Date: May 26, 2005
Time: 7:00 PM
Present: Trevor Pontbriand, Acting Chair, Jeffrey Stewart, Acting Vice Chair, Robert Hankey, Peter Watts, William Nicholson, Sibel Asanturgul, Charles Amsler, and Bruce Drucker. Christine Bates, Committee Secretary
Jeffrey Stewart, Acting Chair for the Wellfleet Harbor Actors Theater, reviewed the meeting process. He announced Peter Watts would act as Vice Chair. Trevor Pontbriand, recused himself as an abutter to the case. Stewart proceeded to discuss how the hearing would be run, first opening up the case, setting the Board, read the application, hear from the applicant, read letters, open comments to the audience, close the meeting for Board discussion, open for full discussion with applicant and audience, and determine any findings. He stated this application was new, and reviewed briefly case #04-18 which was withdrawn without prejudice. Any previous information from case #04-18 would be used as a reference only.
Stewart stated he was only addressing one Special Permit, addressing four parts which refer to six by-laws.
Public Hearings:
7:00 #05-19 Wellfleet Harbor Actors Theater, 2357 State Highway, Map 23, Parcel 212: Application for a Special Permit under the provisions of 1) Sections 5.4.13 and 8.4.2 of the Wellfleet Zoning By-Law to allow two principal uses and two principal buildings on one lot in the Commercial Zoning District; 2) to the extent deemed necessary, Sections 5.2, 5.3 and 8.4.2 of the Wellfleet Zoning By-Law to allow and use closely resembling in its neighborhood impacts a use listed as permitted or authorized under Special Permit in the Commercial Zoning District; 3) Section 6.3.13 of the Wellfleet Zoning By-Law for a Development of Significant Impact; and 4) Section 6.11 of the Wellfleet Zoning By-Law to convert the Property to the condominium form of ownership. The Board
for the case is Jeffrey Stewart, Peter Watts, Robert Hankey, William Nicholson and Sibel Asantugrul. Building Inspector, Paul Murphy, was invited to sit at the table as well.
Andrew Singer, Attorney, and Jeff Zinn represented WHAT. Singer distributed a draft of Findings of Facts he compiled from the Cape Cod Commission report to use as a reference for the Board. It was determined the Board would concentrate on individual subjects at a time. Stewart and Murphy will have conference calls with Town Counsel on any issues that require their guidance. Singer stated there is a set of new plans dated 05/26/05, with the exception of the condo site plan and septic plan which are predated for the Board’s review. He briefly gave an overview of the plans. Stewart stated he would like to address the condominium portion of the Special
Permit first. Zinn expressed his desire to come to a quick conclusion issuing the Special Permit and that information gained from Case 04-18 would be taken into consideration. Stewart stated he felt this was a new application and will require new letters from other Boards for their support and approvals. He stated the Board of Health is still waiting for requested information from the applicant. The Board determined a Special Permit will not be issued until all approvals are received from other Boards and all issues are closed. The Board’s decision will not be conditioned to other Boards or Commissions.
Stewart read the Cape Cod Commission’s introductory statement regarding WHAT. He stated they found 36 findings and placed 37 conditions on their report. The Board then moved on to the Condominium conversion. Singer stated there are four (4) acres of land and the ZBA gave approval for development twenty years ago. Currently there is one building with two floors, with a proposed new building. The first part for condo conversion is the Post Office, then the theater offices, and finally the new theater including the bridge from the office area and exclusive use areas (tent area, parking, public water, etc.). The Post Office will continue to rent from LLC.
Attorney Singer proposed the following findings:
The proposed use of the Property will not substantially change the permitted use of the premises (commercially developed property in the commercial zoning district – proposal will retain post office use and non-profit theater offices use with an addition of an assembly use for performances.
The proposed condominium documents explicitly define the proposed use and are written with proper management authority to insure maintenance and repair of public health and safety aspects of the Property. Town Council has reviewed and signed off on condominium documents.
Conditioned upon condominium documents not being changed so as to alter the above findings without first obtaining a Special Permit from the Board of Appeals permitting such alteration.
It was determined the owner is Wellfleet Cultural and Commerce Ctr, LLC, and a letter dated
May 5, 2005 from G. Parent was presented giving permission for the project. Stewart then read the Wellfleet By-Law 6.11. There was discussion related to the word “there on”, because the theater is not constructed as yet. Paul Murphy stated he does not have a problem with the concept because condominiums are often sold before they are constructed and it is done in phases. John Freeman, Architect, stated there is a right to improve and creates the right to build. Singer stated this is one condominium with three units. Stewart and Murphy will confer with Town Counsel.
Discussion then took place regarding Planning Board and Board of Health approval. Letters will be sent to each Board.
A letter from James Arnold, on behalf of his mother Maude Arnold, an abutter, dated May 20, 2005 was read into the record with objections to the project. Singer stated they have over 60 letters supporting the project. Joan Wall, of the audience, gave her support for the project. Ira Wood stated he originally voted against the proposed project on the property twenty years ago with concerns regarding traffic, but now feels the property could be handled well now and is in favor of the current project. Robert Hautanen, an abutter, stated the tent created noise last season after the shows and would like WHAT to consider constructing a fence for privacy and noise control. Zinn stated they would be happy to have a dialog with them. Stewart then closed the discussion to the
public.
Drucker suggested asking Town Counsel if the bylaw (6.11) authorizes a new building (Phase III). Singer stated the condominium documents would not be a part of the local by-laws. Discussion took place regarding the definition of “use”. Murphy stated in the building regulations, it could be described as an assembly use. Sibel stated this would be a complementary use with no substantial changes. Watts asked if the theater was a commercial use, and Murphy responded the definition would be anything to buy / sell. The discussion was reopened to the public at 8:15.
Stewart asked the applicant to provide approved copies of the Master Deed because the current ones are identified as a draft. Singer stated they are not final until the Special Permit is issued, but stated they will provide copies that are not identified as a “draft”. Parent and Zinn are the proper management authority. Singer stated the condominium deeds will go the Barnstable Registry and Deeds and the Board will be supplied a copy for the file. Stewart will send letter to the Board of Health and the Planning Board, attaching the revised condominium documents and copies of previous memos for case #04-18. He stated the Board will wait for a response from the other Boards before taking a vote.
PRINCIPAL USES (Section 5.4.13 and 8.4.2) – principal uses and two buildings on one lot in Commercial Zoning District. Stewart recommended reviewing the Cape Cod Commission findings. A discussion took place regarding what the definition of a non-profit charitable organization is. Zinn stated they are tax exempt and registered as a non-profit charity in the state. He explained the definition allows any surplus of money to be used to help make it grow, and give back to the community cultural events. He explained they currently have approximately 125 performances in the summer and expect the revenues to double with the year-round theater.
The Board then reviewed the general findings of the Cape Cod Commission.
G1 – The proposed WHAT theater project will serve as a year-round theater and performing arts center in a tourism dependent, rural area where no such facility exists. The new facility will provide artistic development and educational opportunities, including programs for children and senior citizens. WHAT’s existing 90-seat seasonal theater is unsuitable for cold weather performances and has no classroom space. The small stage also limits the types of productions offered. According to the applicant, WHAT currently serves about 10,000 patrons annually. It is anticipated that the new facilities will increase economic vitality in the area by extending the tourism season for small businesses and providing a local off-season cultural resource. The
Commission finds that the proposed theater facility is a Project of Community Benefit (POCB). The Board agreed with this finding.
G2 (Commission may grant a hardship exemption to a POCB). This is not applicable to the ZBA.
Discussion took place regarding educational opportunities offered to the community. Zinn stated it is part of their mission statement and they provide workshops, classes, and opportunities for aspiring actors. Further discussion took place regarding what is profit versus non-profit.
The Board then moved on to the transportation issues.
T1 (CCC findings) – the Board agreed with the condition set to limit the total number of seats to 250, and performances shall be defined as a scheduled theatrical, musical, cinematic, or other event where the general public is invited and which may fill either the main theater or summer tent theater. The condition then stipulated the number of people, days, and hours. The ZBA wants to include a condition where WHAT will coordinate with the Post Office, and designated parking needs to be established so patrons of the theater do not utilize Post Office parking spots during peak hours.
T3 – (access to Route 6). ZBA agrees to finding.
T5 – (pathway) ZBA agrees to finding
T6 – (site distances at all driveways) – ZBA agrees to finding and condition set by the CCC.
T7 – (site driveway width) – ZBA agrees to finding.
T8 – (trip generation) Not applicable
T9 – (reduce expected daily trips by 25%) – ZBA agrees with finding and agrees with CCC condition T7 which includes a site concession, inside eating area, group discount ticketing plan, bicycle rack, alternative transportation, and adding bus transit information).
T10 – agrees with finding and concurs that conditions set in T7 apply.
T11 – (parking) – Stewart recommends input from the Board of Health due to the well radius located on the abutter’s parking lot. Coastal Engineering stated the well is a non-conforming public water supply. The new well will be conforming and have an easement granted which the applicant can control. The applicant stated they have no control over the abutter’s well. Murphy stated the zone of contribution is not applicant’s property. The Board will write a letter to the Board of Health regarding the well radius.
T12 - (adequate level of service at new driveways and access points onto regional roadway system) ZBA concurs with finding and conditions set in CCC T9 (police and fire support as required).
T13 – (relief from impacts on regional roadways). ZBA concurs with finding and concurs with conditions set by the CCC regarding the redesign of the site entrance and maintaining site distances at the site entrance.
The Board stated they would not discuss the water resources as they required input from the Board of Health.
Community Character/Heritage Preservation:
A discussion took place regarding the architectural design of the building. John Freeman described the design of the building. Stewart questioned the outside “stagelike setting” and stated he opposes any outdoor performances. Hankey noted he has no objection to outdoor performances for special occasions (i.e. Oyster Festival or major holiday).
CC2 – (landscape plan) Stewart requested a copy of the 09/22/04 plan/letter for our files.
CC3 – (on-site signage) – ZBA requires time to review the plans.
CC4 – (submittal of as to be installed exterior lighting information) – Not applicable to ZBA
CC5 – (changing exterior lighting design) – ZBA would like to revisit this issue.
CC6 – (exterior light levels) – to be reviewed. Stewart suggested WHAT meet with abutters regarding their concerns about lighting and landscaping.
Natural Resources / Open Space – this topic of the CCC finding is not applicable to the ZBA.
Hazardous Materials
HM1 (servicing of all construction equipment ) – ZBA agrees with finding.
HM2 (Contract with licensed fluorescent bulb recycler) – ZBA agrees with finding.
HM3 (CCC staff to inspect the project site) – ZBA agrees with finding.
HM4 (two 1,000 gallon propane gas tanks on site to supply facility’s mechanical systems). Conditions set by CCC for inspections, etc. ZBA agrees and Murphy will do the inspecting.
Noise
N1 (air pollution control) – The Board will set conditions regarding pre-construction and post-construction, setting hours of construction work. Murphy to check regulations for Town.
Discussion took place regarding potential musical performances and noise generated from them. Zinn stated the building is designed to control noise. The issue of cars leaving after performances with patrons staying in the parking lot may require police enforcement.
Economic Development
The Board asked Zinn if they were planning on local contractors to perform the construction. Zinn stated they would be looking at local companies.
Stewart Moved to adjourn the meeting at 10:18 pm; Seconded by Robert Hankey, Passed 7-0.
Respectfully submitted
Christine A. Bates
Committee Secretary
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