Approved 03/12/20 ZBA meeting minutes

Approved

Wellfleet Zoning Board of Appeals

March 12, 2020, 7:00 pm

Council on Aging

Attendees:  Sharon Inger, Bruce Drucker, Manny Heyliger, Reatha Ciotti, Trevor Pontbriand, Wil Sullivan, and Jan Morrissey

Regrets:   Mick Lynch

7:00 pm

20-05 Todd and Lori LaBarge, 195 Briar Lane, Map 13, Parcel 119, Application for a Special Permit WZB 6.1, 6.13 and 6.14 to replace existing deck with new screen porch 19’5” from property line and a portion of the structure in the ACEC.  The Board consisted of Bruce Drucker, Sharon Inger, Manny Heyliger, Trevor Pontbriand and Janet Morrissey.  Wil Sullivan and Reatha Ciotti were also in attendance.  Attorney Ben Zehnder represented the applicant and gave an overview of the project which includes removing a trailer, a shed and constructing a screen porch.  The current lot coverage is 2,022 sq. ft coverage and will be reduced to 1658 sq. ft.  but the screened porch will still be within the set back.  Trevor Pontrbiand pointed out that this will be a reduction in the use of the property by eliminating the trailer.  Trevor Pontbriand moved for Findings of Fact; seconded by Manny Heyliger, passed 5-0.

This is an application for a special permit to replace the existing deck with a new screen porch 19’5” from the side setback.

The lot is in the CD District.

The dwelling is a lawfully pre-existing, nonconforming structure having been built in 1862 according to the Assessor’s Office.

The ZBA has inspected the subject lot and has reviewed all materials submitted with the application

The existing non-conformities regarding the structure are 1-foot intrusion into the side setback.

There will be no change in use.

There will be a decrease in use due to the removal of the trailer on the lot.

The use conforms with the objectives of the CD District as stated in WZBL 3.2

There were no appearances in support of or in opposition to the proposal.

The roads, drainage, and other public services are adequate for the project.

The project has received approval from the Conservation Commission/Board of Health.

There will be a 1-foot intrusion into the side setback.

There will be a reduction in lot coverage from_11_% to  8__%.

There will be a slight volumetric increase on the side setback.

The alteration will not be more substantially detrimental to the neighborhood than the existing non-conforming structure.

There will be an improvement to the neighborhood due to the removal of the non-conforming second dwelling on the property.

The proposed alteration will not be more substantially detrimental to the neighborhood than the existing nonconforming structure and the applicant has demonstrated that the benefits of the proposal will outweigh any adverse effects on the Town and the vicinity after considering the District Objectives for the district as provided for in WZBL 3.2 and the relevant criteria set forth in WZBL 8.4.2.

Trevor Pontbriand moved to accept the Findings of Fact; seconded by Jan Morrissey; passed 5-0.

Trevor Pontbriand moved to grant the Special Permit based on the Findings of Fact; seconded by Jan Morrissey, Passed 5-0.7:10 pm

17-08 Amendment:  Sun-Valli Trust, 3 West Main Street, Map 14, Parcel 146, Applicant seeks to (1)  relocate retail space to east rather than west side of ground floor, (2) add interior partitioning to west side of ground floor to allow space for a retail home goods / gift business and a retail ice cream / coffee shop and (3) install a commercial kitchen in the basement, pursuant to M.G.L.c. 40A, s. 6 and WZB 6.1 and 8.4.2 The Board consisted of Sharon Inger, Bruce Drucker, Trevor Pontbriand, Manny Heyliger and Wil Sullivan.  Also, at the table was Jan Morrisey and Reatha Ciotti.  Attorney Ben Zehnder represented the applicant.  He gave the history of the property and stated they want to “flip” the location of the coffee shop and the retail space and add a commercial kitchen in the basement which will allow people to come into the site, prepare food that would be moved from the location.  No patrons would be served at the kitchen.  It would require another parking space, but since it is in the Commercial District, he requested that requirement not be included.  Kathleen Bacon asked the Board to support this project because it would support activity on Main Street and the applicant is creating additional services.  Bruce Drucker stated the applicant’s problem is the zoning bylaw in that this is an undersized property, there was originally just one use, that in 2017 the board approved 3 uses on the property and this proposal adds 2 additional uses.  A new commercial kitchen is not allowed in this district.  We are constrained by the bylaws and there already isn’t sufficient parking that’s required by the WZBL.  Mr. Zehnder stated he disagrees with Mr. Drucker regarding the commercial kitchen and feels this should come under an indoor restaurant.  He stated this kitchen would have lighter impact than an indoor restaurant.  Jan Morrissey expressed her concerns with parking and how many cars and food trucks would be coming and questioned the hours the vehicles would be coming.  Olaf Valli stated they are not food trucks but are people that have services at the Farmer’s Market, among other things.  He stated the coffee shop will not be using the 20 seats allotted in the approved Special Permit and would like to reuse those seats downstairs.  Mr. Valli stated the shark issue hurt his business and he had to downsize the use of the property.  The hours of the kitchen could be in the early morning.  Wil Sullivan stated he should have applied for a new Special Permit and not an amendment.  Attorney Zehnder stated it is easier to work with the same permit number and is a continuation of the prior file.  Mr. Sullivan is concerned about the inadequate parking and that the ZBA has held other applicant’s feet to the fire regarding parking.  Attorney Zehnder stated this is the central district and there is no parking for any of the locations.  Olaf Valli asked if he could have the coffee shop service downstairs.  Bruce Drucker reiterated the applicant’s real remedy is to change the existing bylaws because the Board can’t ignore  the bylaws.  Sharon Inger stated this would be a 5th use with the additional retail spot on the main floor and the parking on Main Street is dangerous and trucks and cars are backing out of the parking area on Main Street.  Mr. Valli asked if he could have the coffee/ice cream service in the basement and Bruce Drucker stated the commercial kitchen is not a permitted use in the CD. Olaf Valli stated they have not done the final landscaping.   It was recommended striking the request for the commercial kitchen without prejudice.  Attorney Zehnder requested to remove the commercial kitchen portion in the application.  Bruce Ducker moved to amend the application so as to remove the request for the commercial kitchen in the basement; seconded by Wil Sullivan; passed 5-0.  Wil Sullivan moved to close the public hearing and go to Findings of Fact; seconded by Trevor Pontbriand; passed 5-0.

Applicant, Sun Valley Trust, seeks to amend Special Permit 17–08 to relocate the Sickday retail space to the east side rather than west side of the building’s ground floor; to add interior partitioning to the west side of the ground floor to allow space for a retail home goods / gift business and a retail ice cream / coffee shop; and to add ice cream sales to the previously approved coffee shop. The ZBA unanimously approved the applicant’s request to eliminate that portion of the application requesting the installation of a commercial kitchen in the basement of the building and, therefore, the applicant’s proposal for a commercial kitchen in the basement of the building is no longer part of the Special Permit application.

The ZBA has inspected the property and has reviewed the application and all documents submitted with the applicant.

The property is in the Central Zoning District.

The property is nonconforming as to lot area being approximately 10,900 ft.² where 20,000 ft.² is required and is nonconforming as to street frontage with 67 feet of frontage on W. Main St. where 125 feet is required.

In 2015 the then existing one-story structure on the property consisting of a retail gallery and real estate office was destroyed by fire.

There currently exists on the property a two-story structure & basement constructed pursuant to Special Permit 17–08.

Special Permit 17–08 granted the applicant permission to build a two-story structure which was nonconforming as to the east side yard setback being 13.4 feet where 20 feet is required; west side yard setback, being 11.2 feet where 20 feet is required; and, lot coverage being 19.4% where 15% is the maximum allowed. Additionally, Special Permit 17-08 provided for 15 parking spaces where 22 spaces were required by WZBL 6.3.

The Board finds that relocating the ground floor Sickday retail space to the east side of the ground floor of the building and adding interior partitioning to the west side of the ground floor to allow space for retail home goods/gift business and retail ice cream/coffee shop will not be more substantially detrimental to the neighborhood than the existing approved uses, and the applicant has demonstrated that the benefits of that proposal for the ground floor will outweigh any adverse effects on the Town and the vicinity after considering the District Objectives for the district as provided for in WZBL 3.2 and the relevant criteria set forth in WZBL 8.4.2.

Wil Sullivan moved to approve the Findings of Fact; seconded by Trevor Pontbriand; passed 5-0.  Bruce Drucker moved to grant the Special Permit based on the Findings of Fact; seconded by Manny Heyliger, passed 5-0. so as to allow the applicant to relocate the existing Sickday retail space to the east side from  the west side of the ground floor of the building and to add interior partitioning to the west side of the ground floor to allow space for retail home goods/gift business and a retail ice cream/coffee shop.

7:45 pm  NOTE:  The 3 Rispoli Ventures, LLC applications will be heard at one time with the consent of the applicant’s counsel.

20-02  Rispoli Ventures, LLC, 15 Lecount Hollow Road, Map 30, Parcel 22, Application for a Special Permit under WZ B 8.4.2 to construct an art installation within pre-existing, non-conforming yard setback from Lecount Hollow Road.  Chair Inger called 20-02, 20-03, and 20-04 as one hearing with the consent of the applicant’s attorney.  The Board consisted of Bruce Drucker, Sharon Inger, Manny Heyliger, Trevor Pontbriand, and Reatha Ciotti.  Also in attendance was Jan Morrisey and Wil Sullivan.  Attorney Eliza Cox represented the applicant and provided the history of the applications.  She stated there was a question if this was a structure or a sign.  She stated if this is a sign, there would not be relief.  She stated she does not consider this a sign under 7.2.1 because there is no lettering, no logos, no flags or banners.  She stated this is not a display of objects.  She presented pictures of “signs” which included boats, floatables, and lobsters.  Ms. Cox argued that the proposed location of the Eiffel tower replica is the only site this object can be placed due to the wetlands and topography.  She stated Mr. Rispoli keeps his property in pristine shape and she added there would be no impact for views, safety, etc.  Several people supported the tower including Kathleen Bacon, Richard Blakely, Thelma Blakely, John Nealon, and Ben Zehnder.  Mr. Morin, an abutter, stated he is concerned with the height and the lighting which would affect his property, and requested the lights be turned off at 9:00 pm.  Bruce Drucker stated something can be an art object and a sign.  Signs have to be a certain size and the bylaws are passed by a super majority of the Town voters at the ATM  and the Board members take an oath to uphold the bylaws.  He also stated this would be a distraction to drivers on the busy corner of Rte 6.  Ms. Cox stated the lighting would be open to conditions of the Board and that this property meets the criteria for variance requests based on the shape of the property and the wetlands on the property and the Zoning Board has the ability to grant variances.  Sharon Inger stated variances are for people who have issues with having no choice on where to locate houses, etc. and didn’t feel the tower falls under the variance wording.  There was further discussion regarding the meaning of the bylaws.  Ben Zehnder stated he agrees with Ms. Cox because this town has a lot of art in the town.  He stated this would be a hardship to Mr. Rispoli.  Bruce Drucker moved to close the public hearing and go for Findings of Fact; seconded by Trevor Pontbriand; passed 5-0.

This is an application for a special permit under Wellfleet Bylaw 8.4.2 to construct what the applicant terms an art installation within the pre-existing, non-conforming front setback from LeCount Hollow Road.

The lot is in the Commercial District.

The restaurant is entitled to treatment as a lawfully pre-existing nonconforming structure having been in existence for least 10 years as provided for in Wellfleet Zoning Bylaw 8.2.2

The existing non-conformities regarding the structure are intrusion into the front setback, intrusion into the side setback, building coverage in excess of 15%, and inadequate frontage.

The board has conducted a site visit and has examined all the materials submitted with the application.

The claimed art installation would increase the lot coverage and would further intrude into the front setback.

There were no letters in support of or in opposition to the project.

There were five appearances in support of the application and one in opposition.

The Board has determined that the claimed art installation of a replica of the Eiffel Tower meets the definition in the WZBL 7.2.1 of a sign which is “any display of lettering, logos, pictorial matter, flags other than government flags, banners, objects, colors, lights or illuminated tubes, or the application of same to any device, surface, structure, boundary wall or fence, which is visible to any member of the public, which either conveys a message to the public, or intends to advertise, direct, invite, announce, or draw attention to, directly or indirectly, a use conducted on the premises, excluding window displays of merchandise.” As the Eiffel Tower replica depicts an iconic French symbol, and the business is a French restaurant and bakery, clearly the art installation will function as a sign to advertise the business. Additionally, the Eiffel tower replica would “draw attention” to the applicant’s French restaurant.

As the Eiffel Tower replica would function as a sign, it must conform to the sign bylaws provided for in article 7 of the WZBL. The claim that the Eiffel tower replica is an art installation does not exempt it from the requirements of Wellfleet’s sign bylaw as provided for in article V.

The Board finds that the proposed installation would violate the sign bylaws in the following ways:

It would increase the aggregate total square footage of signage beyond the 64 square feet allowed.

The installation is proposed to have internal illumination which is prohibited under WZB 7.7.3.

At 21 feet on a six-foot base, it violates height requirements of no more than 10 feet as provided under WZB 7.6.3.

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 applicant has failed to demonstrate that the benefits of the proposal will outweigh any adverse effects on the Town and the vicinity.

Bruce Drucker moved the Findings of Fact; seconded by Trevor Pontbriand; passed 5-0.  Sharon Inger moved to deny the special permit based on the findings; seconded by Trevor Pontbriand; passed 5-0.

20-03  Rispoli Ventures, LLC,  15 Lecount Hollow Road, Map 30, Parcel 22, Application for a variance from WZB 7.6.2 and 7.6.3 (sign area & height) to allow for an approximately 21 foot tall art installation (Eiffel Tower).  As necessary, relief is also sought from WZB 7.7 to allow for said installation to be lighted.

See above minutes for Application 20-02

Bruce Drucker moved for Findings of Fact; seconded by Manny Heyliger, passed 5-0. 

This is an application for a variance from Wellfleet Bylaw 7.6.2 and 7.6.3 (sign area and height) to construct a claimed 27-foot art installation (Eiffel Tower). The applicant also seeks relief from Section 7.7 to allow for said installation to be lighted.

The conditions for granting a variance under MGL Ch 40-A, S, 10 are:

“where such permit granting authority specifically finds that owing to circumstances relating to the soil 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, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.”

The applicant has failed to demonstrate that this application meets the requirements for a variance. There are no unusual topographical features on the lot that would affect this issue, and the absence of a claimed 21-foot art installation would not create a substantial hardship.

Trevor Pontbriand moved the Findings of Fact; seconded by Bruce Drucker, passed 5-0.

Sharon Inger moved to deny the variance request based upon the findings; seconded by Bruce Drucker, passed 5-0.

20-04  Rispoli Ventures, LLC, 15 Lecount Hollow Road, Map 30, Parcel 22, Application for a variance from WZB 5.4.2 yard setbacks, for art installation located approximately 27 feet from

See above minutes for Application 20-02

Trevor Pontbriand moved for Findings of Fact; seconded by Bruce Drucker; passed 5-0.

This is an application for a variance from Wellfleet Bylaw 5.4.2 front setbacks, for a claimed art installation located approximately 27 feet from property line abutting Lecount Hollow Road.

The conditions for granting a variance under MGL Ch 40-A, S, 10 are:

“where such permit granting authority specifically finds that owing to circumstances relating to the soil 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, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.”

The applicant has failed to demonstrate that this application meets the requirements for a variance. There are no unusual topographical features on the lot that would affect this issue, and the absence of a claimed 21-foot art installation would not create a substantial hardship.

Bruce Drucker moved the Findings of Fact; seconded by Trevor Pontbriand, passed 5-0.  Bruce Drucker moved to deny the variance request based upon the findings; seconded by Trevor Pontbriand, passed 5-0.

8:15 pm

20-01  Cape Cod Cannabis Wellfleet NV, LLC, 1446 State Highway, Route 6, Map 30,

Parcel 6, Application for a Special Permit under 5.2 and 5.3.2 for retail use in commercial district and WZB 6.3.13 for the approval of development of significant impact (cont’d).  Trevor Pontbriand recused himself.  The Board consisted of Sharon Inger, Manny Heyliger, Reatha Ciotti, Jan Morrissey, and Wil Sullivan.  Also in attendance was Bruce Drucker.  Matt Christiani passed to the board a power point handout which was displayed to the public.  A new site plan was distributed.  Allan Kronfeld introduced members of the organization.  Jill Shaffer, Attorney for the applicants, provided the number of licenses that have been approved by the County and State.  She stated there are 4 stores proposed for Wellfleet and she stated traffic and parking concerns will lessen over time.  The traffic engineer stated the numbers presented in the traffic study were for the high season (Memorial Day to Labor Day), and will undoubtedly be lower in the off season. He stated there will be a slight increase from the retail grocery store use to the marijuana retail store.  The sales will take place on an appointment only basis.  The applicant will study the traffic flow during the summer months.  Matt Cristiani gave an overview of the parking lot, identifying the number of parking spots per business and the entrances to the store and the access to the parking area.  They are planning on utilizing a shuttle service for employees on and off the site.  The Planning Board recommended putting barriers in the rear parking lot every night to prevent other business parking on their property.  Mr. Christiana gave an overview of the layout of the of the store, identifying where security people will be located, where the waiting area is, and where purchases will be made.  There will no changes to the outside of the building except for painting and signage.   Attoprney Jill Schaffer provided information on the buffer zone and the support of other retail stores in the area.  She stated the store will be in compliance with security and stated there is a plan in place for prevention of diversion to minors mandated by the State.  She reviewed the benefits and positive impact to the Town of Wellfleet.  She emphasized there is a reduction in opioid consumption with the cannabis retail sales.

Sharon Inger opened comments from the audience:

Thelma Blakesley, Richard Blakesley, Kathleen Bacon, John Nealon, Attorney David Reid representing Mr. and Mrs. O’Connell, Eliza Cox, Michael Moran, Jay Curley, Barbara Kennedy, all spoke in opposition to the retail marijuana store.  Concerns included preserving the neighborhood, liabilities to the Town, bike trail location close to the proposed store, lighting, unsafe for children, increase in crime, parking issues on the property and impacts at the intersection of Lecount Hollow Road and Rte 6, and Old Rte 6A, was the traffic study correct, and if a new traffic study is done after opening and creates unsafe situations, marijuana is illegal in the National Seashore which the bike trail goes through, a school bus stop located close to the proposed store, the sign is offensive, the Post Office parking is already a nightmare in the summer months, already two marijuana retail stores approved which are approximately 1 mile away, impact of parking spots due to 4 trailers on the property as well as additional square footage on the 2nd floor, lack of reaching out to abutters for their concerns, business as appointment only vs. open door policy, will affect property values,  and what will happen if a touring bus stops at the location.   The local children often play in the bike parking lot, and how will this retail marijuana store improve the diversity in the Town. The proposal for sending customers up Lecount Hollow Road right turn out of parking area to enter Route 6 via Lacoon Hollow Road will create additional traffic and concerns for the abutters and the National Seashore.  A question arose how this will enhance or benefit the town or the residences in the area.   This location will increase congestion to the area.   The sign will draw people into the parking area without having an appointment. 

Kathleen Bacon and Janet Reinhart of the Select Board have never met the people at this hearing.  They approved Natural Ventures for this location two years ago.  It was recommended Cape Cod Cannabis contact the Select Board as they do not feel that Host Agreement is valid at this point.

Chair Inger read 3 letters of support from SeaSide Liquors, Blue Willow Fine Foods and Bakery, and the Wellfleet Planning Board.

Sharon Inger turned the hearing to the Board for discussion. 

There will be gridlock from Lecount Road for people to take a left turn on Route 6 and doesn’t feel the traffic study provided addresses this issue.  Parking spaces based on retail area versus number of stores.  Matt Christiani stated there are 8 parking spots for employees and many will be picked up at their homes.  Carolyn Murray, Town Council stated there is nothing in the bylaws regarding the Host Agreement so they will have to work out the Host Agreement and be updated and approved by the Select Board.   Location of business is a serious problem with the neighbors, need to have a lighting plan, signage for store is concern, is there a connection to the cultivation center in Mashpee and would it affect that opening, lack of a landscaping plan, there are no sign calculations, this property has been abandoned for more than 12 months and the signs there now are not legal, no sign calculations for parking spaces, sign height and size, is it an aggregate total for all the stores or individual stores, traffic study is calculated and we don’t know what the actual traffic will be,  needs a mitigation plan, and questioned where the 11 accidents took place which were identified in the traffic report.  Matt Christiani stated there will be two peak hours each day, one in am and one in pm, statement that July and August are always going to be peak and not just on weekends, Attorney Schaefer stated she has talked with the Police Chief and will continue to have discussions with him, and it was recommended doing a traffic study at Cahoon Hollow if they send people to the right out of the driveway through Ocean View Road. What are considered the peak hours based on the traffic report, response was 3 pm to 7 pm, turning right on LeCount Hollow Road is poor strategy.  Biking and walking is not safe to get to this location and local buses are not reliable.  Concerned about the benefit of the proposal to the town outweighing any adverse effects and the only benefit is the 3% gross to the town.  Attorney Schaefer stated this will bring a new business to town, utilizing local employment and contractors.  Studies shows there will be a net increase of 46 trips to the location.  This is the worst intersection in Wellfleet and the ZBA is troubled with host agreement per the Select Board.  Feels there is additional information which the Board needs. 

Carolyn Murray, Town Counsel, stated there is additional information required.  She doesn’t see any pre-existing nonconforming analysis regarding parking, no landscaping plan, is having trouble following the square footage being occupied, use of the second floor doesn’t add up, lighting,  parking area based on total square footage of the businesses, entrance area not identified in square footage calculated into parking, frontage is not noted on plans, and the security plans are incomplete by not noting live monitoring locations.   

Applicant felt the security plan is adequate and complies with State requirements.  They will reach out to the Select Board.  When the Host Agreement with David Pike was made, it was still the same company.  David Pike left the company and there is a change in management.   Square footage was counted.  Feels what they are paying to the Town should pay for any impacts the Town has.  Studies show marijuana stores decrease opiate use.  Stated this will be monitored by 2 companies, there will be cameras inside and outdoors, security guards available, does not feel any crime will happen.  The appointment only is a mitigation measure, as well a police detail, the appointment only arrangement will be a learning curve for people and can be controlled, and feels this will make a significant improvement to the neighborhood with what the applicant is willing to do for safety and securing.  The police details will be determined with the Police Department.  The applicant stated they will provide information so the public can reach them with any concerns.   

The applicant requested a continuation to April 16, 2020.  Jan Morrissey moved to continue to April 16, 2020; seconded by Reatha Ciotti; passed 5-0.   

Meeting Minutes:  Jan Morrissey moved to approve the February 13, 2020 amended meeting minutes; seconded by Wil Sullivan; passed 5-0.

Business -   none

Wil Sullivan moved to adjourn at 10:30 pm; seconded by Jan Morrissey, passed 6-0.

Respectfully submitted,

Christine Bates, Committee Secretary

Documents:

20-05:  Application, Abutters List, Site Plan and architectural plans

20-02:  Application, Abutters List, Site Plan and drawings of Eiffel Tower

20-03:  Application

20-04:   Application

20-01:  Application, Abutters List, Site Plan, Elevations of Building, Traffic Study, Executive Summary, Parking Narrative, Security Plan, copy of Host Community Agreement, previously approved Special Permits for the site