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HomeMy WebLinkAboutDecision 2211TOWN bF YARh10UTH BOARD OF APPEALS Filed with Town Clerk: JUL 15 1985 RECEIVED�sHearing Date: July 11, 1985 Petitioner: Mobil Oil Corp. Petition No: 2211 91 Montvale Ave. 1965 JUL 15 PI-1 2: 08 Stoneham, MA 02180 TORN OF YARMOJTN 4.01& a DECISION TOWN CLERK & TREASURER K_. The petitioner requested a Variance and/or Approval from the Board to allow the Petitioner to maintain existing ingress and egress 45' wide each onto Route 28 from said parcel. Petitioner seeks to redevelop site and utilize same curb cut both in location and dimension. As shown on Assessor's Map #27 Lot Q1 & Q2. Members of Board of Appeals present: David Oman, Leslie Campbell, Thomas George, Fritz Lindquist. It appearing that notice of sail hearing has been given by sending notice thereof to the petitioner and all those owners of property deemed by the Board to be affected thereby and that public notice of such hearing having been given by publication in '. The Register on June 27, 1985 and July 4, 1985, the hearing was opened and held on the date first above written. The following appeared in favol of the petition: Mr. Michael Stusse, Atty for the petitioner; Fern Lamay; M.T. Car oll; A. Bissonett. the following appeared in opposition: None Reason for decision: The Petitioner, Mobil Oil Corporation has appealed to the Board of Appeals seeking j permission to remodel its service station located on the corner of South Sea Avenue in West Yarmouth. After publication was made and notice given to abutters a public hearing was held on July 11, 1985. Upon the evidence presented at such hearing, the Board makes the following findings of fact. The Mobil Oil Station constitutes a conforming use as it is located in a General Business District where retail.a'utomobile service stations are allowed. The Board has examined the Petitioners 'plan for the proposed remodeling and has determined that the curb cuts as'presently configured constitute a non -conforming structure in that they are in excess of 2 feet wide and are within 250' of one another. However, in as much as the exis ing.structures constitute a pre-existing non-conformancy, the Petitioner is entitled to a *ecial Permit upon a showing that there will be.no substantial detriment to the'neighborhood. Since the Petitioner is proposing no changes in the curb cuts or sidewalk the"Board finds that there is no detriment to the neigh- borhood. The Petitioners's remodeling, will.result in'greater-conformancy with the bylaw requirements 'and will improve the visual appeal of the building and other structures. Therefore, thelSpecial Permit is granted. The Board is aware that many of the present improvements on the site are to be removed and new structures built. Therefore, the protections afforded pre-existing non -conform- ing uses and structures contaiped in Section 104.3 of the bylaw may not apply to this case. In that event, the Board enters findings of fact with respect to each element necessary for the granting of to variance as follows: First, the Board finds that restricting the Petitioner's gas station to one 24 foot access of customers to andfromthe gas pump islands will be greatly restricted and hampered. Second, the Board finds that the existing curb cuts, walkways and traffic signals constitute a topographical feature pique to this site. In as much as these improve-ments40 ' were undertaken by the Corrionwealthlet federal expense, the board is reluctant to require: the Petitioner to obtain permissionito change the present configuration. Third, The Board finds that traflfil must stop at regular intervals at the instersection in front of Petitioner's property and that no practical change in the flow of traffic will occur if one of the curb cuts is closed. Based upon the facts as found, the Board grants a variance and allows the construction and remodeling of the Petitioner's station as shown on a plan entitled: Grading/Drainage Plot Plan for, S/S 01-713, State Highway 28 and South Sea Ave. West Yarmouth, FAA for Mobil Oil Corporation and dated March 25, 1985. Members of Board voting: David Oman, Leslie Campbell, Thomas George, Fritz Lindquist. Unanimous in their decision to grant. Therefore the petition for valialce, approval and/or special permit is granted. s No permit issued until 20 daylf from date of filing decision with the Town Clerk. Thomas George Clerk Pro Tem CERTIFICATION OF TOWN CLERK I, Kathleen D. Johnson, Town Clerk, Town of Yarmouth do hereby certify that 20 days have elapsed since the filing with me of the above Board of Appeals #2211 decision andlthat no notice of appeal of said decisi? s been biled with me, or if such appeal has been filed it has been.disse� n or denied. ; — n �„ rn M �1 Katlileen D. Joh n Town Clerk. r- = cl— r:, c3 - PJ RD or Arrrm-s 8 i L Q t IL CO RP i �! i' AFFEALS 1 9 ADDri'SS: c1 l f'10U 41c g^'f'�^A S�ING DATE : )' ; / F'! p � I F£TITIMER: t:1.N.E: �D(o,i D•� iaf 1:....;OL(80 i J PLc -1 b1 iOU RLRD or ArrLALS, YAF.?7;`UTF, KASS. This petition when corplcted and signed rust be filed with the Board of Sclect- r,en, Yarmouth, Y.assachusetts, along with the fee of s 75.00 DATE: FAID: 1, I, We, hereby er eal fro..decision of the Fuilding Inspector and petition your board for a public heaiino on the action checked bElew: 1. Review refusallof Building Inspector to grant perr.it. U. 2. Decision of Selectmen. 2. I, We, hereby re.uest the action checked below: variance fro- e_uizE-•ents of Yarmouth Zoning By -Law. F.pprcval ofl tLC F:•azd of Appeals. 3. .A special pe.-T.I;it from the b:,ard of Appeals. p L� • 1 _ To allow: ?zT�'1�� TO N%m, f= - _ C Yam. (w�- ✓ten tti. �L-t,i'-cJ 4z 3. F.Eason jGr t}.E !';ardl0f ;-;;eals ccticr. as c"ecl.eZ bElc':: 1. Contrary tc Fcnzl.e J-lawe as -`cllcws. 1. 1 3 0 - 2. u_ 36/7 3. 2. Approval of Board fe Appeals, or Special Ferr.it beg ested Under the following sectior. of Zoning Ey-Lew: 1. l 2. I I i:a.mes and addresses of 'aL' affected by this app.licat ittinc property ownE-rs, and those persons deer.ed I cn. (At least three.) -f' •I o. :_TOWW OF -: YARMOU•TH `. y i PLANNING BOARD {O� _ MArTACH ES rwAno�yCd SOUITi YARDfOUiH DIASSACHUSLTTS 02664 f ' M E M O' TO Board of Appeals' FROM: James A. RobeYtson' Vice-chairman,. Planning Board_ DATE: July 9 1985 RE: Petition:#2211 Mobil' Oil Corporation . The Planning Board can well`,appreciate;why the': petitioner desires :to maintain the•three existing.curb : nuts. It would seem that two•45'.-and'one 40', are ex-' cessive for,their`needs:. We can understand why -some relief above ;the';by aw'stipulated footage.may be necessary: We strongly,feel.that.as each property on Route`28 asks for .relief-•asi a.adjunct to,improvement of the. site, that I •total com liance when ossible "radin include the u P � P Pg g � with' the: present' parking, loading and buffer requirements. �� l,, � J`' � •'•.( r fit, ,r f . _.. 71 �. , s TO'UN JOF YhWOUTH SITF PLAN RF.VIF.h APPLICANTe mobil Oil Co. Andy Bissonnette Fern LeMayls Garage LOCATION: South Sea Avenue ASSESSORS' MAP N 27 West Yarmouth { PARCEL N Q-1-2 DATE: June 18, 1985 I I FIVE SETS OF PLANS SUBMITTEDt YES X NO yJ REMODEL TO SELF SERVICE STATION PERSONS PRESENT AT REVIE : r6 elzc5T WH I-r6 r"'�ho M M mz c e 1, �v I I r3(ZucE Mo(�-,p HV /yiyd��_L�_--�^'.✓f err }� • ^^ I e,kie,' T (Are, 2o lZ J2AEOU/REO IUD` 2 FA1 .'1�IFJGEJ nN p.�LF 2� �3y �• ¢r! 1 All. � .� A _i- � � . A -... • I w.1 Imo- • rJOOAK-A e a-r-^ ,09p AE-j.^a.., ��.2�,d�r�l ��.c CS �eSvST. Cat -Gs, -- �, /. 15 . O TNEP-UJ I 22 �o re [ i I . I . /'fer * O.✓/: yam:..:// 6. ree�l 'Tc MnI P C 7— UJ IIL�-'WuShr✓ wit) hy ve ,[ SIGNED: BUILDING DEFT: A/AQ R re Ct z-rr,�.rsrtsyc7�-[.� V I BOARD OF HEALTH: ENGINEERING DEFT:. FIRE DEPT- WATER DEPT: I i _RI- I -n vwy0r f-rJ, .S v.e READ AND RECEWD BY AP LICAMT AROITO. SWEENEY STUSSE Et ROBERTSON ATTORNEYS AT LAW WEST YARMOUTH. MASS. Oxen TEL (617) 773-3433 TO: YARMOUTH ZONING BOARD OF APPEALS fI FROM: ARDITO, SWEENEY, STUSSE i ROBERTSON, P.C. ATTORNEY FOR MOBIL OIL CORPORATION RE: APPEAL #2211 DATE: JULY 11, I MEMORANDUM IN SUPPORT OF PETITIONER'S REQUEST FOR A SPECIAL PERMIT AND/OR VARIANCE I I. FACTS and BACKGROUND Your Petitioner is Mobil Oil Corporation of Alexandria, Virginia. The Petitioner owns and leases a Mobil Service Station located on the corner of Route 28 and South Sea Avenue in West Yarmouth. Said property is shown on Assessors Map #27 as Parcel 01 and Q2. Your Petitioner appeared before the Yarmouth Site Review Committee on June 18, 1985, seeking permission to remodel its service -station as shown on the plans submitted to the Board on June 21, 1985. At the site review it was determined that the applicant would need relief from those sections of the Yarmouth Bylaw which control the number and width of curb cuts onto State Highways in Yarmouth. The Petitioner now appears before this Board and seeks a Special Permitland/or variance to allow the remodeling of the station and maintain the present curb cuts. Relief from Sections 361.4.7 and 301A 7 is sought as the access ways exceed 24 feet in width and eachlsuch areas is within 250 feet of the other. By way of background, the station has been operated for many years at thislsite and is an allowed use within a General Business District pursuant to Section 202.5 H-6 of the Yarmouth Bylaw. The non-conformancy of the station is; therefore, of a structural nature) and is not related to use. II: THE DESIRED RELIEF CAN BE GRANTED A. THE SITE QUALIFIES FOR A SPECIAL PERMIT The Petitioner believes that its proposal falls within the provisions oflSection 104.3.2 of the bylaw which regulates the change, extension or alteration of non -conforming uses and structures. Here, ,the non -conforming structure consists of two curb cuts onto Rotue 28. The petitioner does not wish to change those structures, but desires only to remove, relocate and rebuild its service garage and gasoline pump islands. All work ARDITO. SWEENEY STUSSE ROBERTSON ATTORNEYS AT LAW WEST YARMOUTH. MASS. O2E73 TEL 16M 773-3433 proposed by the Petitioner will be done in accordance with the bylaw. The proposal will "not be substantially more detrimental to the neighborhood" because the alterations will result in greater conformity with thelbylaw by the addition of required buffer strips around the 'property and the relocation of improvements further back from 1the sideline of Route 28. The net result of the proposal will be to improve the visual quality of the service station and provide a' modern and convenient format for servicing customers. Inasmuch,as no changes are proposed with respect to the non -conforming I structures i.e., the curb cuts, the Board can conclude that the Petitioner meets the requirements for granting a Special Permit. B. THE SITE QUALIFIES FOR A VARIANCE II In the event that the Board determines that the proposal exceeds' the definition of "extended, altered or charged" and does not qualify for the protections afforded prior non -conforming uses as set forth in Section 104.3.2 of the bylaw, the Petitioner urges that the Board grant a variance pursuant to Section 102.2.2 of the bylaw.' The Petitioner believes that the proposal qualifies for a variance for the following reasons: (1) A literal enforcement of the bylaw would provide a hardship for the' Petitioner as the constriction of traffic flow to and from the gasoline pump islands and service bays would discourage motorists from utilizing the station. The lrequiremen t that access be limited to one 24 foot wide entrance/exit would also result in a hardship to patrons of the station in that access and traffic flow would'be severely restricted. (2) The hardship is owing to the existing shape and topography of the lot. The curb cuts, sidewalks and other improvements at the intersection of Route 28 and South Sea Avenue were put in place by the Commonwealth of Massachusetts Department of Public Works in the mid 1970's pursuant to the TOPICS program which was a federally funded highway safety improvement program. Any change in the layout of the curb cuts onto the highway would indolve the petitioner with seeking to undo improvements and traffic patterns recently designed and completed lby the Commonwealth. The existing topographical features consist of a raised concrete curb and sidewalks, timed and trip -timed 3-way overhead traffic lightsl and two pedestrian crossings. Any attempt by the Petitioenr to make changes in the present .scheme will requiie a new D.P.W. license which, given the circumstances, may not be forthcoming. The Petitioner alleges, therefore, that the hardship is owing to existing features which are located off -site and not within its direction or control. I ARDITO• SWEENEY STUSSE ROBERTSON ATTORNETS AT LAW WEST YARMOUTH. MASS. 02673 TEL. (617) 775.3433 (3) Desirable !relief can be granted without .substantial detriment to the'1public or nullifying the intent of the bylaw. There will be no detriment to the public as a result of allowing the present curb cuts to remain as they were installed as part of a state sponsored highway safety improvement program. The Petitionor's request is merely to preserve the status quo as approved by the Massachusetts D.P1W. Also, the Petitioner alleges that the intent of I the bylaw is to attempt to limit the number of places where turning movements can occur in order to facilitate a steady flow of traffic. However, inasmuch as Ittiere are presently two signaled intersections adjacent to the site, the intent of the bylaw can not be Ifullfilled at this location. That is, traffic must stop at regular intervals on front of the Petitioner's property irrespective of the number of curb cuts. III.- CONCLUSION and DEISIRED RELIEF For the reasons set forth above, the Petitioner respecfully requests that this Board issue it a Special Permit and/or variance to allow they existing curb cuts to remain and asks for a decision in substantially the following form: "The Petitioner, Mobil Oil Corporation has appealed to the Board of Appeals seeking permission to remodel its service station located on the corner of South Sea Avenue in West Yarmouth. After I publication was made and notice given to abutters a public hearing was held on July 110, 1985. Upon the evidence presented at 'such hearing, the Board makes the following findings of fact. The Mobil Oil Station constitutes a conforming use as it is located in a General Business District where retail automobile service stations are allowed. The Board has examined the Petitioners plan for the proposed remodeling and'has determined that the curb cuts as presently configured constitute a non- conforming structure (in that they are in excess of 24 feet wide and are within 250' of one another. However, inasmuch as the existing strucutres,constitute a pre-existing non-conformancy, the Petitioner is entitled to a Speical Permit upon a showing that there will be nolsubstantial detriment to the neighborhood. Since the Petitioner is proposing no changes in the curb.cuts or sidewalk the Board finds that there is no detriment to the neighborhood. Theo Petitioner's remodeling, if allowed, will result in greater con1formancy with the bylaw requirements and will improve thelvisual appeal of the building and other structures. Therefore; the Speical Permit is granted. The Board is aware that many of the present improvements on the site are to be 'removed and new structures built. Therefore, the protections afforded pre-existing non -conforming uses and ARDITO. SWEENEY STUSSE a ROBERTSON ATTORNEYS AT LAW WEST YARMOUTH. MASS. 02673 TEL (M) 775-3433 .I structures contained in Section 104.3 of to this case. In that even, the Board with respect to each element necessary the bylaw may not apply enters findings of fact for the granting of a variance as follows:l i First, I the Board finds that restricting the Petitioenr's gas station to one 24 foot access will result in a hardship to the Petitioner because the access of customers to and from the gas pump islands will be greatly restricted and hampered. I Second, the Board finds that the existing curb cuts, walkways and traffic signals constitue a topographical feature unique to this site. Inamsuch at these improvements were undertaken by theICommonwealth as federal expense, the Board is reluctent to requiie the Petitioner to obtain permission to change the present ci figuration. Third, the Board finds that traffic must stop at regular intervals it the intersection in front of Petitioner's property and that no pracical change in the flowage of traffic will occur if onelof the curb cuts is closed. I Based upon the facts as found, the Board grants a variance and allows the construction and remodeling of the Petitioner's station as shown on is plan entitled: Grading/Drainage Plot Plan For S/S #-1-713, State Highway 8 and South Sea Avenue, West Yarmouth, Massachusetts; for Mobil Oil Corporation Shee 1 of 2 and last dated March 25, 1985. Respectuflly submlitted, MOBIL OIL CORPORATION By its attorney, Michael B. Stusse ARDITO, SWEENEY, STUSSE & ROBERTSON, P.C. 5200 Building West Yarmouth, MA 02673 (617) 775-3433 j July 111 1985 Nutter � ­3 IIJ March 28, 2002 9528-934 Michael E. Scott Direct Line: 617-439-2811 Fax: 617-310-9811 E-mail: mes@nutter.com James Bandolini Building Commissioner Town of Yarmouth 1146 Route 28 South Yarmouth, MA 02664 Re: Redevelopment of 601 Main Street, Yarmouth Dear Mr. Bandolini: Thanks again for taking the time to meet with us. As we discussed, I am enclosing a copy of the recorded Decision, dated Jtily 15, 1985, relating to Mobil Oil's request for a Variance and/or Approval regarding curb cuts at the above -referenced property. Very truly y urs Michael E. Scott MES:pjc cc: i Nutter Mcclennen & Fish uP ■ Attorneys at Law I l One International Place ■ Boston, MA 02110-2699 ■ 617-439-2000 ■ Fax: 617-310-9000 ■ www.nuttercom 3-27-02; 3:23PM;BARN. LAND COURTI 3 OGI ,I � N p l:J w p ,L w cc w o cl N j u 'f- v ut cc I 4 COW cci ;3 t/ 3 i i I I i i I I 7-02; 3:23PM;BARN. LAND COURT ' I ;3 f�Fi 01 iJ i L&15 - riled with Tour Clerk: Hearing Date: July 11. 19" Petitioner: Mobil Oil Corp.l t Petition No: 2211 ` 91 Montvale Ave. ��• J.- 1 • 5 r:. 21 De Stoneham, NA 02180 Y i,. _•� .!il: DECISION ••:- requested a Yarience and/or Approval from the Board to allow the The petitioner Petitioner to maintain existing'ingress and egress 45' wide each onto Route 28 from said parcel. Petitioner seeks to redevelop site and utilize same curb cut both in location and dimension.) As shown on Assessor's hap 127 lot Q1 a 02. � I Members of Board of Appeals' present: David Oman, Leslie Campbell, Thomas George, Fritz Lindquist. It appearing that notice of sad hearing has been given by sending notice thereof those of deemed by the Board to be affected to the petitioner and all owners property thereby and that public notitelof such bearing having been given by publication in The Register on June 27, 1985 and July 4, 1985, the hearing Was opened and held on the date first above written. 1 The following appeared in favor of the petition: Mr. Niehael 5tusse, Atty for the tow V1 petitioner; fern Lamay; Y.T. Carroll; A. Bissonett. The following appeared in opposition: hone 44 f� Reason for decision: The Petitioner, Mobil Oil Corporation has appealed to the Board of Appeals seeking located on the corner of South Sea Avenue permission to remodel its service station in hest Yarmouth. After publication was made and notice given to abutters a public 1985. Upon the evidence presented at such hearing, the bearing was held on July 11, Board makes the following findings of fact. `F? a conforming use as it is located in a General the Mobil Oil Station constitutes Business District where reta'1 autombile service stations are allowed. The Board for the proposed remodeling and has dete mined r M has examined the petitioners plan that the curb e•ts as presenttttly configured constitute a r•on-conforming structure in that they am in excess of 24 feet wide and are within 250' of one another. as the existing structures constitute a pre-existino n0n-conformanc3i. However, in as mach the Petitioner is entitled to a Special Permit upon a showing that there „ill be no detriment to'the neighborhood. Since the Petitioner is proposing no changes substantial in the curb cuts or sidewalk the Board finds that th°ra is no detriment to the neioh- borhood. The Petitioners'sIrenodeling,'Will tesult in greater confornancy will improve the visual appeal of the building and other with the bylaw requirements and structures. Therefore, the Special Permmit is granted. The Board is aware that many of the present improvements on the site are to be removed the afforded pre-existing n0n-conf0 and new structures built. Therefore, protections ing and structures' contained in Section 104.3 of the bylaw may not aPPlY to this uses case. In that event. the Board enters findings of fact with respect to each element necessary for the granting 'of a variance as follows: First. the Board finds that restricting the Petitioner's gas station to one 24 foot . access will result in a hardship to'the Petitioner because the. access of customers to and from the gas pumpislandswill be greatly restricted and hampered. the existing curb cuts, welkways and trai• :'•VEI: Srcond, the Board iiddi tf'st - lof 15 Pl. 1911`1 E 3-27-02; 3;23FM;BARN. LAND COURT ;3 # 3/ 3 i 'censtitutc a topograrh101 ril.tulc'unique to this sitt. In es Hoch as thtse ie?rOv!'•fts wtrc u+deriticn by the (o-r:'; •Itt, at federal expense, the Board it relvctent to rc:.ire the retitioncr to obtain Pt to to change the present conflguratton. laird. The Board finds that tralf a must stop at regular intervals at the insttrsection j in front Of petitioner's rroperll% and that no practical change in the flop of traffic will occur if one of the curt• cdts is closed. Based upon the facts as founld. 1►,c Eotrd grants a variance and allows the construction and rem3delIng of the petitionej's station as shown on a plan entitled: 713, State Highway 28 and South Sea Ave Grading/Drainage Plot plan for S15 01. Vest Yarmouth, FAA for Mobil' Oil forporation and dated Hareh 25, 1985. Members of Board voting: David Oman, Leslie Campbell. Thomas George, Fritz Lindquist. Unanimous in their deeision•te 'erant. Therefore. the petition forlvaiance, approval and/or special permit is granted. No pemit'issued until 20 days fror. date of filing decision with the town Clerk. I 1 Thomas George Clerk Pro Tam CERTIFICATION OF TORN CLERK I, Kathleen 0. Johnson Town Clerk, Town of Yarmouth do erti!y that 20 days have elapsed since the filing with me of the a Of Appeals 12211 decision and that no notice of appeal of sai 5. a been biled with me, or i such appeal has been filed it e:8i;e rn 1 � r • r�''j" e"� or denied. y;:..• C-C - rn .. u �. � r Ka jhleen D. on Town Clerk e w ti IAA'"'1► 1 � i l . � f ARDITO. SWEENEY STUSSE a ROBERTSON ATTORNEYS AT LAW WEST YARMOUTH. MASS. 02673 TEL. IBM 775.3433 TO: YARMOUTH ZONING BOARD OF APPEALS :I FROM: ARDITO, SWSSrJEY, STUSSE i ROBERTSON, P:C. ATTORNEY FOR MOBIL OIL CORPORATION RE: APPEAL #2211 DATE: JULY 11, 19" MEMORANDUM IN SUPPORT OF PETITIONER'S REQUEST FOR A SPECIAL PERMIT AND/OR VARIANCE I. FACTS and BACKGROUND Your Petitioner is Mobil Oil Corporation of Alexandria, Virginia. The Petitioner owns and leases a Mobil Service Station located on the corner of Route 28 and South Sea Avenue in West Yarmouth. Said property is shown on Assessors Map #27 as Parcel 01 and 02. Your Petitioner appeared before the Yarmouth Site Review Committee on IJune 18, 1985, seeking permission to remodel its service station as shown on the plans submitted to the Board on June 21, 1985. At the site re iew it was determined that the applicant would need relief .from those sections of the Yarmouth Bylaw which control the number and width of curb cuts onto State Highways in Yarmouth. The Petitioner now appears before this Board and seeks a Special Permit and/or variance to allow the remodeling of the station and maintain) the present curb cuts. Relief from Sections 301.4.7 and 301.4.7 s sought as the access ways exceed 24 feet in width and each (such areas is within 250 feet of the other. By way of background, the station has been operated for many years at this site and is .an allowed use within a General Business District pursuant to Section 202.5 H-6 of the Yarmouth Bylaw. The non-conformancy of the station is; therefore, of a structural nature land is not related to use. i II: THE DESIRED RELIEF CAN BE GRANTED A. THE SITE QUALIFIES FOR A SPECIAL PERMIT The Petitioner I believes that its proposal falls within the provisions of Section 104.3.2 of the bylaw which regulates the change, extension or alteration of non -conforming uses and structures. Here; the non -conforming structure consists of two curb cuts onto Rotue 28. The petitioner does not wish to change those structures, but desires only to remove, relocate and rebuild its service garage and gasoline pump islands. All work t ARDITO, SWEENEY STUSSE at ROBERTSON ATTORNEYS AT LAW WEST YARMOUTH. MASS. 02M TEL (6M 775.3433 proposed by the Petitioner will be done in accordance with the bylaw. The proposal ,will "not be substantially more detrimental to the neighborhood" because the alterations will result in greater conformity with the bylaw by the addition of required buffer strips around the'pioperty and the relocation of improvements further back from the sideline of Route 28. The net result of the proposal will belto improve the visual quality of the service station and provide a modern and convenient format for servicing customers. Inasmuch' as no changes are proposed with respect to the non -conforming structures i.e., the curb cuts, the Board can conclude that the 'Petitioner meets the requirements for granting a Special Permit. B. THE SITE QUALIFIES FOR A VARIANCE In the eventjthat the Board determines that the proposal exceeds the definition of "extended, altered or charged" and does not qualify for the protections afforded prior non -conforming used as set forth lin Section 104.3.2 of the bylaw, the Petitioner urges that the Board grant a variance pursuant to Section 102.2.2 of the bylaw. 'The Petitioner believes that the.proposal qualifies for a variance for the following reasons: (1) A literal Iforcement of the bylaw would provide a hardship for �the Petitioner as the constriction of traffic flow to land from the gasoline pump islands and service bays would discourage motorists from utilizing the station. ;The requirement that access be limited to one 24 foot wide entrance/exit would also result in a hardship to patrons of the station in that access and traffic flow would.be severely restricted. (2) The hardship is owing to the existing shape and topography of the lot. The curb cuts, sidewalks and other improvements at the intersection of Route 28 and South Sea Avenue' were put in place by the Commonwealth of Massachusetts Department of Public Works in the mid 1970's pursuant) to the TOPICS program which was :a federally funded highway safety improvement program. Any change in the layout of the curb cuts onto the highway would involve the petitioner with seeking to undo improvements and traffic patterns recently designed and completed 1by the Commonwealth. The existing topographical features consist of a raised concrete curb and sidewalks, timed and trip -timed 3-way overhead traffic lights Iand two pedestrian crossings. Any attempt by the Petitioenr to make changes in the present scheme will require a new D.P.W. license which, given the circumstances, may not be forthcoming. The Petitioner alleges, therefore, that the hardship is owing to existing features which are located off -site and not within its direction or control. ARDITO. SWEENEY STUSSE ROBERTSON ATTORNEYS AT LAW WEST YARMOUTH. MASS. 02673 TEL 1617) 775.3433 (3) Desirable' relief can be granted without substantial detriment to the public or nullifying the intent of the bylaw. There will be no detriment to the public as a result of allowing the present curb cuts to remain as they were installed as part of a state sponsored highway safety improvement program. The Petitionor's request is merely to preserve the status quo as approved by the Massachusetts I D.P.W. Also, the Petitioner alleges that the intent of the bylaw is to attempt to limit the number of places' where turning movements can occur in order to facilitate a steady flow of traffic. However, inasmuch as there are presently two signaled intersections adjacent to the site, the intent of the bylaw can notlbe fullfilled at this location. That is, traffic must stop at regular intervals on front of the Petitioner's property irrespective of the number of curb cuts. III. CONCLUSION and DESIRED RELIEF For the reasons set forth above, the Petitioner respecfully requests that this Board issue it a Special Permit and/or variance to allow the existing curb cuts to remain and asks for a decision in substantially the following form: I "The Petitioner, Mobil Oil Corporation has appealed to the Board of Appeals seeking permission to remodel its service station located Ion' the corner of South Sea Avenue in West Yarmouth. After 'publication was made and notice given to abutters a public hearing was held on July ll, 1985. Upon the evidence presented at such hearing, the Board makes the following findings of fact. I The Mobil Oil Station constitutes a conforming use as it is located in a General Business District where retail automobile service stations are allowed. The Board has examined the' Petitioners plan for the proposed remodeling and has determined that the curb cutslas presently configured constitute a non- conforming structure in that they are in excess of 24 feet wide and are within 2501, of one another. However, inasmuch as the existing strucutres constitute a pre-existing non-conformancy, the Petitioner is entitled to a Speical Permit upon a showing that there will be no substantial detriment to the neighborhood. Since the Petitioner is proposing no changes in the curb cuts or sidewalk the Board, finds that there is no detriment to the neighborhood. ThelPetitioner's remodeling, if allowed, will result in greater conformancy with the bylaw requirements and will improve thelvisual appeal of the building and other structures. Therefore, the Speical Permit is granted. The Board islalare that many of the present improvements on the site are to be removed and new structures built. Therefore, the protections afforded pre-existing non -conforming uses and AROfTO. SWEENEY STUSSE ROBERTSON ATTORNEYS AT LAW WEST YARMOUTH. MASS. 02673 TEL (6171 775.3433 structures containedl in Section 104.3 of the bylaw may not apply to this case. In Ithat event, the Board enters findings of fact with respect to each element necessary for the granting of a variance as follows:) First, I the Board finds that restricting the Petitioenr's gas station to one 24 foot access will result in a hardship to the Petitioner because the access of customers to and from the gas pump islands will be greatly restricted and hampered. Second,j the Board finds that the existing curb cuts, walkways and traffic signals constitue a topographical feature unique to this site. Inamsuch at these improvements were undertaken by thej Commonwealth as federal expense, the Board is reluctent to require the Petitioner to obtain permission to change the present configuration. Third, the Board finds that traffic must stop at regular intervals a I t the intersection in front of Petitioner's property and that no pracical change in the flowage of traffic will occur if onejof the curb cuts is closed. Based upon thelfacts as found, the Board grants a variance and allows the construction and remodeling of the Petitioner's station as shown on I a plan entitled: Grading/Drainage Plot Plan For S/S $-1-713, State Highway 8 and South Sea Avenue, West Yarmouth, Massachusetts; for Mobil Oil Corporation Shee 1 of 2 and last dated March 25, 1985. Respectuflly submitted, MOBIL OIL CORPORATION By its attorney, Michael B. Stusse ARDITO, SWEENEY, STUSSE & ROBERTSON, P.C. 5200- Building West Yarmouth, MAI 02673 (617) 775-3433 1 1 July 11, 1985