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HomeMy WebLinkAboutBoard of Appeals Decision 2023FILED WITH TOWN CLERK: February 5,2024 PETITION NO: 5063 HEARING DATE: TOWN OF YARMOUTH BOARD OF APPEALS DECISION December 14,2023 The Harbour Club Inc. dba Tugborts RestrurrntPETITIONER: PROPERTY OWNER: PROPERTY:1l and 21 Arlngtor Streeg Wert Yrmouth, MA Map 2E, Parcel 17 Z,oning District: R-25 Title: Book 19021, Page 200 and Certilicate # 174350 At the initial hearing on Novanber 9,2023, the petitioner requested a Special Permit per $104.3.2(4) for N3 Use to allow entertainmenUlive music at the Tugboats Restaurant and a waiver from the requirernent for a certified sitdplot plan less than two years old. At that hearing, the Board determined that the petitioner does not have a lawfully preexisting nonconforming use for entertainment and the petitioner would require a Variance because N-3 Use in a residential district is not allowed by Special Permit in the Zoning Bylaw. As a result, the petitioner needed to amend the application to include a request for a Variance. The hearing was continued to December 14,2023. For the Decernber 14, 2023 hearing, the amended application included two additional forms of relief: a request for a Variance and a request to reverse the decision ofthe Building Commissioner who determined that the use ofthe restaurant in a residential zoning district is a nonconforming use, and any expansion ofsaid use would require further relief from the Zoning Board of Appeals. At both hearings, Attomey steven Pizzuti presented on behalfofthe petitioner. wayne Kurker, property owne;, and Ted Zambelis, restaurant manager, were also present at these hearings. \Mayne Kurker, Trustee of the Eyannis Marine Service Realty Trust Mf,MBERS PRESENT AND VOTING: Chairman Steven DeYoung Sean Igoe, Richard Martin, Jay Fraprie, and John Mantoni Notice ofthe 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 lizes, the hearing opened and held on the date stated above. The building and all appurtenances are situated on Parcel l7 shown on Yarmouth Assessor's Map 28. The property is located in an R-25 zoning district and is currently operating a.!i a lawfully preexisting nonconforming restaurant. After various renovations, the building's square footage is roughly 7,600 square feet. The restaurant is permitted for 254 seats, plus room for 70 persons standing as approved by the licarsing authority. The property itself is located on the Yarmouth-Bamstable town line and in Yarmouth it is zoned as R-25 Residential and in Bamstable it is zoned as HH Hyannis Harbor District. In a Yarmouth residential zone, single and multlfamily homes are allowed and commercial uses are very minimal. The Hyannis Harbor District is characterized by a mix of commercial, maritime industrial, and residential development and the presence of commercial ferry services. The Petitioner seeks to add live music at the Restaurant. The Petitioner is expecting that occasional live performances ofone or two musicians will complernent the dining experience or a private party. The new use would not involve bringing in significantly more pahons but would enhance their overall experiance. The Board ageed with the Petitioner's presentation of the Variance criteria. A literal enforcernent of the bylaw creates a substantial hardship because this is a lawfully preexisting nonconforming building and restaurant use of commercial nature in a residential zone. It would not be feasible to tear down the building or use the building for residential purposes because the building and use are surrounded by other commercial uses within a boat yard. A hardship owing to the circumstances relating to the shape or topography of land or structures exists because the property is unique in that it is located in two towns and is zoned differently in each town. In Yarmouth, the property is zoned residential but in Bamstable the property is zoned Hyannis Harbor which is highly commercial. The property in Bamstable is dependent on the Yarmouth property for access. The nature ofthe whole property is commercial. The structures on the property are commercial in nature and to convert it to something otherwise it is not practical or feasible. Finally, relief can be granted without substantial detriment to the public good because there would not be a substantial change from what is already taking place at the property. The change to allow entertainment is not going to increase traffic or parking nor is it going to increase the number of seats in the restaurant. There are buildings that insulate the restaurant from the residential neighbors thereby reducing the noise. It is the Petitioner's beliefthat the infrequent entertainment will not interfere with regular dining but instead will enhance the dining experience. Ten abutters wrote letters in favor ofthe Petitioner's request for live entertainment with two speaking at the hearing. Five abutters wrote letters in opposition to the said request with two speaking at the hearing. Generally, those in favor believed entertainment would be beneficial for the restaurant experiente and the surrounding area. They believed that the propety was very well-managed and respectful to the neighbors and cited as examples the implernentation ofvalet parking and the pr&ibition of street parking. Those in opposition generally felt that there would be an increase in iraffic and noise. There were comments that the hours of I l:30 am to I I :30 pm were unacceptable and disrespectful to the neighborhood. Additionally, there was a concem that live entertainment would result in a nightclub environment. The Board was generally receptive to entertainment at the restaurant; however, they had several questions about the frequency of entertainment, concems for amplification, and potential for noise emitting from the property to the surrounding neighborhood. The Petitioner explained that entertainment would consist of one-two musicians or singers and possibly a discjockey and that the entertainment would occur most frequently in the shoulder seasons to accompany tour groups, Christnas parties or even baby or bridal showers. They intend that entertainment will be more ofan irregular occurrence rather than a nightly or weekly event. The Board discussed at length the five potential locations within the restaurant where entertainment could be played that were shown on a floor plan submitted with the application. The Board addressed each ofthe five locations where entertainment could be situated within the restaurant which were depicted on a floor plan submitted with Petitioner's application for relief. They discussed having no issues with the indoor locations for entertainment but did express particular concem with Zone #l on the rear deck and Zone #5 being the upstairs bar area. The Board felt both zones appeared to be more susceptible to sound escaping fiom the building. Different remedies were discussed for how to contain the noise such as a seasonal heavy-duty cu(ain, no amplification, regulating the entertainment hours, and such other conditions. A Motion was then made by Mr. Fraprie, seconded by Mr. Mantoni to approve the request to waive the requirement for a Site Plan less than 2 years old. Chairman DeYoung took a voice vote and the members voted unanimously in favor (5-0) to waive the requirement for a Site Plan less than 2 years old. A Motion was made by Mr. Fraprie, seconded by Mr. Mantoni, to grant a Vadance with the following conditions:- Hours of operation for live music only in all areas shall be from I I :30 am to l0:00 pm;- ln order to minimize the sound escaping to abutting properties, there will be no entertainment in Zone #l unless there is a protective isinglass barrier around the deck area highlighted in yellow on Tugboats Entertainment Plan marked as Exhibit I at the Decernber 14, 2023 hearing; - Only one musician with no amplification shall be allowed in Zone #5 being the upstairs bar area;- Restaurant is allowed a one- to two- piece ensemble in only one zone in the restaurant at any one time;- The petitioner must retum to the Board for a one-year review with the petitioner providing any and all complaints made to the Yarmouth Police, so that the Board may act to continue, modifu, or rescind the grant of a Variance; and- This Variance is restricted to this petitioner. If there is a change in the ownership, then the Board must be notified and a further hearing must be held to seek a new Variance. On a roll call vote (5-0), the Variance, with the stated conditions, was approved.- Mr. Igoe: AYE- Mr. Mantoni: AYE- Mr. Fraprie: AYE- Mr. Martin: AYE- Chairman DeYoung: AYE The petitioner rcquested to withdraw the Special Permit without prejudice. A motion was made by Mr. Fraprie and seconded by Mr. Mantoni. On a voice vote (5-0), the request to withdraw the Special Permit was allowed. The petitioner requested to withdraw the request to reverse the decision of the Building Commissioner without prejudice. A motion was made by Mr. Fraprie and seconded by Mr. Mantoni. On a voice vote (5-0), the request to withdraw the requ$t to reverse the decision of the Building Commissioner without prejudice was allowed. 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 MCL c40A section l7 and must be filed within 20 days after filing ofthis noticddecision with the Town Clerk. Unless otherwise provided herein, the Variance shall lapse ifa substantial use thereof has not begun within l2 months. (See MGL c40A $10) :-; Sean Igoe, Vice Chair CERTIFICATION OF TOWN CLERK I, Mary A. Maslowski, Town Clerk, Town of Yarmouth, do hereby certifu that 20 days have elapsed since the filing with me of the above Board of Appeals Decision #5063 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. Mary A. Maslowski, CMC