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Home My WebLink AboutTaco Bell Attorney Wrriten Statement Received 04.08.26RECEIVED APR 0 8 2026 YAr2MOU7H BOARD OF APPEALS TOWN OF YARMOUTH ZONING BOARD OF APPEALS APPLICATION FOR SPECIAL PERMIT for DESERT DE ORO FOODS, INC. Respectfully Submitted, Christopher J. Kirrane, Esq. DUNVING, KIRRANE, McNICHOLS & GARNER, L.L.P. P.O. Box 560 Mashpee, MA 02649 April 9, 2026 BACKGROUND The Petitioner, Desert De Oro Foods, Inc., is the potential owner and developer of a currently developed parcel of land situated at the corner of Station Avenue and Old Town House Road, being 433, 437, and 439 Station Avenue. The Petitioner is proposing to raze the existing pre-existing, non- conforming buildings on site to allow for the construction of a 2,094 sq. ft. Taco Bell with indoor seating for eighteen (18) and a drive -through window. The Petitioner has applied for a Special Permit under the following sections of the bylaw: (a) Section 104.3.2(3) - Special Permit to alter, extend, expand a pre- existing, non -conforming structure. (b) Section 104.3.5(2)(C) - Special Permit to combine lots. (c) Sections 202.5 and 406 - Special Permit required for an eating and drinking establishment in the Aquifer Protection Overlay District. (d) Section 301.2 and 301.4.3 -- Special Permit required for drive -through window and to allow for a 13' wide travel lane where the maximum allowed is 12'. (e) Section 301.8 - Special Permit required to allow for a drive thru with 100' of a residential district THE SITE The site consists of two lots, being shown as Lots 1 and 2 on a Plan recorded at the Barnstable County Registry of Deeds in Plan Book 182, Page 87. Lot 1 is known as 433 Station Avenue (Assessors Map 88, Parcel 87), consists of approximately 17,005 square feet and has approximately 371.86' of combined frontage along Old Town House Road and Station Avenue. Lot 2 is known as 437 and 439 Station Avenue, consists of approximately 20,3030 square feet and has approximately of 100' frontage along Station Avenue and 19.74' of frontage along Old Town House Road. The site is currently developed with two buildings. Lot 1 currently has an operating service station and was previously accompanied by a gas station/gas pumps. Lot 2 has an office building on site. The site is located in the B-1 Commercial Zoning District and Aquifer Protection Overlay District. The building on Lot 1 is currently non -conforming in that it fails to meet the front yard setback to Old Town House Road (30' required; 16' existing) and the front yard setback to Station Avenue (75' required; 49.7' existing). The building on Lot 2 is non -conforming as to the front yard setback to Station Avenue (75' required; 64.7' existing) and the side yard setback (6' existing). The lot coverage for the two lots is currently a combined 13.2%. THE PROPOSED DEVELOPMENT The Petitioner seeks to raze the existing development on the site and replace the existing structures with one standalone building consisting of 2,094 square feet with a drive -through for a Taco Bell restaurant. The applicant also proposes indoor seating of eighteen (18). The proposed hours are 11:00am to 10:00pm for indoor dining and 11:00am to 2:00am for the drive -through. The new building will be 43' from Old Town House Road and 43.8' from Station Avenue. The new building will be more than 25' from the side yard and more than 20' from the rear yard, both of which are conforming conditions in the B-1 Zoning District. Lot coverage will also be less than the 25% maximum allowed at 5.6%. While the existing lot is almost entirely impervious between structures and concrete, the applicant proposes significant upgrades to the site with greenspace and stormwater management. A new I/A septic will be installed. The applicant also proposes significant mitigation to reduce negative traffic impacts and improve pedestrian access. The application has gone through the site plan review process, and the applicant provided a response letter to the comments made by the Site Plan Review Committee and made changes to the plans as needed. APPLICABLE ZONING As stated above, the site is impacted by two different Zoning Districts, the B-1 Zoning District and the Aquifer Protection Overlay District. While an eating and drinking establishment is generally allowed as of right in the B-1 Zoning District (Section 202.5(H 10)) a Special Permit is required where such use is located in the Aquifer Protection Overlay District. Pursuant to Section 104.3.2 of the Zoning Bylaw a Special Permit is may be granted to alter, raze, or replace a lawfully pre-existing, non -conforming structure if there is a determination by the Zoning Board of Appeals that the proposed alteration, razing or replacing will not be substantially more detrimental to the neighborhood, zoning district, or Town and that the proposal will not cause or contribute to any undue nuisance, hazard, or congestion and strict enforcement of the bylaws would result in undue hardship to the property or its owner. The applicant submits that the proposal improves site conditions and would not create a condition that would be substantially more detrimental to the neighborhood as follows: • Eliminates the front yard setback non -conformity to Old Town House Road • Eliminates the side yard non -conformity on Lot 2 • Reduces overall coverage of structures from 13.2% to 5.6% • Reduces pervious surfaces by approximately 7,144 sq. fit. • Increases greenspace, landscaping and vegetation on site • Improved stormwater management over what currently exists • Proposal will recharge more water than what is currently recharged on site • Improved wastewater treatment over what exists Improvements for vehicular and pedestrian access • The project reduces the number of curb cuts on site from the five (5) existing to two (2) which will improve operations at the intersection • Removal of a service station will be a benefit to the surrounding area • Combination of lots will create a more conforming single lot • Compatible with the area which is business and there is a nearby fast food eating establishment The proposed building, site and drive through is also subject to Section Article III of the Zoning Bylaw. Section 301.2 of the Zoning Bylaw allows for pre-existing, non -conforming structures to be expanded, altered or changed in use without complying with the general regulations of Article III of the Zoning Bylaw upon the grant of a Special Permit. Section 301.2 also provides for the approval of a drive -through window upon grant of a Special Permit. The applicant seeks a Special Permit to exceed the required 12' maximum width of a travel lane as required by Section 301.4.3. • Applicant is proposing a 13' wide travel lane to accommodate delivery trucks. The applicant also seeks a Special Permit to encroach on the minimum 100' distance from a drive -through facility and a residential zone. • Due to a recent zoning map change, the residential zone currently borders the property although the property does not actually abut a residential property, there is no residential property within 90' of the proposed drive -through facility and the roads act as a buffer between the site and any residence. The only activity within 100' of a residential lot is the stacking lane. While the applicant has also sought a Special Permit to combine the two adjoining lots pursuant to Section 104.3.5(2)(C) of the Zoning Bylaw, the applicant believes that the combined lots will result in one single conforming lot and, therefore, a Special Permit is not required. • The minimum lot size in the B-1 Zoning District is 20,000 sq. ft. and minimum lot frontage is 1501. The proposed lot will have a combined area of 37,308 sq. fit. and 490.85' of combined frontage along Station Avenue and Old Town House Road. Finally, as the proposed eating and drinking establishment use is within the Aquifer Protection Overlay District, the applicant must demonstrate to the Zoning Board that the groundwater quality resulting from on -site waste disposal and other on -site operations would not violate federal or state standards for drinking water at the downgradient property boundary. • The project and operations as proposed will not violate federal and state standards for dinking water at the downgradient property boundary. CONCLUSION The proposed development will make numerous site improvements, and the proposed use is compatible with the surrounding area and zoning district. The applicant submits that based on the above the proposal would not create a situation that is substantially more detrimental to the zoning district, neighborhood or Town and that there would be no undue nuisance, hazard and congestion. For those reasons, the Petitioner respectfully requests that the request for Special Permit be granted. Respectfully sub itted, Desert De O roods r By thei torney Christo erg irr�qutre'-- Dun g, , it e, McNichols & Garner, L.L.P. P. 6. Box 560 Mashpee, MA 02649 508-477-6500 5. tin C 5 • b i qr e PROPOSED FAST FOOD RESTAURANT t 433, 437, & 439 STATION AVENUE C YARMOUTH, MA 02664 e >< i t i It < , , , , i tr ri A-r- fill C PRESENTATION PLAN m