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Home My WebLink AboutAtty 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