HomeMy WebLinkAbout1-13-22 Decision 4917 - 125-133 Route 6Ak`_: ! Piss R�...
TOWN OF YARMOUTH
ZONING BOARD OF APPEALS
DECISION
FILED WITH TOWN CLERK: January 19, 2022
PETITION NO: 4917
HEARING DATE: January 13, 2022
PETITIONER: Urological Associates of Cape Cod, P.C.
OWNERS: P.J. Nyberg Family Limited Partnership
PROPERTY: 125-133 Route 6A, Yarmouth Port, MA
Assessors Map: 121 and 122, Parcels: 85, 86 and Lot 2
Zoning District: B-1, R-40
Book 30773 Page 59
Plan Book 83, Page 119, Lot D; Plan Book 317 Page 49
Lot 6A
Certificate # 214080
Land Court Lot and Plans: # 14526-A; Lot 3, # 23966-B
MEMBERS PRESENT AND VOTING: Chairman, Steven S. DeYoung, Sean Igoe, Dick
Martin, and Jay Fraprie.
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 Petition is in connection with the property located at 125-133 Route 6-A, Yarmouth Port
(the "Property"), parts of which are in the B-1 and R-40 Zoning Districts. The rear lot, which has
historically been zoned R-40 but used as parking in support of the commercially -zoned portion of the
Property, has recently been rezoned as B - 1 by Town Meeting vote on October 26, 2021. The
rezoning amendment to the Yarmouth Zoning By -Law is currently under review by the
Commonwealth's Attorney -General. For purposes of the Petitioner's application, the entire
Property is considered to be zoned B-1, conditional on the Attorney -General's review.
The Petitioner is Urological Associates of Cape Cod, P.C. (the "Petitioner"), who is under
contract to purchase the Property from the current owner, P.J. Nyberg Family Limited Partnership.
Marian S. Rose, Esquire; Evan Cohen, representative of Petitioner; Dan Ojala, Down Cape
Engineering; and Roger Brooks, Cape Wide Construction appeared in support of the Petition.
Nancy Berry of 120 Main Street and Steve Spiewalk appeared in opposition to the petition and
voiced concerns over lighting and appropriateness of use and size of medical practice in historic
district. Ms. Berry had also submitted a lengthy memo which was provided to and read by the
Board members prior to the hearing, the contents of which were reiterated by Ms. Berry's oral
presentation. Dawn -Marie Flett, of 3 Lilac Lane, spoke in favor of the petition, identifying the
preservation of the deteriorating historic structure, soundness of plan and benefit of local medical
treatment as reasons for her support. The Petitioner previously secured Old King's Highway
Historic Committee approval by unanimous vote and underwent Planning Board Site Plan Review.
The project is under review to secure a stormwater permit through the Conservation Commission.
No new exhibits were received at the hearing.
The Petitioner sought permission to rehabilitate the large, historic primary building built in
1925 for use as a medical office and to redevelop the parking and access in support of the medical
office use. The Property consists of multiple parcels with the primary structure, an auxiliary structure
immediately to its rear, and a separate smaller commercial structure facing Rt. 6A. The Petitioner will
re -develop the Property as one property. The primary structure will be renovated but its footprint will
not be expanded.
The Petitioner sought relief to expand the rear parking area to accommodate the medical office
use and to raze and replace a pre-existing nonconforming garage with a structure to be used as a medical
practice's manager's office. The expansion of parking proposed would both extend the pre-existing
nonconforming parking on the south -side of the rear parking area and extend parking to the west -side of
the rear parking area (bordering the Cape Cod Cooperative Bank back parking area). The Petitioner
asserted that the Board could consider either parking extension as a special permit, as an extension of pre-
existing nonconforming parking, or as a variance, given that the parking in either case does not meet
current buffer requirements.
A lengthy discussion, including questions and consideration, took place concerning which parts
of the proposal required a special permit or a variance and the respective criteria for such relief, as well as
concerning the proposed parking and whether it was necessary or excessive to accommodate the medical
practice; the history of permitting on site; the effect of the Yarmouth Zoning By -Law rezoning of the rear
lot from R-40 to B-1; the lighting plan's design and function; the handling of medical waste, the reduction
of existing nonconformities on the site; and the need for more specificity regarding landscape choices and
sizes of specimens.
The Petitioner initially proposed the expansion of parking on the southerly rear lot line, no
further within the now required buffer between a commercial property's parking and a residential
property (20 feet required, 12 feet existing) than the parking buffer allowed by a use variance granted to
the prior owner by Petition No. 715 in 1965 when the parking area was zoned R-40 and the commercial
parking use was allowed only by variance. The Petitioner argued that relief could be granted for the
expanded parking as a special permit under Zoning By -Law 104.3.2.3 and in the alternative, a variance.
Similarly, Petitioner proposed that the Board consider permitting the expansion of parking into the west -
side rear parking area property line abutting the Cape Cod Cooperative Bank parking under a special
permit, and, alternatively, a variance to secure relief.
With regard to the proposed expansion of the southerly rear parking, the Board determined that
relief was permittable by special permit. However, Board members debated whether the extension of
parking would be substantially detrimental to the neighborhood, zoning district or Town. In response,
Petitioner agreed to submit a revised parking plan which would redesign the parking so that the buffer
between the southerly rear parking and the residentially -zoned abutter would be no less than twenty feet
and that four existing parking spaces located less than twenty feet of the southern property bound would
be relocated with a four space net reduction of parking spaces.
With regard to the proposed expansion of parking into the currently required buffer for the Cape
Cod Cooperative Bank, the Board reviewed the following requirements for a variance:
1. a literal enforcement of the provisions of (the Yarmouth Zoning By -Law) would involve a
substantial hardship, financial or otherwise, to the Petitioner;
2. the hardship is owning 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; 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.
The Board found that the Petitioner met the requirement to prove that a literal enforcement of the
Zoning By -Law would cause substantial hardship by a showing that failing to approve the expansion of
parking necessary for the medical practice would prevent Petitioner from using the large, historic primary
structure and the rest of the Property for its allowed medical office use. Members noted the parking
concerns of the Petitioner's Hyannis practice, the number of doctors and employees present and the
average number of patients each day. Further, while noting the prior variance was not controlling, the
Board agreed that, as with the earlier petition, the proposed medical office required expanded parking in
the rear of the Property and that "distinct hardship would exist were the Petitioner not allowed to use this
land in connection with its (allowed) use." Decision #752, 1965.
Members of the Board also noted that a hardship exists which is due to circumstances relating to
the shape and topography of such land or structures and especially affecting such land or structures, but
not affecting generally the zoning district in which a property is Iocated. Petitioner argued that the
hardship relates to the primary structure, which is large, historic and located towards the front third of the
Property. The viable economic uses for such a building are limited absent adequate parking. 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. The issue is unique to this Property. Members concurred.
Members noted that 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.
Members noted the benefits of the project, including the re -use and rehabilitation of the deteriorating
historic structure, the improved streetscape, the provision of accessible medical treatment to residents,
enhanced landscaped buffers along Route 6-A and abutting neighboring properties, attractive and
sensitivity -timed lighting, better traffic flow from Route 6-A by the elimination of an existing curb cut
and relocation of the remaining curb cut, conforming east -side parking and more conforming southerly
rear parking.
Members noted that the expanded parking abutting the west rear property line will track the
setback approved in the prior variance on the eastern side of the rear lot (ten feet) from the eastern
neighbor, also residentially -zoned. However, like the property considered in this application, the
neighbor's rear parking is used in the service of its commercially -zoned street facing parcel, the Cape Cod
Cooperative Bank. Members noted that concerns about the expanded commercial parking creating
nuisance or disturbance for neighbors aren't factors here. The location of the expanded parking adjacent
to neighboring commercial parking, no homes, and the intense screening of the parking, when little to no
vegetated screening exists, provide a significant improvement over existing conditions in the rear parking
area and because of its unique setting, will not nullify or derogate from the intent of the existing Zoning
By -Law.
The Petitioner also requested relief to replace the existing garage located adjacent to the south-
east corner of the main building with a 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. After some discussion regarding the use, size and relative necessity of the proposed
management office, the Board determined that the proposal would 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.
Based on the above and testimony received at the public hearing, the Board found that both, in
considering the expansion of rear parking and the raze and replacement of the garage, that the proposed
work is not substantially more detrimental or more nonconforming to the neighborhood, zoning district or
Town than the existing conditions, that the work 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 the strict enforcement of the current Zoning By -Law will result in undue
hardship to the Property or the Petitioner. Further, the Board found that the expansion of parking
abutting the Cape Cod Cooperative Bank's property to the west of this Property, meets the variance
criteria; namely that, a literal enforcement of the provisions of the Yarmouth Zoning By -Law would
involve a substantial hardship, financial or otherwise, to the Petitioner; that the hardship is due to
circumstances relating to the soil conditions, shape or topography of such land or structures and especially
affecting such land or structures, but does not affect generally the zoning district in which the Property is
located; and that desirable relief may be granted without either: substantial detriment to the public good;
or nullifying or substantially derogating from the intent or purpose of the Yarmouth Zoning By -Law.
Thereafter a motion was made by Mr. Igoe, seconded by Mr. Fraprie, and voted 4-0 in favor, to
grant the relief requested, in accordance with the plans submitted as follows and subject to the following
conditions:
1. Rear parking will be redesigned and a revised site plan submitted showing the southernmost
parking row moved further within the interior of the Property, reducing the total number of
parking spaces by four, adjusting the interior traffic islands as necessary, and increasing the
southern buffer to equal to or be greater than twenty feet. Parking will otherwise not be
changed from the planning scheme found on page C-3 of the site plan submitted with this
Petition without approval from the Board;
2. Hours of patient access to the primary medical practice will be Mondays through Thursdays
8:30 a.m. to 4:30 p.m and Fridays 9:00 a.m. to 4:30 p.m;
3. A landscape plan will be submitted showing, in greater detail, sizes and types of plantings
and identifying at least 3 inch caliper trees other than pear trees to be placed in the western
rear buffer area;
4. No more than eight doctors will treat patients at the same time at the Property. Should
Petitioner seek to add additional doctors working on site at the same time, Petitioner will seek
approval from this Board as well as all other boards requiring review;
5. Petitioner will seek sign relief, if needed, at another hearing;
6. Petitioner will secure a stormwater permit from the Yarmouth Conservation Commission;
7. The area shown as "Area C" on the lighting plan submitted to the Board will be placed on a
seasonal timer so that the lighting turns on as needed and is automatically turned off by 8 pm
each night. Areas A and B will also be controlled by a seasonal time and lights will be
turned off at 9 p.m. Lights shown as orange as shown on the exterior of the primary
building will be controlled by a seasonal timer and turned off at 11 p.m. Certain interior
lights inside the primary structure will remain on for safety and security purposes; and
8. All areas marked in green on the submitted site plan are agreed to be lawn with the
understanding that adequate mulching will be provided for trees located in these areas.
A vote was taken on the Special Permit for the rear parking, the Special Permit for the raze and
replacement of the pre-existing nonconforming garage; and a Variance for the expansion of parking
on the western rear parking and each was passed by unanimous (4-0) vote in favor, and the relief
noted was therefore granted.
No permit shall issue until 20 days from the filing of this decision with the Town Clerk. This
decision must be recorded at the Registry of Deeds and a copy forwarded to the Zoning Board of
Appeals. Appeals from this decision shall be made pursuant to MGL Chapter 40A Section 17
and must be filed within 20 days after filing 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, MGL c40A §9)
Steven S. DeYoung, Chairman
CERTIFICATION OF TOWN CLERK
I, Mary A. Maslowski, 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 #4917 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.
Mary A. Maslowski