HomeMy WebLinkAbout2009 Apr - Misc. Re: Proposed Zoning Bylaw Amendment � '° � iz� � E�� L�sT� �;,- �_ ���
JOLLY CAPTAIN
1376 ROUTE 28, SOUTH YARMOUTH
Unit# Living Area in Occunancv
��(� Square Foota�e
� y�{ � �
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1 300 2
2 290 2
3� 290 2
4 290 2
5 294 2
6��Y 290 2
7 300 2
�� 290 2
9 " 290 2
10 "` 290 2
11 300 2
12�' 290 2
13 290 2
14� 290 2
15 290 2
16 1,100 9
17'" 1,100 9
18 760 7
,�•����- 19 976 9
3 APART�VIENTS, 1 MANAGERS QUARTERS, 15 APARTMENT = 19
TOTAL UNITS
STATE HOUSING CODE SECTION 410.400, MINIMUM SQUARE
FOOTAGE:
A) Every dwelling unit shall contain at least 150 square feet of floor space
for its first occupant and at least 100 square feet of floor space for each
additional occupant, the floor space to be calculated on the basis of total
habitable space. (LTsed for house or condominium)
C) In a rooming unit, every room occupied for sleeping purposes by one
occupant shall contain at least 84 square feet of floor space; every room
occupied for sleeping purposes by more than one occupant shall contain at
least 60 square feet for each occupan� (Used for motel)
,�°��Y`9``��o T O WN O F Y A RM O LT T H plannin
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� y 1146 ROUT'E 28 SOUTH YARMOUTH,MASSACHUSETTS 02664-24451 BOard
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MEMORANDUM �'��� ` °�'J'`�°
� APR 13 1009
To: Helen Shah, Chairman HEAL�TF� ��PT.
Board of Health
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From: Tracy Post, Chairman / `/��c".X_-.
Planning Board ��2�
Date: April 13, 2009
Subject: Jolly Captain Condominium
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At their regufar meeting of April 8, 2009, the Planning Board met with representatives of
the Jolly Captain Condominium, Attorneys Michael Stusse and Jay Murphy, who
presented a draft Zoning Bylaw amendment to address the non-transient occupancy of
the former mo#el, as well as others that are presently operating in a similar situation.
The Planning Board generally regards this proposed amendment favorably, but before
taking action, wishes to offer it to the Board of Health for its review and comment.
A copy of#he proposed text is attached, we look forward to any observations and
recommendations your board might have.
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cc: James Brandolini, Building Commissioner
T0: YARMOUTH PLANNING BOARD
FROM: Lester J. Murphy, Jr., Esq.
Michael B. Stusse, Esq.
Attorneys on behalf of
Re: Jolly Captain Condominium
Proposed Zoning Bylaw Amendment
Date: Apri18, 2009
Facts and Background.
This is the third time Jolly Captain Condominium has appeared before the Planning Boazd with
respect to a proposed amendment to the Yarmouth Zoning Bylaw intended to allow the owners
to utilize their units for more than thirty(30)consecutive days.
At the first meeting the Planning Board asked the Trustees'representatives to identify the
properties that might be affected by the proposed change in the Bylaw.
At the second meeting the Boazd asked the Trustees' representatives to(1)Refine the language
of the proposed Bylaw amendment and(2)Refine the list of potentially affected properties.
Attached hereto aze:
1. The draft bylaw with recommended changes.
2. List of Properties.
First Article
Amendment to Section 104.4.1 in third line
... that there is no change of use, or in the case of a motel or hotel licensed as such on April 11,
2006, not located in the HMOD-1 or HMOD-2 Zoning District and for which a Special Permit
has previously been issued under this Section on or before April 11, 2006, that a Special Permit
is issued pursuant to Section 104.4,that the ...
Second Article
104.4.4 Notwithstanding the foregoing Section 104.4.1, a Special Perrnit may be issued for a
hotel or motel licensed as such on April 11, 2006, and for which a Special Permit authorizing
conversion to condominium fomn of ownership was issued on or before said date authorizing a
change in use to multi-family use provided further that such hotel or motel is not located in either
the HMOD-1 or HMOD-2 Zoning Districts and further provided that the Board of Appeals fmds
the following:
A. Each single-family residential unit contains an area of not less than 500 squaze feet of
living area;
B. That the site contains facilities providing at least 1.5 parking spaces per residential
unit; �
C. That the property will consist of not more than twenty(20)residential dwelling units;
D. That the Board of Health has determined that the septic system, either existing or as
proposed, is in good operating condition and is suitably sized and designed to
accommodate the septic flow; _
E. T'hat each of the residential dwelling units has or will be equipped with at least the
minimum kitchen facilities as required under State health codes for a dwelling unit;
and
F. That the buildings containing the residential condominium units contain hardwired
heat and/or smoke detector systems connected to a central panel.
The Board of Appeals shall have the right to impose such reasonable conditions on the special
permit as it deems appropriate provided that no restrictions shall be imposed that impairs the
right of an owner to occupy or rent a unit that is a pre-existing year-round unit prior to filing the
application for a special permit under this Section 104.4.4.
C:UNurphOFFICEICL]ENTS�jolly.capteinl6y law changes.l.doc �
. ,
Affected Properties
Appeal#2215 (1985}Assessors Map 26 Parcel 65/Sea View Avenue, 2 cottages/hotel units.
Use restricted from March through November.
Appeal #2256. Colonial Court Cottages. 6 uniUcottages. Restricted occupancy in Master Deed.
April 1 through October 31 S`
Appeal#2482 (1988) 183 South Shore Drive. 14 Units/Restricted to occupancy April 1 through
October 31 S`
Appeal#3821 (2003)9 Windemer Road. 10 unit motel. Restricted December 15�'through
February 28"'.
Appeal#3851 (2003)29 Lewis Bay Road. 9 units in 9 separate buildings. 4 units seasonally
restricted. 5 units year-azound.
Appeal#4169. 1376 Route 28. Jolly Capta.in Motor Lodge. 19 units. 15 units restricted to
transient use.
104.4 Condominium Conversion.
104.4.1 Any legally existing conforming or nonconforming
structure or use may be converted to a condominium form of
ownership with a Special Permit from the Board of Appeals if
the Board of Appeals finds that there is no change of use,
that the declaration of condominium document(s) explicitly
define the existing use (e.g. seasonal use, time sharing use,
number of units, existence or absence of kitchen facilities,
etc.) and that the "declaration of condominium document(s)"
is written with proper management authority to insure
maintenance and repair of public health and safety aspects
(e.g. water lines, sewage facilities, etc.) of the property being
converted. The Site Plan Review Team may review
condominium documents before application to the Board of
Appeals, at the discretion of the Building Commissioner.
104.4.2 A special permit may be issued for an entire
subdivision based upon a typical condominium unit and lot
plot plan, even though said units and lots will vary within said
subdivision. Any fees shall be charged upon a single special
permit.
104.4.3 Deleted (ATM 04/11/06).
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�� - _ �.��.G TOWN OF YARMOUTH
O __,;. .�: ►�3 BOARD OF APPEALS
`�: � � ,�"r DECISION
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FILED WITH TOWN CLERK: June 3,2008
PETITION NO. #4169
HEARING DATE: May 22,2008 (Feb. 14 &28, and April 24,2008)
PETITIONER: Trustees of the J�y Capt�in Motor Lodge Condominium Trust
PROPERTY: 13?6 Route 28,South Yarmouth
Map and Parcel: 0061.60; Zoning District: B2
MEMBERS PRESENT AND VOTING: David S. Reid, Chairman, Joseph Sarnosky, Diane
Moudouris,Renie Hamman and Thomas Roche.
It appearing that notice of said hearing has been given by sending notice thereof to the petitioner and
all those owners of property deemed by the Board to be affected thereby, and to the public by posting
notice of the hearing and published in The Register, the hearing was opened and held on the date
stated above.
'The petitioner seeks a Special Permit or Variance, in order to legalize an existing mulit-family use at
this existing site. The property is located in the B2 zone. The lot reportedly contains approximately
38,000 square feet of area. T'he lot is improved with four (4) buildings, containing a total of 19
"units". Units 1-15 are motel-type units. Units 16-18 are larger apartment-type units. Unit 19 is the
manager's office and unit.
The petitioner represents that Units 16-18 have traditionally been available for use throughout the
year. Units 1-15 are limited to 10 months of occupancy, being closed during the month of January and
February of each year.
The property was the subject of Petition #�,�.�(�an�ry 14, 19$5) v�ich granted a Special Permit to
convert the existing motel to Condominium ownership. However, that decision expressly limited the
use of the site to motel use, inter alia , imposed the seasonal restriction, limited the 15 motel-type units
to a total of 5 kitchenettes, limited the �cupancy of each unit to not more then 4 persons, and�,
restricted any occupancy of any unit ta a period of not more then 30 days.
The petitioner represents that currently all 18 units (excluding the former managers unit), are
individually owned and occupied by their owners or their tenants. No manager's office exists, per se,
and no central mechanism for rental of units exists. Each unit owner has been allowed (by the
Condominium) to occupy or rent his or her unit at will. The former manager's office/unit is occupied
by the pool and dock operator, who provides some on-site operational duties. Each of the units now
has sorne form of kitchen facilities, most includes a refrigerator, sinks, and some form of stove/oven
combinations.
The petitioner concedes that the property has not been operated as a motel for at least 1 S years. In
1987, the Condominium received Conservation Commission approval for a 20 slip dock, extending
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from the site into Bass River. The petitioner acknowledges that some unit owners rent their assigned
dock slip out to use by others, non-residents of the site.
The petitioner seeks a Variance to now allow the premises to be formally converted from the former
motel use to a 19 unit, multi-family residential facility, with each unit having kitchen facilities. The
petitioner contends that the Variance may be granted under the circumstances. They contend that the
facilities have already been effectively converted to individual residential Condominium units, and can
not be converted back to motel units. Each owner of a unit has invested substantial sums in the
purchase and renovations of his/her unit. T'he petitioner represents that the site is well suited to this
use, and the use, if allowed, would actually be less intense then a motel use, a factor especially
significant at this busy stretch of Route 28.
After two postponements and further hearing, the petitioner prepared 10 proposed conditions for the
use which it suggest could be imposed upon a Variance, to help mitigate the impact of the proposed
use variance upon the bylaw and the neighborhood.
The Board finds that there are few special circumstances related to this site or its buildings. The
buildings, as they presently sit, are suited for the proposed use. However, the site is only 38,000
square feet in area, far less then would ever be required for 19 residential units. The Motel Conversion
Bylaw, for which the petitioners admitted are not eligible, would not allow more then 16 units per
acre, under the best of circumstances.
Further, the Board finds that the hardship now being experienced by the petitioner is entirely self
created. The prior Special Permit and original Condominium documents expressly limited the use of
the facility to transient occupation as a motel use. The purchase of the units or subsequent alterations,
for any other use, could not reasonably have been thought to be lawful or allowable under the prior
relief.
'The Board does find, however, that the town has been less then diligent in the enforcement of its own
regulations relative to this property. Motel licenses and Certificates of Inspection were issued, even
after any actual motel use ceased to be operated. Enforcement of the zoning prohibition on multi-
family housing was not initiated. While such leniency was undoubtedly well intended, it did, in
hindsight, embolden the petitioners to continue their unauthorized conversion. 'Therefore, while the
town did not cause the petitioner's current situation, it also did not prevent it from occurring or
continuing. Accordingly, the Board finds it appropriate to afford the petitioner some opportunity to
help solve its predicament.
Accordingly, a motion was made by Mr. Sarnosky, seconded by Mrs. Hamman, to grant only so much
of the petition as requests a Variance, but to limit it to a Temporary Variance, for 2 years,�cluring
which time the petitioner may seek to sponsor or encourage amendments to the zoning bylaw to
provide a mechanism to allow conversion of similarly situated motels to multi-family residential use.
The temporary Variance is granted on the following conditions:
1) The petitioner shall comply with proposed conditions 1-10, proffered to the Board by the
petitioner(which are incorporated herein by reference and attached as exhibit A);
2) During the months of March and April, the 15 so-called motel-type units �ay not be rented,
but may be occupied by the unit owner;
3) The 15 motel-type units shall only be �-an � transi��� b�i�, as cunently defined in the
Yarmouth Zoning Bylaw for Motel use; ` '
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� 4) The motel-type units (15) shall be limited to an occupancy of not more then 4 persons at any :
time, and the �partment-type units sha11 be limited to not more then b person per unit at any
tirne;
5} The petitioner's shall secure any and all other permits (building, wiring, plumbing, etc.) for any
work already done in any of the units;
6) A motel-type register shall be maintained for all occupancy of all of the units, and it shall be
kept and maintained by or under the control of the Condominium Management (trustees);
7) The Board takes no action at this time relative to the boat slip/dock facilities, because of the
interim nature of this temporary variance, but does not implicitly approve or condone those
improvements, or uses, which were undertaken with out having been disclosed to or approved
of by the 1985 Board and without subsequent relief having been granted.
The Board members voted unanimously in favor of the motion. The Temporary Variance is therefore
granted, in part. The additional forms of relief are denied.
No permit shall 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, a Variance shall
lapse if the rights authorized herein are not excised within 12 months. (See MGL c40A §10)
David S. Reid, Clerk
Board of Appeals
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4�s � 6 �
Exhibit A
Proposed conditions for grant of Variance or Special Permit:
� l. No change from existing restriction on the fifteen (15) motel reasons — unoccupied months af
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January and February of each year—will ensure that no year-round residential activity will occur.
2. If no onsite owner/property manager is available, Trustees will engage security personnel to inspect
ro e and ensure no occu anc
p p rty p y of Motel units durin Janu and Febru
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3. No Change in occupancy terms of the three (3) yeaz-round apartment units, Units 16, 17 &18.
4. Unit 19 will be occupied on a seasonal basis only with primary use for management use and
employee housing.
5. There would be no limit on occupancy of the three (3) year-round units. T'he fifteen (15) motel
units would be limited to no more than thirty (30) consecutive days of occupancy by renters. There
would be no limitation on consecutive occupancy by unit owners.
6. Status of kitchen facilities:
a) Units 16, 17 and 18 — Existing year-round apartment units will continue to have full kitchen
facilities;
b) Fifteen (15) motel type units will be limited to sink,refrigerator, two (2) burner cook top
and microwave oven; *
c) Unit 19 (Management Quarters) limited to same as motel type units;
d) All facilities exceeding above in Unit 19 and motel type units will be removed.
7. Special Pernut from Board of Appeals required for any building pernut for expansion or structural
change or interior wall changes. No Special Permit required for maintenance work building permit
such as for new roof or window replacement.
8. Unit Owners seeking to rent units must comply with all municipal requirements including rental
occupancy permit.
9. Annual Board of Health inspections similar to current motel licensing inspections will be required.
10. The Trustees of the Jolly Captain Motor Lodge Condominium Trust will promulgate and adopt
amendments to Condominium documents and Rules and Regulations to incorporate these conditions,
provide significant penalties for their violation and require payment of all fees and costs for
enforcement against the offending Unit Owner.
* Note: Motel definition specifically allows two burner cook top and microwave.
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