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4801-COLBEA
TOWN OF YARMOUTH Board of 1 146 ROUTE 28 SOUTH YARMOUTH, MASSACHUSETTS 02664-24451 Appeals Telephone (508) 398-2231 ext. 285, Fax (508) 398-0836 September 26, 2019 Dear Petitioner: In accordance with Massachusetts General Laws, Chapter 40A, Section 11, enclosed is an original Certificate of Granting of a Special Permit and Variance of the Board's decision with the proper certification by the Town Clerk which is to be recorded by you at the Barnstable County Registry of Deeds and/or Land Registration Office. Please ask the clerk to make you a copy of the recorded decision as you must forward a copy of the recorded decision, to the Board of Appeals and the Building Department, to the above address. Sandi Clark Office Administrator Enclosures TOWN OF YARMOUTH BOARD OF APPEALS DECISION FILED WITH TOWN CLERK: September 5, 2019 PETITION NO: 94801 HEARING DATE: August 8, 2019 PETITIONER: Colbea Enterprises, L.L.C. OWNERS: Jeanne L. Luby, Karen J. Luby-Drew, and Station Avenue LLC PROPERTY: 473, 479, and 487 (portion) Station Avenue, South Yarmouth, MA Map & Parcels: 97,1, 2 and a portion of 3 Zoning District: B1 & APD & ROAD Deed References: Book 28068, Page 126, Lot 5 on Plan in Book 319, Page 52 Book 28068, Page 128, Lot 4 on Plan in Book 319, Page 52 Book 18308, Page 272, Lot 2 (portion) on Plan in Book 442, Page 48 MEMBERS PRESENT AND VOTING: Chairman, Steven DeYoung; Vice Chairman, Sean Igoe; Dick Martin; Tom Nickinello; and Richard Neitz. Also attending and speaking, but not voting, was alternate Tom Baron. 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 as stated above. The Petitioner is Colbea Enterprises, L.L.C. The Petition is a companion application with Appeal # 4802. The Applicant is seeking Special Permits and Variances to develop the land at the above addresses for use as a Shell fuel service station and Seasons Corner Market convenience store with co -brand business. The proposal includes closing, decommissioning, and deed restricting two old, outdated, active fuel service station properties (Shell Station at 446 Station Avenue and Sunoco Station at 433 Station Avenue) located within one -quarter mile of the new site also on Station Avenue and replacement with the new state -of -art fuel service station (Shell)[collectively "Proposal"]. The Property is located in the Bl Commercial Zoning District, the Aquifer Protection Overlay District, and the ROAD Overlay District. Relief is requested per the submitted plans and materials as follows: Use: Special Permit — H6 (Motor Vehicle Fuel and Service) in B 1 Zoning District (no service proposed) and H10 (Eating and Drinking Establishment) in APD; Variance — H6 (Motor Vehicle Fuel and Service) in APD (no service proposed); and Permitted — H3 (Food Store) in B1 Zoning District and APD and H10 (Eating and and Drinking Establishment) in B 1 Zoning District. 2. Dimensional - Variance A. Canopy front setback (43.7 ft. provided) (Section 203.5 Footnote J); B. Parking in front of building (Section 301.4.1); C. Curb cut radius width (30 ft. provided; 25 ft. maximum allowed) (Section 301.4.3); D. Centerlines of driveways less than 250 ft. apart and from driveway across street (Section 301.4.7); E. In -lot trees and plant species (Sections 301.4.6 and 301.9); F. Front buffer tree spacing (Section 301.4.9); G. Photometrics (perimeter boundary and driveways (Section 301.4.10); 3. Signs - Variance A. Section 303.5.2 -- directional signage (size); B. Section 303.5.4.1 — freestanding sign (face area square footage); and C. Section 303.5.5.2 — attached signs (height for Seasons, co -brand, and canopy pecten; and total number for Seasons, Corner Market, Co -Brand, Welcome, and Canopy Pectens). The Petitioner was represented by Attorney Andrew Singer; Andrew Delli Carpini, owner of Colbea Enterprises, L.L.C.; Robert McGann, Dennis Darveau, Larry Coburn, and Eric Simpson, of Colbea Enterprises, L.L.C.; Al Micale, Ayoub Engineering; Randy Hart, VHB Traffic Engineering; and Daniel Ojala and Danny Gonsalves, Down Cape Engineering. Also in attendance and speaking were Mark Grylls, Yarmouth Building Commissioner; Kathy Williams, Yarmouth Town Planner, and Steven Tupper and Colleen Medeiros, transportation staff from the Cape Cod Commission. Environmental peer review was conducted by Carriage House Engineering, and further reviewed by Kleinfelder, the Yarmouth Outside Water Consultant. The Yarmouth Board of Health reviewed the Proposal at a public meeting and submitted memoranda, dated April 3, 2019, and May 7, 2019. Correspondence was received from and testimony was provided by staff from the Cape Cod Commission concerning transportation. 2 The Yarmouth Site Plan Review Team submitted a Site Plan Review Comment Sheet dated February 5, 2019. The Yarmouth Design Review Committee submitted a Design Review Comment Sheet dated January 29, 2019. Robert Chamberlain spoke in favor of the Petition. Station Avenue, LLC, the abutter to the north, submitted a letter in support of the Petition. Dr. Warren Woods, the abutter to the west, and James Veara, on behalf of Davenport Realty Trust, a nearby property owner across Workshop Road, spoke and submitted letters and emails in opposition to the Petition. The Board opened the hearing on the Proposal on May 9, 2019, which was continued for testimony on June 27, 2019, and August 8, 2019. The hearing was closed on August 8, 2019. The Applicant submitted the following materials in connection with the Petition: 1. Application with attached Narrative Memorandum, prepared by Law Office of Singer & Singer, LLC; 2. Summary of Reasoning, Supplemental Memorandum dated June 24, 2019, and Supplemental Memorandum dated August 1, 20I9, including four court Massachusetts Court Cases dealing with variance relief. all prepared by Law Office of Singer & Singer, LLC; 3. Revised Relief Request List, dated June 21, 2019, and further revised dated August 1, 2019, 4. Environmental Analysis Memorandum, prepared by Ayoub Engineering, dated December 14, 2018, with Specification Sheets; 5. Environmental Peer Review Report, prepared by Carriage Housing Consulting, dated March 8, 2019; 6. Review of the Environmental Peer Review Report, prepared by Kleinfelder, the Town's Outside Water Consultant, dated March 20, 2019; 7. Draft Emergency Spill Response Plan; 8. Draft Deed Restrictions for the existing Shell and Sunoco Station properties, respectively; 9. Stormwater Report, prepared by Ayoub Engineering, dated January30, 2019, and revised March 13, 2019, and April 4, 2019; 10. Traffic Impact and Access Study, prepared by VHB, dated March 11, 2019, and revised June 18, 2019, and supplemented with an Access Alternatives Memorandum, dated July 18, 2019; 11. Site, Landscaping, and Architectural Plan Set, prepared by Ayoub Engineering, dated January 18, 2019, and March 13,2019, respectively, and last revised July 31, 2019, including Sheets C-1-C-3, L-I, Er-1, SG-2, and A1.0-A2.2 (total of 14 sheets with cover sheet, septic, and survey); 12. Truck Turning Templates, Sheets TD-1, 1A, 1B, and TP-2, prepared by Ayoub Engineering, and last revised dated July 31, 2019; 13. Lighting Plan, prepared by LSI, dated December 20, 2018, and revised August 8, 2019; 14. Sketch Plan for upgrades to existing Shell property; and 15. Aerial Photographs of property and the Station Avenue corridor. The Applicant submitted the following testimony and the Board of Appeals found the following in connection with the proposal: As a companion case with Appeal #4802, of which the materials submitted, testimony provided, and the Findings and Conditions of the Decision thereof are all incorporated herein by reference, the Proposal, in addition to being in part permitted by right and by special permit, also requires use variance relief. Specifically, the portion of the proposal that will see the relocation and consolidation of fuel service operations from 433 Station Avenue and 446 Station Avenue northward to 473/479 Station Avenue requires a variance for the relocated and continued H6 (Motor Vehicle Fuel and Service) use in APD (no service proposed). Dimensional relief is also required for the relocated site that, though nonconforming, will be less nonconforming in terms of parking, setbacks, and site design than the existing sites at 433 Station Avenue and 446 Station Avenue that are being abandoned and restricted against future fuel service operations. This relief includes the canopy front setback; parking in front of the building; centerline of driveways; in -lot trees and plant species; front buffer tree spacing; photometrics; and signage. The proposed building will be one-story in height and contain 3,600 sq. ft. of first -floor area and a basement for storage. A drive-thru will be located on the rear of the building and conforming stacking for the drive-thru has been provided. A full landscaping plan will be implemented. At the Board's request, the canopy was redesigned to include a new mansard roof as an alternative to the design which was' initially proposed and approved by the Design Review Committee. After extensive discussion, study, and peer review regarding access, circulation, and traffic along Station Avenue, the site layout was redesigned in response to the Board's concerns about access and egress such that the northerly curb cut has been relocated to the northern end of the property to improve access and egress and separation from the canopy, and this curb cut has been restricted to right -in and right -out only with raised curbing along the exit portion thereof to channelize vehicles exiting the Property. The portion of the island facing the entrance will be scored concrete to allow truck access. The above changes resulted in additional improvements to on -site parking and circulation as well. Further discussion of the traffic question is contained in the Special Permit discussion below. All of the properties are located not only in the B I Commercial Zoning District, but also in the Yarmouth Aquifer Protection Overlay District ("APD"). The Yarmouth Zoning By -Law ["Zoning By-Lavv"] finds that "the groundwater water underlying this town is the sole source of its existing and future drinking water supply [...and that] accidental spills and discharges of petroleum products and other toxic and hazardous materials and sewage discharge have repeatedly threatened the quality of [... ] groundwater supplies and related water resources throughout towns in Massachusetts, posing potential public health and safety hazards and threatening economic losses to the affected communities." As such, the Zoning By -Law states that the objective of the APD is "...to protect the public drinking water supply in Yarmouth from the effects of high density land development and from potentially hazardous materials associated with specific land uses." In situations where a use in the APD requires a Special Permit, the Board is required to "...give consideration to the simplicity, eligibility and feasibility of the control measures proposed and the degree of threat to water quality which would result if the control measures fail." Under Section IO2.2.2 of the Zoning By -Law the Board is authorized to grant variances from the provisions of the Zoning By -Law, including for use. 4 As an integral component of the proposal, the Applicant is proposing to close, decommission, and deed restrict two old, outdated, active fuel service station properties (Shell Service Station at 446 Station Avenue and Sunoco Service Station property at 433 Station Avenue) located in the APD within one - quarter mile of the new site also on Station Avenue. The Applicant proposes to consolidate, relocate, and replace these old fuel service station properties with the new state -of -art fuel service station (Shell Service Station) with a reduction in the threat of environmental impact to the aquifer by significantly decreasing the number of gallons of fuel stored in the APD by 16,000 gallons or more than 28% over existing conditions (from ' 56,000 gallons down to 40,000 gallons), decreasing the number of underground fuel storage and other tanks from ten (10) to (2) such tanks, and installing two (2) state-of-the-art double - walled tanks to replace the numerous, old underground tanks to be removed. In addition, the Applicant, for itself as owner of and in connection with the Shell Station property and also by written agreement with and on behalf of the owner of the Sunoco Station property, proposed as a condition of approval that the remaining pre-existing nonconforming hazardous materials uses at these two sites will be eliminated on a proposed, respective schedule after the relocated site opens for business. Further. at the request of the Board, the Applicant proposed that in conjunction with removing the pumps and underground tanks at the existing Shell location, the Applicant will improve the aesthetics of this property as shown on the submitted site sketch plan as an interim step towards ultimate future redevelopment. This work includes substantially extending and expanding the front buffer and planting additional trees and vegetation. In making a determination that the significant environmental benefits and reduction of environmental risk satisfies the purposes and intents of the APD By -Law, the Board also relied on the materials submitted by the Applicant, independent peer review as well as review by the Yarmouth Board of Health and Outside Water Consultant. The Applicant has been working closely with officials from several Town of Yarmouth Departments on the proposed development, including meetings with the Building Commissioner as well as the Health Director and Hazardous Waste Inspector, among others. Design Review and Site Plan Review have been completed. Peer review as requested by the Health, DPW, and Water Departments was completed and reviewed by the Town's independent water consultant. Approval of the lot division by the Planning Board and issuance of a fuel storage permit from the Board of Selectmen will subsequently be required as well. The Environmental Analysis Memorandum and supporting documentation accompanying the application detail how the proposal will significantly reduce environmental risk to water quality and thus enhance environmental protection in Yarmouth's Aquifer Protection District. This will be accomplished by permanently closing two older fuel service facilities with an average age of forty (40) years located within one quarter mile of the Property and replacing them with one new state-of-the-art facility with fewer underground tanks, less underground piping, modern leak detection with sensors and alarms, and a decreased volume of underground fuel storage, all as follows: 1. There will be a significant net reduction of I6,000 gallons of fuel storage in the APD as the existing seven (7) underground tanks, six (6) dispensers, and 56,000 gallons of underground fuel storage at the two existing facilities are replaced with only two (2) underground tanks, six (6) dispensers, and 40,000 gallons of storage; Two, older fuel service facilities will be replaced with one, state-of-the-art site incorporating significant improvements in design and containment protocols for underground fuel storage with an automatic and continuous leak detection system in double -wall underground storage tanks and double -wall piping complete with probes, sensors, and alarms. In addition, the properties containing the existing gas stations will be permanently deed restricted prohibiting future fuel service use, and the pre-existing nonconforming hazardous materials uses on each property will ultimately be abandoned; Additionally, there will be an estimated reduction of forty-five (45) to fifty (50) linear feet of underground piping when the piping at the two existing sites is removed and replaced with new piping at the new site; and 4. A safer, double -wall tank system with leak detection and brine in the interstitial space will be installed at the new site in place of the seven older underground fuel storage tanks (a mixture of single and double -walled tanks that are approximately 30 to 40 years old without any modern detection systems) located at 446 Station Avenue (Shell Station) and 433 Station Avenue (Sunoco Station) — the latter to all be removed and not replaced; and An older, underground heating oil tank at the Sunoco Station and older, underground heating and waste oil tanks at the Shell Station will also be removed and replaced with above -ground tanks to provide heating oil at the respective properties and to continue service use at the Sunoco Station until such use is relinquished as set forth herein. The peer review report dated March 8, 2019, by CarriageHouse Consulting, Inc., concludes that: "...the proposed actions and activities proposed by Colbea in this project appear to yield a net benefit to the Town in the form of potential increased revenue in the form of taxes and in the redevelopment opportunity for existing non -confirming parcels, while concurrently reducing the potential risk to Town receptors and resources (i.e... the APD)." The Town's outside water consultant, Kleinfelder, reviewed the Proposal and the peer reviewer's report. In an email dated March 20.. 2019, Kirsten Ryan of Klcinfelder states that "I agree the risk to the aquifer is less than current conditions in that the proposed project would store less fuel, slightly farther away and with newer equipment technology." She recommended four conditions be placed on the proposal as set forth in her email. The Applicant has no objection to these conditions, and the same have been incorporated below. The Yarmouth Board of Health Memorandum, dated May 7, 2019, found all of the above plus additional technical requirements to be met by the Applicant as well as reiterated the four conditions specified by Kleinfelder and set forth that the Applicant "...presented their proposal to the [Board of Health] at the regular board meeting on April 22, 2019. The [Board of Health] approved recommending the proposal of Colbea Enterprises to the [Board of Appeals] by a unanimous vote with five members present and voting. This recommendation is based on the ability of the business to comply with aforementioned regulations and based on the following conditions listed below. These conditions are above and beyond the strict scope of the aforementioned regulations and are intended to provide additional protection of the APD." The proposal in the APD also requires the creation of a Nitrogen Aggregation Plan with the subsequent approval of the Board of Health. In a Nitrogen Aggregation Plan, the land to be developed is designated the Facility Land and off -site land to be permanently protected as undeveloped open space is designated the Credit Land. The more sensitive Credit Land is preserved in order to allow the more appropriately - zoned Facility Land to be developed. The Credit Land for the Proposal will be approximately 50,000 sq. ft. of area. This land will be permanently protected as undeveloped open space. The Applicant has filed applications in accordance with the Yarmouth Disposition of Town Owned Real Property Policy to seek to purchase at public auction foreclosed land owned by the Town of Yarmouth to be designated as the :9 Credit Land in connection with the development of the new site. This process is underway and its successful completion is a condition of the approval hereof. Special Permit. For those aspects of the proposal that require a special permit, the Applicant has requested such relief in accordance with Sections 103.2 and 202.5 of the Yarmouth Zoning By -Law ["Zoning By -Law"]. The Board of Appeals is authorized to grant such special permit upon a finding that the proposed development will not create any undue nuisance, hazard or congestion and that there will be no substantial harm to the established or future character of the neighborhood or Town. Additional requirements for the granting of a Special Permit in the APD are set forth in Sections 406.5.3 and 406.5.5 of the Zoning By -Law. The Applicant submitted that the proposal, including the decommissioning and deed -restricting of the two old nearby gas stations, will comply with all of the Special Permit criteria, will not create any undue nuisance, hazard or congestion, will result no substantial harm to the public drinking water supply, and will thus result in a substantial benefit and improvement to the neighborhood, the Town, and the environment, and further that the control measures proposed have given due consideration to the simplicity, eligibility and feasibility of implementation and maintenance and to protective measures to reduce the potential threat to water quality should any of these measures unexpectedly fail, all of the above because: 1. The existing old Shell and Sunoco gas stations to be decommissioned and deed restricted are outdated with older underground storage tanks and less monitoring and protections than modern fuel service operations employ. Eliminating these two gas stations and permanently deed restricting the respective parcels from future fuel service use provides a significant boost to environmental protection and reduction in risk to the aquifer; 2. The new fuel service station will not only be a modern, state-of-the-art facility, but it will also store 16,000 fewer gallons of fuel than the two existing gas stations combined (56,000 gallons existing; 40,000 gallons proposed); 3. The Proposal has been designed and is intended to complement the B 1 Commercial District along Station Avenue. Both the Yarmouth Design Review- Committee and the Site Plan Review Committee have reviewed the Proposal. The Design Review Committee voted 3-0 in favor finding that the proposed design of the building, canopy, and development are appropriate for the site and use and satisfy the reviewed design guidelines; 4. The Traffic Impact and Access Study of the Proposal, as updated and supplemented, evaluated existing traffic operations and safety, assessed future conditions along Station Avenue both with and without the proposal, estimated projected traffic volumes for the proposal and its potential impact on future traffic operations in the area, and analyzed various curb cut access alternatives. The traffic engineer concluded that the available stopping and intersection sight distance exceeds minimum requirements and that the proposal is expected to have only minor impacts on local traffic operations. It is acknowledged that traffic along this stretch of Station Avenue is congested at times during the summer season such that most, if not all, driveways along this stretch of road in the B I Commercial Zoning District operate at Level of Service F at times during the day. As demonstrated in the materials submitted and with the site access alterations and restrictions presented to the Board in response to comments and concerns raised at the Board meetings, while some additional traffic will be added to the flow on Station Avenue (the relocated site being the last undeveloped parcel of land in the commercial district in this area), the proposal will not result in a significant increase in traffic. There is a center turn lane in front of the property that was constructed by the Town in the past to alleviate turning movements along the road. In discussing potential future upgrades by the Town along this stretch of Station Avenue, 7 the Town Planner responded to a Board question noting that there are five (5) feet of available space on either side of the paved travel way that remain unused in the road layout. The Applicant offered that it is willing to agree to grant the Town in the future a five (5) foot wide easement along the Property frontage in order to allow for a sidewalk should the Town so seek at that time. An extensive landscaping package is proposed, including additional vegetative screening of the fenced dumpster from the adjacent property to the north; 6. Site lighting will be down lit and appropriate for the Station Avenue commercial zone; 7. Building and lot coverage will each be conforming; All stormwater runoff will be contained and infiltrated on site, and there will be no negative impact to drainage, septic flow or stormwater; 9. Presently, the 446 Station Avenue Shell Station property is nearly fully paved with impervious surfaces including parking areas and concrete drive mats associated with the retail gasoline station. As part of this proposed development, the Applicant intends to remove areas of pavement and impervious surfaces along Station Avenue and create an additional landscaped island in the center of the property directly in front of the existing building. As has been documented in scientific literature, increasing stormwater infiltration directly to an aquifer is preferable to overall aquifer health versus re -directing stormwater to surface streets where it discharges to remote locations. The Applicant's redevelopment proposal includes an increase of approximately 800 square feet of non -impervious ground cover at the existing fully paved Shell station. Increasing the amount of stormwater infiltration directly to an aquifer has the benefits of increasing aquifer capacity, increasing dissolved oxygen content in the aquifer and increasing the overall oxidation-reduction potential in the aquifer which leads to better overall aquifer health; 10. The Applicant reached out to property abutters and those across the street to discuss the proposal and has pledged to continue working with them in order to be a good neighbor to the neighborhood and community; and 11, The development of the Property in conjunction with the environmental improvements to the rivo off -site locations now (and the possibility of future conforming redevelopment of each as ultimately permitted by the Town of Yarmouth) will improve and enhance the economic viability of the entire commercial zone and be an asset to the character of the neighborhood and Town. Variance. For those aspects of the Proposal that require a Variance, the Applicant requested such relief as discussed below in accordance with Section 102.2.2 of the Zoning By -Law and M.G.L. Chapter 40A, Section 10. The Board is authorized to grant Variances, including for use, where the Board finds that a literal enforcement of the Zoning By -Law would involve substantial financial or practical hardship to the Petitioner, that the hardship is owing to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affecting such land or structures, but not affecting generally the zoning district, and 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 use Variance that is required as noted above is to include motor vehicle fuel use (no service) at the Property in the APD that would otherwise be allowed by special permit in the Bi Zoning District. Dimensionally, while the new building itself will comply with all setbacks, the canopy for the relocated fuel service use will not and there will also be parking in front of the building. The Board has reviewed similar requests in the past that arise along this section of Station Avenue in which the minimum front setback is seventy-five feet, while at the same time parking cannot be in front of a building. The other dimensional variance relief that is being requested to meet the special circumstances of the site include curb cut width, driveway centerline separation, in -lot trees and plant species, front buffer tree spacing, photometrics, and signage. Much of the signage relief was subsequently withdrawn without prejudice as discussed below. During the public hearing, the Board requested additional information on the grant of variances and reviewed the cases submitted and discussed the same with the Applicant. The Applicant provided copies of the following MA Court Cases and analysis in connection with the Proposal: Marashlian v. Zoning Board of Appeals of Netiyburyport, 660 N.E.2°a 369, 374 {Mass.19961, Cavanaugh v. DiFlutnera, 401 N.E.2d 867, 871 (Ma App. Ct., 1980), Furlong v. Zoning Board of Appeals of Salem, 64 N.E. 3`d, 268, 269 {Ma App. Ct., 2016), and Boyajian v. Board of Appeals of Wellesley, Page 1237, 1238 {Ma. App. Ct. 1978). The Board found credible the Applicant's testimony that these cases reflect positively on the Proposal in terms of (1) economic unfeasibility of use and re -use of the land absent the requested relief, (2) the need for a determination of substantial derogation and not just any derogation from the provisions of the Zoning By -Law in order to deny the requested relief, (3) the reduction in risk of existing harm and prevention of greater risk of future harm and (4) acknowledgment that some increase in traffic will not result in a significant increase in traffic to an already busy thoroughfare. The Board's review is not based on application of the criteria discretely to each aspect of the proposal, but rather collectively to all of the land and structures involved in the proposal. The proposal represents one, overall, holistic redevelopment in order to achieve the benefits required by Section 406.5.3. The location in the APD requires an entirely separate set of criteria to be met than the same proposed development would require if only in the B 1 Commercial Zone (in which the use is permitted by special permit). Protection of the special soils and aquifer status of the land are key. Section 102 2.2 of the Zoning By - Law authorizes dimensional and use variances "with respect to particular land or structures" and requires a hardship finding "owing to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affecting such land or structures, but not affecting generally the zoning district in which it is located." Literal enforcement of the provisions of the Town of Yarmouth's Zoning By -Laws would represent a substantial hardship to the Petitioner and Owners. The hardships faced in attempting to achieve all of the benefits are directly related to the soil conditions (water -sensitive natural formations), topography, shape of the land and historical development of the structures and sites involved (including those of the other gas station properties). The Property and the older gas stations to be closed/replaced are all located in the largest BI zoned area in the Town of Yarmouth and one of the few areas of BI zoned commercial land that is also located in the APD. Moreover, the Property is the only undeveloped parcel within this B I /APD zone. As a result of its location in both the B l zone and the APD, the Property is unique. Specifically, the soil within the APD is unique, which mandates that a separate set of APD criteria be met. In order to meet the standard set forth in Section 406.5.3, the Applicant has proposed to shut down and deed restrict two old, non -confirming fuel station in order to protect the public drinking water. In order to replace the two old fuel stations with a state of the art, safe and modern fuel station on the Property, the requested variances are required. The Applicant submitted, and the Board so found, that the land and structures involved are impacted by the unique soil conditions of the aquifer district in that the two existing gas stations are pre-existing nonconforming uses and the relocated site is the last vacant site in this B 1 and APD area and that the pre- existing nonconforming structures and site developments, including underground storage tanks and multiple full in and out curb cuts on multiple roads, are unique improvements and circumstances in the APD such that it is economically and practically infeasible to achieve the improvement to the environment and the reduction in the threat of harm to the ground water absent the variance relief to 9 construct the proposal as designed on the relocated site in the APD and this creates a substantial financial and practical hardship justifying the requested variance relief. It is important to note that two old, active and non -conforming fuel stations within the same B1 zone and APD will be consolidated into this new proposed location such that it is economically and practically infeasible to build this fuel station absent the variance relief. Moreover, this proposed project has been designed to ensure optimal safety for the fuel station. As a result, absent the requested variance relief the fuel station would not represent the optimal safety standards for a fuel station. Moreover, the Applicant has redesigned the proposal with the input of Town officials and agencies in order to optimize the safety of the Property. The Board found further that based on the established hardship and all of the materials submitted to the Board and for all of the reasons set forth in the Special Permit discussion above, the requested variance relief as set forth below can 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, including without limitation, the overarching reduction in threat of harm to the aquifer and enhanced environmental protection resulting from the Proposal. In addition, the Yarmouth Design Review Committee voted to find that the Proposal is appropriate for the site and the commercial zone. The proposed use of the commercially -zoned, replacement property is allowed (both by right and special permit) in the underlying Bl Commercial Zoning District. The two existing fuel station properties that are grandfathered and protected pre-existing nonconforming uses will each be transitioned to conforming uses and will no longer contain a now -prohibited use. The net result of the proposal is one less fuel service station than at present, one less site with a pre-existing nonconforming hazardous materials use; and one relocated site that will be less nonconforming to zoning and more protective of the environment than existing nonconforming conditions. The two pre-existing nonconforming gas station uses in the APD are entitled to remain indefinitely and to remain in a more nonconforming status than the proposal before the Board. Even if these two sites can be upgraded in the future, they will each never be able to be as compliant and conforming as the relocated site due to their shapes and historical developments. The proposal will provide numerous benefits to the Town and the public, including amelioration of the continued risk to the aquifer that these two sites represent by closing these two businesses, eliminating the pre-existing nonconforming hazardous materials uses from these two properties, and restricting these two properties from such uses in the future, in exchange for the relocation a brief distance north along the same street in the same zoning and overlay districts with a new, smaller -capacity, state-of-the-art facility, a facility which is needed in this commercial zone and is authorized by the underlying zoning in the area. The Applicant submitted, and the Board so found, that the land and structures involved are impacted by the unique shape and topography of the Property such that the canopy, parking (in front of the building), centerline of driveways, in -lot trees and plant species, front buffer tree spacing, photometrics and signage can best be situated only as provided on the proposed plans to ensure the fuel station is optimized for safety and complies with the redesign of the site as requested by the Town. It would represent a substantial hardship and be economically and practically infeasible to require literal enforcement of the Zoning By -Laws. In granting the requested variances, the public good will be served by providing a safe, state of the art, modern fuel station. Moreover, the requested variances would not nullify or substantially derogate from the intent or purpose of the Zoning By -Laws because the proposal will provide a safe and modernized fuel station for the public. As a result, it is appropriate to grant the requested variances. Specifically, most of the exterior lighting conforms to the Zoning By -Law. The Applicant has attempted to be respectful to the neighborhood and Town and provide safe lighting, while complying as much as feasible with applicable regulations. Relief is requested in a few areas along the perimeter and at the curb cuts. Notwithstanding this request and by way of comparison, the proposed lighting will be less than the existing similar lighting at the nearby Mobil Station on Station Avenue as well as less than at the Cape 10 Farms Market property on Route 28 in West Yarmouth. Based on recommendations from the lighting manufacturers, the proposed lighting is the lowest level that will be safe for a fuel station. The proposed lighting will result in safe conditions for the patrons as well as the employees who need to monitor activity at the site and operation of the fuel pumps. Given the commercial nature of the Station Avenue location (there are no nearby residences) and the need to provide safe and efficient lighting, the proposed levels will achieve this result with no negative impacts. The Applicant requested sign relief for directional, freestanding, and attached signs. The latter two were ultimately withdrawn without prejudice. As to the former, the Board felt that the proposed directional signage is warranted to provide safe and efficient access and egress as well as on -site circulation. The Board also requested an additional Do Not Enter sign at the exit of the right -in, right -out northerly curb cut. The Board took the following votes on the Proposal: Special Permit for H6 and H 10 use of the Property. Sean Igoe made a motion, seconded by Richard Neitz, and voted five (5) in favor and zero (0) opposed to grant the requested Special Permit for use based on the above Findings and submitted plans and further that the proposed development will not create any undue nuisance, hazard or congestion and that there will be no substantial harm to the established or future character of the neighborhood or Town and that the additional requirements set forth in Sections 406.5.3 and 406.5.5 of the Zoning By -Law, including without limitation that the control measures proposed have given due consideration to the simplicity, eligibility and feasibility of implementation and maintenance and to protective measures to reduce the potential threat to water quality should any of these measures unexpectedly fail, have been met and upon the following conditions: A. All nonconforming uses at 446 Station Avenue shall cease within fourteen (14) days after the new site opens for business and the underground storage tanks shall be removed from 446 Station Avenue and the site upgrades as per the reviewed Sketch Plan shall be implemented no later than nine (9) months after the new site opens for business; B. The nonconforming fuel service use at 433 Station Avenue shall cease within fourteen (14) days after the new site opens for business and the underground storage tanks shall be removed from 433 Station no later than nine (9) months after the new site opens for business and all remaining nonconforming use of 433 Station Avenue shall cease no later than forty-eight (48) months from the date when this Decision is final; C. Deed restrictions shall be recorded on the chains of title for both 433 Station Avenue and 446 Station Avenue restricting each property from future nonconforming uses within the APD and copies of such Deed Restrictions as recorded shall be returned to the Board of Appeals Such deed restrictions shall incorporate the time lines for discontinuance of such uses as set forth in Paragraphs A and B above; D. The Petitioner agrees to grant to the Town of Yarmouth in the future a five (5) foot wide easement along the Property frontage in order to allow for a sidewalk to be installed should the Town so seek at that time; and E. The Petitioner shall complete the nitrogen aggregation process to deed restrict off -site open space land for purposes of credit to the Property prior to the new site opening for business. 11 F. The Petitioner shall comply with all requirements of the Board of Health. 2. Variance for H6 use of the Property. Sean Igoe made a motion, seconded by Richard Neitz, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for use (fuel service only without vehicle service nor (vehicle washing) based on the above Findings and the submitted plans and further that the hardship is based on the soil conditions and topography of the land and the structures as discussed above and that the intent of the APD By -Law will be met to protect the groundwater and that there will be no harm to the public good and upon the same conditions set forth in the Special Permit vote above plus the following additional conditions: A. No hazardous products purchased inside the building at the Property shall be used or added on or to a vehicle when the vehicle is located on the Property; B. The only products allowed to be added into a vehicle at the Property shall be gas and diesel fuel dispensed from the on -site dispensers; L C. The Board of Health will verify that the design is in accordance with all Massachusetts Stormwater Standards; D. The developer shall retain a third -party engineer/LSP to provide certification that the project was constructed and installed as designed and passed all start up and commissioning tests to verify proper operation; E. The facility is required to submit a third -party compliance inspection to the MassDEP every three years, and the facility shall provide a copy of this report concurrently to the Board of Health and Water Department; and F. The proposed new underground storage tanks shall have a 30-year service life. Variance for canopy front setback. Sean Igoe made a motion, seconded by Richard Neitz, and voted four (4) in favor and one (1) (Martin) opposed to grant the requested Variance for the canopy front setback with the mansard design and colors as shown on the revised architectural plans based on the above Findings and further in accordance with the prior votes of the Board herein with no additional conditions: 4. Variance for parking in front of the building. Sean Igoe made a motion, seconded by Richard Neitz, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for parking in front of the building based on the above Findings and submitted plans and further in accordance with the prior votes of the Board herein with no additional conditions; 5. Variance for curb cut radius. Sean Igoe made a motion, seconded by Dick Martin, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for the curb cut radius based on the above findings and submitted plans and further in accordance with the prior votes of the Board herein with no additional conditions; Variance for centerlines of driveways. Sean Igoe made a motion, seconded by Richard Neitz, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for the centerlines of driveways based on the above Findings and submitted plans and further in accordance with the prior votes of the Board herein with no additional conditions; 12 Variance for plant species. Sean Igoe made a motion, seconded by Dick Martin, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for the plant species as shown on the revised landscape plan based upon the above Findings and further in accordance with the prior votes of the Board herein with the following additional condition: A. Buffer trees shall be maintained or planted as required along the edges of the bio- retention basins where the same abut the Property lines: Variance for front buffer tree spacing and in -lot trees. Sean Igoe made a motion, seconded by Dick Martin, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for the front buffer tree spacing and the number of in -lot trees as shown on the revised landscape plan, including reference to the utility poles and their respective guy wires; based upon the above Findings and further in accordance with the prior votes of the Board herein with the following additional condition: A. A new island with one in -lot tree shall be planted in the middle of the row of parking behind the new building; Variance for perimeter and driveway photometrics. Sean Igoe made a motion, seconded by Richard Neitz, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for the photometrics as shown on the revised lighting plan based on the above Findings and further in accordance with the prior votes of the Board herein with no additional conditions: l0. Variance for directional signs. Sean Igoe made a motion, seconded by Dick Martin, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for directional signage as shown on the revised plans based upon the above Findings and further in accordance with the prior votes of the Board herein with the following additional condition: A. An additional Do Not Enter sign shall be installed at the exit driveway of the northerly right -in, right -out curb cut; and 11, Variance for freestanding monument sign and attached signs. After further discussion with the Board, the Applicant requested and the Board voted five (5) in favor and zero (0) opposed, upon a motion by Sean Igoe, seconded by Richard Neitz, to grant the Applicant's request to withdraw without prejudice the request for additional sign variance relief as follows: Section 303.5.4.1 — freestanding sign (face area square footage), and Section 303.5.5.2 (attached signs -- height and number). 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 riling 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) Unless otherwise provided herein, a Variance shall lapse if the rights authorized herein are not exercised within 12 months. (See MGL c40A§10). This Decision must be filed with the Barnstable County Registry of Deeds, Route 6A, Barnstable. Steven DeYoung, rman 13 Appeal #4801 COMMONWEALTH OF MASSACHUSETTS TOWN OF YARMOUTH BOARD OF APPEALS Date: September 26, 2019 Certificate of Granting of a Special Permit and Variance (General Laws Chapter 40A, section 11) The Board of Appeals of the Town of Yarmouth Massachusetts hereby certifies that a Special Permit and Variance has been granted to: PETITIONER: Colbea Enterprises, LLC, 2050 Plainfield Pike, Cranston, RI 02921. OWNERS: Jeanne L. Luby, 65 Chase St. West Harwich, MA 02671, and Karen J. Luby-Drew, 91 North Main St., South Yarmouth, MA 02664 — 473 and 479 Station Avenue, South Yarmouth, MA, and Station Avenue, LLC, 487 Station Avenue, South Yarmouth, MA 02664 — 487 (portion) Station Avenue, So. Yarmouth, MA. Affecting the rights of the owner with respect to land or buildings at: Map & Parcels: 97,1, 2 and a portion of 3; Zoning District: B1 & APD & ROAD Deed References: Book 28068, Page 126, Lot 5 on Plan in Book 319, Page 52; Book 28068, Page 128, Lot 4 on Plan in Book 319, Page 52 Book 18308, Page 272, Lot 2 (portion) on Plan in Book 442, Page 48and the said Board of Appeals further certifies that the decision attached hereto is a true and correct copy of its decision granting said Special Permit and Variance, and that copies of said decision, and of all plans referred to in the decision, have been filed. The Board of Appeals also calls to the attention of the owner or applicant that General Laws, Chapter 40A, Section 11 (last paragraph) and Section 13, provides that no Special Permit, or Variance or any extension, modification or renewal thereof, shall take effect until a copy of the decision bearing the certification of the Town Clerk that twenty (20) days have elapsed after the decision has been filed in the office of the Town Clerk and no appeal has been filed or that, if such appeal has been filed, that it has been dismissed or denied, is recorded in the Registry of Deeds for the county and district in which the land is located and indexed in the grantor index under the name of the owner of record or is recorded and noted on the owner's certificate of title. The fee for such recording or registering shall be paid by the owner or applicant. Steven DeYoun , Chairman TOWN OF YARMOUTH g 'Town CHEESE 1146 ROUTE 28, SOUTH YARMOUTH, MASSACHUSETTS 02664-4451 Clerk '0 Telephone (508) 398-2231 Ext. 1285, Fax (508) 398-0836 CERTIFICATION OF TOWN CLERK I, Philip B. Gaudet, III, Town Clerk, Town of Yarmouth, do hereby certify that 20 days have elapsed since the filing with me of the above Board of Appeals Decision #4801 that no notice of appeal of said decision has been filed with me, or, if such appeal has been filed it has been dismissed or denied. All appeals have been exhausted. Philip B. Gaudet, III Town Clerk TOWN OF YARMOUTH Board of 1146 ROUTE 28 SOUTH YARMOUTH, MASSAC1 USETTS 02664-24451 Appeals Telephone (508) 398-2231 ext. 285, Fax (508) 398-0836 September 26, 2019 Dear Petitioner: In accordance with Massachusetts General Laws, Chapter 40A, Section 11, enclosed is an original Certificate of Granting of a Special Permit and Variance of the Board's decision with the proper certification by the Town Clerk which is to be recorded by you at the Barnstable County Registry of Deeds and/or Land Registration Office. Please ask the clerk to make you a copy of the recorded decision as you must forward a copy of the recorded decision, to the Board of Appeals and the Building Department, to the above address. Sandi Clark Office Administrator Enclosures TOWN OF YARMOUTH BOARD OF APPEALS APPLICATION FOR HEARING Appeal#: 4m/Hearing Date Owner -Applicant: Applicant: Colbea Enterprises, L.L.C. April // , 2019 ' Hn_'�_; Fee �3` ; (Full Names- including dlbla) Go Law Office of Singer & Singer, LLC, R.O. Box 67, Dennisport, MA 02639, 508-398-2221 alsinger@singer-law.com (Address) (Telephone Number) (Email Ad and is the (check one) Owner Tenant Prospective Buyer Other Interested Pa 473 Station Avenue, 479 Station Avenue, and Property: This application relates to the property located at: 487(portion) Station Avenue, South Yarmouth and shown on the Assessor's Map #: 97 as Parcel#: 1, 2, and a portion of Zoning District: B1 & APO & ROAD If property is on an un-constructed (paper) street name of nearest cross street, or other identifying Iocation: Project: The applicant seeks permission to undertake the following construction/use/activity (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"): RELIEF REQUESTED: The applicant seeks the following relief from the Board of Appeals: See attached. 1) REVERSE THE DECISION OF THE BUILDING INSPECTOR OR THE ZONING ADMINISTRATOR dated attach a copy of the decision appealed from). State the reason for reversal and the ruling which you request the Board to make. 2) x SPECIAL PERMIT under § see attached of the Yarmouth Zoning By-law and, for a use authorized upon Special Permit in the "Use Regulation Schedule" §202.5 .(use space below if needed) 3) x 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: see attached Relief sought: Section: Relief sought: Section: Relief sought: see attached ADDITIONAL INFORMATION: Please use the space below to provide any additional information which you feel should be included in your application: FACT SHEET Current Owner of Property as listed on the deed (if other than applicant): 473 & 479 Station Ave: Jeanne L. Luby, 65 Chase St., W. Harwich, MA 02671 and Karen J. Luby-Drew, 91 North Main St., S. Yarmouth, MA 02664 479 Station Ave: Station Avenue LLC, 487 Station Ave., S. Yarmouth, MA 02664 Name & Address Title deed reference: Book & Page# Land Court Lot # Plan # Hook 28068, Page 128 Book 28068, Page 128 Book 18308, Page 272 or Certificate # rovide covy of recent deed Use Classification: Existing: vacant land §202.5 # Proposed: fuel service station and convenience §202.5 # H3,H6,H10 store with co -brand business Is the property vacant: yes If so, how long? undeveloped 319 52 5 Lot Information Size/Area: see plans Plan Book and Page 442 / as Lot# z Is this property within the Aquifer Protection Overlay District? Yes X No Have you completed a formal commercial site plan review (if needed)? Yes X No Other 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: Site Plan Review completed, Design Review completed. Repetitive Petition: Is this a re -application: No 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 information. Include a copy of the decision(s) with this application: Appeal Vs 3453 and 3505 (467 Station Ave) Building Commissioner Comments: ;C01 ea Enterprises, L.L.C. �^ , S Andrew L. Singer Applicant' /A omey gent Signature Address: Law Office of Singer & Singer, LLC Phone_ E-Mail: P.O. Box 67, Dennisport, MA 02639 508-398-2221 alsinger@singer-law.com Owners Signature Andrew L. ignature Date TOWN OF YARMOUTH ZONING BOARD OF APPEALS SPECIAL PERMIT AND VARIANCE APPLICATION Applicant: Colbea Enterprises, L.L.C. Owners: Jeanne L. Luby and Karen J. Luby-Drew and Station Avenue LLC Property: 473, 479, and 487 (portion) Station Avenue, South Yarmouth, MA Introduction Oa its face, this proposal is to develop undeveloped parcels of land that make up the above Property for use as a Shell fuel service station and convenience store with co -brand business. In its details, however, the proposal is a rare opportunity to upgrade and better protect both the business and natural environment along and in this portion of Station Avenue. It is business development coupled with environmental protection. As a rare opportunity, there are many parts necessary to bring the desired win -win -win -win (Environment/APD-Town-B 1 Zoning District -Applicant) to fruition. Independent peer review of the environmental aspects within the APD is being completed and will be reviewed by both the Town's outside water consultant as well as the Board of Health and Health Department. Design Review and Site Plan Review have been completed. We have met on a number of occasions with Mark Grylls, the Building Commissioner, to discuss the relief required. A number of zoning variances as set forth herein are necessary in addition to special permit relief. None of the above is surprising given the complexity and promise of the proposal. The Environmental Analysis Memorandum and supporting documentation accompanying the application detail how the proposal will significantly reduce environmental risk to water quality and thus enhance environmental protection in Yarmouth's Aquifer Protection District. This will be accomplished by permanently closing two older fuel service facilities with an average age of forty (40) years located within one quarter mile of the Property and replacing them with one new state-of-the-art facility with fewer underground tanks, Iess underground piping, modern leak detection with sensors and alarms, and a decreased volume of underground fuel storage, all as follows: 1. There will be a significant net reduction of 16,000 gallons of fuel storage in the APD as the existing seven (7) underground tanks, six (6) dispensers, and 56,000 gallons of underground fuel storage at the two existing facilities are replaced with only two (2) underground tanks, six (6) dispensers, and 40,000 gallons of storage; Two, older fuel service stations will be replaced with one, state-of-the-art site incorporating significant improvements in design and containment protocols for underground fuel storage with an automatic and continuous leak, detection system in double -wall underground storage tanks and double -wall piping complete with probes, sensors, and alarms; Additionally, there will be an estimated reduction of forty-five (45) to fifty (50) linear feet of underground piping when the piping at the two existing sites is removed and replaced with new piping at the new site; and 4. A safer, double -wall tank system with leak detection and brine in the interstitial space will be installed at the new site in place of the seven older underground fuel storage tanks (a mixture of single and double -walled tanks) located at 446 Station Avenue (Shell Station) and 43 3 Station Avenue (Sunoco Station) — the latter to all be removed and not replaced. Zoning Relief 1. Use: Special Permit — H6 (Motor Vehicle Fuel and Service) in B 1 Zoning District (no service proposed) and H10 (Eating and Drinking Establishment) in APD; Variance — H6 (Motor Vehicle Fuel and Service) in APD (no service proposed); and Permitted — H3 (Food Store) in B1 Zoning District and APD and H10 (Eating and and Drinking Establishment) in B I Zoning District. 2. Dimensional - Variance A. Canopy front setback (43.7 ft. provided) (Section 203.5 Footnote J); B. Parking in front of building (Section 301.4.1); C. Curb cut width (30 ft. provided) (Section 301.4.3); D. CenterIine of southerly on -site driveway less than 250 ft. from northerly on -site driveway and shopping center driveway across the street (Section 301.4.7); E. In -lot trees and plant species (Sections 301.4.6 and 301.9); F. Front buffer tree (Section 301.4.9); G. Photometric (to the extent necessary) (Section 301 A.10); and H. Drive-thru stacking lane (number of cars as shown) (Section 301.8); Signs - Variance A. Section 303.5.2 — directional signage, including Do Not Enter and Trucks with Trailers to Outside of Pumps (size); B. Section 303.5.4.1— freestanding sign (face area square footage and LED price panel); C. Section 303.5.5.2 — attached signs (height for Seasons, co -brand, and canopy pecten; and total number for Seasons, Corner Market, Co -Brand, Welcome, and Canopy Pectens); D. Section 303 -- Under canopy lighting — footcandles, to the extent necessary; 2 E. Section 303 — Two upward lights at Corner Market sign; F. Section 303 — Drive-thru/Menu Board; G. Section 3 03 — Pump toppers with 12 LED prices; H. Section 303 — Video Screens on pumps; and 1. Section 303 -- Advertising above dispensers. YARMOUTH BOARD OF APPEALS ABUTTERS LIST Petition# -1%I Name Applicant: Colbea Enterprises, L.L.C. Filing Date: March 8, 2019 Hearing Date April H, 2019 Property Location: 473 Station Avenue, 479 Station Avenue, and 487 (portion) Station Avenue, South Yarmouth Notices must be sent to the petitioner (applicant), abutters, and owners of land directly opposite on anj_public or private street or way. and abutters to the abutters (only within 300 feet of the property Iine) of the petitioner as they appear on the most recent applicable tax list. Provide only the abutters map and lot number. You can get assistance with this list from the Assessor's Office. Postage charges for all applications will be determined by multiplying the number of abutters and the12arcel Win question) times .56e, which is the current cost for the two required mailings. Add that to the application fee and include your check with the application. Map Number Lot Number Map Number Lot Number Applicant # 97 1 & 2 97 3 Abutters #'s 97 4 87 40 97 22 87 41 98 1.1 98 111 97 23 C1 97 23 C2 97 23 C3 97 23 C4 97 23 C5 97 21 C10 97 21 C20 97 21 C1 97 21 C11 97 21 C12 97 21 C14 97 21 C15 97 21 C16 97 21 C17 97 21 C18 97 21 C19 97 21 C2 97 21 C21 97 21 C22 97 21 C23 97 21 C24 97 21 C25 97 21 C26 97 21 C27 97 21 C28 97 21 C29 97 21 C3 97 21 C4 97 21 C5 97 21 C6 97 21 C7 97 21 C8 97 21 C9 97 6 97 5 97 7 87 34 2 Labels-1 Hard Copy Assessors Field Card with photo Matthew Zurowick, Director of Assessing 871 401 I I 97/ 21/ CS/ 97/ 21/ C16/ I GOMES NATALIO TR OSCAR TAYLORS LLC OSCAR TAYLORS LLC NEW BEDFORD D 8 G RLTY TRUST 23 B2 WHITES PATH SUITE 5 23 B2 WHITES PATH SUITE 5 13 BRIARWOOD LN SOUTH YARMOUTH. MA 02664 SOUTH YARMOUTH. MA 02064 ROCHESTER. MA 02770 871 411 1 1 9T 211 C6/ / 9T 211 CIT I MONTROSE YARMOUTH STATION LLC OSCAR TAYLORS LLC OSCAR TAYLORS LLC 159 CAMBRIDGE ST 23 B2 WHITES PATH SUITE 5 23 B'_ WHITES PATH SUITE 5 ALLSTON. MA 02134 SOUTH YARMOUTH, MA 02664 SOUTH YARMOUTH. MA 02664 971 1! .Zi 1 1 97/ 21/ CT 9T 211 Cl& LUBY JEA\WE L OSCAR TAYLORS LLC OSCAR TAYLORS LLC LUBY-DREW KAREN J 23 B2 WHITES PATH SUITE 5 23 B2 WHITES PATH SUITE 5 65 CHASE ST SOUTH YAR.MOUTH. MA 02664 SOUTH YARMOUTH_ MA 02664 WEST HARWICH. MA 02671 971 2i / 97i 21/ C81 97, 21' C19.' LUBY JEANrNE L OSCAR TAYLORS LLC OSCAR TAYLORS LLC LUBY-DREVL' KA ,' J 23 B2 WHITES PATH SUITE 5 _13 B2 WHITES PATH SUITE 5 65 CHASES SOUTH YARMOUTH, Ma 02664 SOUTH YARMOUTH. MA 02664 WEST WICH_ MA 02671 97 31 ! 97' 21 i C9/ 97, '_ l i C20' STATION AVENUE LLC OSCAR TAYLORS LLC OSCAR TAYLORS LI-C 487 STATION AYE 23 B2 WHITES PATH SUITE 5 23 B2 WHITES PATH SUITE 5 SOUTH YARMOUTH, MA 02664 SOUTH YARMOUTH. MA 02664 SOUTH YARMOUTH. MA 02664 97/ 4' / 9T 21! C[0/ 1 97, 21 C2I! WOODS REALTY ASSOCIATES LLC OSCAR TAYLORS LLC OSCAR TAYLORS LLC 441 ROUTE 130 23 B2 WHITES PATH SUITE 5 23 B2 WHITES PATH SUITE 5 SANDWICH. MA 01_563 SOUTH YARMOUTH. NIA 02664 SOUTH YARMOUTH. MA 02664 9T 21/ Cl, 97r 21/ CIL/ 97 21' C22i OSCAR TAYLORS LLC OSCAR TAYLORS LLC OSCAR TAYLORS LLC 23 B2 WHITES PATH SUITE 5 23 B_ WHITES PATH SUITE 5 23 B2 WHITES PATH SUITE 5 SOUTH YARMOUTH. MA 02664 SOUTH YARMOUTH. MA 02664 SOUTH YARMOUTH. MA 02664 9T 21 r C2! 971 2l l C I'_i 97-' 2 P C23, OSCAR TAYLORS LLC OSCAR TAYLORS LLC OSCAR TAYLORS LLC 23 B2 WHITES PATH SUITE 5 23 B2 WHITES PATH SUITE 5 23 B2 WHITES PATH SUITE 5 SOUTH YARMOUTH.MA 02664 SOUTH YARMOUTH. MA 02664 SOUTH YARMOUTH, MA 02664 97/ 2I1 C3.97: U 2C14, I 971 21,' C24? OSCAR TAYLORS LLC YARMOUTH BASKIN LLC OSCAR TAYLORS LLC 23 B'_ WHITES PATH SUITE 5 P O BOX 66096 23 82 WHITES PATH SUITE 5 SOUTH YARMOUTH. MA 02664 AUBURNDALE. MA 02466 SOUTH YARMOUTH_ MA 02664 97/ 21/ C41 97! 21/ C151 / 971 21, C25/ ! OSCAR TAYLORS LLC OSCAR TAYLORS LLC OSCAR TAYLORS LLC 23 B2 WHITES PATH SUITE 5 23 B2 WHITES PATH SUITE 5 23 B2 WHITES PATH SUITE 5 SOUTH YARMOUTH. MA 02664 SOUTH YARMOUTH. MA 02664 SOUTH YARMOUTH- MA 02664 971 211 C261 9T 21! C1/21 OSCAR TAYLORS LLC UNION STATION CONDOS 23 B2 WHITES PATH SUITE 5 CONDO MAIN SOUTH YAR.MOUTH_ MA 02664 23 B2 WHITES PATH SUITE 5 SOUTH YARMOUTH. MA 02664 97r 2V C271 97f 21/ C29.! 211` OSCAR TAYLORS LLC 23 B2 WHITES PATH SUITE 5 SOUTH YARMOUTH. MA 02664 97.1 21! C28/ 97, 23.` CV31 OSCAR TAYLORS LLC UNION STATIONCONDOS 23 B2 WHITES PATH SUITE 5 CONDO MAIN SOUTH YARMOUTH. MA 02664 474 STATION AVE SOUTH YARMOUTH. MA 02664 9T 211 C29; 98,1 U !11 CAPE COD 5 CENTS SAVINGS BANK BOTSINI-STATION LLC ATTN JOAN LEARY.ACCOUNTING DEPT 45f1 STATION AVE PO BOX 10 SOUTH YARMOUTH. MA 02664 ORLEANS. NIA 02653-0010 97r 22l r ! 98- 111! ! LINEAR RETAIL YARMOUTH 41 LLC COMMONWEALTH OF MASS 5 BURLINGTON WOODS DR EXEC OFFICE OF TRANS & CONSTRU BURLINGTON-MA 01803 1 ASHBURTON PLACE BOSTON. MA 02202 97 23! C U LINEAR RETAIL YARMOUTH 93 LLC Please use this signature to certify this list of properties I BURLINGTON WOODS DR BURLINGTON_ MA 01803 abutting within 300' of the parcel located at: 473 Station Ave., South Yarmouth, MA 02664 Assessors Map 97, Lot 1 97+ 23! C2/ / Z" PAINE STEVEN B Andy Mach, Director of Assessing MANDEL GERALD & PAINE PAMELA A 474 STATION AVE UNIT C SOUTH YARMOUTH, MA 02664 971 21 K C3., PAINE STEVEN B MANDEL GERALD & PAINE PAMELA A 474 STATION AVE UNIT C SOUTH YARMOUTH.MA 02664 97/ 232' C41 LINEAR RETAIL YARN40UTH 43 LLC CIO KEYPOINT PARTNERS I BURLINGTON WOODS DR BURLINGTON, MA 01803 97! 23! C5! PAINE STEVEN B MANDEL GERALD & PAINE PAMELA A 474 STATION AVE UNIT C SOUTH YARMOUTH. MA 02664 97/ 211 C25/ 1 97/ 23/ C51 ; OSCAR TAYLORS LLC PAINE STEVEN B 23 B2 WHITES PATH SUITE S MANDEL GERALD & PAINE PAMELA A SOUTH YARMOUTH. MA 02664 474 STATION AVE UNIT C SOUTH YARMOUTH. MA 02664 97/ 211 C26/ 97- 211 C1/2 OSCAR TAYLORS LLC UNION STATION CONDOS 23 B2 WHITES PATH SUITE S CONDO MAIN SOUTH YARMOUTH. MA 02664 23 B2 WHITES PATH SUITE 5 SOUTH YARMOUTH. MA 02664 97l 21/ C27, 97/ 21I C29.'211 OSCAR TAYLORS LLC 23 B2 WHITES PATH SUITE 5 SOUTH YARMOUTH. MA 02664 971 21.1 C28' 97i 231 C U 31 OSCAR TAYLORS LLC UNION STATION CONDOS 23 B2 WHITES PATH SUITE 5 CONDO MAIN SOUTH YARNIOUTH_ MA 02664 474 STATION AVE SOUTH YARMOUTH. MA 02664 97/ 21/ C29.' 98, 111' / CAPE COD S CENTS SAVINGS BANK COMMONWEALTH OF MASS ATTN )OAN LEARY ACCOUNTING DEPT EXEC OFFICE OF TRANS & CONSTRU PO BOX 10 1 ASHBURTON PLACE ORLEANS. MA 02633-0010 BOSTON. MA 02202 97/ 221 LINEAR RETAIL YARMOUTH =] LLC S BURLINGTON WOODS DR Please use this signature to certify this list of properties BURLINGTON. MA 01803 abutting within 300' of the parcel located at: 479 Station Ave., South Yarmouth, MA 02664 Assessors Map 97, Lot 2 97/ 23/ Cli LINEAR RETAIL YARMOUTH 93 LLC I BURLINGTON WOODS DR Andy Mac da, Director of Assessing BURLINGTON_ MA 01803 971_3, C" PAINE STEVEN B MANDEL GERALD & PAINE PAMELA A 474 STATION AVE UNIT C SOUTH YARMOUTH. MA 02664 97, 231 Car PAINE STEVEN B MANDEL GERALD & PAINE PAMELA A 474 STATION AVE UNIT C SOUTH YARNMOUTH, MA 02664 97/ 231 C4i 1 LINEAR RETAIL YARMOUTH ii3 LLC CIO KEYPOINT PARTNERS l BURLINGTON WOODS DR BURLINGTON_ MA 01803 971 2L' C22i ! 971 231' C21 I OSCAR TAYLORS LLC PAINE STEVEN B 23 B2 WHITES PATH SUITE 5 MANDEL GERALD & PAINE PAMELA A SOUTH YARMOUTH. MA 02664 474 STATION AVE UNIT C SOUTH YARMOUTH, MA 02664 9T 211 C23- I 97.' 23, Car OSCAR TAYLORS LLC PAINE STEVEN B 23 B2 WHITES PATH SUITE 5 MANDEL GER.ALD & P.AINE PAMELA A SOUTH YARMOUTH, MA 02664 474 STATION AVE UNIT C SOUTH YARMOUTH. MA 02664 97i 21i C24? 97, 231 CTf I OSCAR TAYLORS LLC LINEAR RETAIL YARMOUTH r3 LLC 23 B2 WHITES PATH SUITE 5 CIO KEYPOINT PARTNERS SOUTH YARMOUTH. MA 02664 1 BURLINGTON WOODS DR BURLINGTON, MA 01803 97; 21! C251 971 23) C51 OSCAR TAYLORS LLC PAINE STEVEN B 23 B'_ WHITES PATH SUITE 5 MANDEL GERALD R PAINE PAMELA A SOUTH YAR-NIOUTH. MA 02664 474 STATION AVE UNIT C SOUTH YAR:tiIOUTH. NIA 02664 97 21' C'''6' 9T 21 Ci; 2 OSCAR TAYLORS LLC UNION STATION* CONDOS 23 B2 WHITLS PATH SUITE 5 CONDO MAIN SOUTH YARLMOUTH. MA 02664 23 B2 "1-11TES PATH SUITE 5 SOUTH YARMOUTH. MA 02664 97, _ 11 C27I 1 97. 21,C29' 2 I OSCAR TAYLORS LLC 23 B_' WHITES PATH SUITE 5 SOUTH YARMOUTH. MA 02-664 97' 21i C2& / 97, 23i C1, 31 OSCAR TAYLORS LLC UNION STATION CONDOS 23 B2 WHITES PATH SUITE 5 CONDO MAIN SOUTH YARMOUTH. MA 02664 474 STATION .AVE SOUTH YARMOUTH. MA 02664 9T 211 C'_9,' r CAPE COD 5 CENTS SAVINGS BANK ATTN LOAN LEARY ACCOUNTING DEPT PO BOX 10 Please use this signature to certify this list of properties ORLEANS. MA 02653-0010 abutting within 300' of the parcel located at: 487 Station Ave., South Yarmouth, MA 02664 97` 22 Assessors Map 97, Lot 3 LINEAR RETAIL YARMOUTH =1 LLC i BURLINGTON WOODS DR BURiINGTON. Ma 01803 Andy Ma ado, Director of Assessing 971 z31 C1! ! LINEAR RETAIL Y.ARMOUTH3 LLC I BURLINGTON' WOODS DR BURLINGTON, MA 01803 TOWN OF YARMOUTH O H - -I Board of 1146 ROUTE 28, SOUTH YARMOUTH, MASSACHUSETTS 02664-24451 Appeals a, Telephone (508) 398-2231 Ext, 1285, Fax (508) 398-0836 ABUTTERS NOTICE To: Abutters From: Sandi Clark Office Administrator Date: March 26, 2019 Subject: Petition #4801 and #4802 The Zoning Board of Appeals will hear Petition #4801 and Petition #4802 on Thursday, April 11, 2019. The hearing begins at 6 p.m. and these two Petitions are on the Agenda as second and third that evening. Please accept this as your notification as an abutter within 300 feet of these Petitions. PETITION #4801. Colbea Enterprises, LLC, 2050 Plainville Pike, Cranston, R.I. Property location: 473, 479 and 487 (portion) Station Avenue, South Yarmouth. Map & lot#: 0097.1; 0097.2 & 0097.3 (portion); Zoning District: Bl; APD & ROAD. The applicant is seeking Special Permits and Variances to develop the land at the above addresses for use as a Shell fuel service station and convenience store with co -brand business. Relief is requested under and from, respectively, §202.5 footnote J, §301.4.1 - §301.4.10; §301.8; §301.9 and §303 as necessary, for use in the B 1 Zoning District and APD and various dimensional setback and design, parking, drive-thru, landscaping, lighting, and sib provisions, per the submitted plans and materials. PETITION #4802: Colbea Enterprises, LLC, 2050 Plainville Pike, Cranston, R.I. Property location: a portion of 487 Station Avenue, South Yarmouth. Map & lot#: 0097.3 (portion); Zoning District: B 1; APD & ROAD. Companion application with Petition #4801 to amend Decisions #3453 and 43505 or in the alternative, new Variance relief under and from §203.5 and §301.4.1 as necessary to divide off 7,305 +1- sq. ft. of land at the rear of the lot. The proposal will not create any new non -conformities or impact the existing site development. If you have any questions, please contact me at (508) 398-2231 ext. 1285. If you cannot attend in person and would like to comment on this project you can e-mail me at sclarkpa yarmouth_ma.us. Your comment will be read into the minutes of the hearing. �Iy RoWn i : 0 Conceptual W Formal ❑ Binding (404 MotefsNCOD/R.O.A.D. Project) 10 Non -binding (Alt other commerciai projects) Review is by: ❑ Pi lann n� g Boat © Design Review Committee ftEsION REWiEw CommENi sHEEr 119JAN29rrH4:02 RAC Meeting Date: Januarv29,2019 Map., 97 tots: 1, 2, & 3 Applicant-, Colbea Enterprises Li_C d/b/a Seasons Corner Market done s : B1, APD ROAD Site Location: 473, 479 & 487 Station Avenue, South Yarmouth Persons Present: DCR Members Present Yarmouth Town Staff Present Guests Charlie Adams KathyWilliams AttorneyAndrew Singer Sara PvrterG Richard DeFusco, Ayoub Engineering Chris Vincent Al Micale, A oub En ineerin Andrew Delli Car ini Colbea _ --- Larry Coburn, Colbea Bob McGann, Colbea DRC Review for this DRC A@View at: 3:12 PM at: 1:35 PM 4n a motion by Chris Vincent, seconder! by Sara Porter, the Deslgn Review Committee (DRC) voted (3.0) to adjourn the January 29, 2019 DRC meefing at 3.12 PM. Project_Summary Genergi Description ' : Colbea Enterprises, LLC (d/b/a Seasons Corner Market), is proposing to construct a Seasons Corner Market conveience store with drive-thru and Shell Service Station on currently undeveloped land at 473, 479 and a portion of 487 Station Avenue. The project is located in the 131 zoning district and the Aquifer Protection District (APD). Gas Stations are a Variance In the APD. The proposal includes closing and decommissioning two existing Fuel service stations on Station Ave and replacing with the proposed new fuel service station resulting In a net decrease in the number of underground fuel storage tanks, the gallons of fuel stored and the amount of fuel related piping In the APD. The proposed building Is a 40'x 90 rectangular structure with hipped roof and cupola. The gas canopy is a 24'xl52' flat roofed canopy covering six pump with Shell brand yellow and red banding. Summary of Presentation; Attorney Singer gave a brief presentation on the proposed project as outline above, noting some of the benefits of the project and the overall presentation format. Andrew Delli Carpini gave an overview of the project including some changes that were made based on comments from an informal meeting with Town Staff. He gave an overview of his business and partnership with Shell gas station. He noted a similar facility was recently completed in Dennis, He owns the Shell Station on Station Avenue now, which has limited amenities that most customers are now looking for. This facility is being leased by someone else. Colbea would be owning and operating the proposed facility. He noted that curb appeal is Important to them including landscaping, Like to stay consistent with design for brand recognition. Richard DeFusco gave an overview of the landscaping plan, He noted the 4" caliper trees in the buffer areas which are circled in red on the plan, Some trees may need pruning, or conflicts due to grading. There are some conflicts In the front. He Is planning to tag trees to remain in the field. Kathy Williams noted that some buffer trees can be removed for sound landscaping reasons as part of Site Plan Review, Mr. DeFusco gave an overview of the plants proposed. Added additional trees where needed in the buffer areas with a mixture of deciduous and coniferous trees with a variety of blooming seasonal plants and perennials, The planting areas will be irrigated. Kathy Williams mentioned the need for native plant species. Alan Micale noted that the photometric plan is being revised by the lighting designer to meet the bylaw. Mr. Dell! Carpini discussed the need for additional parking for changing of staff, so have more parking than required by zoning so as not inconvenience their customers. Will be co -branding with another company. DRC Questions & Discussions: Charlie Adams asked about the location of the first store. Mr. Delli Carpini indicated Hope Street in Providence was their first facility. They have 115 facilities now. Charlie Adams asked about traffic. Attorney Singer noted there was better access to this site with third turning lane. Charlie Adams asked about people just sitting at the pump when going inside the store. Mr. Delli Carpini noted that 50% of people that buy fuel go into the store. Try to speed up the process to have two cashier stations to keep people moving. If go to co -brander, may take a little bit longer. Additional parking may help to avoid this, Have the layout of the fueVpumps to reduce conflicts and increase circulation, Attorney Singer noted there would be a net reduction in the number of pumps in the area. Mr. Micale noted the fuel tanks will be safer, double walled, control center In the building, far superior system. The site will also have a state of the art stormwater treatment system. Sara Porter asked about the two other sites. Attorney Singer noted that the fuel tanks and pumps are being removed, but no proposal to redevelop those sites. Kathy Williams suggested if the other stations are part of the argument for getting the required Variances, some improvements at the other sites may be beneficial in the ZBA application, Charlie Adams noted the Shelf station has a Stop & Shop loyalty cards. Mr. Delli Carpini noted they will continue with the loyalty program at the new station. Also have control over the store, so have additional discounts on gas. Sara Porter noted the length of the building. If same as Dennis, then she has no issue with the building. Sara has no issue with the canopy as proposed. Charlie Adams asked about the dumpster and enclosure. Trex material will hide the dumpsters which was acceptable, Charlie feels the canopy is in line with their type of facility and have no problems with it and it is pretty standard. Like to see containers for trash near the pumps. Chris Vincent has no problem with the canopy. What happens to the other buildings should be given some consideration. Some smaller upgrades to clean up the site with buffer plantings. Mr. Dell! Carpini noted the comments and wilf look into it. Sara asked about the height of the canopy. Mr. Dell! Carpini noted the fuel tanks need about 14' plus fire suppression system. The proposed plan shows a 16clearance. Review Comments In Relation To The Design Standards SITING STRATEGIES Sect. 1 Streetsca e © NIA E Meets Standards, or 0 Discrepancies: Add additional landscaping In the center island without blocking site distances, Sect. 2, Tenant Spaces IR NIA ❑ Meets Standards, or ❑ Discrepancies: Sect. 3, Define Street Edge © NIA 21 Meets Standards, or © Discrepancies: The streetscape is being defined with landscaping as the building is setback from the road. See comments for Section f above. Sect,_4, Shield Large Buildings R NIA 11 Meets Standards, or ❑ Discrepancies: Sect, 5. QoEWn_a 2"d Stork 19 NIA ❑ Meets Standards, or © Discrepancies: Sect. $ Use ToPo to Screen New Development IF NIA ❑ Meets Standards, or 0 Discrepancies: Sect, 7 Landscape Buffers/Screening ❑ NIA 0 Meets Standards, or ❑ Discrepancies: A 20' vegetated buffer Is shown along Station Avenue and 10' along the remaining property boundaries. Buffer trees of 4" diameter and larger are shown to remain. Many trees to remain are very close to construction activity and need to be protected during construction if they are to remain. Supplemental plantings may be required to replace dead trees or replace damaged trees identified as remaining. Sect. S. Parking Lot Visibility El NIA R Meets Standards, or ❑ Discrepancies. Buffer plantings are adequately hiding the parking areas. Sect. 9 Break up Large Parking Lots ❑ N/A Z Meets Standards, or ❑ Discrepancies: There are three separate separate parking areas with buffer screening. Sect. 10 Locate Utilities Underground 0 NIA 0 Meets Standards, or ❑ Discrepancies: Sect, 11 Shield Loading Areas ❑ NIA N Meets Standards, or D Discrepancies: BUILDING STRATEGIES Sect. 1, Break Down Building Mass - Multiple Bldgs 19 NIA ❑ Meets Standards, or ❑ Discrepancies: The building is less than 5,000 square feet in overall size Sect. 2, Break Down Building Mass — Sub -Masses E NIA Cl Meets Standards, or ❑ Discrepancies: Sect, 3 Va Fa ade Lines E7 NIA ❑ Meets Standards, or 0 Discrepancies: The Building is a rectangle without building setbacks or modulations of 5' every 5D', The DRC felt It wasn't necessary due to the location of the building and variety of materials. There is also a flat roofed canopy over the main entrance. Sect. 4 VaN Wail Heights ❑ NIA 0 Meets Standards, or Q Discrepancies: Wall heights have some variation with the arch for the Seasons wall sign on the south side of the front facade, Sect. 6 Vary Roof Unes ❑ N/A © Meats Standards, or 0 Discrepancies: The Building has a hip roof and cupola which helps to add interest and change up the roof lines, The Gas Pump Canopy has a flat roof, with no variations in roof lines, but the DRC felt It was appropriate for the site and use. Sect, to Bring Down Buildin Et# es ❑ N/A 0 Meets Standards, or n Discrepancies: There is a canopy over the main entrance. Sect. 7 Van/ Build!n_Q Mads For Depth ❑ N/A 21 Meets Standards, or O Discrepancies; Sect. 8 Use-Iraditional & Nat'l Building Mat'is ©N/A Z Meets Standards, or ❑ Discrepancies: Sect. 9, Incorporate Pedestrlan-scaled Features I] NIA ❑ Meets Standards, or ❑ Discrepancies: Sect. 10. Incorporate Priergy-efficient Design ❑ N/A M Meats Standards, or ❑ Discrepancies: Next step for applicant. 0 Go to Site Plan Review ❑ Return to Design Review for Formal Review On a motion by Sara Porter, seconded by Charlie Adams, the Design Review Committee (DRC) voted (3-0) to approve these DRC Comments as meeting minutes for January 29, 2019 for the proposed Seasons Convenience Store and Shell Gas Station at 473, 479 & 487 Station Avenue. Received by Applicant(s) ATTACHMENT'S: • January 29, 2019 Agenda • January 25, 2019 a -mail from Kathy Williams, Town Planner • January 29, 2019 e-mail from Dick Martin, DRC Chairman • Aerial Photos: 473/4791487 Station Ave, 446 Station Ave - Shell Station and 433 Station Ave - Sunoco Station, • DRC Application: o Design Review Application form and Materials Specification Sheet o Environmental Analysis Memorandum, dated 12114/18 o Photos of Two Materials Board for Seasons Corner Store o Plans: All plans prepared by Ayoub Engineering, dated 1/18/19, unless otherwise noted: • Title Sheet • Boundary & Topographic Survey, prepared by Control Point Associates, dated 11/28/18, revised 12/7/18 • C-1 - Site Improvement Plan • C-2 - Site Grading Plan • C-3 -Site Utility Plan • L-1 - Site Landscape Plan • Title 5 Site Plan, prepared by Down Cape Engineering, dated January 16, 2019 • Lighting Proposal Plan, prepared by LSI, dated 12/20/18 • SG-2 - Proposed Signage Plan and Canopy Elevations • A1.0 - Basement Floor Plan • A1.1 - Main Level Floor Plan • A2.0 - Exterior Elevations (front) • A2.1 - Exterior Elevations (sides) • A2.2 - Exterior Elevations (rear) Supplemental Materials distributed at the DRC Meeting o Plant List o Plans: All plans prepared by Ayoub Engineering, dated 1i18119 L-2 — Proposed Landscape Plants !_-3 — Bloretentlon Area Plants L.-4 — Existing Buffer Trees Formal—X _.Informal_ --Review SITE PLAN REVIEW COMMENT SHEET New Map: 97 New Lot: 1, 2 & 3 Location: 473, 479 & 487 Station Ave., South Yarmouth Zone: 13-1, APD & ROAD Persons Present: KathyWilliams Bruce Murphy Andrew Sin er Kelly Grant Carl Lawson Andrew Dell! Car ini` Dick Martin Ca t Kevin Huck Randy Hart Tim Sears Lt. Scott Smith Eric Simpson Nick A uiar Rich Defusco Al Micale Robert McGann Dennis Darveau Kyle Pedicini Larry Coburn Project Summary Applicant is proposing to construct a Seasons Corner Market convenience store with drive-thru and Shell fuel service station. The proposal includes closing and decommissioning two old fuel service stations located within one -quarter mile of the property, Comments Building: Project is located in the B-1 & APD overlay zoning district. If the proposed plans are to remain as presented, applicant will need relief from the ZBA in at least these areas: Use — B-1 SP APD -- Variance Site — In lot trees — Variance — 301.4.6 Front Buffer tree — Review, appears to be missing a tree. Variance — Please identify existing trees to remain. Canopy structure located in the required 75' setback - Variance — 203.5 (note J) Parking in the front of the building — Variance - Parking numbers miscalculated 1 per 60 sq. ft. not 30 sq. ft, Curb cut width — Variance — 301.4.3 Photometric plan -- Variance — 301.4.10 Show stacking lane dimensions — if 10 vehicles do not fit in stacking lane — Variance — (approx.. 20' per vehicle) Show snow storage. Center line of Driveway < 250' — Variance — 301.4.7 Si na e — Apparently not ready to be presented. Too many issues to list, variance for the majority of the signage and number of them. Recommend sign designer review bylaw section 303.3 No indication or details on the restoration of the two existing gas station lots impacted by this proposal. Review relief granted to 487 Station Ave. to allow parking in front. Does land purchase from abutter affect prior decision? All applicable sections of 780 CMR and 521 CMR will apply. Will expect the opportunity to review plan and or revisions with applicant's attorney before final filing with ZBA. Community Development and Planning: 1. Canopy: Although the Design Review Committee (DRC) had no issues with the aesthetics of the gas pump canopy as proposed, the Planning Division respectfully disagrees. The canopy is 24'xi 52' with a flat roof and an illuminated Shell brand yellow and red banding (similar to the one recently constructed in Dennis on Route 134). This type of canopy is out of context with Yarmouth and what has been provided at other newer gas stations in Town. The canopy is located in front of the building within the front yard setback and is the dominant structure on the site. As such, the aesthetics of the canopy should be improved and would greatly benefit the overall appearance of the site and improve the view from the nearby Cape Cod Rail Trail bridge. The canopy could have a shallow pitched shingle roof, hip roof, or flat roof with decorative cornice, and the support columns could include more substantial columns and/or bases. See attached examples of other Gas Station Canopies in Yarmouth. 2. Existing Gas Station Sites (446 & 433 Station Ave): No information has been provided about how the two existing gas station sites will be restored or utilized once the fuel tanks/piping/pumps are removed. If removal of the tanks at these two sites are part of the proposed project, more details are needed on the restoration of these sites and inclusion of site improvements such as buffer plantings and curb cut reductions. See the attached Concept Plan for 446 Station Avenue, dated 2/4119 for an example of minimum improvements that could be done at this site, which is also owned by the Applicant. 3. Signage: Signage is out of context with the area, and the free-standing sign significantly exceeds allowed area and height limitations. The sign also includes LED gas pricing which is currently not allowed, although the Planning Board is considering a zoning amendment to allow LED for gas pricing only on free-standing signs. 4. Photometric Plan and Lighting: Per Section 301,4.10, lighting at the property lines cannot exceed 0,1 footcandles for commercial projects, except at driveway entrances where is may be 0.5 footcandles. The photometric plan shows that this is exceeded with the site lighting and the four bollards shown along Station Avenue. The under canopy lighting is at 52 footcandles which is excessive and contributes to glare. Lighting standards indicate 15 footcandles for gas station canopies. 5, Suffers and Landscaping: Buffer trees of 4" diameter and larger are shown to remain. Many trees to remain are very close to construction activity and need to be protected during construction. Applicant needs to identify the type of trees remaining to get an understanding of the overall landscape plan. Landscaping needs to meet Section 301.9 regarding plant species. An additional buffer tree and plantings should be provided in the center island. 6. Parking & In -Lot Trees: Sixteen (16) spaces are shown to be required with 28 being provided, in addition to those individuals who will remain parked at the pump while going into the store. This seems excessive and results in more parking in the front and more pavement. No in -lot trees are proposed in the parking area, although 4 would be required for the proposed 28 parking spaces. 7. ANR: ANR Plan with the Planning Board required to transfer dog leg portion of 487 Station Ave. Confirm zoning compliance per ZBA Decision, and septic compliance, with reduced lot size. Conservation: No Wetlands Protection Act jurisdiction. Development is over one acre so Town Stormwater bylaw regulations apply unless all runoff is demonstrated to be retained onsite and/or M54 is not connected to a wetland. The extensive clearing of a well vegetated lot will change the drainage characteristics of the site during and post construction. A construction -period erosion control plan should be submitted to the Engineering Division prior to construction for review. Design Review: Refer to the attached January 29, 2019 Design Review Committee Comments. In addition Dick Martin attended site plan review and had additional comments and concerns, He feels the possibility of entertaining a single curb cut should be investigated, the retention gullies be located outside any buffer to maintain the 10 and 20 foot setbacks with existing trees, that a more attractive canopy with pitch and shingles and no signage be seriously considered, that the sign bylaws be adhered to, that the required in lot trees be added (plenty of extra parking provided would allow this) and the existing buffer trees be retained everywhere possible. f Pump LED light are also considered excessively bright. Engineering: eering: Signage for accessible spaces shall comply with 521 CMR 23.6. Posts and poles for mounting exterior lighting shall not exceed 20' in height. Electric service for external lighting shall be located underground. A traffic impact study is recommended to assess the impact of the proposed development on Station Avenue. Verify that 10 stacking spaces are provided for the proposed drive-thru service window per Zoning Bylaw Section 301.8. Snow storage accommodations must be shown on the site plan. Review spot elevation of 58.12' at the bottom left corner of the concrete paved parking area as it may create ponding within the area. Review the invert elevation for DI #1 as it is below the inlet invert of OS #1. A construction -period erosion control plan, along with detail drawings related to the installation of the selected erosion control measures, must be submitted to the Engineering Division prior to construction for review. Include a provision within the proposed operation and maintenance plan requiring the maintenance of records which document compliance. Include provisions within the proposed operation and maintenance plan which outline the appropriate procedures for conducting winter weather operations (snow storage, deicing, etc.) so as not to compromise the functionality of the stormwater management system, The inflow area utilized for Bioretention Area #1 within the HydroCAD calculations does not account for the pervious area which drains directly into Bloretention Area #1 (4,642 ft.z). Revise all dependent calculations and reevaluate the adequacy of the proposed design. The nodal area listing also does not reflect the .r appropriate value of pervious space which needs to be considered. Fire: Fire Department Access, YFD will provide vehicle sweeps for access. Sprinkler system may be needed pending final plans. Yarmouth Fire Department supports the application, subject to applicable submissions, permits and inspection. �I Review other tanks at both existing stations (underground waste oil and fuel)- tanks currently in non- compliance. Health Dept. will work with water dept. in review of LSP environmental review. Sewage nitrogen loading calculations must be submitted, any additional land must be reviewed. No seats in proposed Food area, submit food area layout and equipment list. Tobacco license will be needed, from another store, based on Dept, �... tobacco cap. Detailed septic system plan must be submitted. Water: Irrigation systems require the use of an appropriate backilow prevention device. Water service lines are to be made of poly plastic with a diameter of 1" for lengths less than 125', and a diameter of 2" for lengths greater than, or equal to, 125'. It is recommended that the applicant utilize the existing 6" stub (terminates at main with valve cluster) for establishing a domestic connection. A meter pit within the proposed island would be required along with sleeving of the service line. Read & Received by Applicant(s) Law Office of Singer & Singer, LLC 26 Upper County Road P. O. Box 67 Dennisport, Massachusetts 02639 Andrew L. Singer Tel: (508) 398-2221 Fax: (508) 398-1568 Myer R. Singer Of Counse] www.singer-law_com Yarmouth Board of Appeals Petition #4801 SPECIAL PERMIT AND VARIANCE APPLICATION SUMMARY OF REASONING Colbea Enterprises, L.L.C. ["Applicant"I is proposing to develop the vacant land at 473, 479, and 487 (portion) Station Avenue, South Yarmouth [collectively "Property"], for use as a Shell fuel service station and Seasons Corner Market convenience store with co -brand business [collectively "Proposal"]. The proposed building will be one-story in height and contain 3,600 sq. ft, of first -floor area and a basement for storage. The Property, which is located in the B I Zoning District and the Aquifer Protection District ["APD"], is shown as Assessor's Map 97, Parcels 1, 2, and a portion of Parcel 3. The current owners of the Property are Jeanne L. Luby and Karen J. Luby-Drew and Station Avenue LLC, respectively. A companion application (Petition 44802) has also been filed in connection with dividing the property at 487 Station Avenue (a small piece which is included in the Proposal) and seeking continued authorization to use the remaining land as it is commercially developed at the adjacent site (Today Real Estate). Proposed Development and Environmental Benefits. The Proposal includes closing and decommissioning two old, outdated fuel service stations (Shell and Sunoco) located within one -quarter mile of the new site also on Station Avenue and replacement with the new state -of -art fuel service station (Shell). There will be a net decrease in the risk to the APD as follows: 1) the number of underground fuel storage tanks will be reduced, 2) the number of gallons of fuel stored will be reduced, and 3) the length of fuel -related piping will be reduced. The threat of environmental impact to the aquifer will be dramatically reduced with the Proposal_ While the Proposal on one hand is a straightforward commercial development, it actually offers a rare opportunity to upgrade and better protect both the business and natural environment along and in this portion of Station Avenue. It is business development coupled with environmental protection. The Applicant has been working closely with officials from several Town of Yarmouth Departments on the proposed development, including meetings with the Building Commissioner as well as the Health Director and Hazardous Waste Inspector, among others. Design Review and Site Plan Review have been completed. Peer review as requested by the Health, DPW, and Water Departments has been completed and reviewed by the Town's independent water consultant. Review of the Proposal with the Board of Health to provide comments to the Board of Appeals and on a proposed Nitrogen Aggregation Plan and seeking to utilize the Town's new Disposition of Town Owned Real Property Policy (see below For further discussion) are in progress. Approval of the lot division by the Planning Board and issuance of a fuel storage permit from the Board of Selectmen will subsequently be required as well. As a rare opportunity in the APD, there are many parts necessary to bring the desired win -win - win -win (Environment/APD-Town-B I Zoning District -Applicant) to fruition. Some of these are outlined above. From the Board of Appeal's perspective, this means that the Proposal requires not only a special permit, but also a number of zoning variances. None of this is surprising given the complexity and promise of the Proposal, and for the reasons discussed in this Summary of Reasoning, the Applicant respectfully submits that the requested relief is warranted in this case. In connection with the requested and required relief, the Applicant has submitted numerous materials, including without limitation an Environmental Analysis Memorandum, documenting the benefits of and reduction in environmental risk to water quality and thus the enhancement of environmental protection associated with the Proposal. The above will be accomplished by permanently closing two older fuel service facilities with an average age of forty (40) years located within one quarter mile of the Property and replacing them with 2 one new state-of-the-art facility with fewer underground tanks, less underground piping, modern leak detection with sensors and alarms, and a decreased volume of underground fuel storage, all as follows: I . There will be a significant net reduction of 16,000 gallons of fuel storage in the APD as seven (7) underground tanks, six (6) dispensers, and 56,000 gallons of underground fuel storage at the two existing facilities are replaced with only two (2) underground tanks, six (6) dispensers, and 40,000 gallons of storage; 2. Two, older fuel service stations will be replaced with one, state-of-the-art site incorporating significant improvements in design and containment protocols for underground fuel storage with an automatic and continuous leak detection system in double -wall underground storage tanks and double -wall piping complete with probes, sensors, and alarms. In addition, the properties containing the existing gas stations will be permanently deed restricted prohibiting future fuel service use; 3. There will be an estimated reduction of forty-five (45) to fifty (50) linear feet of underground fuel -product piping when the aging piping at the two existing sites is removed and replaced with new, higher -standard piping at the new site; 4. A safer, double -wall tank system with leak detection using brine in the interstitial space will be installed at the new site in place of the seven older underground fuel storage tanks (a mixture of single and double-wallcd tanks) located at 446 Station Avenue (Shell Station) and 433 Station Avenue (Sunoco Station) — the latter to all be removed and not replaced; and An older, underground heating oil tank at the Sunoco Station and older, underground heating and waste oil tanks at the Shell Station will also be removed and replaced with above -ground tanks at the respective properties. Peer Review. The peer review report dated March 8, 2019, by CarriageHouse Consulting, Inc., concludes that: "...the proposed actions and activities proposed by Colbea in this project appear to yield a net benefit to the Town in the form of potential increased revenue in the form of taxes and in the redevelopment opportunity for existing non -confirming parcels, while concurrently reducing the potential risk to Town receptors and resources (i.e., the APD)." The Town's outside water consultant, Kleinfelder, reviewed the Proposal and the peer reviewer's report. In an email dated March 20, 2019, Kirsten Ryan of Kleinfelder states that "I agree the risk to the aquifer is less than current conditions in that the proposed project would store less fuel, slightly farther away and with newer equipment technology." She recommends four conditions be placed on the proposal as set forth in her email. The Applicant has no objection to these conditions. Nitrogen Aggregation Plan. The proposed development in the APD requires the creation of a Nitrogen Aggregation Plan with the approval of the Board of Health. In a Nitrogen Aggregation Plan, the land to be developcd is designated the Facility Land and off -site land to be permanently protected as undeveloped open space is designated the Credit Land. The more sensitive Credit Land is preserved in order to allow the more appropriately -zoned Facility Land to be developed. The Credit Land for the Proposal will be approximately 50,000 sq. ft. of area. This land will be permanently protected as undeveloped open space. The Applicant has filed applications in accordance with the Yarmouth Disposition of Town Owned Real Property Policy to seek to purchase at public auction foreclosed land owned by the Town of Yarmouth to be designated as the Credit Land in connection with the development of the new site. This process is underway and its successful completion is requested to be a condition of Board approval. Zoning Relief. As befits a project with this level of complexity and promise, the individual components of the proposed use of the site are permitted, allowed by special permit, and require a variance in the B 1 Zoning District and APD, respectively, as follows: 4 • Permitted — H3 (Food Store) in B 1 Zoning District and APD and H10 (Eating and and Drinking Establishment) in B1 Zoning District; • Special Permit — H6 (Motor Vehicle Fuel and Service) in B l Zoning District (no service proposed) and H 10 (Eating and Drinking Establishment) in APD; and • Variance — H6 (Motor Vehicle Fuel and Service) in APD (no service proposed). SQecial Permit. For those aspects of the Proposal that require a special permit, the Applicant is requesting such relief in accordance with Sections 103.2 and 202.5 of the Yarmouth Zoning By -Law ("Zoning By -Law"]. The Board of Appeals is authorized to grant such special permit upon a finding that the proposed development will not create any undue nuisance, hazard or congestion and that there will be no substantial harm to the established or Future character of the neighborhood or Town, The purpose of the APD as set forth in Section 406 of the Zoning By -Law is "...to protect the public drinking water supply in Yarmouth from the effects of high density land development and from potentially hazardous materials associated with specific land uses." Additional requirements for the granting of a special permit in the APD are set forth in Sections 406.5.3 and 406.55 of the Zoning By -Law. The Applicant respectfully submits that the Proposal (including the decommissioning and deed - restricting of the two old nearby gas stations) will comply with all of the special permit criteria, will not create any undue nuisance, hazard or congestion, will result a significant decrease in threat of harm to the public drinking water supply, and will thus result in a substantial benefit and improvement to the neighborhood, the Town, and the environment because: The existing old Shell and Sunoco gas stations to be decommissioned are outdated with older underground storage tanks and less monitoring and protections than modern fuel service operations employ. Eliminating these two gas stations and permanently deed restricting the respective parcels from future fuel service use provides a significant boost to environmental protection and reduction in risk to the aquifer; 2. The new fuel service station will not only be a modern, state-of-the-art facility, but it will also store 16,000 fewer gallons of fuel than the two existing gas stations combined (56,000 gallons existing; 40,000 gallons proposed); 3. The Proposal has been designed and is intended to complement the B I Commercial District along Station Avenue. Both the Yarmouth Design Review Committee and the Site Plan Review Committee have reviewed the Proposal. The Design Review Committee voted 3-0 in favor finding that the proposed design of the building, canopy, and development are appropriate for the site and use and satisfy the reviewed design guidelines; 4. VHB has completed a Traffic Impact and Access Study of the Proposal ["TIAS" ). The TIAS evaluated existing traffic operations and safety, assessed future conditions along Station Avenue both with and without the Proposal, and estimated projected traffic volumes for the Proposal and its potential impact on future traffic operations in the area. VHB concludes that the available stopping and intersection sight distance exceeds minimum requirements and that the Proposal is expected to have only minor impacts on local traffic operations; 5. An extensive Iandscaping package is proposed, including additional vegetative screening of the fenced dumpster from the adjacent property to the north; 6. Site lighting will be down -lit and appropriate for the Station Avenue commercial zone; 7. Building and lot coverage will each be conforming; 8. All stormwater runoff will be contained and infiltrated on site, and there will be no negative impact to drainage, septic flow or stormwater; 9. The Applicant has reached out to the abutters to the Property and those across the street to discuss the Proposal and will continue to work with them in order to be a good neighbor to the neighborhood and community; and 0 10. The development of the Property in conjunction with the environmental improvements to the two off -site locations now (and the possibility of future redevelopment of each as ultimately permitted by the Town of Yarmouth) will improve and enhance the economic viability of the entire commercial zone and be an asset to the character of the neighborhood and Town. Variance. For those aspects of the Proposal that require a variance, the Applicant is requesting such relief as discussed below in accordance with Section 102.2.2 of the Zoning By -Law and M.G.L. Chapter 40A, Section I0. The Board is authorized to grant variances where the Board finds that a literal enforcement of the Zoning By -Law would involve substantial financial or practical hardship to the Petitioner, that the hardship is owing to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affecting such land or structures, but not affecting generally the zoning district, and 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 use variance that is required as noted above is to include motor vehicle fuel use (no service) at the site in the APD (Section 202.5) that is otherwise be allowed by special permit in the B I Zoning District. Dimensionally, while the building itself will comply with all setbacks, the canopy for the fuel service use will not and there will also be parking in front of the building. The Board has reviewed similar requests in the past that arise along this section of Station Avenue in which the minimum front setback is seventy-five feet (Section 203.5, Footnote J) while at the same time parking cannot be in front of a building (Section 301.4.1). The other dimensional variance relief that is being requested to meet the special circumstances of the site, and which the Applicant and its consultants look forward to discussing with the Board in greater detail at the hearing, include: 1. Curb cut width (30 ft. provided) (Section 301.4.3); 2. Centerline of 7 southerly on -site driveway less than 250 ft. from northerly on -site driveway and shopping center driveway across the street (Section 301.4.7); 3. In -lot trees and plant species (Sections 301.4.6 and 301.9); 4. Front buffer tree (Section 301.4.9); 5. Photometrics (to the extent necessary) (Section 301.4.10); and 6. Drive- thru stacking lane (eight cars shown) (Section 301.8). In addition, the following sign variance relief is requested: 1. Section 303.5.2 — directional signage, including "Do Not Enter" and "Trucks with Trailers to Outside of Pumps" (size); 2. Section 303.5.4.1 — freestanding sign (face area square footage and LED price panel); 3. Section 303.5.5.2 -- attached signs (height for Seasons, co -brand, and canopy pecten; and total number for Seasons, Corner Market, Co -Brand, Welcome, and Canopy Pectens); 4. Section 303 -- Under canopy lighting — foot candles, to the extent necessary; 5. Section 303 — Two upward lights at Corner Market sign; and 6. Section 303 — Drive-thru/Menu Board, Pump toppers with 12 LED prices; Video Screens on pumps; and Advertising above dispensers. The Applicant respectfully submits that the variance criteria are met in this broad proposal. A literal enforcement of the Zoning By -Law provisions will effectively prohibit the environmental upgrade to the APD and the business upgrade to the commercial zoning district that will be accomplished with the Proposal. Most of the Zoning By -Law provisions are met, but not all. There is no practical way to build a modern gas station/convenience store business in the BI Commercial District on the Property and meet all of the requirements given existing zoning limitations for setbacks, parking, access, etc. In a vacuum, this might not in itself necessarily justify the granting of the variance relief (though the Board has granted variances from some of these provisions in the past in recognition of unique development constraints). But the Proposal does not exist in a vacuum, and it does not introduce a new prohibited use into the APD. On the contrary, the Proposal reduces and relocates such uses from two older, nearby sites. Looking at the broader aspects of the Proposal, the existing older gas station properties do not have the shape or size to allow the pre-existing nonconforming uses and site designs to be practically redeveloped and upgraded in the APD to achieve the environmental and business improvements that the Proposal will bring. Not achieving all of the above would not only be a substantial financial and practical hardship to the Applicant and Property Owner, but also a substantial practical hardship to the neighborhood and Town and the environment. A principal goal is to reduce the existing risk the Town's drinking water supply in an economically -feasible manner for the Applicant. These hardships are directly related to the soil conditions/topography (water -sensitive natural formations) and shape of the land and structures involved (including those of the other gas station sites). The location in the APD requires an entirely separate set of criteria to be met than the same proposed development would require if only in the B 1 Commercial Zone. Protection of the special soils and aquifer status of the land is key in this instance. In addition, even with the larger area that makes up the Property, the severe restrictions impacting the development of the parcel (which is being enlarged as much as possible to provide a more suitable shape to mitigate against additional relief being required) present another hardship. For all of the reasons set forth above in the special permit discussion and in the environmental materials submitted with the application, including without limitation, the Environmental Analysis Memo, the Peer Review Report, and the Town's Water Consultant Review, the Proposal and the relief requested 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 Design Review Committee has voted to find that the proposed design is appropriate for the site and the commercial zone. The peer reviewer and the Town's water consultant agree that environmental risk will decrease. The Traffic Study demonstrates that the proposal will be safe and will operate with only minor impacts in what is a central business district. This commercially -zoned parcel is well situated for the Proposal. For all of the above reasons, the Applicant respectfully requests that the Board of Appeals make findings that the proposal satisfies the special permit and variance requirements set forth in the Zoning By - Law and grant the requested relief to allow the development of the Property, including the decommissioning of the nearby old gas station properties, all as shown on the submitted plans and as set forth above. 9 Andrew L. Singer Myer R. Singer Of Counsel Law Office of Singer & Singer, LLC 26 Upper County Road P. O. Box 67 Dennisport, Massachusetts 02639 SUPPLEMENTAL MEMORANDUM To: Yarmouth Board of Appeals From: Andrew L. Singer Date: June 24, 2019 Re: Proposed Seasons Corner Market(ShelI Station (Appeals #4801 and #4802) 473, 479, and 487 (portion) Station Avenue, South Yarmouth, MA Introduction Tel: (508) 398-2221 Fax: (508) 398-1568 www.singer-law.com Based on the discussion with and questions raised by Board members at the meeting on May 9, 2019, the Applicant proposes the following modifications to and additional mitigation in connection with the proposal. As noted at the previous meeting and in the submitted materials, the proposal is a unique opportunity to achieve significant improvements over existing conditions along this stretch of Station Avenue, both for the present and the future. Proposal Existing Shell and Sunoco Fuel Service Stations. In addition to closing and decommissioning the fuel service operations at both properties, including removal of all underground tanks at the two sites in connection with the development of the new location, the Applicant, for itself in connection with the Shell Station property and also on behalf of the owner of the Sunoco Station property, proposes as a condition of approval that the remaining pre-existing nonconforming hazardous materials uses at the two sites will be eliminated no Iater than forty-eight (48) months after the new location opens for business. 2. Existing Shell Station Property. As part of the development of the new site and in conjunction with removing the pumps and underground tanks, the Applicant proposes to improve the aesthetics of this property as shown on the submitted site sketch plan as an interim step towards ultimate future redevelopment. This work includes substantially extending and expanding the front buffer and planting additional trees and vegetation. In -Lot Trees. Two in -lot trees have been provided in the islands at either end of the parking spaces along the front of the building (four are otherwise required). 4. Drive-Thru Stacking. The plans have been revised to show the full ten (10) stacking requirement set forth in the Zoning By -Law. In order to not conflict with the three parking spaces along the northern property line closest to the drive-thru lane, the Applicant proposes to restrict these to employee use only. Traffic Study. VHB has completed the updated Traffic Impact and Access Study and has reviewed this document with transportation staff at the Cape Cod Commission as requested. Steven Tupper, transportation planner with the Commission, will attend the continued hearing. 6. Stormwater Retention. A Stormwater Operations and Maintenance Plan has been submitted detailing the design and operational controls on the stormwater system to be installed at the new location. Lighting. We have confirmed with the Building Commissioner that lighting relief is required only for driveway and perimeter lighting as set forth below. The rationale for the relief requested is as follows: a. Driveway lighting is limited to 0.5 foot candles in the Zoning By -Law. In consultation with its lighting consultants and based on industry standards, the proposal calls for 1.6 and 1.7 foot candles, respectively. These are the lowest levels recommended by the lighting manufacturers. Given the commercial nature of the Station Avenue location and the need for safe and efficient lighting for access to and from the street, the Applicant respectfully submits that these levels will not result in any negative impacts; and b. Perimeter lighting is limited to a maximum limit of 0.1 foot candles at the property boundaries in the Zoning By -Law. In consultation with its lighting consultants and based on industry standards, the proposal calls for 0.7 foot candles. As with the driveway lighting, the Applicant respectfully submits that given the commercial nature of the Station Avenue location and in order to provide safe and efficient lighting, the proposed level will achieve this result with no negative impacts. The Applicant is attempting to be respectful to the neighborhood and Town and provide safe Iighting, while complying as much as feasible with applicable regulations. For example, while the lighting at the Applicant's South Dennis store is fifty-two and six - tenths (52.6) foot candles in the middle of the site, the proposal calls for only twenty-nine and four -tenths (29.4) foot candles in the middle of the site, an almost 45% reduction in site lighting form South Dennis. In addition and by way of comparison, the proposed lighting will also be less than the existing similar lighting at the Mobil Station up the street which is thirty-nine and a half (35.9) foot candles. The proposed lighting level will also be less than that at the Cape Farms Market property on Route 28 in West Yarmouth. The lighting as proposed will result in safe conditions for the patrons as well as the employees who need to monitor activity at the site and operation of the fuel pumps. 8. Signs. The Applicant met again with the Building Commissioner to determine what sign relief continues to be required as a result of recent changes to the Yarmouth sign code regulations. In addition, the original request for sign relief was overly conservative at that time. The list (see separate attachment) has now been refined to reduce that which is being requested. The Yarmouth Site Plan Review Team submitted a Site Plan Review Comment Sheet dated February 5, 2019. The Yarmouth Design Review Committee submitted a Design Review Comment Sheet dated January 29, 2019. gn Robert Chamberlain spoke in favor of the Petition. Station Avenue, LLC, the abutter to the north. submitted a letter in support of the Petition. Dr. Warren Woods, the abutter to the west, and James Veara, on behalf of Davenport Realty Trust, a nearby property- owner across Workshop Road; spoke and submitted letters and emails in opposition to the Petition. The Board opened the hearing on the Proposal on May 9, 2019, which was continued for testimony on June 27, 2019. and August 8, 2019. The hearing was closed on August 8, 2019, The Applicant submitted the following materials in connection with the Petition: Application with attached Narrative Memorandum, prepared by Law Office of Singer & Singer, LLC; 2. Surnma" of Reasoning. Supplemental Memorandum dated June 24, 2019, and Supplemental Memorandum dated August I. 2019, including four court Massachusetts Court Cases dealing Nvith variance relief. all prepared by La" Office of Singer & Singer, LLC; 3. Revised Relief Request List. dated June 21, 2019, and further revised dated August 1, 2019; 4. Environmental Analysis Memorandum, prepared by Ayoub Engineering, dated December 14, 2018, with Specification Sheets. �. Environmental Peer Review Report. prepared by Carriagellousing Consulting. dated March 8, 2019: 6. Review of the Environmental Peer Review Report. prepared by Kleinfelder, the Town's Outside Water Consultant, dated March 20. 2019: 7. Draft F,mergency Spill Response Plan; 8. Draft Deed Restrictions for the existing Shell and Sunoco Station properties, respectively; 9. Stormwater Report, prepared by Ayoub Engineering. dated January- 30, 2019, and revised March 13, 2019, and April 4. 2019; 10. Traffic Impact and Access Study, prepared by VHB, dated March 11. 2019, and revised June 18, 2019, and supplemented with an Access Alternatives Memorandum. dated July 18. 2019: 11. Site, Landscaping, and Architectural Plan Set, prepared by Ayoub Engineering, dated January 18. 2019, and March 13,2019, respectively, and last revised July 31, 2019. including Sheets C-1-C-3, L-1, Er-1, SG-2, and A1.0-A2.2 (total of 14 sheets with cover sheet, septic, and survey); 12. Truck Turning Templates, Sheets TD-1, IA, 1B, and TP-2, prepared by Ayoub Engineering. and last revised dated July 31, 2019; 13. Lighting Plan, prepared by LSI, dated December 20, 2018, and revised August 8.2019; 14. Sketch Plan for upgrades to existing Shell property; and 15. Aerial Photographs of property and the Station Avenue corridor. The Applicant submitted the following testimony and the Board of Appeals found the following in connection with the proposal: As a companion case with Appeal 44802, of which the materials submitted, testimony provided. and the Findings and Conditions of the Decision thereof are all incorporated herein by reference, the Proposal. in addition to being in part permitted by right and by special permit, also requires use variance relief. Specifically, the portion of the proposal that will see the relocation and consolidation of fuel service operations from 433 Station Avenue and 446 Station Avenue northward to 4731479 Station Avenue requires a variance for the relocated and continued H6 (Motor Vehicle Fuel and Service) use in APD (no service proposed). Dimensional relief is also required for the relocated site that. though nonconforminen will be less nonconforming in terms of parking, setbacks. and site design than the existing sites at 433 Station Avenue and 446 Station Avenue that are being abandoned and restricted against future fuel service operations. This relief includes the canopy front setback; parking in front of the building: centerline of driveways; in -lot trees and plant species; front buffer tree spacing: photometrics; and signaQe. The proposed building will be one -store in height and contain 3.600 sq. ft. of first -floor area and a basement for storage. A drive-thru w ill be located on the rear of the building and conforming stacking for the drive-thru has been provided. A full landscaping plan will be implemented. At the Board's request. the canopy was redesigned to include a new mansard roof as an alternative to the design which was initially proposed and approved by the Design Review Committee. After extensive discussion. study, and peer review re(>arding access. circulation. and traffic along Station Avenue, the site layout was redesigned in response to the Board's concerns about access and egress such that the northerly curb cut has been relocated to the northern end of the property to improve access and egress and separation from the canopy, and this curb cut has been restricted to right -in and right -out only with raised curbing along the exit portion thereof to channelize vehicles exiting the Propem. The portion of the island facing the entrance will be scored concrete to allow truck access. The above changes resulted in additional improvements to on -site parking and circulation as well. Further discussion of the traffic question is contained in the Special Permit discussion below. All of the properties are located not only in the B l Commercial Zoning District, but also in the Yarmouth Aquifer Protection Overlay District (-APD"). The Yarmouth Zoning By -Law ["Zoning By -Law"] finds that "the groundwater water underlying this town is the sole source of its existing and future drinking water supply [...and that] accidental spills and discharges of petroleum products and other toxic and hazardous materials and sewage discharge have repeatedly threatened the quality of [...] groundwater supplies and related water resources throughout towns in Massachusetts. posing potential public health and safety, hazards and threatening economic losses to the affected communities." As such, the Zoning By -Law states that the objective of the APD is "...to protect the public drinking water supply in Yarmouth from the effects of high density land development and from potentially hazardous materials associated with specific land uses." In situations where a use in the APD requires a Special Permit, the Board is required to "...give consideration to the simplicity, eligibility and feasibility of the control measures proposed and the degree of threat to water quality which would result if the control measures fail." Under Section 102.2.2 of the Zoning By -Law the Board is authorized to grant variances from the provisions of the Zoning By -Law, including for use. C! As an integral component of the proposal, the Applicant is proposing to close, decommission, and deed restrict two old, outdated, active fuel service station properties (Shell Service Station at 446 Station Avenue and Sunoco Service Station property at 433 Station Avenue) located in the APD within one - quarter mile of the new site also on Station Avenue. The Applicant proposes to consolidate, relocate, and replace these old fuel service station properties with the new state -of -art fuel service station (Shell Service Station) with a reduction in the threat of environmental impact to the aquifer by significantly decreasing the number of gallons of fuel stored in the APD by 16,000 gallons or more than 28% over existing conditions (from 56,000 gallons down to 40,000 gallons), decreasing the number of underground fuel storage and other tanks from ten (10) to (2) such tanks, and installing two (2) state-of-the-art double - walled tanks to replace the numerous. old underground tanks to be removed. In addition, the Applicant, for itself as owner of and in connection with the Shell Station property and also by written agreement with and on behalf of the owner of the Sunoco Station property. proposed as a condition of approval that the remaining pre-existing nonconforming hazardous materials uses at these two sites will be eliminated on a proposed, respective schedule after the relocated site opens for business. Further. at the request of the Board. the Applicant proposed that in conjunction with removing the pumps and underground tanks at the existing Shell location. the Applicant will improve the aesthetics of this property as shown on the submitted site sketch plan as an interim step towards ultimate future redevelopment. This work includes substantially extending and expanding the front buffer and planting additional trees and vegetation. In making a determination that the significant environmental benefits and reduction of environmental risk satisfies the purposes and intents of the APD By -Law, the Board also relied on the materials submitted by the Applicant. independent peer review as well as review by the Yarmouth Board of Health and Outside Water Consultant. The Applicant has been working closely with officials from several Town of Yarmouth Departments on the proposed development, including meetings with the Building Commissioner as well as the Health Director and Hazardous Waste Inspector. among others. Design Review and Site Plan Review have been completed. Peer review as requested by the Health, DPW, and Water Departments was completed and reviewed by the Tow•n's independent water consultant. Approval of the lot division by the Planning Board and issuance of a fuel storage permit from the Board of Selectmen will subsequently be required as well. The Environmental Analysis Memorandum and supporting documentation accompanying the application detail how the proposal will significantly reduce environmental risk to water quality and thus enhance environmental protection in Yarmouth's Aquifer Protection District. This will be accomplished by permanently closing two older fuel service facilities with an average age of forty (40) years located within one quarter mile of the Property and replacing them with one new- state-of-the-art facility with fewer underground tanks, less underground piping, modern leak detection with sensors and alarms, and a decreased volume of underground fuel storage, all as follows: I. There will be a significant net reduction of 16.000 gallons of fuel storage in the APD as the existing seven (7) underground tanks. six (6) dispensers. and 56.000 gallons of underground fuel storage at the two existing facilities are replaced with only two (2) underground tanks, six (6) dispensers, and 40,000 gallons of storage; Two, older fuel service facilities will be replaced with one, state-of-the-art site incorporating significant improvements in design and containment protocols for underground fuel storage with an automatic and continuous leak detection system in double -wall underground storage tanks and double -wall piping complete with probes, sensors, and alarms. In addition, the properties 5 containing the existing gas stations will be permanently deed restricted prohibiting future fuel service use, and the pre-existing nonconforming hazardous materials uses on each property will ultimately be abandoned; Additionally, there will be an estimated reduction of forty-five (45) to fifty (50) linear feet of underground piping when the piping at the two existing sites is removed and replaced with new piping at the new site; and 4. A safer, double -wall tank system with leak detection and brine in the interstitial space will be installed at the new site in place of the seven older underground fuel storage tanks (a mixture of single and double -,wailed tanks that are approximately, 30 to 40 years old without any modern detection systems) located at 446 Station Avenue (Shell Station) and 433 Station Avenue (Sunoco Station) — the latter to all be removed and not replaced; and 5. An older, underground heating oil tank at the Sunoco Station and older, underground heating and waste oil tanks at the Shell Station will also be removed and replaced with above -ground tanks to provide heating oil at the respective properties and to continue smite use at the Sunoco Station until such use is relinquished as set forth herein. The peer review report dated March 8. 2019. by Carriageliouse Consulting. Inc., concludes that: "...the proposed actions and activities proposed by Colbea in this project appear to yield a net benefit to the Town in the form of potential increased revenue in the form of taxes and in the redevelopment opportunity for existing non -confirming parcels, while concurrently reducing the potential risk to Town receptors and resources (i.e.. the APD)." The Town's outside water consultant. Kleinfelder, reviewed the Proposal and the peer reviewer's report. In an email dated March 20. 2019, Kirsten Ryan of Kleinfelder states that '-I agree the risk to the aquifer is less than current conditions in that the proposed project would store less fuel, slightly farther away and with newer equipment technology." She recommended four conditions be placed on the proposal as set forth in her email. The Applicant has no objection to these conditions. and the same have been incorporated below. The Yarmouth Board of Health Memorandum, dated May 7, 2019, found all of the above plus additional technical requirements to be met by the Applicant as well as reiterated the four conditions specified by Kleinfelder and set forth that the Applicant '...presented their proposal to the [Board of Health] at the regular board meeting on April 22. 2019. The [Board of Health] approved recommending the proposal of Colbea Enterprises to the [Board of Appeals] by a unanimous vote with five members present and voting. This recommendation is based on the ability of the business to comply with aforementioned regulations and based on the following conditions listed below. These conditions are above and beyond the strict scope of the aforementioned regulations and are intended to provide additional protection of the APD." The proposal in the APD also requires the creation of a Nitrogen Aggregation Plan with the subsequent approval of the Board of Health. In a Nitrogen Aggregation Plan, the (and to be developed is designated the Facility Land and off -site land to be permanently protected as undeveloped open space is designated the Credit Land. The more sensitive Credit Land is preserved in order to allow the more appropriately - zoned Facility Land to be developed. The Credit Land for the Proposal will be approximately 50,000 sq. ft. of area. This land will be permanently protected as undeveloped open space. The Applicant has filed applications in accordance with the Yarmouth Disposition of Town Owned Real Property- Policy to seek to purchase at public auction foreclosed land owned by the Town of Yarmouth to be designated as the 2 Credit Land in connection with the development of the new site. This process is underway and its successful completion is a condition of the approval hereof. Special Permit. For those aspects of the proposal that require a special permit, the Applicant has requested such relief in accordance with Sections 103.2 and 202.5 of the Yarmouth Zoning By -Law ("Zoning By -Law"]. The Board of Appeals is authorized to grant such special permit upon a finding that the proposed development will not create any undue nuisance, hazard or congestion and that there will be no substantial harm to the established or future character of the neighborhood or Town. Additional requirements for the granting of a Special Permit in the APD are set forth in Sections 406.5.3 and 406.5.5 of the Zoning By -Law. The Applicant submitted that the proposal, including the decommissioning and deed -restricting of the two old nearby gas stations, will comply with all of the Special Permit criteria, will not create any undue nuisance, hazard or congestion, will result no substantial harm to the public drinking water supply, and will thus result in a substantial benefit and improvement to the neighborhood, the Town, and the environment. and further that the control measures proposed ha. e given due consideration to the simplicity. eligibility and feasibility of implementation and maintenance and to protective measures to reduce the potential threat to water quality, should any of these measures unexpectedly fail, all of the above because: The existing old Shell and Sunoco gas stations to be decommissioned and deed restricted are outdated %%ith older underground storage tanks and less monitoring and protections than modern fuel service operations employ. Eliminating these two gas stations and permanently deed restricting the respective parcels from future fuel service use provides a significant boost to environmental protection and reduction in risk to the aquifer, 2. The new fuel service station will not only be a modern, state-of-the-art facility. but it will also store 16.000 fewer gallons of fuel than the two existing gas stations combined (56.000 gallons existing: 40.000 gallons proposed), 3. The Proposal has been designed and is intended to complement the B l Commercial District along Station Avenue. Both the Yarmouth Design Review Committee and the Site Plan Review Committee have reviewed the Proposal. The Design Review Committee voted 3-0 in favor finding that the proposed design of the building, canopy. and development are appropriate for the site and use and satisfy the reviewed design guidelines; 4. The Traffic Impact and Access Study of the Proposal, as updated and supplemented, evaluated existing traffic operations and safety. assessed future conditions along Station Avenue both with and without the proposal, estimated projected traffic volumes for the proposal and its potential impact on future traffic operations in the area, and analyzed various curb cut access alternatives. The traffic engineer concluded that the available stopping and intersection sight distance exceeds minimum requirements and that the proposal is expected to have only minor impacts on local traffic operations. It is acknowledged that traffic along this stretch of Station Avenue is congested at times during the summer season such that most, if not all, driveways along this stretch of road in the 131 Commercial Zoning District operate at Level of Service F at times during the day. As demonstrated in the materials submitted and with the site access alterations and restrictions presented to the Board in response to comments and concerns raised at the Board meetings, while some additional traffic will be added to the flow- on Station Avenue (the relocated site being the last undeveloped parcel of land in the commercial district in this area), the proposal will not result in a significant increase in traffic. There is a center turn lane in front of the property that was constructed by the Town in the past to alleviate turning movements along the road. In discussing potential future upgrades by the Town along this stretch of Station Avenue, 7 the Town Planner responded to a Board question noting that there are five (5) feet of available space on either side of the paved travel way that remain unused in the road layout. The Applicant offered that it is willing to agree to grant the Town in the future a five (5) foot wide easement along the Property frontage in order to allow for a sidewalk should the Town so seek at that time. 5. An extensive landscaping package is proposed, including additional vegetative screening of the fenced dumpster from the adjacent property to the north; 6. Site lighting wvill be down lit and appropriate for the Station Avenue commercial zone: 7. Building and lot coverage will each be conforming; 8. All stormwater runoff will be contained and infiltrated on site, and there will be no negative impact to drainage, septic flow or stormwater; Presently, the 446 Station Avenue Shell Station property is nearly fully paved with impervious surfaces including parking areas and concrete drive mats associated with the retail gasoline station. As part of this proposed development, the Applicant intends to remove areas of pavement and impervious surfaces along Station Avenue and create an additional landscaped island in the center of the property directly, in front of the existing building. As has been documented in scientific literature. increasing stormwater infiltration directly to an aquifer is preferable to overall aquifer health versus re -directing storrm%ater to surface streets where it discharges to remote locations. The Applicant's redevelopment proposal includes an increase of approximately 800 square feet of non -impervious ground cover at the existing fully paved Shell station. Increasing the amount of stormwater infiltration directly to an aquifer has the benefits of increasing aquifer capacity, increasing dissolved oxygen content in the aquifer and increasing the overall oxidation-reduction potential in the aquifer which leads to better overall aquifer health; 10. The Applicant reached out to property abutters and those across the street to discuss the proposal and has pledged to continue working with them in order to be a good neighbor to the neighborhood and community; and l 1. The development of the Property in conjunction with the environmental improvements to the two off -site locations now (and the possibility of future conforming redevelopment of each as ultimately permitted by the Town of Yarmouth) will improve and enhance the economic viability of the entire commercial zone and be an asset to the character of the neighborhood and Town. Variance. For those aspects of the Proposal that require a Variance, the Applicant requested such relief as discussed below in accordance with Section 102.2.2 of the Zoning By -Law- and M.G.L. Chapter 40A, Section 10. The Board is authorized to grant Variances, including for use, where the Board finds that a literal enforcement of the Zoning By -Law would involve substantial financial or practical hardship to the Petitioner. that the hardship is owing to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affecting such land or structures, but not affecting generally the zoning district, and 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 use Variance that is required as noted above is to include motor vehicle fuel use (no service) at the Property in the APD that would otherwise be allowed by special permit in the B I Zoning District. Dimensionally, while the new building itself will comply with all setbacks, the canopy for the relocated fuel service use will not and there will also be parking in front of the building. The Board has reviewed similar requests in the past that arise along this section of Station Avenue in which the minimum front setback is seventy-five feet, while at the same time parking cannot be in front of a building. The other dimensional variance relief that is being requested to meet the special circumstances of the site include curb cut width, driveway centerline separation, in -lot trees and plant species, front buffer tree spacing, photometrics, and signage. Much of the signage relief was subsequently withdrawn without prejudice as discussed below. During the public hearing. the Board requested additional information on the grant of variances and reviewed the cases submitted and discussed the same with the Applicant. The Applicant provided copies of the following MA Court Cases and analysis in connection with the Proposal: . arashlian v. Zoning Board of Appeals of Netivbznyport, 660 N.E.2"d 369, 374'Mass.19961, Cavanaugh v. DiFlumera, 401 N.E2d 867, 871 {Ma App. Ct.. I9801, Furlong v. Zoning Board of Appeals of Salem, 64 N.E. 3r1. 26$, 269 {Ma App. Ct.. 2016), and Boyajian v. Board of Appeals of Wellesley. Page 1237, 1238 {Ma. App. Ct. 1978). The Board found credible the Applicant's testimony that these cases reflect positively on the Proposal in terms of (1) economic unfeasibility of use and re -use of the land absent the requested relief, (2) the need for a determination of substantial derogation and not just any derogation from the provisions of the Zoning By -Law in order to deny the requested relief. (3) the reduction in risk of existing harm and prevention of greater risk of future harm and (4) acknowledgment that some increase in traffic will not result in a significant increase in traffic to an already busy thoroughfare. The Board's review is not based on application of the criteria discretely to each aspect of the proposal, but rather collectively to all of the land and structures involved in the proposal. The proposal represents one. overall. holistic redevelopment in order to achieve the benefits required by Section 406,5.3. The location in the APD requires an entirely separate set of criteria to be met than the same proposed development would require if only in the B 1 Commercial Zone (in which the use is permitted by special permit). Protection of the special soils and aquifer status of the land are key. Section 102 2.? of the Zoning By - Law authorizes dimensional and use variances "«ith respect to particular land or structures" and requires a hardship finding ''ov%ing to circumstances relating to the soil conditions. shape or topography of such land or structures and especially affecting such land or structures, but not affecting generally the zoning district in which it is located.'' Literal enforcement of the provisions of the Town of Yarmouth's Zoning By -Laws would represent a substantial hardship to the Petitioner and Owners. The hardships faced in attempting to achieve all of the benefits are directly related to the soil conditions (water -sensitive natural formations), topography, shape of the land and historical development of the structures and sites involved (including those of the other gas station properties). The Property and the older gas stations to be closed/replaced are all located in the largest B. 1 zoned area in the Town of Yarmouth and one of the few areas of B I zoned commercial land that is also located in the APD. Moreover, the Property is the only undeveloped parcel within this B UAPD zone. As a result of its location in both the B 1 zone and the APD, the Property is unique. Specifically, the soil within the APD is unique, which mandates that a separate set of APD criteria be met. In order to meet the standard set forth in Section 406.5.3, the Applicant has proposed to shut down and deed restrict two old. non -confirming fuel station in order to protect the public drinking water. In order to replace the two old fuel stations with a state of the art, safe and modern fuel station on the Property, the requested variances are required. The Applicant submitted; and the Board so found, that the land and structures involved are impacted by the unique soil conditions of the aquifer district in that the two existing gas stations are pre-existing nonconforming uses and the relocated site is the last vacant site in this B1 and APD area and that the pre- existing nonconforming structures and site developments, including underground storage tanks and multiple full in and out curb cuts on multiple roads, are unique improvements and circumstances in the APD such that it is economically and practically infeasible to achieve the improvement to the environment and the reduction in the threat of harm to the ground water absent the variance relief to C construct the proposal as designed on the relocated site in the APD and this creates a substantial financial and practical hardship justifying the requested variance relief. It is important to note that two old, active and non -conforming fuel stations within the same B I zone and APD will be consolidated into this new proposed location such that it is economically and practically infeasible to build this fuel station absent the variance relief. Moreover, this proposed project has been designed to ensure optimal safety for the fuel station. As a result, absent the requested variance relief; the fuel station would not represent the optimal safety standards for a fuel station. Moreover, the Applicant has redesigned the proposal with the input of Town officials and agencies in order to optimize the safety of the Property. The Board found further that based on the established hardship and all of the materials submitted to the Board and for all of the reasons set forth in the Special Permit discussion above, the requested variance relief as set forth below can 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, including without limitation, the overarching reduction in threat of harm to the aquifer and enhanced environmental protection resulting from the Proposal. In addition, the Yarmouth Design Review Committee voted to find that the Proposal is appropriate for the site and the commercial zone. The proposed use of the commercially -zoned, replacement property is allowed (both by right and special permit) in the underlying B I Commercial Zoning District. The two existing fuel station properties that are grandfathered and protected pre-existing nonconforming uses will each be transitioned to conforming uses and will no longer contain a now -prohibited use. The net result of the proposal is one less fuel service station than at present, one less site with a pre-existing nonconfonning hazardous materials use. and one relocated site that will be less nonconforming to zoning and more protective of the environment than existing nonconforming conditions. The two pre-existing nonconforming gas station uses in the APD are entitled to remain indefinitely and to remain in a more nonconforming status than the proposal before the Board. Even if these two sites can be upgraded in the future, they will each never be able to be as compliant and conforming as the relocated site due to their shapes and historical developments. The proposal will provide numerous benefits to the Town and the public. including amelioration of the continued risk to the aquifer that these two sites represent by closing these two businesses, eliminating the pre-existing nonconforming hazardous materials uses from these two properties. and restricting these two properties from such uses in the future. in exchange for the relocation a brief distance north along the same street in the same zoning and overlay districts with a new, smaller -capacity, state-of-the-art facility_ a facility which is needed in this commercial zone and is authorized by the underlying zoning in the area. The Applicant submitted. and the Board so found. that the land and structures involved are impacted by the unique shape and topography of the Property such that the canopy, parking (in front of the building), centerline of driveways, in -lot trees and plant species, front buffer tree spacing. photometrics and signage can best be situated only as provided on the proposed plans to ensure the fuel station is optimized for safety and complies with the redesign of the site as requested by the Town. It would represent a substantial hardship and be economically and practically infeasible to require literal enforcement of the Zoning By -Laws. In granting the requested variances, the public good will be served by providing a safe. state of the art, modem fuel station. Moreover, the requested variances would not nullify- or substantially derogate from the intent or purpose of the Zoning By -Laws because the proposal will provide a safe and modernized fuel station for the public. As a result. it is appropriate to grant the requested variances. Specifically, most of the exterior lighting conforms to the Zoning By -Law. The Applicant has attempted to be respectful to the neighborhood and Town and provide safe lighting, while complying as much as feasible with applicable regulations. Relief is requested in a few areas along the perimeter and at the curb cuts. Notwithstanding this request and by way of comparison, the proposed lighting will be less than the existing similar lighting at the nearby Mobil Station on Station Avenue as well as less than at the Cape 10 Farms Market property on Route 28 in West Yarmouth. Based on recommendations from the lighting manufacturers, the proposed lighting is the lowest level that will be safe for a fuel station. The proposed lighting will result in safe conditions for the patrons as well as the employees who need to monitor activity at the site and operation of the fuel pumps. Given the commercial nature of the Station Avenue location (there are no nearby residences) and the need to provide safe and efficient lighting, the proposed levels will achieve this result with no negative impacts. The Applicant requested sign relief for directional, freestanding. and attached signs. The Iatter rivo were ultimately withdrawn without prejudice. As to the former, the Board felt that the proposed directional signage is warranted to provide safe and efficient access and egress as well as on -site circulation. The Board also requested an additional Do Not Enter sign at the exit of the right -in. right -out northerly curb cut. The Board took the following votes on the Proposal: Special Permit for H6 and Hl0 use of the Property. Sean Igoe made a motion, seconded by Richard Neitz, and voted five (5) in favor and zero (0) opposed to grant the requested Special Permit for use based on the above Findings and submitted plans and further that the proposed development will not create any undue nuisance, hazard or congestion and that there %%ill be no substantial harm to the established or future character of the neighborhood or Town and that the additional requirements set forth in Sections 406.5.3 and 406.5.5 of the Zoning By-La_'v. including without limitation that the control measures proposed have given due consideration to the simplicity, eligibility and feasibility of implementation and maintenance and to protective measures to reduce the potential threat to water quality should any of these measures unexpectedly fail, have been met and upon the following conditions: A. All nonconforming uses at 446 Station Avenue shall cease within fourteen (14) days after the new site opens for business and the underground storage tanks shall be removed from 446 Station Avenue and the site upgrades as per the reviewed Sketch Plan shall be implemented no later than nine (9) months after the new site opens for business; B. The nonconforming fuel service use at 433 Station Avenue shall cease within fourteen (14) days after the new site opens for business and the underground storage tanks shall be removed from 433 Station no later than nine (9) months after the new site opens for business and all remaining nonconforming use of 433 Station Avenue shall cease no later than forty-eight (48) months from the date when this Decision is final; C. Deed restrictions shall be recorded on the chains of title for both 433 Station Avenue and 446 Station Avenue restricting each property from future nonconforming uses within the APD and copies of such Deed Restrictions as recorded shall be returned to the Board of Appeals Such deed restrictions shall incorporate the time lines for discontinuance of such uses as set forth in Paragraphs A and B above; D. The Petitioner agrees to grant to the Town of Yarmouth in the future a five (5) foot wide easement along the Property frontage in order to allow for a sidewalk to be installed should the Town so seek at that time; and E. The Petitioner shall complete the nitrogen aggregation process to deed restrict off -site open space land for purposes of credit to the Property- prior to the new site opening for business. 11 F. The Petitioner shall comply with all requirements of the Board of Health. 2. Variance for H6 use of the Property. Sean Igoe made a motion, seconded by Richard Neitz, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for use (fuel service only without vehicle service nor (vehicle washing) based on the above Findings and the submitted plans and further that the hardship is based on the soil conditions and topography of the land and the structures as discussed above and that the intent of the APD By -Law will be met to protect the groundwater and that there will be no harm to the public good and upon the same conditions set forth in the Special Permit vote above plus the following additional conditions: A. No hazardous products purchased inside the building at the Property shall be used or added on or to a vehiclewhen the vehicle is located on the Property; B. The only products allowed to be added into a vehicle at the Property shall be gas and diesel fuel dispensed from the on -site dispensers; y C. The Board of Health «ill verify that the design is in accordance with all Massachusetts Stormwater Standards; D. The developer shall retain a third -party engineer.ILSP to provide certification that the project was constructed and installed as designed and passed all start up and commissioning tests to verify proper operation- E. The facility is required to submit a third -party compliance inspection to the MassDEP every three years, and the facility shall provide a copy of this report concurrently to the Board of 11calth and Water Department; and F. The proposed new underground storage tanks shall have a 30-year sera ice life. Variance for canopy front setback. Sean Igoe made a motion. seconded by Richard Neitz. and voted four (4) in favor and one (1) (Martin) opposed to grant the requested Variance for the canopy front setback with the mansard design and colors as shown on the revised architectural plans based on the above Findings and further in accordance with the prior votes of the Board herein with no additional conditions: Variance for parking in front of the building. Sean Igoe made a motion, seconded by Richard Neitz, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for parking in front of the building based on the above Findings and submitted plans and further in accordance with the prior votes of the Board herein w ith no additional conditions: Variance for curb cut radius. Sean Igoe made a motion, seconded by Dick Martin, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for the curb cut radius based on the above Findings and submitted plans and further in accordance with the prior votes of the Board herein with no additional conditions; 6. Variance for centerlines of driveways, Sean Igoe made a motion, seconded by Richard Neitz, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for the centerlines of driveways based on the above Findings and submitted plans and further in accordance with the prior votes of the Board herein with no additional conditions; 12 Andrew L. Singer Myer R. Singer Of Counsel Law Office of Singer & Singer, LLC 26 Upper County Road P. Q. Box 67 Dennisport, Massachusetts 02639 Tel: (508) 398-2221 Fax: (508) 398-1568 www.singer-law.com SUPPLEMENTAL MEMORANDUM To: Yarmouth Board of Appeals From: Andrew L. Singer Date: August 1, 2019 Re: Proposed Seasons Corner Market/Shell Station (Appeals #4801 and #4802) 473, 479, and 487 (portion) Station Avenue, South Yarmouth, MA Introduction The Yarmouth Board of Appeals has requested additional discussion of the Town of Yarmouth and Commonwealth of Massachusetts variance criteria as they relate to the proposed development of 473, 479, and 487 (portion) Station Avenue and the closing, decommissioning, and restricting of fuel service operations at 446 Station Avenue (Shell Station) and 433 Station Avenue (Sunoco Station), all of the above land located in the BI Commercial Zoning District and the Aquifer Protection Overlay District. Conclusion Based on a review of the Yarmouth Zoning By -Law, Massachusetts General Laws Chapter 40A, Section 10, and Massachusetts Court cases and treatises concerning variances and in furtherance of the materials and testimony previously submitted to the Board, the Applicant respectfully submits that the Yarmouth Board of Appeals would be justified in determining that the variance criteria have been met with the proposal and that such relief is warranted in this instance. There are several cases in which the Massachusetts Courts have affirmed the granting of variances (both use and dimensional) when there are specific facto— Tegard;n Ah Ann- and/nr tnnnpranbv of a parcel or parcels of land and the structures thereon which render economically reasonable and practical use of such land or structures infeasible absent the requested variances. Discussion Proposal, The Proposal includes closing, decommissioning, and restricting two old, outdated, active fuel service station properties (Shell and Sunoco) located within one -quarter mile of the new site also on Station Avenue and replacement with the new state -of -art fuel service station (Shell) with a reduction in the threat of environmental impact to the aquifer by significantly decreasing the number of gallons of fuel stored in the Aquifer Protection Overlay District ["APD"I by more than 28% over existing conditions (from 56,000 gallons down to 40,000 gallons), decreasing the number of underground fuel storage and other tanks from ten (10) to (2) such tanks, and installing two (2) state-of-the-art double - walled tanks to replace the numerous, old underground tanks to be removed. Zoning Relicf. In addition to being in part permitted by right and by special permit, one aspect of the proposed use also requires variance relief. Specifically, the portion of the proposal that will see the shift in fuel service operations from 433 Station Avenue and 446 Station Avenue northward to 473/479 Station Avenue requires a variance for the relocated and continued H6 (Motor Vehicle Fuel and Service) use in APD (no service proposed). Dimensional relief is also required for the relocated site that, though nonconforming, will be less nonconforming in terms of parking, setbacks, and site design than the existing sites at 433 and 446 Station Avenue that are being abandoned and restricted against future fuel service operations. This relief includes the canopy front setback; parking in front of the building; centerline of driveways; plant species; front buffer tree spacing; photometrics; and signage. Previous submittals and testimony have discussed the above in more detail. The Board of Appeals is authorized to grant the requested variance relief in accordance with Section 102.2.2 of the Zoning By -Law and M.G.L. Chapter 40A, Section 10, where the Board finds that a literal enforcement of the Zoning By -Law would involve substantial financial or practical hardship to the Petitioner, that the hardship is owing to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affecting such land or structures, but not affecting generally the zoning district, and 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. Variance Justification, The Courts, and by extension Boards of Appeal, look at each proposal on a case -by -case basis. The facts of each are different and so are the analyses. Variances are not granted easily, but the Massachusetts Courts have in numerous cases upheld a Board's determination that the variance criteria (hardship, derogation, and public good) have been met in individual circumstances and affirmed the relief granted. In the Applicant's case, the Board is reviewing a comprehensive proposal that provides a unique opportunity under challenging circumstances that meet all of the variance criteria. The hardships faced by the Applicant in attempting to achieve all of the benefits are directly related to the soil conditions/topography (water -sensitive natural formations) and shape of the land and historical development of the structures and sites involved (including those of the other gas station properties). The Board's review is not based on application of the criteria discretely to each aspect of the proposal, but rather collectively to all of the land and structures involved in the proposal. The proposal represents one, overall, holistic redevelopment. The location in the APD requires an entirely separate set of criteria to be met than the same proposed development would require if only in the B1 Commercial Zone (in which it is permitted by special permit). Protection of the special soils and aquifer status of the land are key. In the Massachusetts Zoning Manual, Martin Healy, Esquire, writes that "'[h]rrdship' is not being reasonably able to use property for the purposes, or in the manner, allowed by the municipal zoning requirements due to circumstances particularly affecting the property. The conditions that establish hardship are diverse" (emphasis in original) tMassachusetts Zoning Manual, Martin R. Healy, Esq., Sixth Edition 2017, Chapter 9, Section 9.3.2, Page 9.11). Citing a number of court cases, the Zoning Manual explains further that in use variance situations, "...'[s]ubstantial hardship, financial or otherwise' is found where under the unique circumstances it is not 'economically feasible or likely that the locus would be developed in the future for a use permitted in the zoning ordinance or by-law"' (Id. at 9-10). In Marashlian v. Zoning Board of Appeals of Newburyport, the Massachusetts Supreme Judicial Court affirmed the grant of a variance by the local Board of Appeals to build a hotel with less than the required parking and frontage rejecting the neighbors' argument that "..no variance should be granted unless the property would be virtually unusable without a variance, and that the proposed hotel site could be used as a restaurant, retail space, or for parking" (Marashlian v. Zoning Board of Appeals of Newburyport, 660 N.E.2"a 369, 374 (Mass.]996)). As the Court notes, "the judge determined that such other uses, given the already existing number of establishments in the area, would be economically unfeasible. His conclusion that literal enforcement of the zoning laws would create a substantial hardship, financial or otherwise, to the owners of the property is neither clearly erroneous nor does it constitute an error of law" (Marashlian v. Zoning Board of Appeals of Newburyport, Page 374. The proposed property for the relocated fuel service use is the last undeveloped parcel along Station Avenue in this business district. The Zoning By -Law requires a 75 ft. front building setback and no parking in front of a building. The Board of Appeals has previously granted variances for such parking and setbacks recognizing that the strict zoning requirements coupled with the historical development of many parcels along Station Avenue make it practically impossible and economically unfeasible in many cases to comply with all of the dimensional regulations. The proposed use of the replacement property is allowed (both by right and special permit) in the underlying B 1 Commercial Zoning District. The two existing fuel station properties that are grandfathered and protected pre-existing nonconforming uses will each be transitioned to conforming uses and will no longer contain a now - prohibited use. The net result of the proposal is one less fuel service station than at present, one less site with a pre-existing nonconforming hazardous materials use, and one relocated site that will be less nonconforming to zoning and more protective of the environment than existing nonconforming conditions. In Cavanaugh v. DiFlumera, the Massachusetts Court of Appeals affirmed the grant of variances by the local Board of Appeals to allow redevelopment of a narrow lot that did not comply with current zoning requirements in part finding favorably that the facts of that case were parallel to the facts of several cited cases, such cases "...where the trial judge appears to have found that it was not economically feasible or likely that the locus would be developed in the future for a use permitted by the zoning 4 ordinance or by-law" (Cavanaugh v. DiFlumera, 401 N.E.2d 867, 871 {Ma App. Ct., 1980)). As the Court writes, "We think that the judge, in considering whether the use permitted by this variance derogates from the intent and purpose of the zoning by-law, overlooked the fact that the deviation must be substantial, and that, unless the use significantly detracts from the zoning plan for the district, the local discretionary grant of the variance (all the other statutory elements having been satisfied) must be upheld. The requirement of substantial derogation recognizes that the `effect of a variance is to give a landowner a license or permit to use his property in a manner otherwise violative of the zoning ordinance,'... and that a use variance in particular `permits a use which the ordinance prohibits.'... Because of this, some derogation from the by-law's purpose is anticipated by every variance" (Cavanaugh v. DiFlumera, Page 870). In the Applicant's case the Board of Appeals is presented with a comprehensive proposal that will result in much greater good --better protection of and significant reduction in risk to the aquifer; substantially less fuel storage in the aquifer; a modern, attractive facility; and rehabilitation of two old, pre-existing nonconforming properties. Presently, the 446 Station Avenue Shell Station property is nearly fully paved with impervious surfaces including parking areas and concrete drive mats associated with the retail gasoline station. As part of this proposed development, the Applicant intends to remove areas of pavement and impervious surfaces along Station Avenue and create an additional landscaped island in the center of the property directly in front of the existing building. As has been documented in scientific literature, increasing stormwater infiltration directly to an aquifer is preferable to overall aquifer health versus re -directing stormwater to surface streets where it discharges to remote locations. The Applicant's redevelopment proposal includes an increase of approximately 800 square feet of non -impervious ground cover at the existing fully paved Shell station. Increasing the amount of stormwater infiltration directly to an aquifer has the benefits of increasing aquifer capacity, increasing dissolved oxygen content in the aquifer and increasing the overall oxidation-reduction potential in the aquifer which leads to better overall aquifer health. In light of all of the above, the derogation from strict compliance with the Zoning By -Law is not substantial and meets the test applied by the Cavanaugh Court. A literal enforcement of the Zoning By -Law provisions in this case will effectiv_el_y_ ibit a si nificant environmental u rode to the AP ' and business upgrade to the commercial zoning district. In Furlong v. Zoning Board of Appeals of Salem, the Massachusetts Court of Appeals affirmed the grant of a variance by the local Board of Appeals to build a new boat repair facility outside of setback requirements agreeing with the lower court judge that "... strict enforcement of the zoning ordinance would create an unnecessary safety hazard, and that [the Applicant] accordingly had demonstrated a hardship sufficient to merit the allowance of a variance" (Furlong v. Zoning Board of Appeals of Salem, 64 N.E. 3rd, 268, 269 {Ma App. Ct., 20161). The Court states.that the "question whether a safety concern, ameliorated by the granting of a variance, qualifies as a hardship under § 10 has not been extensively analyzed in our case law" (Furlong v. Zoning Board of Appeals of Salem, Page 272). The Court further states that it agrees "with the judge that `[w]here a variance diminishes the risk of an existing harm or where it prevents a greater risk of harm that would result from compliance with a zoning ordinance, such a hardship may merit a variance.' We also agree that the unique circumstances in this case, and the degree of danger that would result from compliance with the zoning ordinance, support the judge's finding of a hardship" (Furlong v. Zoning Board of Appeals of Salem, Page 272). In the pending case the two pre-existing nonconforming gas station uses in the APD are entitled to remain and to remain in a more nonconforming status than the proposal before the Board. Even if these two sites can be upgraded in the future, they will each never be able to be as compliant and conforming as the relocated site due to their shapes and historical developments. Not aIJowing the proposal, which will ameliorate the continued future risk to the aquifer that these two sites represent by closing these two businesses, eliminating the pre-existing nonconforming hazardous materials uses from these two properties, and restricting these two properties from such uses in the future, in exchange for the relocation a brief distance north along the same street in the same zoning and overlay districts with a new, smaller -capacity, state-of-the-art facility, a facility which is needed in this commercial zone and is authorized by the underlying zoning in the area, is a substantial hardship. This hardship is directly and consequently created by the location of the land involved in a specially -treated aquifer zone, the shape of some of the lots, and the historical development and placement of buildings and uses on the existing sites. In Boyajian v. Board of Appeals of Wellesley, the Massachusetts Court of Appeals affirmed the grant of a variance by the local Board of Appeals to build a medical office building for nine physicians in a district zoned for single-family residences agreeing with the judge and the local board that "...to allow this variance would enhance rather than detract from the public good. The proposed use of locus would not reduce the value of any property within the zoning district but would, rather, tend to increase property values" (Boyajian v. Board of Appeals of Wellesley, Page 1237, 1238 {Ma. App. Ct. 1978)). The Court noted that the property was "...situated on a heavily travelled service road or ramp which leads to and from Wellesley Square. Traffic is especially heavy on this road at peak shopping hours," and held that "[w]hile the use of the propose building would add some traffic to the flow on the service road, no significant increase in traffic would result" (Boyajian v. Board of Appeals of Wellesley, Page 1238). In the Applicant's case before the Board of Appeals the proposal will also enhance the t)llhla.e . good, =tect the aquifer and APD, and provide significant aesthetic and operational improvement to the B 1 Commercial Zoning District. As demonstrated in the extensive Traffic Impact and Analysis Statement prepared by VHB and with the site access alterations and restrictions being presented to the Board in response to comments and concerns raised at the Board meetings, while some additional traffic will be added to the flow on Station Avenue and everyone acknowledges that the flow is currently heavy because of al I of the other uses on all of the other developed properties along this stretch of Station Avenue (the relocated site being the last undeveloped parcel of land in the commercial district in this area), the proposal will not result in a significant increase in traffic. In light of all of the above Court cases and the treatment of variances in Massachusetts and due to the conditions of the land and structures involved as detailed above and elsewhere, the Board of Appeals is warranted in granting the requested relief to allow the redevelopment and environmental upgrade and protection to be completed as shown on the submitted plans and materials. MARASHLIAN v. ZONING BD. OF NEWBURYPORT Mass.�� Cite as 660 N.E.2d 369 (Mass. 1996) 421 Mass. 719 1. Zoning and Planning a 571 sSonya MAR.ASHLIAN & another' V. ONING BOARD OF APPEALS OF ';S.NEWBURYPORT & others? 3reme Judicial Court of Massachusetts, Essex. Argued Sept. 13, 1995. Decided Jan. 22, 1996. ft., ;rroperty owners whose property ad- ' -':site of of proposed hotel development pealed from grant by zoning board of ap- rls;of special permit and two zoning vari- ;es.. The Superior Court, Essex County, X. , . Sullivan, J., found that owners had nding to challenge variances but that rd?bad not exceeded its authority, and perky owners appealed. The Appeals 3 37 Mass.App.Ct. 931, 641 N.E.2d 125, Aat owners lacked standing and af- edsdecision. After property owners' ap- itioir for further review was granted, the reme Judicial Court, Liacos, C.J,, held property owners had standing d on fear of increased traffic and de -Parking availability; but (2) in agxai- iof threat of harm to potential plaintiff in ion to threat of harm from use permissi- s;of right. is factor that may be consid- Only "person aggrieved" may challenge decision of zoning board of appeals. M.G.L.A- c. 40A, § 17. 2. Zoning and Planning ez,571 Plaintiff is "person aggrieved," and has standing to challenge decision of zoning board of appeals, if he suffers some infringe_ ment of his legal rights; injury must be more than speculative, but term should not be read narrowly. M.G.L.A, c, 40A, § 17, See publication Words and Phrases for other judicial constructions; and def. initions. 3. Zoning and Planning Q571 Abutting landowners who are. entitled to notice of bearings of zoning board of appeals enjoy rebuttable presumption that they are "Persons aggrieved" who have standing to challenge determination of board, M.G.L.A. c. 40A, § 17. , 4. Zoning and Planning 0=571 Where standing to challenge decision of zoning board of appeals is challenged, juris- dictional question is decided on all the evi- dence, with no benefit to adjoining landowner who is entitled to notice of hearing from Presumption of standing. M.G.L.A. c. 40A, § 17. 5. Zoning and Planning a571, 655 in determining standing to challenge Review of standing to challenge decision g decision of zoning board of appeal but of zoning board of appeals does not require t.. dispositive; abrogating Barvenik v. that factfinder ultimatelyfind plaintiff's alle- Inen of Newton, 33 Mass.App.Ct. 129, gations meritorious, as to do so would be fE.2d 48; (3) use of locus for hotel was deny standing after the fact to any unsuc- ted as of right; and (4) findings that cessful plaintiff; rather, plaintiff must put site was subject to unique conditions forth credible evidence to substantiate his' rating .variance from parking require- allegations, and standing in zoning context .and was not subject to frontage re- becomes essentially question of fact for trial vent were supported by evidence. judge. M,G.L.A. c. 40A, § 17. f-,O-Connor, J., dissented and filed opinion Which Lynch and Greaney, JJ., joined. Christopher L. Snow. The city council of New- uyport and the planning board of Newburyport tre•'original plaintiffs in this suit and did not Peid from the decision of the judge in the IRerior Court Department. 6. Zoning and Planning a571 Year by adjoining landowners of in- creased traffic and decreased parking avail- 2. Newburyport Redevelopment Authority and Foster Properties, Ltd. 370 Mass. 660 NORTH EASTERN REPORTER, 2d SERIES ability due to development of property in question are legitimately within scope of zon- ing laws and may grant standing to challenge decision of zoning board of appeals allowing development. M.G.L.A c. 40A, § 17. 7. Zoning and Planning 0;-571 Owners of adjoining property had status of "person aggrieved" and had standing to challenge grant by zoning board of appeals of special permit and two zoning variances which allowed development of hotel on prop- erty in question even though property had less than required parking spaces and front- age area; adjoining owners had utilized pub- lic street parking to meet their business and personal needs, and fears that after develop- ment traffic would increase and that some parking spaces would be lost were neither too speculative nor too remote to make own- ers aggrieved parties. M.G.L.A. c. 40A, § 17. 8. Zoning and Planning <3=571 Although magnitude of threat of harm to potential plaintiff in relation to threat of halm from use permissible as of right is factor that may be considered in determining whether plaintiff has standing to challenge decision of zoning board of appeal, it is not dispositive of standing issue; abrogating Barvenik v. Aldermen of Newton, 33 Mass. App.Ct. 129, 597 N.E.2d 48. M.G.L.A. c. 40A, § 17. 9. Zoning and Planning «376 Approval not required (ANR) endorse- ment of locus creates "zoning freeze;" in which laws applicable to lot at time of en- dorsement remain applicable for period of three years. M.G.L,A. c. 40A, § 6. See publication Words and Phrases for other judicial constructions and def- initions. 10. Zoning and Planning a372.6 Use of locus for hotel was protected as of right under zoning laws, and no special Permit was required to allow development of hotel, where locus was endorsed approval not required (ANR) prior to enactment of zoning laws changing district in which Iot was locat- ed and development occurred during three- year period of zoning freeze created by ANR. M.G.L.A. c. 40A, § 6. 11. Zoning and Planning d489 Variance is not unwarranted simply be- cause some other use can be made of site. 12. Zoning and Planning a540 Findings that proposed hotel site was'' subject to unique conditions warranting vari-;` ance from requirement of 959 parking':; spaces, and that it would be economicall' impractical and not economically feasible to` provide required spaces, were supported by:' evidence that locus to be developed was sit- uated in historic district, that existing stipu- lation forbade construction obstructing wa `, terfront view and precluded above -ground. garage, that lot was surrounded by historic'-.'•; buildings and boardwalk, and that topo- graphical and soil conditions made parking garage with 959 spaces unfeasible. 13. Zoning and Planning e}503 Way conveyed to city as part of stipula-A tion entered to obtain approval for hotel velopment despite lack of required parking:;?, spaces was not required to meet current - planning board standards in order to consti- tute "street" for purposes of meeting front_-;'-_" age requirement, so that no variance from._,:. frontage requirement was needed, provided "Y, that way was sufficiently usable to meet defi- p nition of "street" in town zoning ordinance. 14. Zoning and Planning 0=538 Finding that wharf way, once conveyer as required by stipulation for approval o zoning variance allowing development of ho tel without required number of parlanl spaces, would constitute "street" for pur• poses of meeting frontage requirement, sc that no variance from frontage requirement was needed, was supported by evidence that way was of historic origin and was presently of suitable width and grade to be accessible by four -wheeled vehicles as well as pedestri- ans and met definition of "street" in town zoning ordinance, and by fact that public access would be forever protected under stip- ulation. See publication Words and Phrases for other judicial constructions and def. initions. MARASHLI.AN Y. ZONING BD. OF NEWBURYPORT Mass. 371 Cite as 660 N.E.2d 369 (Mass. 1996) Zoning and Planning a358.1 N.E.2d 125 (1994). We granted the plain - Appeal to zoning board of appeals from tiffs' application for further appellate review. tion of administrative officer is limited to We affirm the judgment of the Superior titent of application. M.G.L.A. c. 40A, Court. We state our reasons. J. Guay, Newburyport, for the plain- J. Courville, Boston, for Foster Ltd. Judith H. Mizner, Newburyport, for Lisa Mead, amicus curiae, submitted a brief. 'resent: LIA,COS, C.J., and WILKINS, RAMS, LYNCH, O'CONNOR, EANEY and FRIED, JJ. Chief Justice. Tlie defendants Newburyport Redevelop- erit Authority (Authority) and Foster Prop - ties, Ltd. (Foster), sought and received a ecial permit and two zoning variances from e;zoning board of appeals of Newburyport lard), so as to construct a hotel in New- ryport's down tLown72o waterfront area. ,e' plaintiff abutters appealed from the ard's decision under G.L. c. 40A, § 17 04 ed.),3 to the Superior Court. After a itasted evidentiary hearing, a Superior urt judge found that the abutters had .riding to contest the board's action, but Lt:the board did not exceed its authority in inting the requested special permit and lances. The Appeals Court, in a rescript nion, affirmed the judgment based on its iclusion, contrary to the finding of the senor Court judge, that the plaintiffs zed standing under G.L. c. 40A, § 17. ;rashlian v. Zoning Bd. of Appeals of wburyport, 37 Mass.App.Ct. 931, 933, 641 General Laws c. 40A, § 17 (1994 ed.), reads in !16Lant part; "Any person aggrieved by a deci- orrof the board of appeals or any special permit anting authority or by the failure of the board 'appeals to take final action concerning any speal, application or petition within the re- dred time ... concerning any application for a ecial permit within the required time, whether .,not previously a party to the proceeding, or y municipal officer or board may appeal to the id court department, the superior court de- rtment in which the land concerned is situated by bringing an action within twenty days The city council of Newburyport adopted an urban renewal plan in 1965 to revitalize Newburyport's downtown business district, then in "substantial economic decline and disrepair." The last remaining parcel owned by the Authority and designated for urban renewal is the subject of this litigation, a vacant lot located on the Merrimack River.¢ In 1987, the Authority authorized Foster to develop a hotel on the lot. The planned hotel was to include 123 guest rooms, a restaurant, a banquet room, and meeting rooms. In 1989, the Authority and foster applied to the board for 'a special permi�21to allow hotel use on the lot, and two zoning variances. The variance applications sought permission to develop the project with less than the required 959 parking spaces and 120 feet of frontage. The plaintiffs own commercial and residential property adjacent to and directly across the street from the proposed hotel. [1-51 Only a "person aggrieved" may challenge a decision of a zoning board of appeals. G.L. c. 40A, § 17. Watros v. Greater Lynn Mental Health & Retardation Ass'?; Inc., 421 Mass, 106, 107, 653 N.E.2d 589 (1995). Green v. Board of Appeals of Provincetourt4 404 Mass. 571, 572, 536 N.E.2d 584 (1989). A plaintiff is a "person aggrieved" if be suffers some infringement of his legal rights. Circle.Lounge & Grille Inc. v. Board of Appeal of Boston, 324 Mass. 427, 430, 86 N.E.2d 920. (1949). The injury must be more than speculative, Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329, 335, 613 N.E.2d 893 (1993) (Abrams, J., dissent- ing), but the term "person aggrieved" should after the decision has been filed in the office of the city or town clerk.... The complaint shall allege that the decision exceeds the authority of the board or authority, and any facts pertinent to the issue, and shall contain a prayer that the decision be annulled." 4. For an extensive recitation of the history of the locus and of earlier litigation involving it, see Newburyport Redevelopment Auth. v. Common- wealth, 9 Mass.App.Ct, 206, 401 N.E.2d 118 (1980). 372 Mass. 660 NORTH EASTERN REPORTER, 2d SERIES not be read narrowly. Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204, 143 N.E.2d 270 (1957). Cummings v. City Coun- cil of Gloucester, 28 Mass.App.Ct. 345, 350, 551 N.E.2d 46 (1990). Abutters entitled to notice of zoning board of appeals hearings enjoy a rebuttable presumption they are "persons aggrieved." See Watros, supra at 111, 653 N.E.2d 589; Marotta, supra at 204, 143 N.E.2d 270. If standing is challenged, the jurisdictional question is decided on "all the evidence with no benefit to the plaintiffs from the presumption." Id. Baroenik v. Aldermen of Newton, 33 Mass.App.Ct. 129, 131, 597 N.E.2d 48 (1992). A review of standing based on "all the evidence" does not require that the factfinder ultimately find a plaintiff's allegations meritorious. To do so would be to deny standing, after the fact, to any unsuccessful plaintiff. Rather, the plain- tiff must put forth credible evidence to sub- stantiate his allegations. In this context, standing becomes, then, essentially a ques- tion of fact for the trial judge. See Bedford v. Trustees of Boston Univ., 25 Mass.App:Ct. 372, 377, 618 N.E.2d 874 (1988). The plaintiffs here are abutters who re- ceived notice of the board's proceedings. Thus, they were rebuttably presumed to have standing. Each owns property across the street from the�2zproposed hotel. The plaintiffs' properties are in a zoning district (downtown business) that is more restricted than the zoning district in which the hotel is proposed (waterfront mixed use). See Circle Lounge & Grille, Inc., supra at 432, 86 N.E.2d 920. The plaintiffs' standing was challenged and thus the jurisdictional ques- tion was decided on all the evidence. (61 The plaintiffs claim to fear increased traffic and decreased parking availability due to the defendants' development of the lot. Such concerns are legitimately within the scope of the zoning laws. Circle Lounge & Grille, Inc., supra at 427, 86 N.E.2d 920. Bedford v. Trustees of Boston Univ., supra at 374, 376-377, 518 N.E.2d 874. The judge found that the hotel project will result in a "minimal increase in traffic and a decrease in the number of currently available public parldng spaces." This finding is supported by the record. There is also evidence to support the judge's findings that Marashli- an's property was "within the scope of con- cern of the Zoning Enabling Act" and that Snow had an "interest in protecting his resi- dential and retail tenants, the clients who visit his own place of business, his employees and himself from any increased traffic and congestion." The findings of the judge should not he overturned unless "clearly erroneous." Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). On review of the record, we conclude that the judge's findings were not clearly erroneous. See Bedford, supra at 377, 518 N.E.2d 874 (abutter's concerns of increased pedestrian and vehicular traffic, loss of parking, and potential threats to pedestrian safety were sufficient to uphold abutter's standing even in the face of evidence that "proposed con- struction would have no adverse impact on the plaintiff"); Paulding v. Bruins, 18 Mass. App.Ct. 707, 709, 470 N.E.2d 398 (1984), quoting Rafferty v. Sancta Maria Hosp., 5 Mass.App.Ct. 624, 629, 367 N.E.2d 866 (1977) (determination of "aggrieved" matter of de- gree calling for discretion rather than inflexi- ble rule). The cases relied on by the judge are consistent with the principle that "person aggrieved" should not be construed narrowly. Marotta, supra at 204, 143 N.E.2d 270. Godfrey v. Building Comm'r of Boston, 263 Mass. 589, 591, 161 N.E. 819 (1928). [71 ?zsThe Appeals Court denied the plaintiffs standing to challenge the proposed hotel, stating that "(b]ased on the judge's findings, Snow and Marashlian have failed to make a 'specific showing that the plaintiffs will either be injured or that such an injury would be special and different from that which others throughout the zone would ex- perience ... "'(emphasis added). Marashli- an v. Zoning Bd. of Appeals of Newburtyport, 37 Mass.App.Ct. 931, 933, 641 N.E.2d 125 (1994), quoting Cohen v. Zoning Bd. of Ap- peals of Plymouth, 35 Mass.App.Ct. 619, 623, 624 N.E.2d 119 (1993). As discussed, the plaintiffs must put forth credible evidence to substantiate claims of injury to their legal rights. The plaintiffs met that burden here. The record shows that both plaintiffs cur- rently utilize public street parking to meet their business and personal needs. The MARASELIAN v. ZONING BD. OF NEW'BURYPORT Mass. 373 Cite as 660 N.E.2d 369 (Mass. 1996) judge found that traffic after the proposed to require that a plaintiff, in order to obtain hotel construction would increase, if minimal- standing, show a substantial likelihood of ly, and that some public parking spaces harm greater than that which could result would be lost. These fears, based on all the from a use of the property permissible as of evidence, are neither speculative nor too re- right. This line of cases appears to be a mote to make the plaintiffs persons "ag- departure from those previously decided at grieved." See Boston Edison Co. v. Boston the time of the judge's decision. We decline Redevelopment Auth., 374 Mass. 37, 46, 371 to adopt such a rule, except to the extent N.E.2d 728 (1977). That the judge ultimate- that it requires specific facts to establish '_ -A the reduced number of spaces pro- perceptible harm. Aithough the magnitude the variance to be adequate does of the threat of harm to a potential plaintiff a claim of injury to legal rights of in relation to the threat of harm from a use intended to be protected by the permissible as of right is a factor that may be abling act. Such a finding goes to considered, it is not diapositive of the stand- iffs' success on the merits and not ing issue. See Tsagronis, supra at 334-335 ability to challenge acts of the & n. 1, 613 N.E.2d 893 (Abrams, J., dissent- ing) 8, Circle Lounge & Grille, Inc., supra at ,The Appeals Court relied primarily 2 2 ,tik v. Aldermen of Newton, supra 3, 597 N.E.2d 48, to deny standings , and several decided after it, seem ;cript opinion of the Appeals Court in ranco Cent., Inc., 38 Mass.App.Ct. 984, 2d 631 (1995), is consistent with our In that case, the Superior Court judge summary judgment for the landowner t (Janco) on the issue of the plaintiff standing to challenge the grant of vari- d of a special permit. The variances the defendant to erect nonconforming the property and to pave a parking area ur, rather than the required five, feet of ing. The plaintiff's affidavits failed spe- d address how the signs or the parking dd affect the plaintiffs property inter - a deposition not part of the record (and properly not considered on the motion iary judgment), the plaintiff appears to ed that one of the variances "probably otn for two-way traffic," thereby allow - lights from automobiles to shine into iff's home. The judge found that such ,ption was speculative, and even when d in addition to the parties' affidavits, establish what the Appeals Court ye- as a "'plausible claim of a definite of a private right, property interest; or :rest.' Harvard Square Defense Fund, inning Bd. of Cambridge, 27 Mass.App. 193 [540 N.E.2d 1821 (1989)." Riley v. zt., Inc., supra at 985, 652 N.E.2d 631. e tangible loss of parking spaces and traffic Marashlian and Snow will expe- e possibility that headlights from auto - a an adjacent parking lot will shine in if 's window is just the type of "uncor- speculations" sought to be avoided by ing requirements of G.L. c. 40A, § 17 > See Barvenik v. Aldermen of Newton, Lpp.Ct. 129, 136, 597 N.E.2d 48 (1992). 43D, 86 N.E. d 9 D. _L72SThe Superior Court judge made exten- sive findings with regard to the merits of the plaintiffs' claims, all of which are supported Additionally, the judge found that the noncon- forming use of the lot was statutorily protected as preexisting, and thus found it unnecessary to decide the issue whether the plaintiff had stand- ing to challenge the grant of the special permit. Riley v. Janco Cent., Inc., supra at 986, 652 N.E.2d 631. 6. Barvenik v. Aldermen of Newton, supra, was decided after the judge issued his opinion in this case. 7. See Monks v. Zoning Bd. of Appeals of Plym- outh, 37 Mass.App.Ct. 685, 688, 642 N.E.2d 314 (1994); Cohen v. Zoning Bd. of Appeals of Plym- outh, 35 Mass.App.Ct. 619, 621-622, 624 N.E.2d 119 (1993); Jaffe v. Zoning Bd. of Appeals of Newton, 34 Mass.App.Ct. 929, 612 N.E.2d 693 (1993). The standing issue in Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329, 330 n. 4, 613 N.E.2d 893 0993), involved evidence of a partially -obstructed view, together with the per- ceived decline in their property's value. While the dissent argued in that case that those con- cerns were insufficient to confer standing on the plaintiff abutters, the parking and traffic con- cerns involved here are clearly of the type envi- sioned by the Zoning Enabling Act. We note also that in Tsagronis, supra, the court concluded, notwithstanding the dissent (in which the author of this opinion joined), that the evi- dence was sufficient to give standing to the plain- tiffs. The court's decision is, of t:ourse, the law by which we abide. m 374 Mass, 660 NORTH EASTERN REPORTER, 2d SERIES by evidence in the record. These findings will not be disturbed unless clearly errone- ous. Mass.R.Civ,P. 52(a). See Building In- spector of Lancaster v. Sanderson, 372 Mass. 157, 160-161, 360 N.E.2d 1051 (1977) (phrase "clearly erroneous defined). The judge's thirty-three page opinion shows a thorough analysis and discussion of all relevant issues in this case. (9,101 We discuss each issue here briefly. The judge ruled, inter alia, that the use of the locus for a hotel was protected as of right under G.L. c. 40A, § 6 (1994 ed.).9 The locus was endorsed "approval not required" (ANR) in 1987, prior to the amendment of the zon- ing laws changing the district in which the lot is located from "downtown business" (in which a hotel is permitted as of right) to waterfront mixed -use (in which a special per- mit is required for hotel use). Thus, the "zoning freeze" was in effect for a three-year period, allowing development of the lot as a hotel as of right. No special permit was required for the locus to be used for a hotel as of right. [11, 121 The judge found that the pro- posed hotel site is subject to unique condi- tions, not the result of the defendants' ac- tions�2swhich render it appropriate for a 9. Under that statute, in conjunction with G.L. c. 41, § 81P (1994 ed.) (subdivision control law), a person may seek a declaration by the planning board in a city or town in which the subdivision control law is in effect, that a plan does not require approval under the subdivision control law. A majority of the board may endorse the plan as not requiring approval, or a majority of the board may authorize a person to endorse such a plan. An "approval not required (ANR)" endorsement creates a "zoning freeze," i6 which the laws applicable to the lot at the time of endorsement remain applicable for a period of three years. G.L. c. 40A, § 6. The plaintiffs' claim that the chairman of the planning board was not authorized by the then current majority of the board (albeit authorized previously) and had no authority to endorse the plan in 1987 is supported neither by the lan- guage of the statute nor by common sense. The judge correctly ruled the ANR endorsement to be valid. 10. These findings include the fact that the "pub- lic trust doctrine" precludes private use of land below the low-water mark, that development is subject to approval of the Massachusetts Depart- ment of Environmental Quality Engineering pur- suant to G.L. c. 91 (1994 ed.), that the locus is parldng variance.10 He further found that as a result of these conditions, it would be "eco- nomically impractical" and not "economically feasible" to provide the required 959 parldng spaces. These findings are supported by the record. The plaintiffs argue that no variance should be granted unless the property would be virtually unusable without a variance, and that the proposed hotel site could be used as a restaurant, retail space, or for parking. We reject the proposition that a variance is unwarranted if any other possible use can be made of a site. Cf. Rodenstein v. Board of Appeal of Boston, 337 Mass. 333, 336-337, 149 N.E.2d 382 (1958). The judge deter- mined that such other uses, given the already existing number of establishments in the area, would not be economically feasible. His conclusion that literal enforcement of the zoning laws would create a substantial hard- ship, financial or otherwise, to the owners of the property is neither clearly erroneous nor does it constitute an error of law. [13-15] Finally, the judge ruled that no frontage variance was required because once Ferry Wharf Way is conveyed, as required by stipulation, it will constitute a street for purposes of meeting - the frontage require- ment.tt We believe that thiLLu7street need situated in an historic district, that an existing stipulation forbids certain construction that would obstruct the waterfront view (thus pre- cluding construction of an above -ground garage), that the parcel is. surrounded by historic build- ings and a boardwalk precluding waterfront ac- cess, and certain topographic and soil conditions resulting from the parcel's low elevation make a parking garage with 959 parking spaces nonfeas- ible. 11. The plaintiffs claim that the issue whether a frontage variance was unnecessary was not raised before the board and therefore is improp- erly before this court. Although an appeal to a board from the action of an administrative offi- cer is limited to the content of the application, see G.L. 40A, § 15 (1994 ed.); DiGiovanni v. Board of Appeals of Rockport; 19 Mass.App.Ct. 339, 345, 474 N.E.2d 198 (1985). that rule is not implicated here. The issue was decided at trial and is properly before this court. See Warren v. Zoning Bd. of Appeals ofAmherst, 383 Mass. 1, 9, 416 N.E.2d 1382 (1981) ("[A] nonjurisdictional issue not presented at the trial level need not be considered on appeal" [emphasis added] ), quot- ing Royal Indem. Co. v. Blakely, 372 Mass. 86, 88, 360 N.E.2d 864 (1977). MARASHLIAN v. ZONING BD. OF NEWBi1RYPORT Mass. 375 Cite as 660 N.E.2d 369 (Mass. 1996) not meet current planning board standards tiff lacked standing to challenge the board's provided it is sufficiently usable to meet the action because the plaintiff was "operating definition of "street" in the Zoning Ordinance under a nonconforming use." Id. at 276, 473 of Newburyport.12 There is evidence in the N.E.2d 716. The court observed in dictum, record that Ferry Wharf Way is of historic however, that the plaintiff would have had origin and is presently of suitable width and standing to challenge the board's decision if grade to be accessible by four-wheel vehicles the plaintiff had not been operating under a as well as pedestrians, and public access will nonconforming use and had proved a likeli- be forever protected under the stipulation. hood that, following the conversion of the There was no error. neighboring hospital to a correctional facility, Concluding that the Superior Court the plaintiffs nursing home clients, visitors and employees would fear that they would judge's findings and rulings as to standing become assault victims as a result of a cor- and to the merits of the plaintiffs' challenge rectional facility being located next door. were not in error, we affirm the decision of w Clearly, fear of that kind would tend to di- the Superior Court. minish the market value of the plaintiff's So ordered. property. However, it does not follow that, to have standing to challenge the action of O'CONNOR, Justice (dissenting, with the defendant board of appeals in this case, whom LYNCH and GREANEY, Justices, the plaintiffs needed only to prove the likeli- join)• hood that, in advance of the zoning board's b ' le ented the plaintiffs >: The Superior Court judge "rule[d] that 'Christopher Snow and [Sonya] Marashlian have standing to maintain this action as 'ag= grieved persons' under G.L. c. 40A, § 17." Relying on Sherrill House, Inc. v. Board of Appeal of Boston 19 Mass.App.Ct. 274, 276, 473 N.E.2d 716 (1985), the judge reasoned >: that Je]ven if Snow and Marashlian were to prove no more. than the likelihood of fear of harm on the part of themselves, their visi tors, clients and employees, they have stand- ing to maintain this action." The judge's :. reasoning and ruling were incorrect. The judge should not have relied on Sherrill House, Inc., supra, g .. In Sherrill House, Inc., supra, the plaintiff ;. ;operated a nursing home as a nonconforming in a residential district. The Appeals Court held that the plaintiff lacked standing to challenge a decision of the Boston board of "'appeajL72agranting to the owner of neighbor- 4.ing property a permit to change the use of •...,that property from a hospital to a correction- '�al facility. Id. at 276-279, 473 N.E.2d 716. ;.:The Appeals Court concluded that the plain- =c12. The ordinance defines "street" as "a public f' thoroughfare which has been accepted for public ..'.'use; an existing private thoroughfare in use ',which has not been accepted for public use; or a . planning board approved sub -division street" decislon emg unp m their clients, visitors or employees feared that the decision would result in an increase in traffic or a decrease in parking spaces. In a single proceeding, the judge in the Superior Court heard evidence that bore not only on the issue of standing, but also on the substantive issues relating to whether the zoning board of appeals of Newburyport had exceeded its authority in granting a special permit and two variances to the Newbury - port Redevelopment Authority and Foster Properties, Ltd. The judge concluded that the plaintiffs had standing to challenge the zoning board's decision, but that the decision was lawful. The court affirms that decision. In my view, the plaintiffs did not have stand- ing and therefore the court did not have jurisdiction to review the board's decision. Riley v. Janco Gent., Inc., 38 Mass.App.Ct. 984, 985, 652 N.E.2d 631 (1995). I would vacate the judgment and dismiss the action.' �JLr29As the court says, ante at 372, "Abut- ters entitled to notice of zoning board of appeals hearings enjoy a rebuttable pre- 1. As a practical matter, the defendants "prevail" whether the court affirms the judgment, as it does here, or the case is dismissed, as I advocate. I write separately only because I believe the court's treatment of the standing issue is incor- rect and may have an adverse impact on the development of the law. 376 Mass. 660 NORTH EASTERN REPORTER, 2d SERIES sumption they are 'persons aggrieved.' [Watros v. Greater Lynn Mental Health & Retardation Assn, 421 Mass. 106, 111, 653 N.E.2d 589 (1995) ]." When a defendant challenges the plaintiffs standing and sup- ports that challenge with evidence of lack of aggrievement, the jurisdictional issue must be decided on the basis of the evidence with- out reference to the presumption. Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204, 143 N.E.2d 270 (1957). Baraenik v. Aldermen of Newton, 33 Mass.App.Ct. 129, 131, 697 N.E.2d 48 (1992). Bedford v. Trust- ees of Boston Univ., 25 Mass.App.Ct. 372, 376, 518 N.E.2d 874 (1988). Sherrill House, Inc. v. Board of Appeal of Boston, supra at 275, 473 N.E.2d 716. In this case, the challenge to the plaintiffs' presumed aggrievement (and therefore standing) was supported by evidence of nonaggrievement. The presumption of standing therefore disappeared and the plaintiffs had the burden to prove to the judge the necessary facts to establish it. Barvenik v. Aldermen of Newton, supra at 131-132, 597 N.E.2d 48. The plaintiffs failed to carry that burden because, although the judge erroneously concluded that the plain- tiffs had standing, his findings established the opposite. The judge made the following relevant findings, all of which were warranted by the evidence: (1) "The number of parking spaces to be provided for the Project will be suffi- cient to meet the parking demands generated by the hotel. Therefore, the Project will not add to any existing onstreet parking conges- tion in the area"; (2) "[T]he supply of public parking spaces in the area will be adequate to meet the demand"; (3) "With respect to traffic, the [P]roject is expected to minimally increase traffic volumes and ... site -generat- ed traffic will not have a major impact on area traffic patterns. Any adverse traffic impacts will be controlled by implementing certain mitigation measures." The judge's further fin�ngi73o to which reference is made in the court's opinion, ante at 373, that the project will result in a decrease in the num- ber of currently available public parking spaces (referred to in the court's opinion, ante at n. 5, as "the tangible loss of parking spaces") is of no consequence in view of his findings numbered (1) and (2) above. De' crease in a surplus of available parking;= spaces, leaving a supply adequate to meet; the demand, is not the type of harm G.L. c;;= 40A is designed to protect against. The= same may be said of a minimal increase in9' traffic in a business area which "will be con_;." trolled by implementing certain mitigation: measures." f Apart from evidence concerning traffic andJ, parking, there was no evidence, and there were no findings, suggesting that the zoning board's actions are likely to result in harm to' the plaintiffs' legally protected interests..: Consequently, in my view, the Appeals Court'; correctly concluded, contrary to the legal conclusion reached by the trial judge (al though the aforementioned findings were warranted), and by this court on appeal, that-`• the plaintiffs lacked standing to bring this -` action. The Superior Court, therefore, lacked jurisdiction to review the zoning board's actions. The judgment should be vacated and the action should be dismissed. See Circle Lounge & Grille, Inc. v. Board of: Appeal of Boston, supra at 433, 86 N.E.2d'f 920. } w O S KEY NUMBER SYSTEM T 422 Mass. 1 COMMONWEALTH V. Dennis M. MORRISSEY. Supreme Judicial Court of Massachusetts, Worcester. Argued Nov. 7, 1995. Decided Jan. 31, 1996. Motorist was charged with operating motor vehicle while under influence of intoxi- cating liquor and with being disorderly per- son. On motorist's motion, the District Court, Worcester Division, Patrick A. Fox, CAVANAUGH v. DiFLUMERA Mass. 867 Cite as, Mass.App., 401 N.E.2d 867 thorizes appellate review of orders of single justices only "in the same manner and to Rose T. CAVANAUGH the same extent that the determination of a V. like matter by a single justice of the Su- Joseph J. DiFLUMERA et ai.1 preme Judicial Court may be reviewed by the full court of the Supreme Judicial Appeals Court of Massachusetts, Court." 2. Following the claiming of the Hampden. appeal discussed above, the plaintiff filed a Argued Feb. 14, 1980. petition in the Supreme Judicial Court un- Decided March 19, 1980. der G.L. c. 211, § 3, again seeking relief from the Superior Court's discovery order. That petition was denied by a single justice The Superior Court, Hampden County, of that court "[t]o the extent that [it] seeks Moriarty, J., annulled variance granted by relief from this court under G.L. c. 211, § 3 zoning board of appeals which allowed own - and was transferred to this court "[t]o the ers to use property for general store despite extent, if any, that it seeks other relief." A its location in residence A-2 zoning district, single justice thereafter entered an order and appeal was taken. The Appeals Court, denying all relief, and the plaintiff claimed Greaney, J., held that where denial of vari- an appeal from that order. There is no ante would deprive property owner of vir- to the contention that the tually all practical use of property and merit plaintiff's order of the single justice of the Supreme where exceptional circumstances were Judicial Court delegated to this court any present arising from owners' long-standing question of relief under G.L. c. 211, § 3, a good -faith reliance on series of local zoning course disapproved in Fadden v. Common- decisions which allowed commercial uses on ,- wealth, — Mass. —, -- b, 382 N.E.2d property, zoning board's conclusion that use 1054 (1978). Consequently the appeal from as general store could compatibly exist with the order by the single justice of this court purposes and intent of zoning by law was presents no question as to the present ap- correct, and board was justified in granting pealability of orders in civil cases under variance. G.L. c. 211, § 8. Contrast Cappadona v. Reversed with direction. Riverside 400 Function Room, Inc., supra at I 170, 360 N.E.2d 1048 with Borman v. Bor- 1. Zoning and Planning �723 man, — Mass. —, — n.13 `, 393 N.E.2d Trial judge's findings amply supported 847 (1979). The instant appeal is herefore conclusions that literal enforcement of pro- indistinguishable from the appeal con - m visions of zoning bylaw would involve sub - sidered in part 1 hereof a is similarly stantial hardship and that desirable relief before us improperly. could be without substantial detri- A eals dismissed. pp granted ment to the public good. M.G.L.A. c, 40A, { § 15. Al 2. Zoning and Planning Q-747 In reviewing conclusion that variance derogated from intent and purpose of by- ('�EO'XEY NIIMBEASYSTEM law, reviewing court must accept judge's findings of fact unless convinced that they are clearly erroneous, but reviewing court must independently determine what deci- sion law requires upon the facts found. s !' b. Mass.Adv.Sh. (1979) 2830, 2834. !. Jeannette A. DiFlumera, Joseph's wife, and the board of appeals of Agawam. c. Mass.Adv.Sh. (1979) 2179, 2191, n.13. 5, 868 Mass. 401 NORTH EASTERN REPORTER, 2d SERIES 3. Zoning and Planning 9-488 Unless use significantly detracts from zoning plan for the district, local discretion- ary grant of variance, all other statutory elements having been satisfied, must be up- held; the requirement of substantial dero- gation recognizes that effect of a variance is to give a landowner a license or permit to use his property in a manner otherwise violative of the zoning ordinance and that a use variance in particular permits a use which the ordinance prohibits. 4. Zoning and Planning 0-507 Where denial of variance would have deprived property owner of virtually all practical use of property, where neighbor- hood was not entirely residential but con- tained- some heterogeneity of use, and where exceptional circumstances were present arising from owners' long-standing good -faith reliance on series of local zoning decisions which allowed commercial uses on property, zoning board's conclusion that use as general store could compatibly exist with purposes and intent of zoning bylaw was correct, and board was justified in granting variance. James L. Allen, Springfield, for defend- ants. Before GREANEY, ROSE and PERRET- TA, JJ. GREANEY, Justice. [1, 23 A Superior Court judge annulled a variance granted by the board of appeals of Agawam which allowed Joseph J. and Jean- nette A. DiFlumera to use their property on Southwick Street in Agawam (locus) for a general store despite its location in a Resi- dence A-2 zoning district. The judge took a view and made careful and detailed find- ings of fact concerning each of the three conjunctive statutory requirements imposed by G.L. c. 40A, § 15 (as in effect prior to amendment by St.1975, c. 808, § 3),1 as prerequisites to the grant of a variance. Z. Unless otherwise noted, all references to G.L. c. 40A in this opinion are to the enabling act as It existed prior to amendment by St.1975, c. Blackman _v. Board of Appeals of Barnsta- ble, 334 Mass. 446, 450, 136 N.E.2d 198 (1956); Atherton v. Board of Appeals of Bourne, 334 Mass. 451, 454,136 N.E.2d 201, 203 (1956). The judge's findings amply sup- port his conclusions that "owing to condi- tions especially affecting [this] parcel . . but not affecting generally the zoning dis- trict in which it is located, a literal enforce- ment of the provisions of the . . . by- law would involve substantial hardship . . . and [that] desirable relief may be granted without substantial detriment to the public good." G.L. c. 40A, § 15. Fur- ther discussion as to the existence of these requirements is unnecessary. Rodenstein v. Board of Appeal of Boston, 337 Mass. 333, 335-336, 149 N.E.2d 382 (1958). The judge predicated annulment of the variance on the sole ground that it derogated from the intent and purpose of the by-law. Planning Bd. of Springfield v. Board of Appeals of Springfield, 355 Mass. 460, 462, 245 N.E.2d 454 (1969), and cases cited. In reviewing that conclusion, we must accept the judge's findings of fact unless convinced that they are clearly erroneous (Broderick v. Board of Appeal of Boston, 361 Mass. 472, 477, 479, 280 N.E.2d 670 [1972]), but we are to inde- pendently "determine[ ] what decision the law requires upon the facts found." Bick- nell Realty Co. v. Board of Appeal of Bos- ton, 330 Mass. 676, 679, 116 N.E.2d 570, 673 (1953); Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 559, 120 N.E.2d 916 (1954). On the facts found by the judge, we conclude that the variance will not nullify or substantially derogate from the intent and purpose of the zoning by- law, and, as a consequence, we hold that the board's decision must be sustained. The locus consists of a narrow tract of Iand in Agawam located on that section of Southwick Street which is part of a heavily traveled highway (Route 57). The area sur- rounding the property has a mixed residen- tial and rural flavor with a number of small fruit and vegetable stands along the high- 808, § 3. Chapter 808 did not become effective in Agawam until June 30, 1978, and is inappli- cable to the zoning decision under review. CAVANAUGH v. DiFLUMERA mass. 869 Cite as, Mass.App., 401 N.E.2d 867 way. The area contains a small shopping. area one mile east of the locus on South- wick Street and a Polish -American club within 900 feet of the locus. A 292-unit Federally subsidized housing development is under construction nearby. This project will be substantially tenanted by low in- come veterans and 'elderly citizens and has a walkway running to Southwick Street in the vicinity of the locus. The property abuts a cemetery on one side and the con- forming residential lot with the plaintiff's home on the other. It has frontage of 39.70 feet on Southwick Street, in a zone which requires not less than 110 feet. The re- stricted frontage has the effect of preclud- ing construction of a new building for any purpose, because the lot does not meet sev- eral dimensional requirements established by the by-law for the zoning district and is not entitled to the protection accorded non- conforming residential lots in certain cir- cumstances by both the old and new enab- ling acts. See G.L. c. 40A, § 5A, as in effect prior to .St.1975, c. 908, § 3; G.L. c. 40A, § 6, as appearing in St.1975, c. 808, § 3 (both requiring a minimum frontage of at least 50 feet). The, lot contains a one- story cement block building, which was originally constructed as a commercial ga- rage in 1923 or 1924, before the adoption of zoning in Agawam. Since that time, it has been utilized mainly for various commercial purposes under so-called "variation[s] of the zoning by-law," the most recent being a `variance" granted in 1967 to -use the prem- ises as a general store. Although tenants from time to time did occupy a rear apart- ment in the building, the judge specifically found that the building was now totally unfit for human habitation without sub- stantial alterations forbidden by the zoning by-law. He also concluded that the build- ing in its present condition is unusable for any purpose without a variance. In 1974, when a prior owner petitioned the board for permission to use the premises for professional offices, the petition was denied by the local board on the basis that the 1967 `variance" was still in effect. The DiFlumeras purchased the property in 1976, intending to use it for a general store, after ascertaining from the building inspector and pertinent town records that the lot purportedly enjoyed a "variance" for that purpose. They received a certificate of oc- cupancy pursuant to the existing status of the, zoning and expended considerable funds renovating and repairing the interior and exterior of the building, which by that time had become rat infested and badly deterio- rated. In 1977, the plaintiff commenced a civil action in the Superior Court seeking to enforce the provisions of the zoning by-law and to revoke the DiFlumeras' building per- mit. G.L. c. 40A, § 22. Relief was granted in that action on the basis that the "vari- ances" granted to the DiFlumeras' prede- cessors in title were in fact permits to con- tinue non -conforming uses, which had been eliminated by abandonment. The DiFlum- eras appealed from the judgment. While the decision was on appeal, the DiFlumeras applied for and were granted the variance which is the subject of this appeal. Upon receipt of the variance, they withdrew their appeal from the judgment in the earlier case. That decision bad the effect of dra- matically changing a settled zoning picture in existence for virtually thirty years, which was relied upon by the town and the de- fendants, and which had established the right for the site to be used commercially. There is also no doubt that the DiFlumeras withdrew their appeal from the judgment in that case because of the grant of the variance now under study. In concluding that the variance would not cause any substantial detriment to the pub- lic good, the judge specifically found the following: that the improvements which the DiFlumeras had already accomplished "are much to be preferred over the derelict and rat -infested conditions existing when they acquired ownership; " that their "modest business enterprise , . - is . . . of substantial benefit to the dis- trict as a whole;" that "[i]t provides a convenient and easily accessible location for incidental shopping which tends (except perhaps to the immediate abutter [the plaintiff]) toward a more comfortable resi- dential environment; " that when the hous- 870 Mass. 401 NORTH EASTERN REPORTER, 2d SERIES ing project is completed it will serve as "a convenient location for immediate shopping needs within walking distance for those el- derly or handicapped residents of the project who will lack the mechanical means of traveling to more remote areas; " and that its location on a principal traffic artery adjoining a cemetery "tends to minimize whatever adverse effect it might have on the otherwise residential and rural flavor of the district." All of these findings apply with equal force to the substantial deroga- tion question. As to the value of the prop- erty without a variance, the judge observed that "[t]he DiFlumeras . . , find themselves in the untenable position of owning a building which cannot lawfully be used for any purpose . . .. [T]he only value of the property is for sale to an abutter —and even that value would be di- minished because of the cost of demolishing the useless structure." [3,41 We think that the judge, in con- sidering whether the use permitted by this variance derogates from the intent and pur- pose of the zoning by-law, overlooked the fact that the deviation must be substantial, and that, unless the use significantly de- tracts from the zoning plan for the district, the local discretionary grant of the variance (all the other statutory elements having been satisfied) must be upheld. The re- quirement of substantial derogation recog- nizes that the "effect of a variance is to give a landowner a license or permit to use his property in a manner otherwise viola- tive of the zoning ordinance," (3 Rathkopf, Zoning and Planning § 38.06, at 38-63 (4th ed. 1979)), and that a use variance in partic- ular "permits a use which the ordinance prohibits." Id., § 38.01, at 38-1. Because of this, some derogation from the by-law's purpose is anticipated by every variance. Otherwise, the denial of relief on the basis 3. In its decision, the board described the fol- lowing permitted uses conducted at the site: 1949-1952, a retail store; 1952-1962, a retail store and barber shop; 1962--1967, a brush factory; 1967 through 1978, a general store (with use as a church when the general store was not operated). of a slight or insubstantial departure from the goals of the by-law would prohibit the grant of any variance, and would, in cases such as this one, approach confiscation by depriving a property owner of virtually all practical use of his property. Id. at 38-4 n.12, and cases cited. There is no question that the DiFlumeras' use of the site for a small general store will be aesthetically more attractive than what previously existed at the locus (see DtRico v. Board of Appeals of Quincy, 341 Mass. 607, 609-610, 171 N.E.2d 144 [1961]), and that their modest business will be of sub- stantial benefit to the district as a whole. Broderick v. Board of Appeal of Boston, 361 Mass. at 479, 280 N.E.2d 670, 676. There has been a lengthy period of similar noncon- forming uses on the site, which were such that "the present changes will not substan- tially alter either the nature or the scope of the use." s Ibid. See also Tanzilli v. Casas- sa, 324 Mass. 113, 117, 85 N.E.2d 220 (1949); Rodenstein v. Board of Appeal of Boston, 337 Mass. at 337, 149 N.E.2d 382. It is also important that the neighborhood is not, in fact, entire]y residential, but contains some heterogeneity of use (Tanzilli v. Casassa, supra; contrast Hunt v. Milton Say. Bank, 2 Mass.App. 133, 139-140, 309 N.E.2d 525 [1974)), and that the by-law itself permits some business use. (See Kairis v. Board of Appeal of Cambridge, 337 Mass. 528, 531, 150 N.E.2d 278 [1958]).4 We cannot ignore the important fact that there are exceptional circumstances present, arising from the defendants' long- standing good faith reliance on a series of local zoning decisions which allowed com- mercial uses on the property ,and which were retroactively declared invalid —a cir- cumstance which has been found in the past to justify relaxation of zoning restrictions. 4. The Residence A-2 zoning district permits, in addition to residential use, professional offices of various types when the professional resides on the premises, beauty parlors when the oper- ator resides on the premises, cemeteries, government buildings, schools, colleges, churches and telephone exchange buildings. See § 20-21(a)(c)(e)(f)(g) & (i) of the zoning by-law. com. v. CUTTER Cite as, Mass.App., 401 N.E.2d 971 ee Rodenstein v. Board of Appeal of Bos- o on, supra, 337 Mass. at 336,149 N.E.2d 382, nd cases cited. The relative isolation of p he locus also minimizes its possible adverse t mpact on the district (Dion v. Board of t 4ppeals of Waltham, 344 Mass. 547, 551— i52, 183 N.E.2d 479 [1962]), and the exist- r .nee of the store will tend to create a more t comfortable residential environment -hroughout the district. It is reasonably ,lear from the findings that the only prop- erty which might incur any adverse effect from the presence of a small convenience store at this site is the plaintiff's, and that her degree of injury is considerably mitigat- ed by the fact that commercial uses (and at one time a light industrial use) have existed ai the location for over thirty years. The use variance was also buffered by the board's imposition of a series of restrictions which are designed to lessen its impact on the rest of the neighborhood and to prevent its future expansion. Rosenstein v. Board of Appeal of Boston, supra, 337 Mass. at '337, 149 N.E.2d 382.5 Finally, the facts found by the judge make the present case parallel to deciof sions such as Rodenstein v. Board of Appeal Boston, supra at 335-336, 149 N.E.2d 382; Kairis v. Board of Appeal of Cambridge, supra, 337 Mass. at 529-522, 150 N.E.2d 278; Dion v. Board of Appeals of Waltham, supra, 344 Mass. at 550-552, 183 .E. of 479; and Sherman v. Board of Appeals Worcester, 354 Mass. 133, 135--136, 235 N.E.2d 800 (1968)—all cases where the trial judge appears to have found that it was not economically feasible or likely that the locus would be developed in the future for a use permitted by the zoning ordinance or by- law. Contrast DiRico v. Board of Appeals of Quincy, supra, 341 Mass. at 610, 171 N.E.2d 144; Hunt v. Milton Say. Bank, supra, 2 Mass.App. at 140, 309 N.E.2d 525. There were no specific negative factors found by the judge which effectively count- erbalance his positive findings as to the use, 5. These restrictions comprehensively deal with and limit the store's hours of operation and the scope of its trade, grant permission for one specified sign, prohibit any flashing signs, re- strict all sales of merchandise to the inside of Mass. 8'71 r which persuade us that the relief granted will substantially detract from the intent or urpose of the zoning created for the dis- rict. It follows that the board's conclusion at the use could compatibly exist with the purposes and intent of the by-law was cor- ect and that it was justified in granting he variance. Tanzilli V. Casassa, 324 Mass. at 117, 85 N.E.2d 220, and cases cited. Pen- dergast v. Board of Appeals of Barnstable, 331 Mass. at 659, 120 N.E.2d 916, The judgment annulling the variance is reversed. A new judgment is to be entered stating that the decision of the board did not exceed its authority. So ordered. w 0 5 KEY NUMBER SYSTEM r COMMONWEALTH V. George E. CUTTER. Appeals Court of Massachusetts, Middlesex. Argued Nov. 21, 1979, Decided March 20, 1980. Appeals were taken from the Superior Court, Middlesex County. The Appeals Court held that: (1) that portion of clinical report of hospital record containing medical history was admissible in part in rape prose- cution, and (2) although "Incident Report" portion of hospital record might have been excluded on properly framed objections, its admission did not require reversal, even on a properly saved exception, since references relative to liability added nothing to com- plainant's own testimony at trial. Affirmed. the store, bar any alterations which would in- crease the size of the building, and otherwise, in various ways, impose conditions on the lim- ited business use authorized. 268 Mass. 64 NORTH EASTERN REPORTER, 3d SERIES levels." The Auditor noted in her decision that the proposed ESP contract guaran- tees services to those in psychiatric dis- tress twenty-four hours each day, seven days per week, regardless of the hours when the community -based location is staffed,' and that only 0.63 per cent of patient encounters in the Southeast region over the prior year took place at the com- munity centers during a time when staff would not be present under the terms of the model contract. She determined that any impact on service would be "de minim - is." This was not unreasonable. We accordingly conclude that the Audi- tor's judgment. that the quality of services would not decline as a result of the pro- posed privatization was reasonable. See Forsyth Sch, For Dental Hygienists v. Board of Registration in Dentistry, 404 Mass. 211, 218, 534 N.E.2d 773 (1989) ("[An agency's decision] can be disturbed only if it is based on a legally untenable ground . , . or is unreasonable , .." [quota- tions and citation omitted] ). _1y3. Conclusion. The matter is re- manded to the county court for entry of an order affirming the Auditor's determina- tion that DMH's 2016 proposal to privatize its southeastern emergency service pro- grams comports with the requirements of the Pacheco Law, So ordered. w O E KEY HUM 6E$ SYSTEM r 26. Under the model contract, community - based locations in Brockton and Taunton would be open for walk-in services between 8 A.M. and 8 P.M., Monday through Friday, while the locations in Cape Cod and Fall River would be open between 7 A.M. and I I P.M. 27. DMH represented to the Auditor during the review process that ESPs would use mo- 90 Mass.App.Ct, 737 Michael F. FURLONG & ano, V. ZONING BOARD OF APPE, OF SALEM & another-2 No. 16-P--1174. Appeals Court of Massachusetts, Suffolk. Argued Oct. 7, 2016. Decided Dec. 12, 2016. Background: Abutter appealed from deci- sion of local zoning board of appeals grant- ing dimensional variance to allow property owner to build new boat repair facility outside of setback requirements of local zoning ordinance. Following a jury -waived trial, the Land Court Department, Suffolk County, Robert B. Foster, J., 2015 WL 3838158, affirmed the board' s decision. Abutter appealed. Holding: The Appeals Court, Blake, J., held that safety concerns that would result if owner complied with ordinance qualified as a "hardship" supporting variance appli- cation. Affirmed. 1. Zoning and Planning (3a1656 When a decision of a zoning board of appeals is appealed, the judge is required to hear the matter de novo and determine the legal validity of the decision of the bile service centers to respond to patients in distress. 1. Delores T. Jordan. 2. BHCM Inc., doing business as Brewer Haw- thorne Cove Marina. FURLONG Y. ZONING BD, OF APPEALS OF SALEM Mass. 269 Cite as64 N.E.3d 268 (Mase.App.Ct. 2016) board upon the facts 'found by him. M.G.L.A. c. 40A, § 17. 2. Zoning and Planning c- 1624, 1631 The decision of a zoning board of ap- peals cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or ar- bitrary. M.G.L.A.. c. 40A, § 17. 3. Zoning and Planning (9=1747, 1754 On review of a trial court's decision on appeal of a local zoning board decision, the appellate court accepts the trial court's findings of fact unless clearly erroneous, but independently review its determina- tions of law. 4. Zoning and Planning c^ 1466, 1471 By their very nature, zoning variances are individual waivers of local legislation that permit nonconformity; for that reason, -they are not allowed as a matter of right, but, rather, should be sparingly granted. 5. Zoning and Planning c-1469 Each of the requirements of the stat- ute governing zoning variances must be met before a local zoning board may grant a variance. M.G.L.A. c. 40A, § 10. 6. Zoning and Planning e=1492 Safety concerns that would result if boat repair facility was constructed 'within setback requirements of local zoning ordi- nance, and would be ameliorated by the granting of a dimensional variance, quali- fied as a "hardship" supporting property owner's variance application, if owner ad- justed its plans to fit ordinance, a signifi- cant risk of harm for people and property near marine travel lift hoist would result. M.G.L.A. c.40A, § 10. See publication Words and Phras- es for other judicial constructions and definitions. The lot has at least twenty-five sides, five of Zoning and Planning 0=1480 Where a zoning variance diminishes the risk of an existing harm or where it prevents a greater risk of harm that would result from compliance with a zoning ordi- nance, such a hardship may merit a vari- ance. M.G.L.A. c. 40A, § 10. Dana Alan Curhan, Boston (Lawrence A. Simeone, Jr., Revere, with him) for the plaintiffs. Leonard F. Femino, Beverly, for BHCM Inc. Present: HANLON, SULLIVAN, & BLAKE, JJ. BLAKE, J. 1?37The defendant, BHCM Inc., doing business as Brewer Hawthorne Cove Mari- na (Brewer), sought and received a dimen- sional variance from the defendant, zoning board of appeals of Salem (board), allowing it to build a new boat repair facility outside of the setback requirements of the local zoning ordinance. The plaintiff abutter, Michael F. Furlong, filed a G.L. c. 40A, § 17, appeal in the Land Court. Follow- ing a jury -waived trial, the judge affirmed the board's decision, concluding that strict enforcement of the zoning ordinance would create an unnecessary safety hazard, and that Brewer accordingly had demonstrated a hardship sufficient to merit the allow- ance of a variance. We agree and affirm. J28Background. We recite the facts found by the judge, which are undisputed by the parties. Brewer owns a nonrec- tangular parcel of property 8 with frontage on White Street and Turner Rear Street in Salem (property) that it operates as an active marina. The property consists of a which border the water. 270 Mass. 64 NORTH EASTERN REPORTER, 3d SERIES large, open, paved area with about 115 parking spaces and several structures, and is bordered by Salem harbor, residential dwellings, and a municipal parking lot. The structures include a combination shower, bath, and laundry house, a pres- sure wash shed, an approximately 1,500 square foot temporary Quonset but located in the center of the property, a small dock house, and a "marine travel lift' hoist (travel lift). As part of its marina opera- tion, Brewer conducts boat repairs on the property, either outdoors or inside the Quonset hut. By application dated October 26, 2011, Brewer submitted a petition for a variance to the board seeking to construct a new building on the northern edge of the prop- erty, outside of the setback requirements of the local zoning ordinance. The pro- posed building would serve as the marina's boat repair facility, allowing the removal of the Quonset but from the center of the property, and would also serve as the new location for the office. Brewer seeks to place the proposed building at the edge of the property in order to provide adequate room for the safe operation of the travel lift,4 and to reduce the noise and fumes generated by the boat repairs presently occurring in the Quonset hut. As part of the building plan, the width of the en- trance to the marina from White Street also would be widened, which would pro- vide better access, including for emergen- cy vehicles. 4. The judge found: "The travelift is used year- round. It lifts boats from the water and car- ries them to where they will be repaired. It repeats the process to put the boats back in the water. These operations require the tra- velift to turn in a radius equal to 1.4 times the length of the boat. Because there are signifi- cant blind spots for the operator of the travel- ift, a certain amount of open area is required for its safe operation, especially given. -that marina members also use the marina to ac- Following a duly noticed public hearing on Brewer's application,' the members of the board voted to approve the application and filed a decision dated February 1, 2012, with the local city clerk's office. The board's decision notes that in so deciding, theLUsboard found that "impacts to the neighborhood were shown to be less aub- stantial if sited as proposed rather than where it would be allowed by right." Fur- long, who lives in a condominium unit ap- proximately one hundred feet from the northern property line of the property, filed a complaint in the Land Court pursu- ant to G.L. c. 40A, § 17, challenging the decision of the board as legally untenable, arbitrary, and capricious. In a comprehensive and thoughtful memorandum of decision, the judge ruled that Furlong is a person aggrieved by the variance and, accordingly, has standing to bring the present action.' On the merits of the variance, the judge found that the evidence established that, owing to the shape of the property, strict enforcement of the zoning ordinance would result in a risk of physical harm. Finding that the safety risk constituted a substantial hard- ship to Brewer, the judge affirmed the board's allowance of the variance. This appeal followed. [1-31 Standard of review. When a de- cision of a zoning board of appeals is ap- pealed, "the judge is required to hear the matter de novo and determine the legal validity of the decision of the board upon cess their boats. Locating the Building on the northern edge of the Property would pro- vide an open area for operation of the travelift away from where cars are parked." 5. An initial public hearing was held on No- vember 16, 2011; the hearing was continued to January 18, 2012: 6. Furlong's status as a person aggrieved is not challenged on appeal. FURLONG v. ZONING BD. OF APPEALS OF SALEM Mass. 271 Cite as 64 N.E.3d 268 (Mass.App.Ct 2016) the facts found by him." Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 295,286 N.E.2d 436 (1972) (Josephs). See G.L. c. 40A, § 17, inserted by St. 1975, c. 808, § 3 ("The court shall ... determine the facts, and, upon the facts as so deter- mined, annul such decision if found to ex- ceed the authority of such board"). "Judi- cial review is nevertheless circumscribed: the decision of the board 'cannot be dis- turbed unless it is based on a legally un- tenable ground, or is unreasonable, whim- sical, capricious or arbitrary."' Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass, 478, 486, 709 N.E.2d 798 (1999), quoting from MacGibbon v. Board of Ap- peals of Duxbury, 356 Mass. 635, 639, 255 N.E.2d 347 (1970). In our review of the judge's decision, we accept his findings of fact unless clearly erroneous, but indepen- dently review his determinations of law. Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 475, 961 N.E.2d 1055 (2012). [41 Discussion. By their very nature, variances "are individual waivers of local legislation" that permit nonconformity. Mendoza v. Licensing Bd• of Fall River, 444 Mass. 188, 207, 827 N.E.2d 180 (2005). For that reason, they "are not allowed as a matter of right, but, rather, should be 'sparingly granted."' Fussier v. Zoning Bd. of Appeals of Pea�body,74o 447 Mass. 531, 534, 854 N.E.2d 1236 (2006), quoting from Barron Chevrolet, Inc, v. Danvers, 419 Mass. 404, 408, 646 N.E.2d 89 (1995). [51 Consistent with these principles, the statutory requirements that must be met for an individual seeking a variance are rigorous. Josephs, supra at 292, 285 N.E.2d 436, General Laws c. 40A, § 10, inserted by St. 1975, c. 808, § 3, authorizes a board of appeals to grant a variance 7. The zoning ordinance at issue here essen- tially tracks the statutory requirements of G.L. c. 40A, § 10, with the exception of the from the local zoning ordinance only where it: "specifically finds [a] that owing to cir- cumstances relating to the soil condi- tions, shape, or topography of such land ... and especially affecting such land ... but not affecting generally the zon- ing district in which it is located, [b] a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or other- wise, to the petitioner or appellant, and [c] that desirable relief may be granted without substantial detriment to the public good and [d] without nullifying or substantially derogating from the intent or purpose of such ordinance or by- law."' Each of the requirements of the statute must be met before a board may grant a variance. Warren v. Zoning Board of Ap- peals of Amherst, 383 Mass. 1, 9-10, 416 N.E.2d 1382 (1981). [6] Here, the judge found that each of the statutory requirements had been met based on the evidence presented at trial. As to the first two requirements, the judge found that, because of the peculiar shape of the property, hardship in the form of safety hazards would result if the building were constructed within the setback re- quirements. The safety hazards, likely to cause "injury to people and property," would be caused by the building interfer- ing with the operation of the travel lift, which requires a large, open turning radi- us free of blind spots. See note 3, supra. Placement of the building at the northern edge of the property would eliminate the safety risks associated with strict enforce- ment of the setback requirements. As to the final two requirements under the stat- language of prong [a], supra, which appears to be more lenient. The difference does not affect the outcoine of this case. 272 Mass. 64 NORTH EASTERN REPORTER, 3d SERIES ute, the judge agreed with the board that the proposed placement of the building would neither be of substantial detriment to the public good, nor nullify or substan- tially derogate from the intent or puspose7dt of the ordinance, as the pro- posed placement of the building would lim- it interference with neighbors' views, and limit the perception of increased density in the area by maintaining as open an area as posaible.B On appeal, Furlong argues that the safe- ty concerns found by the judge do not constitute a hardship under the statute. The question whether a safety concern, ameliorated by the granting of a variance, qualifies as a hardship under § 10 has not been extensively analyzed in our case law. Indeed, the only case to have so held is Josephs, supra. In Josephs, the Supreme Judicial Court examined a variance allow- ing a developer to construct a loading bay with a reduced height in a high-rise com- mercial and residential building. The Su- perior Court judge in that case found that if the zoning ordinance were strictly ap- plied, one alternative would result in a safety hazard to persons using the exces- sively steep ramp, while the other would result in an economic loss due to interfer- ence with the configuration of the building. Id, at 293, 286 N.E.2d 436. On these facts, the court concluded that the judge was 8. Furlong argues that Brewer has failed to meet its burden of showing no substantial detriment to the public good because his view would be affected by the granting of the vari- ance. The claims fails, if for no other reason, because the building would affect Furlong's view even if built by right. Contrast, e.g., Chiancola v. Board of Appeals of Rockport, 65 Mass.App.Ct. 636, 637-638, 843 N.E.2d 108 (2006) (upholding denial of variance to build residential structure on lot because poor emergency vehicle access is substantial detri- ment to public good). Furlong also argues that the variance sub- stantially derogates from the intent or pur- pose of the zoning ordinance by increasing warranted in finding that a "hardship, fi- nancial or otherwise" had been demon- strated. Ibid. [71 Like the developer in Josephs, the facts here demonstrate that if Brower ad- justed its plans to fit within the require- ments of the local zoning ordinance, a sig- nificant risk of harm for the people and property near the travel lift would result. We agree with the judge that "[w]here a variance diminishes the risk of an existing harm or where it prevents a greater risk of harm that would result from compliance with a zoning ordinance, such a hardship may merit a variance." We also agree that the unique circumstances in this case, and the degree of danger that would result from compliance with the zoning ordi- nance, support the judge's finding of a hardship. Accordingly, where the unchal- lenged evidence, found de novo by the judge, satisfies all of the requirements of the statute_1142the derision of the board must be affirmed.' Judoneni affirmed, w p SKtYHUMeERSYSTEM T density. The argument likewise fails, as the judge's finding that the proposed placement of the building would limit the perceived den- sity in the area is supported by the record. 9. Citing Warren v. Zoning Bd. of Appeals of Amherst, 393 Mass. at 12--13, 416 N.E.2d 1382, and Arrigo v. Planning Bd, of Franklin, 12 Mass.App.Ct, 802, 804, 429 N.E,2d 355 (1981), Furlong argues that relief in the form of a variance is not warranted in this case because any hardship Brewer is facing is of its own creation. Warren and Arrigo are inap- posite, as they concern the knowing division of a lot for the purpose of creating multiple smaller, nonconforming lots, rather than the FURLONG v. ZONING BD. OF APPEALS OF SALEM Mass. Zia Cite n 64 N.E.3d 268 (Mass.App.Ct. 2016) placement of a building within a single lot dress the safety concerns are either specula - that could be built by right. Finally, the tive or were implicitly rejected by the judge as alternative options offered by Furlong to ad- inadequate. BOYAJUN v. BD. OF APPEAL OF WELLESLEY Mass. 1237 Cite as, Mass.App., 374 N.1,2d 1237 3. Zoning (B;-384 Vahe E. BOYAJIAN et al. V. BOARD OF APPEAL OF WELLESLEY et al. Appeals Court of Massachusetts, Norfolk, Argued March 14, 1978. Decided April 25, 1978, Action was brought to review decision of town board of appeals granting special permit to construct medical office building in single-family residential district. The Superior Court, Norfolk County, Lynch, J., affirmed board's action, and appeal was taken. The Appeals Court, Hale, C. J., held that: (1) before variance can be granted all of the statutory requirements must be satis- fied, and (2) board did not abuse its discre- tion in granting the permit where it was highly unlikely that the locus would be usa- ble for residential purposes, locus was situ- ated on heavily traveled service road or ramp and was in vicinity of other commer- cial establishments, there was a need for such a medical unit as the one proposed and proposed use of the locus would not reduce property values. Judgment affirmed. 1. Zoning 0-544 Before a variance can be granted all of the statutory requirements must be satis- fied; both the board of appeals and the trial judge must make findings as to each of the statutory prerequisites of a variance. M.G.L.A, c. 40A § 15, subds. 2, 3. 2. Zoning a499 Close proximity to a highly commer- cialized area is one factor which can be considered in concluding that a parcel of land is "economically useless" for the devel- opment of single-family residences, so as to warrant issuance of a variance. M.G.L.A. c. 40A § 15, subds. 2, 3. Town board of appeals did not exceed its authority in granting special permit to construct office building on property situat- ed in single-family residential zone where subject property was located on boundary of the single-family residence zone and was situated on heavily traveled service road or ramp, locus was situated next to commer- cial establishments, there was need in the town for a unit such as the one proposed, proposed use of the locus would not reduce property values, adequate parking was to be provided, due to its location the locus was unsuitable for single-family dwelling. .M.G.L.A. c. 40A § 15, subds. 2, 3. Kennard 1. Mandell, (Barry D. Ziff with him), for plaintiffs. Sumner D. Goldberg, Boston, for Roy T. LaRossa. Albert S. Robinson, Town Counsel, Wellesley, for Bd. of Appeal of Wellesley. Before HALE, C. J., and GRANT and BROWN, JJ. HALE, Chief Justice. This is an appeal from a judgment of the Superior Court affirming a decision of the board of appeals of the town of Wellesley (board) granting a special permit (G.L. c. 40A, § 15[2], as amended through St.1958, c. 381) and a variance (G.L. c. 40A, § 15[3], as amended through. St.1958, C. 381) to Roy-T. LaRossa to allow the construction of a medical office building on the subject prop- erty (locus), which is in a district zoned for single family residences. The- plaintiffs, owners of property located in the same zone as the locus, complain that the board ex- ceeded its authority in granting the permit and variance to LaRossa. Because we hold that the board did not exceed its authority in granting the variance, we need not ad- dress the questions presented by the grant- ing of the permit. [1-3] "[T)he burden rests upon the per- son seeking a variance and the board order- ing a variance to produce evidence at the 1238 Mass. 374 NORTH EASTERN REPORTER, 2d SERIES hearing in the Superior Court that the st utory prerequisites have been met and th the variance is justified." Dion v. Board Appeals of Waltham, 344 Mass. 547, 55 556, 183 N.E.2d 479, 484 (1962). Before variance can be granted, all of the requir ments set forth in G.L. c. 40A, § 15(3 must be satisfied. Planning Bd. of Sprirr field v. Board of Appeals of Springfield, 3 55 d COSTA v. ZONING BD. OF APPEALS OF FRAMINGHAM Mass. 1239 Cite as, Mass.App., 374 N.E.2d 1239 the service road, no significant increase in traffic would result. The judge also found that, given the foregoing facts and the to- pography of the locus, none of which affect- ed other parcels in the zoning district, it was highly unlikely that the locus would be usable for residential purposes, (the board had also found the locus to be unsuitable for a single family dwelling) and that the locus would thus suffer a special hardship not shared by other properties in the zoning district. The judge ruled that the board had not exceeded its authority in granting the vari- ance because it had "found that each of the necessary preliminary conditions to the grant of a variance existed, and that it adequately stated the reasons therefor by definite statements of rational causes and motives." G.L. c. 40A, § 15(3). The specif- ic findings of the judge and of the board met the statutory requirements (1) that, owing to conditions especially affecting the locus but not affecting generally the zoning district in which it is located, a literal en- forcement of the by-law would involve sub- stantial hardship; and (2) that desirable relief may be granted here by way of a variance without substantial detriment to the public good and (3) without nullifying or substantially derogating from the intent and purpose of the by-law. The plaintiffs argue that the proximity of the locus to a business zone which has be- come highly commercialized is not per- suasive on the issue of substantial hardship. The argument attempts to focus too narrow a point. Close proximity to a highly com- mercialized area is one factor which can be considered in concluding that a parcel of land is "economically useless" for the devel- opment of single family residences. See O'Brian v. Board of Appeals of Brockton, 3 Mass.App. — 11, 326 N.E.2d 728 (1975); Hunt v. Milton Say. Bank, 2 Mass.App. 133, 139-140, 309 N.E.2d 525 (1974), and contrast cases cited. The decision in Coolidge v. ,Zoning Board of Appeals of Framingham, 343 Mass. 742, 745, 180 N.E.2d 670 (1962), is not to the contrary. The board imposed conditions on the granting of the variance. G.L. c. 40A, § 15(3). Among other things, the board required that the final plans be submitted to it for approval, that the landscaping be maintained to the satisfaction of the board for the life of the building, and that all traffic from the locus entering onto the service road should make a right hand turn only. These requirements indicate that the board as well as the owners intend to en- sure that the purpose of the zoning by-law is served by the building. We hold that on the facts found by him the judge was correct in ruling that the board had made the preliminary findings required of it and that it had not exceeded its authority in granting the variance. See Johnson v. Board of Appeals of Wareham, 360 Mass. 872, 277 N.E.2d 695 (1972), and cases cited; Broderick v. Board of Appeal of Boston, 361 Mass. 472, 479, 280 N.E.2d 670 (1972), Judgment affirmed. �SKINUMBERSYSTEM Andrew D. COSTA et al. V. ZONING BOARD OF APPEALS OF FRAMINGHAM et al. Appeals Court of Massachusetts, Middlesex. Argued Feb. 16, 1978, Decided April 25, 1978. An action was brought to annul a deci- sion of the Zoning Board of Appeals grant- ing a variance. The Superior Court, Mid- dlesex County, upheld the Board, and an appeal was taken. The Appeals Court held a. Mass.App.Ct.Adv.Sh. (1975) 638. Law Office of Singer & Singer, LLC 26 Upper County Road P. O. Box 67 Dennisport, Massachusetts 02639 Andrew L. Singer Myer R. Singer Of Counsel ZONING ANALYSIS -- REVISED (June 21, 2019) Pro e 473, 479, and 487 (portion) Station Avenue, South Yarmouth, MA Proposed Use Tel: (508) 398-2221 Fax: (508) 398-1568 www.singer-law.com Fuel service station and convenience store. Including closing and decommissioning two old, outdated fuel service stations located within one -quarter mile of the new property and replacement with a state -of - art fuel service station. There will be a net decrease in the 1) number of underground fuel storage tanks, 2) gallons of fuel stored, and 3) amount of fuel -related piping in the APD. Zoning Relief Required Use: Special Permit — H6 (Motor Vehicle Fuel and Service) in B 1 Zoning District (no service proposed) and H10 (Eating and Drinking Establishment) in APD; Variance — H6 (Motor Vehicle Fuel and Service) in APD (no service proposed); and Permitted — H3 (Food Store) in 131 Zoning District and APD and HI (Eating and and Drinking Establishment) in B 1 Zoning District. 2. Dimensional - Variance A. Canopy front setback (43.7 ft. provided) (Section 203.5 Footnote J); B. Parking in front of building (Section 301.4.1); C. Curb cut width (30 ft. provided) (Section 301.4.3); D. Centerline of southerly on -site driveway less than 250 ft. from northerly on -site driveway and shopping center driveway across the street (Section 301.4.7); E. In -lot trees and plant species (Sections 301.4.6 and 301.9) -- two in -lot trees have now been provided; relief requested for two additional trees; F. Front buffer tree (Section 301.4.9); G. Photometrics (perimeter boundary and driveways —see Supplemental Memorandum) (Section 301.4.10); and H. Drive-thru stacking lane (conforming number of cars now shown, but relief requested to designate three closest parking spaces as employee only) (Section 301.8); Signs - Variance A. Section 303.5.2 — directional signage, including Do Not Enter and Trucks with Trailers to Outside of Pumps (size); B. Section 303.5.4.1 — freestanding sign (face area square footage and LED price panel"); C. Section 303.5.5.2 — attached signs (height for Seasons, co -brand, and canopy pecten; and total number for Seasons, Corner Market, Co -Brand, Welcome, and Canopy Pectens); D. Section 303 -- Under canopy lighting — foot candles, to the extent necessary -- Per Determination of the Building Commissioner after review of the Zoning By -Law, this relief is not required for the lighting fixtures themselves. See 2.G above; E. Section 303 — Two upward lights at Corner Market sign — Per Determination of the Building Commissioner after review of the Zoning By -Law, this relief is not required; F. Section 303 — Drive-thru/Menu Board**; G. Section 303 — Pump toppers with 12 LED prices"; H. Section 303 — Video Screens on pumps; and I. Section 303 — Advertising above dispensers. ** At the Yarmouth 2019 Annual Town Meeting, Section 303.3 of the Zoning By -Law was amended to allow LED price panels on freestanding signs and pumps for gas stations and also to allow drive- thru/menu boards. While effective as of Town meeting, final approval from the MA Attorney General is in process. The area of the proposed LED pricing on the freestanding sign (5.6 sq. ft.) will conform to the new Zoning By -Law provision as will the height of the diesel pricing (9 in.); however, relief is still requested for the height of the gas pricing (15.5 in. requested; 12 in. allowed). The height of the gas and diesel pricing on the pumps will conform to the new Zoning By -Law provision. The size and placement of the drive thru/menu board will conform to the new Zoning By -Law provisions. The original requests for sign relief were overly conservative at that time. Further consultations with the Building Commissioner and the adoption of new sign zoning at Town Meeting have enabled refinement of the sign relief request to reduce that which is being requested. 2 Law Office of Singer & Singer, LLC 26 Upper County Road P. O. Box 67 Dennisport, Massachusetts 02639 Andrew L. Singer Myer R. Singer Of Counsel ZONING ANALYSIS — REVISED (August 1, 2019) Property/Proposed Use Tel: (508) 398-2221 Fax: (508) 398-1568 www.singer-law.com 473, 479, and 487 (portion) Station Avenue, South Yarmouth, MA. Fuel service station and convenience store. Including closing, decommissioning, and restricting two old, outdated fuel service stations located within one -quarter mile of the new property and replacement with a state -of -art fuel service station. There will be a net decrease in the 1) number of underground fuel storage tanks, 2) gallons of fuel stored, and 3) amount of fuel -related piping in the APD. Zoning Relief Required I . Use: Special Permit — H6 (Motor Vehicle Fuel and Service) in B 1 Zoning District (no service proposed) and H10 (Eating and Drinking Establishment) in APD; Variance — H6 (Motor Vehicle Fuel and Service) in APD (no service proposed); and Permitted — H3 (Food Store) in B 1 Zoning District and APD and H 10 (Eating and and Drinking Establishment) in B I Zoning District. 2. Dimensional - Variance A. Canopy front setback (43.7 ft. provided) (Section 203.5 Footnote J); B. Parking in front of building (Section 301.4.1); C. Curb cut radius width (30 ft. provided) (Section 301.4.3); D. Centerlines of driveways less than 250 ft. apart and from driveway across street (Section 301.4.7); E. Plant species (Section 301.9); F. Front buffer tree spacing (Section 301.4.9); G. Photometrics (perimeter boundary and driveways (Section 301.4.10); Signs - Variance A. Section 303.5.2 — directional signage (size); B. Section 303.5.4.1— freestanding sign (face area square footage); and C. Section 303.5.5.2 — attached signs (height for Seasons, co -brand, and canopy pecten; and total number for Seasons, Comer Market, Co -Brand, Welcome, and Canopy Pectens). Law Office of Singer & Singer, LLC 26 Upper County Road P. O. Box 67 Dennisport, Massachusetts 02639 Andrew L. Singer Myer R Singer Of Coemsei December 17, 2018 Via Hand Delivery Gary Damiecki, Interim Water Superintendent Town of Yarmouth 99 Buck Island Road West Yarmouth, MA 02673 Re: Proposed Seasons Corner Market/Shell Station 473 and 479 Station Avenue, South Yarmouth, MA Dear Superintendent Damiecki: Tel: (508) 398-2221 Fax: (508) 398-1568 www.singer-law.com I am writing at the suggestion of the Yarmouth Health Department on behalf of my client, Coibea Enterprises, LLC, which is proposing to develop the above property for use as a fuel service station and convenience store. The property is located in the Yarmouth Aquifer Protection Overlay District ("APD"). As part of the permitting with the Board of Appeals, the Board of Health will be asked to provide comments. The Board of Health has asked for input from the Water Department and the Town's independent water consultant. I am writing to respectfully request that the Town's water consultant be engaged for purposes of conducting a review of the proposal. My client is willing to pay the costs of this peer review report and will deposit the monies to cover such report into escrow with the Town. Based on the details provided in the enclosed Environmental Analysis Memorandum and supporting documentation, my client is confident that the proposal will result in a substantial and significant improvement to water duality and environmental protection in the APD. This improvement will result in particular from closing and decommissioning two old, outdated fuel service stations located within one -quarter mile of the new property and replacement with a state -of -art fuel service station. There will be a net decrease in the 1) number of underground fuel storage tanks, 2) gallons of fuel stored, and 3) amount of fuel -related piping in the APD. The threat of environmental risk will be dramatically reduced with the proposal, which will be a win -win -win for my client, the Town, and the environment. My client appreciates the review by your Department as well as the independent water consultant and would like to arrange a meeting with you and Bruce Murphy to discuss the sequence of events and the mechanics of the escrow for the consultant. We plan to file in early January for review by the Design Review and Site Plan Review Committees. Thank you. Very truly yours, Ay,ct,w lk Andrew L. Singer ALS/a Enclosures cc: Bruce Murphy, Yarmouth Health Agent (via hand delivery) Jeff Colby, Yarmouth DPW Director (via hand delivery) 12.14.18 Environmental Analysis Memorandum 473-479 and a portion of 487 Station Avenue, Yarmouth, MA Proposed Fuel Service Station and Convenience Store ("Project") To: Yarmouth Water Department — Gary Damiecki, Interim Water Superintendent Cc: Yarmouth Board of Health - Bruce Murphy, Health Agent Attachments: Summary — Underground Fuel Storage Comparisons Diagram of Double -Wall Tank 30-Year Storage Tank Warranty Diagram of a 10-foot diameter 20k-gallon tank Double wall tank sump brochure ---------------------------------------------------------------------------------------------------------------- Introduction: The purpose of this document is to explain how the Project will reduce environmental risk and improve environmental quality in Yarmouth's Aquifer Protection District. Specifically, the Project will result in: 1. A substantial net reduction in the total amount of underground fuel storage gallons; and 2. A significant improvement in the design and containment protocols of the remaining underground storage of fuel; and 3. The removal of the four single -wall underground fuel storage tanks at the 446 Station Ave. Shell, while installing a safer, double -wall tank system with leak detection and brine in the interstitial space, at the Project; 4. An estimated reduction of 45 to 50 linear feet of underground piping by removing piping at two sites and installing new piping at the Project; 5. Automatic and continuous leak detection system in the double -wall underground storage tanks and double -wall piping complete with probes, sensors and alarms; by permanently closing two older fuel service facilities within one quarter mile of the property, with an average age of 40 years, and replacing them with one new state-of- 1 the -art facility with fewer underground tanks, less underground piping, modern leak detection with sensors and alarms and a decreased volume of underground fuel storage. There are currently seven underground tanks, six dispensers, and 56,000 gallons of storage at the two existing facilities. The Project will result in only two underground tanks, six dispensers, and 40,000 gallons of storage. Project: Development of unimproved land with a new Convenience Store with six fueling dispensers and two underground storage of gasoline and diesel fuel. Applicant: Colbea Enterprises, L.L.C. ("Colbea") dba Seasons Corner Market. Applicant Overview: Colbea is an established company involved in approximately 110 locations throughout Massachusetts, Rhode Island, and New Hampshire, including a new Seasons Corner Market and Shell station at 497 Route 134 in Dennis, MA at Exit 9 (Route 6). Colbea is a family -run business that began more than sixty years ago and takes pride in its people and facilities. Colbea currently owns the Shell Station property at 446 Station Avenue across the street from the property and delivers fuel to the Dealer -Tenant who operates the facility. Risk Reduction Overview: Part I — As part of the new development, the following two, older fuel service stations will have their underground storage tanks (UST's), piping, and fuel dispensers permanently removed, with a deed restriction against future fuel use on each property: A. Permanent Removal (existing Sunoco Station at 433 Station Avenue): The permanent removal of the three UST's with a total capacity of 24,000 gallons as well as the two fuel dispensers and underground piping. This system was installed in 1986 and is a double -wall fiberglass design and does not have brine -filled interstitial spaces for leak detection (it has an older wrap -around double wall sensor, which cannot detect water or product in the interstitial spaces). B. Permanent Removal (existing Shell at 446 Station Avenue): The permanent removal of the four UST's with a total capacity of 32,000-gallons, as well as the four fuel dispensers and underground piping. This system was installed in 1970 and is a single -wall fiberglass design, thereby lacking the safety aspect of a second outer wall which would act as a second shield from the environment if present. Total Removal of Underground Storage Tanks: Seven E Total Removal of Underground Storage Capacity: 56,000 gallons Total Product Dispensers Being Removed: Six Part Il -- The vacant land at 473-479 and 487 Station Avenue will be developed into a modern convenience store branded Seasons Corner Market along with six multi- product fuel dispensers offering Shell branded gasoline and diesel fuel. The upgraded design will include two double -walled fiberglass underground storage tanks manufactured by Containment Solutions. The interstitial spaces will be brine -filled to facilitate a modern, continuous leak detection system with sensors and alarms and will be 10 feet in diameter, have 20,000-gallon storage each for a total 40,000-gallon capacity. The piping design will also include a leak detection system and will have the latest double -walled UPP materials technology. UPP is polyethylene plastic blended with an epoxy resin, extruded in manufacturing as a single piece, so there are no joints/elbows or seams. It is "welded" into the polyethylene sumps at the tanks and dispensers using heat and resin epoxy that basically seals it as one piece. Risk Reduction Summary: Net Reduction of Tanks: Five Net Reduction of Underground Storage Capacity: 16,000 Gallons less or 29 Percent less capacity than the existing older storage Product Dispensers: No Change — it will remain at Six Reduction in Underground Piping: Estimated decrease of about 45 to 50 linear feet of piping due to five less tanks Improved Leak Detection: A continuous automatic sensing system with alarms at store level and sent to management team concurrently to cell phones with integrated email notifications to store and corporate environmental and maintenance personnel. Latest Fuel System Technology: The new development will incorporate the latest technology that features modern interstitial sensors between the brine -filled tank walls and alarms that will notify store employees and off -site company management automatically by cell phone and electronic mail. It will also have modern vapor recovery systems and double -wall secondary containment under the product dispensers. 3 EVO Leak Detection: The EVO automatic tank gauging system and control module made by Franklin Fueling Systems will be used for the Project and is an upgrade from the older Veeder-Root systems, with limited communication, at the Sunoco and Shell stations to be closed. EVO is web -based that will alert store personnel and send emails and messages to our environmental manager and maintenance company if an alarm is triggered 24 hours, every day of the year. See: http://www.franklinfueling.com/americas/fms/featured/27282/en/evo-series- overview#Highlights Monitoring Sensors: The Project will be equipped with a series of sensors that will be a significant safety upgrade compared to the stations to be closed, especially compared to the single -wall tanks at the existing Shell station. The following provides a summary: o High/low product sensors — there are sensors inside the tank that alarm at low, low -low, high, high -high, and emergency high/stop. These alarms are all to aid in fuel delivery, etc. Fuel trucks are dispatched typically at low alarm and should deliver before low -low. They only drop fuel to fill the tank typically below high and never to high -high. There is an audible alarm/flashing light outside at the tank system if emergency high is triggered. o Brine level sensors — there are sensors in the brine interstitial space that detect if brine levels increase or decrease. They should typically do neither other than with physical expansion/contraction due to temperature. o Water sensors — there are water sensors in the inside of the tank that are there to detect any water intrusion into the tank. Water is denser than gas, so these are on the bottom of the tank. A water sensor might go off in the event of rainwater leaking to the tank from above, or brine entering from below in the event of an inner wall issue. o Fuel temperature sensors — there are sensors that detect fuel temperature and alarm at any sudden changes which might indicate a problem. o Sump sensors — we have sensors in both the dispenser sumps and the turbine pump sumps at the tank (the turbine pump is the electric M pump that extracts gas from the tank and sends it to the dispenser for customer use). These can detect gas and water in the sumps. Double -Wail Sumps: The Project will have modern -designed sumps located on top of the underground tanks and below the fuel dispensers with double -wall construction versus single -wall sumps at the stations to be closed. This upgrade adds to the safety of the new development. Operations and Protocol: The store will also be operated by employees of Seasons Corner Market who are trained to monitor the in-store Franklin Fuel EVO leak detection monitoring system alerts and how to handle any potential issues. There is also a detailed spill response system is in place. As such, the new development will also be more advantageous in that it is owned, operated, and overseen by company employees versus being leased to third parties. Permanent_ Changes: In addition, the two stations being de -commissioned will have deed restrictions placed on them permanently prohibiting underground or aboveground fuel storage. This consolidation of two existing fuel service locations into one new location thereby also significantly reduces the overall risk in the Aquifer Protection District. Summary: Overall, the benefits of closing two older stations in the same vicinity and APD location and replacing them with modern equipment directly relate to increased safety and less risk. The new fuel systems have a lower chance of an incident, have improved leak detection systems and have newer alarms and alerts to prevent any discharge into the environment in case of an emergency versus the existing Sunoco and Shell Stations with tanks installed in 1986 and 1970, respectively. 5 q d � q 2 0 CL E 0 u & m 0 LA a � U. � c � 0 � ■ m c � E E 3 k Q) o 4.1 £ k f% m k Ln o 2 2 e 2 7 L % ■ k : $ � ( ? » d / 2 2 « $ J a � $ q' o § a -x o o 0 o C o g 2= _ / o o . �. . o � o ® 2 m£ a W o / m� ® _ f i 2 k _ } 3 2 � � � U o o o o} o � # g o o o 0 c 0 o 0: o o�� ' ■ + � L r�'! 10 2 t W_ e e e; Ln 0 « 01 § < 2 k k « 7 f - / . 12 § c \ cc 0000 o: o R S / a \ « # / . G 2 3 a \ t N: rn � J � 7 \ � e : /\C\ �� ° E 'A R @§ 0 a .g 6 2 o 0 0 ./ 3 LL 4c 7 7 7 ~ Lo � / 7 \ re)� ® "A _ / ƒ x k k _ k.6. / .m CL k / e m# B 0/ 3% J 2 / / \ 0 . � � z � � � � LLJ � 0 cr. � U.j r � � � � � � LU on "MONO � Containment Solutions, Inc. ("C.S.I ") warrants to owner that new manufactured double -wall and triple -wall underground storage tanks if used in accordance with C.S.I's published specifications, operating guidelines, and if installed, operated and maintained in the United States and Canada according to C,S,I's published installation instructions, supplemental instructions, and all applicable laws and regulations: I. Will not leak for a period of thirty (30) years from date of original delivery due to natural external corrosion. II. Will not leak for a period of thirty (30) years from date of original delivery due to internal corrosion, provided the tank is used solely to store the following products with or without water bottoms: A. Diesel fuel oils for oil burning equipment at temperatures not to exceed 150' F. B. Gasoline, jet fuel, aviation gasoline, motor oil (new or used), kerosene, diesel motor fuel at ambient temperatures. C. Alcohol -gasoline blend motor fuels at ambient temperatures: • Gasoline -ethanol blends with up to 100% ethanol. • Gasoline -methanol blends with up to 100% methanol. D. Oxygenated motor fuels at ambient temperatures with up to 20% (by volume) methyl tertiary butyl ether (MTBE), ethyl tertiary butyl ether (ETBE), di -isopropyl ether (DIPS), tertiary butyl alcohol (TBA), tertiary amyl methyl ether (TAME), or tertiary amyl ethyl ether (TAEE). E. Biodiesel-diesel blends with up to 100% biodiesel (13100 per ASTM) at ambient temperatures. III. Will not leak for a period of thirty (30) years from date of original delivery due to structural failure (spontaneous breaking or collapse caused by material defects) provided the installation is performed and validated by a qualified installation contractor as defined in the subsequent required conditions. IV. Will be free from defects in materials and workmanship for a period of one (1) year following the date of original delivery by C.S.I. Additional required conditions to warranty effectiveness: For this warranty to be valid the tank must have been installed by a qualified installer trained in accordance with the C.S.I. contractor training course and all available installation instructions. To be qualified the installing company must have a valid certificate of completion on file with C.S.I. at the time of installation. After initial installation of the tank, the tank installation checklist supplied by C.S.I. must be properly completed by the contractor and the owner's representative, and the owner must retain the completed checklist to verify proper installation of the tank. The completed checklist must be delivered to C.S.I. only at the time of any claim under this warranty, and failure to do so may result in denial of the claim at the discretion of C.S.I. A claimant must give C.S.I. the opportunity to observe and inspect the tank prior to the removal of any backfill surrounding theta nk, removal of the tank from the ground, or removal of any factory installed appurtenance, or the claim will be barred. If any tank is removed from an installation, moved to owner's new location and is intended for active service at the new location, the tank must be recertified by C.S.I. in order to maintain the warranty as originally extended. C.S.I. WARRANTIES ARE EFFECTIVE UPON PAYMENT IN FULL, AND C.S.I. IS NOT OBLIGATED TO HONOR ANY WARRANTY OR PROVIDE ANY SERVICE UNTIL C.S.I. RECEIVES PAYMENT IN FULL. What is not covered by the warranty: The foregoing warranty does not extend to tanks damaged due to acts of God, or failures caused, in whole or in part, by misuse, improper installation, storage offluids not included in the above mentioned conditions, servicing or lack thereof, maintenance or lack thereof, or operation in excess of their rated capacity, contrary to their recommended use, whether intentional or otherwise, or any other cause or damage of any kind not the fault of C.S.I. C.S.I. does not warrant any installed product, component, or parts manufactured by others. All consumable parts including but not limited to gaskets and o-rings are excluded from this warranty. Third party repairs or modifications of any kind shall void this warranty. C.S.I'S LIABILITY UNDER THIS WARRANTY SHALL BE LIMITED TO, AT OUR OPTION, (i) REPAIR OF THE DEFECTIVE TANK, (II) REFUND OF THE ORIGINAL PURCHASE PRICE OF THE TANK FROM C.S.I., OR (III) DELIVERY OF A REPLACEMENT TANK TO THE POINT OF ORIGINAL DELIVERY. REPLACEMENT TANKS WILL BE PROVIDED BY C.S.I. AND WILL BE EITHER NEW OR RECERTIFIED. ALL RECERTIFIED TANKS HAVE BEEN TESTED TO ENSURE THAT THEY ARE FUNCTIONALLY EQUIVALENT TO A NEW TANK. THE REMEDIES SET FORTH IN THE ABOVE WARRANTY ARE THE ONLY REMEDIES AVAILABLE TO ANY PERSON OR ENTITY FOR BREACH OF WARRANTY OR FOR BREACH OF ANY OTHER COVENANT, -DUTY- OR OBLIGATION ON THE PART OF C.S.I. AS SET FORTH HEREIN. C.S.I. SHALL HAVE NO LIABILITY OR OBLIGATION TO ANY PERSON OR ENTITY FOR BREACH OF ANY OTHER COVENANT, DUTY OR OBLIGATION UNDERTHIS WARRANTY EXCEPTAS EXPRESSLYSET FORTH HEREIN. IT IS EXPRESSLY AGREED THAT THIS WARRANTY DOES NOT FAIL OF ITS ESSENTIAL PURPOSE. C.S.I. SHALL HAVE NO LIABILITY FOR TANK INSTALLATION OR REMOVAL COSTS, ENVIRONMENTAL CONTAMINATION, FIRES, EXPLOSIONS OR ANY OTHER CONSEQUENCES ALLEGEDLY ATTRIBUTABLE TO A BREACH OF WARRANTY, OR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY DESCRIPTION, WHETHER ANY SUCH CLAIM OR DAMAGES BE BASED UPON WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, OR OTHERWISE. IN NO EVENT SHALL CSI'S TOTAL LIABILITY HEREUNDER EXCEED THE ORIGINAL PURCHASE PRICE OF THE TANK WHICH GAVE RISE TO SUCH LIABILITY. THE FOREGOING WARRANTY CONSTITUTES C.S.I.'S EXCLUSIVE OBLIGATION AND C.S.I. MAKES NO OTHER WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO THE TANK OR ANY SERVICE, ADVICE, OR CONSULTATION, IF ANY, FURNISHED TO OWNER BY C.S.I. OR ITS REPRESENTATIVES, WHETHER AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE. Effective Date:02/1/2014 OCONTAINMENT S O L U T I O N S® 5150 Jefferson Chemical Road • Conroe,TX 77301 • Tel: (936) 756-7731 • www.containmentsolutions.com February 2014 • All Rights Reserved • Pub. No. TNK 1023L 0 V) 0 d w I N [ii w d 0 C� J LJ 2 N 0 n 00 >1 ¢mow ¢ C-) r O U Al z � ui uj w� z N z ¢ z O H a O 00 w z x �rao � a 0 0 N I Q Zz LU L O Z� aD ZJ Oo uCA z 0 Cl- U d U Q I I C� C� � J J tz O Q d w w J J d dLLJ F-- 0l - �m a• y �� ��i.){}�7w �`,.i(�` 'ti'Sf .,�(*��} n�} y •5 3°f � �F-��j �4•���-•-���,r �4� Y,�,'� a�_ --.-?. "8'. n �. c - !��q,'Y'�?f'.:•-.I,r �,���,,x.�.'�i1i 43ryi1r�'.��i�l�ik�`+, cif: `.M.-�.�rY..b..�.. ... .. FIBERGLASS TANK SUMPS Containment Solutions, Inc. (CSI), pioneered a technology in 1965 to manufacture the first fiberglass petroleum storage tank to combat the shortcomings of steel tanks. The long-term performance and non -corrosive nature of fiberglass was key to the tank's success in the industry. The overwhelming popularity of fiberglass storage tanks soon created a demand for fiberglass tank sumps. Tank sumps are protective enclosures for pumps, piping and other accessories above the tank top. Tank sumps should be watertight and durable since they will protect the surrounding environment in the event of a piping leak. For nearly 20 years CSI has been perfecting the fiberglass tank sump design and installation process creating the most reliable and contractor friendly sump line available. Our proven technology has been utilized in thousands of installations. MOM Fiberglass tank sumps are installed to protect the surrounding environment from potential leaks and provide a watertight access point to service pumps and piping. TABLE OF CONTENTS Introduction 1 CSITankSumps 2 Typical Tank Sump Design 3 Watertight Lids 5 Installation 6 1 INTRODUCTION FULL LINE OF PROTECTION Protecting your storage system and the surrounding environment starts with selecting the right storage tank but the tank only protects the product it contains. A complete fuel storage system should also include protecting the components that connect to the tank. Pumps and piping often require annual or semi-annual maintenance and testing. Once buried, the components are difficult to access and impossible to safeguard without watertight tank sumps. Tank sumps are available in 42 ; 48, and 54" diameters. SINGLE-WALLTANK SUMPS Containment Solutions tank sumps are manufactured using the same technology as our fiberglass tanks. We use a special blend of glass and resin which is carefully metered during fabrication to ensure a consistent wall thickness. Most CSI non -corrosive fiberglass tank sumps are light enough to be installed without mechanical equipment, and all are durable enough to protect critical components for decades. Tank sumps typically fit on the same truck as the tank which reduce shipping expenses, and like our tanks, CSI sumps with EZ-Fit adhesive channels carry a 30-year structural and corrosion warranty, which is the most comprehensive coverage in the industry. DOUBLE-WALLTANK SUMPS Containment Solutions has earned a reputation for double -wall reliability as a result of our hydrostatic tank monitoring technology. We have simply adapted the same expertise to the fiberglass tank sump. CSI double -wall tank sumps were designed to satisfy current regulations while anticipating future requirements. Competitor sumps bond the inner and outer sump walls with fiberglass fabrics which often cause communication errors triggering false alarms in the monitoring system. C51 double -wall sumps are built with 100% separation between sump walls. This open environment offers an unobstructed pathway for fluid monitoring which means 3601, protection and true secondary containment. CSI TANK SUMPS 2 TYPICAL TANK SUMP DESIGN 1— 34"Lid O.D. Watertight L EnclosureTi Round Body Extensk EZ-Fit Adhesive Joi Polygon or Rout Sump Boi EZ-Fit Adhesive Joi Containment Coll 42" I. D. 0. SINGLE -WALL TANK SUMP WITH FILLNAPOR LID MODEL: SW PTS (WT34) (FV 2115116) 4218 - 4 TANK SUMP OPTIONS Single -Wall (SW) or Sump Diameter Double -Wall (DW) Watertight Lid (WT) 42,48, 54" Construction 34'1 8 Flat Panels on Polygon Base 40.O.D. MODEL- SW PTS (WT34) (FV2115116) 4218 - 4 Polygon Tank Sump (PTS) Eil I/Vapor Cuff Total Length (L) of Body Round Ta nk Sum p (RTS) Orientation: _ Extension, Enclosure Top 1"Number -#of Cuffs and Lid 21Number- Size ofCuff O.D. FITS3;4;5;6;T 31Number -Radius of Cuffs PTS - 3, 4',5',6',7' 3 TYPICAL SUMP DESIGN CONTAINMENT COLLARS The protection of storage system components above the tank top begins with the containment collar. CSI containment collars are factory bonded to the tank wall and are available in single and double -wall models. The containment collars are built to fit CSI tank sumps and come with an EZ-Fit adhesive channel for hassle free installation. Double -wall containment collars, when combined with CSI double -wall sumps will continuously monitor the entire containment area for leaks from tank top to grade providing secondary containment for spilled liquids. POLYGON BODY Containment Solutions tank sump bodies are available in both round and polygon shapes. Polygon body styles are octagonal with 8 flat sides which allows piping to penetrate the sump at 450 and 900 angles. Electrical connections, submersible pumps, anything protected by the sump can be accessed easier using a flat -paneled polygon sump body. Round fiberglass sump body extensions are available in one foot increments to accommodate the final tank burial depth. The enclosure top is a factory bonded transition point from the body extension to the lid and includes a watertight gasket.The enclosure top and lid are designed to fit inside standard manholes at grade. On hydrostatic double -wall models, the enclosure top includes a built in reservoir which houses a sensor for electronic monitoring. Fill/Vapor lids come in two popular cuff sizes and include an observation port as a standard feature. TYPICAL SUMP DESIGN 4 C,q. ' a �{ 4� # j TURBINE LID FILL/VAPOR LID w/ 15"ACCESS OPENINGS & 6"OBSERVATION PORT FILWAPOR LID w/ 13"ACCESS OPENINGS & 6"OBSERVATION PORT QUADFIL LID WATERTIGHT SUMP LID ASSEMBLIES Selecting the right single -wall or double -wall tank sump has never been easier. You simply choose the sump dimensions and level of protection you need for your project and then choose the lid based on the tank configuration. TURBINE TANK SUMP LIDS Turbine tank sump lids are used at the submersible turbine end of the tank when access is infrequent and the area must be watertight. The turbine lid is made of rigid fiberglass and fits into place by simply pushing down on the lid. FILUVAPOR TANK SUMP LIDS Fill/Vapor tank sump models are available for the fill end of the tank when multi -port manholes are used. We offer two access opening options to accommodate the most popular shroud boots and spill containment systems. 40" Quad Fill lids are also available for 48" and 54" tank sumps, contact a representative for more information. All configurations include an observation port allowing easy access for internal sump inspections. WATERTESTED AND WATERTIGHT Each lid assembly is tested to 7'of hydrostatic head pressure to ensure a watertight seal. Accessing a 34" lid (any model) is possible through a standard 36" manhole, and 40" lids through 42" manholes. The observation port is a convenient access point to inspect the monitoring sensor on double -wall sump models and perform a visual inspection of the sump interior. 5 WATERTIGHT LIDS THE ADHESIVE CHANNEL IS THE KEY Engineers might specify a CSI tank sump for a number of reasons including the impressive 30-year warranty, but contractors prefer CSI sumps for the ease of installation. Each sump section is manufactured with an EZ-Fit adhesive channel which has enough room for the adjoining sump component and our adhesive mix which seals and hardens, creating a permanent joint. This new joint is leak free and watertight. The two park design eliminates the need to perform a confined space entry on deeper burials. With our adhesive kits (Kit -AD), a permanent watertight connection has never been easier. INSTALLATION 6 CONTAINMENT SOLUTIONS MA Underground and Aboveground Sti Urea DEF Storage Tanks Automotive Oil and Lubricant Stoi Oil/Water Separators and Inter( Flowtite®WaterTanks Chemical StorageTanks Fiberglass Manholes and Wetwells 10 CONTAINMENT S O L U T 1 0 N So 333 North Rivershire Dr., Suite 190 • Conroe, TX 77301 • Phone: (936) 756-7731 www.containmentsolutions,com Copyright 0 • Containment Solutions, Inc. • All Rights Reserved • January 2014 • Pub. No. ACC 5025C PETROLEUM STORAGE UNDERGROUND FIBERGLASS TANKS 10 CONTAINMENT S 0 L U T I O N S® WHY OURTANKS ARE YOUR BEST INVESTMENT In the early 1960s, the American Petroleum Institute challenged Containment Solutions, Inc. (CSI) to develop a rustproof underground storage tankthat would be safe and strong enough to satisfy the petroleum industry's most stringent long-term storage demands. Our engineers accepted the challenge and pioneered the underground fiberglass tank technology. Our innovative design work resulted in the UL 1316 specification which governs underground fiberglass tank manufacturing. Major oil companies have responded to our achievement by specifying fiberglass tanks for approximately 95% of their underground fuel storage installations. Their keen awareness of the limitations of a steel tank in a corrosive environment and their confidence in fiberglass tank technology has helped us earn a reputation forsafe, rust -free, long-term underground storage. 50 years and more than 300,000 tank installations later, we continue to improve upon those processes utilizing today's automation to develop new applications and products. What started from petroleum storage needs has expanded into the handling of lubrication oils, water, waste water and alternative biofuels such as ethanol and biodiesel. Containment Solutions is proud to be the largest American fiberglass tank manufacturer. V MULTIPLE LOCATIONS ACROSS THE COUNTRY s.` 1 INTRODUCTION WE WILL CONTINUE TO LEAD, FAR INTO THE FUTURE, THANKS TO THE VISION OF EVERYONE ON OUR TEAM Our success is a direct result of our commitment to offering the highest quality products backed by the highest level of service. You can expect more than just a product from CSI, you can also count on: • Dedication to research and development. We focus our talents on pushing the limits of what is possible in order to provide you with quality products that meet your needs at a competitive price. • Technologically superior manufacturing process. We utilize the finest materials and methods to produce high -quality products that have led the industry for over four decades. • Environmentally focused. We are committed to providing environmentally conscious designs and products. As a member of the U.S. Green Building Council, we promote proper fluid management and sustainable site development. • Industry -leading support. We have the most knowledgeable sales force and the only national field service organization staffed by full-time company employees. Our technical support group promptly and clearly answers technical questions about our products or services.They, along with our exceptional inside sales department, are committed to supplying "value-added" service that complements our exceptional products. Containment Solutions invites you to review our state-of-the-art products at three conveniently located manufacturing facilities in Bakersfield, California; Conroe, Texas; and Mt. Union, Pennsylvania. v CONTRACTOR APPROVED SIZES AND CAPACITIES TO MEET YOUR NEEDS 'r INTRODUCTION 2 r' SUPERIOR AUTOMATED PROCESS AUTOMATED MANUFACTURING PROCESS TANKS COMPATIBLE WITH BIO FUELS AND ETHANOL v We use steel mandrels (cylindrical molds) to build our tanks from the inside out. The molds provide a firm and consistent surface upon which we apply materials to make our tank. The rotating mandrel and the application of the materials are controlled by a computer, custom designed to manufacture underground tanks. As the mandrel rotates; resin, glass and specially treated silica are precisely metered onto the mandrel from above. Tank thickness is determined with an instrument that magnetically senses the metal mold surface through the fiberglass reinforced plastic laminate. This method accurately measures the thickness of the laminate using specific points all over the surface of the tank wall and is more exact than the ultrasonic methods used by other manufacturers. The result is a closely controlled process and a very consistent tank wall composition providing uniform integrity. DIFFERENT PROCESS, BETTER RESULTS The inside -out approach to manufacturing tanks is a superior process with unique advantages. Inner Surface: The initial material forming against the steel mold produces an incredibly polished finish, free of surface variations. The smooth inside surface in our process is not exposed to air as it cures thus eliminating air inhibited cure issues. The result is a well cured, high gloss inner surface without the need for interior liners. Other manufacturing methods rely on inferior hand sprayed wax coatings to combat surface cure problems. Outer Surface: Exterior stiffening ribs are applied in optimal locations and constructed of the most efficient reinforcing materials. We can also modify a tank by adding filament winding glass in tension, glass woven roving, glass mat, or any other materials in specific locations on the outside of the tank wall. Our entire shell wall surface is manufactured with the same corrosion resistant resin. With our homogeneous tank shell, you can be assured the exterior surface has the same compatibility properties as the interior surface. We do not use liners or special coatings on any tank surface. Another important advantage of our inside -out manufacturing process is a consistent inner diameter. Using a mold as a frame insures a set dimension and capacity. If additional tank wall is necessary, we simply add thickness to the outside surface. In contrast, an outside -in process by definition relies upon a fixed outer diameter and variable inner diameter.To add thickness using this process glass, resin and hand sprayed liners are applied to the inner surface sacrificing maximum tank capacity. Simply put, our process allows for a more versatile and dependable product. 3 MANUFACTURING PROCESSES EXTENSIVE ANALYSIS 'r ENGINEERED AND TESTED CORROSION RESISTANCE The Containment Solutions'tank wall is composed of resin, glass and a specially treated silica that together result in a composite matrix compatible with petroleum industry products including: All Octanes of Gasoline AV -Gas Ultra Low Sulfur Diesel (ULSD) Fuel oil Oxygenated Motor Fuels Jet Fuel Motor Oil Renewable Diesel and Bio-Diesel Ethanol, all blends up to 100% Kerosene Containment Solutions instituted and perfected the use of a specially treated silica in our laminate matrix.The unique silica is an engineered component enhancing the performance of our laminate. Our exclusive laminate has been thoroughly tested to meet the requirements of UL 1316 and CUL S-615. Long-term corrosion and material properties testing is done at our Research and Development Center (R&D). Laminate testing includes current fuels, blends and other oxygenates, but we do not stop there. We also test alternative products and blends that could be stored in our tanks in the future; as fuel options change, your storage tank compatibility will not. Many of the newest industry fuels and biofuels are alcohol based. Alcohol blends, including ethanol, increase the likelihood of water in a storage tank, resulting in rust and microbial -induced corrosion (MIC) in steel tanks. The inherent non -corrosive nature of a fiberglass CSI tank eliminates the possibility of rust on all tank wall surfaces. Extensive corrosion testing allows us to confidently offer an industry leading 30-year warranty while most steel tank manufacturers have reduced their warranties to 10 years. CSI R&D has authored patents and expert reports introducing cutting -edge products like double -wall sumps and the first independently verified Urea DEF underground tank. Since the first non -corrosive tank was designed back in the 1960s, we have maintained the highest quality standards and have utilized advanced technologies to engineer and build the world's premier fiberglass storage tank. RESEARCH AND DEVELOPMENT 4 DOUBLE -WALL TANKS CSI's advanced double -wall technology gives storage tank owners, municipalities, counties, provinces, and states proven protection against petroleum contamination of underground water supplies. In addition to our UL listing, our tanks comply with the EPA's recommendation for secondary containment systems wherever underground tanks are located near underground water supplies. Containment Solutions double -wall tanks give you two levels of protection, so you have twice the assurance and twice the risk management that any single -wall tank can offer. The primary tank is designed to contain your fuel. In the unlikely event that there is a breach in this wall, the secondary wall is designed to contain your product and prevent seepage into the environment. HYDROSTATIC MONITORING For the most effective double -wall storage tank protection, we recommend hydrostatic monitoring.The cavity between the inner and outer tank walls (interstitial space), as well as a factory mounted reservoir, is filled with a non -toxic colored brine solution. Hydrostatic pressure is continuously applied to the interstitial space, enabling monitoring of the primary and secondary tanks. An electronic sensor in the tank reservoir will send an alarm if the brine level changes beyond a predetermined level. The CSI Hydrostatic Monitoring System offers a leak detection capability superior to other methods because of our unique tank construction. The independent tank wall design ensures that 100% of the primary and secondary tank walls are in contact with monitoring fluid. This open environment allows brine to move freely through the interstitial space, unimpeded by glass fabric bonded to the tankwalls typically used in competitive designs. Since the unblocked interstitial space does not hinder communication, the CSI Hydrostatic Monitoring System is fast and effective. Concrete Reservoir Level Sen! Stable Re! Liquid Le% Stored Prc Reservoir Drains Inner Wall Breac 5 DOUBILF-WALL. STORAGE TANKS SUPERIOR PROTECTION WITH HYDROGUARDO The HydroGuard® System is the most dependable storage system available. HydroGuard combines the UL listed double -wall tank and double -wall tank sumps for a fully integrated hydrostatically monitored storage system. HydroGuard also comes with a deadman anchoring system, completing the underground storage solution.' As the name suggests, the HydroGuard System utilizes hydrostatic pressure to provide a proven means of monitoring for leaks 24 hours a day, 7 days a week. In fact, our hydrostatic monitoring system has been certified as a continuous leak detection system by the National Work Group on Leak Detection Evaluations, (NWGLDE). Unlike typical storage systems, HydroGuard provides 3600 secondary containment of not only the stored product in the tank but the critical piping components above the tank. CSI's double -wall tank sumps are state-of-the-art including built-in brine reservoirs and street accessible reservoir sensor housing. The turbine and fill/vapor sumps are continuously monitored for the ultimate in underground fuel storage protection. The HydroGuard System was designed to exceed the most stringent regulations and storage requirements, like California's AB 2481; and also comes with our 30-year structural and corrosion warranty. Reservoir Drai Groundwater Outer Tank Br( The HydroGuard System is a complete hydrostatically monitored double -wall storage system. Groundwate Reservoir Ov Outer Tank B DOUBLE -WALL STORAGE TANKS 6 9 R Z % Rj Innovative Manufacturing Process Using an automated process, our tank laminate is consistent in thickness and composition and is fabricated with an inner surface that is not air -inhibited. The resulting tank can safely store petroleum fuel products, alcohols and alcohol gasoline mixtures of virtually any blend. Our proven performance and high quality products have led the industry for 50 years. 7 RETAIL GASOLINE SYSTEM OVERVIEW RETAIL GASOLINE SYSTEM OVERVIEW 8 The following table represents the most popular tank sizes in the United States at the various tank diameters. Dimensions are based on double -wall brine filled tank designs and gallon capacities. Nominal Capacity Actual Capacity Length Weight Number of Straps (US Gallons) (US Gallons) (Feet/ Inches) (Pounds) 550 548 6' 7" 895 2 600 F1, 676 T 3" 975 2 000 1,334 i 1' 1" 1,235 2 2,000 2,107 6' 2,200 2 2,500 2,689 131911 2,650 2 3,000 3,323 161911 3,000 2 4,000 3,958 191981 3,550 2 5,000 5,068 24' 9" 4,350 4 6,000 6,179 301311 1 5,100 4 4,000 3,998 13' 3,150 2 5,000 4,947 161911 3,600 2 6,000 5,897 19' 6" 4,050 2 $,000 7,796 25' 5,000 4 10,000 9,696 301611 5,950 4 12,000 11,595 36' 7,050 4 15,000 14,545 441611 9,350 6 10,000 10,257 20' 11" 7,500 3 12,000 11,873 23' 8" 8,600 4 15,000 15,104 291211 10,500 4 20,000 19,951 37' 5" 13,550 6 25,000 24,970 46' 17,100 8 - 30,000 29,816 54' 3" 20,400 8 35,000 34,835 621911 24,350 8 40,000 39,854 711411 27,750 10 45,000 44,872 79' 10" 31,250 10 50,000 49,743 8812" 34,750 12 9 STANDARD TANK SIZES The following table represents the most popular tank sizes in Canada at the various tank diameters. Dimensions are based on double -wall brine filled tank designs and liter capacities. Nominal Capacity Actual Capacity Length Weight Number (Liters) (Liters) (Millimeters) (Kilograms) of Straps 2,000 2,074 2,007 400 2 2,500 2,560 2,438 450 2 5,000 5,050 4,546 600 2 7,500 7,571 6,147 925 4 10,000 10,111 4,166 1,225 2 20,000 20,051 7,950 2,075 4 25,000 25,623 10,071 2,450 4 15,000 15,135 4,267 1,450 2 20,000 20,252 5,461 1,800 2 25,000 25,479 6,680 2,050 2 30,000 30,821 7,925 2,400 4 35,000 34,849 8,877 2,600 4 40,000 40,296 10,135 3,000 4 45,000 45,633 11,379 3,425 6 50,000 50,970 12,623 3,925 6 55,000 55,059 13,564 4,250 6 60,000 60,124 14,707 4,825 8 65,000 65,570 16,026 5,325 8 75,000 75,155 18,263 6,200 8 50,000 50,596 8,001 4,275 4 60,000 60,233 9,322 5,000 4 65,000 65,980 10,109 5,450 4 75,000 75,523 11,404 6,150 6 80,000 81,269 12,205 6,700 6 85,000 85,345 12,750 7,000 6 _ 90,000 90,721 13,487 7,500 8 95,000 96,744 14,325 8,025 8 100,000 100,264 14,807 8,250 8 125,000 125,286 18,186 10,500 8 150,000 150,863 21,742 12,600 10 STANDARD TANK SIZES 10 ADDITIONAL STORAGE OPTIONS Every installation is unique, sometimes involving single -wall tanks, triple -wall tanks, or compartment tanks. Containment Solutions has a complete range of products and accessories to meet our customer's needs. SINGLE -WALL TANKS The very first fiberglass underground petroleum storage tank was a single -wall design and for 45 years single -wall tanks were installed around the world. As petroleum regulations changed single -wall tanks were phased out and although CSI no longer produces single -wall tanks for fuel storage, the original design is still utilized in other applications like water storage and separators/ interceptors. Single -wall tanks use the same manufacturing methods and laminate matrix as our double -wall designs. Functioning legacy single -wall tanks can be upgraded or modified to meet changing standards and storage requirements. For more information on our extensive enhancement services, see the CSI Field Services section of this brochure or contact a sales representative today. TRIPLE -WALL TANKS In 1997, CSI designed the first UL listed triple -wall fiberglass tankfor use in environmentally sensitive areas where tertiary containment is required. Triple -wall tanks offer three levels of protection: the proven strength and performance of a primary fiberglass tank, and in the unlikely event that there is a breach, secondary and tertiary walls designed to contain the fuel and prevent any spill into the environment. Triple -wall petroleum tanks, like double -wall models, come with a standard 34-year structural and corrosion warranty. V SINGLE -WALL WATER STORAGE INSTALLATION TRIPLE -WALL STORAGE V i 11 ADDITIONAL STORAGE OPTIONS COMPARTMENT TANKS Compartment tanks are built by dividing a storage tank with a single -wall or double -wall bulkhead, creating two or more independent storage areas.They are a popular choice for retail petroleum marketers interested in storing multiple blends of fuel, including diesel. Since compartment tanks can be divided to accommodate two or more grades of fuel, they allow the site designer to plan for any ratio of fuel storage. These tanks are often used for sites where property is limited and installing multiple tanks is difficult. The design versatility of a CSI compartment tank can meet unique customer requests as well as local requirements. Standard double -wall compartment tanks consist of one bulkhead but complex designs can include additional bulkheads forming multiple storage areas. This compartment tank includes 2 bulkheads, an alternative in this limited space to installing 3 individual tanks. V DOUBLE WALL COMPARTMENTTANK WITH DOUBLE -WALL BULKHEAD ADDITIONAL STORAGE OPTIONS 12 FIBERG LASS TANK SUMPS Protecting your storage system and the surrounding environment includes protecting the components that connect to the tank. Pumps and piping often require annual or semi-annual maintenance and testing. Without a sump, buried components are difficult to access and service. Tank sumps are protective enclosures for pumps, piping and other accessories above the tank top. CSI provides a full line of fiberglass tank sumps in round and polygon designs, available in 42"or 48"diameter. 54"diameter sumps are available for applications such as backup generators at hospitals or data centers. CSI sumps can be 34"Lido.D. 10 ordered in single or double -wall construction. 32-N"Neck O.D. For 20 years CSI has been perfecting the tank Watertight Lid sump design and installation process, creating the most reliable and contractor friendly sump :F32'1.D. line available. Our proven technology has been Enclosure Top utilized in thousands of installations. Round Body Extension 'L" CONTAINMENT COLLARS EZ-Fit Adhesive Joint t 4' 7' The protection of system components above I Polygon Body 19" 2V the tank top begins with the containment collar. (a -Flat Panels) CS] collars are factory bonded to the tank wall, and engineered to fit the single or double- EZ-Fit Adhesive Joint wall tank sump specified. The collars feature a Containment Collar 4/2" built-in adhesive channel making field bonding 16" �0�1 installation easier than ever. d* 4z"or4s"l.D.--� SINGLE -WALL TANK SUMP WITH WATERTIGHT LID 13 ACCESSORIES TANK SUMP LIDS Turbine tank sump lids are used at the submersible turbine end of the tank when access is infrequent and the area must be watertight. The turbine lid is made of rigid fiberglass and fits into place by simply pushing down on the lid. Comfort grip handles make removal of the lid convenient. FiIlNapor tank sump lids are available for the fill -end of the tank when multi -port manholes are used. We offer two access opening options to accommodate the most popular shroud boots and spill containment systems. Both configurations include an observation port allowing easy access for internal sump inspections. Quad fill lids are also available on 48" and 54" tank sumps. Turbine Lid WATERTIGHT TESTED Fill/Vapor Lid w/ 15" Access Openings � 4 Fill/Vapor Lid w/ 13" Access Openings —MINNOW. Quad fill Lid Lid assemblies are tested to 1' of hydrostatic head pressure to ensure a watertight seal. Access and removal of lids is possible through a standard street boxes. 100% SECONDARY CONTAINMENT Several competitive products bond the sump walls together using glass fabrics, this can result in triggering false alarms due to poor communication in the monitoring system. CSI Double -wall tank sumps are built with two completely independent walls. This open environment offers the perfect communication pathway for hydrostatic monitoring which means reliable 3601, protection. jSA..W ' A C C E 5 5 0 R I E 5 14 DEADMEN TANK ANCHORS Containment Solutions can provide factory deadmen tank anchors, engineered to American Concrete Institute (ACI) standards, for fiberglass storage tanks. Deadmen anchoring systems prevent storage tanks from floating when excessive ground water is present. Ordering a complete CSI deadmen system, with turnbuckles and straps, is a ready-made solution for your tank anchoring needs. Typically the entire package is delivered on the same truck as the tank, saving you construction time and shipping costs. Each anchoring system is sized for your specific tank configuration and arrives ready to install. LOW -PROFILE 18"X 8" DEADMAN 3/4" [19mm] Galvanized Loop Hook 3/4" [19mm) Galvanized Eyebolt 97 RebaratTop Galvanized Square Washer (2 typ.) (Top & Bottom} 14 1/7)'— L.1i... t11— r 8" ° , 6 ❑ Loop Hook Design /-- 3/4" [19mm] Galvanized Loop Hook L 0 • 0 I a ❑ n 12" r 12" ---� Loop Hook Design 14', 18' or 22' - 400 psi [27580 kpa] Concrete (120 Ibs per Linear Foot) 12"X 12"DEADMAN 4 A 18' Eyebolt Design 3/4" [19mml Galvanized Eyebolt Galvanized Square Washer (lop & Bottom) ` Adjustment Slot a �• (2 min. per headman) Q 15 1/2" , ° a 12 ❑ e. 4 ° a 4 f 12', IC 18' or 20' - 400 psi [27580 kpa] Concrete 12" (150 Ibs per Linear Foot) Eyebolt Design I r t:- n 15 ACCESSORIES CSI FIELD SERVICES We proudly stand behind our products which is why we have an entire division fully staffed by experienced CS] technicians for field services. We are the only major manufacturer of fiberglass storage products with a full time staff and we service not only our products but our competitors' products as well. RETANK) ReTank® is an on -site retrofit system which allows you to turn any Containment Solutions, Owens Corning or other manufacturers' fiberglass single -wall tank into a hydrostatically monitored double -wall tank. The benefits include reducing the costs of tank replacement and using existing tanks for multiple types of fuel. With CSI's ReTank system, a fiberglass inner tank is constructed in sections and then installed in your existing tank, still in the ground. While in your tank, CSI technicians perform a full inspection, upgrade all fittings to current standards, and install all the safeguards of our newest double -wall tanks. ReTank is UL Listed and includes a new 30-year warranty on the constructed inner tank. BTU®- BIOFUEL TANK UPGRADE The BTU®, Biofuel Tank Upgrade, is a cost-effective solution for upgrading existing fiberglass single -wall tanks to meet new regulations. Many of the earliest generation fiberglass tanks were not tested nor were they warranted for either biodiesel or ethanol blends exceeding 10%. What makes BTU different from other upgrades? BTU is a tank enhancement, it is not a spray -on liner. Tank liners have an unfortunate history of failure which is why you should only trust a tank manufacturer with future upgrades. The BTU service is completed by CSI field technicians who are experts in fiberglass tank manufacturing techniques. BTU can be applied in combination with other tank modifications like sumps and collars or as a stand-alone service. COMPARTMENT TANK UPGRADES CSI Field Service can add a bulkhead to an existing underground storage tank creating a multi -compartment tank. Modifying existing tanks can expand the available product offering for a fraction of the cost of tank replacement. A CSI compartmenttank upgradewill not affectthe tankwarrantya nd minimizes dispenserdown time.The multi -compartment tank will be operational in a few days and is fully compatible with the same fuels as all other CSI tanks. v RETANK PROCESS MANWAY UPGRADE FIELD SERVICES 16 SHORT FORM SPECIFICATION The contractor shall provide the appropriate single, double or triple -wall fiberglass storage tank and accessories as indicated on tank drawings. Capacity, dimensions and fitting locations will be indicated on tank drawings. Tanks shall be manufactured by Containment Solutions, Inc. The tank must be tested and installed according to manufacturer's current installation instructions. LONG FORM SPECIFICATION 1. GENERAL 1.1. Quality Assurance 1.1.1. Acceptable Manufacturers: Containment Solutions, Inc., (CS0, Conroe, Texas 1.1.2. Governing Standards, as applicable: 1.1.2.1. Underwriters Laboratories Inc. Standard 1316,Glass- Fiber Reinforced Plastic Underground Storage Tanks for Petroleum Products, Alcohols, and Alcohol -Gasoline Mixtures. 1.1.2.2. Underwriters Laboratories of Canada standard ULC-5615, Reinforced Plastic Underground Tanks for Flammable & Combustible Liquids. 1.1.2.3. National Fire Protection Association codes and standards: NFPA 30 Flammable and Combustible Liquids Code NFPA 30A Motor Fuel Dispensing Facilities and Repair Garages Cade NFPA 31 Installation of Oil -Burning Equipment Standard 1.1.2.4. City of New York Department of Buildings M.E.A., 71-85-M 1.1.2.5. American Concrete Institute standard ACI 318, Building Code Requirements for Structural Concrete. 1.2. Submittals 1.2.1. Contractor shall submit copies of: shop drawings, manufacturer's product brochures, installation instructions and calibration charts. 2. PRODUCTS 2.1, Double -Wall orTriple-Wall Fiberglass Underground Storage Tanks 2.1.1. Loading Conditions -Tanks shall meet the following design criteria: 2.1.1.1. External hydrostatic pressure: Buried in ground with 7'of over burden over the top of the tank, the excavation fully Flooded and a safety factor of 5:1 against general buckling. 2.1.1.2. Surface Loads: When installed according to manufacturer's current installation instructions, tanks shall withstand surface HS-20 axle loads (32,000 Ibs/axle). 2.1.1.3. Internal Load: Primary and secondary tanks shall withstand 5 psig (35 kPa) air pressure test with 5:1 safety factor. 2.1.1.4. Tanks shall be designed to support accessory equipment such as heating coils, ladders, drop tubes, etc. when installed according to manufacturer's recommendations and limitations. 2.1.2. Product -Storage Requirements 2.1.2.1. All primary tanks must be vented. Tanks are designed for operation at atmospheric pressure only, except for use with vapor recovery systems at a pressure or vacuum not to exceed 1 psig (7 kPa). 2.1.2.2. Tanks shall be capable of storing liquids with specific gravity up to 1.1. 2.1.23. Tank shall be capable of storing the following products: • Diesel fuel oils for oil burning equipment at temperatures not to exceed 150°F. Gasoline, jet fuel, aviation gasoline, motor oil (new or used), kerosene, diesel motor fuel at ambient temperatures. • Alcohol -gasoline blend motor fuels at ambient temperatures: Gasoline -ethanol blends with upto 100%ethanol. Gasoline -methanol blends with up to 100%methanol. Oxygenated motor fuels at ambient temperatures with up to 20% (by volume) methyl tertiary butyl ether (NITBE), ethyl tertiary butyl ether (ETBE), di -isopropyl ether (RIPE), tertiary butyl alcohol (TBA), tertiary amyl methyl ether (TAME), or tertiary amyl ethyl ether (TAEE). • Biodiesel-diesel blends with up to 100% biodiesel (13100 per ASTM) at ambient temperatures. 2.1.3. Materials 2.1.3.1. The tank shall be manufactured as a matrix of premium resin, glass fibers and silane-treated silica that together result in a composite providing improved corrosion protection. 2.1.3.2. The tank inner wall shall be fabricated against a mold to produce a non -air inhibited and high gloss laminate to provide a fully cured inner surface without the need of wax coats, a low coefficient of friction and a natural resistance to the build-up of algae or other contamination on the surface. Wax and wax resin coatings cannot be used to achieve full surface cure on tank shells and endcaps. 2.1.4. Dimensional Requirements (refer to Containment Solutions literature) 2,1.4.1. Nominal capacity of the tank shall be _ gallons / liters. 2.1.4.2. Nominal outside diameter of the tank shall be _ feet. 2.1.4.3. Nominal overall length of the tank shall be _ feet. 2.1.5. Monitoring Capabilities 2.1.5.1. Double and triple -wall tanks shall have a monitoring space between the walls to allow for the free flow and containment of leaked product from the primary tank.The monitoring space shall provide equal communication in all directions. 2.1.5.2. The following continuous monitoring conditions shall be compatible with the cavity between the inner and outer tanks: Vented to atmosphere Vacuum - 5 psig maximum Positive air pressure (5 psig maximum) • External hydrostatic pressure -7'maximum groundwater head pressure over tank top 2.1.5.3. Tanks 6'diameter and larger shall have an integrally mounted annular space reservoir installed on the tank for factory -installed brine and continuous hydrostatic monitoring.The reservoir shall be constructed of fiberglass reinforced plastic materials and be included in the tank warranty. 2.1.5,4. The monitoring fitting for the monitoring space shall be a 4"NPTfitting. 17 SPECIFICAT10NS 2.1.5.5. The monitoring system shall be capable of detecting a breach in the inner and outer tank under the following installed conditions: When the primary tank is empty. When the primary tank is partially or completely full and the ground water table is below tank bottom. • When the primary tank is partially or completely full and the tank is partially or completely submerged in groundwater. 2,1.5.6. The leak detection performance of the monitoring system shall be listed as a continuous interstitial monitoring method (liquid filled) by the National Work Group on Leak Detection Evaluations (NWGLDE).The system should be capable of detecting leaks in the primary or secondary tank walls as small as 0.10 gallons per hour within one -month. 2.1.5.7. The hydrostatic monitoring system shall be capable of a precision tank test that is listed by the National Work Group on Leak Detection Evaluations (NWGLDE). 2.1.5.8. If hydrostatically monitored, any solution used in the monitoring space shall be compatible with the tank and be of a contrasting color to the tank. 2.2. Accessories 2.2.1. Flanged Manways 2.2.1.1. The standard manway is 22" I.D. and will be furnished with UL listed gaskets and covers (30"and 36"manways are optional). 2.2.1.2, Location - see standard tank drawings. 2.2.1.3. Optional manway extensions shall be fiberglass and feet long. 2.2.2. Fill Tubes -Fill tubes of appropriate design shall be supplied by contractor. 2.2.3. Hydrostatic Monitor Accessories 2.2.3.1. Brine monitoring fluid shall be a calcium chloride solution. 2.2.3.2. Double float reservoir sensor supplied by contractor shall be designed for CSI reservoirs. The components of the sensor shall be compatible with brine and provide two alarm points positioned 10"apart. 2.2.4. Secondary Containment Collar 2.2.4.1. UL label shall be affixed to collar. 2.2.4.2. The collar shall be fiberglass reinforced plastic, 42"or 48" in diameter and shall be factory -installed in accordance with drawings. 2.2.4.3. The collar shall include an internal adhesive channel. 2.2.4.4. The collar shall be included in the 30-year tank warranty. 2.2.5. Adhesive Kit (Kit AD) 2.2.5.1. UL Listed and alcohol compatible adhesive kit shall provide a watertight seal at the tank sump and containment collarjoint to prevent the ingress of water or egress of fuel. The adhesive kit includes resin, catalyst, mixing stick, putty knife, sandpaper, grout bag, and installation instructions. 2.2.6. Tank Sumps 2.2.6.1. UL label shall be affixed to tank sump components. 2.2.6.2. Tank sumps & collars shall be listed by Underwriters Laboratories for petroleum fuels and all blends of alcohol (same as tank). Collar and sump shall be tested and listed as a complete sump system. 2.2.6.3. Tank sump components shall be constructed of fiberglass reinforced plastic. The tank sump shall be 42"or 48" in diameter and must mount to the secondary containment collar. Standard tank sump shall consist of an octagon shaped base (round base is optional), round body extension and enclosure tap. 2.2.6.4. The octagon base shall be 24" in height and provide 19" high panels for piping entry points. The base must be capable of joining to the collar with an internal adhesive channel. 2.2.6.5. A 34" O.D, watertight lid shall be provided at the submersible and fill/vapor end of the tank and provide a watertight seal to the sump enclosure withl2" of water above the lid and remain leak free. 2.2.6.6. Refer to tank sump drawings for standard models and configurations. 2.2.7. Ladders 2.2.7.1. Ladders shall be supplied by the tank manufacturer (carbon steel, stainless steel, aluminum). 2.2.8. Anchor Straps 2.2.8.1. Straps shall be supplied by the tank manufacturer. 2.2.8.2. Number and location of straps shall be as specified by manufacturer. 2.2.8.3. Each strap shall be capable of withstanding a maximum load of 25,000 lbs. 229. Prefabricated Concrete Deadmen Anchors 2.2.9.1. Design Conditions - Deadmen shall meet the following design criteria: • Deadman shall be designed to ACI 318 • Manufactured with 4,000 psig concrete • Manufactured in various lengths • Provide adjustable anchor points for hold down straps 2.2.10. Liquid Sensor Drawstring 2.2.10.1. Galvanized steel drawstring shall be factory installed at the monitoring fitting to facilitate field insertion of sensor. 2.2.11. Fittings Threaded NPT 2.2.11.1. All threaded fittings shall be located on a manway cover or within 12" of the tank top center line. Fittings to be supplied with temporary thread protectors or threaded plugs. 2.2.11.2. All standard fittings shall be 4"diameter NPT half couplings. 2.2.11.3. Internal piping shall be terminated at least 4"from the tank bottom (6°for 12'diametertanks). 3. EXECUTION 3.1. Installation and Testing 3.1.1. Fiberglass underground tanks must be tested and installed according to the current installation instructions provided with the tank (refer to Containment Solutions Pub. No. INST 6001).Tanks are installed with pea gravel or crushed stone as specified in current installation instructions. Containment Solutions'tanks are intended for storing products listed in the warranty; any other products not listed in the warranty must be approved in advance by Containment Solutions. 4. LIMITED WARRANTY 4.1. Limited Warranty 4.1.1. Warranty shall be Containment Solutions limited warranty in effect at time of delivery. MOONS aDEAN I[�I�� CONTAINMENT SOLUTIONS MA Underground and Aboveground Urea DEF Storage Tanks Automotive Oil and Lubricant Stoi Oil Water Separators and Inter Flowtite' WaterTanks Chemical StorageTanks Fiberglass Manholes and Wetwells :1 CONTAINMENT S O L U T I O N S® 333 North Rivershire Dr, Suite 190 • Conroe, TX 77304 • Phone: (936) 756-7731 • www.containmentsolutions.com Copyright Q Containment Solutions, Inc. • All Rights Reserved • January 2014. Pub. No. TNK 1001 L Spill Prevention and Response Plan COLBEA ENTERPRISES, LLC / SEASONS CORNER MARKET Store Address Store Phone () This document details Colbea/Season's Spill Response Plan which includes necessary steps and processes to handle spills or emergencies related to gasoline, diesel fuel, or spills of retail automotive fluids within the stores. I.) Spill Prevention The following are general requirements for any hazardous substances stored or used at this facility. • Ensure all hazardous substances are properly labeled. • Store, dispense, and/or use hazardous substances in a way that prevents releases. • Provide secondary containment when storing hazardous substances in bulk quantities (-r55 g). • Maintain good housekeeping practices for all chemical materials at the facility. • Maintain updated Materials Safety Data Sheets (MSDS) for all substances at the facility. • Routine/Daily checks in the hazardous substance storage area to be performed by the store manager. Facility Specific Requirements (if applicable); II.) Assess / Assist / Stop The general spill response procedure at this facility is as follows: 1.) Stop and Assess and Ensure Public Safety-- Identify the area affected by the spill and the preliminary cause of the spill and take necessary precautions to ensure public safety, which may include emergency shutoff of fuel dispensing systems, evacuation of affected areas and/or cordoning off of affected areas. The first priority is to maintain public safety and ensure customers and employees will not be exposed to the spill; 2.) Determine the Need for Assistance — Small spills may be handled by store personnel. Larger spills or spills require additional support. The following details the general levels of notification and support needed for various spills. o Small spills of less than 5 gallons of materials, including gasoline or diesel fuel at the facility can frequently be handled by store personnel. Store personnel should notify the store manager of the occurrence of small spills and follow the Emergency Response Procedures below. Spill Prevention and Response Plan o Spills greater than 5 gallons require immediate notification of facility and management including the store manager and regional manager. Fuel spills greater than 5 gallons also require notification of the local fire department. Follow Emergency Response Procedures below. o Spills greater than 10 gallons of materials may necessitate notification to additional local, state or Federal authorities. Notify the store manager, regional manager, operations manager and Colbea's Environmental Director of any spills exceeding 10 gallons. Colbea management will make additional notifications of local, state of Federal authorities as required. Follow Emergency Response Procedures below. 3.) Stop the Spill from Continuing — Determine the cause of the spill and take actions to prevent the spill from continuing. Most spills that occur at our facilities are related to customer actions such as overfills or drive -offs. Fuel dispensing equipment should be shut down using the emergency shut down switches in the event of a fuel spill from the fuel dispensing equipment. 111.) Emergency Response Procedures 1.) Fire Event: Responsibilities in the event of a fire: • Turn off power to the gas pumps • Evacuate all persons from the store and parking area, away from the pumps • Call 911 • Secure the parking area to prohibit access by people and vehicles • Evacuate yourself from the store and go to your designated safe location. Identify yourself to local authorities upon their arrival 2.) III of Fuel or Chemicals: Responsibilities in the event of a gas spill (5 gallons or more): • Turn off power to the gas pumps • Ensure all smoking materials are extinguished • Contain the spill as best you can with spill containment cloths/speedy dry) • If the spill extends beyond the grooves, call one of the people listed below in the order that they appear • Follow their instructions • If they request you call the fire department, use the call procedures listed below. Spill Prevention and Response Plan CALLING PROCEDURES • Contact the fire or police department by calling 911 • Tell them you are a Shell Gas Station and give the address: • Tell them the store phone number. Store Phone number: • Tell them what the emergency you are reporting. • Tell them what time the emergency occurred. After calling 911, call one of the following in the order that they appear: Store Manager District Manager Director of Ops Environmental Mgr Director of Brands Phone Number Phone Number DJ Orr Phone Number 401-688-4601 Eric Simpson Phone Number 508-298-8686 Mario Vendittelli Phone Number 401-749-1601 V.P. of Operations Angelo Ruo Local Fire Department Phone Number: Local Police Department Phone Number: 3.) Initial Response Actions Phone Number 401-241-0828 • Retrieve the spill kit from the closest location. • Assess the size of the leak and any immediate threat of the spill reaching the floor/storm drains or permeable surfaces in the area. If there is an immediate threat and there are no safety concerns, then attempt to block the spill from coming in contact with the floor/storm drain or permeable surface. If no drain covers are available, then try to use absorbent (cat litter) and/or sock booms or rags to stop the spill from getting into the drains or to any permeable surfaces, • If the spill can be contained with absorbent booms, deploy them around the spill. Use the booms to direct the spill away from any immediate hazards (i.e. a wrecked car). • If there is no immediate threat to the floor/storm drains or permeable surfaces, or after controlling the spill, try to plug or stop the leak, if possible. If applicable, put on protective gear (gloves, goggles, protective clothing, etc.) and plug the leak. • Once the spill has been contained and any immediate threat to storm drains or permeable surfaces has been minimized, contact the spill cleanup contractor and dispatch them to clean up the spill or commence spill cleanup procedures. 4.) Spill Response Contractor. Spill cleanup for large spills should be handled by the Spill Cleanup Contractor: Company Name: Newton B. Washburn 24-Hour Phone: 401-300-6791 C a a� O C. d w M O J Si cn Q CL Spill Prevention and Response Plan Site Map Note locations of spill kits, inside floor drains, storm drains, and hazardous substance storage areas. Andrew L. Singer Myer R. Singer Of Counsel Requestor Name: Date: Land Requested First Choice: Second Choice Third Choice: Narrative Law Office of Singer & Singer, LLC 26 Upper County Road P. O. Box 67 Dennisport, Massachusetts 02639 Tel: (508) 398-2221 Fax: (508) 398-1568 www.singer-law.com Town of Yarmouth Request for Real Property Form Colbea Enterprises, LLC March 21, 2019 Additional Information/Narrative Map 93, Parcel 3; Map 99, Parcel 52 (approximately 50,000 sq, ft. to be divided by ANR); or Map 74, Parcel 10 and Map 99, Parcel 53 (combination of the two parcels). The Requestor is proposing to develop the land located in the B 1 Commercial District and Aquifer Protection District at 473, 479, and 487 (portion) Station Avenue in South Yarmouth [collectively "Property"] as described in more detail herein. The proposed development requires the creation of a Nitrogen Aggregation Plan with the approval of the Yarmouth Board of Health. In a Nitrogen Aggregation Plan, the land to be developed is designated the Facility Land and off -site land to be permanently protected as undeveloped open space is designated the Credit Land. The more sensitive Credit Land is preserved in order to allow the more appropriately -zoned Facility Land to be developed, The Requestor has been working closely with officials from the Town of Yarmouth on the proposed development. On its face, this proposal is to develop the Property for use as a Shell fuel service station and convenience store with co -brand business. in its details, however, the proposal is a rare opportunity to upgrade and better protect both the business and natural environment along and in this portion of Station Avenue. It is business development coupled with environmental protection. As demonstrated in the materials submitted to multiple Town bodies, the proposal will significantly reduce environmental risk to water quality and thereby enhance environmental protection in the Aquifer Protection District. This will be accomplished by permanently closing two older fuel service facilities with an average age of forty (40) years located within one quarter mile of the Property and replacing them with one new state-of-the-art facility with fewer underground tanks, less underground piping, modern leak detection with sensors and alarms, and a decreased volume of underground fuel storage, as follows: 1. There will be a significant net reduction of 16,000 gallons of fuel storage in the Aquifer Protection District as the existing seven (7) underground tanks, six (6) dispensers, and 56,000 gallons of underground fuel storage at the two existing facilities are replaced with only two (2) underground tanks, six (6) dispensers, and 40,000 gallons of storage; 2. Two, older fuel service stations (Shell and Sunoco) will be replaced with one, state-of- the-art site incorporating significant improvements in design and containment protocols for underground fuel storage with an automatic and continuous leak detection system in double -wall underground storage tanks and double -wall piping complete with probes, sensors, and alarms; 3. Additionally, there will be an estimated reduction of forty-five (45) to fifty (50) linear feet of underground piping when the piping at the two existing sites is removed and replaced with new piping at the new site; and 4. A safer, double -wall tank system with leak detection and brine in the interstitial space will be installed at the new site in place of the seven older underground fuel storage tanks (a mixture of single and double -walled tanks) located at 446 Station Avenue (Shell Station) and 433 Station Avenue (Sunoco Station) — the latter to all be removed and not replaced. The Town DPW, Water, and Health Departments commissioned peer review of the proposal. The peer review report submitted to the Town of Yarmouth is being reviewed by the Yarmouth Outside Water Consultant, Health Agent, and Board of Health. The consultant concludes that: "...the proposed actions and activities proposed by Colbea in this project appear to yield a net benefit to the Town in the form of potential increased revenue in the form of taxes and in the redevelopment opportunity for existing non -confirming parcels, while concurrently reducing the potential risk to Town receptors and resources (i.e., the APD)." To achieve all of the above benefits, Credit Land is required. The proposal requires Credit Land of approximately 50,000 sq. ft. of area. The Requestor seeks to purchase at public auction foreclosed land owned by the Town of Yarmouth to be designated as the Credit Land that wiI] be permanently preserved and conserved as nitrogen credit open space. The three applications submitted with this Narrative are arranged in preference order — First, Second or Third Choice. Only one of the choices is ultimately required. The Requestor and its consultants would be happy to meet with the Town, answer any questions, and provide any additional information that may be desired. Thank you. Town of Yarmouth Request for Real Property Form Requestor Information Name: Colbea Enterprises, LLC Phone: 508.398-2221 (Atty. Andrew Singer) Address 1: 2050 Plainfield Pike Email Address: alsinger@singer-law.com Address 2: Cranston, RI 02921 Land Requested Street Address: Old Townhouse Road Map/Lot: 99/52 Acres: 464,785 sq. ft. (50,000 +!- sq, ft. to be divided) Assessed Value: $216,100 ($23,000 for 50,000 sq. ft.) Current Use Vacant # of Structures None Condition of NIA Structure 1 Condition of NIA Structure 2 Nature of Disposition Lease ❑ Acquisition Sought (check one) Will Pay for an Yes Fv—(] No Independent Appraisal by Firm Approved by the Town (Y/N): Attachments: j I Assessor's Property Card Additional information/narrative regarding proposed use including economic impact of development including value of structures, annual revenues generated and number/type of jobs created. By signature below it is acknowledged that the applicant does not have exclusive right to purchase the property. It is also acknowledged that the property may not be offered for sale. The process described in the land disposition policy will be followed including if decided by the Town an RFP or Auction will be conducted depending on how the land was obtained. C-l�-vc. c � .,fit Signature: ! Date: T I-D, �(`� Locus: 433 Station Avenue, South Yarmouth Draft — Subject to Owner Lawyer Review DEED RESTRICTION WHEREAS, PETRO REALTY CORP, a Massachusetts corporation having a business address of 4 North Street, Hingham, MA 02043, owns that certain land commonly known as 433 Station Avenue, South Yarmouth, Barnstable County, Massachusetts ["Premises"], as evidenced by that certain deed recorded with the Barnstable County Registry of Deed in Book 24906, Page 266, and WHEREAS, PETRO REALTY CORP, as the owner of the Premises, has agreed with the Town of Yarmouth to restrict the use of the Premises from future use for the sale of motor vehicle fuels as partial consideration and mitigation for the granting of regulatory, permits to develop a nearby parcel of land in the Yarmouth Aquifer Protection Overlay District; and NOW THEREFORE, in consideration of the foregoing, PETRO REALTY CORP., hereby places the following restriction on the Premises: I . The Premises shall not be used for the sale of motor vehicle fuels, and 2. This restriction shall run with the land and be binding on all successors in title. WITNESS my hand and seal this day of , 20 PETRO REALTY CORP By: Aaron 1. Cutler It's President and Treasurer COMMONWEALTH OF MASSACHUSETTS County . 20 Then personally appeared the above- named Aaron 1. Cutler, proved to me through satisfactory evidence of identification, which was , to be the person whose name is signed on the preceding or attached document, and acknowledged the foregoing instrument to be his free act and deed, before me as President and Treasurer of Petro Realty Corp. Notary Public My Commission Expires: Locus: 446 Station Avenue. South Yarmouth Draft — Subject to Owner Lawyer Review DEED RESTRICTION WHEREAS, COLBEA ENTERPRISES, L.L.C., a Delaware limited liability company whose address is 2050 Plainfield Pike, Cranston, RI 02921, owns that certain land commonly known as 446 Station Avenue, South Yarmouth, Barnstable County, Massachusetts ["Premises"], shown on the plan of land entitled "Plan of Survey in Yarmouth, Mass. for Shell Oil Company by Stanley Engineering, Inc. dated May, 1975 and recorded with the Barnstable County Registry of Deeds in Plan Book 297, Page 38, and further evidenced by that certain deed recorded in said Registry in Book 23312, Page 156, and WHEREAS, COLBEA ENTERPRISES, L.L.C., as the owner of the Premises, has agreed with the Town of Yarmouth to restrict the use of the Premises from future use for the sale of motor vehicle fuels as partial consideration and mitigation for the granting of regulatory permits to develop a nearby parcel of land in the Yarmouth Aquifer Protection Overlay District; and NOW THEREFORE, in consideration of the foregoing, COLBEA ENTERPRISES, L.L.C., hereb,. places the following restriction on the Premises: l . The Premises shall not be used for the sale of motor vehicle fuels; and 2. This restriction shall run with the land and be binding on all successors in title. W1TNF,SS my hand and seal this day of , 20 COLBEA ENTERPRISES, L.L.C. By: Andrew Delli Carpini Authorized Signatory COMMONWEALTH OF MASSACHUSETTS County 20 Then personally appeared the above -named Andrew Delli Carpini. proved to me through satisfactory evidence of identification, which was personal knowledge, to be the person whose name is signed on the preceding or attached document, and acknowledged the foregoing instrument to be his free act and deed, before me as the Authorized Signatory of Colbea Enterprises, L.L.C. Notary Public My Commission Expires: hXA)MPLP4 OF GAS STATION CANOPIES IN YARME.?UTH, MA Gap . Cod Farnt4 - 252 Route 28 — Sloped hip roofed canopy %w-ith Jasci�i J)a j2'(i cletjils Cave Cod Farms - 252 Rothe 2a — (',d PP�' cc�ttitjt[t cie#1iitl C .ape Cod Farms - 252 Route 28 — Sign details with cicccfr:rtive lighting EXAIMPLKS OF (SAS STATION CANOPIES IN YARMOUTH, t•LA Speedway - 1353 Route 28 - Slol)ecf hip roofed canopy with Fascia board details Cumberland Farms - 628/634 Route 28 - Flat canopy roof with cornice fit -tails and substantial coteums Speedway - 441 Route. 28 -- Sloped root' canopy RF- "!. sr cud saax� �•.•ti'a'rR a W Q b t3- FURLONG vs. SALEM ZONING BOARD OF APPEALS, 90 Mass. App. Ct. 737 Page 1 of 3 Till MICHAEL F. FURLONG & another IN,te, vs. ZONING BOARD OF APPEALS OF SALEM & another. fNote2 90 Mass. App. Ct. 737 October 7, 2016 - December 12, 2016 Court Below: Land Court Present: Hanlon, Sullivan, & Blake, JJ. Zoning, Variance, Setback. Practice, Civil, Zoning appeal. RECEIVED AT HEARING t C,/ A Land Court judge properly upheld a decision of a citys zoning board of appeals granting a dimensional variance to the defendant marina allowing it to build a boat repair facility outside of the setback requirements of the local zoning ordinance, where the judge was warranted in finding that a hardship had been demonstrated, in that the variance would ameliorate the safety concern posed to people and property by the operation of a marine travel lift hoist if the proposed facility were to be built within the requirements of the ordinance. (739-747j CIVIL ACTION commenced in the Land Court Department on February 17, 2012. The case was heard by Robert e. Foster, J. Dana Alan Curhan (Lawrence A. Simeone, Jr., with him) for the plaintiffs. Leonard F. Femino for BHCM Inc. BLAKE, ]. The defendant, BHCM Inc., doing business as Brewer Hawthorne Cove Marina (Brewer), sought and received a dimensional variance from the defendant, zoning board of appeals of Salem (board), allowing it to build a new boat repair facility outside of the setback requirements of the local zoning ordinance. The plaintiff abutter, Michael F. Furlong, filed a G. L. c. 40A, § 17, appeal in the Land Court. Following a jury -waived trial, the judge affirmed the board's decision, concluding that strict enforcement of the zoning ordinance would create an unnecessary safety hazard, and that Brewer accordingly had demonstrated a hardship sufficient to merit the allowance of a variance. We agree and affirm. Page 736 Background. We recite the facts found by the judge, which are undisputed by the parties. Brewer owns a nonrectangular parcel of property rNote 31 with frontage on White Street and Turner Rear Street in Salem (property) that it operates as an active marina. The property consists of a large, open, paved area with about 115 parking spaces and several structures, and is bordered by Salem harbor, residential dwellings, and a municipal parking lot. The structures include a combination shower, bath, and laundry house, a pressure wash shed, an approximately 1,500 square foot temporary Quonset but located in the center of the property, a small dock house, and a "marine travel lift" hoist (travel lift). As part of its marina operation, Brewer conducts boat repairs on the property, either outdoors or inside the Quonset hut. By application dated October 26, 2011, Brewer submitted a petition for a variance to the board seeking to construct a new building on the northern edge of the property, outside of the setback requirements of the local zoning ordinance. The proposed building would serve as the marina's boat repair facility, allowing the removal of the Quonset but from the center of the property, and would also serve as the new location for the office. Brewer seeks to place the proposed building at the edge of the property in order to provide adequate room for the safe operation of the travel lift, Note 41 and to reduce the noise and fumes generated by the boat repairs presently occurring in the Quonset hut. As part of the building plan, the width of the entrance to the marina from White Street also would be widened, which would provide better access, including for emergency vehicles. Following a duly noticed public hearing on Brewer's application, Note S1 the members of the board voted to approve the application and filed a decision dated February 1, 2012, with the local city clerk's office. The board's decision notes that in so deciding, the Page 739 http://masscases.com/cases/app/90/90massappet737.html 6/27/2019 FURLONG vs. SALEM ZONING BOARD OF APPEALS, 90 Mass. App. Ct. 737 Page 2 of 3 board found that "impacts to the neighborhood were shown to be less substantial if sited as proposed rather than where it would be allowed by right." Furlong, who lives in a condominium unit approximately one hundred feet from the northern property line of the property, filed a complaint in the Land Court pursuant to G. L. c. 40A, § 17, challenging the decision of the board as legally untenable, arbitrary, and capricious. In a comprehensive and thoughtful memorandum of decision, the judge ruled that Furlong is a person aggrieved by the variance and, accordingly, has standing to bring the present action. rNQtg 61 On the merits of the variance, the judge found that the evidence established that, owing to the shape of the property, strict enforcement of the zoning ordinance would result in a risk of physical harm. Finding that the safety risk constituted a substantial hardship to Brewer, the judge affirmed the board's allowance of the variance. This appeal followed. Standard of review. When a decision of a zoning board of appeals is appealed, "the judge is required to hear the matter de novo and determine the legal validity of the decision of the board upon the facts found by him." Josephs v. Board of Appeals of Brookline, 362 Mass. 290 , 295 (1972) (Josephs). See G. L. c. 40A, § 17, inserted by St. 1975, c. 808, § 3 ("The court shall ... determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board"). "Judicial review is nevertheless circumscribed; the decision of the board 'cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary."' Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999), quoting from MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). In our review of the judge's decision, we accept his findings of fact unless clearly erroneous, but independently review his determinations of law. Shirley Wayside Ltd. Partnership v, Board of Appeals of Shirley, 461 Mass. 469 , 475 (2012). Discussion. By their very nature, variances "are individual waivers of local legislation" that permit nonconformity. Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188 , 207 (2005). For that reason, they "are not allowed as a matter of right, but, rather, should be 'sparingly granted."' Lussier v. Zoning Bd. of Appeals of Peabody, Page 740 447.Ma_ss._531 , 534 (2006), quoting from Barron Chevrolet, Inc. v. Danvers, 419 Ntass.,-R04 , 408 (1995). Consistent with these principles, the statutory requirements that must be met for an individual seeking a variance are rigorous. Josephs, supra at 292. General Laws c. 40A, § 10, inserted by St. 1975, c. 808, § 3, authorizes a board of appeals to grant a variance from the local zoning ordinance only where it: "specifically finds [a] that owing to circumstances relating to the soil conditions, shape, or topography of such land ... and especially affecting such land ... but not affecting generally the zoning district in which it is located, [b] a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and [c] that desirable relief may be granted without substantial detriment to the public good and (d] without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law." jNote...7.] Each of the requirements of the statute must be met before a board may grant a variance. Warren v. Zoning Board of Appeals of Amherst, .83..Mass,..1 , 9-10 (1981). Here, the judge found that each of the statutory requirements had been met based on the evidence presented at trial. As to the first two requirements, the judge found that, because of the peculiar shape of the property, hardship in the form of safety hazards would result if the building were constructed within the setback requirements. The safety hazards, likely to cause "injury to people and property," would be caused by the building interfering with the operation of the travel lift, which requires a large, open turning radius free of blind spots. See note 3, supra. Placement of the building at the northern edge of the property would eliminate the safety risks associated with strict enforcement of the setback requirements. As to the final two requirements under the statute, the judge agreed with the board that the proposed placement of the building would neither be of substantial detriment to the public good, nor nullify or substantially derogate from the intent or purpose of the ordinance, as the proposed placement of the building would limit interference with neighbors' views, and limit the perception of increased density in the area by maintaining as open an area as possible. f Not!81 On appeal, Furlong argues that the safety concerns found by the judge do not constitute a hardship under the statute. The question whether a safety concern, ameliorated by the granting of a variance, qualifies as a hardship under § 10 has not been extensively analyzed in our case law. Indeed, the only case to have so held is Josephs, supra. In Josephs, the Supreme Judicial Court examined a variance allowing a developer to construct a loading bay with a reduced height in a high-rise commercial and residential building. The Superior Court judge in that case found that if the zoning ordinance were strictly applied, one http:l/masseases.com/cases/app/90/90massappct737.html 6/27/2019 FURLONG vs. SALEM ZONING BOARD OF APPEALS, 90 Mass, App. Ct. 737 Page 3 of 3 alternative would result in a safety hazard to persons using the excessively steep ramp, while the other would result in an economic loss due to interference with the configuration of the building. Id. at 293. On these facts, the court concluded that the judge was warranted in finding that a "hardship, financial or otherwise" had been demonstrated. Ibid. Like the developer in Josephs, the facts here demonstrate that if Brewer adjusted its plans to fit within the requirements of the local zoning ordinance, a significant risk of harm for the people and property near the travel lift would result. We agree with the judge that "Where a variance diminishes the risk of an existing harm or where it prevents a greater risk of harm that would result from compliance with a zoning ordinance, such a hardship may merit a variance." We also agree that the unique circumstances in this case, and the degree of danger that would result from compliance with the zoning ordinance, support the judge's finding of a hardship. Accordingly, where the unchallenged evidence, found de novo by the judge, satisfies all of the requirements of the statute, 1 ?42 the decision of the board must be affirmed. Note 9 Judgment affirmed. FOOTNOTES Note 11 Delores T. Jordan. Noe 21 BHCM Inc., doing business as Brewer Hawthorne Cove Marina. [Note 31 The lot has at least twenty-five sides, five of which border the water. I.NotQ..A1 The judge found: "The travelift is used year-round. It lifts boats from the water and carries them to where they will be repaired. It repeats the process to put the boats back in the water. These operations require the travelift to turn in a radius equal to 1.4 times the length of the boat. Because there are significant blind spots for the operator of the travelift, a certain amount of open area is required for its safe operation, especially given that marina members also use the marina to access their boats. Locating the Building on the northern edge of the Property would provide an open area for operation of the travelift away from where cars are parked." Nate 51 An initial public hearing was held on November 16, 2011; the hearing was continued to January 18, 2012. Note 61 Furlong's status as a person aggrieved is not challenged on appeal. Note 71 The zoning ordinance at issue here essentially tracks the statutory requirements of G. L. c. 40A, § 10, with the exception of the language of prong [a], supra, which appears to be more lenient. The difference does not affect the outcome of this case. Note 81 Furlong argues that Brewer has failed to meet its burden of showing no substantial detriment to the public good because his view would be affected by the granting of the variance. The claims fails, if for no other reason, because the building would affect Furlong's view even if built by right. Contrast, e.g., Chiancola v. Board of Appeals of Rockport, 65 Mass, Apo, Ct. 636 , 637-638 (2006) (upholding denial of variance to build residential structure on lot because poor emergency vehicle access is substantial detriment to public good). Furlong also argues that the variance substantially derogates from the intent or purpose of the zoning ordinance by increasing density. The argument likewise fails, as the judge's finding that the proposed placement of the building would limit the perceived density in the area is supported by the record. [Note_91 Citing Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. at 12-13, and Arrigo V. Planning Bd. of Franklin, 12_Mass._Ap-p. Ct. 802 , 804 (1981), Furlong argues that relief in the form of a variance is not warranted in this case because any hardship Brewer is facing is of its own creation. Warren and Arrigo are inapposite, as they concern the knowing division of a lot for the purpose of creating multiple smaller, nonconforming tots, rather than the placement of a building within a single lot that could be built by right. Finally, the alternative options offered by Furlong to address the safety concerns are either speculative or were implicitly rejected by the judge as inadequate. Home/Search !aDia-iai by Citation Table of Cases by Flame Commonwealth of Massachusetts. Trial Ceurt taw LBrzri9s. Questions about legal information? Contact Bafernce Libranans. http://masscases.com/cases/app/90/90massappct737.htmi 6/27/2019 CAVANAUGH vs. DIFLUMERA, 9 Mass. App. Ct. 396 Page I of 5 ROSE T. CAVANAUGH vs. JOSEPH J. Df FLUMERA & others. rNote 1 9 Mass. App. Ct. 396 February 14, 1980 - March 19, 1980 Hampden County Present: GREANEY, ROSE, & PERRETTA, A. aecf In order to warrant annulment of a local discretionary grant of a variance, there must be a finding that the use permitted by the variance constitutes a substantial deviation from the intent and purpose of the by-law. [400] In an action seeking annulment of a variance granted by a town's board of appeals to permit the defendants to use their property for a general store despite its location in a residential zoning district, the judge erred in finding that the variance derogated from the intent and purpose of the by-law where it appeared that the defendants had made substantial improvements to the property, that their proposed enterprise was of substantial benefit to the district as a whole, that location of the property on a principal traffic artery adjoining a cemetery tended to minimize whatever adverse effect it might have on the otherwise residential and rural flavor of the neighborhood, and that there were other exceptional circumstances justifying a variance. [400-4021 CIVIL ACTION commenced in the Superior Court on June 14, 1978. The case was heard by Moriarty, J. James L. Allen for the defendants. GREANEY, J. A Superior Court judge annulled a variance granted by the board of appeals of Agawam which allowed Joseph J. and Jeannette A. DiFlumera to use their property on Southwick Street in Agawam (locus) for a general store despite its location in a Residence A-2 zoning district. The judge took a view and made careful and detailed findings of Page 397 fact concerning each of the three conjunctive statutory requirements imposed by G. L. c. 40A, Section 15 (as in effect prior to amendment by St. 1975, c. 808, Section 3), [Note 21 as prerequisites to the grant of a variance. Blackman v. Board of Appeals of Barnstable, 334 Mass, 446 , 450 (1956). Atherton v. Board of Appeals of Bourne, 334 Mass. 451 , 454 (1956). The judge's findings amply support his conclusions that "owing to conditions especially affecting [this] parcel ... but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ... by-law would involve substantial hardship ... and [that] desirable relief may be granted without substantial detriment to the public good." G. L. c. 40A, Section 15. Further discussion as to the existence of these requirements is unnecessary. Rodenstein v. Board of Appeal of Boston, 337 Mass. 333 , 335-336 (1958). The judge predicated annulment of the variance on the sole ground that it derogated from the intent and purpose of the by-law. Planning Bd. of Springfield v. Board of Appeals of Springfield, 355 Mass. 460 , 462 (1969), and cases cited. In reviewing that conclusion, we must accept the judge's findings of fact unless convinced that they are clearly erroneous (Broderick v. Board of Appeal of Boston, 361 Mass. 472 , 477, 478 [1972]), but we are independently to "determine[] what decision the law requires upon the facts found." Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass. 676 , 679 (1953). Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 559 (1954). On the facts found by the judge, we conclude that the variance will not nullify or substantially http://masseases.com/cases/app/9/9massappct396.html 6/27/2019 CAVANAUGH vs. DIFLUMERA, 9 Mass. App. Ct. 396 Page 2 of 5 derogate from the intent and purpose of the zoning by-law, and, as a consequence, we hold that the board's decision must be sustained. The locus consists of a narrow tract of land in Agawam located on that section of Southwick Street which is part of a heavily traveled highway (Route 57). The area surrounding Page 396 the property has a mixed residential and rural flavor with a number of small fruit and vegetable stands along the highway. The area contains a small shopping area one mile east of the locus on Southwick Street and a Polish -American club within 900 feet of the locus. A 282-unit federally subsidized housing development is under construction nearby. This project will be substantially tenanted by low income veterans and elderly citizens and has a walkway running to Southwick Street in the vicinity of the locus. The property abuts a cemetery on one side and the conforming residential lot with the plaintiff's home on the other. It has frontage of 39.70 feet on Southwick Street, in a zone which requires not less than 110 feet. The restricted frontage has the effect of precluding construction of a new building for any purpose, because the lot does not meet several dimensional requirements established by the by-law for the zoning district and is not entitled to the protection accorded non -conforming residential lots in certain circumstances by both the old and new enabling acts. See G. L. c. 40A, Section 5A, as in effect prior to St. 1975, c. 808, Section 3; G. L. c. 40A, Section 6, as appearing in St. 1975, c. 808, Section 3 (both requiring a minimum frontage of at least 50 feet). The lot contains a one-story cement block building, which was originally constructed as a commercial garage in 1923 or 1924, before the adoption of zoning in Agawam. Since that time, it has been utilized mainly for various commercial purposes under so-called "variation[s] of the zoning by-law," the most recent being a "variance" granted in 1967 to use the premises as a general store. Although tenants from time to time did occupy a rear apartment in the building, the judge specifically found that the building was now totally unfit for human habitation without substantial alterations forbidden by the zoning by-law. He also concluded that the building in its present condition is unusable for any purpose without a variance. In 1974, when a prior owner petitioned the board for permission to use the premises for professional offices, the petition was denied by the local board on the basis that the 1967 "variance" was still in effect. The DiFlumeras purchased Page 399 the property in 1976, intending to use it for a general store, after ascertaining from the building inspector and pertinent town records that the lot purportedly enjoyed a "variance" for that purpose. They received a certificate of occupancy pursuant to the existing status of the zoning and expended considerable funds renovating and repairing the interior and exterior of the building, which by that time had become rat infested and badly deteriorated. In 1977, the plaintiff commenced a civil action in the Superior Court seeking to enforce the provisions of the zoning by-law and to revoke the DiFlumeras' building permit. G. L. c. 40A, Section 22. Relief was granted in that action on the basis that the "variances" granted to the DiFlumeras' predecessors in title were in fact permits to continue non -conforming uses, which had been eliminated by abandonment. The DiFlumeras appealed from the judgment. While the decision was on appeal, the DiFlumeras applied for and were granted the variance which is the subject of this appeal. Upon receipt of the variance, they withdrew their appeal from the judgment in the earlier case. That decision had the effect of dramatically changing a settled zoning picture in existence for virtually thirty years, which was relied upon by the town and the defendants, and which had established the right for the site to be used commercially. There http://masseases.com/cases/app/9/9massappet396.html 6/27/2019 CAVANAUGH vs. DIFLUMERA, 9 Mass. App. Ct. 396 Page 3 of 5 is also no doubt that the DiFlumeras withdrew their appeal from the judgment in that case because of the grant of the variance now under study. In concluding that the variance would not cause any substantial detriment to the public good, the judge specifically found the following: that the improvements which the DiFlumeras had already accomplished "are much to be preferred over the derelict and rat -infested conditions existing when they acquired ownership"; that their "modest business enterprise ... is ... of substantial benefit to the district as a whole"; that "[i]t provides a convenient and easily accessible location for incidental shopping which tends (except perhaps to the immediate abutter [the plaintiff]) toward a more comfortable residential environment"; Page 400 that when the housing project is completed it will serve as "a convenient location for immediate shopping needs within walking distance for those elderly or handicapped residents of the project who will lack the mechanical means of traveling to more remote areas"; and that its location on a principal traffic artery adjoining a cemetery "tends to minimize whatever adverse effect it might have on the otherwise residential and rural flavor of the district." All of these findings apply with equal force to the substantial derogation question. As to the value of the property without a variance, the judge observed that "[t]he DiFlumeras .. . find themselves in the untenable position of owning a building which cannot lawfully be used for any purpose .... [T]he only value of the property is for sale to an abutter -- and even that value would be diminished because of the cost of demolishing the useless structure." We think that the judge, in considering whether the use permitted by this variance derogates from the intent and purpose of the zoning by-law, overlooked the fact that the deviation must be substantial, and that, unless the use significantly detracts from the zoning plan for the district, the local discretionary grant of the variance (all the other statutory elements having been satisfied) must be upheld. The requirement of substantial derogation recognizes that the "effect of a variance is to give a landowner a license or permit to use his property in a manner otherwise violative of the zoning ordinance," (3 Rathkopf, Zoning and Planning Section 38.06, at 38-63 [4th ed. 1979]), and that a use variance in particular "permits a use which the ordinance prohibits." Id., Section 38.01, at 38-1. Because of this, some derogation from the by-law's purpose is anticipated by every variance. Otherwise, the denial of relief on the basis of a slight or insubstantial departure from the goals of the by-law would prohibit the grant of any variance, and would, in cases such as this one, approach confiscation by depriving a property owner of virtually all practical use of his property. Id. at 38-4 n.12, and cases cited. There is no question that the DiFlumeras' use of the site for a small general store will be aesthetically more attractive than what previously existed at the locus (see D!Rico v. Page .01 Board of Appeals of Quincy, 341 Mass. 607 , 609-610 [1961]), and that their modest business will be of substantial benefit to the district as a whole. Broderick v. Board of Appeal of Boston, 361 Mass. at 479. There has been a lengthy period of similar non -conforming uses on the site, which were such that "the present changes will not substantially alter either the nature or the scope of the use." rNote 31 Ibid. See also Tanzilli v. Casassa, 324 Mass. 113 , 117 (1949); Rodenstein v. Board of Appeal of Boston, 337 Mass. at 337. It is also important that the neighborhood is not, in fact, entirely residential, but contains some heterogeneity of use (Tanzilli v. Casassa, supra; contrast Hunt v. Milton Say. Bank, 2 Mass. App. Ct. 133 , 139-140 [1974]), and that the by-law itself permits some business use (see Kairis v. Board of Appeal of Cambridge, 337 Mass. 528 , 531 [1958]). rNote 4 http://masscases.com/cases/at),P/9/9massanpet396.html 6/27/2019 CAVANAUGH vs. DIFLUMERA, 9 Mass. App, Ct, 396 Page 4 of 5 We cannot ignore the important fact that there are exceptional circumstances present, arising from the defendants' long-standing good faith reliance on a series of local zoning decisions which allowed commercial uses on the property and which were retroactively declared invalid -- a circumstance which has been found in the past to justify relaxation of zoning restrictions. See Rodenstein v. Board of Appeal of Boston, supra at 336, and cases cited. The relative isolation of the locus also minimizes its possible adverse impact on the district (Dion v. Board of Appeals of Waltham, 344 Mass. 547 , 551-552 [1962]), and the existence of the store will tend to create a more comfortable residential environment throughout the district. It is reasonably clear from the findings that the only property which might incur any adverse Page 402 effect from the presence of a small convenience store at this site is the plaintiff's, and that her degree of injury is considerably mitigated by the fact that commercial uses (and at one time a light industrial use) have existed at the location for over thirty years. The use variance was also buffered by the board's imposition of a series of restrictions which are designed to lessen its impact on the rest of the neighborhood and to prevent its future expansion. Rosenstein v. Board of Appeal of Boston, supra at 337. rNote 5 Finally, the facts found by the judge make the present case parallel to decisions such as Rodenstein v. Board of Appeal of Boston, supra at 335-336; Kairis v. Board of Appeal of Cambridge, supra at 529-532; Dion v. Board of Appeals of Waltham, supra at 550-552; and Sherman v. Board of Appeals of Worcester, 354 Mass. 133 , 135-136 (1968) -- all cases where the trial judge appears to have found that it was not economically feasible or likely that the locus would be developed in the future for a use permitted by the zoning ordinance or by-law. Contrast DiRico v. Board of Appeals of Quincy, supra at 610; Hunt v. Milton Say. Bank, supra at 140. There were no specific negative factors found by the judge which effectively counterbalance his positive findings as to the use, or which persuade us that the relief granted will substantially detract from the intent or purpose of the zoning created for the district. It follows that the board's conclusion that the use could compatibly exist with the purposes and intent of the by-law was correct and that it was justified in granting the variance. Tanzilli v. Casassa, 324 Mass. at 117, and cases cited. Pendergast v. Board of Appeals of Barnstable, 331 Mass. at 559. The judgment annulling the variance is reversed. A new judgment is to be entered stating that the decision of the board did not exceed its authority. So ordered. FOOTNOTES f.Note 1 Jeannette A. DiFlumera, Joseph's wife, and the board of appeals of Agawam. Note 21 Unless otherwise noted, all references to G. L. c. 40A in this opinion are to the enabling act as it existed prior to amendment by St. 1975, c. 808, Section 3. Chapter 808 did not become effective in Agawam until June 30, 1978, and is inapplicable to the zoning decision under review. Note 31 In its decision, the board described the following permitted uses conducted at the site: 1949-1952, a retail store; 1952-1962, a retail store and barber shop; 1962-1967, a brush factory; 1967 through 1978, a general store (with use as a church when the general store was not operated). Note 41 The Residence A-2 zoning district permits, in addition to residential use, professional offices of various types when the professional resides on the premises, beauty parlors when the operator resides on the premises, cemeteries, government buildings, schools, colleges, churches and telephone exchange buildings. See Section 20- 21(a)(c)(e)(f)(g) & (i) of the zoning by-law. htti)://masseases.com/cases/app/9/9massat)t)ct396.html 6/27/2019 CAVANAUGH vs. DIFLUMERA, 9 Mass. App. Ct. 396 Page 5 of 5 Note 51 These restrictions comprehensively deal with and limit the store's flours of operation and the scope of its trade, grant permission for one specified sign, prohibit any flashing signs, restrict all sales of merchandise to the inside of the store, bar any alterations which would increase the size of the building, and otherwise, in various ways, impose conditions on the limited business use authorized. Home/Search Table of Cases by Citation Table of Cases by Name Commonwealth of Massachusetts. Trial Court Law Libraries. Questions about legal information? Contact Reference Librarians. htti)://masscases.com/cases/app/9/9massat)pct396.html 6/27/2019 zo N n3 c - - O�z n mx � c (A za� zz O o z � f�l r` d fTl C 0 rn m � > -rn r z m G) v a D m PREPARED FOR: PREPARED DY: p 0 o Z COLBEA ENTERPRISES, LLC. YOUB �m�� A Aj O ENGINEE121NG m n A YARM OUTH MA E........ & AncH�rc cre N�� N T C!) 473,479 & 487 STATION AVENUE co Paw,�Re,. awvoe IxnHo o�aa� I-7Z1-55n5 thomas.s.baron@verizon.net From: Dwelley, Christopher <CDwelley@yarmouth.ma.us> Sent: Thursday, June 27, 2019 3:31 PM To: Christine Marzigliano; Brian Gardiner; repauldeg@gmail.com; Rick Bishop (Rbishopl5 @comcast.net); Robertc Lawtonjr; thomas.s.baron@verizon.net Subject: Land Use Disposition Committee Welcome Attachments: Land Disposition Committee Charge.pdf; Land Disposition Policy.pdf Good Afternoon, Thank you for your interest in serving as a member of the newly formed Land Disposition Committee. This Committee is charged with evaluating and recommending the potential future use of town -owned land. You can read more about the committee charge and governing policy in the attached documents. Currently, the Committee is comprised of the following members: • Christine Marzigliano (Open Space Committee) • Brian Gardiner (Finance Committee) • Paul Degnan (Recreation Commission) • Tom Baron (Planning Board) • Rick Bishop (Conservation Commission) • Bob Lawton (Affordable Housing Trust) • VACANT — At Large Member (BOS Appointment) We currently have one request in hand associated with the proposed Seasons Gas Station on Station Ave. The Staff Committee will meet in the next few weeks to conduct an initial review of this request and to prepare the documentation necessary for the committee's review. Once completed, I'll reach out to schedule a committee meeting. Please don't hesitate to reach out with any questions beforehand. Thanks, drzYA'�4 Chris Dwelley { �O Assistant Town Administrator rs Town of Yarmouth 5OB-398-2231 RECEIVED AT HEARING - �.z .a� a.. ® S� < 2 Is 1 e,m t' W Z a ¢ owQ 9 lcr: Fa SCE. 7 S Ntia (�d� ..p. cnvo` LU �ac� Ln �axo��z _I O �w�w�gLO tiwrz�-"'o4w Ln m 0 CD L o ti- w�w�adin� UNA c� _Cz �oQ� O 3 U U LO F LO N fn I w xO . 01 m_m MEMO EIMMMOMMMM SON GSS5.92L_,o 19920 ��nl �Nd 'i3��ed NN_ld 1N3W3AO8dWI OdH W �~ a33tl�5 i�i3�38 '/1'/ n VIV NIf10WtlVA 3^. t3'.: '.�_-15 L8696E6'£Lt L3ANVV4 2t3N2100 SNOS`d3S 'NOlSN"O'AW s R fI"OX� W 3NIIHVIS L 01_l`SaSlNdN31N3 `d38-100 w Y O O Q oz�o�o' t-Qw ti KpQUiQ w Uwcnti�a ,c M7t� U ?L z�w c�Qo wo O=ar U OUQ44 Ora?�,n zxz�"w x>¢�ww 'oolo (A U) U) �o 0 no a C C C 3 3 � � N � n u En L o z � 'X O Q p W o a z RECEIVED AT HEARING CARRIAGEHOUSE CONSULTING, INC. Electroluc. and PnorityMad March 8, 2019 Mr. Gary Damiecki Acting Water Superintendent Town of Yarmouth Water Department 99 Buck Island Road West Yarmouth, MA 02673 Re: Peer Review of Project Proposed New Seasons Shell Facility 473-487 Station Avenue Yarmouth, MA 02664 Dear Mr. Damiecki: Pursuant to tine Town of Yarmouth's (the Town 's) request, Car iageHouse Consulting, Inc. (CHCI) has prepared this Peer Review to serve as a means of memorializing issues identified and related to the proposed re -development of several parcels of land situated within the area designated as an Aquifer Protection District (APD) for the consideration of Town staff while reviewing any associated application(s) and/or plaus(s). We have attached several exhibits for your reference during review of this correspondence. Information Obtained and Reviewed As part of this process, CHCI obtained and reviewed the Town's Zoning Bylaw (amended through May 5, 2018), the scope of proposed redevelopment actions proposed by Colbea Faiterprises, L.L.C. of Cranston, Rhode Island (Colbea), the Aerial Site Tank Comparison prepared and submitted by Ayoub Engineering of Pawtucket, Rhode Island, and the readily -available innformation from Massachusetts Department of Enviromanental Protection's (MassDEP's) on-line files and databases, including their Geographic Information System maintained by Cie Executive Office of Environmental Affairs (MassGIS) and the Data Management System maintained by MassDEP's Underground Storage Tank (UST) Program. Other information reviewed in preparationn"of this correspondence includes manufacturer's specifications related to new UST systems proposed for installation at the above -listed property. CHCI did not perform any physical walk-through or inspection of the properties associated with the proposed actions submitted for the Town's consideration by Colbea. Observations and Discussion of Facts Tbc following is a brief summary of issues we believe your office aid other Town offices should consider un their review of the activities and actions proposed by Colbea, nunxnbered for referencing: 1. The Zoning Bylaw states that the "objective" (i.e., intent) of Section 406 (the APD Overlay District) is to protect tie Town's public drinking water supply (Section 406.2), and that "motor vehicle fuel & service" is listed as a Prohibited Use but "general merchandise. . ." and "food stores" are identified as Permitted Uses (Section 202.50) within this overlay district. 2. It is believed that the current use(s) of both the 433 Station Avenue and the 446 Station Avenue properties conrfornns to the Bylaw based on the fact that such uses were "grandfathered" at the time the APD was enacted by the Town. 3. The author is aware of no federal or state law that currently exists which would establish any deadline for removal, closure, or replacement of the UST systems currently being utilized at these two (2) facilities. 8 Pleasant Street - Soudi Natick - MA • 01760 • (508) 315-3146 jti%v,,v.CuriageHousellito.com Peer Review of Proposed New Seasons Shell Project 473-487 Station Avenue, Yarmouth, MA Match 8, 2019 Page 2 of 2 4. The Zonnig Bylaw states that uses "involving [...1 storage of liquid hazardous materials, or liquid petroleum products" are prohibited, w-lcss "designed in accordance with specified performance standards approved by DEP" (Section 406.4.1). Based on the information obtained and reviewed during this project, the author anticipates that, in absence of the activities and actions proposed by Colbea, the 433 Station Avenue and the 446 Station Avenue properties will likely continue to be used vn the future in their present state of development. In the event such a law or regulation be enacted or promulgated which required replacement of the UST system(s) at one (1) or both of these properties, it is anticipated that the Town has no basis to deny such replacement based on the location of the property(ies) within the APD. The author also notes that there may be some discrepancy between the tabulated Uses contemplated in Section 2O2.5(I-1) and the narrated Uses allowed by Special Pernits presented un Section 406.4.1 related to storage of petroleum products (i.e., motor fuel). This point is all important fact given the proposed Use of 437-487 Station Avenue as a contemporary retail -petroleum and convenience store type facility as opposed to the traditional automobile fueling and service station use called out in Section 2O2.5(I1). The author also notes that the MassDEP-promulgated UST Regulations (310 CMR 80.00) would likely qualify as such a "design" standard under Section 406.4.1. It is interesting to note that the proposed actions/development of a new facility at 473-487 Station Avenue resides within the Class B1 Business district, where "motor vehicle fuel & service" is a Permitted Use by Special Permit (Section 2O2.5(H)). Further issues for your consideration inn these matters include the following: • The new engineering and design standards for UST systems are significantly different from those which were ui-effect in 1970 and 1986 at the time the two (2) existing UST systems were uistalled at these automobile fueling and service stations; • it is anticipated the proposed project would result in a net decrease in the total number and volume of underground storage of motor fuel within the Town's APD; • it is anticipated the proposed project would result in an increase un distance between the UST systems and the closest potential receptor associated with the Town's APD; and • it is anticipated the proposed project would also result ill a net decrease in total UST system components (e.g., subsurface product piping, vent lies, bung fittings, bulkhead fittings, fill ports, vertical risers, flex connectors, shear vales, etc). Based on the facts obtained aid reviewed in these matters, the proposed actions and activities proposed by Colbea in this project appear to yield a net benefit to the Town in the form of potential increased revenue in the form of taxes and in the redevelopment opportunity for existing non -confirming parcels, while concurrently reducing the potential risk to Town receptors and resources (i.e., the APD). I appreciate the opportunity to provide you with these observations and opinions in this matter, and look forward to attending an upcoming meeting at your direction and discretion. Most Respectfully, CarriageHouse Consulting, Inc. Brian D. Moore, LSP, PG President 8 Pleasant Street • South Natick - MLk • 01760 - (508) 315-3146 rviv",.QuriageHouselnloxom 875 Use Regulation Tahle Res. I RS-AO I Bic 1 132" 1 B3" I RMDOD°° I MU I APD I AED I MOD I HMOD1 HMOb2 I VG1 VG2 VC3 VG L8 Prinbrg & Wb6shing (•except BA for rinlin no no yes see yes "4 yes" no no BA" yes" no no no no no EB Chemicals &allied products no no no no no no no no no no no na no na no E78 Petroleum&—Ipradoda no no no no no no no no no no no no no Et1 (peteletl l2-it-07) no E12 Stone, day & glass poduds no no no' no yes' no no CA10 s° no no no no no no E73 Primary metal ird-'t no no' no na rto no no no no no no no E14 Fandwledmefalpmducle(•except no far ceapng, engm'dng & allied services no no nd no BA- no no BA" BA" no no no no no, no no E1S Machinery, except electrical no no no' no 8A° na no no BA° no no no no no E16 FJechiral& eledmdoequipment no ne no' BA' no no BA" BM no no no no no no E17 Transportation equipment I. no no' no SA- no no BA" SA' no E18 Misc. manufacturing Indust— no no BA° n, no BAt6 BAs no no no nc no flu �F: TRANSPORTATION"ANO PUBLIC UTIUTIFS Ft RalTrcadtranep.rtaHcm lennmal no no no no� no no no no no no no no F2 Loral&wmmuter passenger Iransportatlon ferminal(ind.bus, rah, rail&omer trarra nation no no no BA no no no no no no no no no no no rw F3 Trucking& wrehousing no no no no yes" no no SA'— yes°° no no no no no no no F4 Wateri—podakon no rm no BA yesd° no no BA" no M. yes" YoS. no F5 Avlatfon field no ra no no BA no no BA no no no no no no F8 Tranaporu on services no esw es°' no no BA" .s . no no no Bp- no RAa BA' F7 Cemmunfcapoas favliU's BA -BA'° BA'° BAc° BA- no BA-° BA- BA- DAa no no BA" BA- BA -BA-° Fe Public uHliry non. BA' BA BA BA BA'- BA na no no nc" no'° no" nod° iG.. WAOLESALETRADE G1 Whclesale ofdumble or non-0Urable goods ('except no for petroleum pradoals. no rorrhemical &allied roduc of r" nk ands no ne no no yes'• n, no BA1° yes°' no no no LZ no no no AI IRIADL.. Hl Building matedak& garden supplies no no es}-1°Y.01. no no BA1° no no oo yas no yes yes H2 Genaral merchandise stares no no yes"" yes='1 no no no yes no no yes yes yes yea yes H3 Food stores na no yea111° yea"' m no yes no no yes;" no yes yes yes yes H3A Fanners Markets(as o Aled by the 8elechnen'a Fanners' Market Pali yes yes vas yes yes no yes yes yes yes Yes yes yes yes yes yea H4 Sale of autos. boats, motor cycles, mopeds or out er motorized eagonal veNdes Ilncludea service as amessa to $ales no no BA BA no no ne no no no no rw no.no»� no no HS Sale el tacks, mobile homes or other heavy mntorbM equipment lVdudes service as accessory to oaks "O no no no no no no no no rw no na m no no m HG Motor vehicle luel&servke no RAz DA;" no no no no no no no no no no I no no H7 Ipekled 12-11-07) no epg a HA Furniture & home rundshings no no yes' yea= r10 no no yea no yesan. I yes yes yes yes 405. WETLANDS. 405.2 In all districts, any dwelling shall be set back a minimum of one hundred (100) feet from the top of the bank of any cranberry bog. 406. AQUIFER PROTECTION OVERLAY DISTRICT. 406.1 Findings. The Town of Yarmouth finds that 406.1.1 The ground water underlying this town is the sole source of its existing and future drinking water supply; 406.1.2 The groundwater in the aquifer is integrally connected with, and flows into, the surface waters, lakes, streams and coastal estuaries which constitute significant recreational and economic resources of the Town used for water -related recreation, shell fishing and fishing; 406.1.3 Accidental spills and discharges of petroleum products and other toxic and hazardous materials and sewage discharge have repeatedly threatened the quality of such groundwater supplies and related water resources throughout towns in Massachusetts, posing potential public health and safety hazards and threatening economic losses to the affected communities. 406.2 Ob� el ctive. The objective of this section of the bylaw is to protect the public drinking water supply in Yarmouth from the effects of high density land development and from potentially hazardous materials associated with specific land uses. superimposed over any other district established in this bylaw. The more restrictive provisions of either the Overlay or underlying zoning districts shall apply. The boundaries of the Aquifer Protection Overlay District are based upon a delineation of the zones of contribution to public supply wells completed by Whitman & Howard, Inc. (1984, 1985). Where the boundaries of the Aquifer Protection Overlay District are in doubt or dispute, the burden of proof shall be upon the owner(s) of the land in question to show where the boundaries should be located. Proof shall be based upon evidence provided by a professional hydrogeologist. Where the boundary line of the Aquifer Protection Overlay District divides any lot existing at the time such line is established, the regulation established hereunder shall apply only to the area of the lot which falls within the district. 406.4 Use Regulation. Uses, except as noted below, within the Aquifer Protection Overlay District shall be controlled by Section 202.5 of the Zoning Bylaw, Use Regulation Schedule, and by the provisions of this bylaw. All uses listed in Section 202.5 which require a Special Permit in this District shall be subject to the requirements listed below. 406.4.1 Prohibited uses: landfills and open dumps, as noted in 310 CMR 22.21(2)(A)1; land filling of sludge and septage, as noted in 310 CMR 22.21(2)(a)2; automobile graveyards and junkyards; stockpiling and disposal of snow or ice from outside the Zone II (APD), which contains deicing chemicals, as noted in 310 CMR 22.21(2)(A)4; non -sanitary wastewater treatment facilities, except for replacement, repair, or systems treating contaminated ground or surface water, as noted in 310 CMR 22.21(2)(a)6, and; facilities that generate, treat, store or 67 The following uses and activities are prohibited, unless designed in accordance with specified performance standards approved by DEP. Uses involving storage of sludge and septage, deicing chemicals, commercial fertilizers, animal manures (as noted in 310 CMR 22.21(2)(b)4), liquid hazardous materials, or liquid petroleum products. Earth removal activities within 4 feet of historic high water table (as noted in 310 CM 22.21(2)(b)6). transfer fuel and must be under the constant supervision of the fuel delivery personnel 406.5 Special Permit Reauirements. 406.5.1 Pre -application Review. Applicants are encouraged to submit preliminary material for informal review by the Site Plan Review Team under Section 103.3, prior to formal application, in order to avoid the discovery of fundamental problems with a proposed plan at the time of the public hearing on the granting of a special permit. 406.5.1.1 Special Permit Non -Applicability. Applicants, who believe that their proposed use will pose no substantial risk to the public drinking water supply, may apply to the Building Commissioner for a Determination of Non -Applicability of the Special Permit requirements of Section 406.5. This application may be made either by itself or in connection with the application for a building and/or occupancy permit. The applicant shall include with his/her application all of the Application Submittal Requirements set forth in Section 406.5.2. The Building Commissioner may determine that the applicant need not apply for a Special Permit hereunder only if all of the fallowing conditions are met: 1. The applicant has fully complied with the Submittal Requirements of Section 406.5.2 2. The proposed use meets all of the Design and Operation requirements of Section 06.5.7, and 3. The chemicals, pesticides, fuels and other potentially toxic or hazardous materials used or stored at the site, or produced by the proposed use, will be in quantities not greater than those commonly associated with normal household use, and 4. The proposed use will meet all of the Objective and Water Quality Criteria of this Bylaw. The Building Commissioner may require the applicant to submit the matter to the Health Agent or Board of Health, and may require the applicant to demonstrate that he/she has received a favorable report from the Health Agent or Board of Health. The Determination, if made, shall apply only to the individual applicant and proposed use and shall automatically expire upon any change of use or transfer of ownership of the business. There shall be no appeal from an unfavorable Determination of any such application, nor from a failure to act, except for filing by the applicant for a Special Permit from the Board of Appeals as otherwise provided herein. Copies of the Determination shall be filed with all other Town Agencies listed in Section 406.5.4 and with the Town Clerk within seven (7) days. Any such Town Agency, or other Person Aggrieved of the Determination, may appeal such Determination to the Board of .: PROPOSED NEW SEASONS SHELL EXISTING SHELL GAS FACIUTY OWNED BY FACILITY WITH (2) NEW 20,000 GAL. COLBEA ENTERPRISES, LLG TO HAVE (4) _ UNDERGROUND STORAGE TANKS AT EXIS77NG 8,000 GAL. UNDERGROUND 473, 479 k 487 STAMN AVE. STORAGE TANKS REMOVED AND DISPOSED �i� I • d ag JZ J H O U]a Luo `li a 4 US a (L �d ggg W gp O w .. y CC)g f z5 f H { Q F Z r 0, F m n W Q TOTAL EXISTING TANKS = (7) W/56,000 GALLONS STORAGE J O N g SUNOCO GAS FACILITY OWNED V PROPOSED NEW TANKS = (2) W/40,000 GALLONS STORAGE �EXISVNO By o7nLns To HAvE (3) L](ISRNG NET REDUCTION OF (5) TANKS h 16,000 GALLONS STORAGE 8.000 CAL UNDERGROUND STORAGE TANKS REMOVED AND DISPOSED ¢ -lA MassDEP Phase 1 Site Assessment Map Page 1 of 1 MassDEP - Bureau of Waste Site Cleanup Phase 1 Site Assessment Map: 500 feet & 0.5 Mile Radii -Site Information; date information shown is the best available at the date of printing. However, it may be incomplete. The MassDEP e YgRMouTH, MA responsible parry and LSP are ultimately responsible for ascertaining She true conditions surrounding theNAD8.,,.,.,.,,,•.,...,.,_,....:...._.....,,,,.,,,�.,_•.xn_,_.,.,_. site. Metadata for data layers shown on this map can c�,^.a.,,.=v,a:tt�„r.•Ses 46155 rnMl39932 be fount at: Department;ofErmrememslPmtection Wart6, 2 , aasa2lm@ (Zone: 1a} htto:llwww.mass.govlmaisl. IZareh B, 7019 a A110 a. 1FltwTll.�l[ FFF7(�;_AP.- 1 tktit� `t. \. A \ \'\ _\ "� ' �it"�'xs � ,\ r�•.� ''� _ `� � \\\\ae�an�-.,?� ��\`.� � � � +tom.. \ - *�0\ \;rid—�1 is i\ \ '� •, �_\ \ " � �' \ti ilF\.., '1_ � ,°fir `�,Rc�au 1 �. N3510 • j•j Ci 1�2:. ;£ WE y, , \,v�:�6�, �� 3 \� ZA Roads: Limited Access, Divided, Other Hwq, Major Road, M[nor Road, Tracy Trail PWS Protection Areas: Zone II, IWPA, Zone A ............� Boundaries: Town, County, DEP Reqlon; Train; Powerline; Plpellne; Aqueduct Hydrogmphy: Open Water, PWS Reservoir, Tidal Flat ..... -•—•• — — Wetlands: Freshwater, Saltwater, Cranberry Bog ......... Basins: Major, P W SW S; Streams: Perennial, Intermittent, Man Made Shore, Dam FEMA 100yr Fleodplain; Protected Open Space; ACEC .... 0 Aqulfers: MediumYierd, ]sigh Yield, EPA Sole Source...... Est. Rare Wetland Wllc[Ife Hab;Vernal Pool: Cart., Potential ®77 Non Potential Ddnkina Water Source Area: Medium. Hldh (Yield) ... F .. Solid Waste Landrill; PWS: Com.GW,SW, Emerg,Non-Com.Rj 00 00 http://maps.massgis.state.ma.us/images/dep/mcp/mcp,htm 3/8/2019 MassachuAetts Department of Environmental Protection Underground Storage Tank Program ft" P.O. Box 120-0165 - Boston, MA 02112-0165 Phone (617) 556-1035LI i ,y ;x t Facility Detail Report Y"'ssESYf�' # Installed Status Status Date Compartments. Capacity Contents Use 1 12/31/1970 In Use 1 6.000 Gasoline Motor Vehicle 2 12/31/1970 In Use 1 6,000 Gasoline Motor Vehicle 3 12/31/1970 In Use 1 8,000 Gasoline Motor Vehicle 4 12/31/1988 In Use 1 12,000 Gasoline Motor Vehicle DUE DATES Type Due Date Compliance Certification 08125/2020 Third Party Inspection Report (TPIR) 02/25/2022 ENFORCEMENT ACTIONS Doc No Type Status Date Issued Due Date Date Resolved Date Paid NON-BO-11-U-035 Notice of non compliance Closed (Resolved) 02/03/2011 03/07/2011 03/04/2013 DISPENSERS Number Owner Number Sump Sump Continuously Monitored? 5 112 Yes Yes 6 314 Yes Yes 7 5/6 Yes Yes 8 7/8 Yes Yes SUBMITTED DOCUMENTS Submission ID Form Date Submitted Signatory 1170591 Update Tank/Piping/Components Registration 03/07/2019 Eric Simpson 1170590 Update Facility Registration 03/07/2019 Eric Simpson 1168363 Third Party Inspection Report (TPIR) 02101/2019 Eric Simpson 1168161 Update Tank/Piping/Components Registration 01/29/2019 Eric Simpson 1145968 Update Facility Registration 02/20/2018 Thomas Breckel 1135279 Compliance Certification 08/21/2017 Thomas Breckel 1135272 Update Tank/Piping/Components Registration 08/2112017 Thomas Breckel 1040372 Third Party Inspection Report (TPIR) 02/26/2016 Thomas Breckel 1034649 Update Tank/Piping/Components Registration 01/29/2016 Thomas Breckel 1034589 Update Operator Registration 01/29/2016 Thomas Breckel 1034097 Update Tank/Piping/Components Registration 01/27/2016 Thomas Breckel 1034096 Update Facility Registration 01/27/2016 Thomas Breckel RESPONSIBILITYFINANCIAL Type Issuer Start End Per -Occurrence Aggregate 21J Program Facility Histouy Owner Start End COLBEA ENTERPRISES LLC 12/1812008 O'CONNELL OIL ASSOCIATES INC 01/25/1995 MOTIVA ENTERPRISES LLC 01/25/1995 Tank Detail Report Status In Use Install Date 12/31/1970 Owner Tank ID 1 Tank Construction Single -walled non -corrodible Financial Responsibility 21J (including "composite") material (cathodic protection not required) Total Capacity 6,000 Compartments Capacity Contents Use CAS Reg. # 6,000 Gasoline Piping Description Piping and Fittings Construction Material Is the tank equipped with a submersible pump? Submersible Pump Installation Date Is the tank equipped with a turbine sump? Motor Vehicle 12/31/1970 Pressurized piping system with electronic automatic line leak detection Single -walled non -corrodible material (No corrosion protection required) Yes Yes If yes, is the turbine sump equipped with a sump sensor Yes continuously monitored for liquids? SumpsIntermediate Is the piping system associated with this tank equipped with No one or more intermediate sumps? If yes, is this intermediate sump equipped with a sump No sensor continuously monitored for liquids? Spill Buckets Spill Bucket Installation Date Is the spill bucket equipped with sensors? No PreventionOverfill Devices Overfill Prevention Device Installation Date Primary Overfill Prevention Device Type High level alarm Detection,Tank Leak Leak Detection System Installation Date Primary Leak Detection System Type Continuous In -Tank Monitoring System ` i ping Leak Detection Leak Detection System Installation Date Leak Detection System Type Annual Tightness Test of Single -Walled Pressurized Piping AutomaticDetection Leak Detection System Installation Date Tank Corrosion Prevention System Type Pipe and Fitting Corrosion Prevention System Type Status In Use Owner Tank ID 2 Financial Responsibility 21J Compartments Capacity Contents 6,000 Gasoline Install Date 12/31/1970 Tank Construction Single -walled non -corrodible (including "composite") material (cathodic protection not required) Total Capacity 6,000 Use Motor Vehicle CASReg. # Install Date 12/31/1970 Piping Description Pressurized piping system with electronic automatic line leak detection Piping and Fittings Construction Material Single -walled non -corrodible material (No corrosion protection required) Is the tank equipped with a submersible pump? Submersible Pump Installation Date Is the tank equipped with a turbine sump? If yes, is the turbine sump equipped with a sump sensor continuously monitored for liquids? Is the piping system associated with this tank equipped with one or more intermediate sumps? If yes, is this intermediate sump equipped with a sump sensor continuously monitored for liquids? Spill Bucket Installation Date Is the spill bucket equipped with sensors? Overfill Prevention Device Installation Date Primary Overfill Prevention Device Type Leak Detection System Installation Date Primary Leak Detection System Type Leak Detection System Installation Date Leak Detection System Type Leak Detection System Installation Date Tank Corrosion Prevention System Type Pipe and Fitting Corrosion Prevention System Type Yes Yes Yes No Nigh level alarm Continuous In -Tank Monitoring System Annual Tightness Test of Single -Walled Pressurized Piping Tank Detail Report Status In Use Owner Tank ID 3 Financial Responsibility 21J Capacity Contents 8,000 Gasoline Install Date Piping Description Piping and Fittings Construction Material Is the tank equipped with a submersible pump? Submersible Pump Installation Date Is the tank equipped with a turbine sump? Install Date 12/31/1970 Tank Construction Single -walled non -corrodible (including "composite") material (cathodic protection not required) Total Capacity 8,000 Use CAS Reg. # Motor Vehicle 12/31 /1970 Pressurized piping system with electronic automatic line leak detection Single -walled non -corrodible material (No corrosion protection required) Yes Yes If yes, is the turbine sump equipped with a sump sensor Yes continuously monitored for liquids? Intermediate Sumps Is the piping system associated with this tank equipped with No one or more intermediate sumps? If yes, is this intermediate sump equipped with a sump No sensor continuously monitored for liquids? Spill Bucket Installation Date Is the spill bucket equipped with sensors? No Overfill PreventionDevices Overfill Prevention Device Installation Date Primary Overfill Prevention Device Type High level alarm Tank Leak Detection Leak Detection System Installation Date Primary Leak Detection System Type Leak Detection System Installation Date Leak Detection System Type Leak Detection System Installation Date Tank Corrosion Prevention System Type Pipe and Fitting Corrosion Prevention System Type Continuous In -Tank Monitoring System Annual Tightness Test of Single -Walled Pressurized Piping Status In Use Install Date 12/31/1988 Owner Tank ID 4 Tank Construction Double -walled non -corrodible Financial Responsibility 21J (including "composite") material (cathodic protection not required) Total Capacity 12,000 Compartments Capacity Contents Use CAS Reg. #E 12,000 Gasoline Install Date Piping Description Piping and Fittings Construction Material Is the tank equipped with a submersible pump? Submersible Pump Installation Date Is the tank equipped with a turbine sump? If yes, is the turbine sump equipped with a sump sensor continuously monitored for liquids? Is the piping system associated with this tank equipped with one or more intermediate sumps? If yes, is this intermediate sump equipped with a sump sensor continuously monitored for liquids? Spill Bucket Installation Date Is the spill bucket equipped with sensors? Overfill Prevention Device Installation Date Primary Overfill Prevention Device Type Leak Detection System Installation Date Motor Vehicle 12/31 /1988 Pressurized piping system with electronic automatic line leak detection Single -walled non -corrodible material (No corrosion protection required) Yes Yes Yes No No No High level alarm Primary Leak Detection System Type Continuous Interstitial Monitoring Piping Leak Detection Leak Detection System Installation Date Leak Detection System Type Leak Detection System Installation Date Tank Corrosion Prevention System Type Pipe and Fitting Corrosion Prevention System Type Annual Tightness Test of Single -Walled Pressurized Piping Massachusetts Department of Environmental Protection Underground Storage Tank Program P.O. Box 120-0165 - Boston, MA 02112-0165 Phone (617) 556-1035 J Facility Detail Report 9 Installed Status Status date Compartments Capacity Contents . Use 1 11/26/1986 In Use 1 8,000 Gasoline Motor Vehicle 2 1112fi11986 In Use 1 8,000 Gasoline Motor Vehicle 3 11/26/1986 In Use 1 8,000 Diesel Motor Vehicle Typo Due Date Compliance Certification 07/07/2020 Third Party Inspection Report (TPIR) 01/07/2022 ENFORCEMENT• Doc No Type Status Date Issued Due Date Date Resolved Date Paid NON-BO-17-U-518 Notice of non Compliance Closed (Manual) 0711712017 08/31/2017 DISPENSERS Number Owner Number Sump Sump Continuously Monitored? 4 Disp 1-2 Yes Yes 5 Disp 3-4 Yes Yes SUBMITTED DOCUMENTS Submission ID Form Date Submitted Signatory 1166216 Third Party Inspection Report (TPIR) 01/02/2019 Aaron Cutler 1160868 Update Facility Registration 10/16/2018 Aaron Cutler 1135368 Compliance Certification 09/08/2017 Aaron Cutler 1026497 Third Party Inspection Report (TPIR) 12128/2015 Aaron Cutler 1024640 Update Tank/PipinglComponents Registration 12/28/2015 Aaron Cutler FINANCIAL•• Type Issuer Start End Per -Occurrence Aggregate 21J Program HistoryFacility Owner Start End PETRO REALTY CORP 12/0112010 BURSAW OIL CORPORATION 01/06/2006 ALLIANCE ENERGY LLC 12/10/2003 SPRAGUE ACQUISITION CORP 04/10/2003 ENERGY RETAILERS INC 10/07/1996 Status In Use Install Date 11/26/1986 Owner Tank ID ULTRA Tank Construction Double -walled non -corrodible Financial Responsibility 21J (including "composite") material (cathodic protection not required) Total Capacity 8,000 Compartments Capacity Contents Use CAS Reg. # 8,000 Gasoline Motor Vehicle Install Date 11/26/1986 Piping Description. Pressurized piping system with mechanical automatic line leak detection Piping and Fittings Construction Material Double -walled non -corrodible material (No corrosion protection required) Is the tank equipped with a submersible pump? Yes Submersible Pump Installation Date Is the tank equipped with a turbine sump? Yes If yes, is the turbine sump equipped with a sump sensor No continuously monitored for liquids? Intermediate Is the piping system associated with this tank equipped with No one or more intermediate sumps? If yes, is this intermediate sump equipped with a sump No sensor continuously monitored for liquids? Spill Buckets Spill Bucket Installation Date Is the spill bucket equipped with sensors? No Overfill PreventionDevices Overfill Prevention Device Installation Date Primary Overfill Prevention Device Type Automatic shut-off valve Tank Leak Detection Leak Detection System Installation Date Primary Leak Detection System Type Leak Detection System Installation Date Leak Detection System Type Leak Detection System Installation Date Tank Corrosion Prevention System Type Pipe and Fitting Corrosion Prevention System Type Continuous Interstitial Monitoring Annual Automatic Line Leak Detection Test Status In Use Install Date 11/26/1986 Owner Tank ID REGULAR Tank Construction Double -walled non -corrodible Financial Responsibility 21J (including "composite") material (cathodic protection not required) Total Capacity 8,000 Compartments Capacity Contents Use CAS Reg. # 8,000 Gasoline Motor Vehicle Piping Install Date 11/26/1986 Piping Description Pressurized piping system with mechanical automatic line leak detection Piping and Fittings Construction Material Double -walled non -corrodible material (No corrosion protection required) Is the tank equipped with a submersible pump? Yes Submersible Pump Installation Date Is the tank equipped with a turbine sump? Yes If yes, is the turbine sump equipped with a sump sensor No continuously monitored for liquids? Intermediate• Is the piping system associated with this tank equipped with No one or more intermediate sumps? If yes, is this intermediate sump equipped with a sump No sensor continuously monitored for liquids? Spill Buckets Spill Bucket Installation Date Is the spill bucket equipped with sensors? No Overfill Overfill Prevention Device Installation Date Primary Overfill Prevention Device Type Automatic shut-off vafve DetectionTank Leak Leak Detection System Installation Date Primary Leak Detection System Type Continuous Interstitial Monitoring Piping Leak Detection Leak Detection System Installation Date Leak Detection System Type Leak Detection System Installation Date Tank Corrosion Prevention System Type Pipe and Fitting Corrosion Prevention System Type Annual Automatic Line Leak Detection Test Tank Detail Report Status In Use Install Date 11126/1986 Owner Tank ID DIESEL Tank Construction Double -walled non -corrodible Financial Responsibility 21 J (including "composite") material (cathodic protection not required) Total Capacity 8,000 Compartments Capacity Contents Use CAS Reg. # 8,000 Diesel Install Date Piping Description Piping and Fittings Construction Material Is the tank equipped with a submersible pump? Submersible Pump Installation Date Is the tank equipped with a turbine sump? Motor Vehicle 11 /26/1986 Pressurized piping system with mechanical automatic line leak detection Double -walled non -corrodible material (No corrosion protection required) Yes Yes If yes, is the turbine sump equipped with a sump sensor No continuously monitored for liquids? SumpsIntermediate Is the piping system associated with this tank equipped with No one or more intermediate sumps? If yes, is this intermediate sump equipped with a sump No sensor continuously monitored for liquids? Spill Buckets Spill Bucket Installation Date Is the spill bucket equipped with sensors? No Overfill PreventionDevices Overfill Prevention Device Installation Date Primary Overfill Prevention Device Type Automatic shut-off valve DetectionTank Leak Leak Detection System Installation Date Primary Leak Detection System Type Continuous Interstitial Monitoring PipingDetection Leak Detection System Installation Date Leak Detection System Type Annual Automatic Line Leak Detection Test AutomaticDetection Leak Detection System Installation Date Tank Corrosion Prevention System Type Pipe and Fitting Corrosion Prevention System Type E C E VIA. En , , Clark, Sandi From: Williams, Kathleen Sent: Tuesday, March 26, 2019 2:03 PM To: Clark, Sandi Cc: Aguiar, Nicholas; deMello, Rick Subject: Seasons Convenience Store/Shell Gas Station Hi Sandi, The proponent of the Season Convenience Store/Shell Gas Station submitted a Traffic Study as part of their ZBA application. This was in response to a request made by Nick Aguiar, Yarmouth Civil Engineer, at the Site Plan Review meeting. Both dick Aguiar, and former Town Engineer, Rick DeMello, reviewed the Traffic Study and requested to have a peer review of the document. I have reached out to Steve Tupper, Transportation Program Manager at the Cape Cod Commission, who indicated he would be able to conduct the peer review. However, he would not be available for the ZBA meeting on April 11t", but noted he would be available on April 25" or a future ZBA meeting. I would appreciate it if you would relay this information to the ZBA. I will keep you posted as to the status of the peer review on the Traffic Study. Thanks, Kathy Kathy Williams, PE Yarmouth Town Planner 1146 Route 28 South Yarmouth, MA 02664-4492 (508) 398-2231 Ext 1276 kwilliams@yannouth.i-na.us RECEIVED Clark, Sandi VIA E-MAIL From: Sent: To: Subject: March 14, 2019 Town of Yarmouth Zoning Board of Appeals Town Hall 1146 Route 28 South Yarmouth, MA 02664 Re: Petition #s 4801, 4802 Dear Board Members: Warren Woods <windsurf403@gmail.com> Thursday, March 14, 2019 S-06 PM Clark, Sandi Proposed Seasons Corner Market and gas station - Station Ave. At the April 11, 2019 Hearing, an application to construct a gas station and Seasons Corner Market on wooded property adjacent to 487 Station Ave, South Yarmouth will be reviewed. I own a building at 495 Station Ave. that houses my orthodontic practice and the practices of Emerald Physicians. Both of our practices treat individuals of all ages but my practice has many children as patients. Currently, we have clients of the drug rehabilitation center that is located adjacent to our building on Workshop Rd, constantly trespassing over our property to go across Station Ave. to and from the Stop and Shop Plaza. Those individuals also have to be told not to park in our parking lot and congregate near the rear entrance to our building but do so at times. Also, we have noted clients of the drug center walking their dogs and allowing them to relieve themselves on our property while our lawn maintenance crew has to pick up empty fast food containers, coffee cups and other trash left by clients of the drug center. The Yarmouth and State Police have found it necessary to regularly monitor the area. At times, we have had people from the drug center come into our restrooms and staff waiting room without permission. We have had to ask them to remove themselves from our building and property. My concern with the proposed Seasons Corner Market and gas station, is that it will attract the clients of the drug rehabilitation to purchase items from their store and increase the number of these individuals trespassing over my property and thereby increase the number of problems we are already having with this clientele. For the reasons above, I cannot support the applications for the Seasons Corner Market and gas station. Please do not grant the permits to the petitioners. Thank You, Warren D. Woods, D.M.D. Clark, Sandi From: Aguiar, Nicholas Sent: Monday, April 1, 2019 1A8 PM To: Clark, Sandi Cc: Williams, Kathleen Subject: RE: Seasons Convenience Store/Shell Station - Station Avenue Hi Sandi, Please see below for a listing of the comments that I have in regards to the application to the ZBA for 473, 479, and 487 Station Avenue (Seasons Convenience Store/Shell Station) in South Yarmouth. Snow Storage: • The snow storage area located within the island adjacent to the site driveways should be reconsidered as the guy wire anchoring for utility pole #24-79.5 may become subject to being dislodged. • Snow stored over the septic leaching field must not obstruct system ventilation or access to the inspection port. Title 5 Site Plan: • Notify contractor that the Title 5-Site Plan utilizes outdated site grading and should not be utilized for obtaining such information. Drive-Thru Service: • Only 8 of the required 10 stacking spaces are provided for the proposed drive-thru service window. Erosion and Sedimentation Control Plan: • Temporary Stabilization Notes o Note #3 should be revised to specify topsoil as being substantially free of deleterious materials such as stones, roots, and clumps of soil, and completely free of tree limbs, trash, and construction debris. o Note #6 should be revised to remove language which allows the Owner to dictate temporary stabilization treatments. o Note #12 should be revised to limit mulch anchoring techniques to mechanical methods only. Leachates created by stormwater coming into contact with liquid tackifiers and emulsified asphalt are especially undesirable given the site's location within the Aquifer Protection District (APD). Order of Procedure Notes o Note #2 needs to be revised to more specifically outline the frequency and type of maintenance activities to occur in regard to the proposed erosion and sedimentation control measures as this information does not appear in any of the supplied documentation. Compost filter socks and catch basin filters should be inspected weekly, and after significant storm events, at a minimum. Construction entrance/exit aprons should be inspected daily. Repairs and maintenance should be provided as needed. o Note #3 needs to be revised to specify the implementation of temporary stabilization controls upon the suspension of work for 14 days or more. • Post -Construction Phase Notes o Note #2 must be removed entirely as the stormwater management system utilizes infiltration into subsoils within the APD. o Note #3 should be generalized to specify the immediate clean-up of any spill of hazardous material. This provision should also be used to revise the language of the third paragraph of the General Information section of the Stormwater Operation and Maintenance Plan. o Note #9 should be revised so as to specify the maintenance of records of all required and performed maintenance. This provision should also be included within the Operation and Maintenance Plan. Stormwater Operation and Maintenance Plan: • Schedule for Implementation of Maintenance Tasks o The breadth of maintenance tasks, and their respective frequencies, for the proposed bioretention areas are insufficient. The bioretention area and rain garden maintenance guidance within Volume 2, Chapter 2 of the Massachusetts Stormwater Handbook should be emulated. o Trash containers must also be specified as being covered so that they are not in direct contact with stormwater. • Stormwater Operation and Maintenance Log o Not all maintenance activities prescribed are included within the log form, and inconsistencies between the plan and log frequencies of select maintenance activities exist. Revise the form accordingly. Please feel free to contact me if you have any questions. I hope that this is helpful, and that you have a good day. Kind Regards, Nick From: Clark, Sandi Sent: Wednesday, March 20, 2019 3:55 PM To: Aguiar, Nicholas <NAguiar@yarmouth.ma.us> Cc: Williams, Kathleen <kwilliams@yarmouth.ma.us> Subject: RE: Seasons Convenience Store/Shell Station - Station Avenue Hi Nick, I think an e-mail from you with your findings will suffice. Thankyou, -Sandi From: Aguiar, Nicholas Sent: Wednesday, March 20, 2019 3:54 PM To: Clark, Sandi <SClark@yarmouth.ma.us> Cc: Williams, Kathleen <kwilliams@yarmouth.ma.us> Subject: RE: Seasons Convenience Store/Shell Station - Station Avenue Hi Sandi, think that April 51h should be enough time to provide input. I will absolutely let you know otherwise. Do you need me to provide a formal written reply, or would a follow-up email suffice? Thanks so much for your help! Kind Regards, Nick From: Clark, Sandi Sent: Wednesday, March 20, 2019 2:54 PM To: Williams, Kathleen <kwilliams@yarmouth.ma.us>; Aguiar, Nicholas <NAguiar@yarmouth.ma.us> Subject. RE: Seasons Convenience Store/Shell Station - Station Avenue TOWN OF YARMOUTH 1 146 ROUTE 28. SOUTH YARMOUTH. MASSACHUSETTS 02664-24451 BOARD OF Telephone (508) 398-2231 Ext. 1285. Fax (508) 398-0836 APPEALS MEMORANDUM To: Departments From: Board of Appeals Date: April 2, 2019 Subject: APD Special Permit and Variance Filing: Petition #4801 & #4802, Colbea Enterprises, LLC, 473 Station Avenue, 479 Station Avenue and 487 (portion) Station Avenue. Attached is a copy of the application for the location listed above of: Colbea Enterprises, LLC, 473 Station Avenue, 479 Station Avenue and 487 (portion) Station Avenue for a PETITION #4801: Colbea Enterprises, LLC, 2050 Plainville Pike, Cranston, R.I. Property location: 473, 479 and 487 (portion) Station Avenue, South Yarmouth. Map & lot#: 0097.1; 0097.2 & 0097.3 (portion); Zoning District: B1; APD & ROAD. The applicant is seeking Special Permits and Variances to develop the land at the above addresses for use as a Shell fuel service station and convenience store with co -brand business. Relief is requested under and from, respectively, §202.5 footnote J, §301.4.1 - §301.4.10; §301.8; §301.9 and §303 as necessary, for use in the Bl Zoning District and APD and various dimensional setback and design, parking, drive-thru, landscaping, lighting, and sign provisions, per the submitted plans and materials. PETITION 94802: Colbea Enterprises, LLC, 2050 Plainville Pike, Cranston, R.I. Property location: a portion of 487 Station Avenue, South Yarmouth. Map & lot#: 0097.3 (portion); Zoning District: Bl; APD & ROAD. Companion application with Petition 44801 to amend Decisions 43453 and 43505 or in the alternative, new Variance relief under and from §203.5 and §301.4.1 as necessary to divide off 7,305 +/- sq. ft. of land at the rear of the lot. The proposal will not create any new non -conformities or impact the existing site development. The Petitioner is scheduled for a hearing before the Board of Appeals on April 11, 2019. This prooect is extensive and the plans, traffic study, stormwater Mp ort and environmental peer review, have been filed. If vou would like copies of the plans and/or reports, please e-mail me and I will provide them or stop by the office to review. If you have any comments to provide, please do so (e-mail:sclark@yarmouth,ma.us) by Tuesday, April 9, 2019. Thank you. CC: Fire Health Planning Building Conservation Water DPW -Jeff Colby Nick Aguiar TOWN OF YARMOUTH 1146 ROUTE 28, SOUTH YAR'170UTH, MASSACHUSETTS 02664-4451 Telephone (508) 398-2231 exL 1240, Fax (-508) 760-3472 BOARD OF HEALTH MEMORANDUM TO: Zoning Board of Appeals FROM: Bruce G. Murphy, Director of Health k & Carl E. Lawson, Jr., Hazardous Waste Inspector Cz, SUBJECT: Proposed New Seasons Convenience Store and Fuel Station 473 — 487 Station Ave. South Yarmouth Petition # 4801 & 4802 DATE: April 3, 2019 Colbea Enterprises, LLC is scheduled to appear at the next Board of Health meeting on April 22 regarding their proposal to develop 473 — 487 Station Ave. with a Shell Fuel Station and convenience store. This location is within the Aquifer Protection District for the public drinking water supply. The Board of Health will review and comment on: 1) Installation of new underground fuel storage tanks (USTs) in the amount of 40,000 gallons total 2) Removal of all present USTs including those storing vehicle fuels, waste oil and heating oil from the Shell Station at 446 Station Ave. and the Sunoco Station at 433 Station Ave. 3) Installation of new aboveground storage tanks for home heating oil and waste oil (Shell Station) and heating oil only (Sunoco Station) 4) Proposed handling and storage of toxic or hazardous materials for the new store 5) Title 5 septic system design 6) Title 5 septic system nitrogen loading Additional land required for compliance with State Title 5 nitrogen loading regulation. 7) Any other Oublic-health regulation compliance issues. 1 Jly&ve]CILpon 1L ealiy Established 1956 April 3, 2019 20 NORTH MAIN STREET SOUTH YARlMOUTH, MA 02664-3143 TEL: 508-398-2293 - 800-822.3422 • FAX: 508-394-6765 www.thedavenportcompanies.com Board of Appeals 1146 Route 28 So. Yarmouth, MA 02664-0836 Re: Petition #4801 and #4802 Dear Members of the Board: RECEIVE VIA E-MAIL As the owner of 31 Workshop Road and having received an Abutter's Notice of the hearing scheduled for April 11, 2019, please allow this to serve as opposition to the Petitions and relief sought forthe properties at 473,479 and 487 (portion) Station Avenue. While cleverly described as a "rare opportunity," simply put, the project in no way legitimately meets the standard for Variance relief. There is no circumstance owing to shape, soil condition, nor topography to justify deviating from the 75-foot required front setback by over31 feet. The combined properties do not provide enough area for what is proposed, and the Appeals Court has ruled that the insufficient size of a lot is not a shape factor. Similarly, there is no shape, soil condition, nor topographic feature to warrant the requested Use Variance for Motor Vehicle Fuel in the APD. Furthermore, the Town expressly prohibits underground fuel tanks in the APD, and while once again the Variance criteria cannot be met, it also appears that the Zoning Code does not provide for Variance relief of this nature. Respectfully, the Board does not appear to have the authority to grant such a Variance under Section 406 even if a colorable argument could be advanced; and one cannot be in this instance. The proposed access and egress pose serious issues as well. Left turns out of the Stop & Shop plaza are difficult at best now, and will only be exacerbated with potentially two new egress points creating increased hazard and congestion with motorist attempting to turn left, and should those motorists be delayed (and they will) then the drive through cars waiting in the cue and those fueling will back up causing internal site congestion and conflict with likely back-ups on Station Ave. for those looking to enter the site. it is thus foreseeable this congestion will adversely impact cars at the traffic light to the North at White's Path and Workshop Road. Contrary to the Applicant's assertion, the certain traffic and congestion issues associated with this proposal, along with the introduction of 40,000 gallons of fuel underground in an area designated for special protection do not better protect both the business and natural environment along and in this portion of Station Avenue. Coupled with the fact that the Variance criteria cannot be met, this application should be denied. Thank you. Davenport Realty Trust De itt P. Davenport, Trustee Affiliates: AiE Cape Self Storage • Blue Rock Golf Resort • Cape Cod Fence Co. - Davenport euildina Co. Kingsbury Aviation • Kingsbury Management Co_ • Red Jacket Resorts - Thiirwood Place Senior Living • The Shops at Yarmouth Crossing April 4, 2019 Town of Yal-Mouth Zoning Soard of appeals 1146 Route 28 South Yarn -south, MA 02664 RE: Petitions #4801 and 4802 Colbea Enterprise;, LLC Dear Zonirrg Board Nlembers: Station Avenue LLC, the owner of the property located at. 487 Station Avenue (Today Re, Estate). ha,,i reviewed the pl;ami and discussed the proposal li-ith the applicant. As an 11 .mediate, abutter, wee are in favor of the proposed development and encourage the Board of Appeals to approve the relief requested. In conjunction with closing th;, Mo older gas stations nearby along Station ;Io enue, this development will r-esult in a posit1Ve eCoi"lolll;i, and environmental benefit to t-'.P cor"Mercial zone along Station Avenule and the Town of Yarmouth. Thank you for your consideration for the applications. Ji1 c r:-i,Y. JaritieS Ma,,hnik Manager C"; E iVIF- D RECEIVED Clark, Sandi VIA E-MAIL From: Huck, Kevin Sent: Thursday, April 4, 2019 4:30 PM To: Clark, Sandi Subject: 487 Station Ave. Hi Sandi, Yarmouth Fire Department supports the application, subject to applicable submissions, permits and inspections. Capt. Huck Clark, Sandi From: Williams, Kathleen Sent: Tuesday, April 9, 2019 5:52 PM To: Clark, Sandi Cc: Aguiar, Nicholas Subject: CCC Traffic Study Peer Review - Seasons Convenience Store/Shell Gas Station - Station Avenue Hi Sandi, Please forward the e-mail below from Steven Tupper, Transportation Program Manager at the Cape Cod Commission, to the ZBA and the applicant for Petition #4801. At the request of the Engineering Department, Mr. Tupper is conducting a peer review of the Traffic Study submitted by the applicant. He is unable to complete his full review prior to the April 11'" Public Hearing, but grill have it available for the next scheduled meedn; on May V' Thanks: Kathy Kathy Williams, IT Yarnl')uth 1 mn Planner 1 146 Route 28 yciuth Ya1-1110llth. INIA 02664-=449-1 (508) 398-2231 l;xt 1276 kNvi llianis. et�yannouth.ma.us From: Steven Tupper lmailto:stupper@capecodcommission.org] Sent: Tuesday, April 9, 2019 5:20 PM To: Williams, Kathleen <kwilliams@yarmouth.ma.us> Cc: Aguiar, Nicholas <NAguiar@yarmouth.ma.us>; deMello, Rick <RdeMello@yarmouth.ma.us>; Colleen Medeiros <colleen.medeiros@capecodcommission.org> Subject: RE: Seasons Convenience Store/Shell Gas Station - Station Avenue Kathy, We have completed our preliminary review of the traffic study. We have concerns about a number of elements of the traffic study and the ability of the traffic study to accurately represent the anticipated impacts of the proposed development on the roadway network. As requested, we will summarize our review in a peer review memorandum. We will have the memorandum to you by April 25", two weeks in advance of the potential ZBA meeting on May 90 We are available to attend the ZBA meeting May 9". Thanks, Steve Steven Tupper Transportation Program Manager Cape Cod Commission Clark, Sandi From: Greene, Karen Sent: Wednesday, April 24, 2019 3:08 PM To: 'Andrew Singer' Cc: Clark, Sandi Subject: RE: Land Disposition Policy Attachments: FW: Land Purchase Request Hi Andrew Regarding this request as it relates to your ZBA proposal, please see attached email correspondence. Thanks, Karen Karen M. Greene, Director of Community Development Town of Yarmouth kgreene@yarmouth.ma.us 508-398-2231 x1278 From: Andrew Singer (mailto:ALSinger@singer-law.com] Sent: Wednesday, April 24, 2019 1:24 PM To: Greene, Karen <KGreene@yarmouth.ma.us> Cc: Dwelley, Christopher <CDwelley@yarmouth.ma.us>; Senteio, Eduard <ESenteio@yarmouth.ma.us>; Knapik, Daniel <dknapik@yarmouth.ma.us> Subject: RE: Land Disposition Policy Thank you, Karen. We are looking forward to working with you on this. Andrew From: Greene, Karen <KGreene@yarmouth.ma.us> Sent: Wednesday, April 24, 2019 12:19 PM To: Andrew Singer (alsinger(@singer-Iaw.com) <alsinger@singer-law.corn> Cc: Dwelley, Christopher <CDwellev@yarmouth.ma.us>; Senteio, Eduard <ESenteio@yarmouth.ma.us>; Knapik, Daniel <dknapik@yarmouth.ma.us> Subject: FW: Land Disposition Policy Hi Andrew Thanks for your offer to meet. I am working with Chris to help him get a process established and will be in touch with any questions. Regards, Karen Karen M. Greene, Director of Community Development Town of Yarmouth kgreene@yarmouth.ma.us 508-398-2231 x1278 From: Knapik, Daniel Sent: Wednesday, April 24, 2019 12:13 PM To: Greene, Karen <KGreene@yarmouth.ma.us> Subject: FW: Land Disposition Policy Fyi — can you follow up with Mr. Singer? From: Andrew Singer [mailto:ALSin er sin er-law.com] Sent: Wednesday, April 24, 2019 9:07 AM To: Knapik, Daniel <dknapik@yarmouth.ma.us>; Dwelley, Christopher <CDwelle armouth.ma.us> Cc: Senteio, Eduard <ESenteio armouth.ma.us> Subject: Land Disposition Policy Good Morning Gentlemen, I am writing to follow up the three Request for Real Property Forms that I recently submitted on behalf of my client in conjunction with the ongoing Seasons Corner Market/Shell Gas Station development proposal on Station Avenue in South Yarmouth. I was interested to see the Board of Selectmen's discussion on the Charge for the Land Disposition Committee last night. Now that it has been approved, as Staff continues to review the proposal and the Committee gets up and running, we would be happy to meet with you and them and answer any questions as the process proceeds. Thank you. Andrew Andrew L. Singer Law Office of Singer & Singer, LLC 26 Upper County Road P.O. Box 67 Dennisport, MA 02639 (508) 398-2221 (tel) (S08) 398-1568 (fax) www.singer-law.com Confidentiality Notice: This electronic transmission and the information contained herein is being transmitted to and is intended for the use of the individual(s) to whom it is addressed. If the reader of this message is not the intended recipient, you are hereby advised that any dissemination, distribution or copy of this transmission is strictly prohibited. This transmission may also constitute an attorney -client communication that is privileged at law. If you have received this transmission in error, please immediately notify the sender by return e-mail or telephone (508) 398-2221 and delete the transmission in its entirety. VA E-UIAIL 3225 MAr^N STREET P.O. BOX 226 3ARNSTrABLF ;VIASSAVCHUSETTS02630, 508. 352-3828 • Fax Delivered via email April 24, 2019 Kathy Williams Yarmouth Town Planner 1146 Route 28 South Yarmouth, MA o2664 Re: Cape Cod Commission Traffic Study Peer Review Proposed Seasons Convenience Store & Gasoline Station 473, 479 & 487 Station Avenue, Yarmouth Dear Ms. Williams, CAPE COD Commissiord At the request of the Zoning Board for technical assistance for the review of the Traffic Impact and Access Study (TIAS) for the above -referenced project, Cape Cod Commission staff provides the following comments. As presented by the Applicant, the project involves the construction of a new Seasons convenience store and gasoline station at 473, 479 & 487 Station Avenue in Yarmouth. The existing site is currently undeveloped. The project proposes to construct a 3,600 square foot (sf) convenience store, including a coffee -shop drive -through operation, with six gasoline pumps (12 fueling positions) and 28 total parking spaces. Access to the site is proposed via two new full - access site driveways on Station Avenue. This proposed development does not appear to exceed any development thresholds that would require mandatory Cape Cod Commission Development of Regional Impact (DRI) review. In addition, the project does not trigger review under the Massachusetts Environmental Policy Act (MEPA) as Station Avenue is under Town jurisdiction and does not require a MassDOT permit. As such, Commission staffs comments herein are more generalized than would be provided if the Project was subject to and under DRI review by the Commission. Transportation -related materials provided by the Zoning Board and reviewed by Cape Cod Commission staff include the Applicant's Traffic Impact and Access Study and Appendix dated March 11, 2019 prepared by VHB, Inc. A fs�cHUs�-. Cape Cod Cbmtnission Traffic Stod'N, Peer Review Proposed Seasons Corner _l►arket — Station AN enue.. Yarniotiti: Cape Cod Commission staff suggests that the transportation -related materials were prepared in a professional manner and generally follow standard industry practices, including the data collection, seasonal adjustments, background traffic growth and the crash analysis. However, Cape Cod Commission staff have identified a few areas that additional review is recommended as noted below. Study Area The study area was limited to proposed site driveways on Station Avenue, which included the existing Stop and Shop driveway. However, there are two major signalized intersections on Station Avenue to the north (White's Path) and the south (Old Town House Road), which will likely experience additional traffic volumes associated with the new development. o Commission staff recommend the Applicant expand the study area to include the intersections of Station Avenue and White's Path and Station Avenue and Old Town House Road. Volumes The TIAS reports that traffic counts were performed in January 2019 at the existing intersection of Station Avenue and the Stop and Shop driveway. The traffic counts were performed during the weekday morning, weekday afternoon and Saturday midday peak periods which generally coincide with the peak periods of the proposed use and the adjacent roadway network. The existing traffic volumes were seasonally adjusted appropriately to represent a summer peak period in accordance with the Cape Cod Commission seasonal adjustment factors. It appears there may be an error on Figure 2 for the existing Station Avenue southbound through movement during the weekday afternoon peak hour, however, it appears that the volume error was corrected as part of the future No Build and Build conditions. o Commission staff recommend that the applicant review Figure 2 and make any necessary corrections. Crash The crash analysis included the most recent five years available from MassDOT and concludes that there were no crashes at the study area intersection, however, it is unclear which intersection(s) were included. Based on a cursory review, it appears there might have been crashes that occurred in the vicinity of the existing Stop and Shop driveway on Station Avenue. o Commission staff recommend the crash analysis be updated to capture crashes at the existing Stop and Shop driveway and include the additional study area intersections on Station Avenue as noted previously. The Applicant should also consider performing a segment crash analysis for Station Avenue in between the two signalized study area intersections to determine the crash history for unsignalized intersections within the two-way left -turn lane (TWLTL) segment. Trio Generation The vehicle trip generation analysis was based on data from the Institute of Transportation Engineers (ITE) Trip Generation Manual, loth Edition using ITE Land Use Code 96o — (Super Convenience Market/Gas Station) based on the number of fueling positions. Cape Cod Commission staff agrees that this is an appropriate characterization of the proposed use as the Page 2 of 4 Cape Cod Corn:nission Trafti, Strrd� Peer Re%ieiv Proposed Seasons Corner �Iar k t — :titration Asti entie. Yarmolitii convenience market is over 3,000 sf and has at least io fueling positions at the gas pumps. The proposed super convenience store is projected to generate approximately 2,700 vehicles/day with approximately half of the vehicle trips being attributed to pass -by traffic, which are vehicles that are already on the adjacent roadway network today. However, it appears that the trip generation associated with the coffee shop with drive -through operation was omitted from the analysis. o Additional information regarding the expected drive -through trip generation and queues will be beneficial to understand the impacts on -site and to ensure queueing does not spillback onto Station Avenue. Additionally, Table 2 should be revised as the time periods are incorrectly labeled (i.e. Weekday Daily represents Weekday Morning, etc.). Capacity Analysis Though Cape Cod Commission staff suggests that the capacity analysis was completed in accordance with standard industry practices, staff has concerns about the projected operations for the proposed unsignalized site driveways. It is also unclear if proper consideration of the Station Avenue TWLTL configuration was incorporated as part of the capacity analysis. According to Table 3, the northern site driveway is proposed to operate at LOS F and over capacity under all three 2026 Build peak hour scenarios. Constructing a new site driveway that is expected to operate over capacity is unacceptable as this would result in a safety hazard. The projected 96th percentile vehicle queues at the northern driveway are expected to be approximately 10-12 vehicles during the peak hours and it is unclear where these vehicles will stack on site. The southern site driveway is also expected to operate at LOS F under all three 2026 Build peak hours, but it is expected to operate under capacity. The projected 95rh percentile queue for the southern site driveway is expected to be approximately five cars. o The Applicant should perform additional data collection and analysis to re -confirm projected operations. Site circulation and access management techniques (discussed further below) should also be investigated to alleviate congestion. In addition, a signal warrant analysis could also be investigated for the northern site driveway/Stop and Shop driveway on Station Avenue. Sight Distance Maintaining safe sight distance from site driveways onto roadways is critical for the safety of the travelling public. To this end, the Cape Cod Commission commonly conditions its regulatory decisions to require that "no signs, vegetation, or other visual obstructions be placed in a manner that would create an obstruction to safe sight distance at the site driveways." The TIAS included a sight distance analysis which shows that the proposed site driveways are expected to provide adequate sight distance for the posted speed limit. o Sight distances should also be compared against the 86th percentile speeds. Page 3 of 4 Cape Cod Coniinission Traffic Stud, Peer Revie«v Proposed Seasons Corner Market — Station :NN enue. Y arniout€z Additional Comments In addition, Cape Cod Commission staff offers the following additional transportation comments that were not discussed in the TIAS that the Zoning Board might consider in its review and decision -making on the project: • Trip Reduction Measures: Commission staff recommend the Applicant discuss healthy transportation options for employees and customers and propose potential trip reduction measures to help encourage alternative modes of transportation to the site. • Healthy Transportation: The Cape Cod Commission encourages healthy transportation options and the installation of sidewalk connections where possible. It appears that there is a worn walking path on the west side of Station Avenue along the property frontage today. Commission staff recommends that the Applicant consider installing sidewalk on Station Avenue to allow for future sidewalk connections and consider pedestrian connectivity into the site from Station Avenue and possibly from abutting properties. In addition, a bicycle rack should also be considered to support healthy transportation. • Access Management: Commission staff suggest the Applicant consider access management techniques to limit the number of conflict points with the construction of two new full access curb cuts on Station Avenue (i.e. shared driveways, one-way traffic flow, turn restrictions, etc.). • Site Circulation: It would be helpful for the Applicant to depict/describe site circulation for all vehicles including gasoline tanker trucks and vehicles with trailers, as well as on - site queuing for the drive -through operation and vehicles exiting the site. If you have questions, please do not hesitate to contact its. Sincerely, CrF�e�fi,� Colleen Medeiros, P.E. Cape Cod Commission Transportation Engineer Cc: Randall C. Hart, VHB, Inc. Patricia Daley, Cape Cod Commission, Deputy Director Jonathan Idman, Cape Cod Commission, Chief Regulatory Officer Steven Tupper, Cape Cod Commission Transportation Program Manager Page 4 of 4 RECEIVED VIA E-MAIi TOWN OF YARMOUTH 1146 ROUTE 28, SOUTH YARMOUTH, MASSACHUSETTS 02664-4451 Telephone (508) 398-2231 ext. 1240, Fax (508) 760-3472 BOARD OF HEALTH MEMORANDUM TO: Zoning Board of Appeals (ZBA) FROM: Carl E. Lawson, Jr., Hazardous Waste Inspector SUBJECT: ZBA Petition Numbers 4801 and 4802 Proposed New Seasons Corner Market Convenience Store and Shell Fuel Station 473 -- 487 Station Ave. DATE: May 7, 2019 ac aroun Colbea Enterprises owns and operates a chain of fuel stations and convenience stores in Massachusetts, Rhode Island and New Hampshire. Colbea Enterprises owns the property at 446 Station Ave. which is a Shell brand gas station yet it is operated by a separate party, The station includes fuel sales, motor vehicle repair and limited retail sales of convenience store items. Proposal for New Operation at 473 — 487 Station Ave. Colbea Enterprises proposes to build a new convenience store and fueling station on presently vacant property at the above address. Motor vehicle repair is not included in this operation. This location is within the Town's Aquifer Protection District (APD) for the public drinking water supply. The Health Dept. has been informed the fueling system will consist of the following. 1) Two 20,000-gallon, fiberglass, double -walled underground storage tanks (UST) each with both electronic leak -detection monitoring and water -intrusion monitoring. One tank will store 20,000 gallons of gasoline while the other tank will have two compartments: one 12,000 gallon for gasoline and one 8000-gallon for diesel. Therefore, a total of 40,000 gallons of fuel storage in USTs is proposed. 2) Double -walled, polyethylene piping with leak detection monitoring. 3) Double -walled fuel dispenser sumps with leak detection monitoring. These sumps are containment units that will hold fuel in the event of a leak within the fuel dispenser. 4) Double -walled UST sumps with leak detection monitoring. These are containment units on the top of each tank where the piping between the tanks and the dispensers connects to the tanks. 5) Double walled spill buckets. These are five -gallon, containment units on the top of each tank fill port for the purpose of capturing minor spills resulting from UST filling. 6) A concrete fueling pad with positive limiting barrier (PLB) grooves surrounding all fuel dispensers to capture minor fuel spills from customer fueling. 7) A continuous leak detection monitoring alarm system that will alert onsite personnel during work hours and the on -duty environmental manager and maintenance company during hours when the business is closed. 8) Six fueling dispensers each equipped with two nozzles to fuel potentially twelve vehicles at one time. 9) A canopy above the fueling dispensers. 10)An automatic fire suppression system designed in compliance with State fire code. Proposed Risk Reduction to A uifer If allowed by the ZBA to complete this new vehicle fueling station Colbea will have other USTs removed from two nearby fueling stations both located within the APD. 433 Station Ave.(Existing Business: Station Ave. Sunoco Colbea does not own this property, yet has made arrangements to have the following UST removed with a deed restriction placed against future fuel storage and sales on the property. Tank # Capacity Material Stored Tank Material Construction Type Year Installed 1 8000 gal. Gasoline Fiberglass Double -walled 1986 2 8000 gal. Gasoline Fiberglass Double -walled 1986 3 8000 gal, Diesel Fiberglass Double -walled 1986 2 The following UST will be removed and replaced with the same capacity aboveground storage tank (AST) with secondary containment to meet present Health Dept. Regulation. Tank # Ca aci Material Stored Tank Material Construction Type Year Installed 4 1000 gal. Heating oil Fiberglass Unknown 1986 446 Station Ave.(Existing Business: Station Ave. Shell Colbea owns this property and proposes to remove the following UST with a deed restriction placed against future fuel storage and sales on the property. Tank # Ca aci Material Stored Tank Material Construction Type Year Installed 1 6000 gal. Gasoline Fiberglass Single -walled 1970 2 6600 gal. Gasoline Fiberglass Single -wailed 1970 3 8000 gal. Gasoline Fiberglass Single -walled 1970 4 12,000 gal. Gasoline Fiberglass Double -walled 1988 The following USTs will be removed and replaced with the same capacity ASTs with secondary containment to meet present Health Dept. Regulation. Tank # Capacity Material Stored Tank Material Construction T e Year Installed 5 500 gal. Heating oil Fiberglass Unknown 1988 6 500 gal. Waste oil Fiberglass Unknown 1988 Therefore, Colbea Enterprises proposes to have removed a combined total volume of 56,000 gallons of fuel storage from 433 Station Ave. (Sunoco) and 446 Station Ave. (Shell) in return for being allowed to install a total of 40,000 gallons of fuel storage at the proposed new 473-487 Station Ave. site. Town Water Consultant Review The project, was also reviewed by Kirsten Ryan of Kleinfelder, the Town's water consultant. In an email on March 20 to Jeff Colby, DPW Director and Gary Damiecki, Interim Water Superintendent Ms. Ryan wrote: "Hi Jeff and Gary 1 took a quick look at this report. The consultant reached a similar conclusion as we did in reviewing the prior proposal for the site (Cumberland Farms). I agree the risk to the aquifer is less than current conditions in that the proposed project would store less fuel, slightly farther away and with newer equipment technology. 1 recommend as 1 did prior that 1) the Board of Health verify that the design is in accordance with all Massachusetts Stormwater Standards 2) The Town require the developer to retain a third party engineer/LSP to provide a certification that the project was constructed and installed as designed and passed all start up and commissioning tests to verify proper operation, 3) The facility is required to submit a third -party compliance inspection to the MassDEP every three years. The Town should require the owner to provide a copy of 3 this report be submitted concurrently to the Board of Health and Water Department, 4) the proposed new underground storage tanks have a 30-year service life. The Town should consider employing a mechanism to trigger a notification or permit renewal requirement so that the service life is not exceeded. I hope this is helpful, Kirsten" Regulatory Items 1) It is understood Seasons Corner Market will need Town Zoning Bylaw relief from the Zoning Board of Appeals (ZBA) in order for the business to store toxic or hazardous materials in excess of normal household quantities within the APD. 2) The Board of Health (BOH) Regulation "Handling and Storage of Toxic or Hazardous Materials," effective May 2, 1990, and licensing requirement is applicable to this proposal as the involved quantities of materials are in excess of the licensing threshold of 10 gallons. The regulation includes, but is not limited to, 150% volume secondary containment of toxic or hazardous materials. 3) The project must comply with 310 CMR 15 (CMR = Code of Massachusetts Regulations), Massachusetts Title 5 Septic Regulations and nitrogen loading within the APD. 4) The Massachusetts Dept. of Environmental Protection (DEP) regulates the design, construction, installation, operation, inspection, release response, remediation, closure and removal pertaining to USTs under 310 CMR 80. This regulation also requires (310 CMR 80.16 (7)) that the installer or registered professional engineer complete an as -built plan and a signed statement stating "the UST system was installed in accordance with 310 CMR 80.00, the manufacturer's specifications and the manufacturer's checklist." Procedural Track This project was presented at a Town Site Plan Review meeting on Feb. 5 where the applicant received input from Town depts. The project was next presented at a BOH meeting on Apr. 22, pending review by the ZBA. Toxic or Hazardous Materials Delivenr Gasoline and diesel fuel will be delivered to the 473-487 Station Ave. site by fuel delivery trucks. Other toxic or hazardous materials such as, but not limited to; various automotive fluids, household cleaners, laundry detergent, charcoal lighter, insecticide, and insect repellents will be delivered by truck transportation, then hand -carried inside the store. E Toxic or Hazardous Materials Handling and Storage 1) As stated previously one 20,000-gallon, double -walled, fiberglass UST will store 20,000 gallons of gasoline. 2) A second 20,000-gallon, double -walled, fiberglass UST with two separate storage compartments will store 12,000 gallons of gasoline and 8000 gallons of diesel fuel. 3) Other toxic and hazardous materials mentioned previously and available for retail sale will be stored inside the store on the retail floor in original containers. No storage of these materials has been proposed off of the retail floor. Toxic or Hazardous Materials Use -aCffuels are for retail sale to customers. 2) Other toxic and hazardous materials are for retail sale in original containers. 3) Some cleaners will be used by employees for in-store cleaning. Toxic or Hazardous Materials Disposal 1) Massachusetts General Law Chapter 21, Section 53a requires retailers of motor oil to accept for proper disposal waste oil from their customers. In the event a customer presents waste oil for disposal store employees will receive the waste oil storing it and then disposing of it properly. Any received waste oil will be stored in a drum of approximately 30-gallons in size with secondary containment. The waste oil drum will be placed either within the building or within the fenced dumpster area with measures taken for protection against weather and vandalism both of which are required by Yarmouth Health Regulation. 2) Wash water generated from floor washing and stripping will be hauled offsite for proper disposal. Floor drains will be plugged during washing and stripping operations to prevent the wash water from entering the septic system. 3) The spill buckets for the UST fill ports are protected by steel covers with rubber gaskets, yet some amount of rainwater is expected to collect periodically. Since this water may have a petroleum component it may not be disposed of to the ground. This waste water will be emptied to a labeled 55-gallon drum and stored onsite for proper disposal. 5 Health Dept. Requirements Yarmouth Health Regulation requires the following regarding toxic or hazardous materials handling and storage which apply to this proposal by Colbea. 1) The business must register annually for a Yarmouth Board of Health Handling and Storage of Toxic or Hazardous Materials License. 2) No materials may be discharged to the environment. 3) No outdoor storage of materials is allowed. 4) All materials must be protected from vandalism. 5) Materials must be stored in covered product -tight containers. 6) All materials must be stored inside secondary containment of 150% volume of the total amount of materials stored. 7) Any waste material must be properly disposed by a licensed hazardous waste hauler. 8) Safety Data Sheets (SDS) for each toxic or hazardous material must be maintained onsite and be readily available. 9) A sufficient supply of absorbent material must be kept onsite for use in the event of a release or toxic or hazardous materials. Board of Health BOH Hearing and Recommendations Attorney Andrew Singer and numerous representatives of Colbea with differing areas of expertise presented their proposal to the BOH at the regular board meeting on April 22, 2019. The BOH approved recommending the proposal of Colbea Enterprises to the ZBA by a unanimous vote with five members present and voting. This recommendation is based on the ability of the business to comply with aforementioned regulations and based on the following conditions listed below. These conditions are above and beyond the strict scope of the aforementioned regulations and are intended to provide additional protection of the APD. If these conditions are approved by the ZBA no Handling and Storage of Toxic of Hazardous Materials License will be issued until the following are completed. Furthermore, without said license issued, no fuel may be delivered to the two proposed 20,000-gallon underground storage tanks (UST) 1) Septic System Requirements: C• Per Title 5 Regulations, the site, consisting of 51,280 square feet of land area within the Zone II Wellhead Protection Area, is currently limited to approximately 564 gallons/day of sewage flow with the installation of a standard Title 5 compliant septic system. The proposed sewage flow for the requested commercial use (Gas Station and Season Corner Market) is 800 gallons/day which will require the acquisition/credit of additional land (21,448 square feet) per engineered plan by Down Cape Engineering dated March 11, 2019 and located within the same Zone it through a formal Nitrogen Aggregate Plan approved by the Board of Health or combination of land acquisition and I/A Technology installation. Prior to final approval of the proposed flow of 800 gallons/day by the Board of Health, the applicant will be required to present an appropriate sewage design meeting the minimum requirements of Title 5 Zone II restrictions. 2) The registered professional engineer who designed the fueling system must submit to the Health Dept. an as -built plan and a signed statement indicating "the UST system was installed in accordance with 310 CMR 80.00, the manufacturer's specifications and the manufacturer's checklist." 3) 433 Station Ave. (_Existing Business: Station Ave. Sunoco) a. The two 8000-gallon gasoline; one 8000-gallon diesel and one 1000- gallon heating oil underground storage tanks are removed. b. All fuel system piping, sumps, dispensers and related infrastructure are removed. c. Confirmatory soil sampling and, if applicable, groundwater sampling results pertaining to the underground storage tank and related infrastructure removals are determined to meet Massachusetts Dept. of Environmental Protection (DEP) standards after evaluation by a Massachusetts Licensed Site Professional (LSP). d. A deed restriction prohibiting future fuel storage and sales must be recorded at the Barnstable County Registry of Deeds. 4) 446 Station Ave. (Existing Business: Station Ave. Shell) a. The two 6000-gallon gasoline, one 8000-gallon gasoline, one 12,000- gallon gasoline, one 500-gallon heating oil and one 500-gallon waste oil underground storage tanks are removed. b. All fuel system piping, sumps, dispensers and related infrastructure are removed. c. Confirmatory soil sampling and, if applicable, groundwater sampling results pertaining to the underground storage tank and related 7 infrastructure removals are determined to meet Massachusetts Dept. of Environmental Protection (DEP) standards after evaluation by a Massachusetts Licensed Site Professional (LSP). d. A deed restriction prohibiting future fuel storage and sales must be recorded at the Barnstable County Registry of Deeds. 5) The maximum onsite storage of toxic or hazardous materials in underground storage tanks is limited to 40,000 gallons total. 6) The maximum onsite storage of toxic or hazardous materials not including the underground storage tanks is 200 gallons. 7) A detailed material spill containment plan must be conspicuously posted at all times and: all employees must be familiar with the plan. 8) No vehicle repair is allowed onsite. 9) No vehicle washing is allowed onsite. 10)The two proposed 20,000-gallon underground storage tanks (UST) may not be filled until all conditions above (1 — 9) are complete. 8 Clark, Sandi From: Williams, Kathleen Sent: Tuesday, May 7, 2019 1:32 PM To: 'Andrew Singer'; 'Steven Tupper' Cc: Clark, Sandi; 'Colleen Medeiros' Subject: RE: Season's Corner Market -Shell Station, Station Avenue, SY Hi Andrew, Let's plan on having the Cape Cod Commission staff available on June 13th for all the reasons noted in our e-mails. I will let the ZBA know. Thanks, Kathy ---------------------------------------- Kathy Williams, PE Yarmouth Town Planner 1146 Route 28 South Yarmouth, MA 02664-4492 (508) 398-2231 Ext 1276 kwilliamsQyarmouth.ma.us From: Andrew Singer [mailto:ALSinger@singer-law.com] Sent: Tuesday, May 7, 2019 12.28 PM To: 'Steven Tupper' <stopper@capecodcommission.org>; Williams, Kathleen <kwilliams@yarmouth.ma.us> Cc: Clark, Sandi <SClark@yarmouth.ma.us>; 'Colleen Medeiros' <colleen.medeiros@capecodcommission.org> Subject: RE: Season's Corner Market -Shell Station, Station Avenue, SY Good Afternoon, I just found out that Randy Hart cannot attend this Thursday because of a need to attend a funeral. There may or may not be someone filling in for him at the first hearing. We will plan to discuss traffic in depth at the continued meeting. Thank you. Andrew From: Steven Tupper <stu er ca ecodcommission.or > Sent: Tuesday, May 7, 2019 12:15 PM To: Andrew Singer <ALSinger@singer-law.com>; 'Williams, Kathleen' <kwil I iams2yarmouth.ma.us> Cc: 'Clark, Sandi' <SClark@yarmouth.ma.us>; Colleen Medeiros <colleen.medeiros ca ecodcommission.or > Subject: RE: Season's Corner Market -Shell Station, Station Avenue, SY Kathy, Cape Cod Commission staff are available and will plan to attend the meeting on June 13th Please let me know if you would like Commission staff to attend the meeting on May 9" as well. Thanks, Steve Steven Tupper Transportation Program Manager Cape Cod Commission From: Andrew Singer <ALSinger@singer, law.com> Sent: Monday, May 6, 2019 3:00 PM To: 'Williams, Kathleen' <kwilliams@yarmouth.ma.us> Cc: 'Clark, Sandi' <SClark@yarmouth.ma.us>; Steven Tupper <stupper@capecodcommission.org> Subject: RE: Season's Corner Market -Shell Station, Station Avenue, SY HI Kathy, Randy Hart will be at the meeting this week, but the new information will not be ready. He anticipates having it ready in advance of the June 13th meeting so that he can coordinate with Steve ahead of time. Our goal for this week is to discuss and seek input from the Board on the overall proposal and matters connected with the relief sought, including any additional questions on traffic and other items. We will then prepare responses before the continued meeting. Thank you. Andrew From: Williams, Kathleen <kwilliams@yarmouth.ma.us> Sent: Monday, May 6, 2019 2:07 PM To: 'Andrew Singer' <ALSinger@singer-law.com> Cc: Clark, Sandi <SClark@varmouth.ma.us>; Steven Tupper (stu er ca ecodcommission.or } <stupper@capecodcommission.o rg> Subject: Season's Corner Market -Shell Station, Station Avenue, SY Hi Andrew, If you are going to request a continuation at the end of the May 91h Public Hearing to June 131h, and you will have no new traffic information to present on May 91h, then I would agree it would make better use of Steve Tupper's time to come to the meeting on June 13th after he has had a chance to review any supplemental information presented by VHB. Steve — would you or other Commission Staff be able to attend a meeting on June 131h? Thanks, Kathy Kathy Williams, PE Yarmouth Town Planner 1146 Route 28 South Yarmouth, MA 02664-4492 (508) 398-2231 Ext 1276 kwilliamsa,,yarmouth,ma.us From: Andrew Singer[ma ilto:ALSin er sin er-law.com] Sent: Monday, May 6, 2019 2:00 PM To: Williams, Kathleen <kwilliams armouth.ma.us> Subject: Season's Corner Market -Shell Station, Station Avenue, SY Hi Kathy, We are getting ready to open the hearing before the ZBA this Thursday on the above proposal. As you probably are aware, Randy Hart of VHB is working on additional research, etc. as suggested by Steve Tupper in his peer review letter. This will not be completed by this week, so I anticipate being continued at the end of the night to a future meeting. Because of this and because Randy normally works with Steve before the ultimate meeting where the traffic materials are discussed finally, I had the thought that it might not be necessary to have Steve attend this week. He could attend the continued hearing (probably with an updated letter as well). FYI, I will ask the Board to continue us after the hearing to June 13' since l will be away on May 23rd Thank you. Andrew Andrew L. Singer Law Office of Singer & Singer, LLC 26 Upper County Road P.O. Box 67 Dennisport, MA 02639 (508) 398-2221 (tel) (508) 398-1568 (fax) www.singer-law.com Confidentiality Notice: This electronic transmission and the information contained herein is being transmitted to and is intended for the use of the individual(s) to whom it is addressed. if the reader of this message is not the intended recipient, you are hereby advised that any dissemination, distribution or copy of this transmission is strictly prohibited. This transmission may also constitute an attorney -client communication that is privileged at law. If you have received this transmission in error, please immediately notify the sender by return e-mail or telephone (508) 398-2221 and delete the transmission in its entirety. D&veJl}!port Re&hy Established 1955 20 NORTH MAIN STREET SOUTH YARMOUTH, MA 02664-3143 TEL: 508-398-2293 • 800-822-3422 • FAX: 508-394-6765 June 26, 2019 www.thedavenportoompanies.com Board of Appeals 1146 Route 28 So. Yarmouth, MA02664-0836 Re: Petition #4801 and #4802 Dear Members of the Board: RECEIVED EJUL 262019 YARMOUTH BOARD OF APPEALS Having heard the Applicant's May 911 presentation, as well as reviewing the supplemental materials submitted, I'm writing to set out several points in furtherance of my opposition letter of April 3, 2019. 1, The Applicant provided no facts to support the numerous variances sought. There are no shape nor topographic issues and they acknowledged the site consists of sand -hardly a hardship soil condition. As the Board knows, the power to vary zoning provisions must be sparingly exercised and only in rare instances and under exceptional circumstances. Self -characterizing a proposal as "unique" and "innovative" is no substitute for the required standard which the Applicant falls well short of meeting; On page 14 of the Applicant's updated June 6, 2019 traffic study Table 9 sets out intersection Capacity Analysis, and for the 18 Level of Service scenarios, 9 of them (50%) operate at level F. Eight of the nine have average total delay in seconds per vehicle in excess of two minutes. Such delay will result in on and off -site back-ups and high potential for accidents as frustrated motorists will "force gaps." The Cape Cod Commission's Traffic Study Peer Review found such conditions "unacceptable" resulting "in a safety hazard." This certainly does not promote health, safety and/or convenience; In reviewing the site plan, it appears that deliveries will only be made on the right/north side of the building. Presumably, delivery vehicles will utilize the "Loading Area." When parked there, circulation around the building will be blocked for vehicles, including Emergency vehicles. Plus, the delivery person will need to pass through cars in the queue creating conflict, hazard and more delay; 4. Finally, the best solution for underground fuel storage in the APD is not to introduce 40,000 gallons, but instead to upgrade the existing tanks at both the Shell and Sunoco sites. The project is inappropriate for the site. The application should be denied. Jnceely, t P. Davenport, Trustee port Realty Trust 1 Affiliates: All Cape Self Storage - Blue Rock Golf Resort • Cape Cod Fence Co. • Davenport Building Co. Klnasbury Aviation • Kinasbury Mananement Cn • Pori loclra! Pnennc . Thi.........r ot— —, I :..:__ - Tom_ __ ., — Clark, Sandi From: Greene, Karen Sent: Thursday, June 27, 2019 223 PM To: Clark, Sandi Cc: Williams, Kathleen Subject: land disposition process HI Sandi wanted to keep you in the loop regarding the Town's land disposition committee review of properties requested for use in a Nitrogen Aggregation Plan for the Seasons gas station. As you know, they've submitted an application for review of three town owned parcels. Once reviewed by a staff committee, the requests will be passed along to Land Disposition Committee for their review and recommendation (which would be made to the Board of Selectmen). I would expect this Committee would be convened a month from now. Please let me know if you have any questions. I shared this information with Attorney Singer who stopped by the office yesterday. Thanks, Karen Karen M. Greene, Director of Community Development Town of Yarmouth kgreenePyarmouth.ma.us 508-398-2231 x1278 Clark, Sandi From: Warren Woods <windsurf403@gmail.com> Sent: Friday, June 28, 2019 3:05 PM To: Clark, Sandi; Warren Woods Subject: Re: Proposed Seasons project on Station Ave. Attention! This email originates outside of the organization. Do not open attachments or click links unless you are sure this email is from a known sender and you know the content is safe. Call the sender to verify if unsure. Otherwise delete this email. On Fri, Jun 28, 2019 at 3:01 PM Warren Woods <windsurf403(c�.gmail.com> wrote: Hi Sandi: Please send this email to the Board members please. Thanks, Warren Woods p.s. I noted a misspelling and corrected it. Dear Board Members: It was my pleasure to attend last evening's meeting and listen to the discussion concerning the construction of a Seasons convenience store, gas station and coffee/sandwich shop on the vacant land available on Station Ave. The Board is impressive in their professionalism and exercise of due diligence in their review of the proposal. I would like to provide a couple of comments to the Board concerning the topics discussed yesterday. If the requirements for the issuance of variances are according to Mr. Veara's interpretation of the law: that the criteria necessary for the issuance of a variance are related to hardships concerning topography, shape or soil composition, the applicants have clearly not shown any hardship related to those factors so the request for variances should be denied. It is also important to note that some of data in the traffic report is estimated from an off Cape location that may or may not have a similar traffic pattern to Station Ave. The commuters at a railway station are usually going to work in the morning and home from work in the evening. The daytime traffic at railway stations is likely to be far less than during rush hours. In comparison, the traffic on Station Ave. seems to be heavy all day and very heavy during the rush hours and summer season. More actual vehicle counts would be better to give a more accurate picture of the current and projected traffic vehicular flow. The suggestion of the Cape Cod Commission representative to get traffic studies from multiple locations of Seasons stores makes great sense, particularly if those stores are on Cape or in vacation areas and especially if they had Dunkin Donuts stores inside. This study would help give a better picture of possible traffic flow and potential increase in congestion on Station Ave. The Town Planner also seemed to agree with the Cape Cod Commission that the development of this project would lead to significantly increased traffic congestion on Station Ave. There was some discussion of the location of curb cuts and new traffic signals to control the traffic exiting and entering the proposed business. In my opinion, an additional set of traffic signals would allow easier access and egress to the Seasons store and Stop and Shop Plaza but would severely hamper the flow of traffic on Station Ave. The signal would need to be coordinated with those already existing. I can envision the stacking of cars attempting to purchase products through the drive through window of the Dunkin Donuts extending onto Station Ave. at times and because of a red signal, having southerly proceeding traffic blocked causing a dramatic blockage of traffic through the White's Path signal that could extend to the off ramp of exit S at certain times of the day. The representative from the Cape Cod Commission made a statement that if traffic from the Seasons building was stacking up on Station Ave. an accommodation would have to be made. However, he did not define what that accommodation would be. I am curious about it because there is no room on the site to add any more lanes for vehicles to remain stacked. There will be more than ten cars in the line of cars waiting for the drive up window service some days, if a Dunkin Donuts franchise installs a store in the building (if the Dunkin Donuts stores in other locations are any indication). If those vehicles extend onto Station Ave, they will block access and egress by the vehicles entering or already in the store parking Iot or gas pumps causing an unsafe situation. The backup will extend at least to White's Path and block our driveway. I have observed vehicles exiting from the highway off ramp and proceeding southerly on Station Ave. at a high rate of speed through the intersection of White's Path when the signal is green. These cars then tend to brake hard beginning in front of Today Real Estate as they need to slow down and stop for traffic turning into the CVS/Wendy's driveway. If you have the time, please observe this activity and you will be shocked at how fast cars need to stop in that location. If a Seasons store was located between Today Real Estate and the CVS/Wendy's driveway, these speeding vehicles would need to slam their brakes on in front of my building and stack up preventing access to my driveway. The Town of Yarmouth Police Department should be asked to provide input about the above at the next meeting. Beyond the traffic issue, the excessive nitrate loading of the septic system needs to be accommodated. The suggestion by the applicant to pay the town to preserve town owned vacant land from development might be Warren D. Woods, D.M.D. VIA c-MAI Clark, Sandi From: Colleen Medeiros <colleen.medeiros@capecodcommission.org> Sent: Friday, August 2, 2019 9:48 AM To: Williams, Kathleen Cc: Steven Tupper; Clark, Sandi Subject: Seasons Gas - CCC Traffic Follow Up Attention! This email originates outside of the organization. Do not open attachments or click links unless you are sure this email is from a known sender and you know the content is safe. Call the sender to verify if unsure. Otherwise delete this email. Good Morning Kathy, This email serves to provide a follow-up in response to the Access Alternatives Analysis memorandum dated July 18, 2019, prepared by VHB, regarding the proposed Seasons Corner Market on Station Avenue in Yarmouth. Cape Cod Commission (CCC) Transportation Staff reviewed the memorandum and met with VHB to discuss their Access Alternatives Analysis traffic memorandum on July 25, 2019. In our professional opinion, the additional access alternatives do not fully mitigate the traffic congestion and safety concerns along Station Avenue associated with this intensive use. Based on our review, Alternative 3 and 4 provide improved operations over two full access driveways and seek to minimize impacts by reducing the number of conflict points along this busy corridor. However, we found that even under Alternatives 3 and 4 there are still potential congestion and safety issues that will result from a facility with a convenience store, coffee co -brand with drive-thru and a 12-position fueling facility on this roadway. Please find a summary of our review for each alternative below: Alternative 1— Signalized Northern Driveway Alternative 1 includes signalizing the intersection of Station Avenue and the Stop and Shop driveway/Proposed Seasons northern driveway. According to VHB, this alternative was not advanced for further consideration due to the projected queueing on Station Avenue. However, it appears that the traffic signal analysis did not include any assumptions for necessary roadway improvements or reconfiguration, which would likely be required in orderto provide adequate traffic operations with a traffic signal at this location. Overall, CCC Transportation Staff have concerns with the traffic signal alternative as it may result in a negative impact to operations for the entire corridor. A further in-depth look of the entire corridor and coordination with the Town and the Stop and Shop property owners would likely be required before considering a traffic signal alternative at this location. Alternative 2 — Right-In/Right-Out Alternative 2 would restrict left turns out of the northern site driveway while the southern driveway would restrict all left turns. CCC Transportation Staff is in agreement with VHB to not advance this alternative as exiting left turns would not result in a functional site. All drivers intending to exit left but forced to exit right due to restricted exits would create an unsafe condition where vehicles may make illegal movements trying to reverse direction on Station Avenue. Alternative 3 — North Driveway Enter Only, South Driveway Exit -Only Alternative 3 proposes to have the site operate under a one-way circulation with the northern driveway restricted to entering vehicles only and the southern driveway restricted to exiting vehicles only. This alternative does achieve a reduced number of conflict points along the corridor with this access management technique. In addition, the traffic operations analysis does result in an improvement with the proposed driveways expected to operate under capacity (volume to capacity ratio <1.0). CCC Transportation Staff sees potential merit with this alternative as all site traffic would be processed during the peak hours, however, the proposed southern exit -only driveway would still operate at a LOS F with delays ranging from one to two minutes. This configuration still results in congestion and safety issues and creates a failing roadway intersection. If this alternative was advanced for further consideration, CCC Transportation Staff recommends that the site be redesigned to realign the gas pumps and the parking spaces in a diagonal layout to enforce the one-way circulation so it is more intuitive to customers and discourages wrong -way traffic. Alternative 4 — North Driveway Shifted North and Right-In/Right-Out Alternative 4 shifts the northern site driveway northerly and would no longer intersect Station Avenue directly across from the Stop and Shop driveway. In addition, the northern site driveway would restrict all left turns, while the southern driveway would provide full access and allow all turning movements. Although the internal site circulation is improved under this scenario to separate driveway traffic from the gas canopy, the traffic operations associated with Alternative 4 still project the southern site driveway to operate at LOS F and over capacity (volume to capacity ratio >1.0) during all three peak hours. As stated in our review memorandum dated April 24, 2019, the proposed site driveways should not be designed to operate overcapacity as the site volumes would not be processed during the peak periods which in turn would result in an operational issue and safety hazard. Based on the analysis presented at this time, we do not recommend this as the preferred alternative due to the projected operational and safety issues. We will plan on being in attendance at the continued ZBA hearing on Thursday, August 8`". Please let us know if you need any additional information. Thanks, Colleen Medeiros, P.E. Transportation Engineer Cape Cod Commission 3225 Main Street f P.O. Box 226 Barnstable, MA 02630 (508) 744-1226 j www.capecadcommission.org EC" Clark, Sandi VIA EH-40AIL From: Warren Woods <windsurf403@gmaii.com> Sent: Friday, August 2, 2019 12:59 PM To: Clark, Sandi Subject: Response to Memorandum of Colbea Enterprises, LLC. Attention! This email originates outside of the organization. Do not open attachments or click links unless you are sure this email is from a known sender and you know the content is safe. Call the sender to verify if unsure. Otherwise delete this email. From: Dr. Warren Woods Date: August 2, 2019 Re: To: Yarmouth Board of Appeals Proposed Seasons Corner Market/Shell Station (Appeals #4801 and #4802) 473, 479 and 487 (portion) Station Avenue, South Yarmouth, MA Dear Board Members: Yesterday, I received a courtesy copy of the SUPPLEMENTAL MEMORANDUM filed by Attorney Andrew Singer on Behalf of his client, Colbea Enterprises, LLC. The following comments are my thoughts concerning the Memorandum. In the Introduction section of the Memorandum, the applicant once again incorporates activities at nearby properties as part of his application for variances and special permits for the 473, 479 and 487 parcel he is interested in developing where in fact, what transpires at those other businesses has nothing to do with this application. In the Conclusion section of the document, Mr. Singer describes "...several cases in which the Massachusetts Courts have affirmed the granting of variances (both use and dimensional) when there are specific factors regarding the shape and/or topography of a parcel or parcels of land and the structures thereon which render economically reasonable and practical use of such land or structures infeasible absent the requested variances." Although I am not an attorney, the cases Mr. Singer cited further in the documents do not seem to apply in this instance, particularly since there are no structures on the parcel, the land is flat, and the shape is almost rectangular. The court cases and decisions cited do not seem to apply here although they are interesting. The applicant continues to apply for a variance for a specifically prohibited use on the parcel, specifically the installation of underground fuel storage tanks. There is no legitimate need for the Board to grant a variance for the storage of underground fuel on this site in direct opposition to the zoning laws. The applicant also requests additional relief from the zoning laws because they do not wish to comply with the zoning statues regarding "... the canopy front setback, - parking in front of the building; centerline of driveways; plant species; front buffer tree spacing; photometrics; and signage." In my opinion, the applicant still wants to ignore these zoning requirements and develop the property how he desires trampling the specific requirements of the zoning by-laws. To justify their argument that the Board should grant the applicant variances and special permits, the applicant states "...that a literal enforcement of the Zoning By -Law would involve substantial financial or practical hardship to the Petitioner, that the hardship is owing to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affecting such land or structures....." The above statement by Mr. Singer confuses me. Parcels # 473 and 479 are owned by members of the Luby family according to the Barnstable County Registry of Deeds. Parcel # 487 is owned by lames Machnik according to the Barnstable County Registry of Deeds. Unless 1 am mistaken, Colbea Enterprises, LLC. does not own the parcels. Itis most likely that they have a provision in a Purchase and Sale agreement or an offer to Purchase document that requires the permits for the proposed gas station/convenience store/restaurant prior to their purchasing of the lots. So, since Colbea Enterprises, LLC. does not own the parcels, ! fail to see why they are suffering any 'hardship'. The owners of these parcels can easily and reasonably sell them to another party who will be able to build a structure on the property that is conforming with the Zoning By -Laws of the Town of Yarmouth. They are also obviously suffering no "hardship". Colbea Enterprises, LLC. should locate a parcel of land to develop for their needs that conforms with the local applicable zoning requirements for that lot. Mr. Singer also states "...the proposal will not result in a significant increase in traffic". That statement is based on the data gathered by the applicant's traffic study. Any additional traffic in the area is "significant'. However, the increase in traffic has nothing to do with the increase in traffic congestion that I postulate will be dramatic. The plans submitted with the Memorandum, especially Sheet TP-1A, clearly demonstrate that traffic will back up onto Station Ave. with even minor backups of vehicles and trucks trying to enter the proposed north entrance of the gas station/convenience store. As a consequence, the driveway to my office building will be blocked limiting the access of emergency vehicles into my parking lot. We have multiple ambulance runs to my office each week. Any blockage of my driveway could mean someone might die if an ambulance cannot enter. The admonition of the Board by Mr. Singer to accept the applicant's proposal to combine the removal of the underground tanks from the Shell and Sunoco gas stations as part of this project seems to be an effort to intimidate the Board. His claim that "...in exchange for the relocation a brief distance north along the same street in the same zoning and overlay districts with a new, smaller -capacity, state -of -the —art facility, a facility which is needed in this commercial zone and is authorized by the underlying zoning in the area, is a substantial hardship." I do not know how this is a "substantial hardship". Also, there must have been a change in the Zoning By -Laws last week because as far as I know, underground tanks are still not allowed in the zoning applicable to this site. Finally, I am unaware of a "need" for this facility since at this time, there are multiple gas stations, restaurants and food stores in the area. For the above reasons and the reasons I have previously sent you in letters to the Board, I respectfully request that you deny the applications of Colbea Enterprises, LLC. to build a convenience store/restaurant and gas station on the combined parcels of land. Sincerely, Warren D. Woods, D.M.D. TOWN OF YARMOUTH 1146 ROUTE 28, SOUTH YARMOUTH, MASSACHUSETTS 02664-24451 Telephone (508) 398-2231 Ext. 285, Fax (508) 398-0836 AGREEMENT FOR EXTENSION The Petitioner understands and agrees: Board of Appeals YARHOUTIH TOWN C1E-� ' 1.9J _?4'28Pm3:10 REC That the public hearing will not be held within 65 days of the filing of this Application, or That the Board will not take "final action" on the request for a Special Permit within 90 days of the conclusion of the public hearing; That the decision of the Board on an Appeal or Variance request will not be made within 100 days of the filing of the application. Further, the petitioner agrees with the Board to extend the time frames within which the hearing, re -hearing or continuance are to he held and the decision(s) are to be made and filed by the Yarmouth Board of Appeals, and to waive any rights to the Constructive Grant of this petition, provided that the Board does act within the time frame of this agreement. It is therefore agreed that the Hearing shall be held/continued on `c� l ,y ) i ,and that the Board's decision shall be made and filed with the Town Clerk within 14 days of the conclusion of that public hearing. Applicant/PetitionerALY,- Petition #4&9011- a Applicatiofiling date:, -, ate: Initial Hearing Date Date: Petitions or ®cent for Petitioner Date: � &7 // 9 of Appeals \ Date Filed with Town H:\N[yFiles\Documents\Application\Hearing Extension Agreement.wpd TOWN OF YARMOUTH 1146 ROUTE 28, SOUTH YARMOUTH, MASSACHUSETTS 02664-24451 Telephone (508) 398-2231 Ext. 285, Fax (508) 398-0836 AGREEMENT FOR EXTENSION The Petitioner understands and agrees: Board of Appeals " p 9MAY10AM11:12 RLEC That the public hearing will not be held within 65 days of the filing of this Application, or That the Board will not take "final action" on the request for a Special Permit within 90 days of the conclusion of the public hearing; That the decision of the Board on an Appeal or Variance request will not be made within 100 days of the filing of the application. Further, the petitioner agrees with the Board to extend the time frames within which the hearing, re -hearing or continuance are to he held and the decision(s) are to be made and filed by the Yarmouth Board of Appeals, and to waive any rights to the Constructive Grant of this petition, provided that the Board does act within the time frame of this agreement. It is therefore agreed that the Hearing shall be held/continued on , and that the Board's decision shall be made and filed with the Town Clerk within 14 days of the conclusion of that public hearing. J� Applicant/Petitioner Petition # Application filing date: Initial Hearing Date _ Date: 4 Petitio r o for Petitioner Date: Board of Appeals Date Filed with Town Clerk: H:1MyFiles\Documents\Application\Hearing Extension Agreement.wpd UIW TOWN OF YARMOUTH Board o 1146 ROUTE 28, SOUTH YARMOUTH, MASSACHUSETTS 02664-24451 ApFalso o 'telephone (508) 398-2231 Ext. 285, Fax (508) 398-0836 AGREEMENT FOR EXTENSION The Petitioner understands and agrees: That the public hearing will not be held within 65 days of the filing of this Application, or That the Board will not takel "final action" on the request for a Special Permit witkin 90 days of the conclusion of the public hearing; That the decision of the Board on an Appeal or Variance request will not be made within 100 days of the filing of the application. Further, the petitioner agrees with the Board to extend the time frames within which the hearing, re -hearing or continuance are to he held and the decision(s) are to be made and filed by the Yarmouth Board of Appeals, and to waive any rights to the Constructive Grant of this petition, provided that the Board does act within the time frame of this agreement. It is therefore agreed that the Hearing shall be held/continued on and that the A*f Zy- Board's decision shalt be made and fled with the Town Clerk within 14 days of the conclusion of that public hearing. Applicant/Petitioner Petition ----- Application fling date initial Hearing Date Petitioner or Agent for Petitioner Date: Date: Board of Appea s Date Filed with Town Clerk: H,"hlyFiles+DocnmearslAiapiicationlF[earing Extension Agreement.upd YARMOUTH TOWN CLERK '19APR1 Am11:15REC YARMOUTH BOARD OF APPEALS MINUTES APRIL 11, 2019 MEMBERS SITTING AND VOTING: Dick Martin, Acting Chairman, Thomas Nickinello, Tom Baron and Susan Brita. PETITION #4801: Colbca Enterprises, LLC, 2050 Plainville Pike, Cranston, R.I. Property location: 473, 479 and 487 (portion) Station Avenue, South Yarmouth. Map & lot#: 0097.1; 0097.2 & 0097.3 (portion); Zoning District: B 1; APD & ROAD. The applicant is seeking Special Permits and Variances to develop the land at the above addresses for use as a Shell fuel service station and convenience store with co -brand business. Relief is requested under and from, respectively, §202.5 footnote J, §301.4.1 - §301.4.10; §301.8; §301.9 and §303 as necessary, for use in the B I Zoning District and APD and various dimensional setback and design, parking, drive-thru, landscaping, lighting, and sign provisions, per the submitted plans and materials. PETITION #4802: Colbea Enterprises, LLC, 2050 Plainville Pike, Cranston, R.I. Property location: a portion of 487 Station Avenue, South Yarmouth. Map & lot#: 0097.3 (portion); Zoning District: B 1; APD & ROAD. Companion application with Petition #4801 to amend Decisions #3453 and #3505 or in the alternative, new Variance relief under and from §203.5 and §301.4.1 as necessary to divide off 7,305 +/- sq. ft. of land at the rear of the lot. The proposal will not create any new non -conformities or impact the existing site development. Attorney Andrew Singer addressed the Board regarding Petitions #4801 & #4802. Prior to the hearing, Attorney Singer had filed a letter requesting a continuance from April I 1 to May 9 based on information yet to be received on these Petitions. Mr. Nickinello made a Motion to continue Petitions #4801 & #4802 to May 9, 2019. Motion seconded by Tom Baron. Motion carries. PETITION #4800: Town of Yarmouth, Police Department, 340 Higgins Crowell Road, West Yarmouth. Map & lot#: 0055.26; Zoning District: R-40. The applicant seeks Modification to Decision #3594 and to expand municipal use and/or a new Special Permit and in the alternative a Variance from Use Table §202.5 (P-10) in the APD. The applicant also seeks a Variance from §301.4.6 for trees that were removed from existing lots. Chief Frank Fredrickson, Steve Bobola, Sand Dollar Customs, and Bruce Wilson, Project Manager, presented the Petition. The proposal is for a 6400 sq. foot two story training facility behind the existing Police Station. It will be equipped with a separate locker room building for officers to lock up weapons prior to entering the training building, an 8 foot security fence and 21 new parking spaces. It will also be used for K-9 training complete with obstacle courses. The Chief indicated that the funding was privately raised by the Yarmouth Police Foundation. Also, the building cannot be used for public use but can be used by other departments. This will be a utility grade building with 600 linear feet of moveable plastic walls. The design is such that the use will vary and provide exercises for officer training using various formations; going thru a window, how to get to the attic of a dwelling, school situation and SWAT. The Project Manager is looking into powering the facility using solar energy. Discussion regarding the trees that were removed, the difficulty of plowing this area in winter, resulted in 5 new trees that will be planted in the existing island between the drive and parking area and irrigation has been installed. The trees that were removed had died, probably due to the lack of irrigation, and were not replaced. No one was in the audience either in favor or opposed Board discussion: Two options were shown on the proposed training building layout plan and the Petitioner proposes to use Option 1. This training facility is not military grade, it is customized for Yarmouth Police Department needs. Trees will be replaced in island as discussed. Motion was made by Mr. Nickinello to modify Special Permit #3594 for expansion of the municipal building. Motion seconded by Mr. Baron. Motion carries unanimously. Variance Motion was made by Mr. Baron to replace trees south of the parking lot. This Motion was seconded by Mr. Nickinello. Motion carried unanimously. May 9, 2019 Minutes approved in open session June 27,19 by Mr. Nickinello seconded by Mr. Martin YARMOUTH BOARD OF APPEALS MINUTES MAY 9, 2019 MEMBERS SITTING AND VOTING: Steven DeYoung, Chairman, Sean Igoe, Dick Martin, Thomas Nickineilo, Dick Neitz and Tom Baron. Continued from March 28 2019: PETITION #4798: Jeanne and John Lyons, 72 Higgins Crowell Road, West Yarmouth. Map & lot#:0039.35; Zoning District: R-25. The applicant seeks a Special Permit under Zoning By-law §407.2.1 and a Variance from Zoning Bylaw §407.2(#7) for a Family Related Apartment exceeding 800 square foot maximum requirement. The Petitioners, John and Jeanne Lyons, reside at 72 Higgins Crowell Road, West Yarmouth and seek a Special Permit under Zoning Bylaw §407 for a Family Related Apartment and a Variance from Bylaw §407.2 (#7) to exceed 800 square foot maximum requirement. Mr. & Mrs. Lyons appeared before the Zoning Board on March 28, 2019 and following lengthy discussion and a suggestion to the Petitioner that they could support a staircase within the new garage and the apartment measuring 800 sq. feet. The Petitioners asked to continue the hearing to May 9, 2019 to provide the Board with a new plan reducing the size of the apartment. On May 2, 2019 the Board received a letter from Mr. and Mrs. Lyons requesting to withdraw their Petition #4798 without prejudice. Motion was made by Mr. Igoe, seconded by Mr. Neitz to allow withdraw of the Petition, without prejudice, to which a unanimous favorable vote was given. PETITION #4803: Marie Caron, 797 Route 28, South Yarmouth. Map & lot#: 0035.75; Zoning District: B2. The applicant seeks Modification of existing Decision #3765 or in the alternative a new Special Permit under Use Table §202.5 (L5) to expand office area of existing building. The Petitioner, Marie Caron and Dan Ojala, Down Cape Engineering presented. The applicant seeks Modification of existing Decision #3765 or in the alternative a new Special Permit under Use Table §202.5 (L5) to expand office area of existing building located in the B2 Zoning District. The extension to the left rear will create more space in the office area to help facilitate communications in connection with the towing business operated from the site and will be constructed in conformity with the plans submitted. The relief sought was found to be modest, reasonable and no new encroachment/non-conformity will result and the Board found the relief could be granted without resulting in any hardship, nuisance or congestion nor harm to the existing or future character of the neighborhood. No one spoke in opposition to the Petition. Motion was made by Mr. Igoe, seconded by Mr. Nickinello, the Board voted unanimously in favor of the grant of the Special Permit without condition. Continued from February 28 & March 28, 2019: PETITION #4792: Leonardo R. Marichal, 9 Pinewood Road, 'West Yarmouth. Map & lot#:0024.69; Zoning District: R-25. The applicant seeks a Special Permit under Zoning By-law §407 to create a Family Related Apartment. The Petitioner was represented by Attorney Anthony Alva, who was newly retained and appeared before the Board on March 28, 2019 requesting a continuance to May 9, 2019 to familiarize himself with the Petition. Attorney Alva reviewed the history of the property noting that Mr. Marichal has been out of the country and at the original hearing on February 281h, 2019 his son Juan Marichal represented his father and provided the Board with documents that he had power of attorney in his father's absence. At that hearing it was apparent that the rooms on the second floor had not been issued an Occupancy Permit and no Building Permit was issued to finish the basement. The Board had received historical information from Mr. James Brandolini, Deputy Building Commissioner that this property had not been inspected previously and no Building Permit was issued for the creation of the second floor rooms. Nor was any Certificate of Occupancy ever issued. A lengthy discussion between Mr. Alva and the Board continued with Mr. Alva informing the Board that Mr. Marichal will make improvements in the basement and upstairs. Mr. Marichal will eliminate the rooms in the basement and the work will be performed by licensed contractors. Mr. Brandolini attended the hearing and addressed the Board with a summary of the infractions, 2 that have been resolved, the rest are still outstanding. The option to withdraw without prejudice was given to Mr. Alva who then asked the Board to consider allowing his client to do so. Motion was made by Mr. Igoe to withdraw without prejudice, seconded by Mr. Martin. For the Motion: Mr. DeYoung, Mr. Igoe, Mr. Martin and Mr. Nickinello. Mr. Neitz was opposed. Motion carried 4-1. Continued from April 11 2019 never opened): PETITION #4801: Colbea Enterprises, LLC, 2050 Plainville Pike, Cranston, R.I. Property location: 473,479 and 487 (portion) Station Avenue, South Yarmouth. Map & lot#: 0097.1; 0097.2 & 0097.3 (portion); Zoning District: B 1; APD & ROAD. The applicant is seeking Special Permits and Variances to develop the land at the above addresses for use as a Shell fuel service station and convenience store with co -brand business. Relief is requested under and from, respectively, §202.5 footnote J, §301.4.1 - §301.4.10; §301.8; §301.9 and §303 as necessary, for use in the B 1 Zoning District and APD and various dimensional setback and design, parking, drive-thru, landscaping, lighting, and sign provisions, per the submitted plans and materials. Continued from April 11, 2019 (never opened): PETITION #4802: Colbea Enterprises, LLC, 2050 Plainville Pike, Cranston, R.I. Property location: a portion of 487 Station Avenue, South Yarmouth. Map & lot#: 0097.3 (portion); Zoning District: B1; APD & ROAD. Companion application with Petition #4801 to amend Decisions #3453 and #3505 or in the alternative, new Variance relief under and from §203.5 and §301.4.1 as necessary to divide off 7,305 +/- sq. ft. of land at the rear of the lot. The proposal will not create any new non -conformities or impact the existing site development. Petition ##4801 and #4802 are companion Petitions. Presenting were Attorney Andrew Singer, owner of Colbea enterprises, LLC, Andrew Delli Carpini, Alan Micale, Ayoub Engineering, Dan Ojala, Down Cape Engineering, Bob Nagie from VHB and Eric Simpson. Chainnan DeYoung opened the hearing and discussed with Mr. Singer that the understanding tonight is several people were expected to comment in regards to the traffic study but were not available this evening. Chairman DeYoung suggested to the representatives that this evening we keep the topic away from the traffic issue and that we address that at the continued hearing. Mr. Singer highlighted the property on the drawings which is currently a vacant lot, proposal is for a Seasons gas station and convenience store. Part of the proposal is to carve out a small piece of property belonging to Today Real Estate. The current Shell and Sunoco Stations would close their fuel operations, decommissioning and deed restricting them. Considering these stations are in the APD the threat of environmental impact to the aquifer will be dramatically reduced. Peer review by the Health, DPW, and Water Departments has been completed and reviewed by the Town's independent water consultant. Review of the Proposal with the Board of Health to provide comments to the Board of Appeals and on a proposed Nitrogen Aggregation Plan and seeking to utilize the Town's new Disposition of Town Owned Real Property Policy are in progress. This proposal seeks a lot of Variances, which the applicant knows are hard to get. Mr. Singer suggested if you want more information, case law, let us know and we will provide it for the next hearing date. We think this is an exciting proposal and it will enhance business operations and protect water quality. Mr. Dell] Carpini, owner of the Shell Station on Station Avenue and one of the owners with 26 years of experience in the business, gave an overview of how the stations began, presently they have over 100 stations of which 34 are Seasons. He gave an overview of his business partnership with Shell gas stations. The newest is South Dennis that has recently been completed. This new location that is before you will be my station, my name over the door, my managers and I believe this project will benefit the Town. Mr. Singer at this time presented his Summary of Reasoning. We have met with town officials, departments, completed Design Review and Site Plan Review. The Environmental Peer Review has been completed up till now, correspondence from Board of Health has recommended approval. If the ZBA approves this project we will have to go to the Planning Board for approval of carving off a piece of land and Board of Selectmen for fuel storage permit. The project calls for closing two old, outdated fuel service stations (Shell and Sunoco) located within one -quarter mile of the new site and replace with new state -of -art fuel service station (Shell). There will be a significant net reduction of 16,000 gallons of fuel storage in the APD as seven (7) underground tanks, six (6) dispensers and 56,000 gallons of underground fuel storage at the two existing facilities are replaced with only two (2) underground tanks, six (6) dispensers and 40,000 gallons of storage. Two, older fuel service stations will be replaced with one, state-of-the-art with significant improvements in design and containment protocols for fuel storage. The properties with the gas stations will be permanently deed restricted prohibiting future fuel service. 40-50 linear feet of underground fuel -product piping will be removed and replaced with a higher standard pipe. A safer double -wall tank system will be installed at the new site in place of the 7 older underground fuel storage tanks. The underground heating oil tank at the Sunoco Station and underground heating and waste oil tanks at the Shell Station will be removed and replaced with above ground tanks at these properties. In all 10 tanks will be removed and replaced with only 2. The Nitrogen Aggregation Plan, the land to be developed is designated the Facility Land and off - site land to be permanently protected as undeveloped open space is designated the Credit Land. Mr. Singer went through the aspects of the proposal that will need a Special Permit. The Traffic Study will be presented at the next hearing. Landscaping was discussed, lighting, building and lot coverage will be conforming; all storm water runoff will be contained and infiltrated on site. This project will need Variance relief for various aspects; the canopy for the fuel service use; parking in front of the building; curb cut width; centerline of southerly on -site driveway less than 250 ft. from northerly on -site driveway and shopping center driveway across the street; in -lot trees and plant species; front buffer tree; photometric; drive-thru stacking lane; directional signage; freestanding sign; attached signs; under canopy lighting; 2 upward lights; drive-thru menu board, pump toppers with 12 LED prices; video screens on pumps and advertising above dispensers. Eric Simpson, Environmental Manager, expressed what he sees as a unique situation with the removal of the fueling from both stations. The tanks were installed 40 years ago, today new tanks are state of the art. This is an opportunity for the town to improve the Aquifer. This is a sufficient improvement from the old sites and replacing with something much better. Mr. Neitz inquired what the status of the Sunoco station is. Mr. Singer noted that the owner of the Sunoco Station is in contract negotiations to relinquish the fuel and deed restrict the property. Mr. Singer stated that the owner could come back to the ZBA for relief for something on this property. Mr. Neitz reviewed that this project will eliminate the fuel service component but the repairs/service will continue. Mr. Neitz explained to the Petitioner that historically this Board has denied Petitioners rights to have services in the APD as innocent as a car detailing and wash cars and you're continuing with automobile servicing. Mr. Singer stated that it does not eliminate from either site the repairs/servicing components. The owner does not own all three of the sites but has legal control. Chairman DeYoung remarked that we are hearing that we are getting this incredible protection to the APD but the owners are required by law to insure the integrity of the tanks that exist there now. So, we are not improving the APD because the owners would have to perform upgrades when necessary. Is the owner of the property prepared to get deed restrictions beyond merely the removal of the tanks? The Sunoco station property is a disappointment in what it has become and this Board granted approval with restrictions. It was also mentioned that this is the gateway to our community and improvement is needed. Mr. Baron raised questions with regard to the test holes and the findings. Mr. Simpson responded that what was found was typical of the Cape which is a thin Iayer of organic topsoil then a medium to fine sand and groundwater about 35 feet. A previous developer left a monitoring well on the property. Mr. Micale, Ayoub Engineering, maintained the well is close to one of the bio retention areas. Mr. Micale has included a vegetation plan for the bio retention areas. Both retention areas were designed to handle the 100 year storm. A maintenance plan is in place for cleaning out basins, snow retention areas will handle storm water runoff, retention areas will not be plowed in. Mr. Micale explained the site plan indicating the property consists of 3 pieces of land, curb cuts, 2 driveways both 30 feet each, underground storage tanks, two 20,000 gallon double walled fiberglass tanks. The reason for the 30 foot width for the driveway is for the tanks to come in one driveway and go out the other. Overhead canopy with 6 multi product dispensers. Parking in front of building, 13 spaces and 7 on the side. The building is 40 x 90, 3,600 Seasons Corner Market with drive-thru window. There is also a by-pass lane around the whole building, if fire trucks need access, additional parking in rear for employees so no one has a problem leaving, and additional landscaping from comment received from abutter is proposed and a screened chain link fence. In the event of snow it will be removed and taken off site. Mr. Micale described bio retention area that will be maintained, subsurface infiltration and new septic system proposed. The landscaping plan was described and every effort will be made to maintain existing 4" trees if they can. We feel we have been very aggressive in the landscaping proposed. Board members asked various questions pertaining to landscaping; in the event of a snow situation, Colbea will have the snow removed and taken off site. Customers will have access to the pumps even if the tankers are there by coning off the area and Colbea will make every effort to have the tankers at the station during non -peak times. Board suggestions raised were signalization, the closure of 2 stations would require improvements and upgrades to the property; recharge calculations would give back open space; maintaining buffers; canopy more attractive; in lot trees. Concerns were raised about the relief of a drive-thru. The co -branding has not been settled yet but mentioned were Marylou's or Dunkin Donuts. A sensitive issue for the Board is what will happen to these properties that are being decommissioned for gasoline sales and what is planned for them in the future. This is the APD and in taking into consideration for a swap Mr. Carpim, owner of the Shell property, to come back with a limitation of vehicles that can be parked on the exterior of this building that makes some commercial and aesthetic sense. The possibility of removing the grandfathering was mentioned as a part of the grant for the Petition before us. Mr. Igoe directed a question to Mr. Grylls, Building Commissioner, to take a look at the Sunoco Station and review what was allowed there and what was not. It appears that the number of vehicles exceeds what was approved. Mr. Grylls will look into this, as far as he knows, they are registered vehicles waiting for service. Mr. Grylls reminded the Board that at the recent Town Meeting some of the signs that the Petitioner was looking for relief from were approved at Town Meeting. Chairman DeYoung asked Mr. Singer to work with our Building Commissioner on the sign changes and do a simple matrix showing what is required under the present and what is not under the changes. From the audience in opposition: Dr. Warren Woods, owner of the medical office next door to the proposed project addressed the Board. The patients that come to the medical building vary in ages and the traffic presently on Station Avenue is a nightmare. The addition of this service station will create more congestion, accidents occur all the time between the businesses and the grocery store. The trash that is left on his property is enormous and foreseeably would increase with another coffee shop and market. In my opinion there are many reasons to deny this project. The number of Variances that the Petitioner is looking for indicates that this is not the appropriate area. Perhaps modifying the other station would be a better option. Mr. Nickinello made a Motion to continue to June 27, 2019 — seconded by Mr. Baron. Motion carries unanimously. 9/26/ 19 Minutes 06-27-19 approved in Open Session by Dick Martin - seconded by Tom Baron YARMOUTH BOARD OF APPEALS MINUTES DUNE 27, 2019 MEMBERS SITTING AND VOTING: Steven DeYoung, Chairman, Sean Igoe, Dick Martin, Thomas Nickinello, Dick Neitz and Tom Baron, Alternate. Continued from April 11, 2019 (never opened): PETITION #4801: Colbea Enterprises, LLC, 2050 Plainville Pike, Cranston, R.I. Property location: 473, 479 and 487 (portion) Station Avenue, South Yarmouth. Map & lot#; 0097.1; 0097.2 & 0097.3 (portion); Zoning District: BI; APD & ROAD. The applicant is seeking Special Permits and Variances to develop the land at the above addresses for use as a Shell fuel service station and convenience store with co -brand business. Relief is requested under and from, respectively, §202.5 footnote J, §301.4.1 - §301.4.10; §301.8; §301.9 and §303 as necessary, for use in the B 1 Zoning District and APD and various dimensional setback and design, parking, drive-thru, landscaping, lighting, and sign provisions, per the submitted plans and materials. Continued from April 11, 2019_(never opened; May 9" ): PETITION 04802: Colbea Enterprises, LLC, 2050 Plainville Pike, Cranston, R.I. Property location: a portion of 487 Station Avenue, South Yarmouth. Map & lot#: 0097.3 (portion); Zoning District: BI, APD & ROAD. Companion application with Petition 94801 to amend Decisions #3453 and #3505 or in the alternative, new Variance relief under and from §203.5 and §301.4.1 as necessary to divide off 7,305 +/- sq. ft. of land at the rear of the lot. The proposal will not create any new non -conformities or impact the existing site development. Attorney Singer addressed the Board and introduced Randy Hart from VHB and confirmed that all the members of the team were in attendance. Also present was Attorney Chamberlain, representing the property owners and neighboring property owner, and Nino Micozzi, owner of the CVS plaza. Attorney Singer listed the materials submitted for this hearing as a Supplemental Memo, and Revised Zoning Analysis. The Petitioner has made changes that have reduced the type of relief needed. The new sign code that was adopted at Town Meeting will eliminate some of the need to have so many Variances that we originally requested. We feel that this project will be an improvement and enhancement to the Town. The applicant is proposing that the two stations, Sunoco and Shell, will have fuel service eliminated and removed from both properties and all underground tanks which total about 10. The properties will be deed restricted against future fuel service use. Additionally, those two sites, with the elimination of fuel service will still have hazardous materials use, and car servicing. The new proposal the Petitioner is offering is that Shell and Sunoco are both willing to eliminate their penc uses of hazards materials no later than 48 months after the new location opens for business. At the 2 sites gas operations will cease and within 48 months will give up all hazardous materials and will be repurposed. Giving up grandfathered status. Sketch plan by Ayoub Engineer SKI dated June 20, 2019, shows what the Shell Station which shows a deeper front buffer along Station Avenue that will be planted along with a 20 ft. wide additional new island creating a more attractive site with landscaping. Parking spaces will be indicated and will be landscaped. There will be 2 new islands, one at each end, with in Iot trees. As for the drive thru, we still propose 10 cars stacked but are looking for the use of 3 spaces to the north to be designated employee parking. Mr. Micale, Ayoub Engineer, showed locations on the plan (Sheet C 1) for the Board to visualize the area. Sheet C 1 shows all 10 cars and the parking spaces. Lighting relief is for the driveway and perimeter lighting. The proposed lighting based on consultants and industry standards, the proposal calls for 0.7 foot candles. The Dennis station is 45% greater. The signs were brought up at the last meeting and when the Attorney General signs off on the changes that were approved at Town meeting it will be all set. At this time, Attorney Singer brought up case law Furlong vs Salem marked as Exhibit 1 and Cavanaugh vs Diflumera both mass appeals cases were offered to the Board to look at. Attorney Singer read a few sections of the case law. This lead to a discussion on what is planned on the property i.e. gas/Seasons Market and coffee shop and is this 3 businesses and not with keeping with our by-law in regards to co -branding. Randy Hart, Principal with VHB and transportation consultants on the project. Based on the Cape Cod Commission Traffic Study that was submitted to the Town we have modified and expanded our initial traffic study that was submitted to the Town. In the study they expanded several studies during critical periods, 7-9; 4-6 and 11-2 Saturday during the speak summer. They also performed a traffic generation with a coffee use, using a Seasons Market with coffee shop drive-thru in Lakeville. Using a formula of Lakeville, which has very similar characteristics, and watching que at different times of the day the proposed drive-thru with a que of 10 is on spot. Analysis shows it is definitely difficult to make a left hand turn at peak times and in summer conditions. The Stop & Shop has 2 exits and some only 1 exit and it is a difficult area to make a left hand turn. Mr. Hart stated there are pros and cons for a traffic light mid -way. Field operations were conducted in April at the Stop & Shop Plaza which contributes to a lot of the traffic. Mr. Hart explained at this time what the phrase "pass by" activity means and how this relates to the project before the Board. Mr. Hart did share that with these different analysis, we are required to input conservative analysis. The Commission asked that we bring in some Traffic Demand Management and the site will designate a TDM coordinator, someone on site, an employee that will be selling it to employees. This will include a ride share program that will guarantee a ride home for any employees that will be willing to participate, bike racks will be available. This site will also have breakfast, lunch, snacks and fuel that the employees can have available to them. At this time the Board asked various questions to Mr. Hart regarding the number of motorcycles, bikes, etc. using this road and the number of people that will be using the rail trial as well and the congestion that in itself will cause without this project even being there. Mr. Hart did not have a number at this time for the rail trail. The number of accidents in the study mentioned only 4 in S years but members found that number hard to believe. Mr. Hart stated that the information was obtained from records from Mass DOT and does not specify what intersection. Board members felt that signalization should be looked at very, very seriously at this site. Also raised was the look of the canopy which Mr. Micale addressed with Exhibit 3 dressing up the canopy using stone and tying in with the building. A similar look as the Cumberland Farms on Route 28, West Yarmouth. Attorney Singer mentioned that Design Review endorsed the project with a vote of 3-0. Chairman DeYoung replied that correspondence received shows that the Community Development and Planning were opposed to the canopy. Buffers were mentioned with the use of more trees and specifically around the retention area. Discussion moved on to "was it a good idea and whose jurisdiction for a traffic signal across from Stop & Shop". Board felt it would be the jurisdiction of the Board of Selectmen. The Petitioner did look into a signal and with all the different curb cuts in the area, it is not an ideal situation. Everyone agreed that this area has existing congestion. The Board discussed the possibility of requesting the Petitioner to designate "in only" and "out only "signs. Questions were raised regarding the curb cuts and how the fuel delivery truck and supply trucks will enter and exit. Mr. Micale addressed this issue. Mentioned in the discussion was the need for a clover leaf off of exit 8 to resolve the traffic issues. A point was raised that the second traffic study did not go far enough and how the numbers add up. Steven Tupper, Transportation Program Manager, Cape Cod Commission, addressed the Board with a review of the Commission letter submitted on April 24, 19. The study area was expanded as was recommended and with regards to the signal to signal, the crash analysis findings are under the district average. Between the 2 signals there have been 60 crashes over a 5 year period. This number is above the state average. The original Trip Generation was based upon data from the Institute of Transportation Engineers Trip Generation Manual which is the standard for this type of analysis and was based upon a Super Convenience Market/Gas Station our concern at the time was that it did not capture the co -branding use with the drive thru generating more trips with a coffee use. The additional submission uses the site in Lakeville and I feel that a few more locations would have been beneficial but that being said it probably wouldn't change the bottom line too much. With regards to the operational issues, at the driveway. These analysis tend to be conservative, for a reason, we don't want to induce a hazard. This is definitely a challenging corridor and some of the faults are with the existing roadway but this Petitioner is choosing to locate on this roadway and choosing to locate opposite the Stop & Shop driveway that does have its challenges. Concerns are with the level of service and over capacity, which means the intersection does not have the ability to process all the traffic moving in and out of it. Thus creating a worse situation on the roadway. The rail trail is a feature that attracts people and increases traffic, pedestrian safety is a concern and definitely with the rail trail. Folks will want to cross over and currently there are no dedicated pedestrian facilities. In our original traffic study with regards to a signal this is a challenging area and more analysis would be needed. With regard to Access Management it is recommended the Applicant discuss management techniques to limit the number of conflict points with the construction of two new full access curb cuts on Station Avenue. In conclusion more studies be performed with restricting in and out signs; sidewalks suggested; physical infrastructures such as easement for sidewalk study; 2 curb cuts with traffic light and queuing for drive-thru and vehicles exiting with a co -branded use. Chairman DeYoung inquired if anyone in the audience is in favor of this Petition to come to the microphone. No one appeared. Chairman DeYoung inquired if anyone in the audience is in opposition to come forward. Jamie Veara, Vice -President of Davenport Companies. The Board has in their packet two letters signed by Mr. DeWitt Davenport, Trustee of Davenport Realty, and owner of property that is a party of interest. The multiple Variance requests must meet shape, spoil condition or topographic features that present a hardship. Neither tonight nor the May 9`h submission did the applicant adequately or remotely address that standard. This property is composed of sand, it is flat and the shape is rectangular, not meeting any of the requirements of a Variance. The site is inappropriate. Public portion is closed to the public. Building Commissioner, Mark Grylls, addressed the mixed use or the co -branding question. When I review applications I look at all the uses on the property, the required parking for each of the uses and then makes sure that everything fits in place. They didn't need any additional parking and the most restrictive use is the one they are seeking relief from now. Chairman DeYoung asked Mr. Grylls that he is stating that in his determination the number of businesses that will be located at this location has suitable parking for all 3 business. Mr. Grylls replied 'yes". Chairman DeYoung then asked Mr. Grylls if there is anything that he can think of that may need zoning relief that the Board has not addressed. Mr. Grylls responded that he believes that the Board has covered everything. Kathy Williams, Town Planner, spoke to the difficulty with mixed uses with commercial uses on one property and also meeting all of the dimensional requirements. This keeps a development site reasonable compared to buffers and setbacks. They are asking for a lot of Variances with regard to those dimensional standards. I believe meeting the criteria for all those Variances is going to be a little bit difficult on this site for many of the reasons that Mr. Veara mentioned. I feel it is a heavy use on a heavily congested road versus something that is not so quite intense. Special Permit criteria for the Service Station gets right back to nuisance and congestion. Unfortunately the last person in, this is the last piece of property available, has to deal with all the issues and congestion that has come before it. As for the rail trail, there are 90 spaces there and will bring more traffic related to that area. Attorney Singer spoke stating that he disagreed with Mr. Veara's analysis that there are no shape, topography issues. There is a topography issue with the area and the 3 businesses versus 2. Chairman DeYoung replied that he is satisfied that Mr. Grylls feels the parking has been met based on 3 business, he is satisfied. Attorney Singer responded that if you are satisfied, so am I. Mr. Martin raised a question regarding the purchase of land for septic. Mr. Singer responded that the project is unfeasible without it. Mr. Baron informed everyone that he is a member of that committee and the committee will be meeting in the next 2 weeks. Mr. Delli Carpini addressed the Board stating that they are good stewards for the towns and cities that we are in in Rhode Island. We have a lot of properties that are smaller than this property. We have spoken about intersections, signal lights, and if we have the ability to have a signal light we would love too. Concerns about other coffee shops in town and hope the Board looks at this as a cumulative application and what it will affect the surrounding properties. We heard what the Board asked for at the meeting and being able to eliminate the service repairs at these other facilities was not easy. We fought for it and we got it. Were eliminating all the tanks, consolidating here, I believe the project will be good for Yarmouth. We are trying to accommodate as much as possible here. Chairman DeYoung replied that he appreciated Mr. Delli Carpini's sincerity but the Town needs to live with this project long after you may be in charge of the company. We are going to get it right or we are not going to do it. We have a mandate by law and that law is the law applicable to Variances and Special Permits. Even though something might feel good and look good we don't have the right to deviate from that law. If we do, than someone impacted by our decision appeals it and is successful on appeal if we do not apply the right law to the application of the facts in this case. Our role is to protect the Town. Mr. Igoe directed questions regarding the curb cuts, the suggestion of "in and out' signs to Mr. Delli Carpini. Mr. Delli Carpini made a suggestion that if we had full access, we re-evaluate in 12 months and make adjustments if needed then. As for the canopy it is a specific Shell design and I am held to this and many other features that cannot be deviated with new construction. Both the Shell and Sunoco will be decommissioned within 48 months if the Petition is approved. Mr. Nickinello observed that you want to get closer to exit 8. Mr. Delli Carpini explained that the former Shell station could not accommodate what is planned with this project. This is a new facility that is designed to fit the needs of what people want today. Discussion continued and Mr. Nickinello expressed his feeling that the business you want is on an undersized lot. Mr. Baron agreed that the project is large and the site undersized and more traffic studies are needed. Mr. Neitz felt that the Town would get a significant benefit with the decommissioning of the two stations in the APD. Mr. Singer asked the Board to look at this holistically and all the properties involved. Chairman DeYoung polled the Board asking if they are prepared to make a decision this evening. The response was negative. Chairman DeYoung suggested that canopy be looked at again, determination of optimum traffic flow and how each Variance request will meet the criteria. Mr. Igoe concurred and suggested streamlining the Variances and noted the traffic is a big concern for him. The Board asked the Petitioner to come back and tell them what the traffic flow is in their other businesses. The Board in general felt that the closing of 2 stations was significant and beneficial to the APD. In conclusion the Board suggested that the Petitioner review: 1) reduction of Variance relief; 2) canopy; 3) traffic. Motion was made by Mr. Nickinello seconded by Mr. Neitz to allow a continuance to August S, 2019. Motion carries unanimously. X YARMOUTH BOARD OF APPEALS MINUTES AUGUST 8, 2019 MEMBERS SITTING AND VOTING: Steven DeYoung, Chairman, Sean Igoe, Dick Martin, Thomas Nickinello, Richard Neitz and Tom Baron, Alternate. PETITION 44816: Kings Way Trust, 64 Kings Circuit, YarmouthPort, NIA. Map & lot#: 0142.12 & 0142.13; Zoning District: R-40. The applicant seeks a Special Permit under §104.3.2(3) & (4) to construct a new stainless steel walk-in cooler to be attached to the club house and restaurant on the northerly portion of the property, or in the alternative a Variance from §203.5 for 3 foot encroachment into front setback, or a Variance from §202.5 for expansion of eating and drinking establishment use. This application also seeks modifications of all prior decisions regarding the development of Kings Way. a condominium. Presenting the Petition was Attorney Paul Tardif; Todd Cantara and the Chairman of the Board of Directors of the Kings Way Trust. Attorney Tardif gave a history of the development and a review of the past decisions. The restaurant has a walk-in cooler in the basement which requires all deliveries to be brought down a long set of stairs. The plan is to construct a door that access the cooler and eliminates the up and down stairs. The cooler is 12 x 17 feet and sits on a pad. If permitted the cooler will encroach about 3 '/2 feet into the front yard setback. The property that the restaurant is cited is approximately 8.3 acres. The project has been approved by the Old Kings llighway and will be screened and if additional screening is needed it A111 be added. The cooler was purchased and after it was realized that it needed relief. The hardship would be owing to the structure. it -,gill not cause any detriment. No one was in the audience either in favor or auainst. Board discussion: The Board all agreed that this is an innocuous request, the cooler will make the situation more convenient and the screening will make it disappear. Mr. Igoe make a Motion to approve the Special Permit under 104.3.2 (3) & (4) for the expansion of the use. Mr. Nickinello seconded. Motion carries unanimously. Minutes approved in Open Session 12/12/19. Motion by Tom Nickinello, seconded by Dick Martin. Motion carries unanimously. Continued from April 11 (never opened); May 91h and June 27 h: PETITION 44801: Colbea Enterprises, LLC, 2050 Plainville Pike, Cranston, R.I. Property location: 473, 479 and 487 (portion) Station Avenue, South Yarmouth. Map & lot#: 0097.1; 0097.2 & 0097.3 (portion); Zoning District: B I; APD & ROAD. The applicant is seeking Special Permits and Variances to develop the land at the above addresses for use as a Shell fuel service station and convenience store with co -brand business. Relief is requested under and from, respectively, §202.5 footnote J, §301.4.1 - §301.4.10; §301.8, §301.9 and §303 as necessary, for use in the B1 Zoning District and APD and various dimensional setback and design, parking, drive-thru, landscaping, lighting, and sign provisions, per the submitted plans and materials. PETITION #4802: Colbea Enterprises, LLC, 2050 Plainville Pike, Cranston, R.I. Property location: a portion of 487 Station Avenue, South Yarmouth. Map & lot#: 0097.3 (portion); Zoning District: Bl; APD & ROAD. Companion application with Petition #4801 to amend Decisions 43453 and #3505 or in the alternative, new Variance relief under and from §203.5 and §301.4.1 as necessary to divide off 7.305 +/- sq. ft. of land at the rear of the lot. The proposal will not create any new non -conformities or impact the existing site development. Attorney Singer present along with Randy Hart, and Mr. Delli Carpini, addressed the Board. Mr. Singer handed out a colored APD Improvement Plan marked as Exhibit 5; the second was a google earth image from Whites Path to Old Townhouse and marked as Exhibit 5. A submittal submission was proved and Mr. Hart will go over the transportation changes. Mr. Singer reviewed the proposal that involves re -developing 473 and 479 Station Avenue. The sites will be closed, decommissioned and deed restricted against future fuel operations. An agreement has been entered to phase out and relinquish hazardous uses and materials at both of these sites as part of this proposal. Neither of these sites are able to be upgraded given their historical development. The Board has asked for several items at these sites, and we are in the process of meeting those requests with all tanks removed, car service discontinued and the Shell property cleaned up and pending approval from this Board, within 48 months re -development of the two sites. The curb cuts have been re considered and on the new plan the south stays the same, the north has shifted to the north end of the property and made into a right in, right out which improves circulation and alieves any issues with the drive thru. Four on site trees have been proposed and we do not need relief for this. The canopy style has been changed and can be viewed on sheet SG2. We are proposing a reduction in sign Variances and one instance using the existing Shell Station sign be removed and replaced with a conforming sign and a new free standing as proposed on the plan. Mr. Hart has reached out to DOT several times regarding the rear of the bike trail and has not received a response back. At this time Mr. Singer reviewed the court cases that had been submitted to the Board, the merits of this proposal that for balance the merits vs the detriments. As has been discussed the traffic is the detriment but Mr. Singer pointed out that every business on this stretch of road is faced with a failing left turn situation. Mr. Singer reiterated that this proposal meets the standards and is worthy of approval. Mr. Randy Hart addressed the Board in review of his Memo dated July 18, 2019 that reviewed Alternatives 1-4. Alternative 4 is the one that we feel is the better alternative and Mr. Hart expanded on this option in his discussion. The traffic operations analysis was summarized by Mr. Hart and these operations are on the conservative side. Mr. Hart mentioned that the rail trail has 90 parking spaces and the level of service for this site, the rail trail, will operate in the summer at peak times as our proposed site will. Mr. Neitz felt overall the benefits get better and better with protection to our APD with 2 sites being decommissioned. The Dennis site did not have the physical ability to have a drive thru. The question was asked if the drive thru and coffee business were eliminated can you proceed without it? Mr. Delli Carpini stated it is integral for it to proceed. Mr. Neitz made comparison of the Dunkin Donuts on Station Ave that creates on a Saturday in the summer many vehicles at this site and it could not happen at this new site. Mr. Hart did observations in another Seasons and studied the peak time and capacity of cars that were similar as to Station Avenue_ Mr. Martin was pleased to see changes made and effort to come into compliance where possible. His feelings remain that this is a project on a site that is asking for a lot on too little of a property. Looking over the Variances, some could conform, appears two of the 10 foot buffers have been compromised, hip roof on the canopy an improvement but the yellow strip is not within keeping. The curb cuts remain a problem and he prefers to see signalization. Mr. Igoe asked for an explanation on how this right turn only is going to be constructed. Mr. Micale, walked the Board through the process of how this will work. Mr. Singer addressed the question of the other two stations, they will be shut down when this site opens up, gas will be taken out, and everything out of the ground will be Phase 1. Auto repair will be eliminated in no more than 48 months after the new site opens. The Sunoco station the gas operation would end at the same time, the owner would continue the business that is there and within 48 months would phase out all non- conforming use as well. All underground tanks come out when the fuel comes out in Phase 1. On the Sunoco property we have an agreement with the owner on the closing procedure. Discussion between Mr. Igoe and Mr. Singer regarding the possibility of expanding Station Avenue if there was still land within the layout continued. Ms. Williams, Town Planner, spoke in regards to the expansion of Station Avenue, that there is about 5 feet on either side which is typically saved for a sidewalk within the right of way so to try and expand that for a right of way would eliminate any sidewalks in the future. 4 Mr. Delli Carpini addressed the Board regarding the Dunkin Dounts in South Dennis in his store and in another one at the Ring Brothers Plaza is operated by the same person. In our facilities the drive thru is secondary to our operation and with it we have not had any problems. No contracts have been signed with any coffee branch at this time. Chairman DeYoung stated that this is a town wide BI Zoning District for business. Mr. Singer addressing the Chairman's question regarding the legal cases submitted, the cumulative of this project and quest to hear his opinion on topo, soil and the hardship in this situation. Mr. Singer sees this project as a cumulative holistic project. It is this new site, the Shell site and the Sunoco. 40A Section 10 is the Variance provision and mirrors the Town by-law and discusses the need for Variances for land and structures when you can't meet the by-law. Looking at the entire project there are various hardships that occur and are met. Specifically, the largest one is the fact you have the historical development of the structures and uses in tanks and pumps and buildings of the two existing gas stations located within the APD. What is unique here is the overlay district and before it went into effect, the Shell and the Sunoco existed. These are all preexisting conditions that 1 submit are part of structures and the soil conditions and topography are the fact that you have the natural water formulations in this area. Two of the sites have already been in the APD and are preexisting nonconforming uses in the APD. The Shell and the Sunoco cannot be upgraded in the same way. They are too small or the shape is unusual. This an innovative proposal, we are asking you for something that you haven't seen before. We are trying to make an area wide improvement and the reason that these are all connected together gets to hardship. The hardship owning to the fact that you have it in the APD you have it in the existing structures, land forms and improvements, the gas stations can stay. This project needing relief moves it. All together this project with all three sites meets the statutory criteria and justifies the hardship. Two of the cases that I submitted talk about economic unfeasibility. We are reducing a threat of harm or a future threat as part of the hardship. Chairman DeYoung felt that reducing the risk in the APD of all three sites is a plus plus along with the improvement to the APD. The Board members expressed the concerns they have with the project, some with the circulation pattern, some that felt it was not a structure that is Cape Cod like. The biorention question raised by Mr. Baron was addressed by Mr. Singer in his understanding with the Building Commissioner as long as the edges of the drainage swale are planted it conforms to the by-law and it does. Mr. Singer addressed the land acquisition question. There have been talks and the meeting will be held in the next few weeks. Town staff has been working on this. Mr. Micale addressed the question of the circulation issue. Colleen Medeiros, Transportation Engineer with Cape Cod Commission, addressed the Board in summarizing her e-mail submitted August 2, 2019 in response to the Access Alternative Analysis Memorandum dated July 18, 2019 prepared by VHB, regarding the proposed Seasons Corner Market. Cape Cod Commission Transportation Staff reviewed the memorandum and met with VHB to discuss their Access Alternative Analysis traffic memorandum on July 25, 2019. In our professional opinion, the additional access alternatives do not fully mitigate the traffic congestion and safety concerns along Station Avenue associated with this intensive use. Based on our review, Alternatives 3 and 4 provide improved operations over two full access driveways and seek to minimize impacts by reducing the number of conflict points along this busy corridor. However, we found that even under AIternatives 3 and 4 there are still potential congestion and safety issues that will result from a facility with a convenience store, coffee co -brand with drive- thru and a 12 position fueling facility on this roadway. We also found that the volume to capacity ratio the southern driveway will operate over capacity once this store opens and that is not acceptable. Ms. Medeiros wanted it on the record that the Cape Cod Commission did not design the bike path or parking lot, they were involved in funding but not the designing. Chairman DeYoung read into the minutes the letter from Dr. Warren Woods dated August 2, 2019, Dr. Woods is not in favor of the Petition, Attorney Rob Chamberlain, with a practice in Yarmouth and resides in Dennis. He is present representing the Luby's a proponent and he also happens to be the landlord in Dennis where Colbea is now operating. Attorney Chamberlain spoke praises of the Applicant who runs a triple A operation. He went on to give some history of the Dennis site and even though it doesn't have a drive thru it is busy and has had no issues. Traffic is a problem but everyone who is there contributed to it. This is an excellent proposal, Yarmouth could do a lot worse, and we are proponents of the proj ect. Mr. Nickinello asked Mr. Chamberlain if in Dennis the site was in an Aquifer District. The response was no, but it's not in an overlay district, same issues apply. Chairman DeYoung opened the meeting to anyone present in opposition to the Petition? Jamie Viera, Vice President of the Davenport Companies, South Yarmouth and a party of interest given ownership on Workshop Drive. Mr. Viera mentioned the Variance criteria at the last meeting and the applicant's failure to meet that at the time and the homework assignment that the Board gave the applicant at that time. Having reviewed Mr. Singers Memorandum, on page 3, sentence begins with the "the Board's review is not based on the application of the criteria discreetly" to each aspect of the proposal. Meaning we are not looking at just this particular parcel but collectively to all the land and structures in the proposal. The proposal represents one overall holistic redevelopment. And in response to the chairman's question, we heard again that this was a holistic project. The problem with that is I don't think we can look at this as a holistic project or a global project. The source of this belief comes from your by-law section 102.2,2 is the power of the Board. The Board has the power to hear and decide appeals or petitions for variances from the terms of this bylaw, including variances for use, with respect to particular land and structures. I looked up in the dictionary the word "particular" and it says, "of relating to or being a single person or thing." It means the power to grant a Variance with respect to a singular piece of land. Meaning the soil condition on one piece of land in Yarmouth should have no bearing or soil condition on another piece of land in Yarmouth. For this particular piece of land we have not heard a singular reason to justify Variance criteria for relief. Instead we heard about the inability to upgrade two other pieces of property. The fact that these other pieces of property cannot be upgraded what bearing does that have on the inability to meet front setback for this property. What is it about those two properties that allows you to deviate from the front setback? Nothing, it is not a shape factor, not a soil factor, not a topography factor for this lot. The use is in direct contradiction from what the APD allows. They don't have a unique circumstance to allow them to deviate. What is the hardship? This is a B 1 Zoning District that could have something that conforms on it. I would urge you to look at the factors as they relate to this property, and when those things are done, it can't pass. Mr. Singer responded to Mr. Viera's comments that if we are going by the zoning by-law I believe that this proposal is authorizable by Variances and you considering them for the multiple parcels. Referring to by-law 102.2.2 Mr. Viera states your powers refer to land and structures. Land is both singular and plural and structures is plural. No contradiction, there are no cases that say you can't do that. I believe that you can review it as a cumulative holistic proposal that we have before you. Looking at the sites out there you have buildings that violate setbacks, you have parking that violates setbacks. This new site has much more conformance than the old sites. If you look at the full in and out curb cuts, where the buildings are and the asphalt I respectably submit that this is an improvement. You're always going to need gas stations in this area, peer reviews were done and everyone that has looked at this new site believes it will improve. It will improve the water quality, having less asphalt on the Shell site all factors protect water. If this project does not happen.. all the agreements with Sunoco are gone, the ability to deed restrict the property the ability to get rid of the car sales, the ability to get rid of the car repair, the ability to get rid of the gas station will all be gone. We ask you to consider that this project is the best, wonderful and unexpected ability to take 3 properties and improve and protect the APD and that is the goal. Board discussion: Chairman DeYoung addressed the Board asking, "do we have the powers"? Yes, we do and the right to think of this as a global matter. Our charge is to protect the APD. The specifics of this case are spelt out on the Zoning Analysis Revised 8/1/19 sheet. The Board went through each one of the Zoning Relief Required and made comment on each Special Permit and Variance, Dimensional Variances and Signs. The Board found, that the land and structures involved are impacted by the unique soil conditions of the Aquifer Protection District in that the two existing gas stations are pre-existing nonconforming uses and the relocated site is the last vacant site in this B1 and APD area and that the pre-existing nonconforming structures and site developments, including underground storage tanks and multiple full in and out curb cuts on multiple roads, are unique improvements and circumstances in the APD such that it is economically and practically infeasible to achieve the improvement to the environment and the reduction in the threat of harm to the ground water absent the Variance relief to construct the proposal as designed on the relocated site in the APD and this creates a substantial financial and practical hardship justifying the requested Variance relief. It is important to note that two old, active and non -conforming fuel stations within the same B1 zone and APD will be consolidated into this new proposed location such that it is economically and practically infeasible to build this fuel station absent the Variance relief. Moreover. this proposed project has been designed to ensure optimal safety for the fuel station. As a result, absent the requested Variance relief, the fuel station would not represent the optimal safety standards for a fuel station. Moreover, the Applicant has redesigned the proposal with the input of Town officials and agencies in order to optimize the safety of the Property. Noted are the comments made by the Building Commissioner, Mark Grylls, in assisting the Board regarding the bio-retention basin is a structure and needs to have a 10 foot buffer around the perimeter just like any other buffer on the property and should have plantings added around the retention basin. Also, a canopy is a structure.. there are canopy's around town that have signs and the by-law remains silent on canopies. The Board tools the following votes on the Proposal: Special Permit for H6 and H 10 use of the Pro e . Sean Igoe made a motion, seconded by Richard Neitz, and voted five (5) in favor and zero (0) opposed to grant the requested Special Permit for use based on the above Findings and submitted plans and further that the proposed development will not create any undue nuisance, hazard or congestion and that there will be no substantial harm to the established or future character of the neighborhood or Town and that the additional requirements set forth in Sections 406.5.3 and 406.5.5 of the Zoning By -Law, including without limitation that the control measures proposed have given due consideration to the simplicity, eligibility and feasibility of implementation and maintenance and to protective measures to reduce the potential threat to water quality should any of these measures unexpectedly fail, have been met and upon the following conditions: A. All nonconforming uses at 446 Station Avenue shall cease within fourteen (14) days after the new site opens for business and the underground storage tanks shall be removed from 446 Station Avenue and the site upgrades as per the reviewed Sketch Plan shall be implemented no later than nine (9) months after the new site opens for business; B. The nonconforming fuel service use at 433 Station Avenue shall cease within fourteen (14) days after the new site opens for business and the underground storage tanks shall be removed from 433 Station no later than nine (9) months after the new site opens for business and all remaining nonconforming use of 433 Station Avenue shall cease no later than forty-eight (48) months from the date when this Decision is final; C. Deed restrictions shall be recorded on the chains of title for both 433 Station Avenue and 446 Station Avenue restricting each property from future nonconforming uses within the APD and copies of such Deed Restrictions as recorded shall be returned to the Board of Appeals Such deed restrictions shall incorporate the time lines for discontinuance of such uses as set forth in Paragraphs A and B above; D. The Petitioner agrees to grant to the Town of Yarmouth in the future a five (5) foot wide easement along the Property frontage in order to allow for a sidewalk to be installed should the Town so seek at that time; and E. The Petitioner shall complete the nitrogen aggregation process to deed restrict off -site open space land for purposes of credit to the Property prior to the new site opening for business. F. The Petitioner shal I comply with all requirements of the Board of Health. Variance for H6 use of the Property. Sean Igoe made a motion, seconded by Richard Neitz, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for use (fuel service only without vehicle service nor (vehicle washing) based on the above Findings and the submitted plans and further that the hardship is based on the soil conditions and topography of the land and the structui,es as discussed above and that the intent of the APD By -Law will be met to protect the groundwater and that there will be no harm to the public good and upon the same conditions set forth in the Special Permit vote above plus the following additional conditions: A. No hazardous products purchased inside the building at the Property shall be used or added on or to a vehicle when the vehicle is located on the Property; B. The only products allowed to be added into a vehicle at the Property shall be gas and diesel fuel dispensed from the on -site dispensers; C. The Board of Health will verify that the design is in accordance with all Massachusetts Stormwater Standards; D. The developer shall retain a third -party engineer/LSP to provide certification that the project was constructed and installed as designed and passed all start up and commissioning tests to verify proper operation; E. The facility is required to submit a third -party compliance inspection to the MassDEP every three years, and the facility shall provide a copy of this report concurrently to the Board of Health and Water Department; and F. The proposed new underground storage tanks shall have a 30-year service life. Variance for canopy front setback. Sean Igoe made a motion, seconded by Richard Neitz, and voted four (4) in favor and one (1) (Martin) opposed to grant the requested Variance for the canopy front setback with the mansard design and colors as shown on the revised architectural plans based on the above Findings and further in accordance with the prior votes of the Board herein with no additional conditions; Variance _for parking in front of the buildino. Sean Igoe made a motion, seconded by Richard Neitz, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for parking in front of the building based on the above Findings and submitted plans and further in accordance with the prior votes of the Board herein with no additional conditions; Variance for curb cut radius. Sean Igoe made a motion, seconded by Dick Martin, and voted live (5) in favor and zero (0) opposed to grant the requested Variance for the curb cut radius based on the above Findings and submitted plans and further in accordance with the prior votes of the Board herein with no additional conditions; Variance for centerlines of driveways. Sean Igoe made a motion, seconded by Richard Neitz, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for the centerlines of driveways based on the above Findings and submitted plans and further in accordance with the prior votes of the Board herein with no additional conditions Variance for plant species. Sean Igoe made a motion, seconded by Dick Martin, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for the plant species as shown on the revised landscape plan based upon the above Findings and further in accordance with the prior votes of the Board herein with the following additional condition: A. Buffer trees shall be maintained or planted as required along the edges of the bio-retention basins where the same abut the Property lines; 8. Variance for front buffer tree spacing and in -lot trees. Sean Igoe made a motion, seconded by Dick Martin, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for the front buffer tree spacing and the number of in -lot trees as shown on the revised landscape plan, including reference to the utility poles and their respective guy wires, based upon the above Findings and further in accordance with the prior votes of the Board herein with the following additional condition: A. A new island with one in -lot tree shall be planted in the middle of the row of parking behind the new building; Variance for perimeter and driveway photometrics. Sean Igoe made a motion, seconded by Richard Neitz, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for the photometrics as shown on the revised lighting plan based on the above Findings and further in accordance with the prior votes of the Board herein with no additional. conditions; 10. Variance for directional signs. Sean Igoe made a motion, seconded by Dick Martin, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for directional signage as shown on the revised plans based upon the above Findings and further in accordance with the prior votes of the Board herein with the following additional condition: A. An additional Do Not Enter sign shall be installed at the exit driveway of the northerly right -in, right -out curb cut; and 1 1. Variance for freestanding monument sign and attached signs. After further discussion with the Board, the Applicant requested and the Board voted five (5) in favor and zero (0) opposed, upon a motion by Sean Igoe, seconded by Richard Neitz, to grant the Applicant's request to withdraw without prejudice the request for additional sign variance relief as follows: Section 303.5.4.1 — freestanding sign (face area square footage), and Section 303.5.5.2 (attached signs -- height and number). RECEIVE ° Clark, Sandi 'CIA E-MAIL From: Colleen Medeiros <colleen.medeiros@capecodcommission.org> Sent: Friday, August 2, 2019 9:48 AM To: Williams, Kathleen Cc: Steven Tupper; Clark, Sandi Subject: Seasons Gas - CCC Traffic Follow Up Attention! This email originates outside of the organization. Do not open attachments or click links unless you are sure this email is from a known sender and you know the content is safe. Call the sender to verify if unsure. Otherwise delete this email. Good Morning Kathy, This email serves to provide a follow-up in response to the Access Alternatives Analysis memorandum dated July 18, 2019, prepared by VHB, regarding the proposed Seasons Corner Market on Station Avenue in Yarmouth. Cape Cod Commission (CCC) Transportation Staff reviewed the memorandum and met with VHB to discuss their Access Alternatives Analysis traffic memorandum on July 25, 2019. In our professional opinion, the additional access alternatives do not fully mitigate the traffic congestion and safety concerns along Station Avenue associated with this intensive use. Based on our review, Alternative 3 and 4 provide improved operations over two full access driveways and seek to minimize impacts by reducing the number of conflict points along this busy corridor. However, we found that even under Alternatives 3 and 4 there are still potential congestion and safety issues that will result from a facility with a convenience store, coffee co -brand with drive-thru and a 12-position fueling facility on this roadway. Please find a summary of our review for each alternative below: Alternative 1—Signalized Northern Driveway Alternative 1 includes signalizing the intersection of Station Avenue and the Stop and Shop driveway/Proposed Seasons northern driveway. According to VHB, this alternative was not advanced for further consideration due to the projected queueing on Station Avenue. However, it appears that the traffic signal analysis did not include any assumptions for necessary roadway improvements or reconfiguration, which would likely be required in order to provide adequate traffic operations with a traffic signal at this location. Overall, CCC Transportation Staff have concerns with the traffic signal alternative as it may result in a negative impact to operations for the entire corridor. A further in-depth look of the entire corridor and coordination with the Town and the Stop and Shop property owners would likely be required before considering a traffic signal alternative at this location. Alternative 2 — Right-In/Right-Out Alternative 2 would restrict left turns out of the northern site driveway while the southern driveway would restrict all left turns. CCC Transportation Staff is in agreement with VHB to not advance this alternative as exiting left turns would not result in a functional site. All drivers intending to exit left but forced to exit right due to restricted exits would create an unsafe condition where vehicles may make illegal movements trying to reverse direction on Station Avenue. Alternative 3 — North Driveway Enter Only, South Driveway Exit -Only Alternative 3 proposes to have the site operate under a one-way circulation with the northern driveway restricted to entering vehicles only and the southern driveway restricted to exiting vehicles only. This alternative does achieve a reduced number of conflict points along the corridor with this access management technique. In addition, the traffic operations analysis does result in an improvement with the proposed driveways expected to operate under capacity (volume to capacity ratio <1.0). CCC Transportation Staff sees potential merit with this alternative as all site traffic would be processed during the peak hours, however, the proposed southern exit -only driveway would still operate at a LOS F with delays ranging from one to two minutes. This configuration still results in congestion and safety issues and creates a failing roadway intersection. If this alternative was advanced for further consideration, CCC Transportation Staff recommends that the site be redesigned to realign the gas pumps and the parking spaces in a diagonal layout to enforce the one-way circulation so it is more intuitive to customers and discourages wrong -way traffic. Alternative 4 — North Driveway Shifted North and Right-] nRi ht-Out Alternative 4 shifts the northern site driveway northerly and would no longer intersect Station Avenue directly across from the Stop and Shop driveway. In addition, the northern site driveway would restrict all left turns, while the southern driveway would provide full access and allow all turning movements. Although the internal site circulation is improved under this scenario to separate driveway traffic from the gas canopy, the traffic operations associated with Alternative 4 still project the southern site driveway to operate at LOS F and over capacity (volume to capacity ratio >1.0) during all three peak hours. As stated in our review memorandum dated April 24, 2019, the proposed site driveways should not be designed to operate over capacity as the site volumes would not be processed during the peak periods which in turn would result in an operational issue and safety hazard. Based on the analysis presented at this time, we do not recommend this as the preferred alternative due to the projected operational and safety issues. We will plan on being in attendance at the continued ZBA hearing on Thursday, August V. Please let us know if you need any additional information. Thanks, Colleen Medeiros, P.E. Transportation Engineer Cape Cod Commission 3225 Main Street I P.O. Box 226 Barnstable, MA 02630 (508) 744-1226 1 www.capecodcommission.org RECEIVE VIA E-MAIL Clark, Sandi From: Warren Woods <windsurf403@gmail.com> Sent: Friday, August 2, 2019 12:59 PM To: Clark, Sandi Subject: Response to Memorandum of Colbea Enterprises, LLC. Attention! This email originates outside of the organization. Do not open attachments or click links unless you are sure this email is from a known sender and you know the content is safe. Call the sender to verify if unsure. Otherwise delete this email. ............................................................................................................................................................................................................................................................................................................................................................................ From: Dr. Warren Woods Date: August 2, 2019 Re: To: Yarmouth Board of Appeals Proposed Seasons Corner Market/Shell Station (Appeals #4801 and #4802) 473, 479 and 487 (portion) Station Avenue, South Yarmouth, MA Dear Board Members: Yesterday, I received a courtesy copy of the SUPPLEMENTAL MEMORANDUM filed by Attorney Andrew Singer on Behalf of his client, Colbea Enterprises, LLC. The following comments are my thoughts concerning the Memorandum. In the Introduction section of the Memorandum, the applicant once again incorporates activities at nearby properties as part of his application forvariances and special permits forthe 473, 479 and 487 parcel he is interested in developing where in fact, what transpires at those other businesses has nothing to do with this application. In the Conclusion section of the document, Mr. Singer describes "...several cases in which the Massachusetts Courts have affirmed the granting of variances (both use and dimensional) when there are specific factors regarding the shape and/or topography of a parcel or parcels of land and the structures thereon which render economically reasonable and practical use of such land or structures infeasible absent the requested variances." Although I am not an attorney, the cases Mr. Singer cited further in the documents do not seem to apply in this instance, particularly since there are no structures on the parcel, the land is flat, and the shape is almost rectangular. The court cases and decisions cited do not seem to apply here although they are interesting. The applicant continues to apply for a variance for a specifically prohibited use on the parcel, specifically the installation of underground fuel storage tanks. There is no legitimate need for the Board to grant a variance for the storage of underground fuel on this site in direct opposition to the zoning laws. The applicant also requests additional relief from the zoning laws because they do not wish to comply with the zoning statues regarding "... the canopy front setback; parking in front of the building; centerline of driveways; plant species; front buffer tree spacing; photometrics; and signage." In my opinion, the applicant still wants to ignore these zoning requirements and develop the property how he desires trampling the specific requirements of the zoning by-laws. To justify their argument that the Board should grant the applicant variances and special permits, the applicant states "...that a literal enforcement of the Zoning By -Law would involve substantial financial or practical hardship to the Petitioner, that the hardship is owing to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affecting such land or structures....." The above statement by Mr. Singer confuses me. Parcels # 473 and 479 are owned by members of the Luby family according to the Barnstable County Registry of Deeds. Parcel # 487 is owned by James Machnik according to the Barnstable County Registry of Deeds. Unless 1 am mistaken, Colbea Enterprises, LLC. does not own the parcels. It is most likely that they have a provision in a Purchase and Sale agreement or an Offer to Purchase document that requires the permits for the proposed gas station/convenience store/restaurant prior to their purchasing of the lots. So, since Colbea Enterprises, LLC. does not own the parcels, 1 fail to see why they are suffering any "hardship". The owners of these parcels can easily and reasonably sell them to another party who will be able to build a structure on the property that is conforming with the Zoning By -Laws of the Town of Yarmouth. They are also obviously suffering no "hardship". Colbea Enterprises, LLC. should locate a parcel of land to develop for their needs that conforms with the local applicable zoning requirements for that lot. Mr. Singer also states "...the proposal will not result in a significant increase in traffic". That statement is based on the data gathered by the applicant's traffic study. Any additional traffic in the area is "significant'. However, the increase in traffic has nothing to do with the increase in traffic congestion that I postulate will be dramatic. The plans submitted with the Memorandum, especially Sheet TP-1A, clearly demonstrate that traffic will back up onto Station Ave. with even minor backups of vehicles and trucks trying to enter the proposed north entrance of the gas station/convenience store. As a consequence, the driveway to my office building will be blocked limiting the access of emergency vehicles into my parking lot. We have multiple ambulance runs to my office each week. Any blockage of my driveway could mean someone might die if an ambulance cannot enter. The admonition of the Board by Mr. Singer to accept the applicant's proposal to combine the removal of the underground tanks from the Shell and Sunoco gas stations as part of this project seems to be an effort to intimidate the Board. His claim that "...in exchange for the relocation a brief distance north along the same street in the same zoning and overlay districts with a new, smaller -capacity, state -of -the —art facility, a facility which is needed in this commercial zone and is authorized by the underlying zoning in the area, is a substantial hardship." I do not know how this is a "substantial hardship". Also, there must have been a change in the Zoning By -Laws last week because as far as I know, underground tanks are still not allowed in the zoning applicable to this site. Finally, I am unaware of a "need" for this facility since at this time, there are multiple gas stations, restaurants and food stores in the area. For the above reasons and the reasons l have previously sent you in letters to the Board, I respectfully request that you deny the applications of Colbea Enterprises, LLC. to build a convenience store/restaurant and gas station on the combined parcels of land. Sincerely, Warren D. Woods, D.M.D. 2 RECEI ' Clark, Sandi From: Warren Woods <windsurf403@gmai1.com> Sent: Friday, June 28, 2019 3:05 PM To: Clark, Sandi; Warren Woods Subject: Re: Proposed Seasons project on Station Ave. Attention! This email originates outside of the organization. Do not open attachments or click links unless you are sure this email is from a known sender and you know the content is safe. Call the sender to verify if unsure. Otherwise delete this email. On Fri, Jun 28, 2019 at 3:01 PM Warren Woods <windsurf403(nLgmail.com> wrote: Hi Sandi: Please send this email to the Board members please. Thanks, Warren Woods p.s. I noted a misspelling and corrected it. Dear Board Members: It was my pleasure to attend last evening's meeting and listen to the discussion concerning the construction of a Seasons convenience store, gas station and coffee/sandwich shop on the vacant land available on Station Ave. The Board is impressive in their professionalism and exercise of due diligence in their review of the proposal. I would like to provide a couple of comments to the Board concerning the topics discussed yesterday. If the requirements for the issuance of variances are according to Mr. Veara's interpretation of the law: that the criteria necessary for the issuance of a variance are related to hardships concerning topography, shape or soil composition, the applicants have clearly not shown any hardship related to those factors so the request for variances should be denied. i It is also important to note that some of data in the traffic report is estimated from an off Cape location that may or may not have a similar traffic pattern to Station Ave. The commuters at a railway station are usually going to work in the morning and home from work in the evening. The daytime traffic at railway stations is likely to be far less than during rush hours. In comparison, the traffic on Station Ave. seems to be heavy all day and very heavy during the rush hours and summer season. More actual vehicle counts would be better to give a more accurate picture of the current and projected traffic vehicular flow. The suggestion of the Cape Cod Commission representative to get traffic studies from multiple locations of Seasons stores makes great sense, particularly if those stores are on Cape or in vacation areas and especially if they had Dunkin Donuts stores inside. This study would help give a better picture of possible traffic flow and potential increase in congestion on Station Ave. The Town Planner also seemed to agree with the Cape Cod Commission that the development of this project would lead to significantly increased traffic congestion on Station Ave. There was some discussion of the location of curb cuts and new traffic signals to control the traffic exiting and entering the proposed business. In my opinion, an additional set of traffic signals would allow easier access and egress to the Seasons store and Stop and Shop Plaza but would severely hamper the flow of traffic on Station Ave. The signal would need to be coordinated with those already existing. I can envision the stacking of cars attempting to purchase products through the drive through window of the Dunkin Donuts extending onto Station Ave. at times and because of a red signal, having southerly proceeding traffic blocked causing a dramatic blockage of traffic through the White's Path signal that could extend to the off ramp of exit S at certain times of the day. The representative from the Cape Cod Commission made a statement that if traffic from the Seasons building was stacking up on Station Ave. an accommodation would have to be made. However, he did not define what that accommodation would be. I am curious about it because there is no room on the site to add any more lanes for vehicles to remain stacked. There will be more than ten cars in the line of cars waiting for the drive up window service some days, if a Dunkin Donuts franchise installs a store in the building (if the Dunkin Donuts stores in other locations are any indication). If those vehicles extend onto Station Ave, they will block access and egress by the vehicles entering or already in the store parking lot or gas pumps causing an unsafe situation. The backup will extend at least to White's Path and block our driveway. I have observed vehicles exiting from the highway off ramp and proceeding southerly on Station Ave. at a high rate of speed through the intersection of White's Path when the signal is green. These cars then tend to brake hard beginning in front of Today Real Estate as they need to slow down and stop for traffic turning into the CVS/Wendy's driveway. If you have the time, please observe this activity and you will be shocked at how fast cars need to stop in that location. If a Seasons store was located between Today Real Estate and the CVS/Wendy's driveway, these speeding vehicles would need to slam their brakes on in front of my building and stack up preventing access to my driveway. The Town of Yarmouth Police Department should be asked to provide input about the above at the next meeting. Beyond the traffic issue, the excessive nitrate loading of the septic system needs to be accommodated. The suggestion by the applicant to pay the town to preserve town owned vacant land from development might be Warren D. Woods, D.M.D. Clark, Sandi From: Greene, Karen Sent: Thursday, June 27, 2019 2:23 PM To: Clark, Sandi Cc: Williams, Kathleen Subject: land disposition process HI Sandi I wanted to keep you in the loop regarding the Town's land disposition committee review of properties requested for use in a Nitrogen Aggregation Plan for the Seasons gas station. As you know, they've submitted an application for review of three town owned parcels. Once reviewed by a staff committee, the requests will be passed along to Land Disposition Committee for their review and recommendation (which would be made to the Board of Selectmen). would expect this Committee would be convened a month from now. Please let me know if you have any questions. I snared this information with Attorney Singer who stopped by the office yesterday. Thanks, Karen Karen M. Greene, Director of Community Development Town of Yarmouth k reene armouth.ma.us 503-398-2231 x1278 Estabrished 1956 20 NORTH MAIN STREET SOUTH YARMOUTH, MA 02664-3143 TEL: 508-398-2293 • 800-822-3422 • FAX: 508-394-6765 June 26, 2019 www.thedavenportcompanies.com Board of Appeals 1146 Route 28 So. Yarmouth, MA 02664-0836 Re: Petition #4801 and #4802 Dear Members of the Board: RECEIVED EiLiv 262019 YARMOUTH 130ARD OF APPEALS Having heard the Applicant's May 9t' presentation, as well as reviewing the supplemental materials submitted, I'm writing to set out several points in furtherance of my opposition letter of April 3, 2019. 1. The Applicant provided no facts to support the numerous variances sought. There are no shape nor topographic issues and they acknowledged the site consists of sand -hardly a hardship soil condition. As the Board knows, the power to vary zoning provisions must be sparingly exercised and only in rare instances and under exceptional circumstances. Self -characterizing a proposal as "unique" and "Innovative" is no substitute for the required standard which the Applicant falls well short of meeting; 2. On page 14 of the Applicant's updated June 6, 2019 traffic study Table 9 sets out Intersection Capacity Analysis, and for the 18 Level of Service scenarios, 9 of them (50%) operate at level F. Eight of the nine have average total delay in seconds per vehicle in excess of two minutes. Such delay will result in on and off -site back-ups and high potential for accidents as frustrated motorists will "force gaps." The Cape Cod Commission's Traffic Study Peer Review found such conditions "unacceptable" resulting "in a safety hazard." This certainly does not promote health, safety and/or convenience; In reviewing the site plan, it appears that deliveries will only be made on the right/north side of the building. Presumably, delivery vehicles will utilize the "Loading Area." When parked there, circulation around the building will be blocked for vehicles, including Emergency vehicles. Plus, the delivery person will need to pass through cars in the queue creating conflict, hazard and more delay; 4. Finally, the best solution for underground fuel storage in the APD is not to introduce 40,000 gallons, but instead to upgrade the existing tanks at both the Shell and Sunoco sites. The project is inappropriate for the site. The application should be denied. (;c,e ely, tt P. Davenport, Trustee nport Realty Trust Affiliates: All Cape Self Storage • Blue Rock Golf Resort • Cape Cod Fence Co. • Davenport Building Co. Kingsbury Aviation • Kingsbury Management Co. • Red Jacket Resorts • Thirwood Place Senior Living • The Shops at Yarmouth Crossing Clark, Sandi From: Williams, Kathleen Sent: Tuesday, May 7, 2019 1:32 PM To: 'Andrew Singer; 'Steven Tupper' Cc: Clark, Sandi; 'Colleen Medeiros' Subject: RE: Season's Corner Market -Shell Station, Station Avenue, SY Hi Andrew, Let's plan on having the Cape Cod Commission staff available on June 1311 for all the reasons noted in our e-mails. I will let the ZBA know. Thanks, Kathy Kathy Williams, PE Yarmouth Town Planner 1146 Route 28 South Yarmouth, MA 02664-4492 (508) 398-2231 Ext 1276 kwilliamskyarmouth.ma.us From: Andrew Singer [mailto:ALSinger@singer-law.com] Sent: Tuesday, May 7, 2019 12:28 PM To:'Steven Tupper'<stupper@capecodcommission.org>; Williams, Kathleen <kwilliams@yarmouth.ma.us> Cc: Clark, Sandi <SClark@yarmouth.ma.us>;'Colleen Medeiros' <colleen.medeiros@capecodcommission.org> Subject: RE: Season's Corner Market -Shell Station, Station Avenue, SY Good Afternoon, I just found out that Randy Hart cannot attend this Thursday because of a need to attend a funeral. There may or may not be someone filling in for him at the first hearing. We will plan to discuss traffic in depth at the continued meeting. Thank you. Andrew From: Steven Tupper <stu er ca ecodcommission.or > Sent: Tuesday, May 7, 2019 12:15 PM To: Andrew Singer <ALSinger@singer-law.com>;'Williams, Kathleen' <kwilliams yarmouth.ma.us> Cc: 'Clark, Sandi' <SClark@yarmouth.ma.us>; Colleen Medeiros <colleen.medeiros@capeecodcommission.org> Subject: RE: Season's Corner Market -Shell Station, Station Avenue, SY Kathy, Cape Cod Commission staff are available and will plan to attend the meeting on June 13tn Please let me know if you would like Commission staff to attend the meeting on May 9th as well. Thanks, Steve Steven Tupper Transportation Program Manager Cape Cod Commission From: Andrew Singer <ALSinger@singe r-law.com> Sent: Monday, May 6, 2019 3:00 PM To:'Williams, Kathleen' <kwilliams@yarmouth.ma. us> Cc: 'Clark, Sandi' <SClark@yarmouth.ma.us>; Steven Tupper <stupper@capecodcommission.org> Subject: RE: Season's Corner Market -Shell Station, Station Avenue, SY HI Kathy, Randy Hart will be at the meeting this week, but the new information will not be ready. He anticipates having it ready in advance of the June 131h meeting so that he can coordinate with Steve ahead of time. Our goal for this week is to discuss and seek input from the Board on the overall proposal and matters connected with the relief sought, including any additional questions on traffic and other items. We will then prepare responses before the continued meeting. Thank you. Andrew From: Williams, Kathleen <kwiiliams@yarmouth.ma.us> Sent: Monday, May 6, 2019 2:07 PM To: 'Andrew Singer' <ALSinger@singer-law.com> Cc: Clark, Sandi <SClark@yarmouth.ma.us>; Steven Tupper (stu er ca ecodcommission.or J <stupperCc@capecodcommission.or > Subject: Season's Corner Market -Shell Station, Station Avenue, SY Hi Andrew, If you are going to request a continuation at the end of the May 9th Public Hearing to June 131n, and you will have no new traffic information to present on May 9th, then 1 would agree it would make better use of Steve Tupper's time to come to the meeting on June 13' after he has had a chance to review any supplemental information presented by VHB. Steve — would you or other Commission Staff be able to attend a meeting on June 13tn. Thanks, Kathy Kathy Williams, PE Yarmouth Town Planner 1146 Route 28 South Yarmouth, MA 02664-4492 (508) 398-2231 Ext 1276 kwilliams armouth.ma.us From: Andrew Singer [m_ailto:ALSinger@singer-law.com] Sent: Monday, May 6, 2019 2:00 PM To: Williams, Kathleen <kwilliams@varmouth.ma.us> Subject: Season's Corner Market -Shell Station, Station Avenue, SY Hi Kathy, We are getting ready to open the hearing before the ZBA this Thursday on the above proposal. As you probably are aware, Randy Hart of VHB is working on additional research, etc. as suggested by Steve Tupper in his peer review letter. This will not be completed by this week, so I anticipate being continued at the end of the night to a future meeting. Because of this and because Randy normally works with Steve before the ultimate meeting where the traffic materials are discussed finally, I had the thought that it might not be necessary to have Steve attend this week. He could attend the continued hearing (probably with an updated letter as well). FYI, I will ask the Board to continue us after the hearing to June 1P since I will be away on May 23rd Thank you. Andrew Andrew L. Singer Law Office of Singer & Singer, LLC 26 Upper County Road P.O. Box 67 Dennisport, MA 02639 (508) 398-2221(tel) (508) 398-1568 (fax) www.singer-law.com Confidentiality Notice: This electronic transmission and the information contained herein is being transmitted to and is intended for the use of the individual(s) to whom it is addressed. If the reader of this message is not the intended recipient, you are hereby advised that any dissemination, distribution or copy of this transmission is strictly prohibited. This transmission may also constitute an attorney -client communication that is privileged at law. If you have received this transmission in error, please immediately notify the sender by return e-mail or telephone (508) 398-2221 and delete the transmission in its entirety. TOWN OF YARMOUTH 1146 ROUTE 28, SOUTH YARMOUTH, MASSACHUSETTS 02664-4451 Telephone (508) 398-2231 ext. 1240, Fax (508) 760-3472 BOARD OF HEALTH MEMORANDUM TO: Zoning Board of Appeals (ZBA) FROM: Carl E. Lawson, Jr., Hazardous Waste Inspector SUBJECT: ZBA Petition Numbers 4801 and 4802 Proposed New Seasons Corner Market Convenience Store and Shell Fuel Station 473 — 487 Station Ave. DATE: May 7, 2018 Bag— couna Colbea Enterprises owns and operates a chain of fuel stations and convenience stores in Massachusetts, Rhode Island and New Hampshire. Colbea Enterprises owns the property at 446 Station Ave. which is a Shell brand gas station yet it is operated by a separate party. The station includes fuel sales, motor vehicle repair and limited retail sales of convenience store items. Proposal for New Operation at 473 — 487 Station Ave. Colbea Enterprises proposes to build a new convenience store and fueling station on presently vacant property at the above address. Motor vehicle repair is not included in this operation. This location is within the Town's Aquifer Protection District (APD) for the public drinking water supply. The Health Dept. has been informed the fueling system will consist of the following. 1) Two 20,000-gallon, fiberglass, double -walled underground storage tanks (UST) each with both electronic leak -detection monitoring and water -intrusion monitoring. One tank will store 20,000 gallons of gasoline while the other tank will have two compartments: one 12,000 gallon for gasoline and one 8000-gallon for diesel. Therefore, a total of 40,000 gallons of fuel storage in USTs is proposed. i 2) Double -walled, polyethylene piping with leak detection monitoring. 3) Double -walled fuel dispenser sumps with leak detection monitoring. These sumps are containment units that will hold fuel in the event of a leak within the fuel dispenser. 4) Double -walled UST sumps with leak detection monitoring. These are containment units on the top of each tank where the piping between the tanks and the dispensers connects to the tanks. 5) Double walled spill buckets. These are five -gallon, containment units on the top of each tank fill port for the purpose of capturing minor spills resulting from UST filling. 6) A concrete fueling pad with positive limiting barrier (PLB) grooves surrounding all fuel dispensers to capture minor fuel spills from customer fueling. 7) A continuous leak detection monitoring alarm system that will alert onsite personnel during work hours and the on -duty environmental manager and maintenance company during hours when the business is closed. 8) Six fueling dispensers each equipped with two nozzles to fuel potentially twelve vehicles at one time. 9) A canopy above the fueling dispensers. 10)An automatic fire suppression system designed in compliance with State fire code. Proposed Risk Reduction to Acluifer If allowed by the ZBA to complete this new vehicle fueling station Colbea will have other USTs removed from two nearby fueling stations both located within the APD. 433 Station Ave.(Existing Business: Station Ave. Sunoco Colbea does not own this property, yet has made arrangements to have the following UST removed with a deed restriction placed against future fuel storage and sales on the property. Tank # Ca aci Material Stored Tank Material Construction Type Year Installed 1 8000 gal. Gasoline Fiberglass Double -walled 1986 2 8000 gal. Gasoline Fiberglass Double -walled 1986 3 8000 gal. Diesel Fiberglass Double -walled 1986 Pj The following UST will be removed and replaced with the same capacity aboveground storage tank (AST) with secondary containment to meet present Health Dept. Regulation. Tank # Ca aci Material Stored Tank Material Construction Tyne Year Installed 4 1000 gal. Heating oil Fiberglass Unknown 1986 446 Station Ave. (Existing Business: Station Ave. Shell) Colbea owns this property and proposes to remove the following UST with a deed restriction placed against future fuel storage and sales on the property, Tank # Ca aci Material Stored Tank Material Construction Type Year Installed 1 6000 gal. Gasoline Fiberglass Single -walled 1970 2 6000 gal. Gasoline Fiberglass Single -walled 1970 3 8000 gal. Gasoline Fiberglass Single -walled 1970 4 12,000 gal. Gasoline Fiberglass Double -walled 1988 The following USTs will be removed and replaced with the same capacity ASTs with secondary containment to meet present Health Dept. Regulation. Tank # Capacity Material Stored Tank Material Construction Type Year Installed 5 500 gal. Heating oil Fiberglass Unknown 1988 6 500 gal. Waste oil Fiberglass Unknown 1988 Therefore, Colbea Enterprises proposes to have removed a combined total volume of 56,000 gallons of fuel storage from 433 Station Ave. (Sunoco) and 446 Station Ave. (Shell) in return for being allowed to install a total of 40,000 gallons of fuel storage at the proposed new 473-487 Station Ave. site. Town Water Consultant Review The project, was also reviewed by Kirsten Ryan of Kleinfelder, the Town's water consultant. In an email on March 20 to Jeff Colby, DPW Director and Gary Damiecki, Interim Water Superintendent Ms. Ryan wrote: "Hi Jeff and Gary ! took a quick look at this report. The consultant reached a similar conclusion as we did in reviewing the prior proposal for the site (Cumberland Farms). I agree the risk to the aquifer is less than current conditions in that the proposed project would store less fuel, slightly farther away and with newer equipment technology. 1 recommend as 1 did prior that 9) the Board of Health verify that the design is in accordance with all Massachusetts Stormwater Standards 2) The Town require the developer to retain a third party engineer/L.SP to provide a certification that the project was constructed and installed as designed and passed all start up and commissioning tests to verify proper operation, 3) The facility is required to submit a third -party compliance inspection to the MassDEP every three years. The Town should require the owner to provide a copy of this report be submitted concurrently to the Board of Health and Water Department, 4) the proposed new underground storage tanks have a 30 year service life. The Town should consider employing a mechanism to trigger a notification or permit renewal requirement so that the service life is not exceeded. 1 hope this is helpful, Kirsten" Regulatory Items 1) It is understood Seasons Corner Market will need Town Zoning Bylaw relief from the Zoning Board of Appeals (ZBA) in order for the business to store toxic or hazardous materials in excess of normal household quantities within the APD. 2) The Board of Health (BOH) Regulation "Handling and Storage of Toxic or Hazardous Materials," effective May 2, 1990, and licensing requirement is applicable to this proposal as the involved quantities of materials are in excess of the licensing threshold of 10 gallons. The regulation includes, but is not limited to, 150% volume secondary containment of toxic or hazardous materials. 3) The project must comply with 310 CMR 15 (CMR = Code of Massachusetts Regulations), Massachusetts Title 5 Septic Regulations and nitrogen loading within the APD. 4) The Massachusetts Dept. of Environmental Protection (DEP) regulates the design, construction, installation, operation, inspection, release response, remediation, closure and removal pertaining to USTs under 310 CMR 80. This regulation also requires (310 CMR 80.16 (7)) that the installer or registered professional engineer complete an as -built plan and a signed statement stating "the UST system was installed in accordance with 310 CMR 80.00, the manufacturer's specifications and the manufacturer's checklist." Procedural Track This project was presented at a Town Site Plan Review meeting on Feb. 5 where the applicant received input from Town depts. The project was next presented at a BOH meeting on Apr. 22, pending review by the ZBA. Toxic or Hazardous Materials Delivery Gasoline and diesel fuel will be delivered to the 473-487 Station Ave. site by fuel delivery trucks. Other toxic or hazardous materials such as, but not limited to; various automotive fluids, household cleaners, laundry detergent, charcoal lighter, insecticide, and insect repellents will be delivered by truck transportation, then hand -carried inside the store. 4 Toxic or Hazardous Materials Handlinci and Storage 1) As stated previously one 20,000-gallon, double -walled, fiberglass UST will store 20,000 gallons of gasoline. 2) A second 20,000-gallon, double -walled, fiberglass UST with two separate storage compartments will store 12,000 gallons of gasoline and 8000 gallons of diesel fuel. 3) Other toxic and hazardous materials mentioned previously and available for retail sale will be stored inside the store on the retail floor in original containers. No storage of these materials has been proposed off of the retail floor. Toxic or Hazardous Materials Use 1) All fuels are for retail sale to customers. 2) Other toxic and hazardous materials are for retail sale in original containers. 3) Some cleaners will be used by employees for in-store cleaning. Toxic or Hazardous Materials Disposal 1) Massachusetts General Law Chapter 21, Section 53a requires retailers of motor oil to accept for proper disposal waste oil from their customers. In the event a customer presents waste oil for disposal store employees will receive the waste oil storing it and then disposing of it properly. Any received waste oil will be stored in a drum of approximately 30-gallons in size with secondary containment. The waste oil drum will be placed either within the building or within the fenced dumpster area with measures taken for protection against weather and vandalism both of which are required by Yarmouth Health Regulation. 2) Wash water generated from floor washing and stripping will be hauled offsite for proper disposal. Floor drains will be plugged during washing and stripping operations to prevent the wash water from entering the septic system. 3) The spill buckets for the UST fill ports are protected by steel covers with rubber gaskets, yet some amount of rainwater is expected to collect periodically. Since this water may have a petroleum component it may not be disposed of to the ground. This waste water will be emptied to a labeled 55-gallon drum and stored onsite for proper disposal. Health Dept. Requirements Yarmouth Health Regulation requires the following regarding toxic or hazardous materials handling and storage which apply to this proposal by Colbea. 1) The business must register annually for a Yarmouth Board of Health Handling and Storage of Toxic or Hazardous Materials License. 2) No materials may be discharged to the environment. 3) No outdoor storage of materials is allowed. 4) All materials must be protected from vandalism. 5) Materials must be stored in covered product -tight containers. 6) All materials must be stored inside secondary containment of 150% volume of the total amount of materials stored. 7) Any waste material must be properly disposed by a licensed hazardous waste hauler. 8) Safety Data Sheets (SDS) for each toxic or hazardous material must be maintained onsite and be readily available. 9) A sufficient supply of absorbent material must be kept onsite for use in the event of a release or toxic or hazardous materials. Board of Health (BOH) Hearing and Recommendations Attorney Andrew Singer and numerous representatives of Colbea with differing areas of expertise presented their proposal to the BOH at the regular board meeting on April 22, 2019. The BOH approved recommending the proposal of Colbea Enterprises to the ZBA by a unanimous vote with five members present and voting. This recommendation is based on the ability of the business to comply with aforementioned regulations and based on the following conditions listed below. These conditions are above and beyond the strict scope of the aforementioned regulations and are intended to provide additional protection of the APD. If these conditions are approved by the ZBA no Handling and Storage of Toxic of Hazardous Materials License will be issued until the following are completed. Furthermore, without said license issued, no fuel may be delivered to the two proposed 20,000-gallon underground storage tanks (UST) 1) Septic System Requirements: Per Title 5 Regulations, the site, consisting of 51,280 square feet of land area within the Zone II Wellhead Protection Area, is currently limited to approximately 564 gallonslday of sewage flow with the installation of a standard Title 5 compliant septic system. The proposed sewage flow for the requested commercial use (Gas Station and Season Corner Market) is 800 gallons/day which will require the acquisition/credit of additional land (21,448 square feet) per engineered plan by Down Cape Engineering dated March 11, 2019 and located within the same Zone II through a formal Nitrogen Aggregate Plan approved by the Board of Health or combination of land acquisition and IIA Technology installation. Prior to final approval of the proposed flow of 800 gallons/day by the Board of Health, the applicant will be required to present an appropriate sewage design meeting the minimum requirements of Title 5 Zone II restrictions. 2) The registered professional engineer who designed the fueling system must submit to the Health Dept. an as -built plan and a signed statement indicating "the UST system was installed in accordance with 310 CMR 80.00, the manufacturer's specifications and the manufacturer's checklist." 3) 433 Station Ave.(Existing Business: Station Ave. Sunoco a. The two 8000-gallon gasoline; one 8000-gallon diesel and one 1000- gallon heating oil underground storage tanks are removed. b. All fuel system piping, sumps, dispensers and related infrastructure are removed. c. Confirmatory soil sampling and, if applicable, groundwater sampling results pertaining to the underground storage tank and related infrastructure removals are determined to meet Massachusetts Dept. of Environmental Protection (DEP) standards after evaluation by a Massachusetts Licensed Site Professional (LSP). d. A deed restriction prohibiting future fuel storage and sales must be recorded at the Barnstable County Registry of Deeds. 4) 446 Station Ave. (Existing Business: Station Ave. Shell) a. The two 6000-gallon gasoline, one 8000-gallon gasoline, one 12,000- gallon gasoline, one 500-gallon heating oil and one 500-gallon waste oil underground storage tanks are removed. b. All fuel system piping, sumps, dispensers and related infrastructure are removed. c. Confirmatory soil sampling and, if applicable, groundwater sampling results pertaining to the underground storage tank and related infrastructure removals are determined to meet Massachusetts Dept. of Environmental Protection (DEP) standards after evaluation by a Massachusetts Licensed Site Professional (LSP). d. A deed restriction prohibiting future fuel storage and sales must be recorded at the Barnstable County Registry of Deeds. 5) The maximum onsite storage of toxic or hazardous materials in underground storage tanks is limited to 40,000 gallons total. 8) The maximum onsite storage of toxic or hazardous materials not including the underground storage tanks is 200 gallons. 7) A detailed material spill containment plan must be conspicuously posted at all times and all employees must be familiar with the plan. 8) No vehicle repair is allowed onsite. 9) No vehicle washing is allowed onsite. 10)The two proposed 20,000-gallon underground storage tanks (UST) may not be filled until all conditions above (1 — 9) are complete. ,d Clark, Sandi From: Greene, Karen Sent: Wednesday, April 24, 2019 3:08 PM To: 'Andrew Singer' Cc: Clark, Sandi Subject: RE: Land Disposition Policy Attachments: FW: Land Purchase Request Hi Andrew Regarding this request as it relates to your ZBA proposal, please see attached email correspondence. Thanks, Karen Karen M. Greene, Director of Community Development Town of Yarmouth kgreene@yarmouth.ma.us 508-398-2231 x1278 From: Andrew Singer [mailto:ALSinger@singer-law.com] Sent: Wednesday, April 24, 2019 1:24 PM To: Greene, Karen <KGreene@yarmouth.ma.us> Cc: Dwelley, Christopher <CDwelley@yarmouth.ma.us>; Senteio, Eduard <ESenteio@yarmouth.ma.us>; Knapik, Daniel <dknapik@yarmouth.ma.us> Subject: RE: Land Disposition Policy Thank you, Karen. We are looking forward to working with you on this. Andrew From: Greene, Karen <KGreene@yarmouth.ma.us> Sent: Wednesday, April 24, 2019 12:19 PM To. Andrew Singer (alsinger@singer-law.com) <alsinger@singer-law.com> Cc: Dwelley, Christopher<CDweliey@yarmouth.ma.us>; Senteio, Eduard <ESenteio@yarmouth.ma.us>; Knapik, Daniel <dknapik@varmouth.ma.us> Subject: FW: Land Disposition Policy Hi Andrew Thanks for your offer to meet. I am working with Chris to help him get a process established and will be in touch with any questions. Regards, Karen Karen M. Greene, Director of Community Development Town of Yarmouth kgreene@varmouth.ma.us 508-398-2231 x1278 From: Knapik, Daniel Sent: Wednesday, April 24, 2019 12:13 PM To: Greene, Karen <KGreene@yarmouth.ma.us> Subject: FW: Land Disposition Policy Fyi — can you follow up with Mr. Singer? From: Andrew Singer [mailto:ALSineer@singer-law.com) Sent: Wednesday, April 24, 2019 9:07 AM To: Knapik, Daniel <dknapik@varmouth.ma.us>; Dwelley, Christopher <CDwelle armouth.ma.us> Cc: Senteio, Eduard <ESenteio@yarmouth.ma.us> Subject: Land Disposition Policy _ Good Morning Gentlemen, am writing to follow up the three Request for Real Property Forms that I recently submitted on behalf of my client in conjunction with the ongoing Seasons Corner Market/Shell Gas Station development proposal on Station Avenue in South Yarmouth. I was interested to see the Board of Selectmen's discussion on the Charge for the Land Disposition Committee last night. Now that it has been approved, as Staff continues to review the proposal and the Committee gets up and running, we would be happy to meet with you and them and answer any questions as the process proceeds. Thank you. Andrew Andrew L. Singer Law Office of Singer & Singer, LLC 26 Upper County Road P.O. Box 67 Dennisport, MA 02639 (508) 398-2221 (tel) (508) 398-1568 (fax) www.singer-law.com Confidentiality Notice: This electronic transmission and the information contained herein is being transmitted to and is intended for the use of the individual(s) to whom it is addressed. If the reader of this message is not the intended recipient, you are hereby advised that any dissemination, distribution or copy of this transmission is strictly prohibited. This transmission may also constitute an attorney -client communication that is privileged at law. If you have received this transmission in error, please immediately notify the sender by return e-mail or telephone (508) 398-2221 and delete the transmission in its entirety. Clark, Sandi From: Williams, Kathleen Sent: Tuesday, April 9, 2019 5:52 PM To: Clark, Sandi Cc: Aguiar, Nicholas Subject: CCC Traffic Study Peer Review - Seasons Convenience Store/Shell Gas Station - Station Avenue Hi Sandi, Please forward the e-mail below from Steven Tupper, Transportation Program Manager at the CapeICod Commission, to the ZBA and the applicant for Petition #4801. At the request of the Engineering Department, Mr. Tupper is conducting a peer review of the Traffic Study submitted by the applicant. He is unable to complete his full review prior to the April 11th Public Hearing, but will have it available for the next scheduled meeting on May 91h. Thanks, Kathy Kathy Williams, PE Yarmouth Town Planner 1146 Route 28 South Yarmouth, MA 02664-4492 (508) 398-2231 Ext 1276 kwilliams@yarmouth.ma.us From: Steven Tupper[mailto:stupper@capecodcommission.org] Sent: Tuesday, April 9, 2019 5:20 PM To: Williams, Kathleen <kwilliams@yarmouth.ma.us> Cc: Aguiar, Nicholas <NAguiar@yarmouth.ma.us>; deMello, Rick <RdeMello@yarmouth.ma.us>; Colleen Medeiros <colleen.medeiros@capecodcommission.org> Subject: RE: Seasons Convenience Store/Shell Gas Station - Station Avenue Kathy, We have completed our preliminary review of the traffic study. We have concerns about a number of elements of the traffic study and the ability of the traffic study to accurately represent the anticipated impacts of the proposed development on the roadway network. As requested, we will summarize our review in a peer review memorandum. We will have the memorandum to you by April 25", two weeks in advance of the potential ZBA meeting on May 9th. We are available to attend the ZBA meeting May 9tn Thanks, Steve Steven Tupper Transportation Program Manager Cape Cod Commission April 4, 2019 Town of Yarmouth Zoning Board of Appeals 1146 Route 28 South Yarmouth, MA 02664 RE: Petitions #4501 and 4802 Colbea Enterprises, La C Dear Zoning Board Members: Station.{ Avenue LL y, the o-vvner of the property locate.! at 48 i Station Avenue ;Today Reral Estate;, has reviewed the plans and diScuSSed the proposal with the applicant. As an. immediate, abutter. we are in favor of the proposed development and encourage the Board of Appeals to approve the relief requested. In conjunction with dosing the hvo older gas stations nearby along Station Avenue, this developrrzent wi11 result in a positive economy c an d environrnt:ntal benefit to tie commercial zone along'-' ta on Avenue and the Town of Yarmouth. Thank yolJ for your consideration for the applications. S• afi,�s �,�lan!1� %Manager RECEIVED VIA E-MP-,ji EZGV[ZIVCL.9 Clark, Sandi VIA E-MAIL From: Huck, Kevin Sent: Thursday, April 4, 2019 4:30 PM To: Clark, Sandi Subject: 487 Station Ave. Hi Sandi, Yarmouth Fire Department supports the application, subject to applicable submissions, permits and inspections. Capt. Huck RECEIVED VIA E-MAIL TOWN OF YARMOUTH 214E ROUTE 28, SOUTH YAR:MO TH, }4ASSACHUS)ETTS 02664-4451 Telephone (508) 398-2231 exL 1240, Fax (508) 760-3472 BOARD OF HEALTH MEMORANDUM TO: Zoning Board of Appeals FROM: Bruce G. Murphy, Director of Health & Carl E. Lawson, Jr., Hazardous Waste Inspector, SUBJECT: Proposed New Seasons Convenience Store and Fuel Station 473 — 487 Station Ave. South Yarmouth Petition # 4801 & 4802 DATE: April 3, 2019 Colbea Enterprises, LLC is scheduled to appear at the next Board of Health meeting on April 22 regarding their proposal to develop 473 -- 487 Station Ave. with a Shell Fuel Station and convenience store. This location is within the Aquifer Protection District for the public drinking water supply. The Board of Health will review and comment on: 1) Installation of new underground fuel storage tanks (USTs) in the amount of 40,000 gallons total 2) Removal of all present USTs including those storing vehicle fuels, waste oil and heating oil from the Shell Station at 446 Station Ave. and the Sunoco Station at 433 Station Ave. 3) Installation of new aboveground storage tanks for home heating oil and waste oil (Shell Station) and heating oil only (Sunoco Station) 4) Proposed handling and storage of toxic or hazardous materials for the new store 5) Title 5 septic system design 6) Title 5 septic pystem nitrogen loading Additional land required for compliance with State Title 5 nitrogen loading regulation. 7) Any other Oublic-health regulation compliance issues. 1 Davenport Reaky Eslablshad 1956 April 3, 2019 20 NORTH MAIN STREET SOUTH YARMOUTH, MA 02664-3143 TEL: 508-398-2293 • B00-822-3422 • FAX: 508-394-6765 www.thadavenportcompanies.com Board of Appeals 1146 Route 28 So. Yarmouth, MA 02664-0836 Re: Petition #4801 and #4802 Dear Members of the Board: RECEIVED VIP E-MAIL As the owner of 31 Workshop Road and having received an Abutter's Notice of the hearing scheduled for April 11, 2019, please allow this to serve as opposition to the Petitions and relief sought for the properties at 473,479 and 487 (portion) Station Avenue. While cleverly described as a "rare opportunity," simply put, the project in no way legitimately meets the standard for Variance relief. There is no circumstance owing to shape, soil condition, nor topography to justify deviating from the 75-foot required front setback by over 31 feet. The combined properties do not provide enough area for what is proposed, and the Appeals Court has ruled that the insufficient size of a lot is not a shape factor. Similarly, there is no shape, soil condition, nor topographic feature to warrant the requested Use Variance for Motor Vehicle Fuel in the APD. Furthermore, the Town expressly prohibits underground fuel tanks in the APD, and while once again the Variance criteria cannot be met, it also appears that the Zoning Code does not provide for Variance relief of this nature. Respectfully, the Board does not appear to have the authority to grant such a Variance under Section 406 even if a colorable argument could be advanced; and one cannot be in this instance. The proposed access and egress pose serious issues as well. Left turns out of the Stop & Shop plaza are difficult at best now, and will only be exacerbated with potentially two new egress points creating increased hazard and congestion with motorist attempting to turn left, and should those motorists be delayed (and they will) then the drive through cars waiting in the cue and those fueling will back up causing internal site congestion and conflict with likely back-ups on Station Ave. for those looking to enter the site. It is thus foreseeable this congestion will adversely impact cars at the traffic light to the North at White's Path and Workshop Road. Contrary to the Applicant's assertion, the certain traffic and congestion issues associated with this proposal, along with the introduction of 40,000 gallons of fuel underground in an area designated for special protection do not better protect both the business and natural environment along and in this portion of Station Avenue, Coupled with the fact that the Variance criteria cannot be met, this application should be denied. Thank you. D venport Realty Trust De itt P. Davenport, Trustee Affiliates: All Cape Self Storage • Blue Rock Golf Resort • Cape Cod Fence Co. - Davenport Budding Co. Kingsbury Aviation - Kingsbury Management Co. • Red Jacket Resorts • Thirwoed Place Senior Living - The Shops at Yarmouth Crossing TOWN OF YARMOUTH 1146 ROUTE 28, SOUTH YARMOUTH, MASSACHUSETTS 02664-24451 BOARD OF Telephone (508) 398-2231 Ext. 1285, Fax (508) 398-0836 APPEALS MEMORANDUM To: Departments From: Board of Appeals Date: April 2, 2019 Subject: APD Special Permit and Variance Filing: Petition #4801 & #4802, Colbea Enterprises, LLC, 473 Station Avenue, 479 Station Avenue and 487 (portion) Station Avenue. Attached is a copy of the application for the location listed above of: Colbea Enterprises, LLC, 473 Station Avenue, 479 Station Avenue and 487 (portion) Station Avenue for a PETITION #480t: Colbea Enterprises, LLC, 2050 Plainville Pike, Cranston, R.I. Property location: 473, 479 and 487 (portion) Station Avenue, South Yarmouth. Map & lot#: 0097.1; 0097.2 & 0097.3 (portion); Zoning District: B1; APD & ROAD. The applicant is seeking Special Permits and Variances to develop the land at the above addresses for use as a Shell fuel service station and convenience store with co -brand business. Relief is requested under and from, respectively, §202.5 footnote J, §301.4.1 - §301.4.10, §301.8; §301.9 and §303 as necessary, for use in the B1 Zoning District and APD and various dimensional setback and design, parking, drive-thru, landscaping, lighting, and sign provisions, per the submitted plans and materials. PETITION 44802: Colbea Enterprises, LLC, 2050 Plainville Pike, Cranston, R.I. Property location: a portion of 487 Station Avenue, South Yarmouth. Map & lot#: 0097.3 (portion); Zoning District: 131; APD & ROAD. Companion application with Petition 44801 to amend Decisions #3453 and #3505 or in the alternative, new Variance relief under and from §203.5 and §301.4.1 as necessary to divide off 7,305 +/- sq. ft. of land at the rear of lot. The proposal will not create any new non -conformities or impact the existing site development. The Petitioner is scheduled for a hearing before the Board of Appeals on April 11, 2019. This promect is extensive and the plans, traffic study, stormwater report, and environmental peer review, have been filed. If you would like copies of the plans and/or reports, please e-mail me and I will provide them or stop by the office to review. If you have any comments to provide, please do so (e-mail:sclark@yarmouth.ma.us) by TuesdaV, April 92019. Thank you. cc: Fire Health Planning Building Conservation Water DPW -Jeff Colby Nick Aguiar KECEIVED Clark, S�1/IA E-MAIL_ Sandi From: Aguiar, Nicholas Sent: Monday, April 1, 2019 1:48 PM To: Clark, Sandi Cc: Williams, Kathleen Subject: RE: Seasons Convenience Store/Shell Station - Station Avenue Hi Sandi, Please see below for a listing of the comments that I have in regards to the application to the ZBA for 473, 479, and 487 Station Avenue (Seasons Convenience Store/Shell Station) in South Yarmouth. Snow Storage: • The snow storage area located within the island adjacent to the site driveways should be reconsidered as the guy wire anchoring for utility pole #24-79.5 may become subject to being dislodged. • Snow stored over the septic leaching field must not obstruct system ventilation or access to the inspection port. Title 5 Site Plan: • Notify contractor that the Title 5 Site Plan utilizes outdated site grading and should not be utilized for obtaining such information. Drive-Thru Service: • Only 8 of the required 10 stacking spaces are provided for the proposed drive-thru service window. Erosion and Sedimentation Control Plan: • Temporary Stabilization Notes o Note #3 should be revised to specify topsoil as being substantially free of deleterious materials such as stones, roots, and clumps of soil, and completely free of tree limbs, trash, and construction debris. o Note #6 should be revised to remove language which allows the Owner to dictate temporary stabilization treatments. o Note #12 should be revised to limit mulch anchoring techniques to mechanical methods only. Leachates created by stormwater coming into contact with liquid tackifiers and emulsified asphalt are especially undesirable given the site's location within the Aquifer Protection District (APD). Order of Procedure Notes o Note #2 needs to be revised to more specifically outline the frequency and type of maintenance activities to occur in regard to the proposed erosion and sedimentation control measures as this information does not appear in any of the supplied documentation. Compost filter socks and catch basin filters should be inspected weekly, and after significant storm events, at a minimum. Construction entrance/exit aprons should be inspected daily. Repairs and maintenance should be provided as needed. o Note #3 needs to be revised to specify the implementation of temporary stabilization controls upon the suspension of work for 14 days or more. Post -Construction Phase Notes o Note #2 must be removed entirely as the stormwater management system utilizes infiltration into subsoils within the APD. o Note #3 should be generalized to specify the immediate clean-up off spill of hazardous material. This provision should also be used to revise the language of the third paragraph of the General Information section of the Stormwater Operation and Maintenance Plan. o Note #9 should be revised so as to specify the maintenance of records of all required and performed maintenance. This provision should also be included within the Operation and Maintenance Plan. Stormwater Operation and Maintenance Plan: Schedule for Implementation of Maintenance Tasks o The breadth of maintenance tasks, and their respective frequencies, for the proposed bioretention areas are insufficient. The bioretention area and rain garden maintenance guidance within Volume 2, Chapter 2 of the Massachusetts Stormwater Handbook should be emulated. o Trash containers must also be specified as being covered so that they are not in direct contact with stormwater. Stormwater Operation and Maintenance Log o Not all maintenance activities prescribed are included within the log form, and inconsistencies between the plan and log frequencies of select maintenance activities exist. Revise the form accordingly. Please feel free to contact me if you have any questions. I hope that this is helpful, and that you have a good day. Kind Regards, Nick Clark, Sandi From: Williams, Kathleen Sent: Tuesday, March 26, 2019 2:03 PM To: Clark, Sandi Cc: Aguiar, Nicholas; deMello, Rick Subject: Seasons Convenience Store/Shell Gas Station Hi Sandi, The proponent of the Season Convenience Store/Shell Gas Station submitted a Traffic Study as part of their ZBA application. This was in response to a request made by Nick Aguiar, Yarmouth Civil Engineer, at the Site Plan Review meeting. Both Nick Aguiar, and former Town Engineer, Rick DeMello, reviewed the Traffic Study and requested to have a peer review of the document. I have reached out to Steve Tupper, Transportation Program Manager at the Cape Cod Commission, who indicated he would be able to conduct the peer review. However, he would not be available for the ZBA meeting on April 11t'', but noted he would be available on April 251h or a future ZBA meeting. I would appreciate it if you would relay this information to the ZBA. I will keep you posted as to the status of the peer review on the Traffic' Study. Thanks, Kathy Kathy Williams, PE Yarmouth Town Planner 1146 Route 28 South Yarmouth, MA 02664-4492 (508) 398-2231 Ext 1276 kwilliamskyarmouth.ma.us RECEIVED Clark, Sandi VIA E-MAIL From: Sent: To: Subject: March 14, 2019 Town of Yarmouth Zoning Board of Appeals Town Hall 1146 Route 28 South Yarmouth, MA 02664 Re: Petition 1#s 4801, 4802 Dear Board Members: Warren Woods <windsurf403@gmail.com> Thursday, March 14, 2019 5:06 PM Clark, Sandi Proposed Seasons Corner Market and gas station - Station Ave. At the April 11, 2019 Hearing, an application to construct a gas station and Seasons Corner Market on wooded property adjacent to 487 Station Ave, South Yarmouth will be reviewed. I own a building at 495 Station Ave. that houses my orthodontic practice and the practices of Emerald Physicians. Both of our practices treat individuals of all ages but my practice has many children as patients. Currently, we have clients of the drug rehabilitation center that is located adjacent to our building on Workshop Rd, constantly trespassing over our property to go across Station Ave. to and from the Stop and Shop Plaza. Those individuals also have to be told not to park in our parking lot and congregate near the rear entrance to our building but do so at times. Also, we have noted clients of the drug center walking their dogs and allowing them to relieve themselves on our property while our lawn maintenance crew has to pick up empty fast food containers, coffee cups and other trash left by clients of the drug center. The Yarmouth and State Police have found it necessary to regularly monitor the area. At times, we have had people from the drug center come into our restrooms and staff waiting room without permission. We have had to ask them to remove themselves from our building and property. My concern with the proposed Seasons Corner Market and gas station, is that it will attract the clients of the drug rehabilitation to purchase items from their store and increase the number of these individuals trespassing over my property and thereby increase the number of problems we are already having with this clientele. For the reasons above, I cannot support the applications for the Seasons Corner Market and gas station. Please do not grant the permits to the petitioners. Thank You, Warren D. Woods, D.M.D.