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HomeMy WebLinkAbout5063 21 Arlington St Memo from Attorney Pizzuti for Amended ApplicationIn re Harbour Club, Inc. Operating Tugboats Restaurant Town of Yarmouth Zoning Board of Appeals Appeal # MEMORANDUM IN SUPPORT OF PETITION FOR RELIEF Now comes the Petitioner, Harbour Club, Inc. (hereinafter, "Petitioner") and submits this memorandum in support of its petition for a relief pursuant to Yarmouth Zoning Bylaws. 1. The Applicant and The Property_: Harbour Club, Inc. operates a restaurant which does business under the name Tugboats ("Restaurant") located in the town of Yarmouth, Massachusetts having a mailing address of 11 Arlington Street, Hyannis, MA 02601. The Restaurant has been operating at the property since 1992. The Restaurant is situated on a parcel of land owned by Wayne Kurker, Trustee of Hyannis Marine Service Realty Trust which land is located within a marina complex. The building and all appurtenances are situated on Parcel 17 shown on Yarmouth Assessor's Map 28. The property is located in an R-25 zoning district. The building in which the restaurant is situated was originally constructed- approximately 90 years ago and after various renovations, the building's square footage is roughly 7,600 square feet. The restaurant is permitted for 254 seats, plus room for 70 persons standing in the waiting area approved by the licensing authority. 2. Relevant Prior Relief - Petition No. 3688 (May 10, 2001): Relief was granted to legitimize the existing level of occupancy within the Restaurant to 324 persons based upon the representation of up to 245 seats and standing room for 70 persons. Petition No. 3645 (January 3, 2001): Relief was granted to construct a conforming partial addition within the footprint of the existing building at 11 Arlington Street, including external stairway to house existing property uses and to construct an underground basement storage area beneath the existing at -grade parking area with internal access from the building at 11 Arlington Street. Petition No. 2912 & 2270 (July 30, 1992) relevant relief was granted to re -dormer the 2"d floor that resulted in an additional 168 sq. ft of space that allowed for a more efficient floor plan. Additionally, relief was granted to expand the existing second floor deck which provided for the relocation of the bar area. . Petition No. 2832 (June 27, 1991): Relief was granted to approve a wooden sign to be located at the rear of the building, on or near the second floor deck rail and to allow the petitioner to continue to maintain the string lights on the dining level only. 3. Requested Relief A. Special Permit pursuant to Section 104.3.2 4 (Change, Extension or Alteration The Petitioner seeks approval for the addition of entertainment at the Restaurant. The proposed entertainment will include live music to take place indoors or under cover of the existing awnings. The entertainment will adhere to all other regulations set forth in the Town Bylaws and the Licensing Board. There will be no physical change to the premises whatsoever. The criteria for obtaining a special permit to extend the use of a lawfully pre-existing nonconforming uses is set forth in 104.3.2(4) of the Yarmouth Zoning Bylaws. The Bylaw states, a "lawfully pre-existing nonconforming use may be changed or extended... if it is determined that such change or extension will not be substantially more non -conforming and will not be substantially more detrimental to the neighborhood, zoning district or Town than is the existing non -conforming use." i. Change or Extension will not be substantial) more non-conformin A change or extension of use may be considered substantially more non -conforming if it deviates significantly from the original or permitted use of the property. Things to consider when determining if the new use will deviate significantly are the intensity of use, traffic and parking, noise and disturbance, community impact, and zoning regulations. The Petitioner is seeking approval to allow entertainment and live music as an accessory use to the restaurant that is incidental to the primary function of the restaurant and does not significantly change the nature of the Restaurant. The Restaurant is a lawful preexisting nonconforming use at the property. The Petitioner is expecting that occasional live performances of one or two musicians or a DJ will complement the dining experience or a private party. The new use would not involve bringing in significantly more patrons but will enhance their overall experience. Additionally, the new use would not significantly increase traffic or parking demand beyond the typical use of the property. The proposed live music is to take place indoors or under cover of the existing awning as to not increase the noise to the surrounding neighborhood. The proposed use is simply to create an enjoyable dining or private party experience. The Restaurant will be adhering to all regulations for entertainment set forth by the licensing board. Accordingly, the extension of the use will not be substantially more non -conforming than the existing use as a restaurant. ii. Change or extension will not be substantially more detrimental to the neighborhood, zoning district or Town A change or extension to the use of a property should aim to balance the needs and interests of the property owner with the well-being of the surrounding community, while adhering to local regulations. The proposed entertainment will be conducted in a manner that ensures minimal disturbance to the neighboring properties and maintains the overall character of the area. The Restaurant has adequate space and facilities to accommodate the proposed entertainment without causing overcrowding or safety concerns. The Petitioner is not seeking to increase parking or the number of seats at the Restaurant. The entertainment will be taking place indoors or under cover of the existing awning. In addition, the Restaurant will be adhering to all regulations for entertainment set forth by the Licensing Board. Thus, an extension of the use will not be substantially more detrimental to the neighborhood, zoning district or Town. B. Variance pursuant to Section 202.1 Use Regulations) The Petitioner seeks Variance relief to allow entertainment in the form of live music at the Restaurant. Entertainment is shown on the use chart of the town bylaws as N-3. The Restaurant is requesting relief from the bylaws because entertainment use is not an allowed use within an R-25 Zoning District. Section 202.1 of the bylaws states, "[n]o building or structure shall be erected and no premises shall be used, except as set forth in the Use Regulations Schedule, or in other sections of this bylaw." The criteria for obtaining a variance relief is set forth in section 102.2.2 of the Yarmouth Zoning Bylaws. The Bylaw states, "[s]uch variance shall be granted only in cases where the Board of Appeals finds all of the following: 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; and 3.) 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. i. Literal Enforcement of the provisions of this bylaw would involve a substantial hardship, financial or otherwise to the petitioner A hardship is defined as "not being reasonably able to use property for the purposes or in the manner allowed by the municipal zoning requirements due to circumstances particularly affecting the property." Massachusetts Zoning Manual. In relation to use variances, "[s]ubstantial hardship, financial or otherwise" is found where under the unique circumstances it is not "economically feasible or likely that the locus would be developed in the future for a use permitted by the zoning ordinance or bylaw." Cavanaugh v. Diflumera, 9 Mass. App. Ct. 396, 402 (1980). Additionally, the Appeals Court has determined that "[c]lose proximity [of land zoned for residential purposes] to a highly commercialized area is one factor which can be considered in concluding that a parcel of land is economically useless' for the development of single-family residences." Boyajian v. Bd. of Appeals of Wellesley, 6 Mass. App. Ct. 283, 287 (1978). A substantial hardship is found in this situation because of the lawfully preexisting nonconforming commercial nature of the property within a residential zone. The current use of the property is a lawfully preexisting non -conforming restaurant. Additionally, at the same property there are lawfully preexisting non -conforming uses for a boat yard, retail, marine service and fuel depot. It would not be feasible to tear down the building and put up a residential structure on the property as other buildings on the lot have commercial uses. Moreover, while the property is zoned for residential use, it can be considered economically useless for the development of single-family residences. It is economically useless because of its location on the highly commercialized area within the R-25 zoning district. This property location is in Hyannis Harbor and actively being used for many commercial uses. There is no intention of abandonment or change of use to a conforming use at the property. For those reasons, a literal enforcement of the bylaw would involve a substantial hardship to Petitioner. ii. 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 A property with dual zoning impact creates a hardship affecting the land or structure but not affecting generally the zoning district in which it is located. This property is very unique in that the lot itself and some of the structures situated on the lot span two municipalities with two different zoning districts classifications. This creates a conflict in zoning requirements making it practically impossible to comply fully with both sets of regulations simultaneously. This property is located in Yarmouth and zoned as R-25 Residential and also in Barnstable and zoned HH- Hyannis Harbor District. The Hyannis Harbor District is characterized by a mix of commercial, maritime industrial, and residential development and the presence of commercial ferry services. (Barnstable 240- 24.1.10). The divergent zoning districts impose an economic hardship on the property owner. In Barnstable the uses and buildings that are situated on the property are allowed by the zoning regulations. However, in Yarmouth they are considered lawfully preexisting nonconforming uses. Compliance with the zoning requirements of both municipalities will render the property economically unviable or limit its potential use. For example, the marine zoned portion of the property could not function entirely within that zone due to parking needs and access Arlington Street. Moreover, this does not affect other properties within the zoning district because Yarmouth has done a tremendous job in carving out their commercial zones or providing for certain overlay districts such as the Hospital Overlay District. The existing building that has operated as a restaurant for decades establishes the uniqueness of the lot in question. It has been previously found that "[u]nusual existing buildings that are structurally sound, have remaining value, and are not well suited to conforming uses have also been found sufficient, apart from all other considerations, to establish the uniqueness of the lot in question. Johnson v. Bd. of Appeals of Wareham, 360 Mass. 872, 873 (1972). The building is unique in its location and design as it houses a lawfully preexisting nonconforming restaurant. The building is designed to be a restaurant and has operated that way for decades. It is considered a hardship in not being able to reasonably use this substantial existing building for any permitted purpose. There is value in the building as a restaurant. The building as is, is not capable of being used for any permitted purpose. Thus, this property satisfies the hardship owing to circumstances relating to the structures and especially affecting such land or structures. The restaurant building is surrounded by buildings that are currently being used for commercial purposes and this creates a situation that limits the use of the property and value of the property if it cannot be used for its current use. iii. Relief may be_granted without substantial detriment to the public good or nullifying or substantially derogating from the intent or puKpose of the bylaw It has been determined by the Appeals Court that "some derogation from the by-law's purpose is anticipated by every variance; [o]therwise, the denial of relief on the basis of a slight or insubstantial departure from the goals of the by-law would prohibit the grant of any variance." Cavanaugh v. DiFlumera, 9 Mass. App. Ct. at 400. Relief should be granted because the Petitioner seeking approval to allow entertainment and live music as an accessory use to the lawfully preexisting nonconforming restaurant will not be a substantial detriment to the public good or derogate from the intent of the bylaw. The Restaurant is a longstanding lawful preexisting nonconforming use at the property. The Petitioner is expecting that occasional live performances of one or two musicians will complement the dining experience or a private party. The proposed use should not intensify any use at the property. The occupancy of the Restaurant will not be changing. Additionally, the new use would not significantly increase traffic or parking demand beyond the typical use of the property. The proposed live music is to take place indoors or under cover of the existing awning as to not increase the noise to the surrounding neighborhood. The proposed use is simply to create an enjoyable dining or private party experience. The Restaurant will be adhering to all regulations for entertainment set forth by the licensing board. Accordingly, the extension of the use for entertainment would be so slight to the property that it will not be substantially more detrimental than the existing use. C. Appeal from the decision of the Building Commissioner _(102.2.3(3). Petitioner sought decision of the Building Commissioner to permit the proposed entertainment at Tugboats as an accessory use pursuant to Section 202.5(3). Such accessory use shall be permitted if the Petitioner shows that such use is customarily incidental to any of the permitted uses and not detrimental to the neighborhood. The Commissioner was unwilling to make a finding that such use was not more detrimental as such ruling is more appropriately made by the Board of appeals after public notice. This appeal from the Commissioners decision is made pursuant to Section 102.2.3(3) which provides that the Board of Appeals shall hear the appeal of any person ... aggrieved of any order or decision of the Building Commissioner in violation of G.L. Ch. 40A, as amended, or this bylaw. To prevail, the Petitioner must show beyond a reasonable doubt that such use is of similar nature and at least no more noxious nor detrimental to the welfare of the neighborhood than a specifically allowed use. i. Use is not more noxious nor detrimental to the neighborhood than.any other permitted use Petitioner argues the limited proposed entertainment use is not more noxious nor detrimental to other allowed uses such as a school permitted in the R-25 zoning district under Section 202.5(P 1). Certainly, the traffic congestion, class bells not to mention outdoor events such as sporting events and assemblies with amplification could be considered much more noxious or detrimental to the residential neighborhood that the occasional live performers of one two musicians or a DJ entertaining diners at Tugboats. The noise and traffic generated by short-term rentals permitted under Al or the conditions resulting from production of livestock under B2 could be considered more noxious or detrimental to abutters the proposed use. Petitioner requests this Board to overturn the Building Commissioner's decision and find the proposed entertainment is accessory to the restaurant use and is not more noxious or detrimental to the neighborhood based upon the evidence presented by the president of the Hyannis Park Association as well as numerous abutters. D. Conclusion Petitioner kindly requests the Zoning Board of Appeals to grant the special permit or. variance to allow the addition of entertainment at the premises in a manner that ensures compliance with the applicable bylaws. Respectfully submitted: HARBOUR CLUB, INC. Hyannis, MA 02601 (508) 771-1911 Fax: (508) 790-0800 steven izzutilaw.com DATED: October 21, 2023