HomeMy WebLinkAbout1321 Decision Accessory Structure Variance June 1975 the omission of common accessory facilities was inadvertent, but under a literal
interpretation of the by-law, these facilities may be excluded which in our judgement
imposes a significant hardship on the petitioner not of its own making since the by-law
amendment substituting Sec. 18:07 for the earlier apartment by-law came after the ;.
petitioners acquisition of the site and in fact after our 1973 grant to the petitioner
of a special permit under the (prior) apartment by-law.
In summary, we find that owing to physical land conditions -affecting the petitioner's
parcel but not affecting generally other land in the RD-2 district, a literal enforce-
ment of the by-law insofar as it might prevent inclusion in the proposed development
of customary and necessary accessory facilities would involve substantial hardship to
the petitioner.
The garages and outside yard facilities requested in this variance can be granted
without any adverse effect either on the neighborhood surrounding Oak Harbour or on
townspeople in general, because these requested structures and uses are all common to
the single family dwellings situated nearby in the neighborhood. We note that the
dominant character, from a land use point of view, of the area along Route 6A between
Yarmouthport and the Dennis Town line is residential; none of the requested accessory
structures is in any way inconsistent with this pattern of development.
We find therefore that the requested variance may be granted without substantial
detriment to the public good and without derogating in any measure from the intent and
purpose of the Yarmouth zoning by-law.
DECISION
Upon the affirmative and unanimous vote of the Board on June 17, 1975, a variance
was granted in all respects and particulars as requested in Variance Request #1.
ACCESSORY STRUCTURES, USES AND FEATURES APPURTENANT TO THE PROJECT AS A WHOLE -
GENERAL INFORMATION
Description of relief requested: These variances cover:
The proposed Community Complex on Lot 4 and use thereof.
The proposed sewage treatment plant on Lot 9 and proposed sewage treatment
facilities, an office, laboratories and parking and vehicle storage areas on Lots 1,
3, 6, 7,9, 10, 11, 12, 17, 18, 30 and 34 as shown on the plan accompanying variance
request 04,which plan is entitled "lots for sewage treatment plant and related facilities"
and use of the same.
The proposed maintenance buildings and facilities on Lot 13A and use thereof.
The proposed Gate House structure partly on Lot 12A and partly within the right
of way of Oak Harbour Circle. •
The proposed Garden Club building on Lot 11A, and use thereof.
General landscape accessory facilities throughout the development.
Open space recreation facilities such as tennis courts and paddle courts on Lots
5, 17, 22, 11A and 32.
General golf course accessories such as markers, benches,
drinking
fountains, wash
racks and rain shelters on any golf course which may be
A replacement shrub and tree nursery, and 3 signs at the entrance.
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• We adopt as our findings the above list of physical characteristics affecting the
Oak Harbour parcel.
We further specifically find that these physical characteristics affecting the
petitioner's parcel do not affect generally the remaining land in this RD-2 zoning
district. No other parcel of vacant land in the district in united ownership is this
large. No other parcel of land in the district has the peculiar topographic features of
the petitioner's tract, namely, a high and relatively level central plateau with dis-
associated low areas on opposite sides separated from the uplands by steep slopes having
elevation differences of approximately 70 feet. No other land in the district has and
is restricted by a Federal Flight Control facility. No other substantial parcel in the
district is to the best of our knowledge, as separated and isolated physically from
its surroundings or as dependent on a small section of its perimeter for access. Finally,
no other parcel is split down the middle by an ancient path such as Hockanom Road.
EFFECT OF LAND CONDITIONS ON THE SUBJECT PARCEL
The land conditions described above which make this parcel unique in the zoning
district have direct bearing on how the land may be developed and used and therefore on
the petitioner's variance request.
We find that the land conditions uniquely applicable to the petitioner's parcel
make necessary the utilization of Yarmouth's Open Space Village by-law provisions.
The configuration of the parcel dictates a development scheme which will hold the
number and length of primary streets to a minimum. The reports to us state, and we
find, that the petitioner's subdivision plan (which is the basis for the petitioner's
applications to us for variance and special permit relief) observes this principle,
whereas a single or two-family subdivision scheme would not.
We conclude, therefore, that in this respect, land conditions applicable to petitio-
ner's parcel call for development under the Open Space Village scheme.
By reason of land condition number 4 (isolation of the parcel due to the absence
of secondary road connections) , all traffic from the parcel, no matter what type of
development is involved, will of necessity flow south toward and over the parcel's 125
feet of frontage on Route 6A in order to bear east or west on Route 6A. There is no
other access. The lower section of this entrance road, which is the only one possible,
will therefore bear the heaviest volume of traffic into and out of the development. A
standard single family or two-family subdivision would inevitably contain lots fronting
on these lower portions of the main entrance street which would expose dwellings con-
structed thereon to a relatively heavy flow of traffic. On the other hand, development
of the land under Sec. 18:07 will permit these exposed and comparatively busy areas near
the entrance to be left open. In this important respect, therefore, we find that the
shape and location of the land dictates a cluster scheme of development of the tract.
In summary, we specifically find that the several land conditions noted above would
uniquely affect the petitioner's parcel and for practical purposes compel the devel-
opment of the parcel under the cluster treatment provisions of Sec. 18:07 of the zoning
by-law.
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The effect of these findings on each of the structures or uses requested in the
petitioner's variances (giving rise to the petitioner's hardship) , and in turn the
\impact that each variance if granted will in our judgement have on the intent and
purpose of the zoning by-law and on the character of the neighborhood we now deal with
on a category by category and variance by variance basis:
ORGANIZATION OF MATERIAL
The subject matter of the variances falls within four general categories or groups
as follows:
I. Accessory structures for each residence building.
II. Accessory structures, uses and features appurtenant to the project as a
whole.
III. Non-residential uses.
IV. Structures, facilities and uses which do not (or may not) comply with the
zoning by-law.
The material presented to us at the hearing was organized according to this group-
ing and we utilize the same format for our report.
I. ACCESSORY STRUCTURES FOR EACH RESIDENCE BUILDING - GENERAL INFORMATION
Description of relief request: Principally, this request covers 83 garage-storage
sheds to be situated on lots numbered 2, 8, 11, 13, 14, 15, 16, 18, 20, 21, 23, 24,
26, 28, 29, 31, 35, 8A and 10A (reference to lot numbers appearing here and elsewhere
in this report are to lots and lot numbers shown on the petitioner's subdivision plan
dated February 14, 1975 and approved by the Planning Board for the Town of Yarmouth on
March 19, 1975) for use of residents of the dwellings to be constructed on these lots
and to be sited with respect to such dwellings approximately as shown on the plan
attached to the variance request, which plan is entitled, "Typical cluster, Oak Harb-
our." Final siting and placement of these garage-storage sheds will be shown on the site
plans to be submitted under Sections 18:07-4-E and 18:10-6-B prior to the commencement
of each cluster.
This variance also covers typical residential accessory facilities such as patios,
decks, fireplaces, canopies, unenclosed outdoor structures such as gazebos, refuse
receptacles and bird houses.
The variance also covers those accessory uses permitted under Sec. 18:02, paragraphs
8 and 9, of the Yarmouth zoning by-law.
Reason Requested: This variance is requested because there is no provision in Sec. 18:07
of the zoning by-law for structures or uses accessory to the multi-family dwellings
specifically permitted by special permit under paragraph 4D of said Sec. General
accessory structures and uses are set forth in Sec. 18:02 of the by-law, but only with
respect to structures and uses permitted thereunder; under Sec. 18:02 (applicable to the
RD-2 zoning district) , residential buildings are limited to those for one or two families.
Variance #1 Specific Findings (Dwelling Accessories Variance)
The reports to us at the hearing state that an open space village without basic
accessories and facilities such as garage-storage sheds would make little sense. Based
on these reports and on our own experience, we conclude that the facilities requested
in this variance are a practical necessity.
These accessory and appurtenant facilities are not clearly permitted under Sec.
18:02 and 18:07 of the by-law. We do not believe this is intended and conclude that
structures thereon which are the subject of Variance No. 8.
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Variance 6
The petitioner asserts that the gate house on Lot 12A, in order to be effective, must
ue situated near enough to the paved part of Oak Harbour Circle for drivers to converse
with the gate house attendant; as such, the structure will not observe the open space village
setback requirements (under Section 18:07-4-c, a minimum front yard of thirty feet is
required) and in fact will encroach partly on the right of way of the street itself.
Variance 9
The third variance in this category is requested because Section 18:9-7 of the by-law
specifies that no fills exceeding 5 feet may be made without the approval of the Board
of Selectmen.
Variance 10
The fourth variance in this category deals with one of the two density requirements
for multiple family dwellings. Footnote (a) to Section 18:07-4-C requires that there be
8,000 square feet of lot area for each dwelling unit constructed on any of the proposed
"housing lots.' This requirement will not be met.
Variance 11
This variance request that submission of detached site plans not be required for a
cluster or phase until that phase is about to be built is inserted because of ambiguity in
Section 18:10-6 which applies to special permits for open space village developments. To
the extent that this section might be interpreted as preventing the Board of Appeals from
:ing upon the petitioner's related special permit petition without detailed site plans
tirst being prepared and submitted, a variance is requested.
Variance 13
The final variance in this class, seeking permission to limit use of the yard areas
on each housing lot to the residents of dwellings constructed on the lot or to groups of
residents less than the whole, is inserted because Section 18:07-4-F of the open space
village by-law leaves it unclear whether in a subdivided development, the open space to be
held for common use of all residents is that open space needed to meet the 30% requirement
(the first two sentences in Section 18:07-4-F provide: "all land not designated for roads,
dwellings, or other development within the open space village development shall be held for
common use of the residents of the development. Open space shall be preserved for recrea-
tion or conservation; and shall comprise not less than 30 per cent of the applicable land
area within the development plan.") or includes all land which will have no buildings, roads
or other development on it. To the extent it may be intrepreted to mean the latter, a
variance is requested.
VARIANCE 43 (ii) - Specific Findings (Golf Course Assessment Variance)
We find that we should have a concern for prospective buyers who as owners may have
no interest in use of such golf course facilities, and who therefore may object to
assessment of golf course maintenance and operating expenses as common charges. Fairness
would dictate that assessments on owners planning to use the golf course be heavier than
- - those not doing so. As a corollary, non-paying residents should not object to some
nitations upon their use of the golf course open space.
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• ' In summary, we find that owing to physical land conditions affecting the petitioner's
parcel but not affecting generally other land in the RD-2 district, a literal enforcement
of the by-law insofar as it may be deemed to require preparation and submission of site
Tans under section 18:07-4-E and 18:10-6 for all buildings in the development prior to
+ssuance of or any use by the petitioner of the special permit requested in the petitioner's
related application would involve substantial and unnecessary hardship to the petitioner.
The controls established in the by-law for the siting, landscaping, screening, parking
and utilities of and for all buildings in open space village developments (Plans subject
to site plan review shall show the location and dimensions of the lot, the exact location
and size of any existing or proposed buildings, streets and ways adjacent to the lot,
existing and proposed topography, drives, parking, landscaping, park or recreation areas, use
of structures and land,screening, water, sanitary sewerage,, and storm drainage; and
separate plans shall also show ground floor plans and architectural elevations of all pro-
posed buildings and signs, to be prepared (except in the case of one and two--family dwell-
ings) by a registered architect or engineer if such buildings contain 35,000 cubic feet of
space or more (section 18:10-6-A)) will not be cast aside by the issuance of this variance;
it is a condition of our granting this variance that all plans and details required under
the by-law be submitted and reviewed. This variance goes only to the timing of submission.
Therefore, the Town and its residents should in no way be affected and the standards
in the by-law for site planning will in no way be undercut.
We find,therefore, that the requested variance 011 may be granted without substantial
detriment to the public good and without derogating from the intent and purpose of the
Yarmouth zoning by-law.
DECISION
Upon the unanimous affirmative vote of this Board, a variance was granted, on this
17th day of June, 1975, in all respects and particulars as requested in Variance Request
O11 subject to the condition specified therein.
VARIANCE 113 - Specific Findings (Local Yard Enjoyment Variance)
The attractiveness and therefore saleability of dyelling units within a cluster dev-
elopment depends in part on the ability of the developer to set aside for the exclusive use
of residents of each building or group of buildings in a cluster exclusive use of adjacent
yard areas, sometimes referred to as local common areas. This makes it possible for unit
owners to enjoy the same individual or local control of immediate yards that is one of the
main characteristics of single lot, single family home ownership. It also in our esti-
mation will stimulate among owners of units in the same subvillage, the consciousness of
neighborhood and feelings of identity needed in a project this large.
From our reading of Section 18:07 as a whole, we find nothing in the general scheme
of open space villages indicating that the foregoing should not occur, but we agree that sec-
tion 18:07-4-F, taken literally, could be deemed to bar designation of local yard areas for
the exclusive use of one or several residents and to require common use of all unbuilt
areas including local yards by all residents of the development. We find that this would
be unduly and unnecessarily burdensome to the petitioner (not to mention a unit owner
without a yard).
In summary, we find that owing to physical land conditions affecting the petitioner's
arcel but not affecting generally other land in the RD-2 district, a literal enforcement of
the by-law insofar as it may be deemed to prevent the petitioner from limiting use of the
yard areas on lots with dwellings thereon to the residents of those dwellings or to groups
of such residents would impose a severe and substantial hardship on the petitioner.
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This variance seeks only to permit the developer to set aside local yard areas on each
housing lot for the exclusive use of the residents of that dwelling or cluster of dwell-
ints.
As such, the matter is entirely one of internal rights and restrictions; it does not
have anything to do with people outside the development. Abutters will see no difference
in the day-to-day running of Oak Harbour no matter whether this variance is granted or
not. We find that this variance will have no effect whatever on the surrounding neighbor-
hood or on the residents of Yarmouth.
With respect to the intent of section 18:07-4-F of the by-law, we conclude that its
basic purpose is to ensure that certain required open space, constituting at least 30Z
of the total land area, be made available for the use and enjoyment of all residents. As
long as this requirement is met, and we have made certain in our special permit that it
will be met at all times, during construction and after, we conclude that the sense and pur-
pose of the open space village by-law will be well observed.
We find therefore, that the requested variance #13 may be granted without substantial
detriment to the public good and without derogating in any measure from the intent and
purpose of the Yarmouth zoning by-law.
DECISION
Upon the unanimous affirmative vote of this Board, a variance was granted in all respect
and particulars as requested in Variance Request #13 on the 17th day of June, 1975.
In all of the previous decisions, we find that this parcel of land is unique enough
4n topography and shape to warrant and make advisable cluster development under the
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`- Irmouth by-law:
The following appeared in favor of the petition:
Richard Anderson, Attorney Hr. Chandler, J. Robertson, J. Karras, E.B.Duar (by
letter), Marian McKinnon (by letter), Robert Helwig (by letter), Richard G. Allen (by letter)
The following appeared in opposition:
DuPont P.J.Rozelle (by letter)
if
The request for variances was granted. 1'
Members of Board voting on June 17, 1975 to grant the above variances:
Thomas N. George - voted in favor
Robert Sherman - voted in favor
David Oman - voted in favor
Phillip Dempsey - voted in favor
Herbert Renkainen - voted in favor
No permit issued until 22 days from date of filing the decision with the Town Clerk.
per Robert Sherman
secretary, pro tem
for the above listed members of the Board
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