HomeMy WebLinkAbout5034 0 Forsyth Ave Decision RecordedBk 35903 Pg143 #29203
07-24-2023 @ . 10 : 1.0a.. .
FILED WITH TOWN CLERIC:
PETITION NO:
HEARING DATE:
PETITIONER:
PROPERTY:
TOWN OF YARMOUTI
BOARD OF APPEALS
DECISION
.June 23, 2023
5034
June 22, 2023
Coastal Medical Transportation Services LLC
0 Forsyth Avenue, South Yarmouth, MA
Map $S, Parcel 94
Zoning District: B-1 and APD
Title: Book 8156, Page 233
MEMBERS PRESENT AND VOTING: Chairman Steven DeYoung, Sean Igoe, Dick
Martin, Jay Fraprie, and John Mantoni
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 Applicant (or Coastal) seeks to reverse the decision of the Building Commissioner and/or a
Special Permit per §202 and/or Variance from §202.5 for a F-2 use in the B-1 zoning district to
construct a new building on a portion of the lot, with office space and a transportation service
building, for non -emergency ambulance service.
The Property is located in the B-1 Zoning District, as well as the Aquifer Protection District, and
is an unimproved lot containing 3.32 acres. The lot appears on a plan recorded in 1972 in the
Registry of Deeds and has 278 feet of frontage on Old Townhouse Road. Due to the size of this
lot, it was the applicant's decision to develop only the 1.7 acres located closest to Old
Townhouse Road, leaving the remaining 1.6 acres, with frontage on Forsyth Road, undeveloped
for the time being. Petitioner seeks to construct a building on the site which will house its offices
and an indoor parking area for up to 21 ambulance vehicles. The proposed building complies
with all of the bulk requirements of the zoning bylaw, including all setbacks, height, lot
coverage, buffers and parking. The only relief needed in this case pertains to the use of the
property.
Coastal is the only non -emergency medical transportation service on Cape Cod, Nantucket and
Martha's Vineyard, providing these services to nursing homes, hospitals, healthcare facilities,
and patients needing transportation to and from home for doctors' appointments or for
transportation between medical facilities. Coastal plans to store ambulances inside the building,
A TRUE COPY ATTEST:
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JUL 7
2023
Bk 35903 Pg144 #29203
as is required by law, when they are not in use. When crews are on -shift the vehicles are out on
the road doing transports or staged at nearby healthcare facilities. Wheelchair vans would be
parked in the parking lot, on the overnights, between 4 pm and 5 am when not in use. The
location would also be used for its corporate offices and dispatch center. Coastal does not
perform any of its own maintenance on the vehicles so none of this would be done on -site.
Household products and quantities are stored only, and the applicant has secured the Hazardous
Waste waiver from the Board of Health to operate in the Aquifer Protection District, The uses
are limited to the storage of vehicles and office space. Although equipped with sirens and
emergency lights, none are used leaving or entering the proposed site.
As indicated, the Petitioner has applied for three forms of relief, each independent of the other.
Specifically, the applicant is seeking to overturn the Decision of the Building Commissioner
dated Apii120, 2023 which classified its use in the Zoning Bylaw as F2 "Local & commuter
passenger transportation tenninal (inc. bus, cab, rail & other transportation)". Second, the
petitioner is seeking a Variance to allow the F2 Use to be conducted at the site. Finally, the
applicant is seeking a Special Permit pursuant to Yarmouth Zoning Bylaw Section 202.1 and
102.2.3.
Counsel for the Petitioner explained the reason for seeking to overturn the Decision of the
Building Conunissioner for the fact that the use that is intended at the site is not easily identified
in either Zoning Bylaw, nor the North American Industry Classification System (NAILS), the
standard used by Federal statistical agencies in classifying business establishments for the
purpose of collecting, analyzing, and publishing statistical data related to the U.S. business
economy, and upon which the Yarmouth Building Commissioner relies to assist in difficult use
classifications. The Board agreed that the proposed use of the property by Coastal does not fit
securely in either the F2 or Fb uses, and that confusion regarding this classification process is
exacerbated by the ever -changing business uses of the time and the reference to a classification
system which is cumbersome and not published in the Bylaw itself.
The Applicant then addressed its basis for requesting relief pursuant to Bylaw Section 202,
which states that, as in this case, "if a use is not specifically allowed, by right or special pen -nit, it
shall be considered to be not allowed unless an appeal is taken under section 102.2.3 and it is
shown beyond a reasonable doubt to be of similar nature and at least no more noxious nor
detrimental to the welfare of the neighborhood than a specifically allowed use." By relying on
Section 202, the Board need not look for a specific classification code for the proposed use.
Rather, the analysis centers on the impact of the actual uses to be made of the property, as
compared to the impact that allowed uses in the zoning district would bring to the neighborhood.
Being in the B-1 Zoning District, allowed uses include restaurants, retail stores including
convenience stores, banks, funeral homes, repair shops, doctors and lawyers' offices, schools and
churches.
There were many Yarmouth residents who spoke both in favor of the project and the applicant,
including the Yarmouth Police Department, and abutters who were opposed to the perceived
impact that the project would bring to their contiguous residential neighborhood, including
traffic, noise, light and environmental changes to the wooded, unimproved property.
A TRUE COPY ATTEST.
C:Mi:/ "iCtUlrlti Ct.FiiC
JUL 17 2023
Bk 35 903 Pg145 #2 92 03
Although reticent to overturn the Decision of the Building Commissioner, who had reached his
decision based on a thorough review of the Bylaw and the NAILS, the Board determined that
using the standard outlined in Section 202.1 was a more appropriate form of relief. The Board
was of the consensus, and found, that the proposed use as office uses and for parking of
ambulances and other vehicles is, beyond a treasonable doubt, to be of similar nature and at least
no more noxious nor detrimental to the welfare of the neighborhood than a specifically allowed
use. They also found that the proposed use would be less intensive, quieter, cleatler, and would
generate less traffic, than allowed uses, such as recited above.
Accordingly, a motion was made by Mr. Martin, seconded by Mr. Mantoni, to grant the relief in
the for -in of a Special Permit pursuant to Yarmouth Zoning Bylaw Section 202, as requested,
with the following conditions:
1. A 5-foot-high fence will be constructed along the easterly boundary of the petitioner's
property to be used for this project, which abuts the rear of residential abutters; and
2. No sirens would be utilized leaving or entering the property.
The members voted unanimously in favor of the motion, with the stated conditions, as follows:
Steven DeYoung: Aye; Scan Igoe: Aye; Dick Martin: Aye; Jay Fraprie: Aye; John Mantoni: Aye
A request was made to withdraw, without prejudice, the request for relief in the form of the
Request to Overtuni the Decision of the Building Commissioner and the request for a Variance.
Accordingly, a motion was made by Mr. Martin, seconded by Mr. Fraprie, to grant the request to
withdraw those requested forms of relief. The members voted unanimously in favor of the
motion as follows: Steven DeYoung: Aye; Sean Igoe: Aye; Dick Martin: Aye; Jay Fraprie: Aye;
John Mantoni: Aye
No permit shall issue until 20 days from the filing 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 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
§103.2.5, MG c40A §9)
Steven DeYoung, Chairman
CERTIFICATION OF TOWN CLERK
1, Mary A. Maslowski, Town Clerk, Town of Yarmouth, do hereby certify that 20 days have
elapscd since the filing with me of the above Board of Appeals Decision #5034 that no notice of
appeal of said decision has been filed with me, or, if such appeal has been filed it has been
dismissed or denied. All appeals have been exhausted.
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a- Mary A. M owski
JUL 17 2023
A TRUE COPY ATTEST:
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JUL 17 2023
Bk 35903 Pg146 #29203
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Petition #: 5034
COMMON WEALTH OF MASSACHUSETTS
TOWN OF YARMOUTH
BOARD OF APPEALS
Date: July 14,, 2023
Certificate of Granting of a Special Permit
(General Laws Chapter40A, Section 11)
The Board of Appeals of the Town of Yarmouth Massachusetts hereby certifies that a Special Permit has been
granted to:
Coastal Medical Transportation Services LLC
Affecting the rights of the owner with respect to land or buildings at: 0 Forsyth Avenue, South Yarmouth,
MA; Map 88, Parcel 94; Zoning District: B-i and APD; Title: Book 8156, Page 233 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 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 Clerk 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 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,
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Steven DeYoung, Chairman
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