HomeMy WebLinkAbout5055 1272, 1276, 1282 Route 28 Complaint 2 ZBA Received 12.19.23COMMONWEALTH OF MASSACHUSETTS
"(1 COURT DEPARTMENT
OF THE TRIAL COURT
CIVIL ACTION NO.
NANCY C. REYBURN and DAVID W.
CATTEN, as Trustees of the MARTHA B.
CATTEN TESTAMENTARY TRUST
DATED AUGUST 8, 2013,
Plaintiffs,
V.
TOWN OF YARMOUTH ZONING
BOARD OF APPEALS; and Its Members:
Steven DeYoung, Chairman;
Sean Igoe, Vice Chairman;
Jay Fraprie, Member;
John Mantoni, Member;
Dick Martin, Member;
Richard Neits, Member (Alternate);
Anthony Panebianco, Member (Alternate);
Barbara Murphy, Member (Alternate);
EKATERINA & FAMILY LLC, and
JAY IMAD, as Trustee of the CEDARS OF
LEBANON TRUST,
Defendants.
COMPLAINT
INTRODUCTION
WPERlOR COURT
BARNSTABLE, SS
Mc 19 2023
FILED
Scott W. Nickerson, Clerk
1. This is an appeal pursuant to M,G.L. c. 40A, § 17 from a decision of the Town of Yarmouth
("Town") Zoning Board of Appeals (`Board") filed with the Town Clerk on November 29,
2023. A stamped copy of the Board decision ("Decision") is attached as Exhibit A.
2. The Board's Decision is granted pursuant to the Revitalization Overlay Architectural
District in the Town Zoning Bylaw (`Bylaw") section 411, also referred to as R.O.A.D.,
which permits waiver of certain Bylaw requirements.
I A ROAD waiver requires a Board determination "that the project as a whole substantially
accomplishes the purposes of the underlying zoning bylaw" and "that the benefits to the
neighborhood, district and Town from the ROAD 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". Bylaw, s. 411.5(2)(C) & (D).
4. Here, the Board approved a development project at 1272, 1276 & 1282 Route 28, South
Yarmouth ("Subject Property") contrary to the purposes of the underlying Bylaw, and acted
unreasonably in light of the detrimental impacts to the neighborhood.
5. Plaintiffs timely filed this appeal with this Court and the Town of Yarmouth Town Clerk,
prior to the expiration of the 20-day appeal period allowed under M.G.L. c. 40A, § 17.
PARTIES
6. Plaintiffs Nancy C. Reyburn and David W. Catten own the property located at 27 & 28
Bryar Lane, South Yarmouth, Massachusetts, and which Ms. Reyburn intends to make her
permanent residence upon retirement. Ms. Reyburn currently lives and resides at 22 Quaker
Meetinghouse Road, Forestdale, Massachusetts, 02644.
7. Defendant Town of Yarmouth Zoning Board of Appeals is a duly constituted board of the
Town of Yarmouth, Massachusetts, with a principal place of business at 1146 Route 28,
Yarmouth, Massachusetts 02664. Massachusetts General Laws Chapter 40A, § 17 on
judicial review of zoning and permitting decisions requires that all members of the Board
be named as Defendants in a § 17 appeal. The following members of the Yarmouth Zoning
Board are named solely in their official capacities as members of the Board:
Steven DeYoun , Chairman, 691 Willow Street, South Yarmouth, MA 02664;
Scan Igoe, Vice Chairman, 138 Bakers Path #55, South Yarmouth, MA 02664;
Jay Fraprie, Member, 36 Pheasant Cove Circle, Yarmouth Port, MA 02675;
John Mantoni, Member, 55 Scholl Avenue, West Yarmouth, MA 02673;
Dick Martin, Member, 592 Route 28, West Dennis, MA 02670;
Richard Neits, (Alternate), 11 General Holway Road, South Yarmouth, MA 02664;
Anthony Panebianco, (Alternate), 7 Minden Lane, Yarmouth Port, MA 02675;
Barbara Murphy, (Alternate), 198 Kates Path, Yarmouth Port, MA 02675.
8. Defendant Ekaterina & Family, LLC is a Massachusetts corporation located at 381 Camp
Street, West Yarmouth, MA 02673, with a registered agent Jay Imad and a registered
address of 6 Fairwind Circle, South Yarmouth, MA 02664. Ekaterina & Family LLC was
incorporated in 2006 for the purpose of developing real estate, and is the owner of the real
property at 1272 and 1276 Route 28. Ekaterina & Family LLC is the party responsible for
applying for and receiving the special permit under appeal herein.
9. Defendant Jay Imad, Trustee of the Cedars of Lebanon Trust is a nominee trust recorded
with the Barnstable County Registry of Deeds in Book 20629, Page 41, and is the owner
of the real property at 1282 Route 28, and on which is located the existing gas station. Jay
Imad, Trustee is also a party responsible for applying for and receiving the special permit
under appeal herein. Ekaterina & Family, LLC and the Cedars of Lebanon Trust are
hereinafter referred to as "Defendant LLC and Trust")
SUMMARY OF BACKGROUND INFORMATION
10. Defendant LLC and Trust propose to redevelop the Subject Property by demolishing all
eight (8) existing buildings on the site and constructing a gasoline filling station with
associated fixtures, and a convenience store, coffee shop and drive-thru, and a separate four
(4) unit residential apartment building (the "Project").
11. The Project combines three currently non -conforming lots (1272, 1276 & 1282 Route 28,
South Yarmouth), to create a single conforming lot with 49,833 square feet of area.
12. The Project will increase building coverage from 12.2% to 15.9%, lot coverage by all
surfaces from 52.6% to 63.3%, rear setback from 6.8 feet to 47.2 feet, front setback from
3.3 feet to 10 feet, and eliminates one of four existing curb cuts.
13. The Project was submitted as a R.O.A.D. application, seeking relief from the strict
compliance with seven sections of the Bylaw:
a. Building front setback (s. 203.5)
b. 2 in -lot trees (s. 301.4.6)
c. Drive through buffer distance to residential zone of 100' (s. 301.8)
d. Front landscape buffer (s. 301.4.4)
e. Al2, Multifamily use (s. 202.5)
f. H6, Gas Station Use (s. 202.5)'
g. Signs on front and right -side elevations (s. 303.5.5)
14. After several iterations, the Defendant LLC and Trust completed the required formal site
plan review on June 6, 2023, and the required formal design review on July 18, 2023. The
Planning Board recommended approval on August 16, 2023,
3 H6 allows gas stations to be approved in B2 district on special permit, so a waiver is not technically
required.
15. The final approved plans submitted to the Board in the special permit application show the
location of the two-story residential apartment building to the east, the gas pumps in the
center, and the convenience store/coffee shop on the west. The drive -through enters from
the east, goes around the gas pumps and past the convenience store. A copy of a plan
entitled "Site Layout and Fuel Truck Access Plan" is attached herewith as Exhibit B.
16. The drive -through stacking lanes are situated 24' from the northerly property line, which
abuts the Plaintiff s property.
17. The stacking lanes also pass by the entrance to the residential apartments, cross a 5'
crosswalk for pedestrians, and pass in front of both proposed dumpster enclosures.
18. A parking area for employees working in the convenience store/coffee shop is located in
the northwest corner of the lot, and is blocked by the stacking lanes of the drive -through.
In order to get into the store, employees must use the crosswalk shown on the plans crossing
the drive -through lane.
The Bylaw and R.O.A.D.
19. The purpose of the R.O.A.D. District is to "[promote] business opportunities through the
use and reuse of business properties while preserving and enhancing the ambiance of our
historic community." Bylaw, s. 411.1.1.
20. In order to encourage a certain type of development, under a R.O.A.D. application, the
Board may waive strict compliance with sections 202 (Use regulations), 203 (Use
Intensity), 301 (Parking and Load Requirements), 303 (Signs), 402 (Cluster
Developments), and 407 (Accessory Apartments). Bylaw, s. 411.3.2.
21. In exchange for this zoning flexibility, the Bylaw requires submission "to a high standard
of site and building architectural review". Bylaw, s. 411.1.2.
22. This "high standard of review" is meant to "further encourage variety and choice within
commercial and business development, to further encourage mixed commercial, business
and residential uses, to stimulate economic development and, to further encourage the
construction of projects with Historic, Seaside, Village, Colonial, and/or Old Cape Cod
style themes and designs, while preserving and protecting Yarmouth's natural
environment and aesthetic values."
23. R.O.A.D. does not waive the general standards for issuing special permits contained in
section 103, or the Stormwater requirements in Section 304.
24. "Special permits shall not be granted unless the applicant demonstrates that no undue
nuisance, hazard or congestion will be created and that there will be no substantial harm
to the established or future character of the neighborhood or town." Bylaw, s. 103.2.2,
25. "In or abutting residential districts, effective use is made of topography, landscaping and
building placement to maintain, to the degree reasonable, the character of the
neighborhood." Bylaw, s. 103.3.1(7).
26. The use table does not include drive -through facilities as either an allowed principal use or
an accessory use. Bylaw, s. 202.5.
27. However, it does attempt to regulate drive -through facilities as a "parking and loading
requirement". Bylaw, s. 301.
28. A stacking lane is defined as "[a]n area of stacking spaces and driving lane provided for
vehicles waiting for drive -through service that is physically separated from other traffic
and pedestrian circulation on the site." Bylaw, s. 500.
29. Under section 301.8, "[s]tacking lanes must be designed so as to prevent circulation
congestion, both on site and on adjacent public streets. Stacking lanes must not impede or
impair access into or out of parking spaces, nor impede or impair vehicle or pedestrian
traffic movement, nor interfere with loading and trash storage areas (nor will such
loading and trash storage areas interfere with a stacking lane)."
30. "Any outdoor service facility (including menu boards, speakers, etc.) shall be a minimum
of 100 feet from any residential use or zone." Bylaw, s. 301.8. "Outdoor service facility"
includes by extension the stacking lanes and stacking spaces that make up the drive -through
lane.
31. The 100-foot setback included in section 301.8 was adopted by Town Meeting as a zoning
amendment in 2007.
32. In addition to considering the purposes of the overlay district and the bylaw, in order to
grant a waiver the Board must find that "[t]he 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 shall outweigh any detriments as determined by
the Planning Board."
33. This high standard of review includes the mandatory requirement "that the benefits to the
neighborhood, district and Town from the ROAD 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". Bylaw, s. 411.5(2)(D).
THE BOARD'S DECISION
34. In Yarmouth, as in many other Towns, where a use is not specifically allowed, by right or
special permit, it shall be considered to be not allowed. Bylaw, s. 202.1. The Boards
Decision is fundamentally flawed in its reliance on the assumption that a drive -through use
is an allowed use under the Bylaw. Because the Bylaw does not specifically list drive-
throughs as an allowed use, they are prohibited. The Board lacks authority to grant any
special permit for a drive -through use, as involved in the Project here.
35. Even assuming drive-throughs qualify as an allowed accessory use, the Board's decision
fails to reconcile the definition requirement for an accessory use: "a use customarily
incidental to and secondary to the allowed use and not detrimental to the neighborhood."
Bylaw, s. 500. Because the use of the drive -through as proposed is neither incidental nor
secondary to an allowed use, it does not meet the definition of an accessory use. Moreover,
its proposed location is detrimental to the neighborhood.
36. Assuming the Town is entitled to deference on this matter (that drive-throughs qualify for
treatment under the Bylaw regardless of the above defects), the Decision is still an
unreasonable application of the R.O.A.D. District standards.
37. In approving the drive -through as proposed, the Board failed to require compliance with
section 301.8 criteria that requires drive -through lanes to be physically separated from
other vehicle and pedestrian traffic.
38. The Board also failed to require compliance with section 301.8 criteria that stacking lanes
not impair or impede access to parking spaces, trash storage areas, and vehicle and
pedestrian traffic movement.
39. The Decision does not expressly waive any of these Bylaw requirements.
40. While the Board found there were benefits to the Town and neighborhood (undefined), it
principally relied upon the "numerous accommodations made by the applicant to address
noise, light, and general congestion concerns" in order to tip the scales in the applicants
favor.
41. The "numerous accommodations made by the applicant" are almost entirely changes to the
plans that were required to comply with other design elements essential to R.O.A.D.
compliance. Only two "accommodations" are designed to address impacts to abutting
property owners: 1) relocating the order board and deliver window further from the
northerly abutter, and 2) conditioning the installation of an 8' tall acoustic fence along the
property line.
42. The Board relied on these two accommodations to find "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".
43. The Decision also cites critically to other approved projects that include drive-throughs in
similar proximity to residential zones. However, all of the projects referenced by the Board
in its decision pre -date the adoption of the 100' setback to "outdoor service facilities".
44. The Board did not address how drive-throughs are treated under the Bylaw, other than to
grant a waiver from the 100' setback to "outdoor service facilities" (meaning the stacking
lanes),
45. Despite the Board's statement of "no substantial harm", the project will locate a drive -
through lane within 24' of residential lots, with its attendant noise, fumes, vehicle idling.
The order board also remains within 50' of a residential zone.
2 The Decision also incorrectly states that the stacking lane is 49.7 feet from the residential zone.
According to plans submitted by the Defendant LLC and Trust, the drive -through lane is 24' from the
residential zone. The plans do show a distance of 49.7 feet from the order board to the residential zone.
This may have been what the Board was referring to, or it mistakenly used the wrong number. In any
event, the encroachment to the setback is much closer than indicated in the Decision.
46. The mitigation measures adopted as a condition of the special permit are not adequate to
address the harms created by the close proximity of the drive -through facilities. The 8'
acoustic fence will not eliminate noise from the drive -through lanes from impacting
residences along Bryar Lane. Even assuming noise were reduced, the acoustic fence will
not reduce or effect the odors associated with the drive -through.
47. The numerous issues involving the siting of the drive -through on this property demonstrate
that a drive -through use on this lot represents a substantial change that overwhelms the lot
and is out of character with this neighborhood.
48. The introduction of the nuisance associated with the use of the driv6-through, to a relatively
secluded residential area, also violates the Special Permit criteria of section 301.3.2 of the
Bylaw.
COUNT 1 - APPEAL OF THE DECISION
49. Plaintiff repeats and incorporates by reference herein paragraphs 1 through 48.
50. The Board's implicit finding that the drive -through use was a permissible use under the
Bylaw is legally untenable.
51. Even assuming the drive -through was a permissible accessory use, the Board failed to
apply the standards applicable to drive -through facilities by approving stacking lanes that
are not "physically separated from other traffic or pedestrian circulation on the site" or
grant a waiver.
52. Assuming the drive -through was a permissible accessory use, the Board failed to apply
the standards applicable to drive -through facilities by approving stacking lanes that
"impede and impair" access to parking spaces, vehicle and pedestrian traffic movement,
and loading and trash storage areas, or grant a waiver.
53. Furthermore, the Board's findings that the benefits outweigh the detriments is not
supported by evidence, and is unreasonable and arbitrary and capricious.
54. The Project will be a nuisance to abutting residences because of the drive-through's close
proximity within 24' of the residential zone.
55. The presence of nuisance noise and odors caused by the drive -through are not adequately
mitigated by any of the proposed conditions of the special permit.
56. Because a nuisance will be created by this Project, the Board's decision was improper
and exceeds the Board's authority, and is unreasonable, arbitrary and capricious.
REQUESTS FOR RELIEF
WHEREFORE, the Plaintiff requests the following relief:
1. Overturn the Decision of the Board and annul the issued special permit.
2. Remand to the Board with instructions to:
a. alter, move or eliminate the drive -through as incompatible with the limitations
of the site;
b. Provide more buffer towards the residential lots, in order to minimize impacts
from the project on the abutting neighborhood;
3. Award the Plaintiffs damages;
4. Costs;
5. Any other remedy the Court finds to be reasonable and appropriate.
Respectfully submitted this 19th day of December, 2023,
NANCY C. REYBURN and DAVID W. CATTEN, Trustees of the
MARTHA B. CATTEN TESTAMENTARY TRUST DATED AUGUST 8, 2013
by their Attorney:
JoM. Poni (BBO # 686642)
SeV
Assoc tes,P.C.
Lane
Brewster, MA 02631
Tel (774) 323-3027
Fax (508) 330-6640
eseniensenie-law.com
ipolloni (Nenie-law.com
vdalmas cusenie-law.com
EXHIBIT A
[Stamped copy of Town of Yarmouth Zoning Board of Appeals Decision on Case No. 5055
is attached.]
FILED WITH TOWN CLERK:
PETITION NO:
HEARING DATE:
PETITIONER:
TOWN OF YARMOUTH
BOARD OF APPEALS
DECISION
November 29, 2023
5055
October 26, 2023
Ekaterina & Family LLC 1 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, Page 26, Book 21043, Page 13 and
Book 20629, Page 48
MEMBERS PRESENT AND VOTING: Vice Chair Sean Igoe, Dick Neitz, John i1'Iantoni,
Anthony Panebianco and Barbara Murphy
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 Cape Cod Times, the hearing opened and held on the date stated above.
The Applicant seeks a Special Permit pursuant to Section 411 (R.O.A.D.) for H2, H6, H10 and
Alt use to redevelop the property and demolish all existing 8 buildings on site and construct a
gasoline filling station with 4 dispensers, overhead steel canopy, 2 fuel storage tanks, and a 3,890
sq ft mixed use building with a coffee shop and convenience store, with drive-thru, and a
separate and detached building housing 4 residential apartments on two floors.
The three currently separate abutting properties, to be combined (the "Property") are located in
the B2, HMOD-1 and the Revitalization Overlay Architectural District (R.O.A.D.) Zoning
Districts. The first lot is at 1272 Route 28, which until recently was improved with pottery store,
built in approximately 1930 and which lot contains 11,936 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. The lot contains 21,780 sf and
the houses are rented and have been for many years. Of the 5 residential units on the site, one is a
2 bedroom and 4 are one bedroom dwellings, for a total of 6 bedrooms.
The third lot is the property at 1282 Route 28 which is currently improved with a gas
station/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 are 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 drive 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 -bedroom dwelling
units (A 12 use). New gas tanks on site will consist of two 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 be 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 on June 6, 2023, the
Community and Economic Development Committee on August 2, 2023, the Design Review
Committee on July 18, 2023, and a recommendation of the Planning Board that the plan be
presented to the Zoning Board of Appeals, voted on August 16, 2023.
Development of the project is being proposed under Bylaw Section 411, the R.O.A.D. bylaw,
which allows for zoning 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 Yarmouth Architectural and
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 Permit, the Board of Appeals may waive any portion of zoning bylaw sections 202, 203,
301, 303, 402 and 407 if the applicant:
1. Submits in accordance with Section 411;
2. Meets the criteria for the grant of 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 411.5, and
5. Received approval of the Planning 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 of design review pursuant to section 103.3.3.1;
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:
(l.) 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 Cod (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;
(2.) 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 significance;
(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;
(6.) 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 shall outweigh any detriments as determined by the Planning Board.
Tile Board then considers the Mandatory Criteria of Section 411.5(2), which are as follows:
A. those criteria as set forth 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 from 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;
E. 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 for
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 use was a major concern. In addition, arguments were made 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 Yarmouth.
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 minimize 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 not 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, but 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. Weighing 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 made 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 redevelopment that Zoning Bylaw Section 411 seeks.
The Board analyzed the relief for which the applicant has applied, both in tenns of a 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. Al2, Multifamily Use in the B2 Zoning District, section 202.5 and 411
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, the 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 met 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
Stormwater 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 Pennit, 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 B2 Zoning District, including the present site of McDonald's restaurant
and the Dunkin Donuts on the corner 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 Walgreen's phannacy, regarding; the
number of requests for relief and a drive -through. The difference between those projects is found
in the parking at the Walgreen's project is located fully in front of the building and the drive -
through is Iocated 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 follows: 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 buffer 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 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)
Sean Igoe, Vice Chair
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 #5055 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.
Mary A. Maslowski, CMC
COMMONWEALTH OF MASSACHUSETTS
TOWN OF YARMOUTH
BOARD OF APPEALS
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, MA; Map 60, Parcels 130,131 and 132; Zoning District: B-2, HMOD-1 and R.O.A.D.; Title: Book
34755, Page 26, Book 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 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 retard 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.
Sean Igoe, Vice Chair
EXHIBIT B
[Site Layout and Fuel Truck Access Plan]
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