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ZBA 28 Pawkannawkut Drive (4)
Commonwealth of Massachusetts Land Court Department Barnstable, ss Massachusetts Land Court Docket# Gabriela Lopes • Plaintiff v. Steven DeYoung, Sean Igoe, Tom Nickinello,Tom Baron, Complaint pursuant to And Susan Brita, M.G.L. chapter 40A, Section 17 as they are the members of the Zoning Board of Appeals of the Town of Yarmouth Defendants Gabriela Lopes, Plaintiff, by her attorneys, William R. Edes of EdesLaw,for her Complaint pursuant to M.G.L. chapter 40A, section 17, to annul the Decision of the Zoning Board of Appeals of the Town of Yarmouth to deny a Special Permit for the operation of a Day Care Home, as allowed by Special Permit by the Zoning Bylaw of the Town of Yarmouth, alleges the following: 1 1. That Gabriela Lopes is a resident of the Commonwealth of Massachusetts, having a usual place of abode at 28 Pawkannawkut Drive, Yarmouth, Barnstable County, Massachusetts. 2. That the Zoning Board of Appeals of the Town of Falmouth (hereinafter referred to as the "ZBA") is the duly appointed Board of Appeals of the Town of Yarmouth under M.G.L. chapter 40A. The individuals named above, Steven DeYoung, Sean Igoe,Tom Nickinello, Tom Baron and Susan Brita, comprise the members of the Zoning Board of Appeals who sat on the matter which is under appeal in this action. The ZBA has administrative offices in Town Hall, 1146 Route 28, South Yarmouth, MA. 3. That 28 Pawkannawkut Drive is located within the R-25 (Residential) district within the Town of Yarmouth as set forth in the Town of Yarmouth Zoning Bylaw 201.1. 4. The property is a corner lot with frontage on both Pawkannawkut Drive and Wampanoag Road. 5. That Pawkannawkut Drive is an unimproved and unpaved road. 6. That 26-28 Pawkannawkut Drive is a Two-Family Dwelling under Town of Yarmouth Zoning Bylaw 202.5 #A-2. 7. That each residence within 26-28 Pawkannawkut Drive has its own driveway access and parking, some of which are on Pawkannawkut Drive. 8. That 28 Pawkannawkut Drive's driveway and parking for four vehicles off road; however, are not on Pawkannawkut Road, but rather on Wampanoag 2 Road, which is a full width two lane paved road leading to the waterfront and numerous resorts. 9. That operation of a Family Day Care Home is a permitted use (202.5 #P7-A) in the R-25 district if a special permit is issued by the ZBA. Copies of relevant pages of the Yarmouth Zoning Bylaw are attached as Exhibit 1. 10. That in 2018 Ms. Lopes applied for and was duly licensed by the Commonwealth of Massachusetts Department of Early Education and Care to provide Family Child Care Services as of June 7, 2018. A copy of the Regular License to Provide Family Child Care Services, License # 90331393 is attached as Exhibit 2. 11. That at no time during the licensing process was Ms. Lopes made aware by any relevant State authority that a special permit from the ZBA would be necessary in addition to her license from the Commonwealth. 12. That Ms. Lopes is licensed to serve up to six (6) children. The Yarmouth Zoning Bylaw allows by Special Permit a Family Day Care Home for children under seven years of age the number of children not exceeding six. A copy of the relevant page is attached as Exhibit 3. 13. That Cape Cod Child Development assisted Ms. Lopes in seeking her license and refers children to her daycare. 14. That at the time of the complaint and the present time the children would arrive in four vehicles with drop-offs spaced between 7:30 AM and 10:30 AM and all pickups conducted around 4:20 to 5:00 PM. 3 ` . . 1S. That on October z, ZO18, a complaint (dated October 5, 2O18) was filed with the Town of Yarmouth Office of the Building Commissioner |n which the complainant stated "| do not want a Day Care innny immediate area" and offered no other reason except that Day Care is not permitted in a residential area which was not true (see Exhibit 1). A copy of the Complaint is attached as Exhibit4. l6. That on October 4, ZO18, a site visit was conducted by James 8. BrBnd0|ini, Deputy Building Commissioner, who informed Ms. Lopes that her Day Care Home would require a special permit. A copy ofa letter sent bythe Building Department is attached as Exhibit S. 17. That Vn October 18, 3O18, the Building Department sent a Violation Notice pointing out that no Application for Hearing for a Special Permit had been filed. /\ copy of the Notice |s attached as Exhibit 6. 18.That after further consultation with members of the Building Commissioner's office as to policies, procedure, and forms, Ms. Lopes filed fora special permit on December 21, 2Ol8 for use as a Family Day Care Home (202.5#P7- A). A copy of the Application is attached as Exhibit 7. At that time, she was informed that with the filing Of the Application for Hearing she could continue to operate the Day Care Home until the issue was resolved. 19. That hearing for this special permit was held on January 10, 2019 before the Zoning Board. 4 ^ 2O. That Ms. Lopes appeared pro-se before the Z8Aat the January 1D hearing as she had previously been able to apply for her License with the Department of Early Education and Care and Cape Cod Child Development without help. 21. That atthe beginning of the meeting she identified herself aS the applicant and operator of a Family Day Care Home and was invited to present her case, which she did believing that she only needed to explain all the work she had done to obtain the necessary licenses and associations to enable her to legally operate asa Family Day Care Home. She explained that she had never been informed by either the State agency 0r the Child Care Provider agency of any Zoning requirements and that she was there to remedy that oversight. ZI. The Decision of the Zoning Board described her as doing"a fine job in presenting her Petition". A copy of the Decision is attached as Exhibit 8 23. The Zoning Board then invited others to speak and there were several people opposed (unidentified in the Decision) as well as some letters submitted. Copies of the letters are attached as Exhibit 9. I4. Ms. Lopes was unaware that there would be opposition. There were complaints about excess traffic and parking on Pavvkannavvkut Drive which was assumed tObe the access tothe Day Care Home. I5. |n its decision the Board found that the "subject property has limited driveway access and is serviced by an unimproved road with defects. With multiple children being dropped off and picked up within the same � t , timeframe daily, parents have been forced to park in the middle of the road." Exhibit 8, page 2. 26. After the presentation by those opposed,the Zoning Board did not invite Ms. Lopes to reply nor did she know to ask to do so. 27. By not offering Ms Lopes the opportunity to reply and correct statements made by those opposed, the Zoning Board was not informed of the facts set out in paragraph 8 above, that her driveway and parking is off Wampanoag Road and none of the vehicles complained of by those opposed were users of the Day Care Home. 28.That the Zoning Board was not informed that there are only five children who utilize the Day Care Home (the sixth is her own child) who arrive in either three or four vehicles, park off Wampanoag Road on her access, and depart promptly after either dropping off or picking up their child. When doing so the three or four cars do not ail arrive at the same time;further disproving any idea that there is excess traffic. 29. That the ZBA justification for the denial of the request for special permit stating that "the relief would result in undue nuisance and has had congestion" was based entirely on the testimony of residents that was incorrect in assuming Ms. Lopes access was on Pawkannawkut Drive. 30. That the Zoning Board neither afforded nor offered Ms. Lopes the opportunity to rebut the statements made by those opposed to the special permit. 6 31. That the ZBA's decision was made based on an erroneous and inaccurate set of facts presented b«those opposed. 32. That the Zoning Board was also unaware that another Family Day Care Home already exists in the neighborhood,which had caused no concern among those living there. 33.That based un the actual facts that the Board did not hear, and the denial of due process by not allowing Ms. Lopes to reply, the decision ofthe Z8Avvas in excess of its authority and must beannulled. Wherefore, Plaintiffs request that the decision qfthe Zoning Board 0ƒAppeals be annulled, and the matter remanded to the Zoning Board for actions consistent with the actual facts, or the Court make such other decree as justice and equity may require including granting the Special Permit. Dated: February 1S, Z0I8 Falmouth, MA. Gabrie\aLopes By her attorney, VViUiann R. Edes EdesLavv 49 Locust Street Falmouth, MA. 02540 Tel; (SO8) S4D-O686 201.6 B2. In a B2 District the rear boundary line shall be the existing rear boundary lot line as of June 24, 1971 not to exceed, however, one thousand two hundred (1,200) feet in depth. 201.7 Rear Boundary Lot Line. The "rear boundary lot line,"for purposes of district definition, is defined as that boundary line of a lot shown on a plan of land or described by deed, recorded with the Barnstable County Registry of Deeds, which is opposite the street line of Route 28. 201.8 Lots in Two Districts. Where a district boundary line divides a lot in existence at the time such line is adopted, the regulations for the less restricted portion of such lot shall extend not more than thirty (30) feet into the more restricted portion, provided that the lot has frontage on a street in the less restricted district. 202 USE REGULATIONS. 202.1 Application. No building or structure shall be erected and no premises shall be used, except as set forth in the Use Regulations Schedule, or in other sections of this bylaw. If a use is not specifically allowed, by right or special permit, it shall be considered to be not allowed unless an appeal is taken under section 102.2.3 and it is shown beyond a reasonable doubt to be of similar nature and at least no more noxious nor detrimental to the welfare of the neighborhood than a specifically allowed use. Other uses specifically prohibited in the Aquifer Protection Overlay District, are listed in Bylaw section 406.4.1. The various classes and subclasses of uses listed here come, generally, from the North American Industry Classification System, as amended. While the manual may be used from time to time as a guide for clarification, the final application shall be as the "common man"would interpret these uses in conjunction with the intent below. 202.2 Intent. It is the intent of this section to promote a choice in housing types, including that for transients and broaden the economic base of the town and create employment while at the same time protecting the public health by preserving air, water and groundwater quality and enhancing the public welfare through regulations, or banning land uses which are noisy, dusty, dirty, smelly, dangerous or otherwise a nuisance to the public at large. Note: These last, - noisy, etc., statements are to be considered away from the place of activity, so that, while a bowling alley may be noisy to a bowler, it will not be so to the public driving past. 202.3 More Than One Use. Where a proposed use might be classified under more than one of the following classes, the more specific classification shall determine permissibility; if equally specific, the more restrictive shall prevail. 202.4 Symbol . The symbols used in the Use Regulation Schedule shall mean the following: Yes - Permitted No - Prohibited BA- Permitted only under a Special Permit issued by the Board of Appeals PB- Permitted only under a Special Permit issued by the Planning Board 16 L-X4-1/ 1311 • 202,5 Use Regulation Table Res. 1_. Rb-00 fit" J B221 l B3-1 I RMDOD"I MU i._ APD 1 .AED MOD HMOD1 I 1-1MO92 I VC1...J VC2 .I VC3 I VC4 M2 (Deleted 12-11-07) ern _ M3 Reuphatstery&furniture repair no no yes*" yes21e yes&'' no no BA16 yes"• no yes2.'s no 0o no no ye% ('except no for paint stripping). —. M4 Misc.repair shops&related no no yes"` yesz rs yes60 no no BA16 yes°° no yesz" no BA no BA BA services . N. AMUSEMENT B RECREATION SERVICES .... _ N1 Movie bdrive-in theaters no no BA BA BA nono BA" BA no PB no BA" BA" BA" BA" N2 (Deleted 12-11 07) lin N3 Theatrical productions,including no no BA BA BA no fw BA" BA no PB no yes yes bands,orchestras&entertainers _._._ N4 BovAing alleys&billiard no no HA BA BA no €w BA" BA no PB no no Yes establishments NCEI N5 Professional sports establishments no no BA BA BA no to BA" BA no PB no yes N6 Public golf course BA no BA BA BA no BA BAf° BA BA no MEI no no no N7 Coin-op amusement arcade no no BA BA BA no rw BAie BA no PB BA yes yes N0 PrMate sports&recreation club reo' no BA BA BA no no BAa MI= PB no' BA no BA BA N9 Municipal recreation use BA no BA BA BA no yes BA" PB PB yes yes yes yes N10 Temporary outdoor recreation naie_ nrr" nr346 no" BA" no no" BA" BA no no no no no no no N11 Other miscellaneous amusanlen(& run na BA BA BA nn no BA10 BA no no no yes no yes" yes recreation services - N12 Adult Entertainment Enterprises, pursuant to section 410 of this no no no _. ..no....... no"._._............_no .._no.........._ BA" BA no no no no I no no no law O. PROFESSIONAL SERVICES 01 Doctors&dentiste offices nof2 no72 yes yes' yes no nw12 BArc yes yes yes= r__no" yes yes yes yes ` 02 Legal office nn12 no" yes yes' yes° no no' yes yes° nonyesz no" yes yes yes yes 03 Engineering&architectural office nonno" yes -r yes' .. Yes° no noiz yes .__yes° rw12 yesz no" yes yes yes yea te 04 AccounWtg,auditing&book keeping note no" yes yes' yes° nn no1z yes yes" no1z yes' no12 yes yes yes yes ,r office x 05 Management,consulting&public no" nnt2 yes yes` yes° no no" yes yes° no'' yes no'= yes yes yes yes l relations office 1 06 Research&development office (except yes for medical purposes in no no BA BA yes° no no BA1° yes° yes PB no yes no yes yes ..............the MOD) _..__._©_ - .__......._... ____... _t .- - — 07 Veterinaryoffice(Includin kennel), no�- no BA BA BA no no BA" BA no PB no no no no no 00 Other professional office no" no" yes yes' yes°° no nn BA1° yes°5 no" yes' no" BA BA BA BA P. INSTITUTIONAL SERVICES PI Educational institutions yes yes"............... yea _.................yes yes...._._.......... no yes yes.___ yes yes _.............Y.es yes yes yes yes yes P2 Religiours institutions yes yes yes yes yes no yes yes yes yes yes yes yes yes yes yes P3 Cemetery BA no BA BA BA no BA BA" BA BA no no no no no no P4 Hospital BA no BA BA BA no BA on BA yes no no no no r r€ rto P5 Nursing&personal care facifty BA ruo BA BA BA no BA BA BA BA no no n o no" rw no P8 Social service facility BA no.............__.. no BA BA no BA BA" BA BA n o no no no no no P7 Day Care Center yes yes yes yes yes no yes yes yes yes yes yes yes yes yes yes PYA FeeTHy Dey Care Home f BA BA yes Yes no.... no —f BA BA" rw....._. BA yes no no BA no no PB Nurr-profit private club,civic or BA no BA BA BA no BA BA"' BA BA PB PB yes yes no no fraternal organization ___..........._...._. __........_.......:.._... ..._.._.W....... ......._.._. _.... .,........ I ._ Pfi Museum,art gallery,botanical or BA no BA BA BA no BA BA1° BA BA PB PB yes BA yes yes zeobgkal_eden t 20 s ,,ors THE COMMONWEALTH OF MASSACHUSETTS ;_4 `• DEPARTMENT OF EARLY EDUCATION AND CARE Charlie Baker, Governor `..-c .�. c�} ai'�tSF�nidl t' l ��a a�!`. i�� s~ft ,'. er. �i .u.E�: y��, ��7 t�a��1 r ,:�I �; . -,' ,; �44 0�. (' ;i .egiiia', c s ailProu.de,}IFa,y.m�y((�v CM'ilc�+Care services ;� . `' . r i t 1 tilt of t5� Ir ff.„. i4. !'.t(.,44'y?r�r..; , :ilib.e ,i„..iii M li j°.. 0gt'w k.i11 .1 .,i:N Sw d:% CO t k1l:..1 .. Program Number:8033558 License Number: 9033193 In accordance with the provisions of Chapter 15D of the General laws,and regulations established by the Department of Early Education and Care, a license is hereby granted to: Program Name: Lopes, Gabriela Address: 28 Pawkannawkut Drive, South Yarmouth, MA 02664 Total Capacity: 6 e Floors/Rooms: 1st Floor: Living Room, Kitchen,Playroom M. t `M. Condition: 1..1.1 Issue date: 6/7/2018 Expiration date: 6/6/2021 �} License printed on 6/15/2018 414;0 C7- Licensor:5F001 Thomas L. Weber, Commissioner Please Post Conspicuously This License is Not Transferable ENVIRONMENTAL ASSESSMENT (EA) —An EA is the document required by the Federal Communications Commission (FCC) and the National Environmental Policy Act (NEPA) when a personal wireless service facility is placed in certain designated areas. EQUIPMENT SHELTER—An enclosed structure, cabinet, shed or box at the base of the mount within which are housed batteries and electrical equipment. EXTENDED STAY HOTEL - Any building or group of buildings that contain six (6) or more guest rooms intended to be occupied on a transient basis having one or more rooms including separate bathroom, kitchen, living and sleeping areas in each unit. All guest rooms in an Extended Stay Hotel shall meet the operational standards established in section 404.3.8 (Operational Standards for Extended Stay Hotels). The definition of extended stay hotel shall not include dwelling units and are not meant for permanent occupancy, with the exception of On-Site Property Managers at Extended Stay Hotels. FAA— Shall mean the Federal Aviation Administration. FALL ZONE—The area on the ground within a prescribed radius from the base of a tower. The fall zone is the area within which there is a potential hazard from falling debris (such as ice) or collapsing material. FAMILY —An individual or two (2) or more persons related by blood or marriage, or a group of not more than five (5) persons not so related, living together as a single housekeeping unit. FAMILY DAY CARE HOME — A private residence which, on a regular basis, receives for temporary custody and care during part or all of the day, children under 7 years of age, or children under 16 years of age if those children have special needs, and receives for temporary custody and care for a limited number of hours children of school age under regulations adopted by the Massachusetts Board of Early Education and Care. The total number of children under 16 in a family day care home shall not exceed 6, including participating children living in the residence. Family day care home shall not mean a private residence used for an informal cooperative arrangement among neighbors or relatives, or the occasional care of children with or without compensation. FAMILY-RELATED ACCESSORY APARTMENT— a secondary, separate housekeeping unit of limited size, with its own sleeping, cooking and sanitary facilities, which is located within, attached to, or adjacent to a primary single-family dwelling unit. FARMERS' MARKET — a predominantly local fresh food and produce market that operates regularly at a public location which provides a suitable environment for local farmers and food producers to sell their locally grown farm origin product and their associated value added locally made primary products directly to customers. FCC — Shall mean the Federal Communications Commission. FLICKER EFFECT—The apparent reflection or shadow visual impact of the moving turbine blade when a wind turbine is operating. 152 EXflII1 TO •1-,••ii 1.. , .--ri,-A OUTH VT 1146 Route 28/, I-- 1 . ,;,. (uth, MA 02664 • • 508-398-223f ,c;r4"..f ''.- ,1 I . - ,08-398-081'67---:, -.-_-------7------ --i •-: t • Thant VYVE ''''' '''l \\ .,, ., Office of ei., -, f !ILA t,,, 2 i;t:i missioner ' ---------------7- gvs-1... e., MATTACH ESE/ ' ‘16).0 4%AorlaiD° '°'''1 i i. i .• , '',-; . e:— '''"..•;:%:',4111,,-;:.'''' COIVIPLAINT FORM 10/5/16 Daze: Type of Complaint: Building Zoning General Licensing? This is a formal request for enforcement of an alleged violation. The following are facts in the case: Property Address of Alleged Violation: . , t. f L.1 Yarmeuth Property Owners Name (s): — unknown Property Owners Mailing Address: _28 Pawkannawkut Rd. South Yarmouth Description of Complaint: This cumplaii.1 we. filed emLliEtL Lllib yea/. (ApLil/Mcly) via a letter to Selectman Mark Forest and the situation seemed to have been resolved but, unfortunatelyL:ts back. I thought the regulations regarding child care were stringent and strictly enforced so when a day care appeared to be operating at the above address (which is strictly residenhial) I nnaplintw9. T rin not want A day t'-. r in my immpnliAtp ArPa. It Stopped, but is now up and running with cars coming and unloading children (7:45-8:30), and being picked up in the afternoon (4;-5;00) . Date (s)of Alleged Violation(s): weekdays Name (s) of Person(s): unimown — (photos available) ( \ \ Extif 6 i I 1-( jjjrjng informationis required. Failure to provide your name, address. ad telephone number will result in the Inspector of Buildings/ Zoning Enforcement Officer to process the complaint at his/her discretion. (PLEASE PRINT) Complainant Name: k D Kelley Yancey d Address of Complainant: Wzmp=nn,Ar: Rnari! V=17-mnlith Telephone Number: 508-394-5377 Email Address: Preferred Method of Contact(check one): Telephone: Email: do,ffeddy@verizon.net I am basing my allegations on the above facts. I understand that as the complainant, in the event the Building Commissioner is personally unable to bring the matter in to compliance,I may be required to attend legal proceedings to enforce the regulation referenced above in a court of law. Pursuant to the above allegations I am requesting an investigation and enforcement if applicable. Signature of Complainant: I Prefer to Remain Anonymous: [ (check box) E.)(14 I 41 TOWN OF YARMOUTH ,,, ,,'•.• :,,,,„!: :. .1.,,N BUILDING DEPARTMENT ( 4 1146 Route 28, South Yarmouth, MA 02664 ,cse 508-398-2231 ext. 1261 Fax 508-398-0836 October 4,2018 Gabriela Lopes 28 Pawkannawkut Drive South Yarmouth,MA 02664 Re:28 Pawkannawkut Drive-Family Day Care Home Dear Ms. Lopes: This is to serve as a follow up to my October 4,2018 site visit in response to a complaint this department received,alleging you are operating a child day care service. The following issues were discussed,determined and observed: -You are in fact operating a child day care service. -You have been issued a license by the Commonwealth of Massachusetts,Mass. Board of Early Education and Care,number 9033193, issued June 7,2018. This license was viewed by me on this date. -You advised me that Cape Cod Child Development refers the children to you. -When I advised you the Town of Yarmouth requires a Special Permit for this type of service/use,Family Day Care Home, you stated that Cape Cod Development had not advised you of that requirement. RELEVANT ZONING REQUIRMENTS -Town of Yarmouth Zoning Bylaw Use Regulation Table 202.5,requires that a Special Permit be issued by the Zoning Board of Appeals for a Family Day Care Home Use,operated in a Residential Zone, identified as Use P7A.(copy enclosed and highlighted) -25 Pawkannawkut Drive is located in an R-25 Residential Zoning Distdct. -Zoning Bylaw Section 500,Definitions,defines Family Day Care Home as"A private residence which on a regular basis receives for temporary custody and care during part of all or the day, children under 7 years of age, or children under 16 years of age if those children have special needs and receives for temporary custody and care for a limited number of hours children of school age under regulations adopted by the Mass.Board of Early Education and Care." A copy of the complete text is enclosed. Accordingly, you are hereby ordered to file the appropriate application,petitioning the Zoning Board of Appeals for the Special Permit cited above. A copy of this application may be obtained on line,via the Town of Yarmouth web site,or you may obtain one from the Board of Appeals office,at Town Hall. Ms.Sandi Clark can assist you with any questions you may have concerning this process. Finally,it is imperative you commence this process immediately. Failure to do so will constitute a zoning violation and will result appropriate enforcement action and notification to the Board of Early Education and Care. So ordered, James D. Brandolini. ...---- Deputy Building Commissioner r—^ Enc. 2 CXN/e I I 6 TOWN OF YARMOUTH ( 'c''', ' •• ,J41 BUILDING DEPARTMENT 1146 Route 28, South Yarmouth, MA 02664 508-398-2231 ext. 1261 Fax 508-398-0836 VIOLAION NOTICE October 18, 2018 Gabriela Lopes 28 Pawkannawkut Drive South Yarmouth, MA 02664 Violation: Failure to obtain a Special Permit from the Zoning Board of Appeals to operate a Family Day Care Home Re: Town of Yarmouth Zoning Bylaw Table 202.5, Use P7A & Section 500- Definitions Violation Date: October 4, 2018 Violation Details: On October 4, 2018 I sent you a written notice instructing you to file for a Special Permit to operate a Family Day Care Home at 28 Pawkannawkut Drive,South Yarmouth,immediately. I also provided you with copies of the pertinent Town's Zoning Bylaw provisions. As of today you have failed to respond. Accordingly,you are hereby ordered to Cease&Desist the Family Day Care Home services use, until such time as you obtain this Special Permit. Zoning related tickets will be issued with fines of up to $300 per day, should you fail to file this application by October 31, 2018. • So ordered, James D. Brandolini, Deputy Building Commissioner cc: Cape Cod Child Development,Ms. Ann Colwell .--- b(H1611, 6 • TOWN OF YARMOUTH .\\9.1 BOARD OF APPEALS APPLICATION FOR HEARLNG -17P5 Healing Date: /17-f? FeeS Owner-Applicant: on Names-including dibia) •P:1\-.1‘)\ \''Vf.03,Y‘KA c)c,,J€ Goto4 _LQ.Des03?.(Address) j (Telephone Number) (Email Address) J and is the (check one) 0 Owner 0 Tenant 0 Prospective Buyer 0 Other Interested Party Property: This application relates to the property located atA7 ,A(7/241 .1/jAC and shown on the Assessors Map#: as Paicel#: Zoning District: Q ")f If property is on an un-constnicted(paper)street name of ne'arest cross street, or other identifYing location: Project: The applicant seeks permission to undertake the following constructionluselactivity (give a brief description of the project. i.e.: "add a 10" by 15 deck to the front of our house" or "change the use of the existing building on the property"): IEF QUESTE I The ap_Rlicant seeks the.following relief from the Board of Appeals: _AP . J * --- .makniffirrAmenr _41ffiglipliflUMNIEW - .4.41TWjAllASIMAr 1) RE-VERSE THE DECISION OF THE BUILDLN-G INSPECTOR OR THE ZONING AD:v2NISTRATOR dated attach a copy of the decision appealed from). State the reason for reversal and the riling which you request the Board to make. 2) \iSPECLAI PERMIT under § 1.'"*„.P-off the Yarmouth Zoning By-law andor for a use authorized upon Special Permit in the "Use Regulation Schedule" §202.5 (use space below if needed) 3) VARIANCE from the Yarmouth Zoning By-law. Specify all sections of the by-law from which relief is requested, and, as to each section. specify the relief sought: Section: Relief sought: Section: Relief sought: Section: Relief sought: ADDITIONAL LNIFORNLA.TION: Please use the space below to provide any additional information which you feel should be included in your application: X1-1 I 6 ir .- ., FACT SITEET Current Owner of Property as listed on the deed (if other than applicant): -,( \ f.‘tJ€ / Name &Address Title deed reference: Book& Page g(4-C\--/- (44( (9 or Certificate 4 Land Court Lot# Plan 4 (provide copy of recent deed) A -1 Use Classification: Existing: 1.- -0- §202.5 Proposed: P\-. - §202.5 4 Is the the property vacant: 10 0 If co, how long?: Lot Information Size/Area: A 4 \ Plan Book and Page / Lot Is this property within the Aquifer Protection Overlay District? Yes No V Have you completed a formal commercial site plan review(if needed)? Yes No Other Department(s)Department(s) Reviewing Project: Indicate the other Town Departments which are/ have/ or will review this project, and indicate the status of their review process: Vec\' \' 'CcNc. Repetitive Petition: Is this a re-application: 1\1 0 If yes, do you have Planning Board Approval? Prior Relief: If the property in question has been the subject of prior application to the Board of Appeals or Zoning Administrator, indicate the date and Appeal number(s) and other available infotntni!nclude a copy of the decision(s) with this application: Building Commissioner Comments: A: fn Ail' A..) licanf's/Attorney/Agent Signature p 0 r's Signature Address: Phone E-Mail: . Buildin : ' ': oner Signature Date 1:.1)(f-i IR ir 7 Z; ~,- _ c" TOWN OF YARMOUTH _ ~! BOARD OF APPEALS `` 4 ` 5� DECISION FILED WITH TOWN CLERK: January 29,2019 PETITION: #4785 HEARING DATE: January 10,2019 PETITIONER; Gabriela Lopes PROPERTY: 28 Pawkannawkut Drive, South Yarmouth Map and Parcel: 0033.20; Zoning District: R-25 Book/Page: 29764/199 MEMBERS PRESENT AND VOTING: Steven DeYoung, Chairman, Sean Igoe, Tom Nickinello, Tom Baron and Susan Brita, Alternate. It appearing that notice of the hearing has been given by sending notice to the petitioners and all of those owners of property deemed 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 is Gabriela Lopes who did a fine job in presenting her Petition seeking the grant of a Special Permit under Zoning Bylaw §202.5 (P7A) in connection with her desire to run a Family Day Care Home in a residential district (R-25) and located at 28 Pawkannakut Drive, South Yarmouth, Massachusetts. The Petitioner comes to the Zoning Board in response to a neighbor, who initiated a complaint, to the Town which was received on October 4, 2018. This prompted a letter from James Brandolini dated October 4, 2018 advising the Petitioner of her need to obtain zoning relief. A subsequent Violation Notice dated October 18, 2018 from Mr. Brandolini, Deputy Building Commissioner, was then sent to the Petitioner who, in response to this, initiated this Petition for grant of Special Permit. The Petitioner indicated that she had been running a daycare at the location after obtaining her license from the Commonwealth on 6/7/2018. She indicated that she was unaware that, in addition, she would have to obtain a Special Permit from the Town of Yarmouth consistent with the Bylaws relating to the Use Table. There was significant opposition to the relief requested by the Petitioner. Several neighbors spoke in opposition and several neighbors and interested parties provided correspondence expressing their objection to the relief being sought by the Petitioner. The general gist of the objections were that the neighborhood was a quiet, peaceful area of residential properties. Those in opposition indicated that parents of children being serviced at the daycare center created traffic that was unreasonable for the area and, in particular, the unimproved road which the property abuts and which is the access to the daycare center. Direct abutters were most concerned about the running of a business in this peaceful, quiet residential area. The property for which the Special Permit was sought is directly surrounded by residential properties on modest lot sizes. The subject property has limited driveway access and, as indicated, is serviced by an unimproved road with defects ("potholes"). With multiple children being dropped off and picked up within the same ti_nieframe daily, parents have been forced to park in the middle of the road. Two sets of photographs were received and marked as Exhibits 1 and 2. No one spoke in favor of the Petition other than the Petitioner. While the Board accepted the fact that the Petitioner was licensed by the Commonwealth of Massachusetts, that alone is not sufficient to allow this Petitioner to run this business without Zoning Relief In considering the criteria for the grant of Special Permit, it was the consensus of the members that, if relief were to be granted, the relief would result in undue nuisance, and has had congestion in this particular instance. This neighborhood consists largely of small lots, with modest homes and with many people who have lived in the area for many years. The increase in traffic and the close proximity to other residences of the property for which the Special Permit is sought weighed heavily in the Board's deliberations. After public input and board discussion and deliberations, a Motion was made by Mr. Igoe, seconded by Ms. Brita to deny the grant of a Special Permit as sought by the Petition. On this Motion, the Board voted unanimously in favor and, therefore,the Special Permit was denied. Steven DeYoung, airman • Town of Yarmouth I'4 t Ei t 1 li t V Board of Appeals 1146 Route 28 JAN 2 2011 • South Yarmouth MA 02664-4451 YAi `riUTH BOARD `RE: Petition 4785 Gabriela Lopes 26-28 Pawkannawkut Drive South Yarmouth MA Dear Sir: I would like to go on record as being vehemently opposed to the granting of a special permit for the operation of a day care center at the address noted. I was under the impression that there were stringent rules arid regulations with regard to the quPlifications for operating such a business. Initially there was one child dropped off, then it was two but when there were consistent morning drop-offs and evening pick-ups I became concerned and requested the situation be investigated. This hay look like a large home but it is actually two small aoarmients with an additional s udio apartilient over the garage. its very nice for a couote starting. out or for a single tenant but hardly adequate for a greater number. The housing is two level with a livingroom and kitchen on the lower level and bedrooms upstairs. I'm unaware of the location of bathroom _facilities but would feel this would have to be a consideration where children are involved. Also the tiafficking through the kitchen would be a concern with children present and being fed. The porch (where I assume the children would be gathered)would be questionable as far as space allocation since I don't believe the porch even measures 12 x 12—hardly enough space t0 accommodate a number of bodies. As far as the outside,there is a small fenced area with childrens equipment scattered about which, once again is questionable re spaceibody consideration. For all these reasons I don't believe a permit should be considered. My final objection would be that this is a residential area and the homeowners should not be subjected to a change of rules that would allow an invasion of a business when there are many more available, appropriate cites Within the area in which to open and operate such a business without spoiling the surroundings of an established neighborhood. I urge you to deny this request for special. permit. Very truly yours, = �C City dKelley Yancey One Wampanoag Road South Yarmouth MA 02664 (dofeddy@verizon.net) C-xHIsrr 9 t./ c "Lt�,. it ✓fin ��' -c C (t. � tr� u�Z _.... z t1 _ _ -.ram-t-u�--�,✓._._ s-:.��'`�`�� _ ..........___ - >7 s w-C EtV E D-_.. Alt 2_ 201 BOARD OF APPEALS Ex4ir va . ^ January 4. 2O19 Town of Yarmouth Board DfAppeals 114O Route 28 South Yarmouth, MA 02664 ToV\hom |t May Concern: Our family has owned 11 ASpiDet Road for decades. We love being Bh(e to come home to this neighborhood aSa retreat from our busy lives. The neighborhood isquiet and has very little traffic. When we one there, our children often ride their bikes in the neighborhood and as e family, vve enjoy takiDgvva|kstOthe beach. More cars coming in and out of the neighborhood to drop off and pick up children atthe daycare, would change this. We caredeep|yabouttheneighborhoodandarocnnoarnedabuutadoyoaremovinQindovvn the street. VVe are concerned about increased traffic and porking, as well as the increase in noise levels. We chose to live in a residential area and do not feel as though it is the best place for a daycare. While convenient for the homeowner who ia hoping to create a business out of his or her home, itis not convenient for those ofus who live on the street. Thank you for hearing our concerns, Sincerely, _ ' ~ Caren []. Troester 11Aspi net Road South Yarmouth, KAA 02664 JAEN -7 2019 YARMOUTH BOARD OF APPEALS RE EIV50 - _ RECEIVED TO: Town of Yarmouth Board of Appeals JAN -7 2019 FROM: April Regonlinski YARMOUTH 33 Pawkannawkut Drive BOARD OF APPEALS DATE: January 3, 2019 RE: Petition 4785: Gabriela Lopes,26-28 Pawkannawkut Drive,South Yarmouth,Seeking a Special Permit to Operate a Home Day Care I'm unable to attend the public hearing on the above petition for a special permit to operate a home day care, but I'm writing to object to the granting of the special permit. 26-28 Pawkannawkut Drive is already a multi-unit property on a narrow residential street ending in a dirt road.The current tenants and residents of the property already have numerous cars and trucks that congest the area.They fail to park all of their vehicles in their several driveways and instead park them on the narrow street across from 33 and 23 Pawkannawkut Drive. This makes it difficult for neighbors to enter and exit their properties and for everyone to drive down the street. Additionally, my neighbor,who has cancer, has already complained to the Board of Health because of the trash issues at 26-28 Pawkannawkut Drive. The tenants/residents leave an overflowing trash bin on the edge of their property,where it meets the street, across from 33 and 23 Pawkannawkut Drive. At times,the trash blows into our yards and attracts animals. The trash bin is left out on the edge of the street 24 hours a day, 7 days a week, and is never appropriately brought back near the house. Under 105 CMR 410.600,garbage and rubbish must be stored in water tight receptacles with tight fitting covers and garbage must be out for collection no earlier than the day of collection. 26-28 Pawkannawkut Drive is already in violation and the granting of a special permit for a home day care will only exacerbate the vehicle congestion and trash issues(e.g., numerous cars picking up and dropping off children day and night and dirty diapers and waste in the overflowing trash bin). Granting of a special permit to 26-28 Pawkannawkut Drive will cause an undue nuisance and congestion and will negatively affect the neighborhood. It is the burden of the applicant to show otherwise. I respectfully object to the granting of the special permit for a home day care. Sincerely, April Regonlinski, Esq. - _-`--- ~ , Stanley &Rosalie E Graveline �� �� �~ � K�� � �� 8 /� 10PaVvkannaovkutDrive "� ~~ ~° ~~ ^ ~ ~~ - Sjuth Yjrrffuuth, K4AO2G64 (�� ~Q �01� January 4` 2O18 �'`/» ~ �°'° YxRmoouTH Bo/xRo OF APPEALS Town of Yarmouth Board ofAppeals 1246 Route 28 South Yarmouth, MAO26G4-4451 RE: Petition 4785 Gabriela Lopez Dear Board Members We have owned the home at 8 & 10 Pawkannawkut Drive since 1978 and became full Un16fC,!;idehtsUfb(3thaddresgesiA/\ugu9t Of2O17'The pUperty has beoncompletely refurbished and is a beautiful comfortable home for us in our late retirement years. We object to the special permit request to operate a day care center at 26-28 Pawkarfnjwkut Drive a§a fotAlly ina0propriate and unwelcome business in what is currently a peaceful quiet neighborhood. it doesn't belong. Additionally, the beginning of Pawkannawkut Drive is an unimproved dirt road with p6thO|e6 ahUrrha| condition.The inCreased traffic that would result from the proposed day care would exacerbate this condition. While alternate access to the property exists,the most direct route-and the one cited by map directories-is in front ofour property.The daycare operation would clearly degrade our Serene living existence. We respectfully ask that the special permit request be rejected. We apologize for not attending the subject hearing but will be out of town on the meeting date. Thank you for ,itanitey W rav line Rosalie Gravel in _-'--- ' r- ,~ Brandolini, Jim From: Clark, Sandi Sent: Wednesday, February 20, 2019 12:48 PM To: Brandolini,Jim Subject: FW:Appeal #4785 FYI From: Grylls, Mark Sent:Tuesday, February 19, 2019 3:14 PM To: 'Jay Talerman'<jay@mtclawyers.com>; Clark,Sandi<SClark@yarmouth.ma.us> Cc: Brian Winner<brian@mtclawyers.com> Subject: RE:Appeal#4785 Hi Jay, Yarmouth's Zoning Bylaw requires a Special Permit for an in-home Family Day Care. I was not at the hearing and the applicant is a tenant of the dwelling. I do not know the reason for denial, perhaps parking.The State did issue a license for the day care however.This was brought to our attention as a complaint from a neighbor. It will be interesting to see where this goes. Talk soon, Mark MARK GRYLLS DIRECTOR OF INSPECTIONAL SERVICES/ BUILDING COMMISSIONER TOWN OF YARMOUTH (508) 398-2231 x 1260 From:Jay Talerman [mailto:jay@mtclawyers.com] Sent:Tuesday, February 19, 2019 2:55 PM To: Clark, Sandi<SClark@yarmouth.ma.us> Cc: Grylls, Mark<mgrylls@yarmouth.ma.us>; Brian Winner<brian@mtclawyers.com> Subject: RE:Appeal#4785 If it is a licensed and complying day care facility, it is likely to come up in court. Please let us know hen the complaint is actually served on the members of the ZBA IIIJason R.Talerman Mead,Talerman&Costa,LLC 730 Main Street Suite 1F Millis,Massachusetts • 02054 " Phone 774.993.5000 7av(g.Intclawvers.com • \vww.nTitcla\vvers.com The information contained herein is confidential and may be protected by the attorney-client and/or other applicable privilege(s). It is intended only for the named recipient(s). If you are neither an intended recipient nor a person responsible for delivery to a recipient,you are hereby notified that any unauthorized use,dissemination,distribution or reproduction of the contents hereof is strictly prohibited and may be unlawful. If you have received the above transmittal in error,please delete the message and any attachment(s)hereto from your e-mail system and notify us immediately. 1 7'lhU k before ,ou pri. k. From:Clark, Sandi<SClark(cyarmouth.ma.us> Sent:Tuesday, February 19, 2019 2:52 PM To:Jay Talerman <iay@mtclawyers.com> Cc:Grylls, Mark<mgrylls@yarmouth.ma.us> Subject: RE:Appeal#4785 Hi Jay, . To my knowledge it was never discussed. -Sandi From:Jay Talerman [mailto:jay@mtclawyers.com] Sent:Tuesday, February 19, 2019 2:27 PM To:Clark, Sandi <SClark@yarmouth.ma.us> Cc: Gaudet, Phil <PGaudet@yarmouth.ma.us>; Knapik, Daniel <dknapik@yarmouth.ma.us>; Williams, Kathleen <kwilliams@yarmouth.ma.us>; Grylls, Mark<mgrylls@yarmouth.ma.us> Subject: RE: Appeal#4785 Thanks. We will take a look and will need to review the file. It is interesting that the Dover Amendment protections for Day care facilities did not seem to factor into her request. Did it ever come up? plJason R.Talerman Mead,T.alerman&Costa,LLC 730 Main Street • Suite 1F Millis,Massachusetts • 02054 Phone 774.993.5000 a iav mtclawvers.com • \t wy'w.mtcL)wC,"cr .co`i The information contained herein is confidential and may be protected by the attorney-client and/or other applicable privilege(s). It is intended only for the named recipient(s). If you are neither an intended recipient nor a person responsible for delivery to a recipient,you are hereby notified that any unauthorized use,dissemination,distribution or reproduction of the contents hereof is strictly prohibited and may be unlawful. If you have received the above transmittal in error,please delete the message and any attachment(s)hereto from your e-mail system and notify us immediately. *TIII:1&t before rt..s pri.N . From: Clark, Sandi<SClark@yarmouth.ma.us> Sent:Tuesday, February 19, 2019 2:18 PM To:Jay Talerman <jay@mtclawyers.com> Cc:Gaudet, Phil <PGaudet@yarmouth.ma.us> Subject:Appeal#4785 Hi Jay, Attached is an appeal on a ZBA Decision filed with the Town Clerk on Friday, February 15, 2019. Phil requested a copy be sent to you. Thank you, -Sandi 2 Clark, Sandi From: Clark, Sandi Sent: Wednesday, February 20, 2019 12:48 PM To: Brandolini,Jim Subject: FW:Appeal #4785 FYI From:Grylls, Mark Sent:Tuesday, February 19, 2019 3:14 PM To: 'Jay Talerman'<jay@mtclawyers.com>; Clark,Sandi<SClark@yarmouth.ma.us> Cc: Brian Winner<brian@mtclawyers.com> Subject: RE:Appeal#4785 Hi Jay, Yarmouth's Zoning Bylaw requires a Special Permit for an in-home Family Day Care. I was not at the hearing and the applicant is a tenant of the dwelling. I do not know the reason for denial, perhaps parking.The State did issue a license for the day care however.This was brought to our attention as a complaint from a neighbor. It will be interesting to see where this goes. Talk soon, Mark MARK GRYLLS DIRECTOR OF INSPECTIONAL SERVICES/ BUILDING COMMISSIONER TOWN OF YARMOUTH (508) 398-2231 x 1260 From:Jay Talerman [mailto:jay@mtclawyers.com] Sent:Tuesday, February 19, 2019 2:55 PM To:Clark, Sandi<SClark@yarmouth.ma.us> Cc:Grylls, Mark<mgrylls@yarmouth.ma.us>; Brian Winner<brian@mtclawyers.com> Subject: RE:Appeal#4785 If it is a licensed and complying day care facility,it is likely to come up in court. Please let us know hen the complaint is actually served on the members of the ZBA Jason R.Talerman Mead,Talerman&Costa,LLC 730 Main Street • Suite 1F •Millis,Massachusetts • 02054 " Phone 774.993.5000 jay(cl,mtclawyers.com • www.mtclawyers.com The information contained herein is confidential and may be protected by the attorney-client and/or other applicable privilege(s). It is intended only for the named recipient(s). If you are neither an intended recipient nor a person responsible for delivery to a recipient,you are hereby notified that any unauthorized use,dissemination,distribution or reproduction of the contents hereof is strictly prohibited and may be unlawful. If you have received the above transmittal in error,please delete the message and any attachment(s)hereto from your e-mail system and notify us immediately. 1 Tki►Ak before you pri.ut. From:Clark,Sandi<SClark@yarmouth.ma.us> Sent:Tuesday, February 19, 2019 2:52 PM To:Jay Talerman <jav@mtclawyers.com> Cc:Grylls, Mark<mgrylls@yarmouth.ma.us> Subject: RE:Appeal#4785 Hi Jay, To my knowledge it was never discussed. -Sandi From:Jay Talerman [mailto:jay@mtclawyers.com] Sent:Tuesday, February 19, 2019 2:27 PM To: Clark,Sandi<SClark@yarmouth.ma.us> Cc:Gaudet, Phil<PGaudet@varmouth.ma.us>; Knapik, Daniel<dknapik@yarmouth.ma.us>;Williams, Kathleen <kwilliams@yarmouth.ma.us>; Grylls, Mark<mgrylls@varmouth.ma.us> Subject: RE:Appeal#4785 Thanks. We will take a look and will need to review the file. It is interesting that the Dover Amendment protections for Day care facilities did not seem to factor into her request. Did it ever come up? Jason R.Talerman Mead,Talerman&Costa,LLC 730 Main Street• Suite 1F • Millis,Massachusetts • 02054 11 Phone 774.993.5000 jay(a,mtclawyers.com • www.mtclawyers.com The information contained herein is confidential and may be protected by the attorney-client and/or other applicable privilege(s). It is intended only for the named recipient(s). If you are neither an intended recipient nor a person responsible for delivery to a recipient,you are hereby notified that any unauthorized use,dissemination,distribution or reproduction of the contents hereof is strictly prohibited and may be unlawful. If you have received the above transmittal in error,please delete the message and any attachment(s)hereto from your e-mail system and notify us immediately. Tkiikk before you pri.►,t. From:Clark,Sandi<SClark@yarmouth.ma.us> Sent:Tuesday, February 19, 2019 2:18 PM To:Jay Talerman<jav@mtclawvers.com> Cc:Gaudet, Phil<PGaudet@varmouth.ma.us> Subject:Appeal#4785 Hi Jay, Attached is an appeal on a ZBA Decision filed with the Town Clerk on Friday, February 15, 2019. Phil requested a copy be sent to you. Thank you, -Sandi 2