Approved
Minutes of Zoning Board of Appeals Public Meeting
Date: February 2, 2012
Time: 7:00 PM
Location: Wellfleet Sr. Center
Attendees: Bruce Drucker, William Nicholson, Manny Heyliger, Roger Putnam, Tom Reinhart, Sharon Inger and Christine Bates, Committee Secretary.
Regrets: Vern Jacob, Mick Lynch, and Robert Hankey
7:00 pm
12-07 Mark and Phyllis Bernstein, 95 Wigwam St., Map 35, Parcel 206: Application for a Special Permit under WZB 6.1.5.1.b: add a five foot extension to existing deck The Board consisted of Bruce Drucker, William Nicholson, Roger Putnam, Sharon Inger and Tom Reinhart. Manny Heyliger recused himself. Chet Lay represented the applicant and stated the shed in the original plan has been eliminated and the proposed decking will be extended and cantilevered on one corner. A letter from Joan Cancillia was read into the
record supporting the project. Bruce Drucker moved for Findings of Fact:
1) This is an application under WZB 6.1.5.1.b for a Special Permit to add five feet to an existing deck.
2) The deck will create a further intrusion into the setback of 7 feet.
3) There will be a 2.9% increase in lot coverage.
4) The property is in the R1 District and this use is compatible with its purposes.
5) There will be no change in use.
6) There will be no increase in use.
7) The cantilevered NW corner of the deck will extend beyond the limit of the coastal bank.
8) The proposed deck will be built within the 50 foot setback from a wetland.
9) The project has been approved by the Conservation Commission.
10) There are no objections from abutters and one abutter has supported the project.
11) The proposed structure will not be more substantially detrimental to the neighborhood than the existing structure.
Roger Putnam moved to approve the Findings of Fact; seconded by Bruce Drucker; passed 5-0. Bruce Drucker moved to grant the Special Permit; seconded by Sharon Inger; passed 5-0.
7:10 pm
12-08 Arthur Cashin, Arthur Cashin Way #21, Map 40, Parcel 148: Application for a Special Permit under WZB 6.1.5.1.b: remove existing deck and replace with a larger deck
The Board consisted of Bruce Drucker, William Nicholson, Manny Heyliger, Sharon Inger and Tom Reinhart. Stephanie Sequin represented the applicant and gave an overview of the project. The new deck will be 10’ x 28’. This project was approved by the Conservation Commission.
Roger Putnam moved for Findings of Fact:.
1) This is an application under 6.1.5.1.b of the Wellfleet Zoning Bylaws to remove an existing deck and replace it with a larger one, and to fill the foundation under the existing house.
2) The house is in the R1 District and use is compatible with its purposes.
3) This is a prior existing nonconforming structure, built in 1927 per Assessor’s records.
4) The foundation size will be increased to the size of the building footprint.
5) The proposed deck will be 12.2’ from the lot line.
6) There will be no increase in volume.
7) There will be no increase in use.
8 The project will be carried out under the terms and conditions approved by the Conservation Commission.
9 There are no objections from abutters.
10 The structure will not be more substantially detrimental to the neighborhood than the existing structure.
11 The deck will be 10’ x 28’.
Roger Putnam moved to approve the Findings of Fact; seconded by Manny Heyliger; passed 5-0. Bruce Drucker moved to grant the Special Permit; seconded by William Nicholson; passed 5-0.
7:20 pm
12-09 Howard and Linda Zonana, 50 Ocean View Drive, Map 30, Parcel 610: Application for a Special Permit under WZB 6.1.1: convert small outdoor porch to enlarge current living room by 38.5 square feet. The Board consisted of Bruce Drucker, William Nicholson, Roger Putnam, Tom Reinhart, and Sharon Inger. Manny Heyliger recused himself. Ms. Zonana gave an overview of the project, stating the living room would be expanded to where the existing porch is, with no change to the
footprint. Letters from Ms. Chapman, R. P. Raymond, the Gordon’s, B. van Goez, and J. Sieber supported the project. Bruce Drucker moved for Findings of Fact:
1) This is an application under WZB 6.1.1 to convert an outdoor porch to living room area.
2) The structure is a prior existing nonconforming structure in a condominium colony, Surfside Condominiums, having been built in 1956 per Assessor’s records.
3) The lot is nonconforming as to size and setbacks.
4) The additional 38.5 square feet will be built on the existing slab.
5) There will be an approximately 5% increase in volumetric intrusion into the front setback.
6) There will be no increase in lot coverage.
7) There will be no change in use.
8) There will be no increase in use.
9) There is no objection to this building alteration by the CCNSS and several abutters have approved it.
10) The Surfside Condominium Association approves the building alteration.
11) The addition to the existing structure will not be more substantially detrimental to the neighborhood than the existing structure.
Roger Putnam moved to approve the Findings of Fact; seconded by Tom Reinhart; passed 5-0. Bruce Drucker moved to grant the Special Permit; seconded by Sharon Inger; passed 5-0.
7:30 pm
11-24 Cumberland Farms, Inc., 2586 State Hwy, Map 23, Parcel 39: Application for a Special Permit under WZB 5.3.2 for Retail / Business, Filling Station and Liquor Store, WZB 5.4.13 more than one principal use and/or principal building on a lot, and WZB 6.6.3.15 minimum curb radio. The Board consisted of Bruce Drucker, William Nicholson, Manny Heyliger, Roger Putnam and Sharon Inger, replacing Robert Hankey who was on the Board at the December 15, 2011 hearing. Acting Chair Drucker read the December 15, 2011
meeting minutes. Mr. Drucker then reviewed the buildings and uses on the property, which included the garage, the abandoned house, the liquor store building, and the convenience store building, with 3 uses on the property consisting of the retail liquor store, the Cumberland Farms convenience store, and the lease of the garage to a commercial landscaper. He stated it appears there are no existing special permits for any of the uses on the property. Originally, the application was for five special permits, now there are 2 special permits being requested by the applicant, which are a special permit for the new use of a filling station and a special permit for multiple uses on the property. The special permit regarding the minimum curb radius , the special permit for the liquor store use, and the special permit for the convenience store use are all no longer being requested by the applicant. There will need to be a demolition permit, both for the house
and the current stores, and permits for the reconstruction, all of which the applicant will apply for to the building inspector. Attorney Veara stated the uses for the convenience store and liquor store do not require any permits because the uses are not changing and have been in existence for more than 10 years. The curb radius for the entry ways has been changed so it will be in compliance and the landscaping business will end in October 2012. The three remaining businesses will be the convenience store, gas station and liquor store. Attorney Veara stated the uses are protected if in existence for over 10 years based on MA laws. Mr. Drucker questioned whether the use is protected if the convenience store is doubling in size. Mr. Drucker also stated that the applicable MGL provides protection only for structural violations that occurred in the absence of a permit and only if enforcement is not commenced within 10 years from the violation and that he
does not believe that the MGL provides protection for use violations. Mr.Drucker questioned whether the gas station business is subject to the new Wellfleet formula business bylaw. Mr.Veara stated there is no trigger in change of use if the size of the building increases if the business is already existing. Mr. Veara stated they are adding one more use which requires a special permit, the gas station. Mr. Drucker stated the protection is only for the structure, not uses, and feels the gas use is subject to the Wellfleet formula business bylaw.
Attorney Veara gave an overview of the changes in the plans, which included eliminating the five parking spaces running parallel to Rte 6 and utilizing the areas by the gas pumps as parking spaces and including native plants in the landscaping plan. He stated they met with the Historic Review Committee and the Committee requested Cumberland Farm to buy land, fix the abandoned house and move it at their expense. He stated there is no place to move the house on the property. Cumberland Farms would allow the house to be taken off the property, but not at their expense as there are no laws authorizing that request.
The Board expressed their concerns with the project, which included the gas pumps, formula business, the number of gas stations in Wellfleet, the size of the building, traffic issues, the traffic study which was part of the application and was inadequate, increase in use of the property, Cahoon Hollow Road traffic and ability to safely enter Route 6, designated parking spots at the gas pumps are not appropriate, and the potential to devalue the homes in the area. The Board stated the increased size of the store and fuel pumps will increase the usage at the site and cause further traffic congestion in the summer along a section of Route 6 that can’t handle the traffic that’s already there.
Attorney Veara responded the 42 parking spaces are shown on the new site plan, the the new Wellfleet formula business law does not apply to this application, they are asking for a special permit to add the gas station, and if the new building conformed, they would not need a special permit for the existing liquor store and Cumberland Farms’ uses. He stated there is only one gas station open at this time in Wellfleet. There is no evidence the store will decrease the value of the properties in the area. Mr. Veara stated traffic is bad already on Route 6 in the high season. There was further discussion regarding the traffic and if an increase in size of the convenience store and the addition of the fueling pumps would affect traffic safety and congestion.
Engineer Reggie Donoghue discussed the screening vegetation in the back of the property as well as at the left side of the property, using native plantings.
The following letters were acknowledged:
Cape Cod Commission could not do a traffic study due to a conflict
Letter from Historical Commission
Memo from Planning Board stating they did not deem the traffic study adequate (Attorney Veara stated the Planning Board did not express a concern with the traffic study in their December letter to the ZBA, and he was told the Planning Board would only review the revised parking plans at their February 1, 2012 so he did not attend that meeting)
Additional letters from abutters objecting to the project were identified
The Fire Department, DPW and Police Dept. do not feel there should a financial review.
Acting Chair Drucker moved for a five minutes recess at 8:25 pm. The meeting was reconvened at 8:32 pm.
Steve Durkey of the Historical Review Board Committee stated their committee looks at buildings to see if they could be salvaged and in their letter, they requested Cumberland Farms to purchase land and move the building as a good will gesture.
Janet Reinhart, Chair of the Planning Board, clarified the events of the Planning Board meeting of February 1, 2012. The Board had requested updated plans regarding the parking, and in previous meeting minutes, there were concerns regarding the Traffic Study and the elevation(s) of the proposed building.
Three members of the audience expressed concern with taking business away from the Central area of town, the difficulty of entering Route 6 from Cahoon Hallow Rd. and Pine Point Rd. during the high season, and the adverse impact the proposed project would have on the value of homes in the area. Another audience member supported the proposal, stating it is a thriving business which pays taxes and the gas station will not be detrimental. A member of the audience stated it would be nice to have diesel fuel in town.
There was further discussion regarding the formula business permit by-law and the Board again expressed concerns with the size of the building, the parking spaces, having three businesses on the property and traffic.
Attorney Veara requested a short break to consult with Cumberland Farms representatives at 9:05 pm The hearing reconvened at 9:09 pm. Attorney Veara stated the Cumberland Farms proposal is for both a convenience store and a gas station, therefore they would like a vote from the ZBA.
Bruce Drucker moved for Findings of Fact:
1. This application was filed for the following five special permits: (i) a Special Permit under WZB 5.3.2 for a Cumberland Farms retail convenience store, (ii) a Special Permit under WZB 5.3.2 for a Cumberland Farms filling station, (iii) a Special Permit under WZB 5.3.2 for a retail liquor store, (iv) a Special Permit under WZB 5.4.13 for more than one principal use and/or principal building on a lot, and, (v) a Special Permit under WZB 6.3.15 regarding minimum curb radius.
2. Requesting five special permits in one application contravenes the following published procedure adopted by the Zoning Board of Appeals: “Only one application per filing is allowed….”
3. The Zoning Board of Appeals has received and reviewed among other things various plans and drawings pertaining to the project. The documents reviewed include “Plan Showing Proposed Layout and Materials” number C2.1.1 revised through January 20, 2012; and, Proposed site
redevelopment plans, including:
a. “Existing Conditions/Site Demolition Plan” C2.0.1 dated December 8, 2011;
b. “Grading, Drainage and Utilities Plan” C2.2.1 dated December 8, 2011;
c. “Site and Drainage Details” C2.4.1 dated December 8, 2011; and
d “Site and Sewage Disposal System Details” C2.4.2 dated December 8, 2011;
e. “Schematic Exterior Elevations” A3.1 and A3.2 dated September 26, 2011;
f. “Floor Plan and Partition Types” A1.1 dated September 27, 2011;
g. “Canopy Elevations” dated October 20, 2011;
h. “Exterior Building Lighting Plan” L1.1 dated September 27, 2011;
i. “Pole Sign Elevation Plan” dated October 20, 2011;
j. “Lighting Proposal” dated October 2, 2011 (one sheet);
k. “Fire Suppression Plan of Bohler Engineering” dated April 28, 2011 (one sheet);
l. “Planting Plan” revised January 20, 2012.
4. The Zoning Board of Appeals has made a site inspection of the property. Each member of the Zoning Board of Appeals is personally familiar with the property, the existing Cumberland Farms retail convenience store and liquor store and the surrounding neighborhood.
5. The property contains an 1800 sq.ft. Cumberland farms convenience store, a 1728 sq. ft. liquor store, a 576 sq. ft. garage leased to a commercial landscaper, and an abandoned dilapidated house.
6. The applicant, Cumberland Farms, Inc., has operated a convenience store at the property since January 22, 1979.
7. The proposed project includes the following:
a. Raze the existing Cumberland Farms convenience store, liquor store, and abandoned house. The garage to the rear of the parcel used for a landscape business is to remain, but the landscape business will discontinue in October 2012.
b. Construct a new, colonial-design building for a Cumberland Farms convenience store of 3634 s.f. and liquor store of 2727 s.f.
c. Install 3 fuel dispensers (including one dispenser offering diesel fuel) with associated canopy containing lighting over the gas operation and the required fire suppression system
d. Install two 20,000 gallon, double-wall fiberglass duel compartment underground storage tanks
e. Red Box video unit to be located on the walk in front of the convenience store
f. Abandon the existing well and tie into the municipal water system via Cahoon Hollow Road
g. Remove existing septic systems and install new system
h. Add protective bollards at parking spaces to the front and side of new building
i. Provide 42 parking spaces
j. Enhance landscaping with screening at rear of property
k. Install new freestanding sign
8. The Planning Board unanimously recommended the project for approval pursuant to Wellfleet Zoning Bylaw 6.3.13, as a “Development of Significant Impact.”
9. The Conservation Commission approved the project.
10. The proposed Decision and Findings of Fact submitted to by the applicant state that the applicant is only required to obtain the following Special Permits for the proposed project: “1. Operation of a filling station pursuant to Section 5.3.2 of the Zoning By-Law; and 2. More than one principal use and/or principal building on a lot pursuant to Section 5.4.13 of the Zoning By-Law.”
11. The applicant no longer seeks a Special Permit under WZB 6.3.15 regarding minimum curb radius since the design of the project now includes compliance with the 50 ft. minimum curb radius.
12. The applicant no longer seeks (i) a Special Permit under WZB 5.3.2 for a Cumberland Farms retail convenience store or (ii) a Special Permit under WZB 5.3.2 for a retail liquor store upon a claim that a Special Permit for these two retail uses is not required since both have been in existence for more than 10 years.
13. The applicant has not presented any existing Special Permits for the use of a retail convenience store or of a retail liquor store on the property nor are any such Special Permits known to exist.
14. A Special Permit for the use of a convenience store on the property was required by the Wellfleet Zoning Bylaw at the time the Cumberland Farms convenience store commenced operation and a Special Permit was also required for the use of a retail liquor store on the property when it commenced operation.~ The applicant has not claimed that the use of a convenience store on the property or the use of a retail liquor store on the property pre-existed the applicable
Wellfleet Zoning Bylaw requirement of a Special Permit for such uses.
15 The Cumberland Farms convenience store is a formula business as described and defined in Wellfleet Zoning Bylaw 2.1 and 6.30 in that it is a “retail trade business which does or is required by contractual or other arrangement or as a franchise to maintain any of the following features: Standardized (formula) array of merchandise, exterior trademark or service mark, defined as a word, phrase, symbol or design, or a combination of words, phrases,
symbols, designs, and/or architecture, façade that identifies the business as one (1) of twenty-five (25) or more other businesses worldwide.”
16. Under Wellfleet zoning bylaw 6.30.2 “The proposed use of any building or structure for a Formula Business, as defined herein, shall require a Special Permit issued by the Planning Board.”
17. The Cumberland Farms convenience store does not have a Formula Business Special Permit nor has it made an application to the Planning Board for such a Special Permit.
18. Likewise, the Cumberland farms filling station also must apply to the Planning Board for a Formula Business Special Permit.
19. The Zoning Board of Appeals does not have jurisdiction or authority to issue a Special Permit for the Cumberland Farms convenience store and/or the Cumberland farms filling station as both require a Formula Business Special Permit from the Planning Board.
20. Likewise, the Zoning Board of Appeals cannot issue the Special Permit requested by the applicant under WZB 5.4.13 for more than one principal use and/or principal building on a lot since none of the proposed uses has a Special Permit nor does the Zoning Board of Appeals have the jurisdiction or authority to issue a Special Permit with respect to two of the proposed uses, namely the Cumberland Farms convenience store and the Cumberland Farms filling station.
21. Should the Zoning Board of Appeals have the authority and jurisdiction to grant the two Special Permits requested by the applicant for the project as described in paragraph 10 above the following findings in paragraphs 22 through 31 apply.
22. The subject property is located within the Commercial zoning district and is not in a floodplain.
23. Homes abut the property on its easterly lot line; a bicycle shop, bait store, boat rental store and restaurant abut the property on its northerly lot line; the Bay Sails Marine boat and retail facility abuts the property on its southerly lot line; and, the property fronts State Hwy. Route 6 on its westerly lot line.
24. The applicant’s engineer has calculated pursuant to Wellfleet Zoning Bylaw 6.3 that the project requires 42 parking spaces based upon the size of the proposed retail structure and number of projected employees, together with a credit for the landscaping buffer. This calculation did not include any parking spaces for the garage leased to the commercial landscaper.
25. As proposed by the applicant the project fails to provide for 42 adequate, safe and accessible parking spaces. The six spaces shown on revised drawing C2.1.1 alongside the fueling pumps are not valid parking spaces and the five spaces shown on the original drawing C2.1.1 parallel to Route 6 between the fuel pumps and the highway are not safe as more fully explained in the joint November 21, 2011 memorandum from the Wellfleet Police Chief and
the Wellfleet Fire Chief.
26. The proposed project containing the larger Cumberland Farms convenience store, larger liquor store, and new gasoline and diesel fueling pumps will substantially add to the traffic congestion and back-ups in the area on Route 6 during the summer tourist season. There will be an increase in the volume of traffic exiting and entering the subject property. The traffic congestion will be particularly acute in the summer months when Route 6 at and around
the location of the subject property is already heavily congested with traffic and is often backed up with “stop and go” traffic. Route 6 is not adequately designed at that location to handle the congestion during the tourist season caused by traffic exiting and entering the subject property. For example, southerly flowing traffic on Route 6 attempting to make a left turn into the subject property would effectively block southbound traffic on Route 6 since the shoulder at that
location is not adequate to allow traffic to pass around stopped vehicles waiting for a break in the heavy north bound traffic to turn into the subject property. In addition, traffic is typically backed up on Cahoon Hollow Rd. during the summer attempting to turn on to Route 6. Cahoon Hollow Rd. is a heavily traveled principal access road to the popular National Seashore ocean beaches, the popular Beachcomber restaurant and live music venue, the Wellfleet Council on Aging facility and the Wellfleet Community Garden. Traffic congestion in the area is further compounded by traffic attempting to exit and enter the very popular PJs restaurant during the summer at the corner of Cahoon Hollow Rd. and Route 6 which is a relatively short distance north of the subject property.
27. The McMahon Associates Inc. traffic study dated October 2011 submitted by the applicant does not meet the requirement of Wellfleet Zoning Bylaw 6.3.14(a) which requires a traffic impact study. Among other things, the applicant’s traffic impact study does not credibly address the traffic congestion issues during the summer as described above. It is premised upon a four hour manual count of traffic during the off season on October 19, 2010.
The applicant’s traffic impact study did not study the traffic at and near the subject property during the critical summer months and no explanation was offered why an actual study was not done during the summer of 2011 prior to the submission of this application in November, 2011. The Planning Board’s 2/2/12 memo to the Zoning Board of Appeals states the “Planning Board~has not seen an appropriate traffic study for the project, only the McMahon Associates Traffic Study of
October, 2011, which was not deemed adequate.”
28 The proposed project would adversely impact the homeowners abutting the subject property and in the neighborhood as follows:
a. Increased back up of traffic on Cahoon Hollow Rd. attempting access to Route 6 during the summer season. The proposed project would make it increasingly treacherous, difficult and at times virtually impossible for homeowners along Cahoon Hollow Rd. or who live on feeder roads to Cahoon Hollow Rd. to turn onto Route 6.
b. Increased light and glare from the fueling pump area caused by signage, cars, and area lighting.
c. Increased exposure to exhaust and noise from cars using the fuel pumps.
d. Diminished property value due to the factors described above and the adverse public perception of the value of homes in proximity to a gas station.
29. The applicant has claimed the benefits to the Town that would result fromthe proposed project are:
a. The larger convenience store will feature enhanced food and beverage offerings.
b. The design of the convenience store will make it accessible to persons with disabilities
c. The project will provide “one-stop” convenient shopping for alcoholic beverages, fuel, and convenience store products.
d Increased landscape buffers over those that currently exist between the proposed new building and Route 6 and between the subject property and the surrounding residences to the east.
e. Increased employment at the property.
30. After considering the District Objectives for the commercial zoning district as provided for in Wellfleet Zoning Bylaw 3.2 and the relevant criteria set forth in Wellfleet Zoning Bylaw 8.4.2, the Zoning Board of Appeals finds that the adverse effects on the Town and the vicinity of the proposed project as outlined in the paragraphs above would be substantial and permanent and the benefits of the proposal as outlined above do not outweigh the adverse
effects.
31. The Zoning Board of Appeals finds that the proposed project will be detrimental and tend to reduce property values in the neighborhood by reason of glare, odor, fumes, noise, and traffic congestion as provided for in Wellfleet Zoning Bylaw 5.2.
Roger Putnam moved to approve the Findings of Fact; seconded by Manny Heyliger; passed 5-0
Bruce Drucker moved that based upon the foregoing Findings of Fact, the Board denies the application for the Special Permits in total; seconded by William Nicholson; passed 5-0.
Other Business
Roger Putnam moved to approve the January 5, 2012 amended meeting minutes; seconded by Manny Heyliger; passed 5-0.
Roger Putnam moved to approve the January 19, 2012 amended meeting minutes; seconded by Manny Heyliger; passed 5-0.
Bruce Drucker moved to adjourn at 9:40 pm; seconded by William Nicholson;
passed 6-0.
Respectfully submitted,
Christine A. Bates
Committee Secretary
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