Approved
Minutes of Zoning Board of Appeals Public Meeting
Date: October 4, 2012
Time 7:00 PM
Location: Wellfleet Sr. Center
Attendees:Vern Jacob, Bruce Drucker, William Nicholson, Manny Heyliger, Roger Putnam, Mick Lynch, Sharon Inger, and Christine Bates, Committee Secretary
Regrets:~ Robert Hankey and Sibel Asantugrul
Chair Jacob called the meeting to order at 7:09 pm and stated the meeting was tape recorded.
7:01 pm
12-18 Nickerson Lumber, 45 Commercial St., Map 15, Parcel 102: Application for a Special Permit under WZB 5.3.2 and MA GLc40 s6:~ build a covered lumber rack 85’ x 10’ by 14’ in height and request a floodplain exemption under 6.14.3 and 6.14.3.1 (Cont’d from 08/02/12). The Board consisted of Vern Jacob, Bruce Drucker, Manny Heyliger, William Nicholson and Mick Lynch. Attorney John Idman of Singer and Singer requested a withdrawal without prejudice of the current application due to the Revisions to Permit Act. Special Permit 07-15, which was approved in 2007, is now still in existence and the applicant can construct the original racking system. William Nicholson moved to allow the applicant to withdraw without prejudice; seconded by Manny Heyliger; passed 5-0.
7:04 pm
12-22 Rispoli Ventures, LLC, 15 Lecount Hollow Rd., Map 30, Parcel 22: WZB 8.4.2 and M.G.L.c.40A section 6, Petitioner seeks a Special Permit for the movement of walk-in coolers from east side deck to north side deck, extension of the east end of north side covered deck, approval of altered parking plan, and construction and use of coffee bar under south side covered patio. (Cont’d from 09/06/12). Mick Lynch recused himself. The Board consisted of Vern Jacob, Bruce Drucker, Manny Heyliger, William Nicholson and Roger Putnam. Attorney
Zehnder stated he requested a continuation to November 1 because an amendment to Special Permit 09-07 for a revised parking plan was submitted and will be heard on November 1, 2012. For the record, he stated most of the outside seating has been removed. Phillip Rispoli was to have shown up at the meeting and Attorney Zehnder received a message he was not going to make it.
Attorney Zehnder requested, on behalf of the applicant, to withdraw the coffee-to-go bar (application #12-28) and would be willing to have the hearing solely on the walk in coolers and decking. Attorney Zehnder stated he is hopeful that there may additional parking across the street with a new owner of that property, but the parking has to be addressed along with seating at the November 1 hearing. Mr. Drucker stated 12-22 is an application with three requests and he read meeting minutes of May 2012 stating the Board requested 3 separate applications. The Board would like to go forward with the application for the walk in coolers and decking. The July 19, 2012 letter from Attorney Zehnder was read into the record, removing the coffee bar and parking plan from the application. Bruce Drucker moved that the applicant
withdraw without prejudice that part of the application for the altered parking lot and the go-to coffee bar; seconded by Roger Putnam; passed 5-0.
Bruce Drucker gave the history of the four Special Permits granted to the applicant and provided examples of how the applicant ignored the terms of three of the permits, including the construction changes, changes to the roof over the patio and deck, and the seating. The applicant changed the configuration of the parking area and made a brick patio in front of the restaurant.The applicant built the deck extension on the north side of the building rather than the east side and placed the walk-in coolers on the north rather than east side. Attorney Zehnder stated the Conservation Commission approved the amendment to the Order of Conditions which included the revised parking plan and the decking holding the coolers. Mr. Zehnder stated when the overbuilding occurred, he came before the Board and stated he had
tried to solve the problems between the Board and the applicant.
David Sullivan of Gull Pond Road questioned why there was not additional parking in the lawn area. Mick Lynch, abutter, stated the Zoning Board members went out of their way to approve the previous applications and feels the applicant has not adhered to the Findings of Fact and conditions and lacked respect to the bylaws and town. Attorney Zehnder asked the Board to review the location of the cooler and decide if it is detrimental to the neighborhood and not have the coolers be seen from the road, as previously permitted. Bruce Drucker stated if approved, this would condone the applicant's course of conduct violating the prior special permits and WZBL. Jeff Stewart from the audience questioned if the Building Inspector would be involved with the violations based on a denial of this application, would the
applicant respect the town and Board in the future. The Board discussed the merits of approving or disapproving the application and adjourned at 8:12 pm for a break. The Board reopened the meeting at 8:16 pm
Roger Putnam moved for Findings of Fact: seconded by Manny Heyliger ; passed 5-0.
1. This is an application for Special Permit: (i) to construct and use a “to-go” coffee bar under a portion of the existing south side roof overhang of the existing restaurant and retail structure; (ii) for approval of an altered parking plan; and, (iii) for the movement of walk-in coolers from the east side deck to the north side deck and the extension of the east end of the north side covered deck.
2. The Board has unanimously approved the applicant's requests to (i) withdraw without prejudice that portion of the application to construct and use a “to-go” coffee bar under a portion of the existing south side roof overhang of the existing restaurant and retail structure and (ii) withdraw without prejudice that portion of the application for approval of an altered parking plan.
3. This lot and uses on it have been the subject of four prior special permits pursuant to applications filed by this applicant and are the subject of two pending special permit applications filed by this applicant.
4. The Zoning Board of Appeals has made several site inspections of the lot and building which is the subject of this application and has reviewed all plans and drawings submitted with respect to this application.
5. The subject lot is 50,995square feet containing a building used as a restaurant, retail bakery, and “take out” of sandwiches and various prepackaged retail food products.
6. The Board must take into account the fact that the applicant has failed to adhere to prior special permits issued at the applicant's request and has violated Wellfleet Zoning Bylaws.
7. The 1st special permit issued on February 24, 2009 in application 09 – 07 provided among other things that there would be 60 seats inside the restaurant and 24 seats on the then outside deck of which only 60 would be used at any one time. In fact, in excess of 60 seats are used in the restaurant during the tourist season. The parking plan approved pursuant to the February 24, 2009 special permit provided for 25 spaces with 22 spaces being required. In fact the applicant has reconfigured the parking lot without prior approval and there are
presently less than the required spaces.
8. The 2nd special permit was permit issued on February 25, 2010 in application 10 – 04 for the construction of an outdoor deck for eating to replace the existing patio. It provided that the applicant could have a framed removable awning over the deck. In fact, the applicant constructed a roof over the deck which is not removable. In addition, during the construction of the deck, the siding was constructed in a manner violating the approved drawings and was subsequently corrected at the request of the board.
9. The 3rd special permit was issued on November 28, 2011 in application 11 – 09 in which the applicant received a special permit to place walk-in coolers on an east side 1st floor deck. In fact, subsequent to the issuance of the permit, the applicant constructed a deck extension on the north side of the restaurant on which the applicant installed walk-in coolers larger than those specified in the special permit. This application seeks approval after the fact for the construction of the north side deck and placement of the walk-in coolers on
that deck.
10. In violation of the Wellfleet Zoning Bylaw during the summer of 2012 the applicant placed outdoor seating for over 40 diners on the property without a special permit. In addition, the outdoor seating was in violation of the representations made at the hearings for the prior special permits and in the findings by this Board that there would be no increase in seating or in the use of the property. That outdoor seating was subsequently removed at the request of the board.
11. The applicant has failed to demonstrate that the board should alter or amend prior special permit 11 – 09 issued on November 28, 2011 for the installation of walk-in coolers on the east side deck and the board does not approve the extension of the east end of north side covered deck and the installation of the coolers on that north side deck in violation of the special permit and WZBL. Special permit 11 – 09 is incorporated by reference herein.
12. The extension of the east end of north side covered deck and installation of the coolers on it is more substantially detrimental to the neighborhood than the existing uses and non-conformities.
13. After considering the District Objectives for the zoning district as provided for in WZBL 3.2 and the relevant criteria set forth in WZBL 8.4.2, the Board finds that the benefits of the proposal will not outweigh any adverse effects on the Town and the vicinity.
Bruce Drucker moved the Findings of Fact; seconded by Roger Putnam; passed 5-0.
Based upon the foregoing Findings of Fact, the Board:
A) Denies by a vote of 4 in favor of denial and 1 opposed to denial that portion of the application for the movement of walk-in coolers from the east side deck to the north side deck and the extension of the east end of the north side covered deck. The Board reaffirms the November 28, 2011 special permit application 11 – 09 and incorporates it by reference herein.
B) The Board votes unanimously to grant the applicant's request for withdrawal without prejudice of that portion of the application to construct and use a “to-go” coffee bar under a portion of the existing south side roof overhang of the existing restaurant and retail structure.
C) The Board votes unanimously to grant the applicant's request for withdrawal without prejudice of that portion of the application for approval of an altered parking plan.
12-28 Rispoli Ventures, LLC, 15 Lecount Hollow Rd., Map 30, Parcel 22, Application for a Special Permit under WZB 8.4.2 and M.G.L.c.40A Section 6 to construct and use a “to-go” coffee bar under portion of the existing south side roof overhang. (Cont’d from 09/06/12). The Board consisted of Vern Jacob, Bruce Drucker, Manny Heyliger, William Nicholson and Roger Putnam. Attorney Zehnder requested a withdrawal without prejudice. Bruce Drucker moved to approve the withdrawal without prejudice; seconded by Manny Heyliger; passed 5-0.
Other Business
Roger Putnam moved the minutes of~ September 20, 2012; seconded by Bruce Drucker; passed 5-0.
Bruce Drucker moved to adjourn at 8:45 pm; seconded by Manny Heyliger; passed 5-0.
Respectfully submitted,
Christine A. Bates
Committee Secretary
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