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HomeMy WebLinkAbout1.10.2022 Summary of Reasoning Urological Associates 125-133 Rt. 6a Yarmouth Port 1 Law Office of Singer & Singer, LLC 26 Upper County Road P. O. Box 67 Dennisport, Massachusetts 02639 Andrew L. Singer Tel: (508) 398-2221 Marian S. Rose Fax: (508) 398-1568 _____ www.singer-law.com Myer R. Singer (1938-2020) Yarmouth Board of Appeals Petition # 4917 SUMMARY OF REASONING Urological Associates of Cape Cod [“Applicant”] is under contract with P.J. Nyberg Family Limited Partnership, the owner of 125-133 Route 6-A (Main Street), Yarmouth Port [“Property”]. The Property is the site of the former Bank of Boston and, more recently, Dennis Partners, and is now vacant and deteriorating. The Applicant seeks to adapt, rehabilitate, and re-use the existing commercial property for permitted medical office use. The property consists of multiple parcels with an historic primary structure built in 1925, an auxiliary structure immediately to its rear, and a separate smaller commercial structure facing Rt. 6A. The property will be re-developed as one property. The property is split-zoned, with the street facing portions zoned B-1 and the rear portion currently zoned R-40. The Yarmouth Zoning By-Law was amended to redesignate the rear portion of the lot from R-40 to B-1 by Town vote on October , 2021 and the By-Law amendment is currently under review by the Commonwealth’s Attorney- General. The primary structure will be renovated but its footprint will not be expanded. The project’s focus is to rehabilitate the existing historical structure and reorient expanded parking and traffic flow to accommodate the proposed medical office use. The front entrance will be altered to remove stairs and ramps on either side. A redesigned rear entrance will provide accessible and primary access for staff and patients. The east-side entrance will be redesigned to provide more private ramped access from the rear parking area for patients transferred by non-emergency medical transport. A drive- through window and overhang designed for prior bank use will be removed. Parking will be reconfigured to include increased plantings and access and will be expanded to accommodate patients. Curb cuts serving the property will be reduced from two to one and the front-facing landscaped buffer will be expanded in size and enhanced with additional plantings. Existing cross easements with the adjacent bank 2 property will remain. The pre-existing nonconforming (as to side setback) auxiliary building will be expanded and converted into a management office which will be no more nonconforming than the existing structure. The smaller commercial building facing Route 6A will remain unchanged. The rear portion of the Property is zoned residential but has been used as a parking area in service of the commercial buildings. Parking was permitted through a variance issued by the Yarmouth Board of Appeals in 1965 and the Applicant seeks to expand the parking by means of expanding the existing variance and/or requesting a new variance as the expanded parking is a necessity for the proposed use as a medical office and limiting parking would make the rehabilitation of the existing historic building under- parked and economically unfeasible. Parking in the rear of the Property is proposed to expand no closer than existing nonconforming setback to the rear and within a non-conforming (10 feet) setback on the eastern property line, which borders the adjoining pre-existing nonconforming parking of the Cape Cod Cooperative Bank. Parking throughout the site will be made less nonconforming with a reorganization of primary parking to the rear, increased screenings, approved downward facing lighting, vegetated buffers and trees and the consolidation of access from Main Street to the Property by the removal of a curb cut and the expansion of the vegetated buffer bordering Main Street. The proposed project before the Board has been reviewed and approved unanimously by the Old Kings Highway Committee. Town Department heads have reviewed the project through Site Plan Review. The project is the first to be reviewed under the Town’s new Stormwater Management By-Law and is in the last stages of review with peer review comments to be submitted on January 13th and a hearing before the Commission scheduled for January 20, 2022. In light of the length of time needed for Conservation review, Chairman DeYoung has determined that the Zoning Board of Appeals hearing on January 13th can go forward on the merits and any vote taken would be conditioned on the grant of a stormwater permit by the Conservation Commission. The Applicant seeks a special permit in order to expand the pre-existing nonconforming auxiliary building for permitted office use and a variance and/or extension of prior variance allowing an expansion in parking in the rear property located in the R-40 zoning district. Because the Applicant seeks both a special permit and a variance for this project, the proposals, while part of a whole, will be addressed separately. A. The Applicant Requests an Amendment to a Variance and/or a New Variance to Expand 3 Parking in part of the Property currently zoned Residential. As stated, the existing rear parking is located in a residential zone and is pre-existing nonconforming and permitted by a variance. The Applicant seeks to expand the existing parking, both to the rear boundary (but no closer than the existing parking) and to the east-side boundary (but not closer than the existing west-side set back of ten feet). Total parking on the site would be increased from 70 spaces and 3 handicapped spaces to 84 spaces plus 8 handicapped spaces and is necessary for the functioning of the medical practice. The Property has always been used as one property and the residentially zoned portion is not independently developable given its lack of frontage. In order to meet standards for consideration of the grant of a variance, the Board must find all of the following: 1. a literal enforcement of the provisions of (the Yarmouth Zoning By-Law) would involve a substantial hardship, financial or otherwise, to the Applicant; 2. the hardship is owning to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affection such land or structures, but not affecting generally the zoning district in which it is located; and 3. desirable relief may be granted without either: substantial detriment to the public good; or nullifying or substantially derogating from the intent or purpose of this by-law. Yarmouth Zoning By-Law section 102.2.2. 1. Here, it is clear that a literal enforcement of the by-law would involve substantial hardship to the Applicant. The Applicant, is in contract for this property and is seeking to use the entire property in support of its allowed medical office use. It has sought this location, in part, to alleviate parking concerns at its current main location in Hyannis. Because of its longstanding operation, the Applicant is well versed in both the number of patients and employees who may be present on a daily basis. Adding the fourteen additional parking spots in the rear of the building and the eight additional handicapped spots are critical to the smooth functioning of the business and the comfort of those seeking medical care. Indeed, securing adequate parking is considered so necessary to this Applicant, that the Applicant has conditioned the purchase of the Property on the permitting of the rehabilitation of the main structure and the expansion of parking and has committed thousands of dollars to extending the due diligence period to accommodate time to seek permits from the Town. In 1965, a prior Board granted a variance to the owner to extend parking into the residentially 4 zoned rear lot in service of the commercially zoned street facing parcel, then Frist National Bank of Boston. Petition # 752. The board determined that “the growth of the … Bank “makes it necessary for additional parking to adequately serve the … public.” It noted a “distinct hardship would exist were the Petitioner not allowed to use this land in connection with its banking purposes.” Similarly, the allowed medical office use proposed by the Applicant requires more parking than what exists on the Property. Not allowing an expansion of parking necessary for the medical office would create a distinct hardship to the Applicant. 2. The hardship is owning to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affection such land or structures, but not affecting generally the zoning district in which it is located Here, the hardship relates to the Property’s split-zoned status, and the unique historical nature and the substantial size of the main commercially zoned building, and the landlocked residentially zoned rear parcel which, though residentially zoned, has, for over half a century, been used in service of the street- facing main commercial building. The unique nature of this Property was recognized by a prior Board when it granted the request for a variance to expand parking in the rear of the building. The rear lot is unique to the R-40 district in its fifty plus year history of being used in the service of its commercially zoned street facing property. The recent zoning By-Law article approved by voters at Town Meeting which rezones the rear parcel as commercial underscores the Town’s departmental consideration of the issue created by the split-zoning of this Property. It has, in effect, been used as if commercially zoned but subject to the limitations of the more restrictive residential use and dimensional limitations. The primary structure it serves is both large and historic. The viable economic uses for such a building are limited. It is not economically viable to save the large historic structure absent adequate parking to service the use that makes saving the structure a viable option. This is not an issue that affects residential property located further in the residential district. The issue is unique to this Property and, perhaps, the Cape Cod Cooperative property immediately to its west. 3. Desirable relief may be granted without either: substantial detriment to the public good; or nullifying or substantially derogating from the intent or purpose of this By-Law. The Applicant asserts that the proposed re-use and rehabilitation of the Property, including the expansion of parking, will be of significant net benefit rather than detriment to the public good and can be approved without the nullification or substantial derogation of the intent or purposes of this Yarmouth Zoning By- 5 Law. a. The property’s re-use and rehabilitation will significantly enhance the public good by carefully and thoughtfully preserving a historic Main Street façade in Yarmouth Port. b. Applicant’s business is long established on Cape Cod and will be a significant benefit to the Town’s tax base. c. The Yarmouth Port Main Street streetscape will be enhanced by an enlarged, planted buffer between Main Street and the front parking area, approved downward facing lighting on timers, a consolidated curb cut, redesigned parking and the removal of ramps and stairs to the right and left of the front entrance and the removal of the drive-through window on the main building’s east side. d. The existing and expanded rear parking and east side parking will be redesigned for better flow and enhanced with more than seventy-five trees and other plantings. The expanded parking will be no closer to residential neighbors to the rear or east side that existing parking and will be screened. The expanded parking will track the setback approved in the prior variance on the eastern side of the rear lot (10 feet) from the western neighbor, also residentially zoned. However, like the Property considered in this application, the neighbor’s rear property is a parking area used in the service of its commercially zoned street facing parcel, the Cape Cod Cooperative Bank. The concerns about the expanded commercial parking creating nuisance or disturbance for neighbors aren’t significant factors here. The location of the expanded parking adjacent to neighboring parking, not homes, and the intense screening of the parking, when little to no vegetated screening exists, provides a significant improvement over existing conditions in the rear parking area. e. The existing lighting has been approved in style and placement by the Old King’s Highway Historical Committee. The lighting plan has been designed with consideration for neighbors and the safety of patients and employees on site. The lighting plan shows that the exterior lighting is divided into three sections; A, B and C. These sections will be on a timer to turn on at dusk and turn off at 9 pm (or at a time suggested by the Town). The lighting area marked in orange immediately around the primary structure will be turned on at dusk and continue until 11 pm each night. Certain interior lights will be on continuously for safety. All exterior lights are rated for zero light trespass onto adjacent properties. 6 B. Special Permit Request for the Replacement and Expansion of the Existing Garage to a New Structure with an Ancillary Medical Office Management Use. In addition to the renovation of the main building and parking changes mentioned above, the Applicant proposes to replace the existing garage located adjacent to the south-east corner to of the main building with slightly larger building to be used as a management office for the medical practice. The proposed office would be no more non-conforming in regard to setbacks than the existing structure. The Board is authorized under the Yarmouth Zoning By-Law to grant the relief if it determines that the proposal either conforms to the current Zoning By-Law or will not be substantially more detrimental or more nonconforming to the neighborhood, Zoning District or Town than the existing conditions, that it will not cause or contribute to any undue nuisance, hazard or congestion, that there will be no substantial harm to the established or future character of the neighborhood or Town, and that strict enforcement of the current Zoning By-Law will result in undue hardship to the Property or the owner. The Applicant respectfully submits that the proposal to replace the garage with a new structure to be used as a medical management office complies with the above special permit criteria, will not be substantially more detrimental or nonconforming to the neighborhood and community because of the reasons cited above and as follows: 1. The proposed replacement structure will be built no closer than the existing nonconforming structure as to west-side setback and the expanded portion will not create a new nonconformity in that it will be built within the building envelope as defined by the current Yarmouth Zoning By-Law; 2. There will be no negative impact to drainage, septic flow or stormwater as determined by the Conservation review under the new Stormwater Management By-Law; 3. The proposal will not cause or contribute to any undue nuisance, hazard or congestion in the neighborhood, zoning district or Town; and 4. The Property will be an asset to the character of the neighborhood and Town and provide a viable commercial activity limited to reasonable hours and quiet use. Specifically, the operation of the medical office will be limited to Monday through Friday workday hours with generally more limited hours on Fridays. The medical care provided is on a scheduled, non-emergency basis. Transport, while sometimes provided for non- ambulatory patients in need of treatment is also on a nonemergency basis and, thus, 7 transport vehicles will not be entering or exiting the Property with emergency sirens or lights in use and will be using the rear parking area for parking for entry into the rear or west-side entrances. The traffic generated by the Applicant’s medical practice will be steady rather than intense and will create no hazard or nuisance to the neighborhood. For all of the above reasons, the Applicant respectfully requests that the Board of Appeals make findings that the proposal satisfies the criteria of the Zoning By-Law and grant a variance and a special permit, as necessary, to approve the project as proposed on the plan submitted to the Board.