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Home My WebLink About4487 43 Union St Decision/ f _".4 TOWN OF YARMOUTH BOARD OF APPEALS DECISION 3u:CSr'n2:06 REC FILED WITH TOWN CLERK: PETITION NO: HEARING DATE: PETITIONER: #4487 December 9, 2013 November 14, 2013 James R. Gustafson d/b/a The Body Shop PROPERTY: 43 Union Street, YarmouthPort, MA Map & Lot#: 0124.8.4; Zoning District: R40 Book/Page: 21154/117 MEMBERS PRESENT AND VOTING: Steven DeYoung, Chairman, Sean Igoe, Debra Martin, Bryant Palmer and Chuck Hart. • ' 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 stated above. The Petitioner, James R. Gustafson, seeks a Special Permit under Zoning By-law §103.2, regarding Use Table §202.5 (08) (footnote 12) to pursue his operation of a "small scale" massage therapy service as an accessory use in his dwelling (primary residence) located at 43 Union Street, YarmouthPort, MA, property located in an R-40 Zoning District. The Petitioner represented the property to be his primary residence. This residence is one of four housing units, developed pursuant to a grant of a Comprehensive Permit under M.G.L. c 40B, issued in 2004. In the first instance, the Board needed to consider if the requested relief was a substantial or insubstantial change to the Comprehensive Permit previously granted. Guided by 760 CMR and the definitions therein contained, the Board made a determination that the requested relief was an insubstantial change and so, therefore, could proceed on its own merits. Mr. Gustafson spoke in support of his Petition explaining that the relief sought was to accommodate his goal of assisting clientele of his business known as "The Body Shop" by providing limited massage therapy services from his home and thereby facilitating clientele's access to services in the Mid -Cape as opposed to traveling to his commercial location. His representation was that it would operate under limited use, of approximately 12 clients per week. Two neighbors spoke in opposition, each particularly concerned with the potential traffic in such a small, congested neighborhood and that a commercial endeavor was not compatible with the residential character of the neighborhood. Board members generally expressed concern that the relief sought ran contrary to the clear intent of the conditions set forth in the grant of the Comprehensive Permit, Petition #3926 and particularly condition #6. Despite the Board's expressed misgivings, the Petitioner sought to have the Board act on the — Petition. _Accordingly, Motion was made by Mr. Igoe to deny the Petition. The Motion was seconded by Ms. Martin and the Board voted unanimously in favor of the Motion. Therefore, the Petition was denied. ----- 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 Special Permit shall lapse if a substantial use thereof has not begun within 24 months. (See bylaw, MGL c40A §9) Steven DeYoung, C rman 2 TO: FROM: SUBJECT': DATE: TOWN OF YARMOUTH 1146 ROUTE 28 SOUTH YARMOUTH MASSACHUSETTS 02664-4451 Tcicphonc (508) 398-2231. Ext. 1275 — Fax (508) 398-2365 MEMORANDUM Steve DeYoung, Chairman Zoning Board of Appeals Karen M. Greene, Director of Community Development 43 Union Street — Comprehensive Permit November 7.2013 DEPARTMENT OF COMMUNITY DEVELOPMENT The Zoning Board of Appeals has received an application from the owner of 43 Union Street for a Special Permit to "...operate a small scale massage therapy service as an accessory use in a dwelling that is his primary residence". Because the property was originally permitted via a comprehensive permit, the Zoning Board of Appeals must first consider the proposed change and whether the change is substantial or not. Should the change be considered insubstantial, the applicant may proceed with their application for a special permit as has been duly advertised. Should the change be considered substantial, the applicant will be required to re -submit their application as a modification to the existing comprehensive permit. For your information, I am attaching a November 2012 letter from Attorney Peter Freeman regarding 121 Camp Street. Attorney Freeman clearly outlines the applicable process and the categories of change that are generally considered substantial. Additionally, I am attaching the relevant sections of the state's regulations for comprehensive permits. I hope that this information is helpful to the Board. Should you have any questions or require additional information, please let me know. Ip PIMed m Req W P.PW FREEMAN LAW GROUP LLC VF Attorneys at Law Peter L. Freeman Kevin T. Smith, Of Counsel Leedara Zola pfreemanp frecrnwila%group.com hmah,a freemanla%group coin Kola a Gecmanla%group coin Tcl.(508)362-4700 N1obdc(781)854-Z430 Tel.(5081362-4700 (978)369-0634 Tel. (5041362-47u0 Atohle(508)'60-6144 Mobile (9781549-3399 November 3, 2012 Via Hand Delivery Town of Yarmouth Town of Yarmouth "Zoning Board of Appeals Deputy Building Commissioner James D. Brandolini 1146 Route 28 1146 Route 28 South Yarmouth, MA 02664 South Yarmouth, MA 02664 Re: 121 Camp Street — Mill Pond Village Condominium Units 99 through 105 — Rear Decks NOTICE OF PROJECT CHANGE Dear Zoning Board Members and Mr. Brandolini: Reference is made to the Comprehensive Permit issued to The Villages at Camp Street, LLC dated and filed with the Town Clerk on November 15, 2001 for the above -referenced project (the "Comprehensive Permit"). On behalf of my clients, the Trustees of the Mill Pond Village Condominium Trust, we are hereby requesthig that the Yarmouth Zoning Board of Appeals (the "Board") approve a minor modification to the approved Comprehensive Permit pl=: approve the rear decks on seven (7) units, e.g., Units 99, 100, 101, 102, 103, 104 and 105. All of the decks are 10' X 10' except for Unit 100 which has a 12' X 12' deck. The reason for this request is that the decks were constructed by the project developer in approximately 2005-2006, and the unit owners who purchased the units in question had no knowledge that the decks were not shown on the approved plans. On information and belief, Certificates of Occupancy were issued for the units as built with the decks. The other units in the project have tear patios at first floor ground level. The reason that these seven (7) units have the decks is that they are located on a hill, with the rear grade approximately one story lower than the front grade at the unit entrance on the first floor. Clearly, rear at -grade patios would not be accessible from the first floor of the units. These decks do not have a detrimental impact on either the Town or the other residents in Mill Pond Village. 86 Willow Street ■ Yarmouthport, MA 02673 • Phone (508) 3624700 0 Fax (508) 362-4701 This notice is being provided pursuant to 760 CMR 56.05(11)(a), and we hereby request that you find that these changes are insubstantial, in accordance with 760 CMR 56.05(11)(a) and (b) and 760 CMR 56.07(4). Pursuant to these regulations, the Board shall determine within twenty (20) days whether these changes are insubstantial, and if it is determined that they are insubstantial changes, or if notice is not provided to the applicant to the contrary within such twenty (20) day period, the Comprehensive Permit shall be deemed modified to incorporate the changes. The above process does not require a public hearing. A public hearing is only required if you determine that the changes are substantial changes, in which case a public hearing is to be scheduled within thirty (30) days of your determination on substantiality. The proposed changes are not among the five (5) types of changes that "generally will be substantial changes" under 760 CMR 56.07(4)(c), i.e.: 1) an increase of more than 10% in the height of the buildings; 2) an increase of more than 10% in the number of housing units proposed; 3) a reduction in the size of the site of more than 10% in excess of any decrease in the number of housing units proposed; 4) a change in building type (e.g., garden apartments, townhouses, high-rises); or 5) a change from one form of housing tenure to another. We would request that this matter be placed on the Agenda for your next available meeting. It is my understanding that you meet on the second and fourth Thursday of each month, which would be November 8 and November 22, 2012. However, if it is too late to be placed on your November 8 h Agenda, and due to the fact that November 22 is Thanksgiving so there cannot be a meeting on that date, then on behalf of my client we agree to be placed on the Agenda for your first meeting in December, which I believe will be December 13, 2012, and if so, then we agree to extend the 20 day period described above accordingly. If you have any questions, please feel free to contact me. Thank you. Very truly yours, Peter L. Freeman cc: Trustees, Mill Pond Village Condominium Trust REC7VE J NOV 1 rARVJ, .- -JIB+ 1t anopu r 1 A,'PF,%LS