4846 Wise Living 822-834 Route 28P I r
TOWN OF YARMOUTH
BOARD OF APPEALS
DECISION
FILED WITH TOWN CLERK: August 5, 2020
PETITION NO: #4846
HEARING DATE: May 28, 2020
PETITIONER: Wise Living Development LLC
OWNERS: Maclyn LLC, 834 Main Street Realty Trust, and
Baker frank LLC
PROPERTIES: 822 Route 28, 834 Route 28 and 30 Frank Baker Road,
South Yarmouth, MA
Map 33/Parcel 70.1
Map 41/Parcel 12
Map 41/Parcel 11.1
Zoning District: B2, HMOD1, ROAD, and VCOD VC2
Title References with the Barnstable County Registry of Deeds:
Book 28032, Page 179 Lot 1 on Plan in Book 653, Page 1
Book 25968, Page 22 Lot I on Plan in Book 41, Page 125
Book 32123, Page 16 Lot 2 on Plan in Book 653, Page 1
MEMBERS PRESENT AND VOTING: Sean Igoe, Dick Martin, Tom Nickinello, and Susan Brita
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 Wise Living Development LLC. The Property, located in the B2, HMOD I , ROAD, and
VCOD VC2 Zoning Districts, is currently the site of the Irish Village Hotel and restaurant complex, a
commercial building containing three rental spaces, and a vacant parcel of land.
The Petitioner seeks permission to redevelop the Property into a mixed -use project consisting of senior
housing, medical offices, and commercial and office use as follows:
A Wise Living Retirement Community for senior housing with 120 units (104 studios and 16
one -bedroom units), common resident dining facility, and outdoor swimming pool;
2. A leased medical complex (maximum of two (2) doctors and related support staff) plus an
exercise/rehabilitation facility and wading pool; and
Continuation of existing uses in the existing commercial building, all as shown on the submitted
plans.
The Petitioner was represented by Andrew Singer, attorney, and Kieran Healey, engineer.
The Petitioner is seeking Variance relief in accordance with Section 102.2.2 of the Yarmouth Zoning By -
Law and M.G.L. Chapter 40A, Section 10, from certain provisions of Section 414.8 — VCOD Design
Standards, in connection with the redevelopment to approve the submitted design as shown on Site Plan
Sheet S-2B and elevation plans and as further described in detail as follows:
1. Not construct additional building modulation styles and frequency on the south, east, and west
sides of the re -developed 822 Route 28 building beyond those shown on the submitted plans
(open gable end porches/patios and port icos)(Sections 414.9.3, 414.8.5, and 414.8.6);
2. Not construct additional building modulation styles on the west side and eliminate building
modulation on the east side of the re -used 834 Route 28 building beyond adding dormers, open
porch, and cupola on west side of building (Sections 414.8.3, 414.8.5, and 414.8.6);
3. Retain the second, existing freestanding sign for the 834 Route 28 building in addition to
maintaining a freestanding sign for the redeveloped 822 Route 28 building (in approximately the
same location as existing) on the combined Property (Section 414.8.11);
4. In lieu of constructing a new sidewalk adjacent to the existing sidewalk, provide an eight -foot
easement to the Town for future construction or relocation of the existing sidewalk on Route 28 if
such relocation is ever desired (Section 414.8.1.4); and
5. Replace three (3) in -lot trees with three (3) in -lot shrubs and relocate one (1) in -lot island with
tree to exceed spacing requirements in the parking lot of 822 Route 28 due to the proximity to the
existing subsurface septic areas to be re -used in connection with the redevelopment (Section
414.8.9.4).
The proposal has been reviewed by Yarmouth Design Review Committee, Yarmouth Site Plan Review
Team, and Yarmouth Planning Board for VCOD Site Plan Review and Use Special Pen -nit Review. The
Yarmouth Town Planner submitted a letter to the Board of Appeals dated May 11, 2020, providing
Planning Board comment in support of the requested relief. There was no other correspondence in the file
and no public comment at the hearing.
The Petitioner submitted the following testimony in support of the Petition:
The proposed residential use is allowed by Planning Board Special Permit and the 01 medical
use is allowed by right on the Property. The Yarmouth Planning Board granted the Use Special
Permit on May 20, 2020. The redevelopment includes merging all three lots into one lot with no
change to the retail and conmiercial uses in the 834 Route 28 commercial building.
2. Developments and redevelopments in the VCOD2 Zoning District must, with few exceptions,
comply with the design standards set forth in Section 414.8 of the Yarmouth Zoning By -Law. To
vary any of these design standards requires a Variance from the Board of Appeals. While the
Proposal complies with all dimensional requirements of the Zoning By -Law, as a redevelopment
and re -use of an existing developed hotel and restaurant property and facilities, and not the razing
and reconstruction of existing structures, there are certain aspects of the detailed architectural
design standards in the VCOD Overlay Zoning District that are impractical and/or not
architecturally desirable to make with this Property.
The Board of Appeals 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 rclating 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.
4. The historical, developed layout and nature of the existing structures and site infrastructure to be
re -used on the Property present a unique condition that results in a substantial financial and
practical hardship if a literal enforcement of all of the Section 414.8 Design Standards is imposed,
and the requested 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,
for the following reasons:
A. The aesthetics of both buildings will be significantly upgraded and enhanced. The large
822 Route 28 building will be upgraded with a new porte-cochere at the main entrance;
several new, small roofs at entrances; and conversion of the predominantly flat roof to a
pitched roof with cupolas, gables, parapets, and dormers, all to break up massing and
improve visual interest. Otherwise, this building will be re -used in the same footprint.
Roof -top solar will be provided along the east and west wings of the building away from
Route 28 and will not be visible from any street. The 834 Route 28 building will be
enhanced on the west side with a new open bump out, dormers, and cupola, while the east
side is proposed to remain the samc and is mostly screened by the fence along the
easterly property line;
B. The Proposal is a mixed -use redevelopment encouraged by Section 414.3.3 of the "Zoning
By -Law and will improve pedestrian and vehicular access between properties. By re-
using existing buildings and site infrastructure, the redevelopment will be less intrusive
than a new development;
C. Existing, mature screening along the front, sides, and rear of the Property will be retained
where possible, and an extensive new front landscape buffer is being provided in place of
existing parking in this area as shown on the Landscape Plan. The number of required in -
lot trees behind this perimeter screening is proposed to be reduced by three (changed to
shrubs) and one tree relocated so that the existing septic system components can continue
to be used. The goal of the VCOD Design Standards for breaking up parking lot design
will be met;
D. Curb cuts will remain the same, vehicular and pedestrian interconnections will be added,
pre-existing nonconforming parking design will be eliminated, conforming parking will
be provided, public safety vehicle access will be maintained, and trip generation will be
reduced with the elimination of the public restaurant and transient hotel use. There is an
existing sidewalk along Route 28 in front of the Property. By offering the Town an
easement for future use if the existing sidewalk is ever relocated or upgraded in lieu of
constructing a new sidewalk now adjacent to the existing sidewalk, there will be more
landscaping provided at the front of the Property and the aesthetics will be improved;
E. Maintaining two signs as existing at the existing curb cuts will appropriately continue to
identify the businessses to remain at the Property (822 Route 28 changing from hotel and
tm
restaurant to senior living and 834 Route 28 remaining as existing with three rental
spaces — hair salon, retail, and office) and enhance safety for residents, customers, and
visitors;
F. The existing buildings will remain conforming with the dimensional requirements of the
Zoning By -Law (setbacks and height), and building coverage and site coverage on the
Property will remain conforming;
G. Exterior building lighting will be upgraded with dark -sky compliant, traditional New
England period fixtures. New pole lights in the existing parking fields will also be dark -
sky compliant, traditional New England period fixtures. There is one light pole on Route
28 in the State Highway Layout that provides light at the front of the Property; and
H. The proposal will not cause or contribute to any undue nuisance, hazard or congestion in
the neighborhood, zoning district or Town, and there will be no substantial harm to the
character of the neighborhood or Town. The proposal will provide needed services and
residential opportunities in the Town.
The Board members asked questions and discussed the existing and proposed freestanding signage,
sidewalks in the area and a future sewer along Route 28, the septic systems and in -lot trees and islands,
the design of the redevelopment of the two buildings, as well as the granting of Variances from the design
standards of the Zoning By -Law and the intent of the VCOD section of the Zoning By -Law. The Board
members were split on whether the granting of design Variances should be authorized.
After polling the Board concerning the requested Variances for no further building modulations to the two
buildings beyond what was proposed, the Petitioner requested that so much of the Petition as covered the
redeveloped design of the two buildings be withdrawn without prejudice. On a Motion by Mr.Nickinello,
seconded by Ms. Brita, the Board voted four (4) in favor and none opposed to the request for a partial
withdrawal without prejudice.
Based on the above and additional testimony and discussion received at the public hearing, the Board
took the following subsequent votes:
Based upon findings that the proposal as presented as it relates to freestanding sign relief satisfies
the criteria of Section 102.2.2 of the Zoning By -Law and M.G.L. Chapter 40A, Section 10, by
promoting safety and convenience to the traveling public, on a Motion by Mr. Martin and
seconded by Ms. Brita, the Board voted four (4) in favor and none opposed to grant a Variance to
allow the second existing freestanding sign to remain on the condition that it be replaced to match
the design of the ultimate main building freestanding sign in compliance with VCOD regulations;
11
Based upon findings that the proposal as presented as it relates to the number and location of in -
lot trees satisfies the criteria of Section 102.2.2 of the Zoning By -Law and M.G.L. Chapter 40A,
Section 10, by promoting re -use of the existing infrastructure on the Property, on a Motion by Mr.
Martin and seconded by Ms. Brita, the Board voted four (4) in favor and none opposed to grant a
Variance to replace the required trees in three (3) of the new, in -lot. parking islands with shrubs
and to relocate one (1) required new, in -lot tree and island as shown on the plans; and
Based upon findings that the proposal as presented as it relates to providing a sidewalk easement
in lieu of constructing a second sidewalk along the Property frontage satisfies the criteria of
Section 102.2.2 of the Zoning By -Law and M.G.L. Chapter 40A, Section 10, by providing
additional green space and flexibility for any future redevelopment of the Route 28 State
Highway Layout. on a Motion by Mr. Martin and seconded by Mr. Nickinello, the Board voted
four (4) in favor and none opposed to grant a Variance to allow the Petitioner to grant an eight (8)
foot easement along the Property frontage to the Town and/or Commonwealth of Massachusetts
for the purpose of future sidewalk construction or relocation in lieu of constructing a second
sidewalk adjacent to the existing sidewalk on the condition that the Petitioner agrees to pay for
the replaced or relocated sidewalk on the Property if the existing sidewalk in the State Highway
Layout either disappears or becomes dilapidated and unusable and is not replaced by either the
Commonwealth of Massachusetts or the Town of Yarmouth.
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 Board of Appeals.
Appeals from this decision shall be made pursuant to MGL c40A section 17 and must be filed within
20 days after filing of this notice/decision with the Town Clerk. Unless otherwise provided herein,
the Variance shall lapse if a substantial use thereof has not begun within 24 months. (See bylaw,
MGL c40A §9)
5
THE
COMMONWEALTH OF MASSACHUSETTS
TOWN OF YARMOUTH
BOARD OF APPEALS
Appeal # 4846 Date: August 25, 2020
Certificate of Grantiniz of Variance
(General Laws Chapter 40A, Section 11)
The Board of Appeals of the Town of Yarmouth Massachusetts hereby certifies that a
Variance has been granted to:
PETITIONER: Wise Living Development LLC
OWNERS: Maelyn LLC, 834 Main Street Realty Trust, and
Baker Frank LLC
Affecting the rights of the owner with respect to land or buildings at: PROPERTIES:
822 Route 28, 834 Route 28 and 30 Frank Baker Road, South Yarmouth, MA
Map 331Parcel 70.1
Map 41/Parcel 12
Map 411Parcel 11.1
Zoning District: 112, HMOD1, ROAD, and VCOD VC2
Title References with the Barnstable County Registry of Deeds:
Book 28032, Page 179 Lot 1 on Plan in Book 653, Page l
Book 25968, Page 22 Lot 1 on Plan in Book 41, Page 125
Book 32123, Page 16 Lot 2 on Plan in Book 653, Page 1
and 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) provides that no 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 days (20) 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.
Sean lg airman
4 or
MATTACMEM
TOWN OF YARMOUTH
■ �� Town
1 146 ROUTE 28, SOUTH YARMOUTH, MASSACHUSETTS 02664-4451 Clerk
Telephone (508) 398-2231 Ext. 1285. Fax (508) 398-0836
CERTIFICATION OF TOWN CLERK
I, Susan M. Regan, To" n Clerk, Town of Yarmouth, do hereby certify that 20 days have elapsed
since the fiIin�(I with me of the above Board of Appeals Decision #4846 that no notice of appeal
of said decision has been filed with rne, or, if such appeal has been filed it has been dismissed or
denied. All appeals have been exhausted.
?i
i
Susan M. Reran
Town Clerk