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HomeMy WebLinkAbout4801-A-COLBEATOWN 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 The proposal includes closing, decommissioning, and deed restricting two old, outdated, active fuel service station properties (Shell Station at 446 Station Avenue and Sunoco Station at 433 Station Avenue) located within one -quarter mile of the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).