HomeMy WebLinkAbout5134 23 Iroquois Blvd Decision Certified 11.21.24TOWN ERR RE
I-
N 0B 21 526 P 3:02,
FILED WITH TOWN CLERK:
PETITION NO:
HEARING DATE:
PETITIONER:
PROPERTY:
TOWN OF YARMOUTH
BOARD OF APPEALS
DECISION
November 21, 2024
5134
October 24, 2024
Jon Frederick Tolley, Trustee of the Jon Frederick
Tolley Living Trust, dated 03/16/2015
23 Iroquois Boulevard,
Map & Lot #: 32.5
Zoning District: R-25
Document #1486,092
Certificate #208490
West Yarmouth, MA
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 stated above.
The petitioner seeks to overturn the decision of the Building Commissioner and. ---or a Variance for
B-4 use with retail to sell locally harvested lobster at his property at 23 Iroquois Boulevard, West
Yarmouth, Massachusetts. The property is located in the R-25 zoning district and is comprised of
13,068 square feet.
The petitioner received a violation notice, dated August 28, 2024, from the Deputy Building
Commissioner, about offering lobsters for sale at this property. The use is not allowed in a
residential zone without relief from the Zoning Board of Appeals:
202.1 Application. No building or structure shall be erected and no premises shall be used,
except as set forth in the Use Regulations Schedule, or in other sections of this bylaw. If a use is
not specifically allowed, by right or special permit, it shall be considered to be not allowed
unless an appeal is taken under section 102.2.3 and it is shown beyond a reasonable doubt to be
ofsimilar nature and at least no more noxious nor detrimental to the welfare of the
neighborhood than a specifically allowed use.
Mr. Tolley has both a Retail Boat Seafood Dealer Permit and Retail Truck Seafood Dealer
Permit from the Massachusetts Division of Marine Fisheries. These dealer permits allow him to
sell lobsters (which are lawfully harvested under the authority of his commercial fishing permit)
from his boat or at retail from a mobile unit.
At the hearing, Mr. Tolley testified about his retail business operation:
• Hours of operation: mid -June to end of October, Sunday -Saturday, 4pm-6:30pm.
• Average 8 vehicles per day.
• Sell —30 pounds of lobster per day.
• Retail business is a "drive-thru" with cars entering his corner lot from Iroquois Boulevard
and exiting onto Navajo Road.
The petitioner also has multiple off -premise signs on Route 28, South Sea Avenue, and Iroquois
Boulevard that advertise the sale of lobsters at his property. These off -premise signs are not
allowed per the Zoning Bylaw.
Prior to the hearing, the Board received two letters of support for the petition. One letter of
support was signed by 7 abutters. The second letter of support was from an abutter who signed
the first letter. There were no public comments at the hearing.
Because the use is not allowed in this zoning district, the petitioner must qualify for a Variance:
1. Literal enforcement of the provisions of this bylaw would involve a substantial hardship,
financial or otherwise, to the petitioner or appellant.
2. 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 in which it is located.
3. 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.
The Board agreed that the petitioner does not meet the criteria for a Variance because the
hardship is not owing to circumstances relating to the soil conditions, shape or topography of
such land or structures.
Accordingly, a motion was made by Mr. Fraprie and seconded by Mr. Mantoni to uphold the
decision of the Building Commissioner. The members voted unanimously (5-0) in favor of the
motion.
A motion was made by Mr. Fraprie and seconded by Mr. Martin to approve the Variance as
requested. The members voted unanimously (0-5) against the motion. The Variance was,
therefore, not granted.
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 #5134 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, CMMC, CMC
DEC 16 2024