HomeMy WebLinkAboutBOA #5131 Law Office of Singer & Singer, LLC
26 Upper County Road
P.O.Box 67
Dennisport,Massachusetts 02639
Andrew L. Singer Tel:(508)398-2221
Marian S. Rose Fax: (508)398-1568
www.singer-law.com
Myer R. Singer(1938-2020)
November 19, 2024
Yarmouth Board of Appeals
1146 Route 28
South Yarmouth, MA 02664
/ c cat V
Re: NCI Auto, Inc.
770 Route 28, South Yarmouth NO
Petition# 5 13 1 sti,1o� 2014
ey NGU
S �ARTMFNT
Dear Acting Chair Fraprie:
Enclosed please find a copy of the Decision from the Zoning Board of Appeals for the above
referenced matter, which was recorded today in Book 36683, Page 7 at the Barnstable County
Registry of Deeds. Thank you.
Very truly yours,
Bonnie Mossey for Andrew L. Singer
Enclosure
Copy to: Yarmouth Town Clerk
Yarmouth Building Commissioner
Bk 36683 Pg7 #46321
11-19-2024 @ 01 : 18p
COMMONWEALTH OF MASSACHUSETTS,__
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BY---__�MENT
Petition#: 5131 Date: November 18, 2024
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:
PETITIONER: NCI Auto,Inc.
PROPERTY OWNER: Mash Realty, LLC
Affecting the rights of the owner with respect to land or buildings at: 770 Route 28,South Yarmouth, MA
Map& Parcels: 33.38,39,and 40; Zoning District: B1 & B2; Title: Book 34709, Page 146, Plan Book 343,
Page 31, Plan Book 124, Page 17, and Plan Book 125,Page 69 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
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.
4-71
Jay Fraprie,Acting Chairman Y
NOV 18 2024
Bk 36683 Pg8 #46321
COMMONWEALTH OF MASSACHUSETTS
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BOARD OF APPEALS
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Petition #: 5131 Date: November 18, 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: NCI Auto, Inc.
PROPERTY OWNER: Mash Realty, LLC
Affecting the rights of the owner with respect to land or buildings at: 770 Route 28, South Yarmouth, MA
Map& Parcels: 33.38,39, and 40; Zoning District: B1 & B2; Title: Book 34709, Page 146, Plan Book 343,
Page 31, Plan Book 124,Page 17, and Plan Book 125, Page 69 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.
Jay Fraprie, Acting Chairman
Bk 36683 Pg9 #46321
470 TOWN OF YARMOUTH
r' r ;.- '1 0' BOARD OF APPEALS
0-= - ,_` ''I/ DECISION
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FILED WITH TOWN CLERK: October 28,2024
PETITION NO: 5131
HEARING DATE: October 10,2024
PETITIONER: NCI Auto, Inc.
PROPERTY OWNER: Mash Realty, LLC
PROPERTY: 770 Route 28,South Yarmouth, MA
Map& Parcels: 33.38,39, and 40
Zoning District: B1 & B2
Title: Book 34709,Page 146, Plan Book 343,Page 31,
Plan Book 124, Page 17, and Plan Book 125, Page 69
MEMBERS PRESENT AND VOTING: Acting Chairman Jay Fraprie; Dick Martin;
Barbara Murphy and Anthony Panebianco
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 stated above.
The Petitioner is NCI Auto, Inc. The Applicant is seeking Special Permits and Variances to
redevelop the land at the above addresses for use as an automobile sales and accessory service
business ["Proposal"].The Property is located in the Bl and B2 zoning districts. Relief is
requested per the submitted plans and materials as follows:
1. Special Permit- Section 202.5.H4 (Automobile Sales and Accessory Service);
2. Variance- Section 301.4.6(no in-lot trees in rear vehicle inventory storage area);
3. Variance- Section 303.5.4.1 (area of monument sign MNT43 as submitted-42.52 sq. ft.
excluding the base with conforming height of 9' 3.75"); and
4. Variance- Section 303.5.5.2 (two allowed signs on same elevation of building and size
of logo sign as submitted).
The Petitioner was represented by Attorneys Andrew Singer and Marian Rose; Steven Sewell,
owner of NCI Auto, Inc.; Roy Catignani and Scott Parella,Consery Group; and Adam Drake,
Atlantic Design Engineers, Inc.
W-141)1-4'•At4,40A-4*64'
1 - -
Bk 36683 Pg10 #46321
The Yarmouth Site Plan Review Team submitted a Site Plan Review Comment Sheet dated June
18,2024. The Yarmouth Design Review Committee submitted a Design Review Comment Sheet
dated May 7, 2024. In response to requests made by Board Chair Steven DeYoung at the
September 26, 2024,hearing, the Applicant submitted a revised landscape plan, a revised
elevation plan showing a revised sign design and change in elevation from 28 feet to 24 feet, and
the site plan approved by the Conservation Commission subsequent to the initial filing of the
Zoning Board of Appeals application.
The Board opened the hearing on the Proposal on September 26,2024, with Chairman Steven
DeYoung; Vice Chairman Sean Igoe; Dick Martin; Jay Fraprie, and Barbara Murphy attending.
The hearing was continued to October 10, 2024 by unanimous vote of the Board and was
subsequently heard and voted on by Acting Chairman Jay Fraprie; Dick Martin; Barbara Murphy
and Anthony Panebianco. Mr. Panebianco affirmed he was qualified to hear the petition under
the Mullin Rule,M.G.L. Chapter 39, Section 23D.
No one from the public spoke either in favor or against the Petition. The Petitioner submitted two
exhibits at the hearing: I) A revised colored Landscape Plan dated October 10,2024 showing the
"existing tree to be removed"and to be replaced with the additional tree shown on the landscape
plan; and 2)An article from Urban Forest Nursey, Inc. about the London Plane tree.
The hearing was closed on October 10, 2024.
The Applicant submitted the following materials in connection with the Petition:
1. Application,prepared by Law Office of Singer& Singer, LLC;
2. Summary of Reasoning,prepared by Law Office of Singer& Singer, LLC;
3. Comprehensive Relief Request List, prepared by Law Office of Singer& Singer, LLC;
4. Order of Conditions issued by the Yarmouth Conservaton Commission;
5. Stormwater Management Permit issued by the Yarmouth Conservation Commission;
6. Site Plan set(10 sheets),including existing and proposed conditions, landscaping,
lighting, and erosion control,prepared by Atlantic Design Engineers, Inc,dated June 6,
2024,and last revised August 28, 2024;
7. Revised colored Landscape Plan dated October 3, 2024;
8. Architectural Plan Set(5 sheets),prepared by Consery Group,dated June 5, 2024,and
revised August 7,2024 and front elevation September 26, 2024;
9. Revised colored front elevation sheet dated September 30, 2024;
10. NRC Sign Family Set(3 sheets)and
11. Revised colored Landscape Plan dated October 10,2024 showing the"existing tree to be
removed"and to be replaced with the additional tree shown on the landscape plan.
The Applicant submitted the following testimony and the Board of Appeals found the following
in connection with the proposal:
The Property is a conforming lot and is abutted to the west by a car dealership and to the east by
an office complex.
wit;i1.11pArtizi44.
2
Nov 18 2024
Bk 36683 Pgll #46321
The Property has two existing curb cuts on Route 28 and contains 14,934 sq. ft. of disturbed land
area that has been used for many years as parking.This parking area is both paved and dirt and
consists of employee vehicles and shuttles for an area business,vehicles from a nearby towing
company, and truck trailer pickup and delivery of new and used vehicles. The Applicant
proposes to redevelop the Property to include a proposed 9,991 sq. ft. auto sales and service
building(Nissan dealership)and 14,503 sq. ft. of inventory storage behind the building.
The Proposal satisfies the Special Permit criteria for H4 use(Automobile Sales and Accessory
Service) and will not create any undue nuisance, hazard or congestion and there will be no
substantial harm to the established or future character of the neighborhood or Town because:
1. The Property is located in a commercial zoning district among other commercial uses on
a main road;
2. The Applicant has many years' experience operating similar uses, including the KIA
dealership next door to the Property, and has a proven track record of providing high-
quality service to residents of Cape Cod;
3. There will be a reduction from two curb cuts to one curb cut, which will allow for a
significant and substantial landscaped front buffer on either side of the driveway,as well
as landscaped buffers along the sides of the Property. As shown on the Landscape Plan,
the plantings will include trees, shrubs, and plants plus grass for groundcover;
4. Parking will be conforming in terms of numbers and design and will be located to the
side and rear of the building as required by the Zoning Bylaw. In addition, a conforming
number of in-lot trees (7) will be provided in the main parking area to meet the
requirement of 1 tree per 8 parking spaces. No in-lot trees are proposed within the
inventory storage area in the rear which will be used solely to store inventory, which in
this case are vehicles, and is not to be used as a conventional business parking lot.Further
relief for this condition is discussed below;
5. The proposed building will conform to all setback and height requirements.The building
will be 24 feet in height, with an architectural element in the center portion of the
building that will extend 13.76 inches above the flat roof;
6. Building coverage(8%) and impervious site overage(48%)will each be conforming and
substantially less than what is allowed by right(25%and 70%,respectively);
7. Site lighting will comply with lighting requirements as shown on the photometric plan
and will be appropriate for the commercial zone;
8. A sidewalk will be provided to tie into the existing sidewalk along Route 28;
9. All stormwater runoff will be contained and infiltrated on site, and there will be no
negative impact to drainage,septic flow or stormwater. The Property will be connected to
the new Town sewer when available;
10.The proposal has been reviewed by the Yarmouth Conservation Commission. The
Commission has approved both an Order of Conditions and a Stormwater Management
Permit; and
11. The Proposal will be in keeping with and compatible with the character of the
neighborhood and will be an asset to the Town.
The Board decided that Variance relief is required to not provide in-lot trees in the rear inventory
storage area because the inventory to be stored consists of vehicles. The Board further found that
3
Bk 36683 Pg12 #46321
the Variance is warranted because of the unique soil conditions and topography of the Property.
Sufficient space is required to store inventory to allow the business to operate viably.
Compressing the rear storage area allows the design to stay more than 50 feet from the wetland
to the northeast and more than 100 feet from the wetland to the north. It also limits impervious
site coverage and allows more open space to be maintained in the rear of the Property. Given
these circumstances, a literal enforcement of the provisions of the Zoning Bylaw would involve
substantial financial and practical hardship to the Applicant. In addition, for the reasons set forth
above, desirable relief may be granted without substantial detriment to the public good and such
relief can be granted without nullifying or substantially derogating from the intent or purpose of
the Zoning Bylaw.
Similarly, in connection with the freestanding monument sign,Variance relief is warranted to
allow the face of the sign to be 42.52 square feet, excluding the base. While this is larger than
generally allowed (24 square feet), it will be in keeping with the size and scale of the Property
and will be consistent aesthetically with other signage in the neighborhood. Such monument sign
will further be a conforming height: 9 feet, 3.75 inches tall,where 12 feet is allowed. Such relief
can be granted without substantial detriment to the public good and without nullifying or
substantially derogating from the intent or purpose of the Zoning Bylaw.
Building wall signage requires a Variance because the two,otherwise allowed signs, will not be
on opposite or parallel walls. In this case, they will both be located on the front elevation. In
effect,the business name,Cape& Islands Nissan, is being split into"Cape& Islands"lettering
and the"Nissan" logo. Such signage will be conforming in height and size and will not exceed
one-third the running face of the front elevation. Such relief will not be detrimental to the
neighborhood or Town nor create any undue nuisance,hazard or congestion.
Accordingly,Anthony Panebianco made a motion,seconded by Dick Martin, and the members
voted unanimously(4-0)in favor to grant the requested Special Permit for H4 use(Automobile
Sales and Accessory Service),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.
Accordingly, Dick Martin made a motion, seconded by Anthony Panebianco,and the members
voted unanimously(4-0) in favor to grant the following Variances:
• Variance—Section 301.4.6(no in-lot trees in rear vehicle inventory storage area).
Variance from the requirement of providing in-lot trees in the rear inventory storage area
only based upon the above Findings and submitted plans;
• Variance—Section 303.5.4.1 (area of monument sign). Variance for the monument sign
as submitted based upon the above Findings and submitted plans; and
• Variance—Section 303.5.5.2(two allowed signs on same elevation of building and size
of logo sign as per Section). Variance for the two wall signs on the front elevation as
submitted based upon the above Findings and submitted plans.
WG.e),(fa) .()1140)11-444
Bk 36683 Pg13 #46321
The relief granted above is subject to the following conditions:
1. The October 10, 2024 Landscape Plan approved by the Board which notes the removal of
the existing tree will be amended to show the following:
a. The front-facing landscape buffer abutting Route 28 will be planted with
alternating Red Maple and Honey Locust rather than only one variety of tree
shown; and
b. The replacement tree shown on the October 10, 2024 Landscape plan will be
planted so that seven(7) trees are planted along the front buffer facing Route 28
rather than six(6)trees as originally proposed.
2. The Applicant will follow all requirements of the Board of Health including but not
limited to those related to providing a fluids list;and
3. The Applicant agrees that there will be no car washing on this site.
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)
Jay Fraprie,Acting Chairman r
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#5131 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 a peals have been exhausted.
WiAlta)*
Mary A. Maslowski, CMMC, CMC
NOV 18 2024
L j' T. .
Ttghe it I A- ` t4
5 NOV J 18 F2Q24DE, REGISTER
BARNSTABLE COUNTY REGISTRY OF DEEDS
RECEIVED & RECORDED ELECTRONICALLY