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HomeMy WebLinkAbout4855 3 Rogia Road Decision Daycare Recorded 02.03.21- - a TOWN OF YARMOUTH YARMOUTd TOWN CLERK C BOARD OF APPEALS DECISION `�`�• '20OCT7PK5:20 REC Bk 33755 Bs311 =8129 FILED WITH TOWN CLERK- October 7, 2020 02-03-2021 & 10 x 36a PETITION NO: #4855 HEARING DATE: September 10, 2020 PETITIONER: Luiz Carlos P. Teixeira and Rosangela Pereira Teixeira PROPERTY: 3 Rogia Road, West Yarmouth, MA Map & Parcel: 0037.9; Zoning District: R-25 Book/Page: 32702/258 MEMBERS PRESENT AND VOTING: Steve DeYoung, Chairman, Sean Igoe, Dick Martin, Thomas Nickinello, and Tom Baron. 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 Register, the hearing opened and held on the date stated above. The Petitioners are Luiz and Rosangela Teixeira, both of 3 Rogia Road, West Yarmouth, MA. This property is located in a Zoning District R-25 and the applicants are seeking two forms of relief, 1.) a Special Permit under Zoning By-laws §§ 202.5 and 500 [relating to Use Table use (P7-A)]. This requested relief is in connection with the Petitioners' desire to operate a Family Home Daycare at this location, and, 2.) The Petitioners seek a Variance from By-law §500 so as to have an increase in the number of children to be cared for at this site from 6 to 10. The Petitioner, Rosangela Teixeira, did a fine job in presenting the merits of her Petition despite a language barrier and she was benefited by a translator, Ms. Mariana Costa who did an excellent job in translation and advocacy for the Petitioner's. A myriad of abutters expressed opposition to the Petition either by appearing and testifying or by correspondence. The Petitioners, likewise, had people speak on their behalf and much correspondence was also submitted by persons in favor of the Petition. While some of the correspondence was read into the record, due to time, the lateness of the submissions and Covid constraints, the correspondence was, in part, summarized. The Petitioner indicated that she runs a daycare at this location currently. Hours of operation are 7 AM-5 PM. This location has been inspected by the Commonwealth of Massachusetts and a State Permit for the daycare has been issued for up to 10 children. The Petitioners are currently in the present, the Petitioner's lack a Business Certificate from the Townprocess of some construction at the site for which they have properly obtained a Building Permit. At such. . They were admonished to obtain Scanned with CarnScanner The Petitioner explained that her yard enclosure was with vinyl clad fencing of the outer rimeter the yard and with separation enclosures within the perimeter. This is to allow for separation of thof e children while outdoors and in play so that they could be watched more closely. The Petitioner explained that there was a lock mechanism on the fence gate which would assure that the children would not leave the yard during playtime. The Petitioner responded to anticipated complaints concerning the operation of the daycare and the driveway where children are dropped off and picked up. She proposed a staggered system of drop-off and pick-up of children which would help to assist in reducing cars in the driveway at any one time. Persons speaking in opposition spoke eloquently and expressed their concern that there were too many children being cared for at the site, their desire not to have a business in a residential neighborhood and concerns with traffic along Rogia Road which is itself a dirt road and which becomes dusty when cars travel over it with frequency. Due to the current driveway situation at the site, cars leaving the property often have to back out onto Baxter Road, a heavily traveled road which could lead to motor vehicle accidents. As well, persons speaking in favor of the requested relief spoke from both experience with the Petitioners and that which they obtained through their own involvement in childcare. Each person speaking in favor of the Petitions was, like those in opposition, quite eloquent and sincere in their support for the Petition. There was much discussion by those who wanted to speak in opposition, in favor and amongst the Board members as to their thoughts about the Petition. Generally, Board members felt that, while it was understandable that some neighbors would object to a commercial enterprise in a residential neighborhood, the Town Meeting members were very clear in their vote to allow such businesses to be nun in residential areas and specific in the number of children who could attend an in -home daycare. The Town Meeting members gave a clear mandate to the Board by the incorporation of the By-law Provisions relating to family day care operations. Board members were generally opposed to the idea that the operation of this daycare would commence at 7 AM. They were also concerned for the manner in which parents' autos would enter and leave the home's driveway. While supporting the idea of a daycare operation, it was felt that 10 children at this home daycare was contrary to the Zoning By-laws meaning and intent. After due discussion and deliberations the Board proceeded with the request for the grant of a Special Permit with the understanding that a Special Permit, with conditions, could be granted while meeting the provisions of By-law § 103.2.2. criteria. With limitations on the operation the Board found that no undue nuisance, hazard or congestion will be created by the grant of a Special Permit and there will be no substantial harm to the established or future character of the neighborhood or Town. Mr. Nickinello moved that the Board approved the request for the Special Permit on the following conditions: I.) That the Petitioner's reconfigure the driveway so that customers' motor vehicles will be able to make an internal turn after entry to the property so as to permit them to drive out of the lot as opposed to back onto Baxter Road and/or Rogia Rd.; 2.) That the Petitioner schedule staggered drop-offs (7-9 AM) and pickups (3-5 PM) of the children so that no more than one such pickup/drop-off occurs at any one time; 3.) That a Building Permit be obtained for the construction in the basement of the property with an Occupancy Permit to be obtained before any daycare use; 4.) That the Petitioner comply with all State required approvals and obtain a Town of Yarmouth Business Certificate which is to be in force at all times; 5.) That the daycare comply with the Zoning By-law that requires that no more than six (6) children be in the daycare program at any one time; 6.) That the hours of operation be between 7AM and 5 PM on Monday through Friday only; and, 7.) That the grant of this Special Permit be reviewed at one year intervals for the next 2 years. Upon this Motion, with the stated conditions, the Board 2 Scanned with CamScanner voted by roll call vote with four in favor one opposed to grant the Special Permit with the votes being as follows: Mr. Igoe -aye, Mr. Nickinello-aye, Mr. Martin -aye and Mr. DeYoung-aye with Mr. Barron - nay. Therefore, the Special Permit with the stated conditions was allowed. The Board then took up the matter of the request for a Variance. The Variance specifically seeks to allow 10 children to attend the daycare when the current zoning regulation allows only 6 children. The Petitioner notes that she is permitted to have up to 10 children under her license from the Commonwealth of Massachusetts and that she has a co-worker whose position would be lost if there could only be 6 children. When it came time to consider the Variance, Mr. Igoe and Mr. DeYoung spoke against any Variance from the 6 child limitation that was adopted by Town Meeting. Feeling that the By-law was clear and unambiguous that only 6 children could be cared for at a daycare within a residential community, Mr. Igoe and Mr. De Young acknowledged that they would not support the Variance. The Board, during its discussion found that there was no hardship that warranted the grant of a Variance and that should it be granted, it would derogate from the intent and purpose of the By- law. A Motion was made by Mr. Igoe to deny the request for a Variance as prayed for within the Petition. Mr. Nickinello seconded this Motion and the Board proceeded to a roll call vote resulting in the following: Mr. Martin -aye, Mr. Nickinello-aye, Mr. Barron -nay, Mr. Igoe -aye and Mr. DeYoung- Aye. Accordingly, the Motion to deny the request for a Variance was passed on a 4-1 vote to deny the request and the Variance was therefore denied. 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) Steven' S. De Youngirman Scanned with CamScanner .YAA— COMMONWEALTH OF MASSACHUSETTS TOWN OF YARMOUTH BOARD OF APPEALS ' ry •V f Appeal #4955 Date: October 27, 2020 Certificate of Granting of a S ial 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: Luiz Carlos P. Teixeira and Rosangela Pereira Teixeira 3 Rogia Road West Yarmouth, MA 02673 Affecting the rights of the owner with respect to land or buildings at: 3 Rogia Road, West Yarmouth. Map & lot#: 0037.9; Zoning District: R-25; Book/Page:32702/258 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 Permitany , or 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. Steven S. De ng, Chairman Scanned with CamScanner TOWN OF YARMOUTH Town 1146 ROUTE 28, SOUTH YARMOUTH, MASSACHUSETTS 02664-4451 Clerk Telephone (508) 398-2231 Ext. 1285, Fax (508) 398-0836 CERTIFICATION OF TOWN CLERK 1, Mary 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 #4855 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. ;ARNSTABLE REGISTRY OF DEEDS Jahn F. Meade, Register Scanned with CamScanner