HomeMy WebLinkAboutDecision 1896TOWN OF YARMOUTH
BOARD OF APPEALS
Filed with Town Clerk: FEB 2 5 [n"
Petitioner: Hyannis Marine Service, Ltd.
Wayne - ;Kurker
Arlington St..
Hyannis, Mass.
i�
DECISION
Hearing Date: 1/13/83
Petition No.: 1896
The petitioner requested a variance and/or approval and/or a special permit from
the Board of Appeals to allow marina use on property located on Arlington Sty Wt Yar-
mouth, Mass., shown on Assessors map #16--A1, being adjacent to property known as
Hyannis Marine Service, Ltd.
Members of Board of Appeals present: Robert Sherman, Myer Singer, Donald Henderson,
David Oman, Les Campbell.
It appearing that notice of said hearing has been given by sending notice there-
of to the petitioner and all those owners of property deemed by the Board to be
affected thereby and -that public notice of such hearing having been given by publi-
cation in the Yarmouth Sun on 12/29/82 and 1/3/83, the hearing was opened and held
on the date first above written.
The following a eared in favor of the petition: By letters: Gerald Kappitt &
Benjamin Baxter, Jr., stating lot in question has been used in the past for the
storage of boats; Petition signed by citizens in favor of petitioners request.
Attorney Dranitz,for petitioner; Mr.platani,Mr. G.Havener; Lee Colton; A.Luke.
The following appeared in opposition: By letters. Gertrude Puccia, Marion King,
Thomas & Ruth Wholley, Minna, & Alan Cohen, J.David Officer, Marcia & Richard Wade,
R.Bergen VanDonen & Betty B. VanDonen, Peter Kevorkian, Mr. & Mrs. Ferro, Edwin H. Bearse,
Ann M. Morrison, Barbara Hulley Ackermann (for Benjamin & Joan Hulley), William &
Elinor Bill, Mr. & Mrs. John Siefken, Mary & Gerald Colonna, Antonetta DiGiovanni &
Edward DiGiovanni. Mr. Mattos, in person at meeting, also several of the above who
wrote letters.
Reasons for decision:
This is a request for a variance and/or approval and/or a special permit to allow
marine use of property on Arlington St., W.Yarmouth, which parcel is shown on Assessors
Map #16 as parcel Al. The land in question is in a residential zoning district and
is adjacent to the facility commonly known as the Hyannis Marine Service. The lot
in question came into common ownership with the t►arina in 1959. A lengthly public
hearing was held on this appeal and numerous plans, affidavits, pictures and other
materials were submitted to -the Board by both the petitioner and other intere ted
parties. Evidence was introduced by the petitioner to show that the lot had been used
for boat storage since the 1940's. However, there was insufficient evidence intro-
duced to support any contention that this lot is a non -conforming use, and consequently,
the Board cannot apply Section 1532 of the by-law, dealing with such uses.
The Board is of the opinion that it has no authority to grant a special permit in
this situation., as it is unable to find any section of the by-law allowing the grant
of a special permit.
Since the Board found no grounds to grant either an approval or a special permit,
the only way petitioners request could be granted would be to find that all of the
U
Petition No. 1896
Page 2
criteria for a variance are present. Although the Board is extremly sympathetic
to the plight of the petitioner in that this property has been used for marine use
for in excess of 20 years, that, in and of itself, does not allow the grant of a
variance. Based on all the evidence presented, the Board finds there is no hard-
ship within the meaning of the by-law, and consequently, the request for a variance
must also be denied.
Members of Board voting: Donald Henderson, David Oman, Robert Sherman, Myer Singer,
Les Campbell. 4 voted in favor of denial, Mr. Henderson abstained from voting.
Therefore, the request is denied for the above stated reasons.
ROBERT W. SHERMAN
Clerk
4f Columbus Ave
byannis P rk
larmouti
pan i3, 1983
To: Yarmouth Board of Appeals
Re: Petition of Hyannis i,arira to expand Z rina use to 2'-� Arlington
We onpose this petition to grant a variance and/or approval
nd/or special permit. We believe that any expansion of this non-
corforming use .A,ould bring a;ditional eater, land and air pollution
and adcitional rater and lard traffic; i.ould threaten the stability
of the residential zone; would threaten the enjoyment of residential.
vroperty; ,-,ould threaten residential properzy values.
Variance. 'Where are no grounds for a variance. To grant a
variance t e Board must find OX4 a hardship on this lot not
generally affecting the zoning district in which it is located. Do
such hardship exists. The lot is exactly like surrounding lots,
less desirable than some perhaps because it is next to a ncn-conform-
ir_g use, but more desirable than others in that it has water frontage.
The lot not only can be used a residence - it is so used. It has a
large modern house built in 1969. I submit a picture taken some time
before the K-arina began using it commercially (in violation of the
By-lsw).
I remind you that the Supreme judicial court and appelate courts
have ruled repeatedly that the fact that an owner could et a higher
return from a nonpermitted use does not constitute grounds for
variance. (Bruzzese v. Higgham ; 1962:.Planning Bd of Barnstable vs
Barnstable Board of Appeals (1971); Simone vs Haverhill (1978);
Vinciullo vs `iltham (1974); Abbott vs. Appleton (1969); Garfield vs
Rockport (1969).)
Nor does the fact that the lot is next to a nonconforming use
and near a marine business zone in Barnstable constitute grounds for
a variance. (Rafferty vs Sancta v,aria (1977); Bicknell vs Boston, 1954;
Simon vs Haverhill (1978); Ferrante vs Lorthampton (1962).) -;or the
fact that the lot has been used in violation of the by-law( Mark vs
Quincy (1960); Aronson vs Utoneham, 1965).
�" -t k 0,i-�kCc LK S � t t
Special permit. There are no P-rounds for a special permit. 'he
current By --law does not specify I•,.arira use. But it clearly excludes
from residential zones all retail services, all personal and business
Cervices, and all amusement and recreation services for profit. It
srecifically excludes sale of boats and service accessory to such
sales (H 4), water transportation (r4) commercial parking lots (12),
rerair shops and related services OM14), and miscellaneous amusement
and recreation services (ill).
Generally. The whole area is zoned residential from Route 28 to
_uev,is zay. The i-.arina is a non -conforming use. It has been permitted
tQ expand conside ably within its original boundaries. If it is
permitted to expand across lotlires the area can no longer be confident
that it is residential. If the marina can expand into lot A-1, it may
ex$gr.d into lot A-2 (which it owns) and so on all around the neighbor-
hood
The purpose of the 'oring By-law is t- provide property owners
With a sense of stability and certainty concern'_r_g the town's pro-
posed growth. If non -conforming uses can expand beyond their
original property lines, lower but more profitable uses will always
drive out higher but less profitable uses. In other words commerce
will always drive out residential use. , main purpose of zoning,
therefore, is to protect residential use.
In the case of Yarmouth the peaceful residential land, along the
water front and elsewhere, is its wealth. The By-law is right to
;protect it.
Barbara Hulley Ackermann
for Benjamin and Joan Hulley
TOWN OF Y"ARMOUTH
PLANNING BOARD
SOUTH YARMOUTH
January 13, 1983
MASSACHUSETTS 02664
To: Board of Appeals
From: Planning Board r� el
Re: Appeals #}1896 - Hyannis Marine Service
After our review of this petition and the history of the
Hyannis Marine Service's non -conforming use, the Planning
Board feels that this is not a suitable situation to handle
by variance, but rather, to have the petitioners go through
the rezoning process by the vote of the public at Town
Meeting.
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