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HomeMy WebLinkAboutZBA Summary of Reasoning (822 Route 28 et al SY) (002)-4849 1 Law Office of Singer & Singer, LLC 26 Upper County Road P. O. Box 67 Dennisport, Massachusetts 02639 Andrew L. Singer Tel: (508) 398-2221 Marian S. Rose Fax: (508) 398-1568 _____ www.singer-law.com Myer R. Singer Of Counsel Yarmouth Board of Appeals Petition # 4849 SUMMARY OF REASONING Wise Living Development, LLC, Christopher D. Wise, Manager [“Applicant”] proposes to redevelop the adjacent properties at 822 and 834 Route 28 and 30 Frank Baker Road in South Yarmouth [collectively “Property”], into a mixed-use project consisting of senior housing, medical offices, and commercial and office use [“Proposal”]. The Proposal includes a: 1) Wise Living Retirement Community for senior housing with 120 units (104 studios and 16 one-bedroom units), common resident dining facility, and outdoor swimming pool; 2) leased medical complex (maximum of two doctors and related support staff) plus an exercise/rehabilitation facility and wading pool; and 3) continuation of existing uses in an existing commercial building The Property is located in the B2 and VCOD2 Zoning Districts and is shown as Assessor’s Map 33, Parcel 70.1 and Assessor’s Map 41, Parcels 12 and 11.1. The redevelopment includes merging all three lots into one lot. The existing hotel and restaurant building at 822 Route 28 will be re-used as set forth above, and there will be no change in the existing retail and commercial uses at 834 Route 28. The Applicant has received use special permit approval from the Yarmouth Planning Board for the Proposal. The Applicant has also received approval from the Yarmouth Board of Appeals for certain site redevelopment constraints (in-lot trees, signs, and sidewalk waiver). The Applicant had previously requested additional design relief for the two buildings to be re-used and withdrew such requests to further 2 review the design. To this end, the Applicant has re-designed the buildings to reduce and alter the type of relief requested and has applied to the Board to: 1. 834 Route 28 Building: Special permit in accordance with Section 414.6.4 of the Yarmouth Zoning By-Law [“Zoning By-Law”] and M.G.L. Chapter 40A, Sections 6 and 9, in order to construct a bump-out addition to the east side of the existing building with a reduced side yard setback; and 2. 822 Route 28 Building: Variance in accordance with Section 102.2.2 of the Zoning By- Law and M.G.L. Chapter 40A, Section 10, from Section 414.8, including Sections 414.8.3, 414.8.5, and 414.8.6, in connection only with the balconies and patios of the residential, senior housing units on the east and west sides of the building. In its prior filing, the Applicant had requested variance relief for seven, total design aspects of the two buildings to be re-used. In response to Board member concerns, the Applicant revised the plans to eliminate four aspects of the previously-requested relief and has converted one request to the special permit, as follows: 1) in connection with the 822 Route 28 building, an additional bump-out was added on the south side facing Route 28 and two additional enclosures were added on the east and west sides, respectively, enclosing entrances, all in compliance the building modulation requirements of the Zoning By-Law; and 2) in connection with the 834 Route 28 building, a new, enclosed entrance has been added on the west side of the building in compliance with the building modulation requirements of the Zoning By-Law, and the requested, new bump-out on the east side of the building can be allowed by special permit. Special Permit. The Board is authorized to grant the requested relief to construct a bump out on the east side of the 834 Route 28 Building within the side setback in order to comply with building modulation requirements. In accordance with Section 414.6.4 of the Yarmouth Zoning By-Law and as set forth in Section 414.3.3 of the Zoning By-Law, the Applicant respectfully submits that the requested special permit satisfies the applicable criteria as follows: 3 1. The Planning Board has issued a Site Plan Review Decision for the Proposal, and the redevelopment supports Mixed Use development, maintains and improves pedestrian access, provides on-site open space, and incorporates low impact design techniques; 2. In addition, the redevelopment provides a vehicular cross-connection between the properties to be combined and traffic demand management is provided through the Mixed Use in the two buildings, the side yard relief improves the appearance of the building and is safe and visually attractive, and is set back substantially from the front sidewalk and is partially screened by an existing fence to the east; and 3. Finally, no undue nuisance, hazard or congestion will be created, there will be no substantial harm to the established or future character of the neighborhood or Town, the relief is consistent with the purposes and will conform to the provisions of Section 414 of the Zoning By-Law, the Yarmouth Architectural and Site Design Standards, and the Design Standards of Section 414.8 of the Zoning By-Law. Variance. The Board is authorized to grant the requested relief to alter only the design of the balconies and patios (open gable end porches/patios and porticos) along the east and west sides of the 822 Route 28 Building to the middle and rear of the Property away from Route 28. In accordance with Section 102.2.2 of the Zoning By-Law and M.G.L. Chapter 40A, Section 10, the Applicant respectfully submits that relief from Section 414.8, including Sections 414.8.3, 414.8.5, and 414.8.6, of the Zoning By-Law, to redevelop the 822 Route 28 Building as noted above satisfies the variance criteria as follows: 1. By not enclosing the outside balconies and patios on the east and west sides of the middle and rear portions of the 822 Route 28 Building and leaving them with railings as shown, the following benefits result: A. The residents’ apartments will receive more sunlight and will not be dark; B. The residents will have safe, private, and personal spaces to sit outside throughout the year as weather conditions allow; 4 C. The breathability and attractiveness of the apartments used for senior housing will be improved; D. Emergency, public safety access to the apartments from the outside of the building will be available as well as potential, alternative, future exterior access in response to Covid-19 and changing regulations; E. If enclosed, these small areas will become predominantly dead storage spaces without cooling in the summer or heating in the winter (even with sliders); F. The expense to condition the small, enclosed spaces and to add exterior walls, sliders, and additional structural construction under a literal enforcement of the Zoning By-Law will cost in the high six figures without substantively improving the appearance of the building; G. These two sides of the building are in the middle and rear of the Property and are not readily visible from Route 28; and H. The remainder of the redeveloped building will comply with all building modulation requirements of Section 414.8 of the Zoning By-Law. The front of the building facing Route 28 and the east and west sides at the front portion of the building closest to Route 28 have been redesigned in complete conformance with the Zoning By-Law. The Applicant submits that not granting the relief will result in a substantial financial or practical hardship to the Petitioner, that this hardship is owing to unique circumstances relating to the existing building to be re-used, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the Zoning By-Law. The existing developed nature of the existing building makes complete compliance not practical or financially feasible. This is a large-scale redevelopment that will offer a needed senior housing option in the community. The building is in good shape and does not need to be razed and replaced as is often the 5 case. Meeting these final building modulation provisions along the east and west sides of the middle and rear portions of the building will not only prevent the practical, beneficial results to the residents outlined above, but the cost to comply is prohibitive. In Wolfman v. Board of Appeals of Brookline, the Massachusetts Court of Appeals dealt with the proposed development of an apartment building on an overgrown, irregularly-shaped parcel of land (Wolfman v. Board of Appeals of Brookline, 444 N.E. 2d 943, 944 {MA App. Ct. 1983}). In affirming the grant of variances by the local Board of Appeals, the Wolfman Court relied in part on the additional financial costs associated with developing the land due to shape and soil conditions B A[t]hese expenses are not personal to the developers but would be experienced by anyone attempting to make a reasonable and permitted use of the locus@ (Id. at 946). In Wolfman, the additional costs were in the range of $250,000.00-$500,000.00. In this case, the additional costs are much higher still and applicable to the structure on the Property. The Proposal involves opportunity zone ownership. Creating the best redevelopment for the residents and the community is foremost. The additional costs for this portion of the building that are not readily visible from Route 28, in particular when they will demonstrably detract from the residential experience and could jeopardize the viability of the Proposal, meet the variance hardship standard and merit the grant of relief. Finally, for all of the reasons set forth in the special permit and variance discussions above, the proposed relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the Zoning By-Law. The Proposal will not cause or contribute to any undue nuisance, hazard or congestion in the neighborhood, zoning district or Town, and there will be no substantial harm to the character of the neighborhood or Town. The proposal will provide needed services and residential opportunities in the Town. For all of the above reasons, the Applicant respectfully requests that the Board of Appeals make findings that the proposal satisfies the respective special permit and variance criteria and grant a Special Permit for the 834 Route 28 Building and a Variance for the 822 Route 28 Building allowing the redevelopment to be completed as shown on the submitted plans.