquired into the Boazd of Health records for this lot, and found that the septic system serving the House Lot was located partially on the Property. In addition, the Building Commissioner found a copy of the 1997 Plan which he determined demonstrated that the lots had been combined. His decision was premised on three findings: 1. The belief that the shed in the rear corner of the House Lot was actually positioned partly on the Property; 2. The fact that a portion of the leaching field for the septic serving the House Lot was located on the Property; and 3. The 1997 Plan which he believed depicted the House Lot and the Property being combined due to the lack of a dividing line between them on the Plan. Upon receipt of his decision, the petitioner timely appealed that determination to this Boazd. The petitioner and the Building Commissioner do agree that the Property does comply with the grandfathering provisions of Bylaw Section 1043.4(2) (Non-Conforming Lots), as well as the provisions of Bylaw Section 1043.4(5) (Other Nonconforming Residential Lots). The Board heazd testimony regazding each of the three factors relied upon by the Building Commissioner. First, and regarding the located on the shed,the petitioner submitted a Yazmouth Taat Field Card for the House Lot which shows that it is being assessed as part of that lot. In addition,the plot plan secured at the petitioner's purchase closing also depicts the shed as being solely located on the House Lot, as does the engineered septic plan submitted to the Boazd of Health for the development of the Property. Second, and regarding the 1997 Plan, a copy was provided to the Board which does seem to indicate that no dividing line was shown on the plan, and that the owner had possibly desired to combine these lots, although in an unconventional manner. However, the petitioner produced Craig Short,the Professional Engineer who drafted the 1997 Plan, and who has maintained the original Velum plan which does in fact depict a dividing line between the House Lot and the Property. The 1997 Plan, now produced with the dividing line, also depicts that the shed in question entirely located on the House Lot. It appeazs that the copy which the Building Commissioner found in the Boazd of Health files was unclear and the dividing line was not visible after recreating it, either by photocopy or scanning. Finally, the petitioner presented numerous cases to the Boazd which evidence the analysis utilized by the Court in the Commonwealth of Massachusetts. Based on these cases, the Board was satisfied that the correct analysis was to first determine if the Property retained its grandfathering rights, then whether any contrary provision of the Bylaw would be contrary to that determination. Finally,the analysis goes to whether the placement of structures on the Property would indicate a desire to merge the lots. The cases demonstrate a consistent list of factors to be considered, as follows; -The physical division of the lots by a fence or wall; -The location of stnxctures on the lots -The means in wluch the lots are assessed -The description of the lots in the deed and -The owner's treatment and use of the lots. In this case, there was evidence that the lots were divided by the maintenance of vegetation, that no structures were located on the Property, that the lots were separately assessed, and separately described in the deed. There was also evidence that the encroaching septic system component previously placed on the Property had been removed. It is also evident that a septic system is not a structure as defined in Bylaw Section 500. Although the Board is reticent to oveRurn decisions of the Building Commissioner unless compelling evidence is provided, this case presented such a factual instance. The Board was in agreement that based on the evidence that the Building Commissio�er had at the time, that his Decision would have likely been upheld. However, this new evidence cannot be ignored, as it is directly relevant to the issue at hand. The Board is convinced that the Property is entitled to the grandfathering protections of Bylaw Sections 1043.4(2) and 104.3.4(5), that no merger of the Property with the House Lot has occurred, and that the Decision of the Building Commissioner must be overh�rned on these facts. Accordingly, Motion was made by Mr. Igoe, seconded by Ms. Martin, to overturn the Decision of the Building Commissioner as requested by the petitioner, to which the Board voted unanimously in favor. No permit sha11 issue unti120 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) Unless otherwise provided herein, a Variance sha11 lapse if the rights authorized herein are not exercised within 12 months. (See MGL c40A§10). This Decision must be filed with the Barnstable Counry Registry of Deeds, Route 6A, Barnstable. Steven DeYoung, Chairman *(A hearing on this application was first held on Apri124, 2014, at which time the decision of the Board garnered a 3-1 vote, thus upholding the Decision of the Building Commissioner. However, subsequent to the hearing but before the Decision became final, the one dissenting member advised the Board ofthe possibility that his Decision was based on evidence not presented at the hearing, and recommended a new hearing be provided to the applicant, which new hearing is evidenced by this Decision.)