Minutes -VARIANCE
TOWN OF DARTMOUTH
Office of the Zoning Board of Appeals
400 Slocum Road, Dartmouth, MA 02747
(508) 910-1868
Board Members
Halim Choubah, P.E., Chairman
Michael Medeiros, Esq., Clerk
Robert Gardner, Jr., Member
MINUTES
HEARING DATE: June 27, 2017
CASE: VARIANCE
CASE NO: 2017-11
PETITIONER/APPLICANT: Joseph L. Michaud
PROPERTY OWNER: Ryan W. Bone
SUBJECT PROPERTY: 57 Lakeside Avenue
DISTRICT: Single Residence B and Aquifer Zone III
Map: 186 Lot: 26
BRISTOL COUNTY
REGISTRY OF DEEDS: Book: 8585 Page: 238
ATTENDANCE
PRESENT: The Board: Chairman Halim Choubah P.E., Michael Medeiros, Esq., Clerk and Robert Gardner, Jr., Member
ASSOCIATE BOARD MEMBERS: Dr. Rahim Aghai and Alvin Youman Esq.
Zoning Staff Assistant/Principal Clerk: Michelle Vieira
ALSO PRESENT: Attorney Joseph L. Michaud, Owner Ryan W. Bone, and other interested parties.
7:00 PM Chairman Choubah opened the hearing
LEGAL AD: Notice is hereby given of a public hearing to be held on Tuesday, June 27, 2017 at 6:30 P.M. in Meeting Room 304, Town Hall, 400 Slocum Road, Dartmouth, MA on the petition
of Joseph L. Michaud, who is seeking a Variance from the requirements of Section 4B.400 with regard to area, frontage and setback requirements. The Petitioner is requesting to subdivide
an existing lot into two separate lots. The proposed subdivision would result in lot areas of 1,589 sq. ft. and 3,411 sq. ft. and frontage of 28.52’ and 21.48’. The property is located
at 57 Lakeside Avenue in the Single Residence B District and identified on Assessor’s Map 186 as Lot 26. Information is on file in the office of the Board of Appeals and may be seen
upon request. (Section 4B.400 Development Standards)
ADVERTISED: The Notice for public hearing was published in The Dartmouth Chronicle on Wednesday, June 7, 2017, revised Wednesday, June 14, 2017 and Wednesday, June 21, 2017.
ABUTTER’S LIST: Robert Gardner, Jr. motioned to waive the reading of the abutter’s list into the record, Michael Medeiros seconded by. Motion passed unanimously. A certified abutter’s
list is available for review in the office of the Zoning Board of Appeals.
DOCUMENTS ON FILE
Variance application time stamped with the Town Clerk on May 19, 2017
Schedule of Departmental Payment of Fees To Collector’s Office
Certified Abutter’s List
Vision Appraisal Card
Letter from Planning Director John P. Hansen, Jr. dated May 30, 2017
GIS Map
Tax Collectors form
Approved ANR (Approval Not Required) by Planning Board dated May 1, 2017
Site Plan prepared by Romanelli Associates, Inc. dated March 20, 2017
Chairman Choubah read into the record a letter from Planning Director, John P. Hansen, Jr. dated May 30, 2017.
Chairman Choubah read into the record a memorandum dated May 10, 2017 to various departments from the Planning Board Office stating “an Approval Not Required (ANR) was endorsed by the
Planning Board on May 1, 2017.” “Please note that endorsement is not a determination as to conformance with zoning regulations.”
Chairman Choubah invited the Petitioner or Representative to present the case.
Attorney Joseph L. Michaud stated that the existing two (2) residential structures on the lot were built and situated so that they are too close to the abutting parcels to provide adequate
setbacks and is asking the board to consider that unique feature. He continued by stating the literal enforcement would have the effect that the Petitioner could not subdivide the
properties to allow for one residence on each lot, which would derogate from the intent of the bylaw which favors single family dwelling on each lot. Also, the Petitioner is not expanding,
the structures will remain the same size and there will be no change in footprint, it will remain as single family lots on the same area.
Mr. Michaud stated that 4B.404 exempts buildings from setbacks that were in existence prior to 1993; these buildings were built in the late 1940’s. Mr. Michaud stated that relief can
be granted without nullifying or substantially derogating from the intent of the bylaw which is to promote single family homes. Mr. Michaud continued by stating that there would be
no change of the appearance or the use of the buildings, and that both of the structures have frontage on opposite streets, which means there wouldn’t be safety issues regarding safety
vehicles if needed to get to either structure. Mr. Michaud also stated, there wouldn’t be additional strain placed on existing town utilities and services and also there will be additional
tax revenue for the town.
Chairman Choubah invited Board members for questions.
Robert Gardner, Jr. asked what the structure near the easement that runs to Glade Street was and has concerns about safety vehicles getting to the rear of Lot B.
Mr. Michaud responded that is was a temporary cabana which can be used for a parking space and can be easily removed. The space between the building and the cabana is approximately
10 feet wide.
Mr. Medeiros stated that there are four (4) criteria’s in granting this Variance and asked Mr. Michaud what the financial hardship that his client is facing?
Mr. Michaud stated that the lot has two (2) structures on the property and literal enforcement would mean that the lot in the rear would not be utilized to its full extent. Financially,
it would benefit my client Mr. Bone to be able to market and sell the rear parcel for a single family home. It would also help Mr. Bone fulfill his financial obligations, minimize
his expenses and continue to afford to reside there.
Mr. Youman stated, although he is not a voting member, he sees no hardship in the shape, topography or soil, and would not vote to divide an already under-sized pre-existing non-conforming
lot.
Discussion continued regarding dividing an already undersized pre-existing non-conforming lot into an even smaller undersized non-conforming lot and the congestion it would cause if
the home was to be sold regarding parking.
Mr. Michaud stated that Mr. Bone could be renting the house which would have vehicles there, and if needed, Mr. Bone could utilize the area where the cabana is for parking and there
is a large existing driveway fronted on Lakeside Avenue.
Chairman Choubah stated he is having a difficult time implementing the zoning by-laws with a 5,000 sq. ft. lot with two houses, 50 feet of frontage, non-conforming regarding setbacks
on all sides and once that property is divided Variances would be needed regarding setbacks on all sides.
Michael Medeiros asked Mr. Michaud if the plan that was submitted with the petition was registered and Mr. Michaud stated no. Mr. Medeiros continued by stating that certain jurisdictions
would allow 81L subdivision and take it as compliant. Mr. Medeiros continued by stating the Pallet vs. Town of Tisbury case; because the homes existed prior to sub-division control
law, they can be sub-divided, and although it can be sub-divided, the courts made it clear that it doesn’t make it compliant with zoning. Mr. Medeiros also stated he doesn’t think
4B.404 applies to this situation.
Mr. Medeiros suggested speaking to Town Counsel on this matter and Chairman Choubah stated that he did speak to Town Counsel’s office with one of the attorney’s and was told that this
petition is no different than any other Variance case.
Chairman Choubah invited public comments.
Sally Johnston asked if this property has town sewer and water and the answer was yes.
Lisa Faria an abutter, who is in favor of this petition stated, as a mortgage broker having two houses on one lot is difficult to appraise.
Chairman Choubah asked Mr. Michaud the justification regarding the circumstances related to soils, shape and topography?
Mr. Michaud responded, at the time the buildings were constructed, they were in compliance because there was no zoning in place, when zoning was implemented it made the property non-conforming.
Also, members of the Board tonight stated they have never dealt with a case like this and that would be the uniqueness. Also, the financial hardship that the Petitioner is facing,
and that it is not detrimental to the neighborhood.
Two other people who were not abutters voiced their opinions, one asked the size of the lots referenced in the Tisbury case, then stated that if divided one of the lots in this petition
would be approximately the size of the room we are in. The other stated he was in favor.
Mr. Michaud made mention to the Tisbury case and stated the circumstance were similar to this property.
Ryan Bone, Owner of the property stated he purchased the property 12 years ago. Because of having 2 houses on one lot, having them appraised has been difficult. Having the lots separated
and being able to sell one will bring in more taxes into the town and would help me financially.
Chairman Choubah invited further public comments.
No further comments from the public.
Robert Gardner, Jr. stated that this Board is bound by laws and have to uphold them.
Mr. Michaud stated if the Board needs additional information regarding the case law, he would provide the Board with a memorandum regarding similar cases and would agree to a continuance.
Michael Medeiros suggested receiving the memorandum from Attorney Michaud and having Town Counsel review it.
Chairman Choubah asked for a motion to continue this case until August 8, 2017, which would give Mr. Michaud time to submit his memorandum to the Zoning Board office and time for Town
Counsel to review and give his opinion on this case.
Michael Medeiros made the motion to continue this Variance Case # 2017-11, to August 8, 2017. The motion was seconded by Robert Gardner, Jr. The motion passed unanimously.
8:00 P.M. Hearing adjourned
Michelle Vieira
Zoning Staff Assistant/Principal Clerk
Zoning Board of Appeals
Date of approval: ________________