HomeMy WebLinkAbout5192 539 and 545 Higgins Crowell Rd Decision Recorded with HazMat MemoDoc:1,533,462 11-06-2025 10:32
TOWN OF YARMOUTH
'
BOARD OF APPEALS
1
DECISION
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FILED WITH TOWN CLERK:
October 15, 2025
PETITION NO:
HEARING DATE:
PETITIONER:
PROPERTY OWNER:
5192
September 25, 2025
Stewart Painting, Inc.
Stewart Properties, LLC
PROPERTY: 539 & 545 Higgins Crowell Road, West Yarmouth, MA
Map 74, Parcel 17 and 18
Zoning District: B-3, APD
Land Court Plan No.: 28808-D & 28808-E
Combined Lot Size: 29,660 sq. ft.
MEMBERS PRESENT AND VOTING: Chairman Sean Igoe, Dick Martin, John Mantoni,
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 subject properties are located at 539 and 545 Higgins Crowell Road, West Yarmouth, MA
02673 (hereinafter "Property"). The Property consists of two parcels of land shown as Parcels 17
and 18 on the Town of Yarmouth Assessor's Map 17. The Property is located in the B-3 Zoning
District. It is also located in the Aquifer Protection District and shown as Lot 9 on Land Court
Plan No. 28808-D and Lots 11 and 12 on Land Court Plan No. 28808-E.
At the time of Petitioner's application for Special Permit, the Property was owned by John A.
Vellone, Jr., Trustee of the John A. Vellone, Jr., Revocable Trust ("Trust") and The Vellone
Family Limited Partnership ("Limited Partnership") pursuant to Deeds recorded in the
Barnstable Land Court Registry as Document Nos. #1,467,360 and #820,794. The Trust and
Limited Partnership provided signatures of support on the Petitioner's application for Special
Permit. At the time of the hearing on Petitioner's application for Special Pen -nit, the Property
was owned by Stewart Properties, LLC pursuant to Deeds recorded in the Barnstable Land Court
Registry as Document Nos. #1,530,113 and #1,530,116. Prior to the hearing, a letter in support
of Petitioner's application was submitted by Stewart Properties, LLC, and three letters of support
were received from abutters.
A TRUE COPY ATTEST:
C"1!ary I CMC / TOWN CL.EPK
NOV - 5 2025
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The Petitioner, Stewart Painting, Inc., seeks to establish its award -winning family -owned
painting, power washing, and carpentry business at the Property. The Petitioner proposes to
utilize the existing commercial building at 539 Higgins Crowell Road, and associated nine (9)
parking spaces, including one (1) handicapped space, as a business office and storage area for
equipment, materials, and up to eight hundred (800) gallons of hazardous materials used in
connection with the Petitioner's business. A Special Permit is required as the amount requested
(800 gallons) exceeds that of normal household use. The proposed use of 539 Higgins Crowell
Road is tantamount to a contractor's yard, a D 1 use.
The Petitioner proposed utilizing the property located at 545 Higgins Crowell Road for storage
of non -hazardous materials, equipment, and parking of company fleet vehicles. The proposed use
is tantamount to a contractor's yard, a D1 use. Pursuant to Section 202.5 (Q) of the bylaw,
parking for more than two (2) cars is allowed in the B3 and APD as of right. The storage of non-
hazardous materials and equipment is allowed by virtue of Special Pen -nit No. #3820.
The Petitioner proposed having between thirteen (13) and sixteen (16) employees utilizing the
Property during a normal business day. At the hearing, Petitioner presented parking sketch plans
indicating where the company fleet vehicles would park on 545 Higgins Crowell Road. The
Petitioner disclosed that occasionally "all -hands" safety meetings will be conducted at the
Property, and in those instances, all company employees, including "remote" employees, would
attend and be directed to park on 545 Higgins Crowell Road with the fleet vehicles.
The Petitioners' proposed D1 use is allowed in the B-3 Zoning District as provided in Section
202.5 of the Bylaw, but a Special Permit for the use is required under Section 406 of the bylaw
because the Properties are located in the Aquifer Protection Overlay District and because the
Petitioner proposes to store quantities of toxic or hazardous materials in excess of those stored in
ordinary household use.
The Petitioner is seeking the following relief:
1. Petitioner is seeking a Special Penn it pursuant to Section 202.5 and as allowed by
Section 406 to allow a contractor's yard in the B-3 Zoning District and Aquifer
Protection Overlay District.
2. The Petitioner requests a waiver from the requirement of providing a Site Plan/Plot Plan
less than two years old.
The Petitioner, through its representative, presented evidence establishing how its proposed uses
of the Property (539 and 545 Higgins Crowell Road) as a contractor's yard complied with the
Special Permit requirements set forth in Section 103.2.2 and Section 406 of the Zoning Bylaw.
Specifically, the Petitioner established that the proposed uses have been well vetted by the
Yarmouth Board of Health, which issued a memorandum dated September 15, 2025, revised
September 17, 2025 ("the Memorandum") regarding the Petitioner's proposed onsite operations
within the Property, including but not limited to the indoor storage of up to 800 gallons of liquid
hazardous materials with secondary containment, the indoor washing, cleaning, and servicing of
company equipment, and onsite motor vehicle oil changes provided by the Petitioner's third -
party vendor. A TRUE COPY ATTEST:
CMN;u f CMNOVI %JK
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The Petitioner's proposed uses, more detailed in the Memorandum, require a Special Permit in
the APD. The Petitioner demonstrated that on August 18, 2025, the Petitioner appeared before
the Board of Health, which unanimously voted to recommend the proposal, finding that it
adequately controlled all hazardous materials and protected the intent of the APD bylaw. In
addition, the Petitioner's proposed forms of secondary containment and spill response plan will
adequately protect against toxic or hazardous materials discharges or spills.
This Board was impressed with the thoughtful Memorandum drafted by Carl E. Lawson Jr., the
Hazardous Materials Inspector, Yarmouth Health Department. The Board was satisfied that the
Petitioner's proposed uses would meet the requirements under the Bylaw for the issuance of a
Special Permit with the imposition of the conditions and regulations recited in the Memorandum.
As such, the Memorandum is hereby incorporated into this Decision in its entirety.
Regarding the request for Special Permit, the Board agreed that no undue nuisance, hazard, or
congestion will be created and that there will be no substantial harm to the established or future
character of the neighborhood or town. The Board was appreciative of the thoughtful work of the
Hazardous Materials Inspector, and to the Board of Health, in vetting the proposed uses and
found that the special additional Special Permit requirements of Section 406 have been met.
Chairman Sean Igoe proposed that a Motion be made regarding the requested Special Permit. A
Motion was then made by Dick Martin to approve the Special Permit requested, provided that the
conditions set forth in the Memorandum of the Hazardous Materials Inspector be incorporated
into the decision. Anthony Panebianco seconded the motion. A roll call vote was taken on this
Motion with the following results: Mr. Igoe - AYE; Mr. Martin - AYE; Mr. Mantoni - AYE; Ms.
Murphy - AYE; and Mr. Panebianco - AYE.
Accordingly, the Special Permit was approved on a 5-0 vote in favor, with the following
condition:
1. The Memorandum of the Hazardous Materials Inspector, dated September 15, 2025, and
revised September 17, 2025, is incorporated into this Decision in its entirety, and the
conditions set forth therein are conditions of the Special Permit.
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)
Sean Igoe, Chairman
A TRUE COPY ATTEST
C PAO /•CMG / TOWN CLERK
NOV — 5 2025
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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 ##5192 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.
/ � J
Mary A. Maslowski, MMC, CMMC
NOV - 5 2025
A TRUE COPY ATTEST
gw—*a- - wudi"4eh
CIMMG / CMG / TOWN GL K
NOV ` 5 2025
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Off' YAK COMMONWEALTH OF MASSACHUSETTS
0 TOWN OF YARMOUTH
` ; - e BOARD OF APPEALS
,� .
'MOTACHLESE
AO R AtE_\bQ
Petition #: 5192 Date: November 5, 2025
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: Stewart Painting, Inc.
PROPERTY OWNER: Stewart Properties, LLC
Affecting the rights of the owner with respect to land or buildings at: 539 & 545 Higgins Crowell Road, West
Yarmouth, MA; Map 74, Parcel 17 and 18; Zoning District: B-3, APD; Land Court Plan No.: 28808-D &
28808-E; Combined Lot Size: 29,660 sq. ft. 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 I 1 (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 fled 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.
Sean Igoe, Chainnan
A TRUE Copy ATTES-P
CMC / TOWN CLERK
NOV -° 5 2025
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o� TOWN OF Y A R M 0 U T 1 Jl BOARD OF
HEALTH
Hi 1 146 ROUTE 28. SOUTH Y`\RMOUTH, MASSACHUSFI-I'S 02604-2445I HEALTH
�^MATTACN[tl[` "� "Telephone (508) 398-2231, ext 1241 DIVISION
'�OR'pOAAi En%%O,Ns Fax (508) 760-3472
MEMORANDUM
TO: Zoning Board of Appeals (ZBA)
FROM: Carl E. Lawson, Jr., Hazardous Materials Inspector C L
SUBJECT: Zoning Board of Appeals Petition Number 5192
Stewart Painting Proposed Relocation
From: 68 Mercantile Way, Suite 1
Mashpee, MA 02649
To: 539 Higgins Crowell Rd., West Yarmouth, MA 02673
ORIGINAL_ DATE: September 15, 2025
UPDATED: September 17, 2025
ATTACHMENT: Photos of Secondary Containment for Hazardous Materials (taken
by Hazardous Materials Inspector during a visit to the Mashpee
location of Stewart Painting on 8-7-2025)
Background
Stewart Painting was founded in Barnstable in 1984 by Sheldon Stewart, the current
company president. The business offers interior and exterior painting, power washing,
and carpentry services to residential and commercial customers.
Proposal
Stewart Painting was formerly located at 379 Route 28 / Iyannough Rd. in Hyannis. A
fire at this multiple unit commercial building on March 12, 2025, required Stewart
Painting to temporarily relocate to 68 Mercantile Way, Suite 1 in Mashpee.
Stewart Painting proposes purchasing the commercial property at 539 Higgins Crowell
Rd., West Yarmouth, (presently the site of Ford Diamond Electric Supply) and
permanently locating the business at this site. The location is within the Aquifer
Protection District (APD) for the Town's drinking water supply.
The size and type of operation will not change with the proposed new location.
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RegulatorV Items
Zoninq
Stewart Painting is required to apply for zoning relief with the Zoning Board of Appeals
(ZBA) for toxic and hazardous materials storage of more than normal household
quantities, within the APD as outlined in YamTouth Zoning Bylaw Section 406.5.1.1 (3).
Normal household quantities are twenty gallons total for an operation.
Board of Health (BOH):
The Board of Health Regulation "Handling and Storage of Toxic or Hazardous
Materials," effective May 2, 1990, applies to the proposal from Stewart Painting with
annual licensure required as the planned quantity of materials is greater than the
licensing threshold of ten gallons.
Inspection of Present location in Mashpee
Stewart Painting Production Manager, Todd Piknick, assisted me with an inspection of
the company's present location in Mashpee on August 7, 2025. 1 found the business in
good order. Secondary containment volume for their 55-gallon drums of materials was
not in compliance with Yarmouth regulation, yet both Mr. Piknick and Mr. Stewart have
stated they are willing and able to achieve compliance with all Yarmouth regulations and
conditions.
Toxic and Hazardous Materials Delive
Ey
Toxic and hazardous materials including paint, stain, bleach, cleaners, and solvent will
be delivered to the site by truck transportation, or in some instances involving smaller
containers, brought onsite by staff. Deliveries occur during normal business hours and
are immediately brought inside the building. Containers of new materials are delivered
in various containers sizes as listed below.
Paint and stain are purchased in containers up to five gallons in size, but usually one
gallon in size. Paint containers are carried by hand into the building. The paint may be
delivered to the business or brought onsite by staff.
Pool -grade bleach is delivered in shrink-wrapped, wooden pallets of 32 five -gallon
containers each for a total of 160 gallons per pallet. These pallets of bleach are
offloaded from the delivery truck by the driver who lowers the wooden pallets from the
truck to the ground using the truck lift gate. A pallet jack is then used to move the
wooden pallets inside the building.
Simple Green All Purpose Cleaner is purchased in 55-gallon drums. One drum is
Purchased at a time. The drums are offloaded from the delivery truck by the driver using
the truck lift gate and then brought inside the building using a hand truck.
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Jomax House Washing Solution is purchased in cases of 4 one -gallon containers which
are carried by hand into the building.
Solvent is purchased ii container sizes of one quart or less and carried by hand into the
building. Most paint and stain used by Stewart painting is latex, which is water soluble.
Since little oil -based paint is used, very small quantities of solvent are used.
Toxic and Hazardous Materials Storage
All toxic and hazardous materials will be stored inside the building and within secondary
containment that complies with Yarmouth regulation of 150% volume secondary
containment.
There are several means by which secondary containment can be achieved for toxic
and hazardous materials. An IBC (intermediate Bulk Container) Spill Containment Pallet
is a sturdy, raised plastic deck with secondary containment beneath. These units are
designed to capture and contain liquid material in the event of release from containers
stored on the IBC Spill Containment Pallet deck. In the event of a release of liquid
material, the liquid will flow through and/or around the deck and into the containment
area below. Standard (non -IBC) Spill Containment Pallets have a typical deck height of
about six to ten inches, whereas an IBC Spill Containment Pallet has a deck height of
about thirty inches. Standard Spill Containment Pallets also have much less sump
(liquid) capacity than IBC Spill Containment Pallets, but the lower deck height facilitates
easier loading and unloading. A standard Spill Containment Pallet presently in use by
Stewart Painting has an optional ramp which allows drums to be placed on the spill
control pallet using a hand truck.
New Materials
At their present location, Stewart Painting uses two IBC (Intermediate Bulk Container)
Spill Containment Pallets for containing five -gallon containers of pool grade bleach. The
five -gallon containers of bleach are manually loaded by staff onto two IBC Spill
Containment Pallets. Each IBC Spill Containment Pallet has 385 gallons of liquid sump
capacity and presently stores up to 160 gallons of pool grade bleach. Therefore, this
arrangement complies with and exceeds the 150% secondary containment requirement.
385 gallons of IBC Spill Containment Pallet sump capacity /160 gallons of liquid chlorine
stored = 240% volume secondary containment.
Oil -based paints, oil -based stains, and solvents will be stored inside flammables
cabinets with secondary containment provisions. Options under consideration by
Stewart Painting are a concrete secondary containment area or a spill control pallet.
Flammables cabinets usually contain some sump capacity which will be evaluated by
the Health Dept. with respect to the volume of material stored. This volume is variable,
but low.
The 55-gallon drum of Simple Green All Purpose Cleaner will be stored within a "Poly
Dolly," which is a sturdy plastic transport hand truck with integral sump capacity.
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House washing solution, latex paint and any other small miscellaneous items will be
stored in plastic secondary containment totes.
Waste Materials
Stewart Painting employs two waste streams as listed below.
A mix of oil paint, latex paint and waste solvent is stored in a 55-gallon drum. Waste
paint results from mistakenly tinted paint or left over colors. These waste paints are
donated whenever possible, but sometimes disposal is required. When a drum is full, a
new empty drum is utilized.
Wastewater that accumulates from the cleaning of paint brushes, and paint sprayers are
also stored in two 55-gallon drums. When one drum is full, a new empty drum is utilized.
Once there is one full drum of waste paint/solvent or two full drums of wastewater,
removal service by Clean Harbors, a licensed hazardous waste hauler, is requested.
All 55-gallons drums are presently stored on a spill control pallet, but the containment
volume is not in compliance with Yarmouth regulatory requirements. Therefore, the 55-
gallon drum of Simple Green Cleaner will be stored on a "Poly Doly" as mentioned
previously. The three drums of waste material (one drum holding the mixture of oil paint,
latex paint and waste solvent and two drums holding wastewater) will each be placed on
a separate, polyethylene, six -drum, 88-gallon sump capacity, 10,000-pound load
capacity, spill control deck. A spill control pallet and a spill control deck are the same.
The six -drum designation refers to the number of drums that can be placed on the spill
deck, yet doing so would not comply with Yarmouth regulation for secondary
containment volume. Therefore, only placing one drum (55 gallons in size) on each six -
drum deck (with 88 gallons of sump capacity) will more than satisfy the regulatory
requirement.
Mr. Stewart confirmed his new building has the floor space to accommodate this
arrangement and has selected his spill deck supplier.
Toxic and Hazardous Materials Use
The use of toxic or hazardous materials will be only by present or future staff of Stewart
Painting. Materials are used at the job sites of residential and commercial buildings and
within the shop of the present and future business location. Within the shop, employees
paint items such as shutters.
Paint brushes are cleaned of latex paint by agitating the brushes across a series of
three successive plastic pails, each filled halfway with water. With treatment in each
successive pail the brushes become cleaner. The water is reused in the same manner
until it is fouled to the point of not being an effective cleaning agent. The wastewater is
then transferred to the wastewater drum for disposal.
4
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3) No outdoor storage of materials is allowed.
4) All materials must be protected from vandalism.
5) All materials must be stored inside secondary containment of 150% volume of
the total amount of materials stored.
6) Containers of materials must be stored in such a manner to facilitate visual
inspection of each container.
7) Any waste material must be properly disposed of by a licensed hazardous waste
hauler.
8) Absorbent material must be kept onsite for use in the event of spills.
9) Safety Data Sheets (SDS) for each toxic or hazardous material must be
maintained onsite and be readily available.
BOH Hearing and License Condition Recommendations
Mr. Sheldon Stewart, owner of Stewart Painting, presented his proposal to the BOH at
their meeting on August 18, 2025, After discussion, the BOH approved recommending
the proposal of Stewart Painting to the ZBA by a unanimous vote with four members
present and voting. This recommendation is based on the ability of the business to
comply with the Town of Yarmouth Board of Health Regulation: "Handling and Storage
of Toxic or Hazardous Materials" and based on the following four (4) conditions listed
below. These conditions are in addition to the strict scope of the regulation and are
intended to provide additional protection for the APD.
1) The maximum allowed total combined storage of toxic and hazardous materials
is 800 gallons.
2) A detailed material spill containment plan must be conspicuously posted at all
times, and all employees must be familiar with the plan.
3) A sufficient supply of inert absorbent must be maintained onsite for use in the
event of a spill.
4) No vehicle washing or repair is allowed onsite other than the vehicle oil changes
provided by their service vendor.
The Board of Health and Health Department respectfully request that if this proposal is
approved by the ZBA, the preceding four (4) conditions please be included in any ZBA
Decision. Furthermore, if the proposal is allowed by the ZBA, these items will be
included as conditions of the annual Board of Health license for Stewart Painting.
(l
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Stewart Painting 68 Mercantile way, Suite 1, Mashpee, MA 02649 8-7-2025
Five -gallon containers of pool -grade bleach with secondary containment provided by an IBC
(Intermediate Bulk Container) Spill Containment Pallet. This arrangement of secondary containment
with a 385-gallon sump (liquid) capacity and 160 gallons of storage of liquid chlorine exceeds the
requirement of Yarmouth Board of Health Regulation.
Four 55-gallon drums placed on a standard spill control pallet. This storage arrangement does not have
the secondary containment capacity required by Yarmouth Board of Health Regulation. Stewart
Painting has selected a larger secondary containment arrangement for their Yarmouth location that will
comply with Yarmouth Board of Health Regulation.
JOHN F. MEADE, ASSISTANT RECORDER
BARNSTABLE REGISTRY LAND COURT DISTRICT
RECEIVED & RECORDED ELECTRONICALLY