HomeMy WebLinkAboutDecision 2393 40 Whites Pathi
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BOARD OF APPEALS
Original Decision
Filed with Town Clerk: February 27, 1987 Bearing DAte:. 1/8/87
Amendment Filed: 16 I987 Petition No: 2393
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Petitioner: William S. Anthony Logan Clark, III
25 Starboard Lane 8 Wolf Hill Road
Osterville, MA East Sandwich, MA
AMENDMENT AND CORRECT10% OF DECISIO\
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Fliereas the decision of the Board of Appeals in petition No. 2393 filed with the Town
Clerk did not fully recite the decision of the Board; at its reeting the Board with
all members who were present and voting at the original hearing, on motion, unanimously
voted that said decision be amended and corrected as follows:
_ 1. The following language is added to said decision, said language ;acing been inaccer-
tautly left out of the decision as originally typed,
All upgrading of site called for in this decision shall be completed within
14 six (6) months from the date of filing the amended decision.
72. Otherwise, the original decision is hereby ratified and confirmed in its entirety.
�No permit issued until 20 days from the date of filing this amendment and correction of
decision with the Town Clerk.
Fritz Lindquist
Clerk
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RECEWED TOWN OF YARMOUTH
p� BOARD OF APPEALS
•87 Filed xith Town Clerk: FEB 2 7 W7 Hearing Date: January 8, 1987
TOWN CLERK ;',;:.;'..;.:• Petition No. 2393
Petitioners: William S. Anthony Logan Clark, III
25 Starboard lane 8 Wolf Hill Road
Osterville, MA. East Sandwich
'',..``MA.
DECISION
86/r7
RELIEF REQUESTED
The Petitioners and property owners have appealed for
relief,
To allow: change of use within a none conforming
structure as shown and in accordance with site plan
submitted herewith on petitioners property -on "'Whites
_ Path, Yarmouth, Massachusetts as shown on Yarmouth
Assessors Map Number 86 Lot T7 as more fully described
in a deed recorded in Book 3692 Page 186 and shown. on
PlItn Book 268 Page 37:-
1. by special permit in accordance with N.G.L.
Chapter 40A and Yarmouth Zoning Bylaw sections 103.2
and 104.3.2- from previous use categories of E15 .and Al
to use categories of H11 and Al.
2. by special permit as aforesaid from previous use
categories as aforesaid to allow future use changes to
use categories of Al and; E-8, F-7, F-8, H-1, H-2, H-3; _
H-8, H=9, all I uses, J6, all K uses, all M uses, all 0
uses except 07, Pl, P2, P1O, Q5, without further relief
from the Board of Appeals.
3. by variance in accordance with M.G.L. Chapter 4OA
and Yarmouth Zoning Section 102.2.2 to also allow use
G1, but limited to the wholesale of automotive parts
and accessories.
4. to allow such other relief that the Board of Appeals
deems meet and just,
5. and to waive strict compliance with its rules and
regulations where the Board may deer :uch appropriate.
Page 1
The property is*a certain portion of land improved with
the buildings on Whites Path, Yarmouth, Massachusetts .as
shown on Yarmouth Assessors Map Number 86 Lot T7 as more
fully described in a deed recorded in Book 3692 Page 186 and
shown on Plan Book 268 Page 37.
The Petitioner has submitted a plan entitled, SITE PLAN
OF LAND IN (SOUTH) YARMOUTH, MASS, prepared for William
Anthony, scale 1" = 20', dated 12-2-86, drawn by Down Cape
Engineering, as revised and supplemented.
HEARING
The Petition was .duly filed on December 4, 1986. 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 January.8, 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 David Oman
Fritz Lindquist Leslie C=bell
Morris Jobnson
REASON FOR THE DECISION
FACTS AND BACKGROUND
The petitioners are the owners and lessors of the 40
White's Path building. The building is a rectangular two story
.facility which has had a history of mixed uses -within a limited
business zoning area. The building lot contains 0.53 acres
(approximately 23,087 square feet).
Page 2
Lot conformancy comparisons to the zoning bylaw are as
follows:
Site Bylaw
Square Footage 23,087 259000
Frontage * 100, 150'
Front * 30' 30'
Side * 8' 25,
Rear * 29' 20'
* at shortest point
Interior space and parking calculations are as follows:
Retail space: 1900 s.f. x 1 occupant/30 s.f. =•633 occ.
633 occ. x 1 space/7.00 = 9.05 spaces
Warehouse: 6200 s.f. x 1 occupant/100 s.f. = 62 occ.
62.0 occ. x 1 space/7 occ. - 8.86 spaces
2 bedroom apt: 2 spaces
Total.spaces required: 20
Total spaces provided: 18
Handicapped Parking Requirement: 1 space
Tree requirement 20 spaces x 1 tree/8 spaces 3 trees
Existing and proposed septage and drainage information are as
shown on the petitioners plan. The site is also nonconforming
as to current buffer requirements.
This two.story building has a recent use history as follows:
1. There exists a two bedroom rental apartment on the
second story at the rear of the .building. This use
schedule Al residential use is permitted within the
limited business district and the petitioner
contemplates no change in this use.
2. Recent previous use has been E-15, machinery,
Advantage Machinery.
3. Current uses subject to Board of Appeals approval
are:
A. A-1, rental apartment
B. H-11, retail store
County Auto Supply, Inc.
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Page 3
Both uses are allowed uses within the Limited Business
District. However, the building inspector interprets section
104.3.2 of the Yarmouth Zoning Bylaw 'as requiring a .special
permit for change of use within a non conforming structure
even if the new use is permitted within the zoning district
if the previous use was within a different use category.
The .current building, while it conformed to the Zoning Bylaw
when built is currently a non conforming structure. Given
the lot and building size little can be done to upgrade .the
site- relative to buffers. Proposed upgrades are shown on
the plan. The site is very similar to other business and
commercial sites in the neighborhood.
After an appearance before site plan review on December 9, 1986
the petitioner made revisions of its site plan and has provided
a revised plan together with additional landscaping and buffer
information to the Board. Additional drainage on site and
perforated pipes and down spouts are shown on the revised plan
together with plantings within a newly ,created front buffer.
Parking calculations have been addressed and the maximum
possible spaces have been shown. The misnomer indicating ware-
housing use has been deleted.
Further, 'the proposed tenant County Auto Supply has provided to
the Board of Health a list, quantity and procedures relative to
possible hazardous materials to,be sold on site. County Auto
Supply has also ,indicated the .following particulars on its
intended use:
"Our plans are to run a Retail based automotive
business very similar to the ADAP stores in Hyannis
and Falmouth. Our hours would b64-rom 8 a.m.•to, 5
p.m. Monday to Friday maybe 8 p.m. in the summer, and
8 a.m. to 5 p.m. Saturday, possibly 12-5 p.m. on
Sundays.
We will be running the store with a'minimum of 3
people and a maximum of 5.
We will be selling at Discount prices .to the public a
variety of replacement. parts for automobiles as well
as accessories, tools, polishes, waxes and
lubricants, these being the only items that could
even remotely be considered hazardous. However, they
are packed in plastic or fiber containers just like
ADAP, Bradlees or Sears. No bulk storage tanks are
required.
Under no circumstances will any repair work be done -
on the premises."
Page 4
The petitioner requests a second special permit to allow future
use changes without return to the Board of Appeals. Said uses
are all permitted within the Limited Business District as
follows:
(Note: The following uses have been dropped from the
petitioner's original request; 0-6 Research and Development
Office, Q-5 Neighborhood, Convenience Store, M4• Miscellaneous
Repair Shops)
Al
Residential Apartment
Yes
E8
Painting and publishing
Yes
F7
Communications Facility
Yes
F8
Public Utility
Yes
H-1
Bldg. materials & garden supplies
Yes
H-2
Gen. Merchandise stores
Yes
H-3
Food stores
Yes
H-8
Apparel and Accessories
Yes
H-9
Furniture and Home Furnishings
Yes
I-1
Banking & Credit Agencies
Yes
I-2
Securities and Commodities Brokers
Yes
I-3
Insurance Carriers Agents & Brokers
Yes
I-4
Real Estate Managers, Agents and
Service
Yes
I-5
Holding & other investment offices
Yes
J-6
Miscellaneous personal services
Yes
R-1
Advertising Agencies
Yes
-K-2
Consumer Credit Reporting
Yes
K-3
Mailing, Reproduction, Commercial
Art Services
Yes
K-4
Building Cleaning & Maintenance
Services
Yes
K-5
Extermination Services
Yes
K-6
News Syndicates
Yes
K-7
Personnel Supply Services
Yes
K-8
Computer and Data Processing
Yes
K-9
Detective Agencies and Guard
Services
Yes
K-10
Motion Picture Production
Yes
M-1
Electrical Repair
Yes
M-2
Watch clock & jewelry repair
Yes
M-3
Reupholstery & furniture repair
Yes
0-1
Doctor and Dentist Offices
Yes
0-2
Legal office
Yes
0-3
Engineering & Architectural Offices
Yes
0-4
Accounting Auditing and Bookkeeping
Office
Yes
0-5
"lanagement, consulting & public
relations
Yes
0-8
Other professional office
Yes
P-1
Educational Institutions
Yes
P-2
Religious Institutions
Yes
P-10
Municipal Use
Yes
Q-3
Other accessory uses
Yes
Page 5
Further, the petitioner request
s
CRITERIA
A. The criteria for the grant of special
permit are stated as follows:.
1. Zoning By -Law Section 103.2.2: Special
permits shall not be granted unless the applicant
demonstrates that no undue nuisance, hazard or
congestion will be created and that there will be no
substantial harm to the established or future character
of the neighborhood or town.
2. Chapter 40A: Special permits may be issued
only for- uses which are in harmony with the general
purpose and intent of the ordinance or bylaw, and shall
be subject to general or specific provisions set forth
therein; and such permits may also impose conditions,
safeguards and limitations on time or use.
B. The change, extension or alteration of a prior
existing non -conforming use or structure criteria are stated
in Section 104.3.2 of the bylaw as follows:
"Pre-existing non -conforming structures or uses
may be extended, altered or changed in use on special
permit from the Board of Appeals if the Board of
Appeals finds that such extension, alteration or change
will not be substantially more detrimental to the
neighborhood than the existing non -conforming use."
C. The criteria for .the grant of a variance are stated
in section 102.2.2 of the Yarmouth Zoning Bylaw as follows:
1. A literal enforcement of the provisions of this
bylaw would involve a substantial hardship,
financial or otherwise, to the petitioner or
appellant.
2. 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.
3. Desirable relief may be granted without either;
substantial detriment to the public Food; or
nullifying or substantially derogating From the ;
intent or Ferpose of this bylaw.
Page 6
CRITERIA SATISFIED
The criteria as stated above are met in that as to the
special permits requested all uses are allowed within the
District. While the site is currently non conforming such
non conforming sites are protected by section 104.3 of the
existing bylaw which states that,
"104.3' ltonconformancy. The lawful use of any structure
or land existing at the time of enactment or subsequent
amendment of this bylaw may be continued, although such
structure or use does not conform with provisions of
the bylaw..."
Thus inasmuch as such nonconforming structures and uses are
specifically protected by the bylaw, they therefore must be
in harmony with the general purpose and intent of the bylaw
which is stated in Section 100 as follows,
"100 PURPOSE
The purpose of this bylaw is to promote the health,
safety, convenience and welfare of .-the inhabitants by
dividing the town into districts and regulating the use
and construction of buildings and premises therein."
The petitioner via, its plan has adequately addressed the
issues of use, .parking, septic -and drainage. Given the
petitioners plan:
1. No undue nuisance, hazard or congestion will be
created and that there will be no substantial harm
to the established or future character of the
neighborhood or. . town, because- all requested
special permit uses are allowed in the District.
2. The proposed project is in harmony with the
general .purpose and intent of the bylaw, because
the bylaw allows the uses requested.
3. The proposed project will not be substantially
detrimental to the neighborhood than the existing
nonconforming use, because the proposed special
permit uses are similar to the prior use and to
other uses existing in the neighborhood.
Page 7
t.
As to the variance the petitioner'has asked for only limited
relief. The wholesale of durable automotive .parts and
accessories is merely incidental and necessary to the main
use of retail sales. Given the allowed uses in the District
and the design of the building failure to obtain relief to
allow necessary wholesale sales would make the building
difficult to lease and thus cause a substantial hardship
to the petitioner. The -location of the lot in a Limited
Business District but, near the industrial district makes its
situation relatively unique. Given the shape of the .lot
which is long and narrow and the fact that the building is
designed partially for bulk storage of merchandise this
locus situation is not akin to what is generally found in
the District.
Thus 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.
Given the above the petitioner agrees to the following
conditions of granting of the relief requested:
1. Site upgrades will be'completed in accordance with
petitioners plans..
2. The -two -special permits granted are. subject to each
tenant obtaining a rental license or approval from
the Board of Health.
3. The variance for -wholesale use is strictly limited to
use .by County Auto Supply, Inc. as, incidental and
accessory to its automotive supply retail operation.
CONCLUSION AND DESIRED RELIEF.
The petitioner is granted the special permits and
variance as requested,for the reasons herein cited.
The Decision and Relief herein granted shall run with the
land and enure to the benefit .of the petitioners and their
heirs, devisees, successors and assigns.
KUMERS VOTING
Page 8
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All voted unanimously in favor granting the Petitioner's
request.
Therefore, the Petitioner's requests for relief are granted as
above 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 pro tem
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