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Home My WebLink About4433 546B Higgins Crowell Rd Decision RecordedDoc-1r227r477 07-31-2013 2:53 BARNSTABLE LAND COURT REGISTRY TOWN OF YARMOUTH BOARD OF APPEALS DECISION FILED WITH TOWN CLERK: March 1, 2013 PETITION NO: #4433 HEARING DATE: February 14, 2013 OWNER: Kevin Benger, Trustee K2 Realty Trust PETITIONER: Kevin Sullivan, d/b/a Dig It Construction PROPERTY: 546B Higgins Crowell Road, West Yarmouth, MA Map & Lot #: 0074.20 & 0074.21; Zoning District: B3 & Aquifer Protection District Doc. #: 178,985; Ctf.#: 195775 YAR OUTH TOWN CLERP: '13 ARlwg:14 REG MEMBERS PRESENT AND VOTING: Steven DeYoung, Chairman, Joseph Sarnosky, Sean Igoe, Dick Neitz and Bryant Palmer. 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 stated above. The Petitioner is Kevin Sullivan who does business as Dig It Construction. Mr. Sullivan appeared along with his legal counsel, Michael Stusse, Esq. Mr. Stusse prepared and presented a well thought out memorandum which was very helpful in the Board's consideration of and deliberations on this Petition. The property which is the subject of this Petition is located at 542-546 Higgins Crowell Road, West Yarmouth, MA and is in both a B-3 Zoning District and the Aquifer Protection District. The Petitioner is seeking relief by way of Special Permit to allow the operation of an excavation business within the Aquifer Protection District. The use suggested by the Petitioner is due to this particular anticipated undertaking. This property has been the subject of prior relief (Decisions #2453, 93660 and #3877). Primarily, its recent commercial use was as the location of United Tool and Machinery Rental. The Board considered the evidence offered by the Petitioner. No one spoke in opposition to the Petition and no exhibits were received at the hearing. In order to approve the Petition the Board considered not only §103.2 and the criteria for grant of Special Permit but, also, the specific criteria set -forth in §406. Regarding the grant of Special Permit under §103.2, the Petitioner noted and the Board considered and agreed that: 1) The site would provide adequate space, storage and parking for the proposed use; and 2) The proposed use was in keeping with other activities within the neighborhood; Accordingly, the Board found that no hazard, nuisance or congestion would result in nor would any detriment to the existing or future character of the neighborhood or Town occur if the relief granted were allowed. Further, the Board made findings consistent with §406.4.1 and as follows: 1) Petitioner has fully complied with the Substantial Requirements Of §406.5.2; 2) The proposed use meets all Design and Operation requirements of §406.5.7 3) The chemicals, fuels and other toxic or hazardous materials used or stored at the site are in sufficient quantities to comply with §406.5.1 and no toxic or hazardous materials will be generated on the site. Moreover, the Board of Health was properly consulted and approved the quantities and containment controls for any materials of concern; and 4) The proposed use does not conflict with all of the Objective and Water Quality Criteria of the Bylaw and poses no substantial risk to the drinking water supply of the Town. Accordingly, Motion was made Mr. Igoe, seconded by Mr. Palmer to grant the Special Permit as sought by the Petition on the following conditions: 1) The Petitioner is to comply with all conditions and requirements enumerated in the Memorandum of Carl E. Lawson, Jr., dated 2/5/13 which conditions are to be incorporated herein, by reference, and 2) That the Petitioner either appear for review of this Petition within no more than 1 year or, in lieu thereof, provide a letter from the Board of Health confirming the compliance with all of the Board of Health's stated conditions. No permit shall issue until 20 days from the filing of this decision with the Town Clerk. This decision must be recorded at the Registry of Deeds and a copy forwarded to the Board of Appeals. 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, MGL c40A §9) - A&M.- Steved DeYoung, an 2 COMMONWEALTH OF MASSACHUSETTS TOWN OF YARMOUTH BOARD OF APPEALS Appeal #4433 Date: March 22, 2013 Certificate of Granting of a Special Permit (General Laws Chapter 40A, section 11) The Board of Appeals of the Town of Yarmouth Massachusetts hereby certifies that a Special Permit has been granted to: Kevin Sullivan d/b/a Dig It Construction 546B Higgins Crowell Road West Yarmouth, MA 02673 Affecting the rights of the owner with respect to land or buildings at, 546B Higgins Crowell Road, West Yarmouth, MA Zoning District: 133 & APD; Map & Lot#:0074.20 & 0074.21; and the said Board of Appeals further certifies that the decision attached hereto is a true and correct copy of its decision granting said Special Permit, and 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 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 owner's certificate of title. The fee for such recording or registering shall be paid by the owner or applicant. Avz-,� .. Steven DeYoung, C *k an TOWN OF YARMOUTH 1146 ROUTE 28, SOUTH YARMOUTH, MASSACHUSETTS 02664-4451 Telephone (508) 398-2231 Ext. 1285, Fax (508) 398-0836 CERTIFICATION OF TOWN CLERK Town Clerk I, Jane E. Hibbert, Town Clerk, Town of Yarmouth, do hereby certify that 20 days have elapsed since the filing with me of the above Board of Appeals Decision #4433 that no notice of appeal of said decision has been filed with me, or, if such appeal has been filed it has been dismissed or denied. All appeals have been exhausted. el �/j.�(�Jj Jan . Hibbert, CMClCMMC Town Clerk BARNSTABLE REGISTRY OF DEEDS