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HomeMy WebLinkAbout5222 433 437 439 Station Ave Decision RecordedFILED WITH TOWN CLERK: PETITION NO: HEARING DATE: PETITIONER: PROPERTY OWNER: Bk 37863 Pg155 #39124 is N I W11d 9"_ TOWN OF YARMOUTH BOARD OF APPEALS DECISION May 11, 2026 5222 April 9, 2026 Desert De Oro Foods, Inc. Station Petro One, LLC and Station Petro Two, LLC PROPERTY: 433, 437, and 439 Station Avenue, Yarmouth, MA Map 88, Parcels 87 and 88 Zoning District: B-1, APD, and Zone II Book 36687 Page 327 and Book 36687 Page 350 MEMBERS PRESENT AND VOTING: Chairman Sean Igoe (via Zoom), Dick Martin, John Mantoni, Barbara Murphy, and Tim Scanlan; non -voting Alternate Rich Chwastiak 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 Cad Times, the hearing opened and held on the date stated above. The Petition in this matter was filed on March 4, 2026. Petitioner, Desert De Oro Foods, Inc. (the "Petitioner") is requesting a Special Permit under §104.3.2(3), §104.3.5(2)(A-D), §202.5, §406, §301.2, §301.4.3, and §301.8 of the Zoning Bylaws to raze and replace two pre-existing non- conforming structures with a new structure to be used as a Taco Bell restaurant with 18 indoor seats and a drive -through on property located in the B-1 Zoning District and Aquifer Protection Overlay District, at 433, 437, and 439 Station Avenue, Map 88 Parcels 88 and 87, Yarmouth, MA. The Yarmouth Zoning Board of Appeals issues this Decision pursuant to the provisions of Massachusetts General Laws Chapter 40A, §9 and the Town of Yarmouth Zoning By-law. A Public Hearing was held on the Petition at the Yarmouth Town Hall on Thursday, April 9, 2026, at which time the following members of the Zoning Board of Appeals (the "Board") were present: Chairman Sean Igoe, via Zoom, and Board Members, Dick Martin, John Mantoni, Tim Scanlan, Barbara Murphy, and Rich Chwastiak, Chairman Igoe opened the meeting and heard testimony from the applicant's Attorney Christopher Kirrane, who spoke on behalf of the Petitioner in favor of the granting of a Special Permit to allow for the raze and replaS7/TQW1� 1 CLERK lull -. 1 20N Bk 37863 Pg156 #39124 conforming structures and replacing them with a 2,094 sq. ft. Taco Bell with drive -through and eighteen (18) seats for indoor dining on 433, 437 and 439 Station Avenue. Also, present and spealdng on behalf of the Petitioner were Nicole Duquette, the project engineer, and Scott Thornton, the project traffic engineer. Attorney Kirrane stated that applicant intends to lease the property from the owner and construct and operate a 2,094 sq. R. Taco Bell with a drive -through and eighteen (18) seats for indoor dining. The parcel is made up of two lots which are to be combined into one pursuant to § 104.3.5(2)(C) of the Zoning Bylaw. Lot 1 is a non -conforming lot with 17,005 sq, ft. of area and 371.86' of combined frontage along Station Avenue and Old Town House Road. There is currently a non- conforming structure on site that is used as a service station. The existing structure is non- conforming as to the front yard setback to Old Town House Road (30' required, 16' existing) and Station Avenue (75' required, 49.7' existing). Lot 2 is non -conforming lot with 20,303 sq, ft. of area and 100' of frontage along Station Avenue and 19.74' of frontage along Old Town House Road. There is currently a non -conforming structure on site that is used as a Physical Therapy office. The existing structure 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 new structure will eliminate the non -conformity to Old Town House Road. Both non -conformities on Lot 2 will be eliminated with the razing of the structure on Lot 2. The newly created lot will conform with the land area and frontage requirements in the B-1 Zoning District. There will continue to be a front yard setback non -conformity to Station Avenue. Attorney Kirrane stated for the record his reasons why the Board should approve this raze and replace project. He stated that the proposed new building will eliminate three of the existing structural non -conformities, create a more conforming single lot, improve vehicular and pedestrian access by constructing a sidewalk, eliminating multiple curb cuts on site, and adding signage and striping, reduce impervious surfaces by over 7,000 sq. ft., reduce lot coverage from 13.2% to 5.6%, increase greenscape, landscaping and vegetation on site, improve stormwater management, improve wastewater management, and will be consistent with development in the B-1 Zoning District. Attorney Kirrane went through the other requests for the Special Permit. He explained that under §301.4.3 the need for a wider travel lane of 13' rather than the maximum allowed of 12' to accommodate delivery trucks. A Special Permit is required to allow the drive. through, and to allow the drive -through operations to be within 100' of a residential zone. Attorney Kirrane explained that the residential zone boundary was recently changed so that it bordered the property but there was no actual residential parcel within 90' of the drive -through operations. A Special Permit is also required to allow for an eating and drinking establishment in the Aquifer Protection Overlay District. The Board expressed concerns about the hours of operation, signage, tree removal, pedestrian and vehicular access, parking, and traffic. With conditions to be made part of the approval, Mr. Igoe believed the project met the criteria of the Zoning By-law and would not be substantially more detrimental to the neighborhood. Mr. Igoe polled the members for further questions. All members were in agreement that, with conditions, the project was a significant improvement over existing conditions and would not be substantially more detrimental to the neighborhood. A TRUE COPY ATTEST WOO I Qf , TOVI�CRK J 1 ��4 Bk 37863 Pg157 #39124 No member of the public spoke in favor of or in opposition to the proposed project. There were no more questions from the Board or audience. SPECIAL PERMIT CRITERIA § 104.3.2 Change, Extension or Alteration (3) 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. § 104.3.5 Other Adjoining Non -conforming Lots (2) When the owner or owners of abutting lots, whether or not any of such lots are currently developed, wish to combine or redivide such lots, but where one or more of the existing lots do not conform to the current dimensional requirements, and where one or more of the resulting lots will not conform to the current dimensional requirements, such combinations or redivisions may be allowed by Special Permit from the Board of Appeals, upon the following conditions (also see Section 104.3.5, paragraph 5 for other applicable provisions): A. the combination or re -division does not increase the number of non -conforming individually buildable lots over the number of such lots as presently exist; B. the combination or re -division shall not increase any pre-existing non -conformity nor create any new non -conformity as to any existing structure or use of the lots involved or affected by the combination or re -division; C. if more than one adjoining vacant, non -conforming lot is created by, or is the result of the combination or redivision, it/they may be approved for construction of single family residence thereon provided that each lot: (L) is substantially less non-confonning than the pre-existing lot(s) from which it was created; (2.) has at least 75% of the area and frontage required for new lots in the zoning district; (3.) is consistent with or larger than the other residential lots in the neighborhood, and; D. the development and use of all of the resulting and affected lots as proposed would be consistent with the current and future development of the neighborhood and zoning district, would not cause or substantially contribute to any undue nuisance, hazard, or congestion in the neighborhood or zoning district, would substantially promote the intent and purpose A TRUE COPY ATTEST: 3&4q'a-,;may CUM(YJ CMC / TOWN CLERK Bk 37863 Pg158 #39124 of the Bylaws currently in effect, and the entire combination or redivision proposal is consistent with the intent and purpose of this sub -section. §301.2 — Applicability Except for projects developing or redeveloping under Section 414, VCOD, buildings, structures, and land uses lawfully in existence on the effective date of these provisions are not subject to these off-street parking requirements and may be continued, but not enlarged, altered, or changed in use, so as to increase parking demand, nor may one or more drive-in/drive-through windows be added, without either complying with these requirements or securing from the Board ofAppeals a Special Permit for such expansion, alteration, or change in use, pursuant to the applicable provisions of section 104.3.2. In considering and granting such permits, it is the intention of this section that the Special Permit shall be conditional upon requiring maximum feasible compliance with the current requirements of this section. §301.4 — Design Criteria (3) Driveways subject to this section shall have two hundred fifty (250) feet visibility in each travel direction and shall be comprised of two (2) travel lanes each not more than twelve (12) feet nor less than ten (10) feet in width; a minimum curb radius of 25 feet shall be provided. (emphasis added) §301.8 — Drive -through Facilities Any outdoor service facility (including menu boards, speakers, etc.) shall be a minimum of 100 feet from any residential use or zone. §406.5.5 — Water Quality Criteria Special permits under section 406 shall be granted only if the applicant demonstrates to the satisfaction of the Board of Appeals that groundwater quality resulting from on -site waste disposal and other on -site operations will not violate federal or state standards for drinking water at the downgradient property boundary. For nitrate -nitrogen, the Cape Cod Commission guideline of five parts per million (5 ppm) will be used. SPECIAL PERMIT FINDINGS Upon review and consideration of the testimony and evidence in the record, the Board hereby finds and determines that the front yard setbacks and side yard setbacks are lawful pre-existing non - conformities. The existing structure on Lot 1 is non -conforming as to the front yard setback to Old Town House Road (30' required, 16' existing) and Station Avenue (75' required, 49.7' existing). The existing structure 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 Board further finds and determines that the raze and replace proposal will not be substantially more detrimental to the neighborhood than the existing non -conforming structures. j�TRUE COPY ATTEST: 4 CMI CM0 1 TOWN CLERK Bk 37863 Pg159 #39124 The proposal will constitute an iruprovcment to the lot and the new structure is similar in character and use to other structures and uses in the B-1 Zoning District. The construction of the proposed new structure, based upon the plans submitted to the Board, will be consistent with applicable State and Town statutes, regulations, bylaws and codes regarding construction, and except as stated otherwise herein, complies with the dimensional requirements applicable to the lot under current provisions of the Zoning Bylaw. The 13' travel lane is necessary for delivery trucks and is the minimum necessary deviation from the required 12'. The drive -through cannot be located anywhere on the lot without being within 100' of the residential zone. Given the distance to any residential lot, the Board determines there will be no undue nuisance to any residential lot. The project and operations as proposed will not violate federal and state standards for drinking water at the downgradient property boundary. In view of the foregoing, the Board determined, by vote of five (5) to zero (0), that the Petitioner meets the criteria for a Special Permit. Upon a motion duly made Mr. Martin and seconded by Mr. Manton at the Public Hearing on Thursday, April 9, 2026 the Zoning Board of Appeals voted unanimously to issue a Special Permit to Desert De Oro Foods, Inc. under § 104.3.2(3), §104.3.5(2)(C), §202.5, §406, §301.2, §301.4.3, and §301.8 of the Zoning Bylaws to raze and replace two pre-existing non -conforming buildings with a new 2,094 square foot building for a Taco Bell with a drive -through and eighteen (18) seats for indoor dining on property located in an B-1 Zoning District, Aquifer Protection Overlay District, and Zone 11, at 433, 437, and 439 Station Avenue, Map 88 Parcels 87 and 88, Yarmouth, MA, subject to construction consistent with the plans referenced and the conditions stated immediately below: l . Site Plan ... Site Development Plans*, Proposed Taco Bell Restaurant, Assessors Map 88 Lot 87 & 88, 433, 437, & 439 Station Avenue, Yarmouth, Massachusetts, Prepared for Applicant: Desert De Oro Foods, inc., 79 North Main Street, Mansfield, MA 02048 by McClure Engineering, Co., 225 Friend Street, Boston, MA 02114, dated October 10, 2025, Revised March 4, 2026, Sheet Numbers T1, TLI, El, E1.1, D1, C1.1, C2, C3, C4, C5, C6, C7, C8, C9, C10, C11, L1, VT1, VT2, LO. *Per the Health Department comments in the Site Plan Review Comment Sheet, dated February 10, 2026, the plans shall be corrected to show the maximum allowable seating in the dining room is 18 seats. 2. Building Plans - Proposed Elevations, Proposed Layout, and Proposed Material Board, Prepared by Tessere, Rosa Corsiglia, dated January 9, 2026, Sheet Numbers A4.0, A4.1, A4.2. 3. Approval shall be conditioned on all Town Department Comments read into the record including but not limited to the Conservation Commission, the Board of Health, and the Building Commissioner, Site Plan Review Committee and Design Review Committee. A�MUE COPYAtd&X� ATTEST: • 5 CMV3 I CIVIC I TOWN CLERK Bk 37863 Pg160 #39124 4. Approval shall be conditioned on the hours of operation being l 1:00am to 12:00am, seven (7) days a week; no breakfast service. S. Approval shall be conditioned on all deliveries being made in the morning. 6. Approval shall be conditioned on saving the trees on site, to the extent possible. Approval shall be conditioned on the applicant working with the Town Engineering Department to site a crosswalk across Old Townhouse Road. 8. Approval shall be conditioned on no signage on the building or on site with the phrase "Late Night". 9. Approval shall be conditioned on the Station Avenue curb -cut exit as right -out only. 10. Approval shall be conditioned on the applicant appearing before the Zoning Board of Appeals one (1) year from the date of the issuance of a certificate of occupancy for the Board to conduct a review and to make any modifications as may be deemed necessary. The members voted as follows: Mr. Martin -AYE; Mr. Manton -AYE; Ms. Murphy -AYE; Mr. Scanlan -AYE; Chairman Igoe -AYE. The motion was voted 5-0 in favor. Therefore, the Special Permit with the stated conditions was approved. 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 thareof has not begun within 24 months. (See bylaw § 103.2.5, MGL c40A §9) Sean Igoe, Chairman A TRUE COPY ATTEST: 6 CM /�CMC I TOWN CLEAT Bk 37863 Pg161 #39124 CERTIFICATION OF TOWN CLERK 1, 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 #5222 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 JUN - j 828 A TRUE COPY ATTEST: BAR L6,Ct5�Q 1,..0 REGISTRY OF DEED! a RECEIVED i RECORDED ELECTRONICALLY