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HomeMy WebLinkAboutDecision 4801 Colbea RecordedEk 35614 Pg207 #3936 TOWN OF YARMOUTH BOARD OF APPEALS DECISION FILED WITH TOWN CLERK: . .September 5, 2019 PETITION NO: #4801 HEARING DATE: August 8, 2019 PETITIONER: Coibea Enterprises, L.L.C. OWNERS: Jeanne L. Luby, Karen J. Luby-Drew, and Station Avenue LLC PROPERTY: 473, 479, and 487 (portion) Station Avenue, South Yarmouth, MA Map & Parcels: 97, 1, 2 and a portion of 3 Zoning District: B1 & APD & ROAD Deed References: Book 28068, Page 126, Lot 5 on Plan in Book 319, Page 52 Book 28068, Page 128, Lot 4 on Plan in Book 319, Page 52 Book 18308, Page 272, Lot 2 (portion) on Plan in Book 442, Page 48 MEMBERS PRESENT AND VOTING: Chairman, Steven DeYoung; Vice Chairman, Sean Igoe; Dick Martin; Tom Nickinello; and Richard Neitz. Also attending and speaking, but not voting, was alternate Tom Baron. 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 Register, the hearing opened and held on the date as stated above. The Petitioner is Colbea Enterprises, L.L.C. The Petition is a companion application with Appeal # 4802. The Applicant is seeking Special Permits and Variances to develop the land at the above addresses for use as a Shell fuel service station and Seasons Corner Market convenience store with co -brand business. The proposal includes closing, decommissioning, and deed restricting two old, outdated, active fuel service station properties (Shell Station at 446 Station Avenue and Sunoco Station at 433 Station Avenue) located within one -quarter mile of the new site also on Station Avenue and replacement with the new state -of -art fuel service station (Shell)[collectively "Proposal"], The Property is located in the Bl Commercial Zoning District, the Aquifer Protection Overlay District, and the ROAD Overlay District. p -TRUE COPY ATTEST.- t-GA"L =i,i"'VV- 1 JAI w S. 2023 Rk 35614 Pg208 #3936 Relief is requested per the submitted plans and materials as follows: 1. Use: Special Permit — H6 (Motor Vehicle Fuel and Service) in Bl Zoning District (no service proposed) and H 10 (Eating and Drinking Establishment) in APD; Variance — H6 (Motor Vehicle Fuel and Service) in APD (no service proposed); and Permitted— H3 (Food Store) in Bl Zoning District and APD and HI (Eating and and Drinking Establishment) in B 1 Zoning District. 2. Dimensional - Variance A. Canopy front setback (43.7 ft. provided) (Section 203.5 Footnote J); B. Parking in front of building (Section 301.4.1); C. Curb cut radius width (30 ft_ provided; 25 & maximum allowed) (Section 301.4.3); D. Centerlines of driveways less than 250 ft. apart and from driveway across street (Section 301.4.7), E. In -lot trees and plant species (Sections 301.4.6 and 301.9); F. Front buffer tree spacing (Section 301.49); G. Photometries (perimeter boundary and driveways (Section 301.4.10); 3. Signs - Variance A. Section 303.5.2 — directional signage (size); B. Section 303.5.4.1 — freestanding sign (face area square footage); and C, Section 303.5.5.2 -- attached signs (height for Seasons, co -brand, and canopy pecten; and total number for Seasons, Corner Market, Co -Brand, Welcome, and Canopy Peetens). The Petitioner was represented by Attorney Andrew Singer; Andrew Deli Carpint, owner of Golbea Enterprises, L.L.C.; Robert McGann, Dennis Darveau, Larry Coburn, and Eric Simpson, of Colbea Enterprises, L.L.C.; Al Mieale, Ayoub Engineering; Randy Hart, VHB Traffic Engineering and Daniel Ojala and Danny Gonsalves, Down Cape Engineering. Also in attendance and speaking were Mark Grylls, Yarmouth Building Commissioner; Kathy Williams, Yarmouth Town Planner, and Steven Tupper and Colleen Medeiros, transportation staff from the Cape Cod Commission. Environmental peer review was conducted by Carriage House Engineering, and further reviewed by Kleinfelder, the Yarmouth Outside Water Consultant. The Yarmouth Board of Health reviewed the Proposal at a public meeting and submitted memoranda, dated April 3, 2019, and May 7, 2019. Correspondence was received from and testimony was provided by staff from the Cape Cod Commissiou concerning transportation. A TRUE COPY ATTEST: 4hC s, U01 ir 1Q23C,LLKK Bk 35614 Pg209 #3936 The Yarmouth Site Plan Review Team submitted a Site Plan Review Comment Sheet dated February 5, 2019. The Yarmouth Design Review Committee submitted a Design Review Comment Sheet dated January 29, 2019. Robert Chamberlain spoke in favor of the Petition. Station Avenue, LLC, the abutter to the north, submitted a letter in support of the Petition. Dr, Warren Woods, the abutter to the west, and James Veara, on behalf of Davenport Realty Trust, a nearby property owner across Workshop Road, spoke and submitted letters and emails in opposition to the Petition. The Board opened the hearing on the Proposal on May 9, 2019, whit;h was continued for testimony on June 27, 2019, and August 8, 2019. The hearing was closed on August 8, 2019. The Applicant submitted the Following materials in connection with the Petition - Application with attached Narrative Memorandum, prepared by Law Office of Singer & Singer, LLC; 2. Summary of Reasoning, Supplemental Memorandum dated June 24, 2019, and Supplemental Memorandum dated August 1, 2019, including four court Massachusetts Court Cases dealing with variance relief, all prepared by Law Office of Singer & Singer, LLC; 3. Revised Relief Request List, dated June 21, 2019, and further revised dated August 1, 2019; 4. Environmental Analysis Memorandum, prepared by Ayoub Engineering, dated December 14, 2018, with Specification Sheets; 5, Environmental Peer Review Report, prepared by CarriageHousing Consulting, dated March 8, 2019; 6. Review of the Environmental Peer Review Report, prepared by Kleinfelder, the Town's Outside Water Consultant, dated March 20, 20191 7. Draft Emergency Spill Response Plan; 8, Draft Deed Restrictions for the existing Shell and Sunoco Station properties, respectively; 9. Stormwater Report, prepared by Ayoub Engineering, dated January 30, 2019, and revised March 13, 2019, and April 4, 2019; 10. Traffic Impact and Access Study, prepared by VHB, dated March 11, 2019, and revised June 18, 2019, and supplemented with an Access Alternatives Memorandum, dated July 18, 2019; 1 I . Site, Landscaping, and Architectural Plan Set, prepared by Ayoub Engineering, dated January 18, 2019, and March 13,2019, respectively, and last revised July 31, 2019, including Sheets C-1-C-3, L-1, Er-1, SG-2, and A1.0-A2.2 (total of 14 sheets with cover sheet, septic, and survey); 12. Truck Turning Templates, Sheets TD-1, IA, IB, and TP-2, prepared by Ayoub Engineering, and last revised dated July 31, 2019; A TRUE CCQPY ATTEST: 3 trM;h ' I C,ii _' i v 4i._'- ;: C AN -5 Rk 35614 Pg210 #3936 13. Lighting Plan, prepared by LSI, dated December 20, 2018, and revised August 8, 2019; 14. Sketch Plan for upgrades to existing Shell property; and 15. Aerial Photographs of property and the Station Avenue corridor, The Applicant submitted the following testimony and the Board of Appeals found the following in connection with the proposal: As a companion case with Appeal #4802, of which the materials submitted, testimony provided, and the Findings and Conditions of the Decision thereof are all incorporated herein by reference, the Proposal, in addition to being in part permitted by right and by special permit, also requires use variance relief. Specifically, the portion of the proposal that will see the relocation and consolidation of fuel service operations from 433 Station Avenue and 446 Station Avenue northward to 473/479 Station Avenue requires a variance for the relocated and continued H6 (Motor Vehicle Fuel and Service) use in APD (no service proposed). Dimensional relief is also required for the relocated site that, though nonconforming, will be less nonconforming in terms of parking, setbacks, and site design than the existing sites at 433 Station Avenue and 446 Station Avenue that are being abandoned and restricted against future fuel service operations_ This relief includes the canopy front setback; parking in front of the building; centerline of driveways; in -lot trees and plant species; front buffer tree spacing; photometrics; and signage. The proposed building will be one-story in height and contain 3,600 sq. ft. of first -floor area and a basement for storage. A drive-thru will be located on the rear of the building and conforming stacking for the drive-thru has been provided. A full landscaping plan will be implemented. At the Board's request, the canopy was redesigned to include a new mansard roof as an alternative to the design which was initially proposed and approved by the Design Review Committee. After extensive discussion, study, and peer review regarding access, circulation, and traffic along Station Avenue, the site layout was redesigned in response to the Board's concerns about access and egress such that the northerly curb cut has been relocated to the northern end of the property to improve access and egress and separation from the canopy, and this curb cut has been restricted to right --in and right -out only with raised curbing along the exit portion thereof to channelize vehicles exiting the Property. The portion of the island facing the entrance will be scored concrete to allow truck access. The above changes resulted in additional improvements to on -site parking and circulation as well. Further discussion of the traffic question is contained in the Special Permit discussion below. All of the properties are located not only in the BI Commercial .Zoning District, but also in the Yarmouth Aquifer Protection Overlay District ("APD"). The Yarmouth Zoning By -Law ["Zoning By -Law"] finds that "the groundwater water underlying this town is the sole source of its existing and future drinking water supply [...and that] accidental spills and discharges of petroleum products and other toxic and hazardous materials and sewage discharge have repeatedly threatened the quality of [...I groundwater supplies and related water resources throughout towns in Massachusetts, posing potential public health and safety hazards and threatening economic losses to the affected communities." As such, the Zoning By -Law states that the objective of the APD is "...to protect the public drinking water supply in Yarmouth from the effects of high density land development and from potentially hazardous materials associated with specific land uses." In situations where a use in the APD requires a Special Permit, the Board is required to "...give consideration to the simplicity, eligibility and feasibility of the control measures proposed and the degree of threat to water quality which would result if the control measures fail." Under Section 102 2.2 of the Zoning By -Law the Board is authorized to grant variances from the provisions of the Zoning By -Law, including for use. A TRUE COPY ATTEST: 4 JAN , 5 2023 Bk 35614 Pg211 #3936 As an integral component of the proposal, the -Applicant is proposing to close, decommission, and deed restrict two old, outdated, active fuel service station properties (Shell Service Station at 446 Station Avenue and Sunoco Service Station property at 433 -Station Avenue) located in the APD within one - quarter mile of the new site also on Station Avenue. The Applicant proposes to consolidate, relocate, and replace these old Fuel service station properties with the ne%v state -of -art fuel service station (Shell Service Station) with a reduction in the threat of environmental impact to the aquifer by significantly decreasing the number of gallons of fuel stored in the APD by 16,000 gallons or more than 28% over existing conditions (from 56,000 gallons down to 40,000 gallons), decreasing the number of underground ' fuel storage and other tanks from ten (10) to (2) such Tanks, and installing two (2) state-of-the-art double - walled tanks to replace the numerous, old underground tanks to be removed. In addition, the Applicant, for itself as owner of and in connection with the Shell Station property and also by written agreement with and on behalf of the owner of the Suncico Station property, proposed as a condition of approval that the remaining pre-existing nonconforming hazardous materials uses at these two sites will be eliminated on a proposed, respective schedule after the relocated site opens for business. Further, at the request of the Board, the Applicant proposed that in conjunction with removing the pumps and underground tanks at the existing Shell location, the Applicant will improve the aesthetics of this property as shown on the submitted site sketch plan as an interim step towards ultimate future redevelopment. This work includes substantially extending and expanding the front buffer and planting additional trees and vegetation. In making a determination that the significant environmental benefits and reduction of environmental risk satisfies the purposes and intents of the APD By -Law, the Board also relied on the materials submitted by the Applicant, independent peer review as well as review by the Yarmouth Board of Health and Outside Water Consultant, The Applicant has been working closely with officials from several Town of Yarmouth Departments on the proposed development, including meetings with the Building Commissioner as well as the Health Director and Hazardous Waste Inspector, among others. Design Review and Site Plan Review have been completed. Peer review as requested by the Health, DPW. and Water Departments was completed and reviewed by the Town's independent water consultant. Approval of the lot division by the Planning Board and issuance of a fuel storage permit from the Board of Selectmen will subsequently be required as well The Environmental Analysis Memorandum and supporting documentation accompanying the application detail how the proposal will significantly reduce environmental risk to water quality and thus enhance environmental protection in Yarmouth's Aquifer Protection District. This will be accomplished by permanently closing two older fuel service facilities with an average age of forty (40) years located within one quarter mile of the Property and replacing them with one new state-of-the-art facility with fewer underground tanks, less underground piping, modern leak detection with sensors and alarms, and a decreased volume of underground fire] storage, all as follows: There will be a significant net reduction of 16,000 gallons of fuel storage in the APD as the existing seven (7) underground tanks, six (6) dispensers, and 56,000 gallons of underground fuel storage at the two existing facilities are replaced with only two (2) underground tanks, six (6) dispensers, and 40,000 gallons of storage; 2, Two, older fuel service facilities will be replaced with one, state-of-the-art site incorporating significant improvements in design and containment protocols for underground fuel storage with an automatic and continuous leak detection systern in double -wall underground storage tanks and double -wall piping complete with probes, sensors, and alarms. In addition, the properties A TRUE COPY ATTEST: Bk 35614 Pg212 #3936 containing the existing gas stations will be permanently deed restricted prohibiting future fuel service use, and the pre-existing nonconforming hazardous materials uses on each property will ultimately be abandoned; Additionally, there will be an estimates] reduction of forty-five (45) to fifty (50) linear feet of underground piping when the piping at the two existing sites is removed and replaced with new piping at the new site; and 4. A safer, double -wall tank system with leak detection and brine in the interstitial space will be installed at the new site in place of the seven older underground fuel storage tanks (a mixture of single and double -walled tanks that are approximately 30 to 40 years old without any modem detection systems) located at 446 Station Avenue (She]] Station) and 433 Station Avenue (Sunoco Station) — the latter to all be removed and not replaced; and An older, underground heating oil tank at the Sunoco Station and older, underground heating and waste oil tanks at the Shell Station will also be removed and replaced with above -ground tanks to provide heating oil at the respective properties and to continue service use at the Sunoco Station until such use is relinquished as set forth herein. The peer review report dated March 8, 2019, by CarriageHouse Consulting, Inc., concludes that: the proposed actions and activities proposed by Colbea in this project appear to yield a net benefit to the Town in the form of potential increased revenue in the form of taxes and in the redevelopment opportunity for existing non -confirming parcels, while concurrently reducing the potential risk to Town receptors and resources (i.e., the APD)." The Town's outside water consultant, Kleinfelder, reviewed the Proposal and the peer reviewer's report. In an email dated March 20, 2019. Kirsten Ryan of Kleinfelder states that "I agree the risk to the aquifer is less than current conditions in that the proposed project would store less fuel, slightly farther away and with newer equipment technology." She recommended four conditions be placed on the proposal as set forth in her email. The Applicant has no objection to these conditions, and the same have been incorporated below. The Yarmouth Board of Health Memorandum, dated May 7, 2019, found all of the above plus additional technical requirements to be met by the Applicant as' well as reiterated the four conditions specified by Kleinfelder and set forth that the Applicant "...presented their proposal to the [Board of Health] at the regular board meeting on April 22, 2019. The [Board of Health] approved recommending the proposal of Colbea Enterprises to the [Board of Appeals] by a unanimous vote with five members present and voting. This recommendation is based on the ability of the business to comply with aforementioned regulations and based on the following conditions listed below. These conditions are above and beyond the strict scope of the aforementioned regulations and are intended to provide additional protection of the APD." The proposal in the APD also requires the creation of a Nitrogen Aggregation Plan with the subsequent approval of the Board of Health. In a Nitrogen Aggregation Plan, the land to be developed is designated the Facility Land and off -site land to be permanently protected as undeveloped open space is designated the Credit Land. The more sensitive Credit Land is preserved in order to allow the more appropriately - zoned Facility Land to be developed. The Credit Land for the Proposal will be approximately 50,000 sq. ft. of area. This land will be permanently protected as undeveloped open space. The Applicant has filed applications in accordance with the Yarmouth Disposition of Town Owned Real Property Policy to seek to purchase at public auction foreclosed land owned by the Town of Yarmouth to be designated as the A TRUE COPY ATTEST 6 JAN 1 U Bk 35614 Pg213 #3936 Credit Land in connection with the development of the new site. This process is underway and its successful completion is a condition of the approval hereof. Special Permit. For those aspects of the proposal that require a special permit, the Applicant has requested such relief in accordance with Sections 103.2 and 202.5 of the Yarmouth Zoning By -Law f"Zoning By -Law"]. The Board of Appeals is authorized to grant such special permit upon a finding that the proposed development will not create any undue nuisance, hazard or congestion and that there will be no substantial harm to the established or future character of the neighborhood or Town. Additional requirements for the granting of a Special Permit in the APD are set forth in Sections 406.5.3 and 406.5.5 of the Zoning By -Law. The Applicant submitted that the proposal, including the decommissioning and deed -restricting of the two old nearby gas stations, will comply with all of the Special Permit criteria, will not create any undue nuisance, hazard or congestion, will result no substantial harm to the public drinking water supply, and will thus result in a substantial benefit and improvement to the neighborhood, the Town, and the environment, and further that the control measures proposed have given due consideration to the simplicity, eligibility and feasibility of implementation and maintenance and to protective measures to reduce the potential threat to water quality should any of these measures unexpectedly fail, all of the above because: 1. The existing old Shell and Sunoco gas stations to be decommissioned and deed restricted are outdated with older underground storage tanks and less monitoring and protections than modern fuel service operations employ. Eliminating these two gas stations and permanently deed restricting the respective parcels from future fuel service use provides a significant boost to environmental protection and reduction in risk to the aquifer; 2. The new fuel service station will not only be a modern, state-of-the-art facility, but it will also store 16,000 fewer gallons of fuel than the two existing gas stations combined (56,000 gallons existing; 40,000 gallons proposed); 3. The Proposal has been designed and is intended to complement the B 1 Commercial District along Station Avenue. Both the Yarmouth Design Review Committee and the Site Plan Review Committee have reviewed the Proposal. The Design Review Committee voted 3-0 in favor finding that the proposed design of the building, canopy, and development are appropriate for the site and use and satisfy the reviewed design guidelines; 4. The Traffic Impact and Access Study of the Proposal, as updated and supplemented, evaluated existing traffic operations and safety, assessed future conditions along Station Avenue both with and without the proposal, estimated projected traffic volumes for the proposal and its potential impact on future traffic operations in the area, and analyzed various curb cut access alternatives. The traffic engineer concluded that the available stopping and intersection sight distance exceeds minimum requirements and that the proposal is expected to have only minor impacts on local traffic operations. It is acknowledged that traffic alang this stretch of Station Avenue is congested at times during the summer season such that most, if not all, driveways along this stretch of road in the B 1 Commercial Zoning District operate at Level of Service F at times during the day. As demonstrated in the materials submitted and with the site access alterations and restrictions presented to the Board in response to comments and concerns raised at the Board meetings, while some additional traffic will be added to the flow on Station Avenue (the relocated site being the last undeveloped parcel of land in the commercial district in this area), the proposal will not result in a significant increase in traffic. There is a center turn lane in front of the property that was constructed by the Town in the past to alleviate turning movements along the road. In discussing potential future upgrades by the Town along this stretch of Station Avenue, A TRUE COPYATTEST. Bk 35614 Pg214 #3936 the Town Planner responded to a Board question noting that there are five (5) feet of available space on either side of the paved travel way that remain unused in the road layout. The Applicant offered that it is willing to agree to grant the Town in the future a five (5) foot wide easement along the Property frontage in order to allow for a sidewalk should the Town so seek at that time, An extensive landscaping package is proposed, including additional vegetative screening of the fenced durnpster from the adjacent property to the north; Site lighting will be down lit and appropriate for the Station Avenue commercial zone; Building and lot coveragz will each be conforming; All stormwater runoff will be contained and infiltrated on site, and there will be no negative impact to drainage, septic flow or stormwater; 9, Presently, the 446 Station Avenue Shell Station property is nearly fully paved with impervious surfaces including parking areas and concrete drive mats associated with the retail gasoline station. As part of this proposed development, the Applicant intends to remove areas of pavement and impervious surfaces along Station Avenue and create an additional landscaped island in the center of the property directly in front of the existing building. As has been documented in scientific literature, increasing stormwater infiltration directly to an aquifer is preferable to overall aquifer health versus re -directing stormwater to surface streets where it discharges to remote locations. The Applicant's redevelopment proposal includes an increase of approximately 800 square feet of non -impervious ground cover at the existing fully paved Shell station. Increasing the amount of stormwater infiltration directly to an aquifer has the benefits of increasing aquifer capacity, increasing dissolved oxygen content in the aquifer and increasing the overall oxidation-reduction potential in the aquifer which leads to better overall aquifer health; 10. The Applicant reached out to property abutters and those across the street to discuss the proposal and has pledger] to continue working with them in order to be a good neighbor to the neighborhood and community; and 11, The development of the Property in conjunction with the environmental improvements to the two off -site locations now (and the possibility of future conforming redevelopment of each as ultimately permitted by the Town of Yarmouth) will improve and enhance the economic viability of the entire commercial zone and be an asset to the character of the neighborhood and Town. Variance. For those aspects of the Proposal that require a Variance, the Applicant requested such relief as discussed below in accordance with Section 1,02 2.2 of the Zoning By -Law and M.G.L. Chapter 40A, Section 10, The Board is authorized to grant Variances, including for use, where the Board finds that a literal enforcement of the Zoning By -Law would involve substantial financial or practical hardship to the Petitioner, that 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, and desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the Zoning By -Law. The use Variance that is required as noted above is to include motor vehicle fuel use (no service) at the Property in the APD that would otherwise be allowed by special permit in the B1 Zoning District. Dimensionally, while the new building itself will comply with all setbacks, the canopy for the relocated fuel service use will not and there will also be parking in front of the building. The Board has reviewed similar requests in the past that arise along this section of Station Avenue in which the minimum front A TRUE COPY ATTEST. Bk 35614 Pg215 #3936 setback is seventy-five feet, while at the same time parking cannot be in front of a building. The other dimensional variance relief that is being requested to meet the special circumstances of the site include curb cut width, driveway centerline separation, in -lot trees and plant species, front buffer tree spacing, photometrics, and signage. Much of the signage relief was subsequently withdrawn without prejudice as discussed below. During the public hearing, the Board requested additional information on the grant of variances and reviewed the cases submitted and discussed the same with the Applicant. The Applicant provided copies of the following MA Court Cases and analysis in connection with the Proposal: Alarashlian v, Zoning Board of Appeals of Newhuryport, 660 N.E.2ft' 369, 374 (Mass.19961, Cavanaugh v, DiFlumera, 401 N.E.2d 867, 871 (Ma App. Ct., 1980), Furlong v. Zoning Board of Appeals of Salem, 64 N.E, Yd, 268, 269 {Ma App. Ct_, 2016) , and Boyajian v. Board of Appeals of Wellesley, Page 1237, 1238 (Ma. App. Ct. 1978}. The Board found credible the Applicant's testimony that these cases reflect positively on the Proposal in terms of (1) economic unfeasibility of use and re -use of the land absent the requested relief, 2) the need for a determination of substantial derogation and not just any derogation from the provisions of the Zoning By -Law in order to deny the requested relief, (3) the reduction in risk of existing harm and prevention of greater risk of future harm and (4) acknowledgment that some increase in traffic will not result in a significant increase in traffic to an already busy thoroughfare. The Board's review is not based on application of the criteria discretely to each aspect of the proposal, but rather collectively to all of the land and structures involved in the proposal. The proposal represents one, overall, holistic redevelopment in order to achieve the benefits required by Section 406.5.3. The location in the APD requires an entirely separate set of criteria to be met than the same proposed development would require if only in the B1 Commercial Zone (in which the use is permitted by special permit). Protection of the special soils and aquifer status of the land are key. Section 102.2.2 of the Zoning By - Law authorizes dimensional and use variances "with respect to particular land or structures" and requires a hardship finding "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_" Literal enforcement of the provisions of the Town of Yarmouth's Zoning By -Laws would represent a substantial hardship to the Petitioner and Owners. The hardships faced in attempting to achieve all of the benefits are directly related to the soil conditions (water -sensitive natural formations), topography, shape of the land and historical development of the structures and sites involved (including those of the other gas station properties). The Property and the older gas stations to be closed/replaced are all located in the largest B1 zoned area in the Town of Yarmouth and one of the few areas of B1 zoned commercial land that is also located in the APD. Moreover, the Property is the only undeveloped parcel within this BI/APD zone. As a result of its location -in both the B1 zone and the APD, the Property is unique. Specifically, the soil within the APD is unique, which mandates that a separate set of APD criteria be met, In order to meet the standard set forth in Section 406.5.3, the Applicant has proposed to shut down and deed restrict two old, non -confirming fuel station in order to protect the public drinking water. In order to replace the two old fuel stations with a state of the art, safe and modern fuel station on the Property, the requested variances are required. The Applicant submitted, and the Board so found, that the land and structures involved are impacted by the unique soil conditions of the aquifer district in that the two existing gas stations are pre-existing nonconforming uses and the relocated site is the last vacant site to .this B 1 and APD area and that the pre- existing nonconforming structures and site developments, including underground storage tanks and multiple full in and out curb cuts on multiple roads, are unique improvements and circumstances in the APD such that it is economically and practically infeasible to achieve the improvement to the environment and the reduction in the threat of harm to the ground water absent the v Al} tg ; A TRUE a 9 Bk 35614 Pg216 #3936 construct the proposal as designed on the relocated site in the APD and this creates a substantial financial and practical hardship justifying the requested variance relief. It is important to note that two old, active and non -conforming fuel stations within the same B i zone and APD will be consolidated into this new proposed location such that it is economically and practically infeasible to build this fuel station absent the variance relief. Moreover, this proposed project has been designed to ensure optimal safety for the fuel station. As a result, absent the requested variance relief, the fuel station would not represent the optimal safety standards for a fuel station. Moreover, the Applicant has redesigned the proposal with the input of Town officials and agencies in order to optimize the safety of the Property. The Board found further that based on the established hardship and all of the materials submitted to the Board and for all of the reasons set forth in the Special Permit discussion above, the requested variance relief as set forth below can be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the. Zoning By -Law, including without limitation, the overarching reduction in threat of harm to the aquifer and enhanced environmental protection resulting from the Proposal_ In addition, the Yarmouth Design Review Committee voted to find that the Proposal is appropriate for the site and the commercial zone. The proposed use of the commercially -zoned, replacement property is allowed (both by right and special permit) in the underlying BI Commercial Zoning District. The two existing fuel station properties that are grandfathered and protected pre-existing nonconforming uses will each be transitioned to conforming uses and will no longer contain a now -prohibited use. The net result of the proposal is one less fuel service station than at present, one less site with a pre-existing nonconforming hazardous materials use, and one relocated site that will be less nonconforming to zoning and more protective of the environment than existing nonconforming conditions. The two pre-existing nonconforming gas station uses in the APD are entitled to remain indefinitely and to remain in a more nonconforming status than the proposal before the Board. Even if these two sites can be upgraded in the future, they will each never be able to be as compliant and conforming as the relocated site due to their shapes and historical developments. The proposal will provide numerous benefits to the Town and the public, including amelioration of the continued risk to the aquifer that these two sites represent by closing these two businesses, eliminating the pre-existing nonconforming hazardous materials uses from these two properties, and restricting these two properties from such uses in the future, in exchange for the relocation a brief distance north along the same street in the same zoning and overlay districts with a new, smaller -capacity, state-of-the-art facility, a facility which is needed in this commercial zone and is authorized by the underlying zoning in the area. The Applicant submitted, and the Board so found, that the land and structures involved are impacted by the unique shape and topography of the Property such that the canopy, parking (in front of the building), centerline of driveways, in -lot trees and plant species, front buffer tree spacing, photometrics and signage can best be situated only as provided on the proposed plans to ensure the fuel station is optimized for safety and complies with the redesign of the site as requested by the Town. It would represent a substantial hardship and be economically and practically infeasible to require literal enforcement of the Zoning By -Laws. In granting the requested variances, the public good will be served by providing a safe, state of the art, modern fuel station. Moreover, the requested variances would not nullifi, or substantially derogate from the intent or purpose of the Zoning By -Laws because the proposal will provide a safe and modernized fuel station for the public. As a result, it is appropriate to grant the requested variances. Specifically, most of the exterior lighting conforms to the Zoning BY -Law. The Applicant has attempted to be respectful to the neighborhood and Town and provide safe lighting, while complying as much as feasible with applicable regulations. Relief is requested in a few areas along the perimeter and at the curb cuts. Notwithstanding this request and by way of comparison, the proposed lighting wilt be less than the existing similar lighting at the nearby Mobil Station on Station Avenue as well as less than at the Cape A TRUE COPY ATTEST, 10 Bk 35614 Pg217 #3936 Farms Market property on Route 28 in West Yannouth. Based on recommendations from the lighting manufacturers, the proposed lighting is the lowest level that will be safe for a fuel station. The proposed lighting will result in safe conditions for the patrons as well as the employees who need to monitor activity at the site and operation of the fuel pumps. Given the commercial nature of the Station Avenue location (there are no nearby residences) and the need to provide safe and efficient lighting, the proposed levels will achieve this result with no negative impacts. The Applicant requested sign relief for directional, freestanding, and attached signs. The latter two were ultimately withdrawn without prejudice. As to the former, the Board felt that the proposed directional signage is warranted to provide safe and efficient access and egress as well as on -site circulation. The Board also requested an additional Do Not Enter sign at the exit of the right -in, right -out northerly curb cut. The Board took the following votes on the Proposal: Sneeial Permit for H6 and H 10 use of the Property. Sean Igoe made a motion, seconded by Richard Neitz, and voted five (5) in favor and zero (0) opposed to grant the requested Special Permit for use based on the above Findings and submitted plans and further that the proposed development will not create any undue nuisance, hazard or congestion and that there will be no substantial harm to the established or future character of the neighborhood or Town and that the additional requirements set forth in Sections 406.5.3 and 406.5.5 of the Zoning By -Law, including without limitation that the control measures proposed have given due consideration to the simplicity, eligibility and feasibility of implementation and maintenance and to protective measures to reduce the potential threat to water quality should any of these measures unexpectedly fail, have been met and upon the following conditions: A. All nonconforming uses at 446 Station Avenue shall cease within fourteen (14) days after . the new site opens for business and the underground storage tanks shall be removed from 446 Station Avenue and the site upgrades as per the reviewed Sketch Plan shall be implemented no later than nine (9) months after the new site opens for business; B. The nonconforming fuel service use at 433 Station Avenue shall cease within fourteen t4) days after the new site opens for business and the underground storage tanks shall be removed from 433 Station no later than nine (9). months after the new site opens for business and all remaining nonconforming use of 433 Station Avenue shall cease no later than forty-eight (49) months from the date when this Decision is final; C_ Deed restrictions shall be recorded on the chains of title for both 433 Station Avenue and 446 Station Avenue restricting each property from future nonconforming uses within the APD and copies of such Deed Restrictions as recorded shall be returned to the Board of Appeals Such deed restrictions shall incorporate the time lines for discontinuance of such uses as set forth in Paragraphs A and B above; D. The Petitioner agrees to grant to the Town of Yarmouth in the future a five (5) foot wide easement along the Property frontage in order to allow for a sidewalk to be installed should the Town so seek at that time; and E. The }petitioner shall complete the nitrogen aggregation process to deed restrict off site open space land for purposes of credit to the Property prior to the new site opening for business. A TRUE CQPY ATTEST. 11 Bk 35614 Pg218 #3936 F. The Petitioner shall comply with all requirements of the Board of Health. 2. Variance for H6 use of the Prn e . Sean Igoe made a motion, seconded by Richard Neitz, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for use (fuel service only without vehicle service nor (vehicle washing) based on the above Findings and the submitted plans and further that the hardship is based on the soil conditions and topography of the land and the stnictures as discussed above and that the intent of the APD By -Law will be met to protect the groundwater and that there will be no harm to the public good and upon the same conditions set forth in the Special Permit vote above plus the following additional conditions: A_ No hazardous products purchased inside the building at the Property shall be used or added on or to a vehicle when the vehicle is located on the Property; B. The only products allowed to be added into a vehicle at the Property shall be gas and diesel fuel dispensed from the on -site dispensers; C. The Board of Health will verify that the design is in accordance with all Massachusetts Stormwater Standards; D. The developer shall retain a third -party engineer/LSP to provide certification that the project was constructed and installed as designed and passed all start up and commissioning tests to verify proper operation; E. The facility is required to submit a third -party compliance inspection to the MassDEP every three years, and the facility shall provide a copy of this report concurrently to the Board of Health and Water Department; and F. The proposed new underground storage tanks shall have a 30-year service life. 3. Variance for canopy front setback. Sean Igoe made a motion, seconded by Richard Neitz, and voted four (4) in favor and one (1) (Martin) opposed to grant the requested Variance for the canopy front setback with the mansard design and colors as shown on the revised architectural plans based on the above Findings and further in accordance with the prior votes of the Board herein with no additional conditions; 4. Variance for parking in front of the building. Sean Igoe made a motion, seconded by Richard Neitz, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for parking in front of the building based on the above Findings and submitted plans and further in accordance with the prior votes of the Board herein with no additional conditions; Variance for curb cut radius. Sean Igoe made a motion, seconded by Dick Martin, and voted five 5) in favor and zero (0) opposed to grant the requested Variance for the curb cut radius based on the above Findings and submitted plans and further in accordance with the prior votes of the Board herein with no additional conditions; Variance for centerlines of driveways. Sean Igoe made a motion, seconded by Richard Neitz, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for the centerlines of driveways based on the above Findings and submitted plans and further in accordance with the prior votes of the Board herein with no additional conditions; A TRUE COPY ATTEST,• 12 Bk 35614 Pg219 #3936 7. Variance for plant species. Sean Igoe made a motion, seconded by Dick Martin, and voted five 5) in favor and zero (0) opposed to grant the requested Variance for the plant species as shown on the revised landscape plan based upon the above Findings and further in accordance with the prior votes of the Board herein with the following additional condition: A, Buffer trees shall be maintained or planted as required along the edges of the bio- retention basins where the same abut the Property fines; Variance for front buffer tree spacing and in -lot trees. Sean Igoe made a motion, seconded by Dick Martin, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for the front buffer tree spacing and the number of in -lot trees as shown on the revised landscape plan, including reference to the utility poles and their respective guy wires, based upon the above Findings and further in accordance with the prior votes of the Board herein with the following additional condition: A. A new island with one in -lot tree shall be planted in the middle of the row of parking behind the new building; 9. Variance for pgrimeter and driveway hotometrics_ Sean Igoe made a motion, seconded by Richard Neitz, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for the photometrics as shown on the revised lighting plan based on the above Findings and further in accordance with the prior votes of the Board herein with no additional conditions; 10. Variance for directional signs. Sean Igoe made a motion, seconded by Dick Martin, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for directional signage as shown on the revised plans based upon the above Findings and further in accordance with the prior votes of the Board herein with the following additional condition: A. An additional Do Not Enter sign shall be installed at the exit driveway of the northerly right -in, right -out curb cut; and I. Variance for freestanding monument sin and attached signs. After further discussion with the Board, the Applicant requested and the Board voted five (S) in favor and zero (0) opposed, upon a motion by Sean Igoe, seconded by Richard Neitz, to grant the Applicant's request to withdraw without prejudice the request for additional sign variance relief as follows: Section 303.5.4.1 — freestanding sign (face area square footage), and Section 303.5.5.2 (attached signs -- height and number). 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 Cleric. 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) Unless otherwise provided herein, a Variance shall lapse if the rights authorized herein are not exercised within 112 months. (See MGL c40A§10). This Decision must be filed with the Barnstable County Registry of Deeds, Route bA, Barnstable. Steven DeYoung, Chai n A TRUE COPY ATTEST. 13 f ?tom ; i.•. .: f vi tW.