Zoning Board of Appeals Decisions

Zoning Board of Appeals Decisions for: 10-10-2013
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DECISION OF FALMOUTH ZONING BOARD OF APPEALS

APPEAL NO: 76-13

APPELLANT: VINCENT COLARUSSO of Brockton, MA

DEED/CERTIFICATE: Book 1009 / Page 222

SUBJECT PROPERTY: 74 Philadelphia Street, Teaticket, MA
Map 39A, Section 10, Parcel 000, Lot 066

Under a date of August 2, 2013, the Appellant filed an Appeal pursuant to Massachusetts General Laws, Chapter 40A, Section 8 and 15 appealing the determination of the Assistant Zoning Enforcement Officer, dated July 8, 2013, that the use of a motor home located on subject property known as 74 Philadelphia Street, Teaticket, Massachusetts is a violation.

A public hearing was opened on September 26, 2013. Notice was duly given as required by Section 11, Chapter 40A, M.G.L., as well as notices sent to all persons deemed to be affected thereby as they appear on the tax list, and at which hearing, at the Board’s discretion, relevant and appropriate testimony was heard. At the September 26, 2013 hearing, a request to continue the hearing to October 10, 2013 was made by the Appellant and read into the record. The Board voted unanimously to continue the hearing to October 10, 2013 at 6:30 PM.

Board Members sitting: Chairman Matthew J. McNamara, Vice Chairman Kenneth Foreman, Acting Clerk David Haddad and Member Patricia Johnson

The Notice of Public Hearing was read into the record at the September 26, 2013 hearing wherein a request was made by the Appellant to continue the hearing without testimony to October 10, 2013 at 6:30 PM. The Board so voted unanimously.

October 10, 2013:

Vincent Colarusso, Appellant, along with his brother Charles Colarusso and mother, Mary Colarusso spoke to the Board regarding the appeal of the Assistant Zoning Enforcement Officer’s determination that the motor home, owned by the Appellant and located at subject property was being used for living and/or sleeping purposes.

Charles Colarusso explained that the family has been coming to Falmouth for over 56 years. He said they have a situation where his brother Vincent has a camper that he brings down for the summer. He explained that his mother is in her eighties, he has a rare eye disease and has to go to chemo once a month and his sister is handicapped and has a problem with her leg. He said the camper is there because his brother [Vincent] has a toddler and a young girl and they stay in the camper during the day when they get to be too rambunctious in the house. He said they have had neighbors make accusations that they are living in the camper; no one from the town has approached them directly about the use. Charles Colarusso said it concerns him that people can go and make statements and whatever they say is word, especially people who have been down here for a short period of time. He said we are here today because we were told that everything would be dropped because the camper has been removed. He said they would also like to notify the neighbors that everything has been dropped.

Vincent Colarusso said he has two little girls and one is hyperactive. He asked if he could actually have permission to have them out there at 5:00 AM as sometimes they don’t go to bed until 2:00 AM. He said it is quiet out there and self-contained and keeps them from waking up the house and neighborhood.

Charles Colarusso explained that his brother [Vincent] comes down one overnight each week for maybe ten weeks out of the year. He said they pay their taxes year-round like everyone else.

Chairman McNamara explained that this Board does not get involved in neighbor disputes; the Board does not write letters to anyone as to whether things are going to be dropped or not; and that the Board is here to make a decision on the Appeal.

Olive Fitzpatrick, Assistant Zoning Enforcement Officer, explained to the Board that her actions which led to her determination was based on the number of complaints and details provided to her, as well as her own site visits and observations. She said she determined that the camper was being used in violation of the State Code and the Code of Falmouth.

Member Foreman asked Ms. Fitzpatrick how she came to her determination.

Ms. Fitzpatrick stated that on inspection she noticed that there was an extension cord running to the bulkhead of the house and a hose running to a spigot on the house as well. She said neighbors told her that Mr. Colarusso would come and go directly into the camper with his children and not come out all night. She said the camper cannot be used for habitation according to Code.

Chairman McNamara said it doesn’t say sleeping correct?

Ms. Fitzpatrick stated that sleeping isn’t habitation.

Chairman McNamara said it doesn’t say overnight use, it’s any habitation on the property. He asked if the camper was registered.

Ms. Fitzpatrick said that it was unregistered this summer.

Member Haddad asked Mr. Colarusso if he acknowledges that the camper was hooked up to electricity and water.

Charles Colarusso said his brother [Vincent] had a refrigerator hooked up for food and the water would be used for the kids when they come back from the beach. The camper is back in Brockton now. He further stated he has health issues, his sister has health issues and his mother is in her eighties – to have the kids get up early in the morning is hard, to not be able to put the kids somewhere else is a hardship.

Vincent Colarusso stated that the neighbor said the children are waking him up. He said the camper is out there for the children. We go to bed in the house. He said he has it plugged in because the batteries would go dead and everything would shut down – if you don’t have power to it constantly – it deteriorates and breaks down.

Member Haddad stated he was at the site three (3) times and the first time the camper was on the gravel area and hooked up to electricity and water; the second time the trailer was located in back of the dwelling; and the third time there was a boat on the gravel and the trailer was gone.

Vincent Colarusso said that the neighbor said if we move it to the back he would leave them alone – it blocked their view. Once my brother moved the camper they left us alone.

Member Johnson asked Mr. Colarusso if they live there seasonally and if the camper comes and goes seasonally.

Charles Colarusso stated yes and he was told that habitation means a place of abode or place of residence.

Member Johnson asked if there is a kitchen in the camper.

Vincent Colarusso said there is a sink and a refrigerator and that he does not use the stuff – they use the house.

Chairman McNamara said just to clarify – the camper is used as a family room.

Charles Colarusso stated yes.

Chairman McNamara asked if anyone present would like to speak in favor or opposition.

Board Discussion:

Member Foreman asked for clarification of regulations from Ms. Fitzpatrick.

Ms. Fitzpatrick reiterated that the camper has to meet setbacks of 25’ from street and 10’ from side and rear. She said it is not suppose to be used when it is parked on site. She said anyone then could rent out their house and live in a camper on same lot. Ms. Fitzpatrick explained that the complaints go back to 2009; there have been nine different complainants – including one who is deceased.

Chairman McNamara asked if there is a definition of habitable space in the building code.

Ms. Fitzpatrick said she is not qualified to testify to that.

Administrator Budrow said she believes there is a definition of habitation in the Building Code and our town bylaw definition of ‘dwelling’ may mimic that definition.

Ms. Fitzpatrick stated living, eating and sleeping.

Charles Colarusso said he had a lawyer look up Chapter 208 and he said it’s a place of abode or residence.

Chairman McNamara asked Mr. Colarusso if he had a letter from an attorney that he would like to submit.

Mr. Colarusso stated no, but he could get one.

Member Haddad stated he doesn’t have a problem with the camper parked on site, but he does if it is being used as stated.

Member Johnson stated it is seasonal use – it is not there now. She said if there was a playhouse there the same size, it could be used – it is the fact that it looks like a trailer [camper].

Chairman McNamara stated that due to the size of the property, any accessory structure added to the subject property would require a special permit.

Member Haddad stated that the Colarusso’s bring it down from Brockton for a reason – they are using it – why else would they bring it down. They are using it by their own admission.

Member Foreman stated an RV by its nature is habitable, because it has a kitchen and bathroom – it is different than a playhouse.

Chairman McNamara stated what is before the Board is a seasonal use of a camper and the Appellants stated they did use it for living purposes. Section 240-160 A. of the Code of Falmouth requires a one-year special permit for a temporary structure or use. State law does define it and that is for any living types of purposes – not just for sleeping. He said it would be real chaos in this town to allow people without the benefit of a permit to have an accessory structure on their property for whatever good and noble purposes there are. He further stated that there is nothing in the zoning bylaw that says we can relax the bylaw due to medical issues and other ‘personal’ hardships.

Vincent Colarusso said he would like to have sworn testimony for the complainants.

Chairman McNamara said it does not work that way. This Board is going to weigh what you have stated, what the Town has stated and review all of the information and testimony submitted. The Board did listen to your testimony and acknowledged what you have said.

Member Foreman stated that it is not the neighbor’s testimony that makes the decision - that just triggers it. Zoning Enforcement then investigates and renders a determination.

Charles Colarusso stated that they are here approximately 12 weeks out of the year and that his mother has paid taxes for 56 years to the Town and it is upsetting that someone who has been here for 2 years can go on our property and complain. He further stated that ‘habitation’ is not defined clearly in the Falmouth bylaws or the State.

Member Foreman stated there is an alternative – you could go before the Board for ‘temporary use’ permit.

Chairman McNamara stated, so as not to mislead, you may be able to get a permit from this Board after application, but it also has to meet the State Building Code, have an occupancy permit. It may or may not be allowed.

Mrs. Mary Colarusso said she has been paying taxes here since 1957 and has never taken anything from Falmouth; she doesn’t use the beaches. She said you then have a trailer for days and an overnight for my son and this happens. She said she has never had problems with any of the neighbors out of all her houses and has many different properties – then new neighbors come in and try to control.

Chairman McNamara suggested to the Colarusso family that if there is intent to use the trailer next year in a certain way, to use the town staff as a resource – don’t wait until someone comes and knocks on your door.

Member Haddad made a motion to close the hearing. Member Foreman seconded the motion. Motion carried 4 - 0.

Chairman McNamara closed the Hearing.

Findings:

The Board of Appeals, after carefully considering all of the facts and evidence submitted at the hearing, makes the following findings:

The subject property located at 74 Philadelphia Street in Teaticket contains approximately 4,000 square feet of Residential C zoned land that is located with the Great Pond Coastal Pond Overlay District. The Appellant appealed the Assistant Zoning Enforcement Officer’s determination under Massachusetts General Laws, Chapter 40A, Section(s) 8 and 15 Section(s) 240-202 of the Code of Falmouth that the use of the camper on subject property is a violation of the Town and State codes.

The Board finds that observation of the camper being hooked up with water and electricity while it was parked on subject property was made by the Assistant Zoning Enforcement Officer and members of the Board of Appeals [while on site visit]. The Board further finds that testimony by the Appellant did acknowledge the water and electricity being hooked to the camper for use.

The Board finds through testimony of the Appellant and the Appellant’s family members that the camper was used as an extension of habitable space to the dwelling structure on subject property by family members in residence. The Board further finds that the use as stated and the intent of use observed is a violation of Town Code.

The Board finds that the use of the camper on subject property is in violation of Chapter 208 “Trailers” of the Town Code, subsection 208-1 ‘Use Restricted.’: the Town of Falmouth does herby restrict the use of trailers within the Town limits by requiring that no house trailer shall be permitted to be used for habitation, except as provided by Section 240-160 A. “Temporary and conditional structures and uses of the Zoning Bylaw.”

The Board finds that there is no evidence of application to the Board of Appeals, Building Department or Board of Health to allow the temporary use of the camper on subject property.

Member Haddad made a motion to Deny the Appeal and Uphold the Assistant Zoning Enforcement Officer’s determination that the use of the camper on subject property is in violation of Town Code Chapter 208, 208-1 and Section 240-160 A. Member Foreman seconded the motion.

NOW THEREFORE

BE IT RESOLVED, that the Board of Appeals (herein referred to as Board) being of the opinion aforesaid and acting under the provisions of the Code of Falmouth voted 4 – 0 to Deny the Appeal and Uphold the Zoning Enforcement Officer’s Determination that the use of the camper on subject property located at 74 Philadelphia Street in Teaticket, Massachusetts is in violation of Town Code Chapter 208, 208-1 and Section 240-160 A.




Decision of the Falmouth Zoning Board of Appeals Continued:


Appeal Number: 76-13


Appellant: VINCENT COLARUSSO of Brockton, MA

Subject Property: 74 Philadelphia Street, Teaticket, Massachusetts
Map 39A, Section 10, Parcel 000, Lot 068



Action: The Board of Appeals, by the signature below, being present, certifies the vote of the Board as follows for the above referenced:


Vote: 4 – 0 to Deny the Appeal and Uphold the Assistant Zoning Enforcement’s Determination based on the above findings.






_____________________________________________
Matthew J. McNamara, Board Chairman




______________________________ Date Filed With Town Clerk





Notice is hereby given that any appeal from this Decision shall be made pursuant to Section
17 of Massachusetts General Laws, Chapter 40A, and shall be filed within twenty (20) days
after the date of filing of this Decision in the office of the Falmouth Town Clerk.


Notes:
SP #76-13 Colarusso / 74 Philadelphia St. / Denial of Appeal