HomeMy Public PortalAboutStatement_201501160859518938 Terrence P. Morris, Esq.
Attorney at Law
57 rECm 12oad
Newton, TtA 02460
617 202-9132
November 17, 2014
By electronic transmission: nunena@wotertotvn-tuuu.gov
Michael Mena
Zoning Enforcement Officer
Watertown Town Hall
149 Main Street
Watertown, MA 02472
Re: 217 Watertown Street
Dear Mr. Mena:
Thank you for the prompt response to my recent letter regarding the above-referenced property, By
means of this letter I'm accepting your offer to discuss the matter further. I respectfully suggest that
a review of the documents in this case, as well as relevant court cases that have interpreted
variances,support a different conclusion from the one reached by the staff as stated in your letter.
I note that you have characterized the variance as permitting"substandard"frontage. However
nowhere is that term used to describe the subject matter of the variance.To the contrary the
documentation consistently describes the variance as one, "which will result in ronta e o
nronosed lot X not abratine rthel street line" (emphasis added). Rather than considering the frontage
"substandard", it is proper to call the lot what is, i.e,a"rear lot". While the Watertown zoning
ordinance does not define the term, it is defined in one neighboring municipality as "a parcel of land
not fronting or abutting the street", whose minimum frontage requirement may be satisfied by
measuring lot frontage along the rear line of the lot or lots in front of it?Indeed the Board itself
described the lot as a rear lot due to its location in the rear of Lot Y which location was the chief
impediment to meeting the minimum street frontage requirement.
It is helpful to note that one of the statutory preconditions for the granting the variance is that it will
not nullify or substantially derogate from the intent or purpose of the ordinance or bylaw. It is
well-established that one of the principal purposes of a frontage requirement in a zoning ordinance
is to provide safe vehicular access to and from the premises. Consistent with that purpose the Board
expressly found that "Facilitiesfor lu•avel to and fi•onu/n•ol)osed lol X would belmovicled by a
12ibol right of war running fi•oun Lot X Mi-ough Lot Y to Waferlown.%-eet". Accordingly it is
See the(a)petition (br variance dated November 21. 1956 (b)notice of public hiving,(e)notice ol'decision and(d)the
decision it,elf.
City of Ncevon Zoning Ordinance s.30-15(r)
reasonable to conclude that the Board was not waving the frontage requirement but applying a
different standard of measurement,which speaks to what a variance is supposed to do.
217 Watertown Street Page 2 November 17, 2014
One purpose of variances is that they exist to fill gaps in a zoning ordinance where the ordinance is
silent or does not have a provision for otherwise providing necessary relief in certain situations.The
Board of Appeals could not have been clearer in stating its intent in granting the variance. It said
that the granting of the variance will result in "fi-ontage...not abutting the street line". It did not say
that there will be no frontage or substandard frontage upon the granting the variance. Implicit in that
decision is that the lot frontage is being measured in some other way, i.e., by measuring lot frontage
along the rear line of the lot in front of it. The net "result" (the actual term used by the Board) is that
Lot X would have 70.19 feet of frontage not abutting the street line but abutting the rear line of the
lot(Lot Y) in front of it, rendering it compliant with the minimum requirement of 50 feet.
You state that the "existing use is consistent with the current zoning ordinance, in that the existing
propero) with substandardfrontage, only contains a single family chvelling."That begs the question
by assuming the proposition to be proved in your premise, i.e., that a two-family dwelling is not
allowed. What it fails to acknowledge is that both the General Residence District and its successor,
the Residence"To District permit two-family dwellings as a matter of right'The variance was for
lot frontage and not for a use because the use was and is still permitted.
The very fact that "the Variance was for lot frontage and not for a use"supports the proposition that
Section 4,09, Exceptions to Lot Size Regulations would npt apply in this case.The staff's contrary
determination ignores the fact that the size of the lot exceeds the minimum requirement for new
construction of, and/or conversion to, a two-family dwelling and that Section 4.09 is silent on the
remedial effect of the variance, which was dispositive of the frontage issue.
Your response states that the variance granted in 1957 was to construct a single family dwelling,
suggesting that somehow this may have been a condition of the variance. While the summary of the
public hearing does include a statement by the petitioner to that effect, there was no such condition
set forth in the decision. The Board imposed only two conditions on the variance: (1) "that the right
of way as indicated be granted with the conveyance of said lot X"; and(2) that plans of the
suh-division and right of wary be filed with the Boa d of Appeals as well as with the Middlesex
Regim y of Deeds.
The reliance on so-called implied conditions in a variance runs afoul of the principles set forth in
several Massachusetts appellate court cases. In the case of Spear v. Board ofAppeads of Danvers,
which involved a frontage variance and a claim that a variance imposed implied conditions,the
court stated that"[c]onditions [on a variance] must be sufficiently definite to apprise both the
applicant and interested landowners of what can and cannot be done with the land."Spero•v. Born-d
of'Appeals of Danvers, 77 Mass App Ct at 222.
In rVendoza v. Licensing Roard of Fall River, the Supreme Judicial Court reasoned that, "[i]n order
for conditions on a variance to be binding, they must be set forth in the variance decision itself."
'According to the current zoning bylaw,Section 5.01 Table or Use Regulation;Almcs fur 1110 construction of new
NO-li1111H) dwellings or me conversion of existing one-fonily dnclling's litt mo-fiunily use.
i
,Mendoza v. Licens•iiig Board gfFcdl River, 444 Mass 188, 205(2005), In Lussier v. Zoning Bcl. of
Appeals of Peabody, the Court stated that, "Purchasers of property or their attorneys are not
expected or required to look behind the face of recorded variance decisions to ascertain their
effective scope:.."Lussier v. Zoning BrZ of Appeals of Peabody, 447 Mass at 535 (2006).
217 Watertown Street Page 3 November 17, 2014
The petitioner complied with the only conditions set forth in the decision as previously reported. On
June 3, 1957 a plan titled, "Plan Showing Subdivision of Land in Waterionvi Mass,", dated March
15, 1957 (the"Plan'),was recorded in the Middlesex South Registry of Deeds as Plan Number 828
in Plan Book 1957. In accordance with the provisions of the variance the Plan also showed a 12-foot
right-of-way from Watertown Street to lot X. On that same date Donato Marzilli conveyed the lot X
to Rocco D.and Anna T.Marzilli by deed recorded in Book 8960 at Page 231,which deed included
a description of the right-of-way referenced in the Plan.
Given the importance of this matter for my clients, in the event that we are unable to reach
agreement on the issue, it may be necessary for them to avail themselves of a right of appeal under
Section 9.19 of the Ordinance. Since we remain in discussion, may we safely assume that no final
decision has been reached until you have had the opportunity to consider these most recent
arguments and respond in writing?
I look forward to your response. Thank you for your time and attention to this matter.
Sincerely,
Terrence 1.. -Ij1Morris
Terrence P. Morris
Cc: Stephen Magoon, Planning Director via email:•+mcrgoat'ci'ueuc,7uu n-nnc.gov
Louise Civetti, Zoning Clerk via email: Icivetii@ivaieriou,fr-n:a.gov
Robert Gill, via email: bob.gill&w.cmn
TOWN OF WATERTOWN
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The petition seeks a variance from the terms of section 11 of the
Zoning By-LEw so as to permit the sub-division of land known as 219 Watertown
Street, Watertown (Assessors Lot No. 24) , which will result in frontage of
proposed Lot X not abutting on Street line, in accordance with plan submitted.
The lot in question is located in a General Residence District.
The proposed lot area of 8100 square feet is adequate in area require-
ments but its location in the 'rear of Lot Y on the plan submitted is defective
of the minimum street frontage, i.e. 50 feet, as stated in said section 11.
Facilities for travel to and from Lot X would be proposed provided. by a 12-
foot right of way running from Lot X through Lot Y to Watertown Street.
The petitioner was present and upon request, was allowed to have his
daughter-in-law, Mrs, Rocco Yarzilli, explain the details of the petition.
Mrs. Enrico Cairo, owner of premises adjoining, 213 Watertown Street,
� asked that her opposition be recordod,
i
i Mrs. Marzilli stated that the reason for the petition was to allow her
husband son of the i petitioner, to construct a one family, ranch type, 5
room house with a garage attached. The right of way would be granted upon
conveyance of the said lot X by the petitioner. The present building on the
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premises, used as a garage would be razed; that this house would add an attrac- '
tive feature to the neighborhood and utilize a lot which would otherwise be of !
little value. She and her family were in need of the housing facilities.
Mrs. Cairo's opposition was based on a desire to be give❑ the same
privilege of building in the rear of her lot and adjoining that of the peti-
tioner's. She also desired the use of the proposed right of way in common i
11 with the Marzillis or to have the right to pass and repass over the right of
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way to and from the home she also desired to build. I
Mrs. Cairo was instructed by the Board that, her desire to construct
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should be a subject matter of a petition to be filed by her and that the privi-I
lege of using the right of way was a matter of agreement between the parties
f and not a point of objection to the petition. Upon such instruction, she
- 1 _
Iquested be and the sane is hereby: Granted. Provided, however, that the right
of way, as indicated, be granted together with the conveyance of said lot X
and tbat plans of the sub.-division and right of way be filed with the Board
of Appeals as well as with the Middlesex Registry (South District) of Deeds,
Board of Appeals,
Town of Watertown,, Maass,
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Poarb of c'APPe211s
on Monday{ Decem-ier 100 1.956 at 7-45 R.'+1. in the
Adviinistratior_ Building on ;Main Street, 'Patertovm,
Massachusetts, the Board of Appeals appointed by
the Selectmen pursuant to the provisions of the
Zoning; By-law adopted on March 290 19370 will hold
a public hearing on the petition of Donato Marzilll.
917 Adana Street, Nowton, 1:Iassaehusetts whAch In -
volves a variance from the terms of Section 11 of
the Zoning Ay-law of the Town of Watertovm so as
to permit the subdivision of land knovin as
(Assessors Spot No. 4) 219 ,',atert-own Street, %1Satertovvn,
Massachusetts vaiiickl will result in frontage of pro-
posed Lot X not abutting street line. Plans sub-
mitted.
l31?`f1TF2 S. COHIUT
N14URICE J. CARROLL
JOSEPH J. MAZZA
Board of Appealse
vaO of Apprato
PETITION FOR VARIANCE
Request For Special Permit
Date ..DTovember 21, 1956
To the Board of Appeals,
Watertown, Massachusetts
............D.gnatty...Mer.a'11 ...............I..................... of ..............2.17... ...............................
Name of Applicant Street Address
Newton Massachusetts
_....................................................................................... .. ........-................................................................ ............
City or Town State
I (1) Petitions the Board of Appeals to authorize a variance from the term&of Section ....11........ of
the Zoning By-Laws of the Town of Watertown so as to permit...th e...sub.rd1.v1.si_Qn..Qf.,land
known as (Assessors Lot No. 4) 219 'ilatertoiwn Street, lriatertowm, hMaSP-
ac'rusetts arch t^ —1 . result -in...front-age.-of..porposed..1ot..X...ab>k:ri-1nS_
s cal. Paz;. eabTa the abu;t tin
Plans.,,eubnitted,
to direct the Building Inspector of said Town of Water-
TO / / / ceupy and use as a ..................................
Dare11 " / /O Time �.'� ..................::.........................................I..... ........
WHILE YOU WERE OUT
....................................................:..........................:....................
.....................................................................................
of IQ _4�jyf J -ize a variance from the terms of Section........................of
Phone W
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TELEPHONED PLEASE CALL HL`i I )�'-?'�`✓Ld���� // '•'
(Signature) ' r ........................�... � ... .
CALLEOTOSEEYOU L�LCALL AGAIN
ig By Law is desired but whidh/involves neither an appeal from
WANTS TO SEE yG RUSH�rf ut for construction or alteration of buildings nor a special permit
E� @fired The petitioner should specify as required by the form, the
Message Q ??? ed.
;he provisions of the Zoning By-Law, the approval of the Board
s of the Zoning By-Laws is requested, the applicant should specify,
J/ s to which variance may be necessary.
it impossible for the Board of Appeals to grant the relief desired.
or the area of premises is in issue, the applicant must file with
this request the applicant is required to pay a filing fee of Five
Opnuor
Pons 157 Rmrder—H.S.Home&Co..157 Fedual St,Eoa a 10
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`101,
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H:CANN,JR.
% Plan Showing
Subdivision of Land in
Waterlown, Mass.
Scale l"= 40' March 15, 1957
Ala Gann 8 AlcHugh• Land Surveyors;
/L of 6
�,TV 69.7..
�t4� ' Lot X t
�2 / 18055 SQ.Ft.
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Lot 5
Lot B
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9 Mido ssex Hegisuy ut Ueeda, So. UTA
CAMA DGc, MASS,
Lot Y i* : Plan Numbe( .__.828.. ....of 1957
la a Rec'd June 3,.1957a1_j.h lrn-_.m
9/26SgFt I R With._Deed ,, pDoc. N4• 215..__..
o 1) Mar5r(10
" yti : Rocco .15. Ma'rzilf(:et ux-
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Recorded, 69ok18_ 7-page ........
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Plan Showing
` /��/9T EP�O�•
Subdivision of Land in
Watertown, Mass.
Scale /'= 40, March ld, /957
McGann 8 AfcHugh•Land Surveyors,
/L of 6
/" Lot x •
g6055 Sq.Ft N
n
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Lot B Lot 5
Ik
1� Mida esez Heglsuy ut Ueeds, SD, Uisl.
i CAMA DO[,MASS,
Lot Y 1" Plan Number ....82 8.. .... of 19 57
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Rec'd Jun 3_,19at _h_ _:.m m
57 I 14 P
�a • _ ...e.. ._ _ _.
g 9126Sq.Ft. i�A With. .
.Dee. .d ••'' ppocr.N4. 215..._..
N lo� _ Donafio -Ma sl_fho"
l� : Rocco_.(.. Ma'rz. ..... UX.
j° Recorded, 8gokl8�0
7"Page
Attest ` . 231
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Terry Morris
From: Mena, Michael <mmena@watertown-ma.gov>
Sent: Monday,November 24, 2014 4:29 PM
To: Terry Morris
Cc: Magoon, Steven; Cnvetti, Louise;'bob gill'
Subject: RE: 217 Watertown St.: Request for Determination
Attachments: Appealing ZEO Application.pdf;indemnification -tndividual.pdf; Newspaper
Authorization.pdf
Good afternoon Mr. Morris,
We have reviewed the request for determination with our attorney's office and they have confirmed that staffs
assessment(below) is accurate. I have attached a copy of the application and supplemental materials to appeal our
determination for your reference. Please let us knot! f:vie may be of further assistance to you.
Please submit a total of 10-copies of your application (collated) to tine zoning office no later than December 16'h to be
heard by the board in January 2015. The application fee is $150, plus a S15 noticing fee.
Thank you,
Mike Mena
Zoning Enforcement
Town of Watertown
149 Main Street
Watertown, MA 02472
617.972.6427
mmenanwatertnwo-ma.c;ov
From:Mena, Michael
Sent;Tuesday, November 04,2014 322 PM
To:'Terry Morris'
Cc:Magoon,Steven; Civetti, Louise;'bob gill'
Subject: RE:217 Watertown St.: Request for Determination
Good afternoon Nit. Morris,
I have reviewed your information and consulted with the Director of Community Development and Planning,. The
Variance granted in 1057 did hermit the subdivision vnth substandard frontage,which notes,was to construct a ;ingie
family dwelling, As you not,, the property was later developed, legally,with a single farnily dwelling.
The existing use is consistent with the current zoning ordinance, in that the existing property, with substandard
frontage,only contains a single family dwelling. 1''ne: ---fore,staff has determined that Section 4,09, Exception; to Lot Size
ReguIeYlOnti BrOICd sTnl apply 11 tilli CaS:; ylbefl, r Oh ! , fr Inn frontage and not fOr a use.
Per Section 4.09,"Lots having terser area or frronta3e th• n the minin Un-, required for the district in Article V and shown
on any plan culy recorded by d=ed or plan at .hc R2gist(';%of h_?!cs prior to the date of adoption of tltlS 70ning
Ordinance, may he tl_Cd`DI detached singl?, fc.a ili;�[ipJP,ii n `-�:i❑`Piv;sc PJ of ittcj In the districi,STibject to the Special
Permit provisions.,„ A need tLVO-fam:ly vcAJ; d ink be ri2rn-. it?ci.
We Ytould bC il-appy tC dij(,us.it,6 'vlith YL)u.fw_f-.