HomeMy WebLinkAbout2008 Jun 03 - Board of Appeals Decision - Petition #4169 < ,' �•Y,`l
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TOWN OF YARMOUTH
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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: Truste�s of tl�e Jolly Captain Motor Lodg�Condominium Trust
PROPERTY: 1376 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. The 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 Petitican �2146 (January 14, 1985}`�which 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 occupancy of each unit to not more then 4 persons,�;and
restricted any occupancy of any unit to a period of not rnore 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 of�ce/unit is occupied
by the pool and dock operator, who provides some on-site operational duties. Each of the units now
has some form of kitchen facilities, most includes a refrigerator, sinks, and some form of stove/oven
cornbinations.
The petitioner concedes that the property has not been operated as a motel for at least 15 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. The 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 Tempot�try Variance, for 2 years,�during
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 o�the fall��ving conditians:
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 may not be rented,
but may be occupied by the unit owner;
3) The 15 motel-type units shall only be r�nted on a k�ansi�nt basis, as currently 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 apartment-type units shall be limited to not more then 6 person per unit at any
time;
5) T'he 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 pernut shall issue unti120 days from the �ling of this decision with the Town Clerk. Appeals from
this decision shall be made pursuant to MGL c40A section 17 and must be �led 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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Exhibit A
Proposed conditions for grant of Variance or Special Permit:
1. No change from existing restriction on the fifteen (15) motel reasons — unoccupied months of
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
property and ensure no occupancy of Motel units during January and February.
3. No Change in occupancy terms of the three (3) year-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.
S. There would be no limit on occupancy of the three (3) year-round units. The 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 rnicrowave oven; *
c) Unit 19 (Managernent 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 Permit from Board of Appeals required for any building permit 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. T'he Trustees of the Jolly Captain Motor Lodge Candominium 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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