BOA # 4801 Bk 35614 Pg207 #3936
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f41. 1GTOWN OF YARMOUTH
<i 1, ti C BOARD OF APPEALS
0'. - -1 DECISION
FILED WITH TOWN CLERK: September 5,2019
PETITION NO: #4801
HEARING DATE: August 8,2019
PETITIONER: Colbea Enterprises,L.L.C.
OWNERS: Jeanne L. Luby,Karen J. Luby-Drew,and Station Avenue LLC
PROPERTY: 473,479,and 487(portion) Station Avenue,South Yarmouth,MA
Map&Parcels: 97,1,2 and a portion of 3
Zoning District:B1 & APD&ROAD
Deed References:
Book 28068,Page 126,Lot 5 on Plan in Book 319,Page 52
Book 28068,Page 128,Lot 4 on Plan in Book 319,Page 52
Book 18308,Page 272,Lot 2(portion)on Plan in Book 442,
Page 48
MEMBERS PRESENT AND VOTING: Chairman,Steven DeYoung; Vice Chairman,Sean Igoe;
Dick Martin; Tom Nickinello; and Richard Neitz. Also attending and speaking,but not voting,was
alternate Tom Baron.
Notice of the hearing has been given by sending notice thereof to the Petitioner and all those owners of
property as required by law,and to the public by posting notice of the hearing and publishing in The
Register,the hearing opened and held on the date as stated above.
The Petitioner is Colbea Enterprises, L.L.C. The Petition is a companion application with Appeal#4802.
The Applicant is seeking Special Permits and Variances to develop the land at the above addresses for use
as a Shell fuel service station and Seasons Corner Market convenience store with co-brand business. The
proposal includes closing, decommissioning, and deed restricting two old, outdated, active fuel service
station properties(Shell Station at 446 Station Avenue and Sunoco Station at 433 Station Avenue) located
within one-quarter mile of the new site also on Station Avenue and replacement with the new state-of-art
fuel service station(Shell)[collectively"Proposal'].
The Property is located in the Bl Commercial Zoning District, the Aquifer Protection Overlay District,
and the ROAD Overlay District.
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Relief is requested per the submitted plans and materials as follows:
I. Use: Special Permit—H6(Motor Vehicle Fuel and Service)in B I Zoning District(no service
proposed)and H 10(Eating and Drinking Establishment)in APD:
Variance— H6(Motor Vehicle Fuel and Service)in APD(no service proposed);and
Permitted— H3(Food Store)in B 1 Zoning District and APD and H10(Eating and
and Drinking Establishment)in B I Zoning District.
2. Dimensional-Variance
A. Canopy front setback(43.7 ft.provided)(Section 203.5 Footnote J);
B. Parking in front of building(Section 301.4.1);
C. Curb cut radius width(30 ft.provided;25 ft.maximum allowed)(Section 301.4.3);
D. Centerlines of driveways less than 250 ft. apart and from driveway across street(Section
301.4.7);
E. In-lot trees and plant species(Sections 301.4.6 and 301.9);
F. Front buffer tree spacing(Section 301.4.9);
G. Photometrics(perimeter boundary and driveways(Section 301.4.10);
3. Signs-Variance
A. Section 303.5.2—directional signage(size);
B. Section 303.5.4.1—freestanding sign(face area square footage);and
C. Section 303.5.5.2—attached signs(height for Seasons,co-brand,and canopy pecten;and
total number for Seasons,Corner Market,Co-Brand,Welcome,and Canopy Pectens).
The Petitioner was represented by Attorney Andrew Singer; Andrew Delli Carpini,owner of Colbea
Enterprises, L.L.C.; Robert McGann, Dennis Darveau, Larry Coburn, and Eric Simpson, of Colbea
Enterprises,L.L.C.;Al Micale,Ayoub Engineering:Randy Hart,VHB Traffic Engineering;and Daniel
Ojala and Danny Gonsalves,Down Cape Engineering.
Also in attendance and speaking were Mark Grylls,Yarmouth Building Commissioner;Kathy Williams,
Yarmouth Town Planner,and Steven Tupper and Colleen Medeiros,transportation staff from the Cape
Cod Commission.
Environmental peer review was conducted by Carriage House Engineering, and further reviewed by
Kleinfelder, the Yarmouth Outside Water Consultant. The Yarmouth Board of Health reviewed the
Proposal at a public meeting and submitted memoranda, dated April 3, 2019, and May 7, 2019.
Correspondence was received from and testimony was provided by staff from the Cape Cod Commission
concerning transportation.
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The Yarmouth Site Plan Review Team submitted a Site Plan Review Comment Sheet dated February 5,
2019. The Yarmouth Design Review Committee submitted a Design Review Comment Sheet dated
January 29,2019.
Robert Chamberlain spoke in favor of the Petition. Station Avenue, LLC, the abutter to the north,
submitted a letter in support of the Petition.
Dr. Warren Woods, the abutter to the west, and James Veara, on behalf of Davenport Realty Trust, a
nearby property owner across Workshop Road, spoke and submitted letters and emails in opposition to
the Petition.
The Board opened the hearing on the Proposal on May 9, 2019, which was continued for testimony on
June 27,2019,and August 8,2019. The hearing was closed on August 8. 2019.
The Applicant submitted the following materials in connection with the Petition:
1. Application with attached Narrative Memorandum, prepared by Law Office of Singer & Singer,
LLC;
2. Summary of Reasoning, Supplemental Memorandum dated June 24, 2019, and Supplemental
Memorandum dated August I, 2019, including four court Massachusetts Court Cases dealing
with variance relief,all prepared by Law Office of Singer& Singer,LLC;
3. Revised Relief Request List, dated June 21, 2019, and further revised dated August 1,2019;
4. Environmental Analysis Memorandum, prepared by Ayoub Engineering, dated December 14,
2018, with Specification Sheets;
5. Environmental Peer Review Report, prepared by CarriageHousing Consulting, dated March 8,
2019;
6. Review of the Environmental Peer Review Report, prepared by Kleinfelder, the Town's Outside
Water Consultant,dated March 20,2019;
7. Draft Emergency Spill Response Plan;
8. Draft Deed Restrictions for the existing Shell and Sunoco Station properties,respectively;
9. Stormwater Report, prepared by Ayoub Engineering, dated January 30, 2019, and revised March
13,2019,and April 4,2019;
10. Traffic impact and Access Study, prepared by VHB, dated March 11, 2019, and revised June 18,
2019,and supplemented with an Access Alternatives Memorandum,dated July 18, 2019;
I I. Site, Landscaping, and Architectural Plan Set, prepared by Ayoub Engineering,dated January 18,
2019, and March 13,2019,respectively, and last revised July 31, 2019. including Sheets C-1-C-3,
L-1, Er-1, SG-2,and AI.0-A2.2 (total of 14 sheets with cover sheet,septic,and survey);
12. Truck Turning Templates, Sheets ID-I, 1 A, 113. and TP-2, prepared by Ayoub Engineering, and
last revised dated July 31,2019;
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13. Lighting Plan, prepared by LSI,dated December 20, 2018,and revised August 8,2019;
14. Sketch Plan for upgrades to existing Shell property; and
15. Aerial Photographs of property and the Station Avenue corridor.
The Applicant submitted the following testimony and the Board of Appeals found the following in
connection with the proposal:
As a companion case with Appeal #4802, of which the materials submitted, testimony provided, and the
Findings and Conditions of the Decision thereof are all incorporated herein by reference, the Proposal, in
addition to being in part permitted by right and by special permit, also requires use variance relief.
Specifically, the portion of the proposal that will see the relocation and consolidation of fuel service
operations from 433 Station Avenue and 446 Station Avenue northward to 473/479 Station Avenue
requires a variance for the relocated and continued H6(Motor Vehicle Fuel and Service) use in APD(no
service proposed). Dimensional relief is also required for the relocated site that, though nonconforming,
will be less nonconforming in terms of parking, setbacks, and site design than the existing sites at 433
Station Avenue and 446 Station Avenue that are being abandoned and restricted against future fuel
service operations. This relief includes the canopy front setback; parking in front of the building;
centerline of driveways; in-lot trees and plant species; front buffer tree spacing; photometrics; and
signage,
The proposed building will be one-story in height and contain 3,600 sq. ft. of first-floor area and a
basement for storage. A drive-thru will be located on the rear of the building and conforming stacking for
the drive-thru has been provided. A full landscaping plan will be implemented. At the Board's request,
the canopy was redesigned to include a new mansard roof as an alternative to the design which was
initially proposed and approved by the Design Review Committee.
After extensive discussion, study, and peer review regarding access, circulation, and traffic along Station
Avenue, the site layout was redesigned in response to the Board's concerns about access and egress such
that the northerly curb cut has been relocated to the northern end of the property to improve access and
egress and separation from the canopy, and this curb cut has been restricted to right-in and right-out only
with raised curbing along the exit portion thereof to channelize vehicles exiting the Property, The portion
of the island facing the entrance will be scored concrete to allow truck access. The above changes
resulted in additional improvements to on-site parking and circulation as well. Further discussion of the
traffic question is contained in the Special Permit discussion below.
All of the properties are located not only in the B1 Commercial Zoning District, but also in the Yarmouth
Aquifer Protection Overlay District("APD"). The Yarmouth Zoning By-Law ["Zoning By-Law"] finds
that "the groundwater water underlying this town is the sole source of its existing and future drinking
water supply [...and that] accidental spills and discharges of petroleum products and other toxic and
hazardous materials and sewage discharge have repeatedly threatened the quality of [...] groundwater
supplies and related water resources throughout towns in Massachusetts, posing potential public health
and safety hazards and threatening economic losses to the affected communities." As such, the Zoning
By-Law states that the objective of the APD is "...to protect the public drinking water supply in
Yarmouth from the effects of high density land development and from potentially hazardous materials
associated with specific land uses." In situations where a use in the APD requires a Special Permit, the
Board is required to "...give consideration to the simplicity, eligibility and feasibility of the control
measures proposed and the degree of threat to water quality which would result if the control measures
fail." Under Section 102.2.2 of the Zoning By-Law the Board is authorized to grant variances from the
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As an integral component of the proposal, the.Applicant is proposing to close, decommission, and deed
restrict two old, outdated, active fuel service station properties (Shell Service Station at 446 Station
Avenue and Sunoco Service Station property at 433 Station Avenue) located in the APD within one-
quarter mile of the new site also on Station Avenue. The Applicant proposes to consolidate, relocate,and
replace these old fuel service station properties with the new state-of-art fuel service station (Shell Service
Station) with a reduction in the threat of environmental impact to the aquifer by significantly decreasing
the number of gallons of fuel stored in the APD by 16,000 gallons or more than 28% over existing
conditions (from 56,000 gallons down to 40,000 gallons), decreasing the number of underground fuel
storage and other tanks from ten (10) to (2) such tanks, and installing two (2) state-of-the-art double-
walled tanks to replace the numerous,old underground tanks to be removed.
In addition, the Applicant, for itself as owner of and in connection with the Shell Station property and
also by written agreement with and on behalf of the owner of the Sunoco Station property, proposed as a
condition of approval that the remaining pre-existing nonconforming hazardous materials uses at these
two sites will be eliminated on a proposed, respective schedule after the relocated site opens for business.
Further, at the request of the Board, the Applicant proposed that in conjunction with removing the pumps
and underground tanks at the existing Shell location, the Applicant will improve the aesthetics of this
property as shown on the submitted site sketch plan as an interim step towards ultimate future
redevelopment. This work includes substantially extending and expanding the front buffer and planting
additional trees and vegetation.
In making a determination that the significant environmental benefits and reduction of environmental risk
satisfies the purposes and intents of the APD By-Law, the Board also relied on the materials submitted by
the Applicant, independent peer review as well as review by the Yarmouth Board of Health and Outside
Water Consultant. The Applicant has been working closely with officials from several Town of
Yarmouth Departments on the proposed development, including meetings with the Building
Commissioner as well as the Health Director and Hazardous Waste Inspector, among others. Design
Review and Site Plan Review have been completed. Peer review as requested by the Health, DPW, and
Water Departments was completed and reviewed by the Town's independent water consultant, Approval
of the lot division by the Planning Board and issuance of a fuel storage permit from the Board of
Selectmen will subsequently be required as well.
The Environmental Analysis Memorandum and supporting documentation accompanying the application
detail how the proposal will significantly reduce environmental risk to water quality and thus enhance
environmental protection in Yarmouth's Aquifer Protection District. This will be accomplished by
permanently closing two older fuel service facilities with an average age of forty(40)years located within
one quarter mile of the Property and replacing them with one new state-of-the-art facility with fewer
underground tanks, less underground piping, modern leak detection with sensors and alarms, and a
decreased volume of underground fuel storage,all as follows:
1. There will be a significant net reduction of 16,000 gallons of fuel storage in the APD as the
existing seven (7) underground tanks, six (6) dispensers, and 56,000 gallons of underground fuel
storage at the two existing facilities are replaced with only two (2) underground tanks, six (6)
dispensers,and 40,000 gallons of storage;
2. Two, older fuel service facilities will be replaced with one, state-of-the-art site incorporating
significant improvements in design and containment protocols for underground fuel storage with
an automatic and continuous leak detection system in double-wall underground storage tanks and
double-wall piping complete with probes, sensors, and alarms. In addition, the properties
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containing the existing gas stations will be permanently deed restricted prohibiting future fuel
service use, and the pre-existing nonconforming hazardous materials uses on each property will
ultimately be abandoned;
3. Additionally, there will be an estimated reduction of forty-five (45) to fifty (50) linear feet of
underground piping when the piping at the two existing sites is removed and replaced with new
piping at the new site;and
4. A safer, double-wall tank system with leak detection and brine in the interstitial space will be
installed at the new site in place of the seven older underground fuel storage tanks (a mixture of
single and double-walled tanks that are approximately 30 to 40 years old without any modern
detection systems) located at 446 Station Avenue(Shell Station)and 433 Station Avenue(Sunoco
Station)—the latter to all be removed and not replaced; and
5. An older, underground heating oil tank at the Sunoco Station and older, underground heating and
waste oil tanks at the Shell Station will also he removed and replaced with above-ground tanks to
provide heating oil at the respective properties and to continue service use at the Sunoco Station
until such use is relinquished as set forth herein.
The peer review report dated March 8,2019, by CarriageHouse Consulting,Inc., concludes that:
`'...the proposed actions and activities proposed by Colbea in this project appear to yield a net
benefit to the Town in the form of potential increased revenue in the form of taxes and in the
redevelopment opportunity for existing non-confirming parcels, while concurrently reducing the
potential risk to Town receptors and resources(i.e.,the APD)."
The Town's outside water consultant, Kleinfelder, reviewed the Proposal and the peer reviewer's report.
In an email dated March 20, 20I9, Kirsten Ryan of Kleinfelder states that "I agree the risk to the aquifer
is less than current conditions in that the proposed project would store less fuel, slightly farther away and
with newer equipment technology." She recommended four conditions be placed on the proposal as set
forth in her email. The Applicant has no objection to these conditions, and the same have been
incorporated below.
The Yarmouth Board of Health Memorandum, dated May 7, 2019, found all of the above plus additional
technical requirements to be met by the Applicant as well as reiterated the four conditions specified by
Kleinfelder and set forth that the Applicant "...presented their proposal to the [Board of Health] at the
regular board meeting on April 22, 2019. The[Board of Health] approved recommending the proposal of
Colbea Enterprises to the [Board of Appeals] by a unanimous vote with five members present and voting.
This recommendation is based on the ability of the business to comply with aforementioned regulations
and based on the following conditions listed below. These conditions are above and beyond the strict
scope of the aforementioned regulations and are intended to provide additional protection of the APD."
The proposal in the APD also requires the creation of a Nitrogen Aggregation Plan with the subsequent
approval of the Board of Health. In a Nitrogen Aggregation Plan, the land to be developed is designated
the Facility Land and off-site land to be permanently protected as undeveloped open space is designated
the Credit Land. The more sensitive Credit Land is preserved in order to allow the more appropriately-
zoned Facility Land to be developed. The Credit Land for the Proposal will be approximately 50,000 sq.
ft. of area. This land will be permanently protected as undeveloped open space. The Applicant has filed
applications in accordance with the Yarmouth Disposition of Town Owned Real Property Policy to seek
to purchase at public auction foreclosed land owned by the Town of Yarmouth to be designated as the
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Credit Land in connection with the development of the new site. This process is underway and its
successful completion is a condition of the approval hereof.
Special Permit. For those aspects of the proposal that require a special permit, the Applicant has
requested such relief in accordance with Sections 103.2 and 202.5 of the Yarmouth Zoning By-Law
["Zoning By-Law"]. The Board of Appeals is authorized to grant such special permit upon a finding that
the proposed development will not create any undue nuisance, hazard or congestion and that there will be
no substantial harm to the established or future character of the neighborhood or Town. Additional
requirements for the granting of a Special Permit in the APD are set forth in Sections 406.5.3 and 406.5.5
of the Zoning By-Law.
The Applicant submitted that the proposal, including the decommissioning and deed-restricting of the two
old nearby gas stations, will comply with all of the Special Permit criteria, will not create any undue
nuisance, hazard or congestion, will result no substantial harm to the public drinking water supply, and
will thus result in a substantial benefit and improvement to the neighborhood, the Town, and the
environment, and further that the control measures proposed have given due consideration to the
simplicity, eligibility and feasibility of implementation and maintenance and to protective measures to
reduce the potential threat to water quality should any of these measures unexpectedly fail, all of the
above because:
1. The existing old Shell and Sunoco gas stations to be decommissioned and deed restricted are
outdated with older underground storage tanks and less monitoring and protections than modern
fuel service operations employ. Eliminating these two gas stations and permanently deed
restricting the respective parcels from future fuel service use provides a significant boost to
environmental protection and reduction in risk to the aquifer;
2. The new fuel service station will not only be a modern, state-of-the-art facility, but it will also
store 16,000 fewer gallons of fuel than the two existing gas stations combined (56,000 gallons
existing; 40,000 gallons proposed);
3. The Proposal has been designed and is intended to complement the B 1 Commercial District along
Station Avenue. Both the Yarmouth Design Review Committee and the Site Plan Review
Committee have reviewed the Proposal. The Design Review Committee voted 3-0 in favor
finding that the proposed design of the building,canopy, and development are appropriate for the
site and use and satisfy the reviewed design guidelines.
4. The Traffic Impact and Access Study of the Proposal, as updated and supplemented, evaluated
existing traffic operations and safety, assessed future conditions along Station Avenue both with
and without the proposal, estimated projected traffic volumes for the proposal and its potential
impact on future traffic operations in the area, and analyzed various curb cut access alternatives.
The traffic engineer concluded that the available stopping and intersection sight distance exceeds
minimum requirements and that the proposal is expected to have only minor impacts on local
traffic operations. It is acknowledged that traffic along this stretch of Station Avenue is
congested at times during the summer season such that most, if not all, driveways along this
stretch of road in the B I Commercial Zoning District operate at Level of Service F at times
during the day. As demonstrated in the materials submitted and with the site access alterations
and restrictions presented to the Board in response to comments and concerns raised at the Board
meetings, while some additional traffic will be added to the flow on Station Avenue(the relocated
site being the last undeveloped parcel of land in the commercial district in this area), the proposal
will not result in a significant increase in traffic. There is a center turn lane in front of the
property that was constructed by the Town in the past to alleviate turning movements along the
road. In discussing potential future upgrades by the Town along this stretch of Station Avenue,
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the Town Planner responded to a Board question noting that there are five (5) feet of available
space on either side of the paved travel way that remain unused in the road layout. The Applicant
offered that it is willing to agree to grant the Town in the future a five (5) foot wide easement
along the Property frontage in order to allow for a sidewalk should the Town so seek at that time.
5. An extensive landscaping package is proposed, including additional vegetative screening of the
fenced dumpster from the adjacent property to the north;
6. Site lighting will be down lit and appropriate for the Station Avenue commercial zone;
7. Building and lot coverage will each be conforming;
8. All stormwater runoff will be contained and infiltrated on site, and there will be no negative
impact to drainage, septic flow or stormwater;
9. Presently, the 446 Station Avenue Shell Station property is nearly fully paved with impervious
surfaces including parking areas and concrete drive mats associated with the retail gasoline
station. As part of this proposed development, the Applicant intends to remove areas of
pavement and impervious surfaces along Station Avenue and create an additional landscaped
island in the center of the property directly in front of the existing building. As has been
documented in scientific literature, increasing stormwater infiltration directly to an aquifer is
preferable to overall aquifer health versus re-directing stormwater to surface streets where it
discharges to remote locations. The Applicant's redevelopment proposal includes an increase of
approximately 800 square feet of non-impervious ground cover at the existing fully paved Shell
station. Increasing the amount of stormwater infiltration directly to an aquifer has the benefits of
increasing aquifer capacity, increasing dissolved oxygen content in the aquifer and increasing the
overall oxidation-reduction potential in the aquifer which leads to better overall aquifer health;
10. The Applicant reached out to property abutters and those across the street to discuss the proposal
and has pledged to continue working with them in order to be a good neighbor to the
neighborhood and community; and
11. The development of the Property in conjunction with the environmental improvements to the two
off-site locations now (and the possibility of future conforming redevelopment of each as
ultimately permitted by the Town of Yarmouth)will improve and enhance the economic viability
of the entire commercial zone and be an asset to the character of the neighborhood and Town.
Variance. For those aspects of the Proposal that require a Variance,the Applicant requested such relief as
discussed below in accordance with Section 102.2.2 of the Zoning By-Law and M.G.L. Chapter 40A,
Section 10. The Board is authorized to grant Variances, including for use, where the Board finds that a
literal enforcement of the Zoning By-Law would involve substantial financial or practical hardship to the
Petitioner, that the hardship is owing to circumstances relating to the soil conditions, shape or topography
of such land or structures and especially affecting such land or structures, but not affecting generally the
zoning district, and desirable relief may be granted without substantial detriment to the public good and
without nullifying or substantially derogating from the intent or purpose of the Zoning By-Law.
The use Variance that is required as noted above is to include motor vehicle fuel use (no service) at the
Property in the APD that would otherwise be allowed by special permit in the B 1 Zoning District.
Dimensionally, while the new building itself will comply with all setbacks, the canopy for the relocated
fuel service use will not and there will also be parking in front of the building. The Board has reviewed
similar requests in the past that arise along this section of Station Avenue in which the minimum front
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setback is seventy-five feet,while at the same time parking cannot be in front of a building. The other
dimensional variance relief that is being requested to meet the special circumstances of the site include
curb cut width,driveway centerline separation,in-lot trees and plant species,front buffer tree spacing,
photometrics,and signage. Much of the signage relief was subsequently withdrawn without prejudice as
discussed below.
During the public hearing, the Board requested additional information on the grant of variances and
reviewed the cases submitted and discussed the same with the Applicant. The Applicant provided copies
of the following MA Court Cases and analysis in connection with the Proposal: Marashlian v.Zoning
Board of Appeals of Newburyport,660 N.E2nd 369,374 {Mass.1996),Cavanaugh v.DiFlumera,401
N.E.2d 867,871 {Ma App.Ct.,1980),Furlong v.Zoning Board of Appeals of Salem,64 N.E.3'd,268,
269{Ma App.Ct.,2016),and Boyajian v.Board of Appeals of Wellesley,Page 1237,1238{Ma.App.Ct.
1978). The Board found credible the Applicant's testimony that these cases reflect positively on the
Proposal in terms of(I)economic unfeasibility of use and re-use of the land absent the requested relief;
(2)the need for a determination of substantial derogation and not just any derogation from the provisions
of the Zoning By-Law in order to deny the requested relief;(3)the reduction in risk of existing harm and
prevention of greater risk of future harm and(4)acknowledgment that some increase in traffic will not
result in a significant increase in traffic to an already busy thoroughfare.
The Board's review is not based on application of the criteria discretely to each aspect of the proposal,but
rather collectively to all of the land and structures involved in the proposal. The proposal represents one,
overall,holistic redevelopment in order to achieve the benefits required by Section 406.5.3. The location
in the APD requires an entirely separate set of criteria to be met than the same proposed development
would require if only in the B I Commercial Zone(in which the use is permitted by special permit).
Protection of the special soils and aquifer status of the land are key. Section 102.2.2 of the Zoning By-
Law authorizes dimensional and use variances"with respect to particular land or structures"and requires
a hardship finding"owing to circumstances relating to the soil conditions,shape or topography of such
land or structures and especially affecting such land or structures,but not affecting generally the zoning
district in which it is located."
Literal enforcement of the provisions of the Town of Yarmouth's Zoning By-Laws would represent a
substantial hardship to the Petitioner and Owners. The hardships faced in attempting to achieve all of the
benefits are directly related to the soil conditions(water-sensitive natural formations),topography,shape
of the land and historical development of the structures and sites involved(including those of the other
gas station properties). The Property and the older gas stations to be closed/replaced are all located in the
largest Bl zoned area in the Town of Yarmouth and one of the few areas of BI zoned commercial land
that is also located in the APD. Moreover,the Property is the only undeveloped parcel within this
BI/APD zone. As a result of its location in both the BI zone and the APD,the Property is unique.
Specifically,the soil within the APD is unique,which mandates that a separate set of APD criteria be met.
In order to meet the standard set forth in Section 406.5.3,the Applicant has proposed to shut down and
deed restrict two old,non-confirming fuel station in order to protect the public drinking water. In order to
replace the two old fuel stations with a state of the art,safe and modern fuel station on the Property,the
requested variances are required.
The Applicant submitted,and the Board so found,that the land and structures involved are impacted by
the unique soil conditions of the aquifer district in that the two existing gas stations are pre-existing
nonconforming uses and the relocated site is the last vacant site in this B1 and APD area and that the pre-
existing nonconforming structures and site developments, including underground storage tanks and
multiple full in and out curb cuts on multiple roads,are unique improvements and circumstances in the
APD such that it is economically and practically infeasible to achieve the improvement to the
environment and the reduction in the threat of harm to the ground water abb�sernt the va emi 81'•
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construct the proposal as designed on the relocated site in the APD and this creates a substantial financial
and practical hardship justifying the requested variance relief. It is important to note that two old, active
and non-conforming fuel stations within the same BI zone and APD will be consolidated into this new
proposed location such that it is economically and practically infeasible to build this fuel station absent
the variance relief. Moreover, this proposed project has been designed to ensure optimal safety for the
fuel station. As a result, absent the requested variance relief, the fuel station would not represent the
optimal safety standards for a fuel station. Moreover, the Applicant has redesigned the proposal with the
input of Town officials and agencies in order to optimize the safety of the Property.
The Board found further that based on the established hardship and all of the materials submitted to the
Board and for all of the reasons set forth in the Special Permit discussion above, the requested variance
relief as set forth below can be granted without substantial detriment to the public good and without
nullifying or substantially derogating from the intent or purpose of the Zoning By-Law, including without
limitation, the overarching reduction in threat of harm to the aquifer and enhanced environmental
protection resulting from the Proposal. In addition, the Yarmouth Design Review Committee voted to
find that the Proposal is appropriate for the site and the commercial zone. The proposed use of the
commercially-zoned, replacement property is allowed(both by right and special permit) in the underlying
B1 Commercial Zoning District. The two existing fuel station properties that are grandfathered and
protected pre-existing nonconforming uses will each be transitioned to conforming uses and will no
longer contain a now-prohibited use. The net result of the proposal is one less fuel service station than at
present, one less site with a pre-existing nonconforming hazardous materials use, and one relocated site
that will be less nonconforming to zoning and more protective of the environment than existing
nonconforming conditions.
The two pre-existing nonconforming gas station uses in the APD are entitled to remain indefinitely and to
remain in a more nonconforming status than the proposal before the Board. Even if these two sites can be
upgraded in the future, they will each never be able to be as compliant and conforming as the relocated
site due to their shapes and historical developments. The proposal will provide numerous benefits to the
Town and the public, including amelioration of the continued risk to the aquifer that these two sites
represent by closing these two businesses, eliminating the pre-existing nonconforming hazardous
materials uses from these two properties,and restricting these two properties from such uses in the future,
in exchange for the relocation a brief distance north along the same street in the same zoning and overlay
districts with a new, smaller-capacity, state-of-the-art facility, a facility which is needed in this
commercial zone and is authorized by the underlying zoning in the area.
The Applicant submitted, and the Board so found, that the land and structures involved are impacted by
the unique shape and topography of the Property such that the canopy, parking(in front of the building),
centerline of driveways, in-lot trees and plant species, front buffer tree spacing, photometrics and signage
can best be situated only as provided on the proposed plans to ensure the fuel station is optimized for
safety and complies with the redesign of the site as requested by the Town. It would represent a
substantial hardship and be economically and practically infeasible to require literal enforcement of the
Zoning By-Laws. In granting the requested variances,the public good will be served by providing a safe,
state of the art, modern fuel station. Moreover, the requested variances would not nullify or substantially
derogate from the intent or purpose of the Zoning By-Laws because the proposal will provide a safe and
modernized fuel station for the public. As a result, it is appropriate to grant the requested variances.
Specifically, most of the exterior lighting conforms to the Zoning By-Law. The Applicant has attempted
to be respectful to the neighborhood and Town and provide safe lighting, while complying as much as
feasible with applicable regulations. Relief is requested in a few areas along the perimeter and at the curb
cuts. Notwithstanding this request and by way of comparison, the proposed lighting will be less than the
existing similar lighting at the nearby Mobil Station on Station Avenue as well as less than at the Cape
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Farms Market property on Route 28 in West Yarmouth. Based on recommendations from the lighting
manufacturers, the proposed lighting is the lowest level that will be safe for a fuel station. The proposed
lighting will result in safe conditions for the patrons as well as the employees who need to monitor
activity at the site and operation of the fuel pumps. Given the commercial nature of the Station Avenue
location (there are no nearby residences)and the need to provide safe and efficient lighting, the proposed
levels will achieve this result with no negative impacts.
The Applicant requested sign relief for directional, freestanding, and attached signs. The latter two were
ultimately withdrawn without prejudice. As to the former, the Board felt that the proposed directional
signage is warranted to provide safe and efficient access and egress as well as on-site circulation. The
Board also requested an additional Do Not Enter sign at the exit of the right-in, right-out northerly curb
cut.
The Board took the following votes on the Proposal:
1. Special Permit for H6 and H 10 use of the Property. Sean Igoe made a motion, seconded by
Richard Neitz, and voted five (5) in favor and zero (0) opposed to grant the requested Special
Permit for use based on the above Findings and submitted plans and further that the proposed
development will not create any undue nuisance, hazard or congestion and that there will be no
substantial harm to the established or future character of the neighborhood or Town and that the
additional requirements set forth in Sections 406.5.3 and 406.5.5 of the Zoning By-Law,
including without limitation that the control measures proposed have given due consideration to
the simplicity, eligibility and feasibility of implementation and maintenance and to protective
measures to reduce the potential threat to water quality should any of these measures
unexpectedly fail, have been met and upon the following conditions:
A. All nonconforming uses at 446 Station Avenue shall cease within fourteen(14)days after
the new site opens for business and the underground storage tanks shall be removed from
446 Station Avenue and the site upgrades as per the reviewed Sketch Plan shall be
implemented no later than nine(9) months after the new site opens for business;
B. The nonconforming fuel service use at 433 Station Avenue shall cease within fourteen
(14)days after the new site opens for business and the underground storage tanks shall be
removed from 433 Station no later than nine (9) months after the new site opens for
business and all remaining nonconforming use of 433 Station Avenue shall cease no later
than forty-eight(48)months from the date when this Decision is final;
•
C. Deed restrictions shall be recorded on the chains of title for both 433 Station Avenue and
446 Station Avenue restricting each property from future nonconforming uses within the
APD and copies of such Deed Restrictions as recorded shall be returned to the Board of
Appeals Such deed restrictions shall incorporate the time lines for discontinuance of
such uses as set forth in Paragraphs A and B above;
D. The Petitioner agrees to grant to the Town of Yarmouth in the future a five(5) foot wide
easement along the Property frontage in order to allow for a sidewalk to be installed
should the Town so seek at that time;and
E. The Petitioner shall complete the nitrogen aggregation process to deed restrict off-site
open space land for purposes of credit to the Property prior to the new site opening for
business.
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F. The Petitioner shall comply with all requirements of the Board of Health.
2. Variance for H6 use of the Property. Sean Igoe made a motion, seconded by Richard Neitz, and
voted five (5) in favor and zero (0)opposed to grant the requested Variance for use (fuel service
only without vehicle service nor(vehicle washing)based on the above Findings and the submitted
plans and further that the hardship is based on the soil conditions and topography of the land and
the stnictures as discussed above and that the intent of the APD By-Law will be met to protect the
groundwater and that there will be no harm to the public good and upon the same conditions set
forth in the Special Permit vote above plus the following additional conditions:
A. No hazardous products purchased inside the building at the Property shall be used or
added on or to a vehicle when the vehicle is located on the Property;
B. The only products allowed to be added into a vehicle at the Property shall be gas and
diesel fuel dispensed from the on-site dispensers:
C. The Board of Health will verify that the design is in accordance with all Massachusetts
Stonnwater Standards;
D. The developer shall retain a third-party engineer/LSP to provide certification that the
project was constructed and installed as designed and passed all start up and
commissioning tests to verify proper operation;
E. The facility is required to submit a third-party compliance inspection to the MassDEP
every three years, and the facility shall provide a copy of this report concurrently to the
Board of Health and Water Department;and
F. The proposed new underground storage tanks shall have a 30-year service life.
3. Variance for canopy front setback. Sean Igoe made a motion, seconded by Richard Neitz, and
voted four (4) in favor and one (1) (Martin) opposed to grant the requested Variance for the
canopy front setback with the mansard design and colors as shown on the revised architectural
plans based on the above Findings and further in accordance with the prior votes of the Board
herein with no additional conditions;
4. Variance for parking in front of the building. Sean Igoe made a motion, seconded by Richard
Neitz, and voted five (5) in favor and zero (0) opposed to grant the requested Variance for
parking in front of the building based on the above Findings and submitted plans and further in
accordance with the prior votes of the Board herein with no additional conditions;
5. Variance for curb cut radius. Sean Igoe made a motion,seconded by Dick Martin, and voted five
(5) in favor and zero(0) opposed to grant the requested Variance for the curb cut radius based on
the above Findings and submitted plans and further in accordance with the prior votes of the
Board herein with no additional conditions;
6. Variance for centerlines of driveways. Sean Igoe made a motion, seconded by Richard Neitz,and
voted five(5) in favor and zero (0)opposed to grant the requested Variance for the centerlines of
driveways based on the above Findings and submitted plans and further in accordance with the
prior votes of the Board herein with no additional conditions;
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7. Variance for plant species. Sean Igoe made a motion, seconded by Dick Martin, and voted five
(5) in favor and zero (0) opposed to grant the requested Variance for the plant species as shown
on the revised landscape plan based upon the above Findings and further in accordance with the
prior votes of the Board herein with the following additional condition:
A. Buffer trees shall he maintained or planted as required along the edges of the bio-
retention basins where the same abut the Property lines;
8. Variance for front buffer tree spacing and in-lot trees. Sean Igoe made a motion, seconded by
Dick Martin,and voted five (5) in favor and zero(0)opposed to grant the requested Variance for
the front buffer tree spacing and the number of in-lot trees as shown on the revised landscape
plan, including reference to the utility poles and their respective guy wires, based upon the above
Findings and further in accordance with the prior votes of the Board herein with the following
additional condition:
A. A new island with one in-lot tree shall be planted in the middle of the row of parking
behind the new building;
9. Variance for perimeter and driveway photometrics. Sean Igoe made a motion, seconded by
Richard Neitz, and voted five (5) in favor and zero (0) opposed to grant the requested Variance
for the photometrics as shown on the revised lighting plan based on the above Findings and
further in accordance with the prior votes of the Board herein with no additional conditions:
10. Variance for directional signs. Sean Igoe made a motion, seconded by Dick Martin, and voted
five (5) in favor and zero (0) opposed to grant the requested Variance for directional signage as
shown on the revised plans based upon the above Findings and further in accordance with the
prior votes of the Board herein with the following additional condition:
A. An additional Do Not Enter sign shall be installed at the exit driveway of the northerly
right-in, right-out curb cut; and
1 I. Variance for freestanding monument sign and attached signs. After further discussion with the
Board, the Applicant requested and the Board voted five(5)in favor and zero(0)opposed, upon a
motion by Sean Igoe, seconded by Richard Neitz, to grant the Applicant's request to withdraw
without prejudice the request for additional sign variance relief as follows: Section 303.5.4.1 —
freestanding sign (face area square footage), and Section 303.5.5.2 (attached signs -- height and
number).
No permit shall issue until 20 days from the filing of this decision with the Town Clerk.
Appeals from this decision shall be made pursuant to MGL c40A section 17 and must be
filed within 20 days after filing of this notice/decision with the Town 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) Unless otherwise provided
herein, a Variance shall lapse if the rights authorized herein are not exercised within 12
months. (See MGL c40A§10). This Decision must be filed with the Barnstable County
Registry of Deeds,Route 6A, Barnstable.
Steven DeYoun Chap n
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C
..- --- . . TOWN OF YARMOUTH
OFFICE OF THE TOWN CLERIC. ' �' 1146 ROUTE 28, SOUTH YARMOUTH, MA 02664
- __ " `' TELEPHONE 508-398-2231 Ext. 1212 FAX 508-760-4842
�,It:t'_ f} Mary A. Maslowski, CMC, Town Clerk
1 hereby certify that a copy of the decision of the Board of Appeals of the Town of Yarmouth
related to Petition #4801 of Colbea Enterprises, L.L.C. for a Special Permit and Variances was
received and filed in the Town Clerk's Office on September 5, 2019, that a notice of appeal to the
Barnstable County Superior Court together with a copy of the complaint was received and filed
on September 24, 2019 and that such appeal was denied on June 6, 2022.
hiv j_67Notedfrfrtitai .
Mary A. laslowski, CMC Town Clerk
Date: JAN 5 2023
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JOHN F. MEADE ISTER
BA£ $.BEE SO�REGISTRY OF DEEDS
RECEIVED & RECORDED ELECTRONICALLY
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`t_Yqk COMMONWEALTH OF MASSACHUSETTS
TOWN OF YARMOUTH
BOARD OF APPEALS
Appeal 44801 Date: September 26,2019
Certificate of Granting of a Special Permit and Variance
(General Laws Chapter 40A,section 11)
The Board of Appeals of the Town of Yarmouth Massachusetts hereby certifies that a
Special Permit and Variance has been granted to:
PETITIONER: Colbea Enterprises,LLC,2050 Plainfield Pike,Cranston,RI 02921.
OWNERS: Jeanne L.Luby,65 Chase St.West Harwich,MA 02671,and Karen J.Luby-Drew,
91 North Main St.,South Yarmouth,MA 02664—473 and 479 Station Avenue,South
Yarmouth,MA,and Station Avenue,LLC,487 Station Avenue,South Yarmouth,MA 02664—
487(portion)Station Avenue,So.Yarmouth,MA.
Affecting the rights of the owner with respect to land or buildings at:Map&Parcels:97,1,2 and
a portion of 3;Zoning District:B1&APD&ROAD Deed References:Book 28068,Page 126,Lot 5
on Plan in Book 319,Page 52;Book 28068,Page 128,Lot 4 on Plan in Book 319,Page 52 Book
18308,Page 272,Lot 2(portion)on Plan in Book 442,Page 48and 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 Variance,and that 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
Variance 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 record or is recorded and noted on the owners certificate of title.
The fee for such recording or registering shall be paid by the owner or applicant.
teven DeYou.Chairman
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