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HomeMy WebLinkAboutDecision 3902 934 Route 28TOWN OF YARMOUTH BOARD OF APPEALS DECISION FILED WITH TOWN CLERK: June 22, 2004 PETITION NO. #3902 HEARING DATE: June 10, 2004 PETITIONER: Duke Khoury Y,"-.. M0UTH TOWN CLERK 2mq AID 22 N 2 11 RECEIVED PROPERTY: Bass River Sports World, 934 Route 28 SY Assessors Map & Lot: 41.32.1 (35/W14) Zoning District: B2 MEMBERS PRESENT AND VOTING: David Reid, Chairman, Joseph Sarnosky, Sean Igoe, Robert Reed, Debra Martin. It appearing that notice of said hearing has been given by sending notice thereof to the petitioner and all those owners of property deemed by the Board to be affected thereby, and to the public by.posting notice of the hearing and published in The Register, the hearing was opened and held on the date stated above. The petitioner seeks to overturn the decision of the Building Commissioner, relative to the commercial property known as Bass River Sports World. The "decision" appealed from is the Building Commissioner's memorandum dated April 23, 2004, addressed to the Town Administrator. The petitioner is a resident at 188 Winslow Grey Road, West Yarmouth. This property is located some distance from the subject property, across Swan Pond. The petitioner complains about two (2) particular developments at the property. First, the poles and netting in the center of the property which are reportedly 80' tall, and the "stadium style" light, both of which are visible off the site, across the pond, and on to his and nearby properties. The Bass River Sports World site is a mixed recreational use property, on Route 28, South Yarmouth. It has been the subject of numerous prior petitions to the Board of Appeals, over the past forty (40) years. It houses a miniature golf course, a golf driving range, baseball batting cages, a soccer cage, an arcade building and the recently added outdoor skateboard park facility (see decision #3826). In connection with the construction of the skateboard park, the property owner moved the driving range further to the west, and re -aligned the lights to that area. At the same time, additional lights were added to each fixture (cluster), increasing each sets wattage from 1500 watts to 2000 watts. Separating the driving range from the new skating area is a series of poles, with netting strung between, to collect and control golf balls hit on the range. These poles and netting are reportedly 80' tall, and can clearly be seen above the tree line from the petitioner's home, and the range lights can clearly be seen through the trees and across the pond. As for the lights, the Building Commissioner indicated that the same type of lighting, and the same height poles, were necessarily relocated when the driving range was relocated, as depicted on the 2003 site plan (the relocation of the lighting is not depicted on the plan, but the range is). The additional watts of light output were not considered to have been a change or extension of the existing use, to the extent necessary to require additional relief. At the site, the lights are directed downward, and onto the range. The property owner verified this information and design. In addition, while there are light control regulations applicable to parking lots, there are none in the bylaw which regulate other area lights, such as these. The Building Commissioner therefore did not consider the lights to violate either the prior decision or the bylaw. The neighbors, in addition to the petitioner, spoke and wrote letters in support of this petition. They related the stark impact on the homes for the visible netting and poles during the day and the bright lights at night time. The representative of the property owner questioned the standing of the petitioner to bring this petition, noting that (1) he is a resident at, but not an owner of the property he occupies, and (2) his property is so far away from the locus that no particularized legal injury can be present or proven. The majority of the Board found that the petitioner did have sufficient standing. While the remoteness of his premises would ordinarily have been fatal on this issue, the open space of the pond did make the visual impact of the premises particularly significant to the petitioner. However, the Board felt that the matter was not properly within its enforcement jurisdiction. The petitioner has never, verbally or in writing, actually made an enforcement request to the Building Commissioner. The memorandum appealed from is not a decision on an enforcement request, but rather a report to the Town Administrator. The petitioner had expressed his concerns to the Selectmen at one of their meetings, but this is not sufficient to commence a formal enforcement action under the Zoning Act. The Board therefore expressed doubt that it had the authority to issue any definitive directive to the Building Commissioner, at this time. Nevertheless, in light of the lengthy hearing, and sincere concern expressed by multiple residents about the site, some of the Board members did think it appropriate to respond to the concerns which arose during the hearing. Members voiced concerns and preferences that the lighting of the range could be better controlled so as to avoid the impact upon the remote neighborhood. Relocation or realignment of some of the fixtures, or perhaps lessening the watts, or shielding the fixtures, could have lessened, if not avoided this problem. Based upon the representations that the poles and netting represented equivalent structures to those that existed on the driving range boundary at the time of the 2003 Special Permit, some Board members were inclined to concur with the Commissioner that their relocation fell within the scope of the 2003 decision. The Commissioner also relied upon the 1969 Special Permit, which authorized such 80' poles in the first place. Members expressed their belief that the 1969 permit had not expired, as claimed by the petitioner. However, if the 80' poles had not actually existed in 2003, members felt that the 2003 decision would not have intended it (the 1969 decision) to have been used at the new location. The 2003 decision did not mention the height of the poles, but also did not mention that decision. Therefore only the relocation of conforming poles or poles equivalent to what then existed was intended by the 2003 decision. Finally, during the course of the hearing, it became apparent that the skate board park and inline skate facilities actually constructed were significantly larger than shown on the 2003 site plan. The property owner and Commissioner apparently felt that the decision authorized the "use", not 2 "The property owner and Commissioner apparently felt that the decision authorized the "use", not the specific physical location or size. Some members, however, felt that the 2003 decision did specifically reference and incorporated the site plan, which did show a defined area for the intended construction and therefore the substantial deviation from it should have been reviewed by the Board prior to its construction. This issue was not actually before the Board, at this time, so no action is taken by the Board, other to express this concern. In light of the Boards concern about its authority to proceed on the petition, the petitioner asked to withdraw the petition without prejudice. A motion was made by Mr. Igoe, seconded by Mr. Sarnosky, to allow the petition to be withdrawn without prejudice. The members voted unanimously in favor. V David S. Reid, Clerk