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HomeMy WebLinkAboutDecision 2448 Filed 07.21.87 1 TOWN OF YARMOUTH BOARD OF APPEALS 00 Filed with Town Clerk: Hearing Date : July 9 , 1987 vk rY7 's t Petitioners -'„ 11, Petition No. 2448 9 11 .87 ���, 21 pa�nd_ Owners : The Green Company 1 "`.. 46 Glen Avenue Newton, MA 02159 T O'�ih DECISION RELIEF REQUESTED The Petitioner has appealed for relief to allow: A. A variance, in order that where private drives serve in lieu of streets , front yard setbacks for attached garages shall be measured from the center line of the travelled way, rather than 20 feet from the center line of the travelled way. B. Such other relief that the Board of Appeals deems meet and just . C. Waiver of strict compliance with the rules and regulations of the Board where it may deem such appropriate. LOCUS The property is a certain parcel of land containing approximately 194 acres on the northside of Route 6A in Yarmouthport , Barnstable County, Massachusetts , formerly known as Oak Harbour and now known as King's Way; shown on Yarmouth Assessors records , all sheets and lots as described in the original special permit and variance; and Sheet 120, lots , R1, R2 , R13 , 8 , E3 , E4, E5 , 9 , R10, E6 , All, Al2, A13 , A14, A31, A32, A33 , 34, 35 , E7 , E8A, E9A, E10, Ell, E12 , I , 22 , 23 , 24, 25 , 26 . Sheet 127, lots Z31, Z30 , M16 , M17 , Z15 . Sheet 128 , lots P29 , P28 , M27 , S26 , T25 , T24, T23 , G22 , G21, A20, A19 , A18 ; and/or other sheets and lots as may be on the amended records of the office of assessors; and is also shown on "L. C. Plan 35454A, Lots 2 , 22 ,- 23 , 24, 25 ,_26 ; L- C. Plan 34279C, Lots 9 - 37 , incl . , and Oak Harbour Circle ; L. C. Plan 35454A, Lot 68 and Oak Harbour Circle; L. C. Plan 38776A, Lots 1 - 13 , incl . , and Oak Harbour Circle ; L. C. Plan 34279-E, Lots 41 , 42 ; Certificates of Title No. 115310, No . 92243 . 1 PLANS The Petitioner has submitted plans , sheets 1 through 4 entitled: Plan of Land being a subdivision of LCC 34279C D E & LCC38776A & 35454B, King' s Way, Barnstable County Registry District , Yarmouth, MA; Arrow Engineering, Inc. , 10 Cape Drive, Suite B, Mashpee, MA 02649 , Sale 1" = 160 ' , Date October 15 , 1986 . FILING The Petition was duly filed. Notice was given as required by Law, including twice publication in the Register, a weekly publication having circulation in Yarmouth. Pursuant to notice, a public hearing was held by this Board of Appeals on the evening of July 9 , 1987 . In the course of the hearing several questions were posed to the Petitioner' s representatives by members of the Board of Appeals . Several Yarmouth residents were heard and response was made by representatives of the Petitioner and by members of this Board. MEMBERS OF BOARD OF APPEALS PRESENT: Donald Henderson Fritz Lindquist Joyce Sears Richard Neitz Leslie Campbell REASONS FOR THE DECISION CRITERIA AND AUTHORITY The criteria and authority for the grant of a variance are stated as follows : A. Yarmouth Zoning Bylaw • 1. 102 . 2 Powers - The Board of Appeals shall have and exercise all the powers granted to it by G.L. ch. 40A, 40B, and 41, as the Board' s powers are as follows : 2 . 102. 2.2 - To hear and decide appeals or petitions for variances from the terms of this bylaw, including variances for use , with respect to particular land or structures . Such variance shall be granted only in cases 2 where the Board of Appeals finds all of the following: a. A literal enforcement of the provisions of this bylaw would involve a substantial hardship, financial or otherwise, to the petitioner or appellant . b. 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 in which it is located. c. 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 bylaw. B. M.G.L. Chapter 40A Section 10 - Variances The permit granting authority shall have the power after public hearing for which notice has been given by publication and posting as provided in section eleven and by mailing to all parties in interest to grant upon appeal or upon petition with respect to particular land or structures , a variance from the terms of the applicable zoning ordinance or bylaw where such permit granting authority specifically finds that 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, a literal enforcement of the provisions of the ordinance or bylaw would involve substantial hardship, financial or otherwise , to the petitioner or appellant , and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or bylaw. FACTS ��temo" • "Thin-pet*t 1-submitted to-tyhe=Yarmouth Board of--- - Appeals by the Green Company, Inc. , a Massachusetts .. corporation having a usual place of business in Newton, Massachusetts , seeking a variance in accordance with the special permit and related variances, granted by the Yarmouth Board of Appeals 3 in its decisions of October 16 , 1975 , Petition No . 1321, upon petition of Oak Harbour Associates , the original petitioner, and extended by the Board of Appeals in its decision of April 13 , 1984, Petition No . 2048 , upon petition of Light House Associates , a prior successor to the original petitioner, as modified and supplemented by the Board of Appeals in its decision of February 13 , 1986 , Petition No. 2268 , upon the petition of the Green Company, Inc. all hereinafter collectively referred to as the Extant Decision. Said Extant Decision granted a Special Permit for open space village development , and related variances , for the project . Said Extant Decision states , in part , on page 14, paragraph 3 . (6) thereof; "Placement of the residential buildings on the lots mentioned above shall conform with the requirements of the Zoning Bylaw ( 1975) , most particularly Section 18 : 07 , Paragraph 4C. Said requirements may be varied by this Board, provided that a proper petition for a variance is presented and approved. " The requirements of the applicable sections of said Zoning Bylaw (1975 ) are as follows : "18 . 07 Open Space Village Development 4. Requirements . An Open Space Village Development must conform to the following: C. Dimensional Regulations . Lot size , lot width, setback, coverage , yard, and height regulations shall be the following: Minimum Front Yard 30feet Where private drives serve in lieu of streets , as with condominium development , yards shall be measured from a line 20 feet from the centerline of the travelled way. " 4111110, The Petitioner seeks a variance from footnote "c" 4 in order that where private drives serve in lieu of streets , front yard setbacks for attached garages shall ..be.measurecj from the.. center. line of...-the travelled way, rather than 20 feet from the center line of the travelled way. 4 CRITERIA SATISFIED The Prior Decisions granting a special permit for open space village development and related variances , together with extensions and modifications thereof, made all necessary findings with respect to the proposed project to comprise 750 dwelling units , a community center complex, a gate house, recreational facilities and open space, and associated maintenance, utility and service facilities . The Decision made allocations of particular lots to purposes of dwelling units , open space, sewage treatment facilities , and various other service facilities , and to the community center complex of interconnected buildings . It provided, however, that : "particular locations of buildings shown on the plan are not intended to fix absolutely the eventual siting or arrangement or lay-out of buildings or structure; " . . . and consequently the Board imposed the condition that , "Placement of the residential buildings on the lots mentioned above shall conform with the requirements of the Zoning Bylaw ( 1975) , most particularly Section 18 : 07 , Paragraph 4C. Said requirements may be varied by this Board, provided that a proper petition for a variance is presented and approved. " Subsequent to the original grant of special permit and variances in Board of Appeals Case No . 1321, the Planning Board proposed and the Town Meeting members passed, a change of said 1975 Bylaw. We assume that this section of the Zoning Bylaw was changed because the Planning Board and Town Meeting members recognized that setback requirements should be flexible given the specifics of a particular project , unique site aspects , prevailing circumstances , architectural design considerations , land use planning, conservation considerations and the desire to create as much open space as is practical and appropriate. Under the current zoning bylaw, a variance would not be required but rather the relief sought could be obtained pursuant to a special permit for cluster development , in accordance with Section 402 . 5 . 5 , subparagraph 4. , which states , 116. war "`= =vow.. "The .Boardt. maLmmAppeals ma edue• =7= dimensional requirements upon aclear demonstration that the proposed development offers exceptional advantages . In no case shall an exception be granted to increase the 5 allowable density of a cluster or planned residential development . " The Petitioner has provided to the Board a plan which shows that the Petitioner could build to its allowed density without the relief requested. Thus the variance as requested would not increase allowable density. Rather, the purpose of the Petitioner' s request is to increase green space within the open space village development and substantially reduce the amount of driveway pavement . As shown on the developer' s conceptual plans submitted at the hearing, units themselves would not encroach within the setback area. Only attached garages would so encroach. If the relief were not granted, the unit building would be moved back further from the travelled way allowing for the construction of said attached garages , but reducing green space generally and breaking up the larger green space areas that could be created at the rear of the cluster buildings . The proposed setback requirements would be more aesthetically pleasing, express more appropriate land use planning and would be sounder architecturally then the current requirement . This additional green space, together with the existing golf course open space areas , clearly demonstrate that the development as proposed has exceptional advantages over the current alternatives . A literal enforcement of the current applicable bylaw would involve a substantial hardship to the petitioner (as well as future homeowners within the project) because of the additional , but unnecessary paving cost , loss of green space and diminishment of architectural and aesthetic potential . The King's Way project is unique in Yarmouth. Multifamily residential development is no longer a permitted use north of Route 6 generally, nor within the Project ' s Zoning District specifically. The shape of the development area is irregular and is to be serviced by one main road called, King' s Circuit . There will be many village driveways . The open space village is intertwined through and around the only Yarmouth Golf Course North of Route 6 . The topography is undulating rather than the usual flat Cape Cod terrain. Said conditions do not effect the —Zoning -Dist<ri-et —genera}ly;� 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 bylaw because the variance will not increase project density, nor 6 adversely effect traffic, public water supply, sewage treatment , fire safety nor public health and safety as a whole. The current bylaw would allow this request for variance upon special permit which indicates that the applicable bylaw was not in the best interest of this type of development . Because the project is self contained, the proposed variance would not effect abutters or the surrounding neighborhood. Generally the proposal would enhance the project and the town generally. CONCLUSION AND DESIRED RELIEF The Decision and Relief herein granted shall run with the land and enure to the benefit of the Petitioner and its successors and assigns . MEMBERS VOTING nnDald TienrPrson Joyce Spars Fritz Lindquist Richard Neitz T,Psl i P Campbell All voted unanimously in favor granting the Petitioner' s request . Therefore , the Petitioner' s request for a variance is granted as requested for all the above stated reasons . No permit issued until 20 days from the date of filing the decision with the Town Clerk. Fritz Lindquist Clerk 0 o0 rn so 7 oi BOARD OF APPEALS • OWNER: NAME: The Green Company _ ADDRESS: 46 Glen Avenue APPEALS V NQwtc,n„MA_ 02199 HEARING DATE: / , q //F; PAID: g'1`2' xa PETITIONER: NAME: The Green Ceny ---- _- ADDRESS: 46 G enAAvenue Newton, MA. 02159 This application is for the property and/or structure located at: Off Route 6A, Yarmouthport --..-__& .Attached Rxhi hi t R — Including Assessor's Map (/ & Parcel 41 ---- I, We, hereby appeal from decision of the Building Inspector to grant permit and petition your Board for a public hearing on this action. Date refused Building Inspector I, We, hereby request the action checked below: 1. APPLICATION for SPECIAL PERMIT under Section (s) of the Yarmouth Z('nin By-Law and/or for a use authorized in the "Use Regulation Schedule" Section (s) to allow: ---- - --------------------- ------------------- ---- - 2. PETITION for VARIANCE from the terms of the Yarmouth Zoning By-Law to allow: See Attached Exhibit A - — - In order to grant petition, a variance of Section (s) 102.2.2 necessary. _— of the By-Law is A list of abutters within 300 feet of the perimeter of the property, as shown on the most recc Assessor's Maps is attached. N • 1' (N „r THE GREEN COMPANY, INC. N By Its Attorney, Aidito,S«•ecncy,S.uss^,P-obcr:son Ct. Dupuy,P.C. Matta,-hcese Prcfess:oaal Building r`- - 25 Mid-Tech Drive, Suite C RECEIVED BY TOWN CLRK West Yarmouth, MA 02.678 Appli 's Si ature r:UtYARD SWY, , ESQ. Copies of the Rules and Regulations of the Board and a general in;orr.ation sheet are arail .1.1 . from the Board 's secretary. • EXHIBIT A TOWN OF YARMOUTH BOARD OF APPEALS This petition is submitted to the Yarmouth Board of Appeals by The Green Company, Inc. , a Massachusetts corporation having a usual place of business in Newton, Massachusetts , seeking a variance in accordance with the special permit and related variances , granted by the Yarmouth Board of Appeals in its decisions of October 16 , 1975 , upon petition of Oak Harbour Associates , the original petitioner, and extended by the Board of Appeals in its decision of April 13 , 1984, upon petition of Light House Associates , a prior successor to the original petitioner, as modified and supplemented by the Board of Appeals in its decision of February 13 , 1986 , upon the petition of the Green Company, Inc. all hereinafter collectively referred to as the Extant Decision. Said Extant Decision granted a Special Permit for open space village development , and related variances , for a project , on a parcel of land containing approximately 194 acres on the north side of Route 6A, known and hereinafter referred to as the Oak harbour premises , (the "Premises" ) also shown on Yarmouth Assessor' s Maps as more fully described on Exhibit B attached hereto and also shown on "L. C. Plan 35454A, Lots 2 , 22 , 23 , 24, 25 , 26 ; L.C. Plan 34279C, Lots 9-37 , incl. , and Oak Harbour Circle; L. C. Plan 35454A, Lot 68 and Oak Harbour Circle; L. C. Plan 38776A, Lots 1-13 , incl . , and Oak Harbour Circle; L. C. Plan 34279-E, Lots 41, 42 ; Certificates of Title No . 115310 , No. 92243 . Said Extant Decision states , in part , on page 14 , paragraph 3 . (6) , thereof; "Placement of the residential buildings on the lots mentioned above shall conform with the requirements of the Zoning By-Law (1975) , most particularly Section 18 : 07 , Paragraph 4C. Said requirements may be varied by this Board, provided that a proper petition for a variance is presented and approved. " The Petitioner hereby seeks such a variance from said Bylaw to allow: 1. Where private drives serve in lieu of streets , front yard setbacks for attached garages shall be measured from the center line of the travelled way, rather than 20 feet from the center line of the travelled way. 2. Such other relief that the Board of Appeals deems meet and just . 3 . Waiver of strict compliance with the rules and regulations of the Board where it may deem such appropriate. Page 2