HomeMy WebLinkAbout60 Broadway Decision 2227 10.25.1985TOWN OF YARMOUTH
BOARD OF APPEALS
Filed with Town Clerk
REUIVE
Hearing Date: 9/12/
Petitioner: Americo Poliseno Petition No: 2227
60 Broadway West Yarmouth, MA 0267P OCT 25 P2:39
TOWN 0r YARHO k.
DECITOW CL£RK & TREASURER
The petitioner has appealed for relief, in the form of a special permit,
in accordance with Yarmouth Zoning Bylaw 104.3.2, and Massachusetts General
Laws, Chapter 40A, Section 6, as amended,
To Allow: the change, alteration and extension of structure in accordance
with petitioners plans and of use of phase two of Englewood Beach Condominiur
from twenty (20) motel units, with a kitchen restaurant and lounge, to ten
(10) condominium dwelling units anu one (1) manager apartment; said structui
are located as shown on Yarmouth Assessor's Map#12, Lot B176.
Members of Board of Appeals Present: Donald Henderson, David Oman, Judy
Sullivan, Leslie Campbell, Fritz Lindquist.
It appearing that notice of said 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 8/29/85 and 9/5/85, the hearing
was opened and held on the date first above written.
Thelfollowing appeared in favor of the petition: Mr. Cowgill; Atty E.J.
Swe6ney; Mr. Lalley; R. Crowell; M. Corey; A. Luke.
The following appeared in opposition: Planning Board.
REASONS FOR THE DECISION:
Facts:
The petitioner is the declarant of the Englewood Beach Condominiums pursuant
to a Master Deed dated October 17, 1980 and recorded October 31, 1980 at the
Barnstable County Registry of Deeds in Book 3183 Page 193, together with the
bylaws of the Englewood Beach Condominiums Association recorded in Book 3183
Page 216. Condominium site plans and floor plans were recorded in plan book
347 pages 36, 37, and 38. All of said documents and plans were submitted to
the Board.
The above referenced condominium documents and plans were recorded prior to
the enactment of the Yarmouth Condominium Conversion bylaw, Section 104.4 in
1982.
In said condominium documents the declarant declared Phase I of said condo-
minium and reserved the right to later declare Phase II of said condominium.
The declarant now intends to declare said Phase Il in accordance with the
first Amendment to Master Deed of Englewood Beach Condominiums, submitted
to the Board, and in accordance with the petitioners plans as filed with
the Board.
Inasmuch as Englewood Beach Condominium is a condominium predating the
Yarmouth Condominium Conversion Zoning bylaw section 104.4, no relief is
required thereunder.
2
Criteria for special permit:
A. Zoning bylaw section 104.3.2 provides in pertinent part that pre-
existing non conforming structures and uses of the type in question may
be extended, altered or changed in use on special permit from the Board
of Appeals if the Board of Appeals finds that such extension, alteration
or change will not be substantially more detrimental to the neighborhood
than the existing nonconforming use.
B. Zoning bylaw §103.3.3: 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.
C. Chapter 40A: Special permits may be issued only for uses which are in
harmony with the general purpose and intent of the ordinance or bylaw,and
shall be subject to general or specific provisions set forth therein; and
such permits may also impose conditions, safeguards and limitations on
time or use.
D. The above criteria are satisfied in that:
1. The change in use is from a non allowed motel use to a residential
use. This is a residential area.
2. Such a change in use would not be detrimental to the neighborhood,
but would enhance the neighborhood. The Board notes the large number of
neWrby residents who appeared in person or by letter or by petition and
expressed favorable sentiments.
b. The abandonment of twenty seasonal motel units, restaurant with
kitchen and cocktail lounge and their replacement with ten dwelling units
and one manager apartment will lessen congestion in the neighborhood,
especially during the tourist season.
4. No nuisance or hazard will be created in that intensity of use is
being lessened.
5. The established and future character of the neighborhood and the town
will be enhanced in that:
a. The structure will be physically upgraded and modernized.
b. Parking and traffic flow will be redesigned and improved.
c. The septic system will be substantially upgraded.
d. Water use will be reduced.
6. Section 100 of the Yarmouth Zoning Bylaw states its purpose as follows
" The purpose of this bylaw is to promote the health, safety,
convenience and welfare of the inhabitants by dividing the
town into districts and regulating the use and construction
of buildings and premises therein."
The proposed structural and site upgrades do promote the health and
safety of the inhabitants. Change from intense seasonal to moderate use
over a longer season promotes the welfare and convenience of the neigh-
borhood residents. Change of use from motel to residences brings the
site more into harmony with the existing neighborhood. Again we note
the favorable response from the neighborhood.
- 3 -
Conditions upon Grant of Relief
The petitioner agrees that use and occupancy of the requested ten (10)
dwelling units and manager apartment shall not occur until such time
that:
1. Final site plan review approval of submitted plans, or nonsubstantia]
modifications thereof, has been obtained.
2. All required Hoard of Health Approvals have been obtained.
3. Occupancy permits have been issued by the Building Inspector
with copies fowarded to the Board of Appeals.
4. No unit is to have more than two bedrooms.
5. With the exception of the managers quarters which may be occupied
year round, all other units shall be closed and not occupied for the
months begining-January 10, February, and March. This re:striction steal:
be included in al -`unit deeds.
The Petitioner is hereby granted a Special Permit as requested, for the
reasons cited herein, but subject to the conditions cited herein.
Members voting Donald Henderson, David Oman, Judy, Sullivan, Leslie Campbe]
Fritz Lindquist. All voted in favor of gran-ting the Petitioner's request.
Therefore, the Petitioner's request for special permit is granted as
above for all the above stated reasons.
No permit issued until 20 days from the date of filing the decision with
he Town Clerk.
4
Myer R. Singer
Clerk
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TOWN OF YARMOUTH
BOARD OF APPEALS
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OWNER: NAME: Americo Poliseno
ADDRESS: 60 Broadway I;'
West Yarmouth, MA. 02673
PETITIONER: NAME: Americo Poliseno
ADDRESS: 60 Broadway, West Yarmouth, MA. 02673
4_
'
NEAR G DATE: ^
BOARD OF APPEALS, YARMOUTH, MASS.
This petition when completed and signed must be filed with the Board of Select-
men, Yarmouth, Massachusetts, along with the fee of $38rM.
,Z , H
DATE: L/6 /rsl
T
PAID: $75.00
1. I, We, hereby appeal from decision of the Building Inspector and petition
your board for a public hearing on the action checked below:
1. Review refusal of Building Inspector to grant permit.
2. Decision of Selectmen.
2. 1, We, hereby request the action checked below:
1. Variance from requirements of Yarmouth Zoning By -Law.
2. Approval of the Board of Appeals.
X 3. A special permit from the Board of Appeals.
To allow: the change, alteration and extension of structure in ac-
cordance with petitioners plans submitted herewith and of use of phase two
Of Englewood Beach Condominiums from twenty (20) motel units, with kitchen,
restaurant and lounge, to ten (10) condominium dwelling units and one (1)
manager apartment; said structures are located as shown on Yarmouth Assessors
May 12, Lot B176.
3. Reason for the Board of Appeals action as checked below:
1. Contrary to Zoning by-laws as follows:
1. 202.5
2. 203
3.
2. Approval of Hoard of Appeals, or Special Permit requested under the
following section of Zoning By -Law:
1. 104.3.2
2.
Names and addresses of abutting property owners, and those persons
affected by this application. (At least three.) l
EDWARD J. SWEENE,'Y, ZR. , ESQ.
ARDITO, SWEENE.'Y, STUSSE, &ROBERTSON, F
5200 Building,Rt. 28, W. Yarmouth, MA.
TOWN OF YARMOUTH
PLANNING BOARD
SOUTH YARMOUTH MASSACHUSETTS 02664
M E M 0
TO: Board of Appeals
FROM: James A Robertson
Chairman, Planning Board
DATE: September 26, 1985
RE: Board of Appeals Case #2227
Englewood Beach Condominiums, Phase Il
This memorandum and its contents represents a unanimous vote of the
Planning Board on September 25, 1985.
If it is within your legal ability, the Planning Board requests a
meeting with the Board of Appeals to discuss the possible reopening and
reconsideration of your decision in the above referenced petition.
The Planning Board is in strong disagreement with your decision
regarding this petition.
The subject of litigation by the Planning Board with regard to your
decision has been forcefully discussed.
ck
cc: Robert Lawton
Members of the Board of Selectmen
TOWN OF YAMOUTH
PLANNING BOARD
SOUTH YARMOUTH MASSACHUSETTS 02664
TO: Board of Appeals
Frc,:u: Planning Board, James A. Robertson, Chairman
Date: Sept. 12, 1985
Re: Americo Poliseno - Appeal. #2227
The Petitioner asks for a Special Permit under By -Law Section 104.3.2
for a change in USE. A change in use from a nonconforming use to a
conforming use does not require a Special Permit, thus the Planning
Board assumes that the Petitioner is requesting a Special Permit
to r.hange from one nonconforming use to another.
The Petitioner has requested 10 DWELLING UNITS and one apartment,
which will be contained within ONE building. The By -Law, Section
500, Definitions, describes the requested building with the use
there -in, as a "Multi -Family Dwelling."
Within By -Law Section 202.5 - Use Regulation Schedule, the ONLY
section describing "Multi -Family Dwelling" is Section 202.5 A3.
By -Law Section 202.5 A3 MANDATES that By -Law Section 402 be addressed.
The Petitioner's printed notice request will not fit within the
definitions setforth in By -Law Section 402.1.1 through .5.
Thus, the Petitioner has requested a Special Permit for a use,
the Definition, Objectives, and Criteria of which he CAN NOT
satisfy.
Thus, we suggest that what the Petitioner needs is a Variance
from By -Law Section 402. But, he has not requested a variace.
APPLICANTo RICO POLISENO EH L
LOCATION: BROADWAY ASSESSORS' KAP N_ 17 „
DATE
WEST YARMOUTH PARCEL $- B-i %6
AUG. 13, L985 FIVE SETS OF PLANS SUBMITTED: YES^ x _NO
PERSrbRg—cs
NS PRESENT AT 1REVIEW REARINGI
TWki-r(
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CONDO CONVERgONw
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SIGNED: READ AND RECEIVED APPLICANT
BUILDING DEFT: C
BOARD OF HEALTH:
ENGINEERING DEPT:
FIRE DEPT:
WATER DEPT:
BOARD OF APPEALS
Minutes for appeal #2227
Americo Poliseno, owner and petitioner.
Date 9/12/85
Members of the Board of Appeals present: Donald Henderson, David Oman
Judith Sullivan, Les Campbell, Fritz Lindquist.
Mr. Edward Sweeney represented the Petitioner.
Mr. Poliseno is the owner and operator of the Engelwood Motel. We request
a special permit to change not only the structure but the use of the facility
The change of use would be from the 20 motel units with a kitchen and restau-
rant and a lounge to ten Condominium dwelling units, with 1 manager apartment
(See Memorandum in support of petition submitted by Mr. Sweeney)
Mr. Sweeney presented to the Board a petition from the neighbors and friends
of the Engelwood Motel. 253 signatures. All of these people believe that
this project will not only meet the criteria of a special permit but it will
be a substantial benefit to the neighborhood.
If allowed, Mr. Poliseno, would be removing 6 complete baths ard an the first
floor he would be removing a kitchen set-up, one men and one ladies room and
everything found therein. In the office there would be the removal of a
three piece bath. On the second floor there would be 11 complete baths and
showers and a slop sink and linen room removed.
We believe no nuisance or hazard would be created and that the intensity of
use is being lessen.
There is in the file a memorandum from the planning Board. The Board raises
the issue that we are trying to change from a non -conforming use to a conform
use and that this does not require a special permit, etc. and that a variauc
may be required.
I would like to re-emphasize that we are currently non -conforming use. Under
the appropriate section of the by-law we are attempting to change and alter
and amend that. We are not trying to change this from a non -conforming to
a conforming use but rather from a non -conforming}, to an allowed use. That
being residential in nature.
Site Plan Review would still be required, and all Board of Health approvals
will have to be obtained.
These conditions along with the condition of occupancy permits haven't beer
issued by the building inspector and fowarded to the Board of Appeals prior
to this change of use in structure would be acceptable to the petitioner.
I have also provided the Board of Appeals with a proposed decision and if the
Board sees fit to issue a decision in our favor this evening I would request
that the relief be granted in the form provided in that proposed decision.
Mr. Henderson summarized the correspondance.
Petition presented to the Board by Mr. Sweeney.
Robert Saben in favor.
Wharebase Inc, William Harrison, in favor.
Planning Board, suggest that what the Petitio--%er needs is a Variance from
th � y-law.
- 2 -
Mrs. Sullivan - Was the motel a seasonal motel?
Mr. Sweeney - The motel has traditionally been used during the seasonal
months. It has during it's history been used year -young. Under the
condominium documents the use of these dwelling units would be year-
round.
Mrs. Sullivan - You were granted that permission before. To have them
year-round?
Mr. Sweeney - No, we are asking for that this evening, in our change of
use.
Mrs. Sullivan - Then the water and sewage could be increased. Even though
you are taking out bathrooms, if you use it for more months it could be
increased.
Mr. Sweeney - The figures we have from the water department indicate that
that the existing 8 units in this complex, that have been sold as condominus
units, and are not used as motel units any longer, these existing 8 units
that can be used on a year-round basis, use much less water than year-round
dwelling units. I would guess the main reason being that people who use
motels are mm:cfi careless in their use of water.
Mr. Lindquist - How many units are there currently in the complex?
Mr. Sweeney - Currently eight units which have been sold as condominium unit:
and are used that way. Twenty motel units that are used as motel units.
r
Mr. Lindquist - Of the twenty, you propose to make how many condominium unit:
Mr. Sweeney - Ten plus one mana�.er apartment.
Mr. Henderson - In that enumeration of the number of units presently on the
site, does that include all the units? Does that include the four units over
the pool?
Mr. Sweeney - Yes. The four units over the pool are included within the 10
con('.ominium units proposed
Mr. Hendeson - How large is this site? In terms of square footage.
Mr. Poliseno- 66,000 square feet.
Mr. Henderson - The eight units that have presently been sold. What's the
use of those? Seasonal or year-round.
Mr. Sweeney - They are year-round units.
Mr. Henderson - If this site was being developed today under the by-law,
how many units can you fit on it? [Under current zoning, if you had a vacant
site.
Mr. Sweeney - our Engineers cal--ulare that it would not be more than 4 or so
I do not have exact engineering calculation.
Mr. Oman - Does the 66,000 square fee t, is that the site known as Phase I
and II or Phase II only?
- 3 -
Mr. Sweeney - That is the entire area.
Mr. Oman - The total site. How many units are on the total site, including
the 10 that you are asking for?
Mr. Sweeney - Eighteen plus one manager apartment.
Mr. Oman - That is 19 units on and acre and )I.
Mr. Sweenev - That is correct.
Mr. Oman - You have not included the landscape plan. Do you infact have
a plan for the 66,000 square foot site? To landscape it, to buffer it, to
make it attractive,to screan it, etc.
Mr. Sweeney - We do not have a complete landscaping and sketctics, and also
as to the phase I, with the existing 8 units, in as much that they are in
private ownership we do not have the ability to change any aspects of that
particular portion of the site.
Mr. Oman - Is that because the owner of phase II has no ownership, has no
vote.
Mr. Sweeney - The manager is the owner of phase I, but he no longer owns anv
of the units. His say is as the manager guided strictly with the condominiu,
trust which would require a vote of the unit owners.
Mr. Oman - What is the feeling of those 8 unit owners, as far as this con-
-version goes°
Mr. Sweeney - I have no knowledge of any opposition. I have been informed
by the petitioner that they certainly would welcome the entire complex
becoming the condominium rather than having seasonal and daily traffic check
in and out of a motel.
At the time that the upgrade is made, if this project is approved,on phasell
THE unit owners of phase I will be notified that the work will begin and the
can desidE- if they want to upgrade any of their surrounding landscaping.
Mr. Oman - Phase I appears to be that condominium blocked out from Broadwav
of beyond the building and then in a south easterly direction to MA Ave. Is
that the only property consisting of the ownership of phase 1.
Mr. Sweeney - Clarified by opening the condominium site plan, that showed
the location of phase I.
Mr. Oman - Then phase II includes all the remaining property on "The Site".
Mr. Sweeney - That is correct.
Mr. Oman - Then the ownership of phase I does not include use of or access
to the swimming pool and tennis court.
Mr. Sweeney - It does include access.
Mr. Oman - So, phase I will gain some benefits from phase II and could join
in with an upgrade. And could be a condition of phase II condominium?
Mr. Sweeney - They could do so, yes.
- 4 -
Mr. Campbell - The 20 existing motel units there now, do they all have
kitchen"?
Mr. Sweeney - No they do not. None of them have the permitted use of
kitchens.
Mr. Henderson - None of them have the permitted use, but do they have
kitchens?
n'
Mr. Sweeney - TheAwith kitchen on the petition refers to the restaurant
kitchen.
Mr. Campbell - The only concern I would have is on the amount of space that
would be available for common area. It seems that we have a very heavy use
at this point.
Mrs. Sullivan - How many bedrooms will be in Phase II?
Mr. Sweeney - Two per unit. 20 bedroom total.
Mr. Lindquist - Are the present owners of the existing condominium, are
they aware of this plan? And do they approve of this conversion?
Mr. Sweeney - The condominium documents of Phase I refer to Phase II. So
all the individuals who bought units there and read their condominium docume
and spoke to the petitioner were informed that this Phasel of a two Phase
project.
Mr. Lindquist - Will there be an additional financial burn on the part of
the present condominium owners as a result of Phase II.
Mr. Sweeney - I do not believe so. Any change or expenses would have to be
voted by the group as a whole.
Mr. Henderson - Would you describe the present 20 rooms? What do they
consist of? After you do that would you describe the propose lay -out of a u
Mr. Sweeney - The proposed lay -out of a unit are shown on the Condominium
plans which have been provided to the Board.
Shown a living area, bath and two bedrooms. That is the general living area
including the kitchen facilities.
Mr. Henderson - What do the kitchen facilities consist of?
Mr. Sweeney - Sink, refrigerator, stove (30" stove).
Mr. Henderson - What is there now, what do the 20 units consist of?
Mr. Poliseno - The existing units now " four above the pool" are like a
suite. They consist of 2 bedrooms a living room and a kitchen that is not
useable, because every thing is shut off. The Main motel building is an
Mr. Sweeney - I believe, the lay -out of those units are an entrance into
an area that has bedroom and bathroom.
Mr.Henderson - That is what I was getting at. A one room typical one room
motel unit with a bath and storage or closet area.
- 5 -
Mr. Henderson - I understand you have the plans here but I think it
i,,?fortant that we all understand exactly what is there now ane what you
areproposing.
Mr. Sweeney -It will be ten units with a total of two bedroom to a total
of 20 plus and additional bedroom in the apartment. Twenty-one.
Mr. Oman - Why then is the septic system designed for 24.
Mr. Sweeney - Its a substancial upgrade of the system and we try to not
only increase septage as large as possible but also to increase drainage
etc. There is also a pool area etc. better that it be to large than to
small.
Mr. Oman - I think the design of the system 1,2,3 and it calls out the
bedrooms. System #1 is designed for a total of 11 bedrooms. System #2
is for 8 bedrooms. System #3 is for 5 bedrooms. That is 24 bedrooms.
This system is saying it is design for 24 bedrooms.
Mr. Sweeney - Mr. Poliseno has indicated to me that there are 24 rooms
within the new design which could be utilized as bedrooms. Not designed
for bedrooms they also could be utilized as a den. Given that factor the
Engineers have decided that .... it's somewhat comon to sometimes design
a system for two bedrooms when you have a third room that could be used as
a den. They included the den as a potential bedroom and designed the system
that way.
Mr. Henderson to the audience:
Mr. Sid Minsky - #8 of Phase I, I was aware of the conversion and I welcome
it. I feel it will be benificial.
Mr. Lally, Ruth Crowell, Margaret, Ms trrey, Mr. Carboneti, Arthur Luke all
in favor of the petition, also Mr. Cowgill, Mrs. Bangs.
Mr. White - When Phase I was created were the floor plans for both Phase I
and II submitted at that time?
Mr. Sweeney - Approval from whom?
J!:. 4,hiLe - In the condominium document!: one of the things required is a
ley --out. of t c motcl. I want tc 'know if that way done.
Mr. Sweeney - ?1t the time Phase I was recorded in 1980 the site, with
General Laws Chapter 183A, the CondorA nium statute, there was filed with
the registry of deed a "aster need anO a Condominium organization together
with a condominium site rian, condominium floor plat, ind with each first
individual unit deed, a unit plan. The site plan included only Phase I
the floor plan only the 8 units within Phase I. The documents
reserve the right to UnLilize the rerainder of the property as 'Phase II.
:_r. White - T'+st I t:�in?, the question in my mind is that if this was not
done, when PF.ase I was cone, although he reserved the right to It was not
done. I think this is a question tt•at shoulc'• be looked at before a decision
is made. Whether or not he s;7oul-4 =..17 u.i.�er our condciriniuw by-law today
that was adopted in 193C or is l:e a -C1,-Vt Erom that.
Nor. Sweeney - In as much that the condominium conversion section of the
bylaw section 104.4 has been raised it ;s my opinion that this project does
not fall within the purview of that section of t';e by --law:
- 6 -
1. The condominium master deed and other documents and plans that I describe
were recorded prior to the enactment of that statute. And the documents did
reserve the rights to Phase II.
2. Even if the Board of Appeals were to take the position that Mr. Poliseno
was not Grandfathered by having recorded Phase I, this project would not
properly before this Board under that by-law because that by-law indicates
that " any legaly existing conforming or non -conforming structure or use may
be converted to condominium form" The structure in use that we are requestir
here tonight, neither currently exist. There is a change structure and the
current use is a motel and dwelling units. You have to have both of those
thing in accordance with the langue of the by-law. Having neither of those
he could not request relief from that section.
Mr. Henderson then took the appeal under advisement.
Mr. Oman - I move to grant the petition
Mr. Campbell - Second
Mr. Oman - I agree with the petitioner it is a betterment to get rid of
the motel atmosphere.
Mr. Henderson - I have reservation on the desity. 66,000 square feet.
We would be legitmizing 19 units on 1 acre of land.
Mr. Campbell - Under todays by-law 4 condo's could be built.
Mr. Oman - Would they have a problem with the January and February closing
Mr. Sweeney - No objection.,
Mr. Oman - It would be 10 units and managers apartment to be closed January
and February.
Mr. Henderson - I have no problem with the managers quaters being open.
Mr. Lindquist - I'm in favor of the condo as opposed to motels. But I'm nct
comfortable with the year-round occupancy.
Mr. Oman - Motion to grant special permit
1. the units to have no more than 2 bedrooms.
2. close with the exception of managers quaters for Jan. & Feb.
Mr. Campbell - Second
Mr. Lindquist - Amend to readlclose complex for 3 months, Jan, Feb., March.
Les Second.
Amendment vote 4 - 1, Judith Sullivan abstaining
Mr. Lindquist -- Move motion as amended. To plan with modification of 2 bedre
CARRIED UNANIMOUSLY