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HomeMy WebLinkAbout5116 228 Route 28 Decision Certified 07.10.24MOUTH UJUL t Y 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. TRUE COPY ATTEST Cow tow AN Nz% 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 Yannouth 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: I . Two plantersitab les 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. 41RUE COPY ATTEST: chol o I UML I TOWN CLJX JUL 3 1 2424 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 I, 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 #5116 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 , JUL 3 12024 A TRUE COPY ATTEST. �1 JRUVIiN 3 1202 COMMONWEALTH OF MASSACHUSETTS f`G . TOWN OF YARMOUTH BOARD OF APPEALS C0-0 Petition #: 5116 Date: July 31, 2024 Certificate of Granting of a Variance (General Laws Chapter 40A, Section 10) The Board of Appeals of the Town of Yarmouth Massachusetts hereby certifies that a Variance has been granted to: PETITIONER: James A. Ruma PROPERTY OWNER: A Plus Real Estate LLC Affecting the rights of the owner with respect to land or buildings at: 228 Route 28, West Yarmouth, MA; Map & Parcel: 37 & 148; Zoning District: B2; Book 34148, Page 87 and the said Board of Appeals further certifies that the decision attached hereto is a true and correct copy of its decision granting said Variance, and 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 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 owner's certificate of title. The fee for such recording or registering shall be paid by the owner or applicant. s5E---� Sean Igoe, Vice Chair