HomeMy WebLinkAboutAtty Letter 02012023MICHAEL D.FORD
JEFFREY M FORD
FORD &FORD ATTORNEYS AT LAW
72 MAIN STREET,P.O.BOX 485
WEST HARWICH,MA 02671
TEL.(508)430-1900 FAX (508)430-9979
ieff@fordandfordattomevs.com
Brian Florence,Building Commissioner
Town of Bamstable Febmary 1,2023
367 Main Street
Hyannis,Massachusetts 02601
RE: 95 Falmouth Road,123 Falmouth Road,172 Walton Ave &180 Walton Ave
Dear Commissioner Florence,
Asof follow uptoourprior enforcement request and phone call,our office is writing to
youregardingthe pending BuildingPermitapplication(BP BLDC-22-227),whichseeks
to incorporate some form of serviceinthebuilding which would requirea use variance,
asit appears theusehas been discontinued onthis property.Further there appears tobe
portions ofthe Walton Avenue lots which arebeing used for display parking that is in
violation of the zoning ordinance.
1.Section 240-97;nonuse for more than 3 years
First,with respect to the discontinuance of use of vehicle service and repair for the
properties located at 95 & 123 Falmouth Road our research shows that Prime's
Mercedes-Benz pre-owned dealership occupied the site prior to 2018.In 2017,they filed
withSite Plan Review "SPR"a requestto add 123 FalmouthRdontothe existing95
Falmouth Rd license. Per the approval, hazardous materials on 123 Falmouth were
restricted to 25 gallons maximum in each of the two stmctures with no authorization for
vehicle service. 1have attached a copy of this SPR Approval as well for your review.
The following year, (April 2018)Prime's Mercedes-Benz pre-owned dealership at 95
Falmouth Rd closed. (See article CC Times attached directing customers to other
locations for service). Two years later in 2020, AMR Auto Holdings-MH,LLC / DBA
Prime Pre-Owned is issued a license for 123 Falmouth &95 Falmouth Road for a class
two license for complete vehicle repair, no showroom (see license attached). That
Licenseexpired on December 31,2020 and was not renewed for 2021.(See copy of
expired license attached).There has been no evidence presented that service was
conducted under this License.
Subsequently in 2021,the property owners, are issued a cease and desist order for
parking cars onthe residential portion of the property off Walton Avenue.Subsequently
in December of 2021,Copeland Subaru filed with SPR requesting to utilize 172 &180
Walton Ave for car displays/parking of vehicles.SPR reviews project for Copeland
Subaru and made the following comments: (in bold)
Business use may encroach 30 feet into the residential lots in accordance with 240-
(C)(3).(NOTE this is not the case for properties located in the ground water
protection district,whichcoversthe entire property. Where the boundary line
bet>veen zoning districts divides anylot existing at thetime such lineis adopted,
which has street frontage in the less restricted area,a use authorized on the less
restricted portionofsuchlotmaybe extended intothemore restricted portionfora
distance of not more than 30 feet.This subsection shall not applv to the following
districts;HO Highway Office District;Groundwater Protection Overlay Districts:
Adult Use OverlayDistrict;ShoppingCenter Redevelopment OverlayDistrict;M.A-
2 Business District;OR Office Residential District;and O-l,0-2,0-3 Office
Districts.
Comments indicate that in accordance with 240-125, a Use Variance cannot be
granted within 300 ft of Route 28.Per the plan submitted,all lots are within or have
portion located within the 300 foot setback.
Comments also indicate all (4) lots are located within the GP,therefore hazardous
materials will need to be identified and addressed as applicable.
Subsequently,onJuly 11,2022,CopeCodder Enterprizes Corp DBA:Copeland Subaru
Hyannisis issued a Class 1Licenseforthe property.(Note the Licensedoes not mention
service or repair of vehicles and does not mention any restrictions asitdid previously for
Hazardous Materials on 123 Falmouth Rd. portion of the site. Still no service is
mentioned and SPR approval does not authorize any service on this site).
In summary,it appears that vehicle service use has been discontinued on 95 Falmouth
Road since at least 2018,when Prime Mercedes-Benz pre-owned closed their doors.
There is no evidence that service existed on 123 Falmouth Road.
Section 240-97 of the Zoning Ordinance indicates that ''anv lawful preexisting
nonconforming use or building or structure or use of land which has been abandoned or
notused forthree yearsshall not thereafterbe reestablished.This sectionshall not apolv
in cases of damage or destruction governed bv ^240-95."
Service not having been conducted for more than 3 years on 95 Falmouth Rd.the
pending building permit for 12 service bays should be denied and any service being
conducted on the site should be ordered to cease and desist.
II.Use Variance -Unlawful Parking of Vehicles for Display
Secondly,Variance 2022-13 (attached)doesnot provide any support for vehicle service
on any portion of the property as the only variancc(s)that were requested was for display
and parking of vehicles on the RB portion of the 2 Walton Avenue lots which was also
located in the GP zone.
Further,the variance canonlybe construed to have effect on the portion of the 2 Walton
Avenue lots that is located outside of the 300 foot setback from Route 28 as the ZBA is
prohibited from granting ause variance within the 300 foot setback area.(As SPR
correctly pointed out intheir approval lettertothe applicant 'in accordance with 240-
125,a Use Variance cannot begranted within 300 ft of Route 28.Please verify that
the use variance willnot apply within 300feetofRoute 28".) Itshould further be
noted thattheSPR approval letterwasmadea partofanda condition of the Variance
Decision.
To the extent that the Variance purports to apply within the 300 ft setback itisa nullity.
Accordingly, all display parking and conduct of sales within that area, see sketch
attached,should be ordered to cease and desist.
Tliank you for your consideration of this information and the requests made herein.
Very truly yours,
CC: Clients.MDFesq.
BASNSTTABUE,
MASS.
2017
Prime Pre-Owned Center
c/o Mr.Robert Trapp
Via e-mail:Robbietrapp@hotmail,comRE:Site Plan Review #043-16 Prime Pre-Owned Center -
Auto Dealership Plan -2 Lots-Total 206 spaces -95 &123 Falmouth Road,Hyannis
Proposal:Add 123 Falmouth Road to the Existing Dealership License for 95 Falmouth Road,
Hyannis.Continuation of repair/service as depicted on plan.
DearMr.Trapp;
Please be advised that at the site plan review staff meeting held January 17,2017,the plan for the
above-referenced proposal was administratively approved and signed off by the Building
Commissioner and the Hyannis Fire Department subject to the following conditions:
^t Modification ofthe existing Class II Dealership License will be required in order to add
123 FalmouthRoad, Hyannisto thclicense.
•Storage ofhazardous materials shall be limited to a maximum of 25 gallons in each ofthe
two buildings located at 123 Falmouth Road,Hyannis
' ••I'Aisle widths must be maintained as depicted on the approved plan.
^Applicant must obtain all other applicable permits,licenses and approvals required.
'C.,:
••'A copy ofthe approved siteplan will be retained on file.
'Sincerely,
Ellen M.Swiniarski
Site Plan Review Coordinator
CC:PaulRoma,Building Commissioner
Hyannis FD
Health
Licensing
Town of Barnstable
Regulatory Services
Richard V.Scali,Director
Building Division
Paul Roma
Building Commissioner
200 Main Street,Hyannis,MA 02601
wvw.towTi.barnstablerSa^us •
BARNSTABLE
GapeCodTimesBUSINESSPrime'sMercedesdealershiptocloseSeanF.Driscollsdriscoll@capecodonline.comPublished4:28p.m.ETMarch12,2018|Updated4:28p.m.ETMarch12,2018HYANNIS-PnmeMotorGroupisshutteringitsMercedes-Benzpre-owneddealershipandservicecenterat95FalmouthRoadasofApril1,accordingtoastatementfromtheautodealershiptoitscustomers.CustomersarebeingdirectedtoMercedes-BenzofHanoverforsalesandserviceneeds,oroneofPrime'sothertwodealershipsontheCape—HyannisToyotaorOrleansToyota,accordingtothestatementMercedes-BenzofHanoverisofferingalllocalservicecustomerscomplimentarypickupanddeliveryfromanywhereontheCape,accordingtothestatement.PrimeMotorGroupattributedtheclosuretorestructuring,whilesayingthecompanywasexperiencing"rapidandexcitinggrowth.TheWestwoodautogroup,whichowns17otherdealershipsinMassachusetts,boughttheMercedes-BenzdealershipfromTrans-AtlanticMotorsinHyannisin2010andmovedthenew-carsalestoitsMercedes-BenzdealershipinWestwoodatthattime.PrimeCEODavidRosenbergdidnotrespondtoamessageseekingcommentMonday.
NUMBER
THE COMMONWEALTH OF MASSACHUSETTS
TOWN OF BARNSTABLE
AGENTS OR SELLER'S LICENSE -CLASS II
TO BUY AND SELL SECOND-HAND MOTOR VEHICLES
In accordance with the provisions ofChapter
I^T^QffptDING^.
is herein Uceosed to buy and sell second-han/i^
ts thereto
on premises described as follows:j /*f
.i.Fa/mouih Rd:73 disp^^.
handicap and Jdrusfom^
^e 2 buildingsat 123 Fain
$150.00
IRd:SO iRsfday,36 empUryeeSf 2
a fna3(mum,af2SgftnpHsin.gg^^
IssueDate:Jamtary 1,2020
Signed
THIS LICENSE EXPIRES:December 31,2020THISLICENSEMUSTBEPOSTEDINACONSPICUOUSPLACEUPONTHEPREMISES.
NUMBER127THECOMMONWEALTHOFMASSACHUSETTSTOWNOFBARNSTABLEAGENTSORSELLER'SLICENSE-CLASSIITO BUYANDSELLSECOND-HANDMOTORVEHICLESFEE$150.00InaccordancewiththeprovisionsofChapter140oftheGeneralLawswithamendmentstheretoAJ^OHOLDINGS-MLLCDBA:PrimePre-OwnedC^terisherebylicensed to buy and selfsecond-handmotorvehicles95&123FalmouthRoadHyannisonpremisesdescribedasfollows:"f."9onpnmises.ApprovedvdtkUbreakdown123FalmouthRd:73display,0employee,2handiaipand7cutonter.95F^^almouihRd:SO^playllibhandicapand36customerspaces.RFSTRIf^TION^-^Mtodmum,206vehiclesonbothlots.Hazardous.materialstoragel^toa.majdmumQf25^qllp.ns.in.eqch.qfthe2buUdinpsat123Falmouth Road.IssueDate:SignedTHISLICENSEEXPIRED]-J--THISLICENSEEXPIRES:THISLICENSEMUSTBEPOSTEDINACONSPICUOUSPLACEUPONTHEPREMISES.
BAKNSTABLEJ •
MASS.
Town of Barnstable
Site Plan Review
200 Main Stn-ct,Hyannis,MA 02601
ww\v.town.harnstable.ma.u.<i
Office:S08-862-4679
Attorney John Kenney
9^&123 Falmouth Rd.and 172 &180 Walton Ave.,
Hyannis.MA 02601
December 21.2021
BARNSTABLE
5/3
SPR 090-21 Copeiand Subaru Hyannis (Bryan Scarpeilini)
95&123 FalmouthRd.and 172 &180 Walton Ave..Hyannis
Map/Parcel:311/73,78, 83, 84
Zoning:RB,HB/GP
Proposal:Addition of storage lots for adjacent motor vehicles sales lots.See (SPR 076-21).
Dear AttorneyKenney and Mr Scarpeilini.
At the formal site plan review meeting held on Decemberl6.2021 it was determined by the Building
Commissioner that the above proposal is approvable and may progress to the Zoning Board of Appeals
The Site Plan Review Committee hadthe following comments and conditions.
Brian Florence:
.i >Applicant will require approval from the Zoning Board of Appeals
Applicant to comply with all conditions referenced in site plan review letter (SPR 076-21)
Kate Maldonado:Assistant Director Planning and Development
The existing four lots are split zoned in the HB and the RB zoning districts.While an
authorized use on theless restricted portion of a lot may extend into the more restricted
portion for a distance not more than 30 feet in accordance with 240-6(C)(3).this does not
coverthe extent for which the proposed vehicles sales use as is illustrated on the site
plan.Subsequently,zoning relief from the Zoning Board of Appeals will be necessary to
extend vehicle sales Into the RB zoning district.
Zoning relief including landscape requirements will need to be defined for the Zoning
Board of Appeals.
w In accordance with 240-125,a use variance cannot be granted within 300feetof Route
26,please verify thatthe use variance will not apply within 300feetof Route 28.
•'Additionally,the (4)lots are located within the Groundwater Protection Overlay and
'•therefore hazardous materials will need to be identified andaddressedas applicable.
'David Stanton:Chief Health Inspector
All hazardous materials require registration with the Board of Health.
Nathan Collins:Assistant Town Engineer
Applicant to update plans showing parking wheresmall building demolition is to take
place
Confirmed that both curb cuts on Walton Ave. will remain
.Captain Dave Webb:Hyannis Fire
Confirmed that Copeiand Subaru on Ridgewood is moving tothis location for sales,parts
and service.Applicant to advise HFD when of move date
; Pre-opening safety inspection required.
•-Demolition ofthe small building will be the only permit required.
:•Refreshkeyboxes with properkeys
Applicant must obtain all other applicable permits,licenses and approvals required.
^incerely,^
Brian Florence.CBO
Chairman
Cc Site Plan Review Committee
NUMBERcccFEE158thecommonwealthOFMASSACHUSETTS$190.00TOWNOFBARNSTABLEAGENrSORSELLER'SLICENSE-CLASSIFOR THE SALE OFSECOND-HANDMOTORVEHICLESInaccordancewiththeprovisionsofChapter140oftheGeneralLawswithamendmentstheretoCopeCodderEnterprisesCorpDBA:CopeiandSubaruHyanniswhoseprincipalbusinessisthesaleofnewmotorvehiclesasarecognizedagentoftheSubaruofAmericaorwhohasasignedcontractasrequiredbySection58,Class1,isherebylicensedtopurchaseandsell,asincidentalorsecondarythereto,second-handmotorvehiclesatNo.95/123FalmouthRd&172/180WaltonAve,Hyannisonpremisesdescribedasfollows:218displayspaces,36employeespaces,4handicapspaces,29customerspacesforatotalof287spaces.RESTRICTIONS:IssueDate:July11,2022SignedTHISUCENSEEXPIRES:December31,2022THISLICENSEMUSTBEPOSTEDINACONSPICUOUSPLACEUPONTHEPREMISES.
Docs 1?461F362 06-16-2O22 11s38
BARNSTABLE LAND COURT REGISTRY
Town of Barnstable
Zoning Bo^ard of Appeals 2:-;-
Decision and Notice
Variance No.2022-013 -Scarpelllnl/Copeland Subaru
Section 240-35 F.(2)(a)Groundwater Protection Overlay District Regulations
and Section 240-11 A.Residence B District
To allow the combination of4 lots to serve asthecampus for Copeland Subaru
Summary:Granted with Conditions
Bryan Scarpelllnl/Copeland Subaru of HyannlsPetitionersAddress:22 RIdgewood Avenue,Hyannls,AAA
Property Location:95 and 123 Falmouth Road (Rte 28)and
172 and 190 WaltonAvenue,Hyannls,MA
Assessor's Map/Parcel:311 /073.078.084,and 083
Residence B (RB)and Highway Business (HB)
Hearing Date:Aprili3.2022
Recording Information:Cert.124775,Cert.224112.Cert.224112.Cert.224113
Background
Bryan Scarpeliini/Copeiand Subaru petitioned for a Use Variance from Section 240-35 F (2)(a)
Groundwater Protection Overlay District and Section 240-11 A.Residence B(RB)Zoning District
The Petitioner sought to combine properties at .172 and 180 Walton Avenue as well as 95 and 123
Falmouth Road,Hyannls.to create one site for Copeland Subaru of Hyannls.The Use Variance Is
requested to allow for vehicle display and sales at 172 and 180 Walton Avenue.The subject
properties are iowted at 172 and 180 Walton Avenue,Hyannis,MA,as shown on Assessors Map
I'r?®084,078,and 073.The properties are split zoned Highway Business (HB)
Wstrict^^located within the Ground Water Protection (GP)Overlay
The subject properties are;
1^72 Walton Avenue and 180 Walton Avenue are both 0.42 acres and currently vacant.The
Highway Business Zoning District bisects both lots.
The lot addressed as 95 Falmouth Road is a 1.54 acre lot containing 8,905 square foot building for
niinoH®constructed In 1960.The Highway Business District boundary bisects thisKLiioladdressedas123FalmouthRoadisa0.92 acre lot which contains 2,080 square
winhuio .D®^™a service shop and constructed In 1970.This lot is entirely located in theHighwayBusinessDistrict.
Proposal &HearingSummary
t'®combine properties at 172 and 180 Walton Avenue as well asoftIon®site for Copeland Subaru of Hyannls.was filedMlI ?office and the Office of the Zoning Board of Appeals on March 9,2022.ApubichearingbeforetheZoningBoardofAppealswasdulyadvertisedandnoticesenttoall
AnHi T'f onoi [with MGL Chapter 40A.The hearing was opened onAprill3,2022,at which time the Board found to grant the Variance subject to conditions.Board
members deciding this petition were Jacob Dewey,Herbert Bodensiek.Mark Hansen,Paul Plnard
and uenlse Johnson.
Kenney presented the petition.Also present wasAttorneyPatrickNickerson,Applicant Bryan Scarpeilini,Applicant Todd Copeland,Rob Trapp,andDanOjala,Down Cape Engineering.Attorney Kenney reviewed the Petition and history of the use
Town of Damsiablc.Planning and De-velopmcnt DcpatuneiU Decision
Variance 2022-013 -Scaipellini/CopeUnd Sobaru
ofthe lots. He stated the Petitionerreceiveda Cease and Desist Notice from-the Townstatingthe
use of the lots was in violation of zoning. Attorney Kenney reviewed the Ground Water Protection
Overlay District regulations and the Residence B Ordinance and the proposed use on a portion of
two lots is in violation of both. At Site Plan Review,It was recommended that the Petitioner clear
up the lot line issues.Attorney Kenney reviewed the criteria for the grant of a variance.He
reviewed the Highway Business layout along Faimouth Road and that it did not take into
consideration the lot lines. He also stated the small portions of the two lots that are located In the
Residence District have unique lot shape.Attorney Kenney stated the literal enforcement would
cause financial hardship ifthe lots could not be used as a Campus for Copeland Subaru.Attorney
Kenney also stated that under zoning,there Is a 30 foot allowance Into another district so the area
left Is minimal.He concluded that the combination of the lots does not derogate from the intent
and purpose of the Ordinance and there Is no harm to the publicgood.
The Board discussed the present and future uses of each lot and the allowable and prohibited
uses.
TheBoardasked for public comment. No testimony was given.
Findings of Fact
At the hearing on April 13, 2022, the Board voted and made the following findings of fact in
Variance No.2022-013,a request to combine lots at 172 and 180 Walton Avenue as well as 95
and 123 Faimouth Road,Hyannis whichdo not comply with Zoning.
1.Owing to circumstances related to soli conditions,shape,,or topography of such land or
structures and •especially affecting such land or structures but not affecting generally the
zoning district In which It is located.The Board found that because ofthe arbitrary nature
ofthe300 foot boundary ofthe Highway Business District,the lots are unique.
2.A literal enforcement of the provisions of the zoning ordinance would involve substantial
hardship,financial or otherwise to the petitioner.The Board found that there would be
financial hardshipifthe Petitioner was not allowed touse the lotsas a Campus.
3.Desirable relief may be granted without substantial detriment tothe public good and without
nullifying or substantially derogating from the intent or purpose of the zoning ordinance.
The Board found there was no detriment to the public good as these lots have been used
commercially Inthe past.
The Board votedtoaccept the findings as follows;
AYE:Jacob Dewey,Herbert Bodensiek,Paul PInard,Mark Hansen,and Denlse Johnson
NAY:None
Decision
The Board voted to grant the requested Use Variance with conditions as follows:
1.Use Variance No.2022-013 is granted from Section 240-35 F.(2)(a)Groundwater Protection
Overlay District and Section 240-11 A.Residence B (RB)Zoning District for the use of vehicle
display and sales at 172 and 180 Walton Avenue.The Petitioner Is combining properties at
172 and 180 Walton Avenue as well as 95and 123 Faimouth Road,Hyannis,to create one
site for Copeland Subaru of Hyannis.
2.The site development shall be constructed in substantial conformance with the plan set entitled
"#95 /123 Faimouth Road #172/180 Walton Avenue Hyannis,MA"dated October 4,2021,
revised November 23 2021 by Down Cape Engineering,Inc.
3.All Site Plan Review conditions of approval are hereby Incorporated Into this Decision.
Page 2 of 3
IWii ofBfltnstflblc Planning and Development Depsirtment Decision
Variance 2022-013 -Scacpelimi/Copeland Suhsni
•A.Any additional uses other than auto repair,display,and sales of vehicles for
Scararpeilini/Copeiand Subaru shall notbe permitted without approval from the Board.
5. This Decision shall be recorded at the Barnslable County Registry of Deeds and copies of the
recorded Decision shall be submitted to the Zoning Board of Appeals Office and the Building
Division priorto Issuance of a building permit,The rights authorized bythis Variance must be
exercised within one year,unless extended.
The Boards vote was:
AYE:Jacob Dewey,Herbert Bodenalek,Paul PInard,Mark Hansen,and Denlse Johnson
NAY:None
Ordered
Variance No.2022-013 to allow the Petitioner to combine properties at 172 and 180 Walton
Avenueas well as 96 and 123 Falmouth Road,Hyannis,to create one site forCopeland Subaru of
Hyannis and allow for vehicle display andsales at 172 and 180 Walton Avenue has been granted
with conditions.This decision must be recorded at the Barnstable Registry of Deeds for itto be in
effect and notice of that recording submitted to the Zoning Board of Aopeais Office.The relief
•authorized by this decision must be exercised within-one year unless extended.Appeals of this
decision,if any,shall be made pursuant to MGL Chapter 40A,Section 17,within twenty days after
the date of the filing of this decision,a copy of which must be filed in the office of the Barnstable
Town Clerk.
fcob Dewey,Chair
V-
Date Signed
I.Ann Quirk,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 decfslon^^dvtbat
noappeal of the decision has been filed inthe officeof the Town Clerk.
Signed and sealed this,
perjury.
Page 3 of 3
,day of,under the palps
Ann Quirk, Town Clerk .''
Town of Barnstable
Zoning Board ofAppeals
Error inScript -Amended &Revised
•i ii :_'.'/W
As relateti to the decision rendered for:
Variance No.2022''013 -Scarpelllnl/CopeloncI Suboru
An error in script was identified in the Decision and Notice of Vai ianoe 2022-013,issued to
Subaru of Hyannis,for property addressed 95 and 123 Falmoulh
Road (Rte 28)and 172 and 190 Walton Avenue,Hyannis,MA and filed with the Town Clerk on
March 9,2022.The error was found in the Petitioners address section should read 'M80 Walton
Avenue, Hyannis,MA".
The Decision end Notice for Variance No.2022-013 Scarpellini/Copeland Subaru,first section
should read as follows:
,Property Location:95 and 123 Faliuouth Road (Rte 28)and
172 and 180 Walton Avenue,Hyannis,MA
Respeetfliily Submitted,
Anna Biigham,Prineipai kroner
June 14,2022
June 15,2022
Bamstable Registry of Deeds
Attn:Land Court
3195 Main Street
Barnstable,Massachusetts 02630
Re:Land-Land Court Plan 29953-A
95 Falmouth Road/Route 28,Hyamiis,MA
Certificate of Title No.124775
Dear Land Court Clerk:
I,Gilbert C.Wood,am the owner the above-referenced property.1am submitting this letter to
inform you that I authorize the recording of the Town of Bamstable Zoning Board ofAppeals
Notice and Decision dated May 17,2022,pertaining to the Variance granted to Bryan Scarpellini
and Copcland Subaruof Hyamiis,Massachusetts.
Verytrulyyours,
Gilbert C.Wood