HomeMy WebLinkAbout2013 Jan 14 - Board of Appeals Decision - Petition #4428TOWN OF YARMOUTH
BOARD OF APPEALS
DECISION
FILED WITH TOWN CLERK: January 14, 2013
PETITION NO: 4428
HEARING DATE: January 10, 2013
PETITIONER: Back 40 Real Estate, LLC
PROPERTY: 134 Route 6A, Yarmouth Port, MA
Map & Parcel: 122.32; Zoning District: R-40
Book & Page: 20158/ 12
MEMBERS PRESENT AND VOTING: Steven DeYoung, Chairman, Sean Igoe, Debra Martin,
Joseph Sarnosky, and Gerald Garnick
Notice of the hearing has been given by sending notice thereof to the Petitioner and all those owners
of property as required by law, and to the public by posting notice of the hearing and publishing in
The Register, the hearing opened and held on the date stated above.
The Petitioner seeks a Special Permit pursuant to Zoning Bylaw § 104.3, in order to extend a pre-
existing non -conforming use (Use Code H10) in a residential neighborhood. Specifically, the
Petitioner is seeking to utilize a pre-existing outdoor patio area for food and beverage service for
the restaurant's patrons. The area measures approximately 20'x 28', and is proposed to contain
seating for up to 16 customers. The property is located in the R-40 Zoning District. The
restaurant use is allowed as a pre-existing non -conforming use pursuant to prior Decision 3606,
and the Petitioner seeks to alter the use pursuant to Zoning Bylaw Section 104.3.2 (4).
T he Petitioner appeared and was well represented by Paul Tardif. The patio area is located in the
front of the existing restaurant structure, closest to Route 6A, and is located approximately 17
feet from the actual boundary line along 6A and is 24.5 feet from the easterly abutting neighbor's
lot line, and approximately 43 feet from his structure. The Petitioner will maintain the current
seating capacity of the restaurant at 80, but will move 16 of those seats outside during warm
weather months.
The property currently houses the Optimist Cafe, a restaurant serving breakfast and lunch, and
has since 2006. The Optimist Cafe is open daily between 7:00 am and 4:00 pm. The restaurant
does hold a beer and wine liquor license. The building itself was constructed in 1849 and the lot
contains approximately 26,000 square feet. There is parking for 28 cars, including 2
handicapped spaces. Being a corner lot, the building complies with the front setbacks and one
side setback. It sits approximately 14 feet from the abutter to the east, where 20 feet is currently
required. It does comply with the remaining bulk requirements, including lot coverage and
height limitations.
The easterly abutter appeared and spoke about the noise and odors associated with kitchen
functions and the restaurant, including a kitchen vent allegedly left running overnight. He
objected to the expansion of the restaurant use to the patio area. He also explained that the fence
which was constructed in accordance with Condition #1 of Decision #4370 was not built to the
length described therein. The Petitioner explained that the abutter had been cooperative with the
fence installation and had even assisted the fence contractor regarding the length and location of
the fence. It was agreed that a large tree, located on the common boundary, made it difficult to
install the fence to the rear of the Petitioner's structure.
In conjunction with this hearing, the Board also conducted the one-year review as described in
Condition # 5 of Decision 4370, and it was determined that the conditions for this use were
working well and that, other than the length of the fence, the conditions were offering the
protection anticipated by the Board in that Decision.
The Board finds that the outdoor seating area continues to be a desirable feature in the area, and
that the conditions outlined in Decision #4370 are working. The Board found that based on this
Petitioner's business model, and the type of clientele it attracts, which would be similar to the
prior owner's model, that the Special Permit could be granted, but with conditions to ensure the
least amount of disruption to the abutter.
The Board finds that the Petitioner has demonstrated that the proposal to use the outdoor patio
area for 16 seats will not be substantially more non -conforming, will result in no undue nuisance,
hazard or congestion and will not be substantially more detrimental to the neighborhood, zoning
district or Town than is the existing non -conforming use, with certain conditions.
Accordingly, a Motion was made by Mrs. Martin, seconded by Mr. Garnick, to grant the Special
Permit, as requested, with the following conditions:
1) Petitioner shall complete the installation of a 6 foot high fence along the common
boundary with the easterly abutter, from Route 6A and proceeding north to a point on the
boundary where the rear of the Petitioner's structure is located. If a fence is unable to be
installed due to the existence of trees and/or roots, Petitioner shall use her best efforts to
install plantings to accomplish the same result. Petitioner, or its agent, shall provide
written certification of the satisfaction of this condition;
2) Petitioner shall have installed a timer which will ensure that the kitchen vent will not
operate after the restaurant is closed for the day. Petitioner, or its agent, shall provide
written certification of the satisfaction of this condition;
3) There will be no music or other entertainment allowed in the patio area;
4) Petitioner agrees to install a "No Smoking" sign near the patio area in an effort to keep
offending odors from wafting to the easterly abutter's property, and in keeping with the
Petitioner's business model;
5) The patio area will be allowed to be occupied for table service from May 1 until
November 1 each year, at which time the tables shall be removed from the patio until the
following year;
6) This Special Permit shall be reviewed one year from the date of this Decision, to ensure
that the expanded use is not a detriment to the neighborhood based on tangible and
unaddressed issues between the Petitioner and the abutter. However, in the event that the
Petitioner provides the certifications recited in Condition #1 and #2 above, then this
condition shall be deemed as waived.
7) This Special Permit shall become null and void in the event that the Petitioner sells the
property to a new purchaser.
The members voted unanimously in favor of the Motion upon the stated conditions.
No permit shall issue until 20 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,
the Special Permit shall lapse if a substantial use thereof has not begun within 24 months. (See
bylaw § 103.2.5, MGL c40A §9)
Steven DeYoung, Chairman