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HomeMy WebLinkAbout1330 Phinney's Variance Memo FINAL v3 1 4924-8158-0737, v. 3 MEMORANDUM To: Barnstable Zoning Board of Appeals From: Johanna W. Schneider, Esq. Date: August 10, 2026 Re: 1330 Phinney’s Lane, Hyannis ______________________________________________________________________________ In connection with the application of the Cape Cod Commission (the “Commission”) to modify the conditions of prior Zoning Board of Appeals (ZBA) decision in Appeal No. 1995-109, as modified in Appeal No. 2009-045, set forth below is a discussion of the requested relief and compliance with the criteria of Chapter 240, Section 25(B)(1)(c). I. Background In August 1999, pursuant to an Order of Remand following an earlier denial of a request for use variance in Appeal No. 1995-105, the ZBA granted a variance from the use restrictions applicable in the RF-1 (Residential F) Zoning District to permit the construction of an approximately 5,600 square foot office building on the property at 1330 Phinney’s Lane (the “Property”). In granting such use variance, the ZBA found that each of the variance criteria had been met and imposed ten (10) conditions on the approved use. These conditions included Condition No. 2, which provided, in relevant part, that “Use of the proposed building shall be limited to professional offices and/or licensed real estate broker’s offices, but shall not include any medical offices, dental offices, chiropractic offices, and/or any office related to physical therapy or medical treatment.” After the approved office building was constructed and occupied, a subsequent owner returned to the ZBA to seek a modification of Condition No. 2 of the 1995-105 decision. The ZBA in Appeal No. 2009-045 granted the requested modification,1 which replaced prior Condition No. 2 with the following language: “Use of the proposed building shall be limited to professional offices (including licensed real estate broker’s offices) and medical or dental offices […]” It also added a new Condition #4, which provides that “[a]t no time shall there be more than 15 employees on the premises.” II. Commission’s Proposal The Commission proposes to reconfigure the existing office building for use as its administrative office. Other than restriping of parking spaces and adding a small storage shed, there will be no changes to the existing site plan. 1 In its findings of fact in Appeal No. 2009-045, the ZBA noted that in Appeal No. 1995-109, it had “already found that owing to unique conditions of the locus, a literal enforcement of the ordinance would result in a substantial hardship because a ‘residential use can not be made of the property.” 2 4924-8158-0737, v. 3 The office will operate during typical office hours (approximately 8 am to 4:30 pm). The Commission currently has 32 full-time and 3 part-time employees; all employees have a varied and flexible hybrid work schedule, most with two in-office and three remote workdays. Staff will host occasional meetings with external visitors; walk-in visits are rare. Cape Cod Commission board meetings are primarily fully remote or provide a hybrid option; any fully in- person meeting of the full Cape Cod Commission board will be held at Barnstable County’s Mary Pat Flynn Conference Room. III. Relief Sought The Commission is requesting that the ZBA take the following two actions to facilitate its use of the existing office building for its administrative offices: (1) Confirm that the Commission’s proposed government office use is permitted within the existing approved professional office use. • There is no formal definition of “government office use” in the Zoning Ordinance , and while the Commission’s proposed office use will be decidedly administrative in nature, given that it is not a professional business, but rather a public governmental agency, to avoid any ambiguity, we are seeking this formal clarification that the use is permitted under the existing use variance. (2) Remove Condition No. 4 from the Appeal No. 2009-045 Modification Decision, which limits the number of employees at the Property to no more than fifteen (15). • For the reasons set forth below, if this condition is not removed, as a practical matter, the Commission will not be able to use the Property for its offices. IV. Compliance with Variance Criteria Pursuant to Section 25(B)(1)(c) of the Zoning Ordinance, the ZBA is authorized to grant variances from the terms of the Ordinance where “owing to conditions especially affecting such parcel or such building but not affecting generally the zoning district in which it is located, literal enforcement of the provisions of this chapter would involve substantial hardship, financial or otherwise to the appellant, and where desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this chapter, but not otherwise.” The requested modification of the use variance granted in Appeal No. 1995-109, as modified by the decision in Appeal No. 2009-045, meets all of these criteria. As an initial matter, as found by the ZBA in 1999 and affirmed in 2009, owing to unique conditions of the locus, a literal enforcement of the ordinance would result in a substantial hardship because a “residential use cannot be made of the property.” As such, notwithstanding the RF-1 zoning designation, the office use of the Property allowed by variance continues to be appropriate; the ZBA’s prior reasoning in this regard applies to the existing professional and medical uses allowed as well as to the Commission’s proposed governmental office use. 3 4924-8158-0737, v. 3 With respect to 15-employee cap imposed in the Appeal No. 2009-045 modification decision, this condition creates a substantial hardship to the Commission. Having rented the space within the Barnstable County Complex for decades, the Commission has long sought to purchase a suitable property within proximity to its existing location so as not to unduly disrupt its professional staff. The Property is currently under agreement, with Barnstable County acquiring it on behalf of the Commission. Because the Commission currently has 32 full-time and 3 part- time employees, a 15-employee cap will make the Property infeasible for the Commission’s intended use. If this restriction is not removed, the Commission will have no choice but to terminate the purchase agreement and continue to seek an alternative property for relocating its operations. The Commission’s requested clarification and modification of the existing use variance can be granted without substantial detriment to the public good and without either nullifying or substantially derogating from the intent or purpose of the Zoning Ordinance. The proposed change of use has already received site plan approval following Town departmental review pursuant to Article IX of the Zoning Ordinance, evidencing that there are no public health or safety concerns; moreover, given that there are no contemplated changes to the building foot print or site plan, there will be no issues with flooding or other site disturbance. Accordingly, the requested relief will neither nullify nor substantially derogate from the intent and purpose of the Zoning Ordinance. The requested ZBA action can also be granted without substantial detriment to the public good. Other than potential restriping of parking spaces and adding a small storage shed, there will be no changes to the existing site plan and the only exterior work on the existing building will improve accessibility, such that there will be no detriment from any work done to accommodate the Commission’s office use. As described in the accompanying memorandum from the Commission’s Deputy Director/Transportation Planning Director, data from the 12th Edition of the Institute of Transportation Engineers (ITE) Trip Generation Manual indicates that there will be a reduction in trips from the proposed land use change . Moreover, also as discussed in the accompanying memorandum, data from the most recent edition of the Institute of Transportation Engineers (ITE) Parking Generation Manual shows an average peak observed demand of 18 spaces for a 5,580 sq. ft. building, indicating that the 28 parking spaces provided at the Property are more than sufficient to accommodate the parking needs of the Commission’s proposed operations. In addition, as noted above, any fully in-person Cape Cod Commission board meeting will be held at Barnstable County’s Mary Pat Flynn Conference Room, further mitigating concerns about traffic and parking impacts from the change of use. In all, the Commission’s proposed use will be less intensive than the existing approved use, such that lifting the current 15-employee cap can be done without harm to the public good.