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Home My WebLink About5013 22 Whites Path Decision RecordedBk 35836 Pg86 #23291 0 6 -12 - 923: , :@ k' 4 9p, FILED WITH TOWN CLERK PETITION NO: HEARING DATE: TOWN OF YAftMOUTH BOARD OF APPEALS DECISION May 17, 2023 5013 April 27, 2023 PETITIONER: 22 Whites Path, LLC PROPERTY: 22.Whites Path, South Yarmouth, MA Map 97, Parcel 13 Zoning District: B-1 and APD Title: Book 35557, Page 135 MEMBERS PRESENT AND VOTING. Chairman Steven DeYoung, Dick Martin, Jay Fraprie, John Mantoni and Sean Igoe 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 Cape Cod Times, the hearing opened and held on the date stated above, The Petitioner seeks a Special Permit per § 104.3.2(4) and/or Variance from §202.5 for a D3 use in the B-1 zoning district for a Special Trade Contractor Yard. The Property is located in the B-1 Zoning District and the Aquifer Protection District, and is improved with a two-story commercial structure constructed in approximately 1975, on a lot contairung 26,136 square feet of area. The last tenant of the property was Intercity Alarm, which occupied the property since 1976 until mid-2022. From the time that Intercity Alarni took occupancy until now, the building has undergone a number of changes. In 1984, this Board granted relief to allow for the addition of approximately 1,000 square feet of area and to add 4 covered parking spaces. (Decision 2051). In 1987, relief was granted to Intercity Alarm to build a second -floor addition, having another 1,300 square feet (Decision 2472). Li the course of that application, the Building Commissioner determined that the use being made of the Property was pre-existing and non -conforming. Over the years, a number of other changes were made in accordance with validly issued building permits and based on a number of determinations made by the Building Commissioner. In 1991, two underground gasoline tanks, with a capacity of 2,000 gallons, were removed from the property pursuant to Pen -nit 91-06. The application included a recitation that the use of the property included retail sales. In 2010, 2 non-structural walls and raised floor were removed pursuant to Building Permit B-I 1-639. In 2011, the Building Commissioner approved a Zoning A TRUE COPY ATTEST' Y��, a &40X444 Cim * it m, c 7TOWN GLEKK Bk 35836 Pg87 #23291 Determination for a Business Certificate Application, and classified the use tieing made of this property as "Miscellaneous Business", which is currently a K11 use under Zoning Bylaw Section 202.5. That use is pennitted in the B l Zoning District. During its tenure at the Property, Intercity Alarm conducted the following activities -- office uses, including the remote monitoring of customer alarm systems, storage of alarm systems, components, and electronics, and retail sales of batteries, smoke and carbon detectors, and keypads. Service vehicles were typically dispatched to customer homes for installations, repairs, and service of alarm systems. There is no proposal to change any part of the structure at this time, as this request for relief pertains solely to the use of the property. The tenant which will occupy the building, Coastal Plumbing and Heating, LLC (Coastal), is a heating, plumbing, electrical, air conditioning and ventilation company which will continue to use the property in primarily the same manner as Intercity Alarm. In addition to office uses, which are permitted in this zoning district, all work will be done at each. customer's location, with service technicians picking up stored systems and components at the property, and delivered and installed elsewhere. Limited retail sales of plumbing, electric and retail fixtures will continue. Being located in the Aquifer Protection District, a waiver from the Board of Health was secured for the reason that not more than household quantities of hazardous materials will be kept on site. As such, zoning relief pursuant to Bylaw Section 406 is neither requested nor needed. The relief tonight deals only with the proposed use of the property, which the Building Commissioner has determined to be a D3 use, a Special Trade Contractor's Yard, which would require a Variance in the Bl Zoning District. In the alternative, and pursuant to Bylaw Section 104.3.2 (4), this Board can determine that the lawfully pre-existing non -conforming uses made by Intercity Alarm may be changed or extended, and issue a Special Permit. It is Petitioner's position that the uses made of the Property by Intercity Alarm are identical to the proposed uses by applicant's lessee. The only difference is the type of product and service being provided off -site. Second, prior Building officials have already determined that the prior uses were lawfully pre-existing non -conforming. Third, a different Building official determined that the use made by Intercity Alarm was a "Miscellaneous Business", which is not a lawfully pre- existing non -conforming use, but rather, an allowed use in the B l Zoning District. Despite_ this inconsistency in classification with the current determination, the Board was inclined to provide relief pursuant to Zoning Bylaw Section 104.3.2(4) for the reason that the use of the property by Intercity Alarm was legal pre-existing non -conforming and that the change or extension of that use by Coastal will not be substantially more non -conforming and will not be substantially more detrimental to the neighborhood, zoning district or Town than is the existing non -conforming use. However, based on the nebulous definition of a "Special Trade Contractors Yard", and the potential businesses which could one day operate from this location, the Board was inclined to condition any relief upon the continued use as defined above, and that any variation of that use would require further relief from this Board. Accordingly, a motion was made by Mr. Igoe, seconded by Mr. Fraprie, to grant the request for the Special Permit pursuant to Zoning Bylaw Section 104.3.2(4), as requested, but with the A TRUE COPY ATTEST. t* . CNAPA „u PC hr,C.? f TC,,WN CLE f;K 11i11 - -1 91199 Bk 35836 Pg88 #23291 condition that any change of use from that proposed by the applicant, whether by this petitioner or future owners or occupants, must be presented acid approved by the Zoning Board Appeals. The members voted as follows: Steven DeYoung - Aye Scan Igoe - Aye Dick Martin - Aye Jay Fraprie - Aye John Mantoni - Ave A motion was made by the petitioner to withdraw any and all relief requested for a Variance, without prejudice. The Board voted unanimously in favor of this motion. No permit shall issue until '20 days from the fling of this decision with the Town Clerk. Appeals from this decision shall be made pursuant to MGL c40A section 17 and must be filed within 20 days after fling 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 §103.2.5, MGL c40A §9) -�J=' �D �� Steven 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 #5013 that no notice of appeal of said decision has been filed w1th me, or, if such appeal has been filed it has been dismissed or denied. All appeals have been exhausted. Mary A. Maslowski JUN - 7 2023 A TRUE COPY A17EST: -u Bk 35836 Pg89 #23291 COMMONWEALTH OF MASSACHUSETTS TOWN OF YA.RMOUTH BOARD OF APPEALS f 4f. Petition #: 5013 Date: June 7, 2023 Certificate of Granting of a Special Permit (General Laws Chapter 40A, Section 11) The Board of Appeals of the Town of Yarmouth Massachusetts hereby certifies that a Special Permit has been granted to: 22 Whites Path, LLC Affecting the rights of the owner with respect to land or buildings at: 22 Whites Path, South Yarmouth, MA; Map 97, Parcel 13; Zoning District: B-1 and APD; Title: Book 35557, Page 135 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 Pennit, and 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) and Section 13, provides that no Special Permit, or any extension, modification or renewal thereof, shall take effect until a copy of the decision bearing the certification of the Town Cleric that twenty (20) days 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 narne 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. Steven DeYoung, Chairman A TRUE COPY ATTEST: �'r=iSTS�➢Y ��l�N�bli�F OF DEED: o orrrllcTb I c D-MrVditwcr cnm onrarrar ry