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HomeMy WebLinkAbout228 Route 28 Previous Decisions 5116, 5019, 4208, 633lau Ua258JL1 CLERK F. xc�RPO RASEQ `�9i 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 e� N �Url� T i— FILED WITH TOWN CLERK: PETITION NO: HEARING DATE: PETITIONER: PROPERTY OWNER: PROPERTY LOCATION: TOWN OF YARMOUTH BOARD OF APPEALS DECISION July 3, 2023 5019 June 22, 2023 Maria Curtis dba Lightning Speed Go -Karts A Plus Real Estate LLC 206 Barnstable Road, Hyannis, MA 228 Route 28, West Yarmouth, MA Map 37, Parcel 148 Zoning District: B-2 Title: Book 34148, Page 87 MEMBERS PRESENT AND VOTING: Chairman Steven DeYoung, Sean Igoe, Dick Martin, Jay Fraprie, and John Mantoni 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. This matter came before the Board on June 22, 2023, after having earlier hearing dates of May 11, 2023 and May 25, 2023. The petitioner, Maria Curtis who does business as Lightning Speed Go -Karts, with the property location of 228 Route 28, West Yarmouth, Massachusetts, which property is in a B-2 zoning district. Specifically, the petitioner seeks relief from the buffer tree requirements of the Zoning Bylaws and"or to change the use to an N-I 1 use at the location, so as to accommodate the petitioner's use of the property for a go-kart business. At the final meeting of the consideration of the petition, the petitioner appeared, and spoke well, as did Kieran Healy of the BSC Group, and Bradley Dunkin, sound consultant, Cavanaugh Tocci. Over the course of the three meetings, many people spoke, mostly in opposition to the petition. Though residential properties do abut the property, which is the subject of the petition to its rear, A TRUE COPY ATTEST the Board also considered it via an abutting property consisting of a hotel and guest accommodations, the desired hours of operation by the petitioner, the traffic this business would cause at all hours of the day, and at a very busy location, the likelihood of persons across the street from the site to walk dangerously where there is no crosswalk, and the sound that the business would generate. As well, the Board considered the petitioner's efforts to abate the sound in particular, make the layout of the track safer, and improve the parking lot at the site. Considering these various factors and others, which were heard, the Board felt the matter should come to a vote, despite the petitioner's request to withdraw the petition without prejudice. The request to withdraw the petition was denied. The Board then proceeded to the merits of the petition, and, after substantial discussion, the members agreed that they could not support the relief sought as the buffer trees requirement would not be waived, nor would the Use Table change to an N-I I use be approved. A roll call vote was taken on a motion made by Mr. Igoe and seconded by Mr. Fraprie, to approve the petition as presented, to which each member of the Board voted "nay" to the motion. Accordingly, the petition was denied. 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. Steven DeYoung, Chairman 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 #5014 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. 5—�a- X4&vAte - Mary A. aslowski JUL Z 5 2023 A TRUE COPY ATTEST: L 2023 YARMOUTH OWN OF YARMOUTH TC)�'i �' FRK BOARD OF APPEALS DECISION d%7 INQli 20 FA 4* 14 " ►►1 M�� RECEIVED FILED WITH TOWN CLERK: November 20, 2008 i PETITION: 04208 HEARING DATE: November 13, 2008 I PETITIONER: Zhang Zi Qian dba Cape Cod Super Buffet PROPERTY: 228 Rolo 28, West Yarmouth Maki'&'Parcel: 0037.148 Zoning District: B2 j If MEMBERS PRESENT AND VOTING: David S. Reid, Chairman, Joseph Sarnosky, Sean Igoe t R nie Hamman and Diane Moudouris, and John Richards, Alternate. f It appearing that notice of the hearing has been given by sending notice to the petitioners and all lofthose owners of property deemed to be affected thereby, and to the public by posting notice of e hearing and published in The Register, the hearing was opened and held on the date stated above. r The applicant seeks a Special Permit from bylaw §411, 1LO.A.D. in order to construct an additional commercial retail building on the existing site. Prior to the commencement of a hearing on the merits, the petitioner requested of the Board leave to withdraw this petition, without prejudice. Since no objection to the request was made, a motion was made by Mr. Sarnosky, seconded by Mrs. Moudouris to allow the petition to be withdrawn, without prejudice. The Board members voted unanimously in favor. The petition was withdrawn without prejudice+ David S. Reid, Cleric Board of Appeals i 1 I 1 j t i oy om­ �u I TM OF YARMOUM BOARD OP APPEALS Piled with Town Clerk: AUG 81• 968 Hearing Date: June 20, 1963 11 Tuly 1111 1963 Petitioner: Presalde Realty Trust Petition #633 Rtbert A. Metz Trs: DECISION The -petitioner requested permit to allow the maintenance of presently existing signs at the Rooster Restraunt, Albert A. netz Tra., located on the northerly side of Route 269 West Yarmouth; hembers of Board of Appeals present: - Harold L. Hayes Jr. Albert E. Webb Alexander Catto Kenneth H. Studley H. Stuart Ryder It appearing that notice of said hearing'has,been given by sending notice there-' or to the petitioner and all those owners of property deemed by the Board to be affectesi thereby, . and that public notice of such hearingbnlFP g bean given by i publication in the Cape Cod Standard Times on 5/30 & 6/6/63, the hearing was opened and held on the date first above written. The following appeared in favor or the petition: Atty. John Hart representing �resalde Realty Trust The following appeared in opposition: None Reason for Decision: It appeared at the hearing that the petitioner is the owner of a restaurant an Route 2$, West Yarmouth, which was formerly known as "Dannyls" The same premises wars in prior years known as the "Silver Sea Horse," It appeared from the petitioner that there was a rooster on the building which the building inspector said was a sign. This did not in any way appear to detract from the building but there was no evidence offered at the hearing to indicate it was other than 'a .sign, There also appeared in evidence a photc,16Taph which was filed by the petitioner which showed the sign in question. It consisted of a standard which was of a rather large size with a large sign on top indicating a rooster and the marquee type of sign which stated, "Openjto 1 Dine 5 10 Star Tony Snell Dance Toga Hall" and attached to the same standard was a further sign which had the lettering, "cocktails food." It appeared at the hearing that two 4 by'6 ft, signs had been previously granted. It did not appear that these grants were made by the Board pt Appeals but rather it was indicated that these signs were approved by a former building Inspector. It was argued to the Board that there was a third sign and that the previous•ownerjhad stated this further sign was 4 by 6 ft. It appeared from the buildingIinspector that the total square footage of the signs involved was some 147 square feet, It was argued to the Board that the existing sign was approximately the square footage of the previously existing signs. I It did not appear at the hearing that the previous signs were in conformity with the zoning law of the Town of Yarmouth, The Board considered all the evidence presented in the most favorable light towards the petitioner's request. However, the Board could not find that a substantial hardship existed to the petitioner as it was clear to the Board that this business o*eration could function without the signs as presently exist an the premises. The Board also found that there was no evidence `to indicate that the previously existing signs � I conformed to the soaring by 1a I of the t(nm of Yarmouth. The Hoard also finds that in the event this request for a variance is granted that other business establishments in the vicinity could rightly feel that they should be treated in thb same manner as was this petitioner and there- fore that they could reason to this Hoard that previously illegal signs should be given consideration in validating a request for a variance. The Hoard further finds that the intent of, ;the zoning by law stantially derogated from were this request granted Therefore the request for a variance is denied _and it is the joard that the petitioner must aonfotm with the zoning by law of armouth. Members of Board voting: 1(arold L. Hayea Jr. In opposition H. Stuart Ryder ;in opposition Albert Webb ' ixi opposition Ale=ddr Catto in opposition Kenneth H. Studley ifi opposition Therefore, the petition for e4Ppraval is denied. i Kenneth H. Studley Clerk would be nub- ; opinion of this the town of