HomeMy WebLinkAbout5055 1272, 1276, 1282 Route 28 Complaint ZBA Received 12.19.23COMMONWEALTH OF MASSACHUSETTS
TRIAL COURT OF THE COMMONWEALTH
SUPERIOR COURT DEPARTMENT
BARNSTABLE, ss
Yarmouth Professional Condominium
Association, Plaintiff
V.
CIVIL ACTION:
COMPLAINT
Ekaterina & Family LLC, and
Jay Imad,Trustee of the Cedars of
Lebanon Trust,
and
Sean Igoe, Richard Neitz,
John Mantoni, Anthony Panebianco, and
Barbara Murphy,
Defendants
Count I
1. The Plaintiff, the Yarmouth Professional Condominium Association, is the
owner of property located at 1292 Route 28, South Yarmouth, MA. pursuant
to the Master Deed recorded in the Barnstable County Registry of Deeds in
Book 3657, Page 251.
2. The Defendants, Ekaterina & Family LLC, and Jay Imad, as Trustee of the
Cedars of Lebanon Trust, (hereinafter collectively the "Defendants" or
"Applicants") are the owners of property at 1272, 1276, and 1282 Route 28,
South Yarmouth MA.
3. The Defendants,
-Sean Igoe, of 223 South Sea Ave., West Yarmouth, MA 02673;
- Richard Neitz, of 11 General Holway Road, S. Yarmouth MA 02664;
- John Mantoni of 55 School Ave., West Yarmouth, MA 02673;
- Anthony Panebianco, of 7 Minen Lane, Yarmouth Port, MA 02674; and
- Barbara Murphy, of 198 Kates Path, Yarmouth Port, MA 02675
are the duly constituted and voting members of the Yarmouth Zoning Board
of Appeals ( hereafter the "ZBA") relative to the matter that is the subject of
this action.
4. On or about September 11, 2023, the Defendants filed an application with
the Yarmouth Zoning Board of Appeals seeking a special permit pursuant to
bylaw section 411, to combine and re -develop their land at their said
addresses, in Yarmouth Massachusetts, to contain a self -serve gas station, a
convenience store, a coffee shop with drive-thru lane, and a multi -family
residence to contain four residential units.
5. On or about October 26, 2023, the Yarmouth Zoning Board of Appeals held
a duly noticed public hearing on the Defendants' said application, and after
hearing voted 5:0 to grant the requested special permit.
6. The Decision of the Board rendered in the above -referenced action was filed
with the Yarmouth Town Clerk on November 29, 2023. ( See copy attached
as Exhibit A)
7. The Plaintiff asserts that it is an abutter to the subject property and a Party -
in -Interest to this application.
8. The Plaintiff asserts that the Applicant's project did not qualify for`the-relibf- -
sought and granted under the applicable zoning bylaw.
9. The Plaintiff asserts that the Board exceeded its authority in granting the
special permit at issue, as the relief granted is not supported by the. facts or
the law.
10. The Plaintiff asserts that it is aggrieved of the said Decision of the Board,
and appeals therefrom pursuant to M.G.L.A. c. 40A, § 17.
WHEREFORE, the Plaintiff requests that this Honorable Court do the following:
1) Annul the decision of the Board, as being beyond its authority and
jurisdiction, and being unsupported by the facts and the law;
2) Grant the Plaintiff such other or further relief as maybe deemed just, proper
and equitable.
Count 11
11.The Plaintiff repeats and incorporates by reference the allegations contained
in paragraphs 1 and 2 above.
12.The Plaintiff is the owner of property located at 1292 Route 28, South
Yarmouth, which property is shown on a Plan recorded in the Barnstable
County Registry of Deeds in Plan Book 370 at Page 8 (Exhibit B).
13.That said property at 1292 Route 28, South Yarmouth MA, was developed
as a multi --unit commercial condominium, as depicted in the 1985 site plan
attached as Exhibit C.
14.The Plaintiff asserts that a portion of its said property was wrongfully
included in the land sought to be permitted and redeveloped by the
Defendants in the foregoing redevelopment project (as described in Count 1).
15.The portion of the Plaintiff's property now claimed by the Defendants is
shown as Area B on the Plan of Land in South Yarmouth, prepared for the
Plaintiff dated September 20, 2023, attached hereto as Exhibit D.
15.The Plaintiff alleges, in the alternative, that it has adversely used and openly,
exclusively and continuously occupied the portion of the said land labeled
on Exhibit D as Area B, now claimed by the Defendants, as a portion of its
professional condominium property, for more than the preceding 20 years,
under its claim of right, and without interruption or interference by the
Defendants or any predecessors in title to their said property.
17. The Plaintiff alleges that it has established title to the disputed area by
adverse possession.
18. 1n the alternative, the Plaintiff alleges that it has establishes an exclusive
easement to the disputed area by prescription.
F : WHEREFORE, the Plaintiff requests that this Honorable Court do the
following:
l . Determine and declare that the Plaintiff is the owner of the disputed area
of land;
2. Determine and declare that the Plaintiff has established title by adverse
possession of the said disputed land area;
3. Determine and declare that the Plaintiff has established an easement upon
the said disputed land area by prescription;
4. Grant the Plaintiff such other or further relief as shall be determined to be
just and equitable.
Respectfully submitted,
Yarmouth Professional Condominium
' Association
By its attorney: I,/
John B iega, Esq.
12 out 28
. Yarmouth MA 02664
Tel: (508) 398-7272
BBO # 042500
Dated: December' 18, 2023
Y.41 R
G1
TOWN OF YARMOUTH
BOARD OF APPEALS
DECISION
FILED WITH TOWN CLERK.- November 29, 2023
PETITION NO: 5055
HEARING DATE: October 26, 2023
PETITIONER: Elcaterina & Fancily LLC / Jay Imad, Trustee of the
Cedars of Lebanon Trust
PROPERTY: 1272, 1276 & 1282 Route 28, South Yarmouth, MA
Map 60, Parcels 130, 131 and 132
Zoning District: B-2, HMOD-1 and R.O.A.D.
Title: Book 34755, rage 26, Book 21043, Page 13 and
Book 20629, Page 48
MEMBERS PRESENT AND VOTING: Vice Chair Sean Igoe, Dirk Neitz, John Mantoni,
Anthony Panebianco and Barbara Murphy
Notice of the hearing ],as been given by sending notice thereof to the Petitioner and all those n��rters
Of property as required by law, and to the public by posting notice of the hearing and publishing in
Tilt' CaI)c Cod Times, the hearing opertecl and Feld nn the; date stated abm=e.
The Applicant seeks a Special Permit pursuant to Section 411 (R.O.A.D.) for H2. H6, 1410 and
A 12 use to redevelop the property and demolish all existing 8 buildings on site and construct a
gasoline tilling station with 4 dispensers, Overhead steel canto 2
fuel sq R mixed use building; with a coffee shop and convenience s Yoe, witl35drive thtorage �u. and a nks, and a 3 S9t)
separate and detached building housing 4 residential apartments on two floors.
The three currently separate abutting pron Overlay Architectural District (R.O.A.D.) Zooperties, to be combined (the "Property") are located in
the $2, yN(OD-1 and the Revitalizatining
Districts. Tile first lot is at 1272 Route 28, which until recently was innprovcd With pottery store,
built in approximately 1930 and which lot contains 11,9336 sf. The structure was recently
removed from the property and the lot graded, as there were trees growing through the roof of
the building. The second lot is the parcel at 1276 Route 28, which is improved with 5 separate
residential structures scattered throughout the lot, built in approximately 1936, and positioned so
that 4 of the houses encroach into the rear setback of the property. Tile lot contains 21,780 sfand
the houses are rented and have been for many years. Of the 5 residential units con the site, one is a
2 bedroom and 4 are one bedroom ci« cllings, for a total of 6 bedrooms.
The third lot is the property at 1282 Route 28 which is currently improved with a gas
staticn/convenience store and canopy (built in 1942), and which contains 16.117 sf. The canopy
over the 2 gas pumps is 3.1 feet from Route 28. The lots containing the rentals and gas station
were created by a plan dated 1953 and the property at 1272 does appear on a plan in 1981, but
the description is historical dating back to 1945.
The existing collective structures encroach into the front yard setback and sit 3.1 feet from Route
28, and into the rear setback in several locations, with one structure located 6.8 feet from the rear
residential zone. The Property totals 49,833 square feet of area, lot coverage is 12.2% and the
height of the tallest structure on site is approximately 20 feet. There are currently 5 separate
septic systems on the combined properties, and 4 curb cuts from Route 28. Overall, these lots are
poorly designed for today's standards, and the dated buildings arc not attractive or very
functional.
The proposal is to combine the three lots into one lot. The old pottery store has already been
demolished, and the existing gas station/convenience store and canopy, and the 5 rental units,
will be razed and replaced with a new less non -conforming canopy, a building containing a
coffee shop with a chive through lane (H 10 use), convenience store (H2 use) and a gas station
(H6 use), and a detached separate two-story dwelling containing four two-bcdronm dwelling
units (Al2 use). New gas tanks on site will consist of nvo double -walled fiberglass fuel storage
tanks. Building coverage will be 15.9% (from 12.2%), lot coverage will increase to 63.3% (from
52.6%), rear setback will be 47.2 feet (instead of 6.8), front setback will he 10 feet (instead of
3.1), and one curb cut will be eliminated.
The project has been presented and approved by the Site Plan Review team un June 6, 2023. the
Community and Economic Development Committee on August 2, 2023, the Design Review
Conttnittee on July 18, 2023, and a recommendation of the planning Roard that the plan be
presented to the Zoning Board of Appeals, voted on August 10, 2023.
Development ofthc project is tieing proposed under Bylaw Section 411, the R.O.A.D. bylaw,
which allows for zoEting flexibility in exchange for a high standard of site and building design.
The Planning Board acted as the Design Review Authority for R.O.A.D. projects and was
responsible for ensuring the project substantially adhered to the �rannouth Architectural gild
Site Design Standards (Design Standards).
First, Section 411.3.2 of the Zoning Bylaw applies to this project as it is located in the B2 Zoning
District and is south of Route 6. Second. the Zoning Board of Appeals may grant R.O.A.D.
District Development Special Permit approval, with or without conditions, and within said
Special Pen -nit, the Board of Appeals may waive any portion of zoning bylaw sections 202. 203,
301, 303, 402 and 407 if the applicant. .
I. Submits in accordance with Section 411;
2. Meets the criteria for the grant of a Special Permit as set forth in Section 103.2;
3. Completes the process of Site plan Review as set forth in Section 103.3;
4. Meets the criteria for approval pursuant to section 41 1.5, and
5. Received approval of the Plam)ing Board pursuant to section 411.6.
Regarding item 4 above, the Board considers the general criteria pursuant to Bylaw Section
411.5(1), although a proposal need not necessarily satisfy all criteria in order to receive the
approval. The general criteria include the following:
A. site plan review objectives pursuant to section 103.3.1;
B. the criteria, standards and objectives ofclesign review pursuant to section I03.3.3.1;
C. the goals, purpose and objectives of this section 411:
D. the economic benefits of the proposed development;
E. the recommendations of the Site Plan Review team and the Community and Economic
Development Committee; and
F. supplementary R.O.A.D. District standards, including:
(1.) architectural styles. Site, elevation, landscape, and sign plans (plans shall be drawn in
the context of one (or a mixture of) the following styles: Historic, Seaside Village,
Colonial, and/or Old Cape C'od (style) which shall have their common and ordinary
meaning. Portions of the overall plans may include contemporary design where necessary
for public health and safety or to eliminate architectural barriers;
(?.) design. Plans shall be evaluated in the context of the findings, objectives and criteria
set forth in this section 411;
(3.) intrinsic or reproduction style value and signi licance;
(4.) aesthetic and/or artistic quality of the style;
(5.) balance and mixture within the general style design of factors to include, but not
limited to: a. relative size and setting; b. color; c. material, and; d. arrangement;
(0) respect for the need to balance economic well-being and stability, economic growth,
and employment with protection of the natural environment.
(7.) balance. The benefits of the R.O.A.D. District development plan shall outweigh its
detriments. Further, the benefits of any deviation or relief from the underlying zoning
bylaw slialI outweigh any detriments as determined by the Planning Board.
The Board then considers the Mandatory Criteria of Section 41 1.5(?), which are as follows:
A. those criteria as scat firth For the grant of a Special Permit pursuant to section 103.
B. that the goals, purpose and objectives of the R.O.A.D. district bylaw will be
accomplished;
C. that the project as a whole substantially accomplishes the purposes of the underlying
zoning bylaw;
D. that the benefits to the neighborhood, district and Town 1=rom the R.O.A.D. District
development's approval under this bylaw section 411 outweigh the effects of any
deviation or relief from the requirements of the underlying zoning bylaw, and;
F. the architectural and site designs of the proposed development plan is as previously
approved by the Planning Board, pursuant to 411.6.
The Board listened to the applicant and counsel for an immediate abutter explain the genesis of
this process, and agreed that projects under Section 411 must demonstrate not only a balance
between providing a high standard of site and building architectural review in exchange fol-
zoning flexibility, but also to balance the interests of abutting residentially zoned property
owners and to promote business opportunities for owners of commercial lots and to encourage
redevelopment and upgrade of those properties.
Residential abutters to the north of the Property appeared in opposition to the project, listing as
objections the noise, traffic, light, potential gasoline odors, and the risk of hazards that the
Project will bring. Specifically, the location of the drive -through stacking lane to 49.7 feet of the
residential zone or tlSC was a major concern, In addition, arguments were nlade that the project
does not comply with the requirements of Bylaw Section 411 because the structures do not
comply with the Yarmouth Architectural and Site Design Standards, the design standard used by
the Planning Board and the Zoning Board of Appeals in the Town of Yanllouth.
Although understandable that the abutters are concerned with the proposed commercial operation
in proximity to their historically residential use, the Board finds that the applicant has designed
the project in such a manner so as to mininlize the typical points of friction between a business
zoning district and a residential zoning district. The Board is often confronted with these
arguments, especially for projects in the B2 zoning district along Route 28, and asked to
reconcile the differing needs of the parties. In this case, the Board and the applicant have made
strides to resolve those needs, but not by an outright denial of the project in a business zone. In
reality, the residential neighborhood to the immediate north of the Property is ilot only bound by
properties in the B2 zoning district to the south, but is actually bound by B I properties to the east
as well, many of which have been utilized for residential uses. brit still available For business
uses. The Board also discussed Other R.O. A.D. projects, previously approved, and found the
design of this project to be not only equal to, but better, than those projects. In addition, the need
to attract a vibrant and attractive commercial base for the Town of Yarmouth is inherently the
purpose of Bylaw Section 411. Neighing the needs of abutting residential uses is always
considered. However, in this case, the Board found that the benefits to the Town and
neighborhood, coupled with the numerous accommodations tnadc by the applicant to address
noise, light, and general congestion concerns, weigh in favor of the applicant's project. This
project is precisely the kind of rcdcvelppnlcill that Z("ling bylaw Section 411 seeks.
The Board analyzed the relief for which the applicatt has applied, both in terms ofa R.O.A.D.
Special Permit, as follows:
1. Building front setback, section 203.5
2. Parking within front setback -- 301.4.1
3. Only 2 in -lot trees, section 301.4.6
4. Drive -through buffer distance to residential zone of 100'. Section 301.8.
5. Front landscape buffer, section 301.4.4.
6. A 12, Multifamily Use in the B2 Zoning District, section 202.5 and 41 1
7. H6, Gas Station Use in the B2 Zoning District, section 202.5
S. Signs on front and right -side elevations, section 303.5.5
As it relates to the R.O.A.D. application, tile Board finds that the applicant has submitted the
application for relief in accordance with Section 411, completed the process of Site Plan Review,
and received approval of the Planning Board. The Board also finds that the applicant has nlet the
criteria for approval pursuant to Section 411.5. which states that a proposal need not necessarily
satisfy all criteria in order to receive the approval of any of the reviewing boards or authorities.
However, this Board finds that the applicant has demonstrated that the proposal meets the
objectives of site plan review with site improvements, addressing internal circulation and egress,
improving parking, buffers, fire access, drainage and utilities, and landscaping. in addition, per
site plan review comments, the applicant's counsel stated that the applicant plans to file a
Story water Management application with the Conservation Commission. The applicant also
meets the goals and objectives of design review, based on the improved aesthetic quality of the
buildings and siting, as evidenced from the meeting with the Design Review Committee. as well
as the Yarmouth Planning Board, which acted as the Design Review Committee for purposes of
recommending the plan to this Board. In addition, this Board independently agrees that the
Design Standards have been met with this project.
The project further meets the goals, purposes and objectives of Section 411, by promoting
business opportunities through the use and reuse: of business properties while preserving and
enhancing the ambiance of our historic community. In addition, the Board finds that there are
economic benefits that the project will bring to the 'town of Yarmouth, by way of increased
taxes, jobs, environmental upgrades, and much needed housing. The Site Plan Review team and
the Community and Economic Development Committee have reviewed and approved the
project. Finally, the Board finds that the project has met the requirements for the issuance of a
R.O.A.D. Special Permit, in that the project will not result in undue nuisance, hazard or
congestion and that there will be no substantial harm to the established or future character of the
neighborhood or town.
Overall, the drive -through component of the project is not only consistent with relief granted to
other businesses in the 132 Zoning District, including the present site of McDonald's restaurant
and the Dunkin Donuts on the corder of Forest Road and Route 28, but is a better plan based on
the distance to residential -zones. In addition, the applicant's project for the Property is similar to
the R.O.A.D. project approved by this Board in 2006 for the Walgrecn's pliarmacy, regarding the
number of requests for relief and a drive -through. The difference between those projects is found
in the parking at the Walgrcen's project is located fully in front of the building and the drive -
through is located within 35 feet of a residential property.
Accordingly, a motion was made by Mr.'Mantoni, seconded by Mr. Neitz, to grant the request
for the Special Permit, as requested, with the following conditions:
L Lighting shall be contained on the property,
2. Within one year following the issuance of a Certificate of Occupancy, the Applicant shall
appear before the Board of Appeals to report the results of a sound measurement study,
solely to review the effectiveness of the acoustical fence to be installed along the
northerly boundary between the property and the residential lot to the north:
3. Hours of operation shall be limited as lbllows: Drive -through lane shall be open from
6:00 am to 8:00 pm, and the retail stores and sale of gasoline shall be from 6:00 am to
10:00 pm;
4. Landscaping of the entire site will be in compliance with the plans submitted to the
Zoning Board of Appeals;
5. A four foot tall, black coated chain link fence will be installed in the dividing island
between the residential building and the entrance travel lanes to prevent passage of
residents through that vegetated buffer, and said fence shall run from the southerly tip of
the most westerly parking; space closest to the residential building and extend southerly,
along the edge of the buster and the sidewalk, perpendicular to Route 28, to the point
where the sidewalk turns at a 90-degree angle;
6. Applicant shall comply with the conditions recited in the Planning Board Certificate of
Approval of a R.O.A.D. Plan, dated August 30, 2023, which said conditions are as
follows:
-The 8' acoustical fence shall have an STC (sound transmission class) rating of
26; and
-Maximum 60 decibel reading 4 feet from the order speaker.
The members voted unanimously in favor of the motion.
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 alter filing; of this notice/decision with the Town Clerk. Unless otherwise provided herein,
the Special Pennit shall lapse if a substantial use thereof has not begun within 24 months. (See
bylaw 3103.?.5, MGL c40A §9)
Sean Igoe, Vice Chair w
CERTIFICATION OF TOWN CLERK
1, Mary A. Maslowski, clown Clerk. Town of Yarmouth, do hereby certify that 20 days have
elapsed since the filing With 'Ile Of the above Ronrd of Appeals Decision #5055 that no notice of
appeal of said decision has been tiled with me, or, if such appeal has been filed it has been
dismissed or denied. All appeals have: been exhausted,
Mary A. Maslowski. CMC
COMMONWEALTH OF MASSACI-iUSETTS
f ; � TOWN OF YARMOUTI-I
5 :`'•�..Ic BOARD OF APPEALS
Y �,1Trnt,ILi.-
Petition #: 5055 Date: December 20, 2023
Certificate 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:
Ekaterina & Family LLC / Jay Imad, Trustee of the Cedars of Lebanon Trust
Affecting the rights of the owner with respect to land or buildings at: 1272, 1276 & 1282 Route 28, South
Yarmouth, NIA; Map 60, Parcels 130, 131 and 132; Zoning District: B-2, HMOD-1 and R.O.A.D.; Title; Book
34755, Page 26, hook 21043, Page 13 and Book 20629, Page 48 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 ail 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 I I (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 beating the certification of the Town Clerk that
twenty (20) clays have elapsed after the decision has been filed in the office of the Town Clerk and no appeal
Ill's 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 tkte grantor index under
the name of the owner of record or is recorded and noted on the Owne"s certificate of title. The fee for such
recording or registering shall be paid by the owner or applicant.
Sean Igoe, Vice Chair
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