HomeMy WebLinkAbout5031 212 Mid Tech Dr Decision RecordedDoc:1,491,043 11-07-2023 11:26
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TOWN OF YARMOUTH
. c BOARD OF APPEALS
DECISION
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FILED WITH TOWN CLERK:
October 6, 2023
PETITION NO:
5031
HEARING DATE:
September 14, 2023
PETITIONER:
JDB 212 Mid -Tech Drive, LLC
PROPERTY:
186-212 Mid -Tech Drive, West Yarmouth, MA
Map 84, Parcel 12
Zoning District: B-3/APD
Certif cate #219782
Land Court Lots 37,38 & 39
Plan #37737-D (Sheet 1)
MEMBERS PRESENT AND VOTING: Chairman Steven DeYoung, Vice Chair Sean Igoe,
Dick Martin, Jay Fraprie, John Mantoni, and Barbara Murphy
Notice of the hearing was 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 on June 22, 2023 and was continued to July 27,
2023 at the request of the Petitioner. The hearing resumed on July 27, 2023 and was continued to
September 14, 2023. The final hearing and vote took place on September 14, 2023.
The subject property is located at 186-212 Mid -Tech Drive, West Yarmouth, Massachusetts. The
property is shown as Parcel 12 on Town of Yarmouth Assessor's Map 84.
The Petitioner, JDB 212 Mid -Tech Drive, LLC acquired title to locus by a deed dated June 21,
2019 and registered with the Barnstable County Registry of Deeds District of the Land Court on
June 24, 2019 as Document No. 1,372,857 as noted on Certificate of Title No. 219782.
The property is located in the B-3 Zoning District. It is also located in the Aquifer Protection
District and the Registered Marijuana Dispensary Overlay District.
Petitioner is proposing to demolish the existing two-story structure containing 10,680 square feet
and build a new building containing 11,360 square feet.
The new building is proposed to be divided into eleven (11) contractor bays (nonhazardous
General building contractor's yard). A condominium form of ownership is proposed.
A TRUE COPY ATTEST.
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Petitioner is seeking the following relief:
1. Applicant is seeking a Special Permit pursuant to Sections 104.4.1 and 104.4.2 of the
Zoning Bylaw to allow a condominium form of ownership for the proposed eleven (11)
contractor bays project.
2. Applicant is seeking a Special Permit pursuant to Section 104.3.2.3 to raze and replace
the existing non -conforming structure located on the premises with a conforming
structure.
3. Applicant is seeking a Special Permit pursuant to Section 202.5 and Section 406.5 to
allow for the use of the property as a non -hazardous General building contractor's yard in
the Aquifer Protection District.
4. Applicant is seeking a Special Permit, or in the alternative, a Variance, pursuant to
Section 301.4.1 of the Zoning Bylaw to waive the requirement that parking areas be
located at the side and/or rear of the principal structure.
5. Applicant is seeking a Special Permit, or in the alternative, a Variance, pursuant to
Section 301.4.4 of the Zoning Bylaw to waive the requirement that existing trees of at
least 4" (four inch) caliper within prescribed buffers be retained in parking areas for five
(5) or more cars.
6. Applicant is seeking a Special Permit, or in the alternative, a Variance, pursuant to
Section 301.4.6 of the Zoning Bylaw to waive the requirement that the lot contain at least
one (1) tree of 3" (three inch) caliper or larger per eight (8) cars be located within the
parking area and dispersed throughout the parking area for parking lots for twenty (20) or
more cars.
7. Applicant is seeking a Special Permit, or in the alternative, a Variance, pursuant to
Section 301.4.9 of the Zoning Bylaw to waive the requirement that all lots in the B-3
Zoning District which shall contain a business use retain existing trees of at least 4" (four
inch) caliper within prescribed buffers.
The hearing before the Zoning Board of Appeals ("ZBA") commenced on June 22, 2023. The
hearing was opened by the Chairman, Steven DeYoung, Vice Chair Sean Igoe, and Members,
Dick Martin, Jay Fraprie, John Mantoni, and Barbara Murphy were appointed to hear the
petition. Then, at the request of the Petitioner, the ZBA voted unanimously to continue the
hearing to July 27, 2023.
At the hearing on July 27, 2023, the Petitioner, through its representatives, made a presentation
to the ZBA. The Petitioner presented evidence establishing how the proposed Master Deed and
Condominium Trust complied with the requirements for issuance of a Special Permit set forth in
Section 104.4 of the Zoning By -Law.
The Petitioner presented evidence establishing that the proposal to raze and replace the existing
non -conforming structure located on the premises with a conforming structure complied with the
requirements for issuance of a Special Permit pursuant to Section 104.3.2.3 of the Zoning By -
Law.
A TRUE COPY ATTEST.
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Next, the Petitioner addressed the criteria for the issuance of a Special Permit pursuant to Section
202.5 and Section 406.5 of the Zoning By -Law to allow for the use of the property as a non-
hazardous General building contractor's yard. The Petitioner presented evidence showing that
the proposed treatment of on -site stormwater would be enhanced over current conditions.
Evidence was presented showing the safeguards to protect against toxic or hazardous materials
discharges or spills. Protocols to insure compliance with By -Law requirements from the Building
Department and Board of Health proposed during Site Plan Review of the project were discussed
and the Petitioner agreed to abide by them as a condition of any relief granted.
The Petitioner then addressed the request for a Special Permit pursuant to Section 301.4.1 of the
By -Law to allow parking to be built in front of the new building as opposed to the side or rear of
the building. The Petitioner submitted evidence showing that the parking in front of the building
works best for the proposed use as contractor bays. Further, placing the building to the back of
the lot and the parking in front provides better access for fire and emergency vehicles.
The Petitioner next addressed the three requests pertaining to trees on the lot. Section 301.4.4 of
the By-law requires a Special Permit to allow for the removal of existing trees of at least 4" (four
inch) caliper in parking areas for five (5) or more cars. The Petitioner is requesting to remove
trees of this caliper from the buffer zone along Mid -Tech Drive to allow for the installation of
drainage swales for pre-treatment of on -site stormwater discharge as required in the Aquifer
Protection District regulations.
Section 301.4.6 of the By -Law requires a Special Permit to waive the requirement that parking
lots for twenty (20) or more cars contain at least one (1) tree of 3" (three inch) caliper or larger
per eight (8) cars. The Petitioner provided the required number of trees but they were deemed to
not meet the requirements of the By-law because they were not appropriately disbursed
throughout the parking lot. The Petitioner presented evidence that due to the nature of the use,
the trees could inhibit on -site traffic flow and fire and emergency vehicle access.
Section 301.4.9 of the By-law requires all lots in the B-3 Zoning District retain existing trees of
at least 4" (four inch) caliper within prescribed buffers. The Petitioner presented evidence to
support granting a Special Permit to waive this requirement in the buffer area along Mid -Tech
Drive to allow for the installation of drainage swales for on -site stormwater treatment. The
Petitioner proposes to re -vegetate the buffer as per the Landscape Plan submitted to the ZBA.
The Petitioner concluded its presentation of the criteria needed to support its requests for Special
Permit relief. The Petitioner then offered to address alternative requests for Variances. The
Chairman stated that before the Petitioner addressed the alternative requests for Variance relief
he would like to give ZBA members an opportunity to comment on the requested Special
Permits.
Individual ZBA members then commented and provided unanimous feedback on the following
matters:
Special Permit for condominium use — the ZBA would like additional language clarifying
who the "party in charge" would be in case of a need to contact them during a time of a
public health or safety need; A TRUE COPY ATTEST. .
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2. The removal of trees in the buffer zone along Mid -Tech Drive for the installation of
drainage swales would not be acceptable.
3. In -lot trees were preferred.
4. The building design needs to be softened and dressed up.
The Petitioner then requested a continuance of the hearing to allow it to address the ZBA
members concerns and feedback. The ZBA voted unanimously to continue the hearing to
September 14, 2023.
At the hearing on September 14, 2023, the Petitioner presented evidence to the ZBA showing
how it addressed members feedback. Language was added to the Master Deed and Condominium
Trust clarifying that the trustees are the contact party in case of a public health or safety matter
and that the trustees have the responsibility to oversee all common area facilities. Further, notice
of any change of trustees must be filed with the Building Department.
The roof of the proposed building was changed from a metal roof to a shingle roof. This allowed
for a reduction in size of the drainage swales needed for on -site stormwater runoff and allowed
the Petitioner to locate the swales to the sides of the proposed building. The relocation of the
drainage swales eliminated the need to remove trees from the Mid -Tech Drive buffer except for
the location of two curb cuts.
The parking spaces were eliminated to allow for two in -lot trees. Two more in -lot trees were
placed near the front of the building so that four of the five required in -lot trees were provided.
Two more trees were left on the edge of the parking lot, but are still deemed to not meet the By-
law requirements.
The building design was softened by adding transom windows, awnings, different materials, and
different colors along the front of the building.
Upon completion of the Petitioner's presentation, the Chairman of the Zoning Board of Appeals
asked if anyone from the public was present to speak either in favor of the requested relief or in
opposition. No one spoke in favor or in opposition. The Chairman then closed public comment.
The ZBA commenced Board discussions of the merits of the Petitioner's request for each Special
Permit. The members were pleased with the Petitioner's efforts to address the Board's concerns
and feedback of the proposed project. The Board agreed that the relief could be addressed
through Special Permits and as Variance are needed. A motion was then made by Mr. Igoe and
seconded by Mr. Mantoni to grant the following Special Permit requests, subject to the following
conditions:
1. Special Pen -nit pursuant to Sections 104.4.1 and 104.4.2 of the Zoning Bylaw to allow a
condominium form of ownership for the proposed eleven (11) contractor bays project.
2. Special Permit pursuant to Section 104.3.2.3 to raze and replace the existing non-
conforming structure located on the premises with a conforming structure.
A TRUE COPY ATTEST.
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3. Special Permit pursuant to Section 202.5 and Section 406.5 to allow for the use of the
property as a non -hazardous General building contractor's yard in the Aquifer Protection
District.
4. Special Permit pursuant to Section 301.4.1 of the Zoning Bylaw to waive the requirement
that parking areas be located at the side and/or rear of the principal structure.
5. Special Permit pursuant to Section 301.4.4 of the Zoning Bylaw to waive the requirement
that existing trees of at Ieast 4" (four inch) caliper within prescribed buffers be retained in
parking areas for five (5) or more cars.
6. Special Permit pursuant to Section 301.4.6 of the Zoning Bylaw to waive the requirement
that the lot contain at least one (1) tree of 3" (three inch) caliper or larger per eight (8)
cars within the parking area and dispersed throughout the parking area for parking lots for
twenty (20) or more cars.
7. Special Permit pursuant to Section 301.4.9 of the Zoning Bylaw to waive the requirement
that all lots in the B-3 Zoning District which shall contain a business use retain existing
trees of at least 4" (four inch) caliper within prescribed buffers.
CONDITIONS
L Each condominium unit will be required to obtain its own Certificate of Occupancy.
2. Any change in ownership or use of a condominium unit will require the issuance of a new
Certificate of Occupancy.
3. The project shall comply with Conditions/Comments Numbered 1-11, inclusive, in the
Health section of the Site Plan Review Comment Sheet dated August 16, 2022, a copy of
which is attached to this Zoning Board of Appeals Decision.
4. The Petitioner shall submit a revised landscape planting plan, showing the planted buffer
in the rear (i.e., 4 white pines total: 2 white pines, 3-inch caliper, at either end of
building). The landscape planting plan (page LA.1) shown at the September 14, 2023
hearing was dated August 17, 2023.
5. The Petitioner shall return to the Zoning Board of Appeals, after the installation of trees,
for a one-year review.
Roll call vote was taken on this Motion with the following results:
Mr. Mantoni
Mr. Fraprie
Mr. Igoe
Mr. Martin
Mr. DeYoung
Ms. Murphy
- In Favor
- In Favor
- In Favor
- In Favor
- In Favor
In Favor
Accordingly, each Special Permit was approved on a 6-0 vote in favor.
The Petitioner requested to be allowed to withdraw, without prejudice, each alternative request
for a Variance. The Zoning Board of Appeals voted unanimously to allow the withdrawal.
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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, MGL 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
elapsed since the filing with me of the above Board of Appeals Decision #5031 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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Mary A. Maslowski, CMC
OCT 2 7 2023
OCT 2 7 2023
A TRUE COPY ATTEST:
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Date: August 16, 2022
SITE PLAN REVIEW COMMENT SHEET
Persons Present
Formal Review
84 Lot: 12
Mark GryIIS
A John Kenn
Carl Lawson
Kurt Raber
John Lavelle
_.._
De .Kevin -Huck-
Li. Matt Bearse
Bruce Murphy_
Laurie Ruszala
i• MIC111,11171171
Proposed 11,360 sf contractor bay building with 11 units, paved parking lot with 33 spaces, new stormwater management
system, septic system, landscaping, lighting, and associated grading and utilities.
f3plldina: Project is located in zoning district B-3 and the APD overlay district.
Disturbance area is calculated, and the applicant must file an application for a Stormwater Management Permit with the
Yarmouth Conservation Commission.
The raise and replace of the building appears to meet the setback requirements. The proposed parking is located in from
of the building relief from the ZBA will be required for parking location per Section 301.2, There are no In lot trees
Indicated on the plan as required per section 301.4.6. Sheet C4.0 indicates that swales will be located In the front buffer
area as required per section 301.4.4. Planting schedule on page L4 indicates trees / plantings will be in the drainage
swale. I have questions regarding the effectiveness of the swale over time as these plantings mature. Is there an
alternative to the swale locations? Lighting plan appears adequate; however, plan does not provide a detail of the lighting
fixtures to be used. It must be noted that per section 301,4.10, all lighting shall be directed onsite only, with no undue
glare affecting adjoining properties. Please be sure that all lighting to include building and site faces the ground
There are no potential tenants / occupants identified at this time. All occupants will be required to obtain a Certificate of
Occupancy from the Building Dept. prior to occupancy. The application for all occupancies shall be reviewed by Building,
YFD, and Health.
AN construction to comply with all applicable sections of TOY Zoning Bylaws, 780 CMR and appendant codes.
Planning: The project is located near the end of Mid Tech Drive (a dead-end road) with similar style uses and buildings
in the area,
1. With parking located mostly in front of the building and a general utilitarian building, front buffers are an important
design element. The proposed project includes the elimination of at least 17 larger buffer trees along Mid Tech
Drive, mainly to install the drainage swales (please note the landscape plan shows about 5 more existing trees
being removed than the civil plans which should be clarified.) The Landscape plan does show the front being
relandscaped with trees and some shrub groups (trees should be native species, a minimum of 3' caliper spaced
every 20'). Although the shrub groupings may be helpful in screening the parking in the front, longitudinal utilities
should not be placed within the required front buffers as it necessitates the removal of larger established existing
trees, contrary to Sections 301.4.4 & 301.4.9.
2. Any buffer plantings required by the Bylaw should all be located on the subject property. The Landscape Plan
(included with the architectural plans) shows some proposed plantings within the road right-of-way.
3. In4ot trees need to be dispersed throughout the paved surface per Section 301.4.6. Trees along the outside
perimeter of the parking area are not considered In4ot trees.
4. Recommend fencing be black coated vinyl rather than galvanized chain link.
5. Project has more than one acre of land disturbance and a Stormwater Management Permit is required through the
Conservation Commission.
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Conservation:
D-Wan RtXley. Refer to the attached August 2, 2022 resign Review Continent Sheet
Enalneerina:
• Engineering defers detailed stormwater review for the Stormwater Management Permit as noted
previously.
• Suggest relocating bioswales away from landscaping buffers.
• Specify which pavement detail will be used for pavement areas.
• Clean, inspect and repair as necessary existing drainage to be repurposed towards the rear of the
parking lot. It appears it may have been installed in 2016. Please confirm.
• File road opening permit at DPW for curb cut modifications. Provide loam & seed for driveway to be
abandoned.
MGL 148 Section 26G: Automatic sprinkler systems required for buildings and structures
Totaling more than 7,500 gross square feet.
Compliance with the following: 527 CMR 1 Chapter 16 "Safeguarding Construction,
j� O► Alteration, and Demolition Operations." 780 CMR Chapter 33, NFPA 24. Per 527 CMR
(" 1 16.1.2 " A fire protection plan shall be established and submitted" This plan shall
include the following: 16.3.1 Fire safety program, 16.3.2 Owners designated Eire
prevention program manager, 16.3.4.1 A suitable location at the site shall be designated
as a command post and provided with plans, emergency information, keys,
communications and equipment as needed. Number of hydrants on site should be
based on fire flow calculations 527 CMR 1.18.5.and annex E table E.3. Evaluation of
Emergency responder radio coverage based on 780 CMR 915.1 and 527CMR 1.Fire
Protection systems to be maintained by condo association.
Health
All prospective tenants must consult with the Health Dept. for approval of their proposed use
1 and to obtain any required licenses or permits before renting and occupying units. Any use or
storage of toxic or hazardous materials requires prior Health Dept. approval. Toxic or
hazardous materials storage in excess of 10 gallons requires a Board of Health license. Toxic
or hazardous materials storage in excess of 20 gallons requires a Board of Health license and
zoning relief from the Zoning Board of Appeals. Such relief is not guaranteed. All toxic and
hazardous materials storage requires 150% volume secondary containment in addition to other
requirements.
All outdoor storage of materials including, but not limited to those used in landscaping, require
Health Dept. review and approval.
Vehicle washing operations are not allowed onsite either inside or outside of any building.
Regarding engineered plan Sheet Title: Grading and Drainage Plan; Sheet No. C4.0, dated
December 10, 2021, under Operation and Maintenance Plan note 8 A, the note should be
revised to indicate vehicle washing is not allowed onsite either inside or outside of any
building.
Regarding engineered plan Sheet Title: Septic Profile and Details Plan; Sheet No. C5.1, dated
December 10, 2021:
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(1) The notes next to the indicated holding tank control panel should be revised to include
mention of the alarm and indicator lights for the leak detection system.
(2) Under Industrial Wastewater Holding Tank Design Notes, the sizing calculation needs to be
revised to include the unit of time for the calculation and compare the result of the calculation
to the size of the holding tank.
(3) Under Tank Note 1 310 CMR 18 should be revised to 314 CMR 18 Industrial Wastewater
Holding Tank and Container Construction, Operation and Record Keeping Requirements.
(4) The primary holding tank and secondary containment tank must be waterproofed and noted
as such on Sheet C5.1 as required by 314 CMR 18,
(5) All refences to the 2500-gallon secondary containment tank must indicate H-20
construction.
(6) Inner and outer holding tank covers must be in alignment with each other as indicated on
plan.
(7) Inner holding tank cover must have cover indicated over inlet.
(8) The 76% level high water indicator float must have the vertical distance measurement from
the bottom of the tank indicated.
(9) Indicate the height from the bottom of the tank of the leak detection float.
(10) Sign reading "NON-HAZRDOUS INDUSTRIAL WASTE WATER" must be present on
building in location adjacent to holding tank and indicated on plan.
(11) How will the holding tank alarm be monitored since it is only in one unit?
Is the floor pitch to the floor drains indicated on the foundation plan?
The plans make two references to a 1000-gallon holding tank and one reference to a 1500-
gallon holding tank as listed below.
Sheet Title: Utilities Plan, Sheet No. C5.0, dated December 10, 2021 indicates "1000 gallon
dual containment industrial wastewater holding tank."
Sheet Title: Septic Profile and Details Plan; Sheet No. C5.1, dated December 10, 2021 under
Industrial Wastewater Holding Tank Design Notes states "(1) 1000 gallon precast tank inside
of 2500 gallon precast concrete tank."
Sheet Title: Septic Profile and Details Plan; Sheet No. C5.1, dated December 10, 2021 the
note next to indicated tank states "Dual Containment Tank Shall Consist of H-20 1500 Gallon
Monolithic Precast Concrete Primary Holding Tank..."
Please indicate in all three places the correct size of the holding tank
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The design engineer must (1) complete the DEP holding tank compliance certification form and
provide a copy to the Health Dept. and (2) submit a holding tank certification letter to the
Health Dept.
Mft
Please show the exiting 12-inch water main on the utility plan as it is close to your work. In addition, please note that the
fine service for 211 Mid -Tech is back tapped on the 12-inch main, therefore is closer to the proposed drainage basin than
would be expected.
Water service instal ation should be installed by an Approved Contractor in accordance with the Yarrnouth Water
Materials and Installation Standards.
Read & Received by Appkant(s)
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100,
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Yak COMMONWEALTH OF MASSACHUSETTS
TOWN OF YARMOUTH
BOARD OF APPEALS
Petition #: 5031 Date: October 27, 2023
Certifcate 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:
JDB 212 Mid -Tech Drive, LLC
Affecting the rights of the owner with respect to land or buildings at: 186-212 Mid -Tech Drive, West
Yarmouth, MA; Map 84, Parcel 12; Zoning District: B-3/APD; Certificate #219782; Land Court Lots 37,
38 & 39; Plan #37737-D (Sheet I) 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.
A=.4 S�4�4
Steven DeYoung, Chairman
JOHN F. MEADE, ASSISTANT RECORDER
BARNSTABLE REGISTRY LAND COURT DISTRICT
RECEIVED E RECORDED ELECTRONICALLY