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Home My WebLink AboutDecision 3723 928 Route 28Doc:866, 504 04-01-2002 11 :35 BARNSTABLE LAND COURT REGISTRY TOWN OF YARMOUTH BOARD OF APPEALS fluMI!1-3]7x+�ILlI: FILED WITH TOWN CLERK: December 20, 2001 PETITION NO: #3723 HEARING DATE: December 13, 2001 PETITIONER: Bloadie's Ice Cream YMMOt,TH Towl'i ("I !ARK � gm? HAD I I DII If! I I RECEWED OWNER: Louis R. Nickinello, Trustee Mckiuello Realty Trust at Bass River PROPERTY: 928 Route 28, South Yarmouth Map: 41 Parcel: 21(35/W3) Zoning District: 112 MEMBERS PRESENT AND VOTING: David Reid, Chairman, John Richards, Joseph Saroosky, Diane Moudouris, Richard St. George, Richard NeR4 Alternate. It appearing that notice of said hearing has bem► given by sending notice thereof to the petitioner ' wid 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 Tine Register, the hearing was opened and held on the date stated above. The petitioner owns and operates a retail ice cream shop within a multiple building business• center, north of Route 28, in the 132 zoning district. The business is an allowed use, being made - , within a pre-existing non -conforming silo. The "center" presently has two (2) fine standing signs, along Route 28, as well as various signs attached to the various businesses within the property. t Recently, the petitioner had constructed, adjoining the steps and entrance to his business, two (2) ice cream cone sculptures. Each is approximately 4' tall, and each stands on either side of the steps to the deck landing to the main entrance of the premises. The sculptures are located a considerable distance back from Route 28, and they, Nice the business, face the adjoining property, not Route 28. The adjoining property to the east houses a separate business, but is owned by the same party which owns the petitioner's center. .._.__. �. _.._.. Because these sculptures, designed to look ice ice cream cones, relate directly to the petitioner's business and product, the Sign`Code'Inspector has'detennined that they also'qualify'as'signs; ---- -- -- under the sign code. The sculptures do comply with bylaw &303.4.1 (unlettered sculptures) but do not comply with §303A.5.2. free standing signs, becausp this business center already has its free standing sign at another location. 4- The Building commissioner has determined that the applicant will need a Special Permit under § 104.3.2, in order to be permitted to retain these "signs", as well as the pre-existing signs. The Board reviewed at length the provisions of the sign code and finds significant ambiguity among its provision as to such "sculptures"- It would appear that such unlettered sculptures are allowed, provided they meet the set back and dimensional limits of §303.4.3. However, if they also are sufficiently related to the owner's business, they also qualify as free standing signs, under §303.4.5 and the definition of a "sign" in the bylaw. There is general agreement by the Board members (and the applicant and Building Inspector), that these particular "sculptures" are not located in a position where they are intended to be viewed primarily by those off of the premises, but are rather intended principally as a decoration to be enjoyed by existing patrons. However, they are readily visible off of the premises. They are not distasteful or constructed in any obtrusive manner- The site itself is unusual relative to this business enterprise, as it is set back from the road and oriented away from the public way. The Board tnembers are also satisfied that the retention of these "signs„ will not cause any undue nuisance. hazard or congestion to the ncrghborhood. The sign themselves canform to the size and location rcquin=Ws of the bylaw. Strict enforcement of the bylaw would cause a financial hardship to the applicant, because these were constructed. at considerable expense, without knowing that the sign code would apply to them. While ordinarily simple ignorance of the bylaw would not be a sufficient basis for such retie£ as there has existed some legitimate confusion in the interpretation 'of the bylaw itself. greater consideration may be warranted in this circumstance. However, henceforth it will be expected that such structures will always need to comply first with §303.4.1, and if they also qualify as a "sign", relative to the particular business. they will also need to comply with the other applicable sign bylaw provisions (including §303.4.5 for five standing signs). Based upon these findings and circumstances, a motion was made by Mr. St. George. seconded by Mrs. Moudouris, to grant the requested Special Permit, so as to allow these two (2) particular • "signs" to remain at this location for this business. Upon the motion, W. St. George, Mr. Richards, Mr. Sarnosky, Mrs. Moudouris, voted in favor. Mr. Reid voted in opposition. The Special Permit was therefore grunted. 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 e4OA section 17 and must be filed within 20 days after Sling of this noticcldecision with the Town M& UW= oth=w provided t=c:'% the Special Permit shall lapse if a substantial use thereof has not begun within 24 months. (See bylaw 6103.2.5. MGL c4OA 69) Unless otherwise provided herein. a Variance shag lapse if the rights authorized herein are not excised within 12 months. (See MOL WA § 10) - This de has been amended to comet the clerkal omission of the naive of the propen(y�r own . David P.. Reid, UPWhalo -2- TOWN OF YARMOUTH TOWN CLERK CERTIFICATION OF TOWN CLERK 1, George F. Barabe, Town Clerk, Town of Yarmouth, do hereby certify that 20 days have elapsed since the filing with me of the Board of Appeals decision #3723 and that no notice of appeal of said decision has been filed with nw, or, if such appeal has been filed it has been dismissed or denied. GcorgeAF. Barabe Town Clerk Clerkcertification.wpd Appeal H3723 THE COMMONWEALTH OF MASSACHUSETTS TOWN OF YARMOUTH BOARD OF APPEALS Date: January 10, 2001 Certificate of Granting of a Special Permit - (General Laws Chapter 40A, Section 11) The Board ofAppeals ofthe Town of Yarmouth Massachusctts hereby certifies that a Special ' Permit has been granted To: Jlm Maglioccn's Memory Lane, Inc. dbe Rlondia's lee Cream Address: 928 Route 28 City or Town: South Yarmouth, MA 02664 affecting the rights of the owner with respect to lead or buildings at: 928 Route 28, South Yarmouth. Assessor's Map: 41 Parcel: 21, (3SlW3) Zoning District:112, and the said Board ofAppeals further certifies that the decision attached hereto is a true and correct copy ofits decision granting said Special Permit, and that copies of said decision, and of all plans referred to in the decision, have been filed. The Hoard 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 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 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 ofrecord 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. CERTIFICATE-S.P.WPD