HomeMy WebLinkAboutDecision 4485 HighlightedBk 28533 Pa235 ' ' 654902
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TOWN OF YARMOUTH
BOARD OF APPEALS �p
DECISION
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FILED WITH TOWN CLERK: October 31, 2014
PETITION NO: #4485
HEARING DATE: November 14, 2013, continued to February 27, 2014,
Continued to May 8, 2014, continued to August 28, 2014,
Continued to October 23, 2014
PETITIONER: Seaview Motel Condominium Trust
PROPERTY: 785 Route 28, South Yarmouth
Map 33, Parcel 77
Zoning District: B-2
(For Title Reference see attached)
MEMBERS PRESENT AND VOTING: Steven DeYoung, Chairman, Scan Igoe, Gerald
Garnick, Chuck Hart and Bryant Palmer.
Notice of the hearing has been given by sending notice thereof to the Petitioner and all those owners
A of property as required by Iaw, 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 seeks a Special Permit pursuant to Zoning Bylaw §104.3.2(4) and Use §202.5(Al2)
and/or in the alternative, a Variance from Zoning Bylaw §104.3.2(4) and Use §202.5(Al2) to allow
for Multi -Family Uses at the property. The applicant is the association of unit owners for the Seaview
Motel Condominium, which consists of 10 detached condominium units, created in 1981, prior to the
effective date of Zoning Bylaw § 104.4, entitled Condominium Conversions. Prior to this form of
ownership, this property was part of the Red Mill Motel, which was located on the adjacent property.
There are currently b different owners of these units, each of which contains two bedrooms, and full
kitchens. The units were created by Special Permit No. 1734, which although permitting the creation
of 10 new units, the Board denied any request to use them as multi -family dwelling units. This same
prohibition was repeated in several other requests by individual unit owners to this Board over the
years. Despite these pronouncements, it appears that a multi -family use was commenced in
approximately 1985, the date of the last motel permit issued by the Town of Yarmouth for this
property.
The property contains approximately 37,000 square feet and has frontage on 3 streets — Route 28,
Seaview Ave, and Howes Road. Each of the 10 units is serviced by their own separate septic
systems, located on various portions of the property. Most, if not all of the units, are rented to
third parties at market rates which, although not restricted as affordable units, are similar to the
set rates for such a classification. Other than along the Route 28 side of the property, there is no
curbing to speak of, and parking is used by each unit owner in the front of each unit, in a
haphazard manner, some of which is over septic tanks and leaching fields which are not designed
to handle such loads. The buildings themselves are, generally, in poor condition, non -uniform as
to materials, colors, and degrees of repair, due mostly to the description of "units" in the Master
Deed as being to the exterior skin of each building. This language prohibits the association of
unit owners from regulating or correcting the status of the buildings.
Having operated as a Multi -Family use for almost 30 years now, and the Building Department's
enforcement team seeking to have such properties conform with the options now provided by the
Zoning Bylaw, the petitioner is now seeking to legitimize the multi -family use by seeking a
Special Permit under Section 104.3.2 (4), paragraph 2), and in the alternative or in addition to that
form of relief, a Variance. The hearing was opened in November of 2013, with a historical
explanation of the property and its uses, and input from the Town Planner and Building
Commissioner, who requested that the property be subject to review by the Design Review
Committee and the Site Plan Review team, despite there being no requirement in Section 104.3.2
(4), paragraph 2) that such site upgrades be performed.' Over the next approximate 11 months,
the petitioner took steps to prepare a proposal for site upgrades, aesthetic changes to the buildings,
and to amend their condominium documents to allow for more regulation and enforcement by the
Board of Trustees, or its appointee.
After having attended formal reviews before the Design Review Committee on October 7, 2014,
the Site Plan Review team on October 14, 2014, and having passed and recorded amendments to
the applicant's Master Deed and Declaration of Trust and By -Laws, the applicant appeared before
the Board and presented its proposal.
The applicant proposes a three year phased plan to address site and design issues at the property,
as more fully depicted on a plan dated October 14, 2014, as prepared by BSC Group. The plan
shows the elimination of 3 curb cuts, reduces impervious areas along Route 28, reduces the width
of the western cub cut on Route 28, reduces the number of parking spaces that back into traffic,
better defines and organizes the parking and on -site traffic pattern, and provides for additional
street trees and fencing. In addition 2 of the septic systems will be addressed to correct a failed
leaching system, and the other to permit component parts to be parked upon.
The buildings will also be improved, including the application of either vinyl siding or cedar
shingles to the fronts of each unit, use of varying related colors for each unit, new trim and corner
boards, as well as the replanting of the vegetation in front of each unit with native dwarf
foundation plantings. The Site Improvements and the improvements to units 1, 2 and 3 will be
completed in Year 1, with units 8, 9 and 10 being done in Year 2, and units 4, 5, 6 and 7 done in
Year 3.
The Board first addressed that part of the application which seeks a Special Permit. The Board
found that the proposal met, with one exception, the requirements of Bylaw Section 104.3.2 (4)
Paragraph 2, and that no undue nuisance, hazard or congestion will be created, and that the
1 At the time of the filing of the Application for Hearing in 2013, Section 104.3.2 (4), paragraph 2) contained no
requirement that Design Review or Site Plan Review be conducted. It was at a subsequent Town Meeting, during
the pendency of this matter, that such requirements were added.
proposal will be no substantial harm to the established or future character of the neighborhood or
town. The Board also felt that with the conditions as delineated below, that the project would
not be substantially more detrimental to the neighborhood, than is the current use and structures.
Finally, the Board addressed the requirement of § 104.3.2(4) Paragraph 2 which mandates that
inclusionary zoning provisions of §412.2 be provided. In this case, the relief will be to permit
the existence of 10 dwelling units, which would typically trigger the need for 2 affordable units
at the property. Because the units are separately owned and have been since the creation of the
condominium form of ownership, the Board did not find a practical or realistic manner in which
to assign the affordability label to any of the units. In addition, and despite initially taking the
position that 2 affordable units should be part of the project, Karen M. Greene, the Director of
Yarmouth's Department of Community Development later opined that requiring the 2 affordable
units in this particular situation would be difficult to implement based on the current ownership
of the units. In addition, it was clear that current market rates for these units closely resemble the
affordability rates for the same units, and that the current use of the property for working tenants
met the spirit of the bylaw's requirement for inclusionary zoning anyway. Finally, the Board
also found that the circumstances of this particular case reveal no scheme to circumvent the
Zoning Bylaw to avoid inclusionary zoning.
Accordingly, Motion was made by Mr. Igoe, seconded by Mr. Garrick, to grant a Special Permit
as requested by the petition, with the conditions recited below, to which the Board voted
unanimously to grant.
In addition, Motion was made by Mr. Igoe, seconded by Mr. Hart, to grant the Variance from
Bylaw Section 104.3.2(4) Paragraph 2 regarding the requirement of inclusionary zoning
requirements of Section 412.2, again, with the conditions recited below, to which the Board voted
unanimously to grant. The Board found that literal enforcement of the bylaw would result in a
financial hardship to the applicant by requiring the creation of 2 affordable units on these facts, in
that the condominium association could not possibly absorb 20% of financial responsibility for
the creation of 2 affordable units. Second, the hardship was owing to circumstances relating to
the structures themselves and especially affecting such structures, but not affecting generally the
zoning district in which it is located, and that desirable relief may be granted without either
substantial detriment to the public good or nullifying or substantially derogating from the intent or
purpose of this bylaw. In fact, the Board was of the opinion that the relief herein granted will be
beneficial to the neighborhood and that the current and proposed use of the units will be in the
spirit of Section 412 of the Bylaw.
As such, both forms of relief shall be subject to the following conditions:
1. Any nonresidential uses which unit owners may want to make of their units, whether
permitted or not under the zoning bylaw and the zoning district in which the property is
located, shall require relief from the Zoning Board of Appeals, regardless of whether a
Special Permit or Variance is needed;
2. All comments of the Design Review Committee, as outlined in their Comment Sheet dated
October 7, 2014, shall be incorporated herein and become part of these conditions, except
as provided by any other condition herein recited;
3. All comments of the Site Plan Review Committee, as outlined in their Comment Sheet
dated October 14, 2014, shall be incorporated herein and become part of these conditions,
except as provided by any other condition herein recited;
4. The Site Plan submitted with the application, as prepared by BSC Group and dated
October 14, 2014, shall be incorporated herein and become part of these conditions,
except as provided by any other condition herein recited;
5. The First Amendment of Declaration of Trust and By -Laws, recorded in the Barnstable
County Registry of Deeds in Book 28294, Page 299, and the Second Amendment of
Master Deed recorded in the Barnstable County Registry of Deeds in Book 28294, Page
287, shall be incorporated herein and become part of these conditions, as evidence of the
applicant's ability to control the maintenance and improvement of the exterior of units,
and general control of the property;
6. Notwithstanding anything recited in either the Design Review Committee Comment
Sheet, or the Site Plan Review Committee Comment Sheet, the dumpster enclosure may
be made of wood materials.
7. Annual reviews shall be conducted on the first, second and third anniversary dates of the
effective date of this Decision, to ensure that the phasing proposed by the applicant is
being met and is being done in accordance with the terms herein recited.
No permit or variance 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) ,Unless otherwise provided herein, a Variance
shall lapse if the rights authorized herein are not exercised within 12 months. (See MGL c40A
§10). This Decision must be filed with the Barnstable County Registry of Deeds, Route 6A,
Barnstable.
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Steven DeYoung, ChaWman