D - 1995-156 Town of Barnstable
Zoning Board of Appeals
Decision and Notice
Appeal No. 1995-156 -CID-TREY INC.
Use Variance -Second Apartment on the Premises
Summary Denied
Applicant: CID-TREY, Inc.-John F. Hogan Jr.
Property Address: 438 South Street, Hyannis, MA.
Assessor's MaplParcel 308- 123 Area 27,452 sq.ft.
Zoning: RB-1 Residential B-1 Zoning District
Appeal No.95-156: Use Variance to Section 3-1.2(1)(A)Principal Permitted Uses,to allow the use of
a second apartment in the barn located on the premises.
Background:
The locus of this property is 438 South Street, Hyannis in an RB-1 Zoning District. At present, the
site is developed with a principal structure containing an office of 2,550 sq.ft. (Beltone Hearing Aids)
and two apartments totaling 1,370 sq.ft. The property also has a detached garage and parking for
10 cars.
Procedural Summary:
This appeal was filed at the Town Clerk's Office and at the Office of the Zoning Board of Appeals on
September 28, 1995. A Public Hearing before the Zoning Board of Appeals was duly advertised
and notices sent to all abutters in accordance with MGL Chapter 40A. The hearing was opened on
November 15, 1995 and continued until January 10, 1996 at which time the Board found to deny the
petition. This appeal (Appeal Number 1995-156) and Appeal Number 1995-155 were both
continued to January 10, 1996. The Board Members hearing the appeal were Ron Jansson,
Emmett Glynn, Robert Thorne, Tom DeRiemer, and Chairman Gail Nightingale.
Attorney Charles McLaughlin represented the Petitioners before the Board. The petitioner is
seeking a Use variance to allow the use of a second apartment in the barn located on the premises.
Attorney McLaughlin submitted an Affidavit from Walter Jacobson which states that he remembers
rooms being rented during the summer months in the 1940s. His parents continued to rent rooms
until the 1970s. The apartment was in the barn. The kitchen came into usage sometime in 1950s-
1960s. This use dates back fifty (50)years which predates zoning. The home has been used as a
boarding house and has always had lodgers.
Under current zoning, you can have three (3)lodgers as a matter-of-right so long as the property is
occupied by a family member of the record owner. With a Special Permit you can have up to six (6)
lodgers.
There is commercial use surrounding the locus. The use of the property, as it is presently, is a less
intense use than the Restaurant across the street or the Bank that directly abuts the property.
Attorney McLaughlin stated that Mr. Hogan (the property owner) maintains that he is in compliance
because at the hearing in 1984 for Special Permit 1984-07 three apartments with three kitchens
was mentioned. No one told him that he had to abandon the use of the three apartments. He
bought the property and has used the income from the apartments ever since. The two apartments
are occupied by one person each.
Regarding the granting of the Variance; the current use is far less intense than what is allowed by a
matter-of-right and would not derogate from the Zoning Ordinance if relief were given. Also, shape
Zoning Board of Appeals-Decision and Notice
Appeal No. 1995-156-CID-TREY INC.
is relevant as the site of the barn is difficult to expand. The garage and the main house can not be
expanded. The petitioner wants to leave the property as it was when he purchased it.
To clarify, the"barn" is shown as a"shed"on the plot plans. There is a common wall between the
main house and the"barn" but there is no door. You must go outside to get from building to
building. Inside this"barn" has a small kitchen, sitting area, and a one-bedroom loft with one
occupant. There is also another apartment on the premises.
In 1984, when Mr. Hogan bought the premises there were three separate kitchens, one in the main
house and one in each of the two apartments. He has abandoned one kitchen leaving two kitchens
and the Use Variance request is to continue the use as it stands with one professional office and
two apartments. There would be a financial hardship if Mr. Hogan were not allowed to rent the
apartments. He bought the property with the understanding (be it right or wrong) that the property
could be rented.
The Public was asked to comment: Mr. Naylor, an abutter, spoke against the Variance. He stated
the apartment had been rented to many kids who used it as a"dormitory" and were not considerate
neighbors. There were complaints regarding the number of tenants and the noise generated. Mr.
Naylor made out a formal complaint to the Building Commissioner which resulted in the Cease&
Desist Order. A letter was read from Mrs. Dunne, an abutter. She also is against the Variance.
Speaking in favor was Mr. Hogan, the owner, who reiterated that there has always been a"back'
apartment and a second apartment attached to the house. He felt he had cleaned up the area and
had improved the site. He spent approximately$80,000 to update the structures and spent over 4
months cleaning. He put in the driveway and the fencing in the back. There are two kitchens. One
in the main house and one in the loft. The tenant in the back apartment is an employee of Beltone,
Inc. (the professional office space in the front building) and the other apartment is rented to only a
single occupant. Rosemary Hogan also spoke in support indicating it would be a hardship if they
could not rent the apartment(s).
Board Member Ron Jansson read Variance 1984-07 which stated that the Use will eventually be
converted to all office space He asked for the minutes from that hearing in 1984. The minutes from
January 26,1984 were located and read. The minutes state that the Variance does not allow the
either of the two apartments and the petitioner at the time did not, in fact, even ask for permission.
Finding of Facts:
Based upon the testimony given during the public hearing on this appeal, the Board unanimously
found the following findings of fact:
1. The property in issue is located at 438 South Street, Hyannis, in an RB-1 Residential Zoning
District.
2. The property itself currently has the benefit of a Special Permit for a Conditional Use granted in
January 1984 to allow the principal structure on this lot to be used as professional office space
for Cid-Trey, Inc. for a hearing aid business.
3. Based upon a review of the minutes of the meeting of January 26, 1984, no other use was
permitted at that time.
4. The petitioner is seeking a Use Variance under Section 3-1.2(1)(A)to allow the use of a second
apartment in a shed or a barn that is located on the property.
5. In the RB-1 Zoning District several uses are contemplated and permitted under existing Zoning
as-of-right and as a Conditional Use by Special Permit. In particular, under Conditional Uses,
office uses are allowed. Special Permit#1984-07allows additional office space that the
petitioner could utilize as office space on this property.
6. No hardship is involved in allowing the current Use to be continued on the property in view of
the fact that it is a use that would lend itself in an area which is already fairly developed as
commercial property in the surrounding neighborhoods.
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Zoning Board of Appeals-Decision and Notice
Appeal No. 1995-156-CID-TREY INC.
7. There is no evidence that the property in its entirety could not be used as a professional office
use, and therefore there is no hardship.
8. There are no conditions pertaining to soil conditions, shape or topography that are unique to
this particular lot under the provisions of Chapter 40A, Section 10.
Decision:
Based upon the positive findings a motion was duly made and seconded to Deny the Use Variance
the petitioner is seeking in Appeal Number 1995-156.
VOTE:
AYE: Ron Jansson, Emmett Glynn, Robert Thorne, Tom DeRiemer, and Chairman Gail Nightingale.
NAY: None.
Order:
Appeal Number 1995-156 the Use Variance has been Denied. Appeals of this decision, if any,
shall be made to the Barnstable Superior Court pursuant to MGL Chapter 40A, Section 17, within
twenty (20) d s after the date of the filing of this decision in the office of f he T n Clerk.
G4-N' ightingalo Chair ChairrAn Dat@ Signld
I Linda Leppanen, Clerk of the Town of Barnstable, Barnstable County, Massachusetts, hereby
certify that twenty (20) days have elapsed since the Zoning Board of Appeals filed this decision and
that no appeal of the decision has been filed in the office of the Town Clerk.
Signed and sealed this 4'� day o 1996 under the pains and
penalties of perjury.
Linda Leppanen, Town Clerk
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