HomeMy WebLinkAbout5116 228 Route 28 Decision TC 07.10.24lau Ua258JL1 CLERK
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FILED WITH TOWN CLERK:
PETITION NO:
HEARING DATE:
PETITIONER:
PROPERTY OWNER:
PROPERTY:
TOWN OF YARMOUTH
BOARD OF APPEALS
DECISION
July 10, 2024
5116
June 27, 2024
James A. Ruma
A Plus Real Estate LLC
228 Route 28, West Yarmouth, MA
Map & Parcel: 37 & 148
Zoning District: B2
Book 34148, Page 87
MEMBERS PRESENT AND VOTING: Vice Chair Sean Igoe, Dick Martin, Jay Fraprie, John
Mantoni, and Barbara Murphy
Notice of the hearing has been given by sending notice thereof to the Petitioner and all those
owners of property as required by law, and to the public by posting notice of the hearing and
publishing in The Cape Cod Times, the hearing opened and held on the date as stated above.
The Petitioner is James Ruma. The Petitioner is requesting permission to sell plants at the
property located at 228 Route 28, West Yarmouth for the 2024 season through October, 2024.
The Petitioner will be a tenant at the Property. The Property was previously the site of a
restaurant, and the owner is in the process of seeking permits to redevelop the land. The Property
is located in the B-2 Zoning District and is currently improved with the concrete slab for the
former building and a large, paved parking field.
The Petitioner was represented by Attorney Andrew Singer together with Mr. James Ruma.
There were no public comments. The Yarmouth Site Plan Review Comment Sheet was
submitted with the application.
The request is to sell plants within a temporary, chain -link fenced area with gate as shown on the
submitted site plan prepared by BSC Group, dated May 14, 2024. Twenty-eight (28) of the
existing parking spaces will be re -used by the proposal. Hours of operation will be 9:00 a.m. -
6:00 p.m., seven days per week. No other changes are proposed for the site in connection with
this temporary use.
The Building Commissioner noted in his comments that the proposal requires variance relief
from the Board of Appeals because a) it is not a farmer's market which is defined as selling
"predominantly local fresh food and produce" and b) because although otherwise permitted by
right in the B2 Zoning District, Section 202.5, Footnote 2 of the Yarmouth Zoning By -Law
requires the bulk of display and sales to be conducted within a building. There is no longer a
building on the Property.
The Petitioner presented information and testimony that the criteria for issuance of a variance
from the requirement that the bulk of display and sales be conducted within a building are
satisfied for this otherwise permitted, garden supplies use. The requested relief is temporary for
2024 only (through the end of October). The use will only be during the daytime (9:00 a.m. —
6:00 p.m.) and will be quiet. There will not be a great deal of traffic generated by the temporary
use.
The Petitioner grows his own plants locally and has long been looking for a suitable place to sell
them locally. Outdoor display and sales of an inventory consisting of living plants is appropriate
for a permitted H 1 garden supplies use, and the previously developed, but currently vacant
Property is a unique site that lends itself to the proposed temporary use. Not allowing otherwise
permitted plant sales to be displayed and conducted outside will result in a substantial hardship
to the Petitioner in not being able to sell plants he grows locally from a site generally permitted
for such use under zoning.
The Board asked questions about hours of operations, how plants will be transported to the site,
and how plants will be watered and stored. There was discussion about blocking the center curb
cut, so that traffic uses the easterly curb cut closest to the proposed parking. The Petitioner will
temporarily re -use the existing pylon sign. A portable toilet will be located near the back of the
fenced area.
Based on the above and testimony received at the public hearing, the Board found that a literal
enforcement of the Zoning Bylaw 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 that 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 Bylaw.
Thereafter, a motion was made by Mr. Fraprie, seconded by Mr. Martin, and voted 5-0 in favor,
to grant a Variance from the provisions of Section 202.5, Footnote 2 of the Yarmouth Zoning
Bylaw and M.G.L. Chapter 40A, Section 10, to allow temporary use of the Property to sell plants
as shown on the submitted plan and with the following conditions:
1. Two planterslables will be located at the center curb cut to block vehicle access;
2. Hours of operation shall be 9:00 a.m. - 6:00 p.m., seven days per week;
3. This use is granted for the 2024 season through the end of October 2024; and
4. The portable toilet shall be located near the rear of the fenced area and parking.
2
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, a
Variance shall lapse if the rights authorized herein are not exercised within 12 months (See
bylaw § 103.2.5, MGL c40A § 10)
Sean Igoe, Vice Chair
CERTIFICATION OF TOWN CLERK
1, Mary A. Maslowski, Town Clerk, Town of Yarmouth, do hereby certify that 20 days have
elapsed since the filing with me of the above Board of Appeals Decision N5116 that no notice of
appeal of said decision has been filed with me, or, if such appeal has been filed it has been
dismissed or denied. All appeals have been exhausted.
Mary A. Maslowski, CMC