Loading...
HomeMy WebLinkAbout0934 IYANNOUGH ROAD/RTE132 4 r 4 ' f ' j i J 1 J AIA7L3.LE. / 774. Ii.T,�1 1Ml i C. l.lr':;_'.. Town of Barnstable Zoning Board of Appeals Decision and Notice Appeal Number 1998-109 -Sam Diego's Special hermit Pursuant to Section 4-4.4(2) Nonconforming Building or Structure Not Used as Section 3-3.6(3)(A) Conditional Uses In the H6 Highway Business Zoning District, in accordance with Section 5-33 Special Permit provisions Summary: Granted with Conditions Petitioner: Sam Qiego's Property Address: 934,938 and 950 lyannough Road, Hyannis Assessor's Map/Parcel: Map 294, Parcels 006, 069.002, 069.003 and 073 Area: 2.94 acres Building Area: 5,782 sq.ft. Zoning: HB Highway Business Zoning District Groundwater Overlay: GP Groundwater Protection District Background: The property consists of 4 parcels totaling 2.94 acres on the northwest corner of Route 132 and Independence Drive and is commonly addressed as 950 lyannough Road (Route 132), Hyannis. It is improved with a 5,782 sq. ft. restaurant (Sam Diego's). The applicant proposes to expand,the existing. restaurant by constructing a 6,206 sq. ft, addition and an outdoor patio area of approximately 3,400 sq. ft.. to the eastern side of the building. The site is located in an HB Highway Business Zoning District. Offices and banks are the only uses allowed as Principal Permitted Uses in this district. Restaurants are permitted as a conditional use in HS Districts with approval of a Special Permit by the Zoning Board of Appeals. According to assessor's records, the existing building was built around 1950. From 1956 to 1983 the property was within a B Business Zoning District which allowed restaurants. In November of 1983, the property was rezoned to an HB Highway Business Zoning District (ATM 11/7/83, Art. B-1(d)). Uses permitted in the B Zoning District were allowed in the HB District only by Special Permit from the Zoning Board of Appeals, so all commercial uses became nonconforming- A zoning amendment passed May 7, 1988, made offices and banks the only Principal Permitted Uses in the HB Highway Business Zoning District, Restaurants became a conditional use allowed by Special Permit. Requested Relief: The applicant is seeking several forms of zoning relief to allow the proposed expansion of the existing restaurant, which is currently nonconforming with regards to use and the front yard setback. The applicant has applied for a Special Permit pursuant to the following sections of the Zoning Ordinance: A. Special Permit for the alteration and expansion of a nonconforming building or structure not used as a single or two-family dwelling (Section 4-4,4(2)). There is a minimum 100 foot front yard setback required on the property. The existing buildiny is presently situated only 22 feet front th6 tront s property line. The proposed addition will encroach to within 20 feet of the front boundary and the proposed patio will encroach to within 19 feet of the front property line. , I own of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal No. 1998-109-Sam Diego's Special Permit pursuant to Section 4-4,4(2), Section 4-4.5(2)&Section 3-3.6(3)(A)in accordance with Section 5-3.3 B. Special permit for the expansion of a pre-existing nonconforming use (Section 4-4.5(2)), The use of the property as a restaurant is pre-existing nonconforming. C. Special Permit for a restaurant, a Conditional Use in the HB zoning District(Section 3-3.6(3)), all in accordance with Section 5-3.3 Special Permit Provisions. Procedural Summary: This appeal was filed at the Town Clerk's Office and at the Office of the zoning Board of Appeals on August 4, 1998. A 30 day extension of time for holding the hearing and for filing of the decision was executed between the applicant and the Board Chairman. A public hearing before the Zoning Board of Appeals was duly advertised and notices sent to all abutters in accordance with MGL Chapter 40A. The hearing was opened September 23, 1998 and continued to October 21, 1998, at which time the Board granted the request with conditions. Hearing Summary: Board Members hearing and deciding this appeal were Richard Boy, Gail Nightingale, David Rice, Thomas DeRiemer, and Chairman Emmett Glynn., Attorney Michael Ford represented the applicant. Supporting staff present were Robert Kershaw, representative of Sam Diego's; Steve Hass, Eagle Survey; Clarke Buchanan, representative of Sam Diego's; Dan Supernant; Ken Sadler, Architect; Joseph Stupar, Traffic Consultant; Arne Ojala, Down Cape Engineering and Gordan Clark, Architect, Attorney Ford submitted a memorandum in support of the appeal to the file. To show standing, Mr. Ford submitted the existing lease for Sam Diego's, the Lease Addendum which covers the new area, the Quitclaim, Deed, and a Mortgage Agreement. Attorney Ford reported the locus is approximately 3 acres of all contiguous upland, Sam Diego's has been there for sixteen years, but the site has had a restaurant use since the 1950s. In 1983 when this areas was zoned HB Highway Business Districts the restaurant became a legal nonconforming use because a restaurant use now required a Special Permit. The structure itself also became nonconforming because the HB Highway Business District adopted a 100 foot front yard setback requirement along Route 132. Both the use and the structure are legally pre-existing nonconformities. The restaurant currently is 5,100 square feet and the proposed addition is 4,932 square feet with a 1,800 square foot patio. The seating Is now 200 and the proposal (counting both the seasonal patio and the addition) would total 342 seats, There will be 141 paved parking spaces and 28 gravel spaces for a total of 169 spaces. The total impervious area is under the 50%, maximum requirement and the total natural area will be above the 30% requirement. The plans received Site Plan Review Approval on July 2, 1998, As to egress and ingress, Attorney Ford reported there will be a right in and right out off of Independence Drive, Along Route 132,the most easterly entrance way/curb cut will be closed off and landscaped, per request of Site Plan Review, The westerly entrance way/curb cut will be narrowed to 24 feet. Attorney Ford reviewed the relief being sought. A Special Permit pursuant to Section 4-4.4(2) for an expansion of a nonconforming structure which may be granted if the expansion is deemed not to be substantially detrimental to the area. He explained that the closing of a curb cut, the added greenspace and buffer zone, and the combining of vacant parcels, all substantiate that the proposal is not detrimental to the neighborhood. The other requested relief is either a Special Permit pursuant to Section 4-4.5(2) for an expansion of the nonconforming use or a Special Permit for a restaurant in the HS Highway Business District pursuant to Section 3-3.6(3). Attorney Ford is of the opinion that a Special Permit under Section 3-3.6(3) is the better relief to grant because then the use would become conforming by virtue of the Special Permit. He stated the relief in Section 3-3.6(3) can be granted because the proposal fulfills the criteria under Section 5- 3.3(2). Attorney Ford indicated that the use will not substantially affect the public health, safety or welfare of the community and will result in the area having better access, additional parking, landscaping and buffer zones, I , Town of Barnstable-Zoning Board of Appeals Decision and Notice Appeal No. 1998-109-Sam Diego's Special Permit pursuant to Section 4-4,4(2), Section 4-4.5(2)&Section 3.3.6(3)(A)in accordance with Section 5-3,3 The Board expressed a concern for the Route 132 curbcuts. The applicant Is not proposing to limit the entrance to right in and right out only, However it may be preferred that the Curbcut be limited to right turns out only, The Board questioned the queuing distance to the intersection of 132 and Independence Drive, Mr. Joseph Stupar, Traffic Engineer, cited that the distance is 345 feet and in his opinion, the number of cars exiting the restaurant would not cause queuing problems, Mr. Stupar reported on the traffic counts and trip generation information. He cited that the counts submitted are actual on-site traffic numbers, and that information related to the Cape Cod Mall Expansion was incorporate into the report, Regarding the left turn movement in and out onto Route 132, Mr. Stupar indicated that many people will now use the new exit onto Independence Drive instead of trying to turn left onto Route 132. This new egress will lead the people into Independence Drive and thus alleviate the need for them to turn left onto Route 132, His report indicates that the exit onto Route 132 will probably be used by people wanting to turn right onto Route 132, Mr. Stupar explained that if the Route 132 curbcuts are closed and all the traffic is required to turn onto Independence Drive, those wishing to go back up Independence Drive can not because of the median strip. They will have to turn right, go out onto Route 132 and then make a u-turn back up Independence Drive. The Independence Drive/Route 132 traffic signal will help with the turning in and out of the site as it will create gaps when people are waiting for the light, All of the driveways for the project have an adequate Level of Service (LOS) with no LOS "e" or'T' for the driveways. Mr. Stupar stated his report does not take into account the benefits of the Attucks Way Extension that will only improve the LOS in this area. With reference to Independence Drive and Route 132, the LOS is borderline"c/d"for the intersection and Mr. Stupar stated the traffic impact generated by Sam Diego's is very little and the LOS will remain the same and have little -to no-effect on the intersection, Attorney Ford reported the Cape Cod Mali Expansion plans for Enterprise Road are now part of Phase I and Phase II and are scheduled to start soon, Public Comments: No one spoke in favor or in opposition to this appeal. The Board reviewed the road layout improvement plans for Independence Drive and Route 132 and the proposed elevations and floor plans for Sam Diego's. It was noted that there will be 342 seats of which 70 are seasonal, and in a patio area, There will be two small bar areas. There are no plans for live entertainment at this time. The principal use of the site is that of a restaurant, the bar is small and secondary. The Board stated they needed additional time to review the traffic report submitted by Mr. Stupar, The Board asked the applicant to look at the site with and without the easterly curbcut in place, and asked Mr. Ford to address the issue of signage. The appeal was continued to October 21, 1998, At fhe 0rtnhpr 21, 1998 contintd;ince Attorney Ford rovicwcd the new site plan. It shows 11ie easterly curb cut still having three parking spaces along the left side. At the request of the Board Members, those three spaces will be removed and more green space will be added. The easterly curb cut(on Route 132)will be ingress only. The westerly curb cut will be both ingress and egress with the exit being restricted to right turn only since the applicant will place a"no left turn" sign at the curb out onto Route 132. With reference to a proposed sidewalk along Route 132, there is only a rumor that there will be a sidewalk in front of this site, If that doce ocour later, tho applicant will disuu5s it at that true with the I own of Barnstable Department of public Works (DPW). I • Town of Barnstable-zoning Board of Appeals-Decision and Notice Appeal No. 1998-109-Sam Diego's Special Permit pursuant to Section 4.4.4(2), Section 4-4.5(2)&Section 3-3.8(3)(A)in accordance with Section 5.3.3 Findings of Fact: At the Hearing of October 21, 1998, the Board unanimously found the following findings of fact as related to Appeal No. 1998-109; 1. The applicant is seeking a Special Permit pursuant to Section 4-4.4(2) Nonconforming Building or Structure Not Used as Single or Two-Family Dwellings, and Section 4-4 5(2) Expansion of'a Pre- Existing Nonconforming Use, and Section 3-3.6(3)(A) Conditional Uses in the HB Highway Business Zoning District all in accordance with Section 5-3.3 Special Permit Provisions, 2. The applicant is Sam Diego's with a property address of 934, 938 and 950 iyannough Road, Hyannis, MA as shown on Assessor's Map 294, Parcels 006, 069.002, 069,003 and 073. The site is 2.94 acres with a building area of approximately 5,100 square feet, located in the HB Highway Business Zoning District and the GP Groundwater Protection Overlay District. 3. The property is currently owned by Ruth C, Moy. Parcels 069.002 and 069.003 were recently purchased from Independence Park, Inc. The petitioner, Sam Diego's, is the lessee of the property. They have submitted leases for the property and have shown to have standing before the Zoning Board of Appeals. 4. The locus is located in the Highway Business zone and the property currently has located on it an existing restaurant building consisting of approximately 5,100 square feet. According to the Assessor's records the restaurant was built sometime in the 1950's. The locus was zoned Business up until 1983 at which time it was rezoned Highway Business, 5. The restaurant was a permitted use as a matter of right in the Business Zone and the Business Zone had no minimum lot area, width or side setback, but required a 20' lot frontage and a 20'minimum front yard setback, 6. In 1903, when the Highway Business zoning was adopted, the restaurant became a nonconforming use (restaurants being permitted only by special permit)and the structure became nonconforming (in that a 100'setback was required from Route 132), , 7, The Petitioner proposes to expand the restaurant and patio on the site by adding a 4,932 square feet addition to the building and a 1,800 square feet patio. 8. The proposed total seating at the expanded restaurant would be 342 seats, both inside and out, and as a result 139 parking spaces are required. The Petitioner proposes 140 paved parking spaces and 28 gravel spaces for a total of 158 parking spaces, of which six(6)would be handicapped. This is in excess of what is required. 9. Given the additional land area to be added to the site the total impervious will be under the(50%) fifty percent maximum and the total natural area will be just above the thirty (30%) percent maximum for the site as shown on the revised submitted plan. As a result, both requirements (of the zoning Ordinance) are satisfied. 10. A large buffer will be observed (approximately 86') from the layout of Independence Drive to the patio running the length of Independence Drive along the lot up to the entrance off of Independence Drive to the back parking lot. 11. The Petitioner has completed Site Plan Review and the proposal was found approvahle. 12. The Petitioner has commissioned a traffic report by Vanasse and Associates, Inc. The Traffic Report concludes that the proposed project and ingress/egress plan indicates that there will be a minimal change in the level of service at the intersections effected, 13, The Petitioner is seeking a Special Permit to expand the pre-existing nonconforming use (restaurant in a Highway Business zone without the benefit of a special permit), or is seeking a Special Permit pursuant . to Section 3-3.6(3)(A), a restaurant use in a Highway Business Zone, 14. The neighborhood is a highly developed commercial area bordered on the west and north by the property of the !=lately Co. consisting of several large retail outlets and bordered to the east by other land either developed or planned for development for retail purposes and to the south by the proposed expansion of the Cape Cod Mail, 15, The proposed expansion of the building stays on a line with the existing restaurant building and at its closest point is 20' set back from Route 132 and the patio is 19'back from Route 132. it would be a 4 Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal No. 1998-109-Sam Diego's Special Permit pursuant to Section 4-4.4(.2), Section 4-4,5(2)&Section 3.3.6(3)(A)in accordance with Section 5.3.3 severe hardship on the part of the petitioner to move the building back to comply with the required setback. 16. The expansion of the restaurant includes additional parcels of land combined to the existing parcel to create one lot providing for an adequate site size to service the expanded restaurant both in terms of parking, green space, landscaping and ingress and egress. 17. The expansion of the restaurant will not be more substantially detrimental to the neighborhood:if the nonconforming building is permitted to expand as proposed. 18. To issue a Special Permit under Section 3-3.6(3)(A)to permit the restaurant use in a Highway Business Zone, would be the preferred form of relief over an expansion of a nonconforming use. The use, while nonconforming, is permitted in this District by grant of a Special Permit, 19, The use will not substantially affect the public health, safety, welfare, comfort or convenience of the community in that it is an existing restaurant which, while being expanded,will have better access, additional parking, landscaping and buffers, 20. The Application clearly falls within the category specifically excepted by the Ordinance in that a restaurant use is permitted in this zone upon issuance of a special permit. 21, The relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the Zoning Ordinance. . Decision: Based upon the findings a motion was duly made and seconded to grant the Applicant the relief being sought with the following terms and conditions: 1. The property shall be developed according to a plan titled"Site Plan of Land, 950 lyanough Road Barnstable, MA", prepared for Sam Diego's by Eagle Surveying, Inc. and dated June 1, 1998 with a revised date of September 29, 1998 with the exception that the applicant shall remove the three existing parking spaces in the right-of-way along Route 132. 2, All improvements shall be to the satisfaction of the Town of Barnstable Department of Public Works, Engineer Division and the Building Commissioner. 3. The use of the property is limited to a 10,032 square feet structure and a 1,800 square feet patio to total 11,832 square feet with a maximum seating capacity of 342, including 92 outdoor seats. The outdoor patio shall be for seasonal use only. 4. Breakfast shall not be served on a regular basis. 5. All runoff shall be contained on-site. Drainage shall be installed in accordance with plans reviewed by the Engineering Department. 6. Exterior lighting fixtures shall be no greater than 20' in height and shall be shielded if necessary to prevent light spilling onto adjacent roadways and properties. 7. The westerly curb cut on Route 132 shall be right out only, A"No Left Turn"sign shall be posted at the exit. 8. All requirements of Licensing, the Health Division, Building Division and Hyannis Fire Department must be met before a building permit is issued. 9. The Petitioner is required to file a new site plan showing the removal of the three parking spaces and where the green strip will be installed. Discussion: The Board discussed the signage on the site. The applicant will work with Gloria Urenas on proposed signs. The Vote was as follows: AYE: Gail Nightingale, Richard Boy, David Rice, Thomas DeRiemer, and Chairman Emmett Glynn NAY: None 5 II F Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal No. 1998-109-Sam Diego's Speelal Permit pursuant to Section 4-4.4(2),Section 4-4.5(2)$Section 3-3.6(3)(A)in accordance with Section 5-3.3 Order: , Special Permit Number 1998-109 for a Conditional Use(a restaurant)In the HB District and for the''�fR; ;4i Expansion of a Non-conforming Structure has been granted with conditions. The request for an expansion of a non-conforming use is negated by the grant of the Conditional Use Special Permit. i, This decision must be recorded at the Registry of Deeds for it to be in effect. The relief authorized by this ,Ea decision must be exercised in one year. Appeals of this decision, if any, shall be made pursuant to MGM Chapter 40A, Section 17,within twenty :-; (20) days after the date of the filing of this decision. A copy of which must be filed in the office of the To Clerk. /l�'o� • , 1998 Emmett Glynn, Chairman Date Signed I Linda Hutchenrider, Clerk of the Town of Barnstable, Barnstable County, Massachusetts, hereby certify that twenty (20) days have elapsed since the zoning Board of Appeals filed this decision and that no appeal of the decision has been filed in the office of the Town Clerk. Signed and sealed this—�� day of D�.f_, 1998 under the pains and penalties of perjury. Linda Hutchenrider, Town Clerk 6 r I- GENERAL NOTES: _ LOCUS MAP „sue m a,mu u xw.. - �` •, _ mu°•u w °ANRINR ML ATIONS: • .� 5/ T N F N E PLA O LAD BARNS TABLE,yo r<..nl s. MA. SA M F ON/EGO.'S `;• e o .,o<cs.�o Roo —All EAGLE SURVEYING Message Page 1 of 2 Barrows, Debi From: Perry, Tom Sent: Tuesday, December 04, 2007.3:36 PM To: Barrows, Debi Cc: Swiniarski, Ellen Subject: FW: Request for Documents -----Original Message----- From: Lauren M. Bolognese [mailto:bolognese@ths-law.com] Sent: Tuesday, December 04, 2007 2:35 PM To: Perry, Tom Subject: Request for Documents Dear Mr. Perry, I am a paralegal at the law firm of Tucker, Heifetz, and Saltzman LLP, and I am contacting you on behalf of Attorney Scott J. Tucker. We are involved in a case regarding an accident that took place on Rt. 132 in Hyannis at the-corner'of Iyannough Road and Independence-Drive on June 30,200&.. In this case, a vehicle exited the parking lot for Sam Diego's restaurant and proceededto go the wrong l way on the divided road,resulting in a collision with a motorcycle. Our fir_m represents Bortolotti Construction, the company who paved the lot for Sam Diego's. I had previously contacted Mr.James Benoit of the'GIS Department to see if he could provide C7any documents relative to pavement marking plans and/ or work orders that were in place for the- , cintersection of•Route 132 and Independence Drive during.the time of the,accident(6-/30/04)?Mr. Benoit kindly provided some aerial.photos,but suggested that I contact you.for additional documents as your department may have reviewed plans of any proposed parking lot layouts or curb.cuts at the Sam Diego's restaurant. If you possess any documents that would be of help,would'you kindly provide them to us?Your assistance is very much appreciated and I look forward to hearing from you. Should there be a charge for producing these documents,please send along`a bill and I will remit payment promptly. Lauren M. Bolognese Paralegal .Lauren M. Bolognese, Paralegal + Tucker, Heifetz Fj Saltzman ^� 100 Franklin Street J Boston, Massachusetts 02110 ' Telephone: 617-557-9696 Fax: 617-227-9191 Email: bolognese@ths-law.com <<mailto:bolognese@ths-law.com>> Website:.www.ths-law.com <http_//www.ths-law.com/>> 12/4/2007 Assessor's office(1st Floor): Assessor's map and lot number %7" / 0,0- Pao*TM E to`` Conservation' Board of Health(3rd floor): { '��T►nt Sewage Permit number � rya Engineering Department(3rd floor): oo #639. House number Ito Y1v r Definitive Plan Approved by Planning Board 1g APPLICATIONS PROCESSED 8:30-9:30 A.M.and 1:00-2:00 P.M.only TOWN i OF BARNSTABLE BUILDING INSPECTOR � 1 . APPLICATION FOR PERMIT TO �gI��G/yJll'?2 �- �' L/ TYPE OF CONSTRUCTION i 19 / �4 TO THE INSPECTOR OF BUILDINGS: The undersigned hereby applies for a permit according to the following information: Location_1l� u I3Z�T.tIJFpER/�tiG� J� , 1J.��litl�S ���1> FR,5,)e-ff 1-0,qoP9,�r'�/� Proposed Use Zoning District Fire District l, Name of Owner �Nl��f� iV�E E FOAle- ::Nam. Address f',C)•eW /77(, *4)N,,5,M,4- Name of Builder Address Name of Architect Address Number of Rooms Foundation Exterior Roofing Floors Interior Heating Plumbing Fireplace Approximate Cost / COPE47-V/ Area Diagram of Lot and Building with Dimensions Fee ,-F4�,e vJ OCCUPANCY PERMITS REQUIRED FOR NEW DWELLINGS I hereby agree to conform to all the Rules and Regulations of the Town of Barnstable regarding the above construction. Name r Construction Supervisor's License a ti INDEPENDENCE PARK, INC. No 35763 Permit For DEMOL I S H ` Single Family Uwe rl- a J 4 -Location 934~Route 13� a-t Independence Drive 3 I Hyannis r Owner +Independence Park `�»,Inc Type of Construction • Frame 1 F R" ; 0 ro 1 ( I Plot! Lot , { L Permit Granted April 13 , 19 93 Date of Inspection _ 19 + ; t Date Completed 19 - - la t-t E 1 ! x f + F 1 + Assessor's office(Ist Floor): r' ma and lot numb Assessor's p Conservation(4th Floor): w ew Board of Health(3rd floor): • Sewage Permit number 1 = sasi"Ask antrz ; Engineering Department(3rd floor): . °° House number Definitive Plan Approved by Planning Board 19 ` APPLICATIONS PROCESSED 8:30-9:30 A.M'and 11 00-2:00 P.M.only ,T a , OWN OF BARNSTABLE SUILDI;NG INSPECTOR APPLICATION FOR PERMIT TO i P,� TYPE OF CONSTRUCTION _,Z 19 TO THE INSPECTOR OF BUILDINGS: The undersigned hereby applies for a permit according to the following information: Location e74 /��✓d U `/ 5 rz v Proposed Use � Zoning District ,— Fire District Ir Name of Owner y�y 1 Address Name of Builder s-e ev C®"'S Address Name of Architect Address Number of Rooms Foundation Exterior Roofing Floors Interior Heating Plumbing Fireplace Approximate Cost Area Diagram of Lot and Building with Dimensions Fee A)6tir- a7L- OCCUPANCY PERMITS REQUIRED FOR NEW DWELLINGS I hereby agree to conform to all the Rules and Regulations of the Town of Barnstable regarding the above cons Na, ' Construction Si ipervisor's License r�LORUSSO, PAUL M No 36381 Permit For DEMOLISH Frame/ Dwelling Location 934 Iyanough Road I , uyannis Owner Paul Lorusso r' - t Type of Construction Frame ," = Plot Lot ,F Permit Granted December 10 , 19 93 Date of Inspection: Frame ,1.9 _ Insulation 19— Fireplace ' 19 cq� , Date Completed ,93 19 - J - _ r 4 1 t fie. ♦ a . Commonwealth Electric Company 0 2421 Cranberry Highway ®��Orp]C���OC� Wareham, Massachusetts 02571. Telephone (508) 291-0950 484 Willow St. Hyannis, MA 0260.1 December 10, 1993 Town of Barnstable Building Inspector's Dept. Main St Hyannis, MA 02601 To whom it concerns: Commonwealth Electric has removed the meter and service off of pole 150/53, Route 132 in Hyannis at the property formerly under the name of Rose French. It is our understanding that the building is to be torn down. Very truly yours, Barbara J. LeClair Chief Customer Service Representative Acct.#1426-736-0023 f i