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Approved ZBA Meeting Minutes

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File 06_22_23_zba_final.docx
Meeting date: 
Thursday, June 22, 2023

Approved

Wellfleet Zoning Board of Appeals

June 22, 2022 7:00 pm

Zoom Remote Meeting

Attendees  Chair Sharon Inger, Manny Heyliger, Al Mueller, Trevor Pontbriand, Jan Morrissey,  Reatha Ciotti, and Andy Freeman  Christine Bates, Committee Secretary 

Regrets:  Mick Lynch and Wil Sullivan

7:00 pm

23-07 Robicheau, 15 Bank Street, Map 15, Parcel 91:  Application for a Special Permit under Section 235-6.1 to allow continued retail sales and Section 235-6.1. D discontinuance or Abandonment Continued from 06/08/23.  The Board consisted of Manny Heyliger, Trevor Pontbriand, Andy Freeman, Jan Morrissey and Sharon Inger.  Mr. Robicheau supplied all the paperwork the Board had requested.  The site plan identified the parking areas for both buildings and the Board accepted the hand-drawn parking spots.    He also questioned the square footage of the retail space and the parking spots.  Mr. Robicheau stated the square footage of the retail spaces were hand-drawn to scale using graph paper and the retail area is based on the Assessor’s paperwork.  Chair Inger stated the parking spots are adequate, including the jewelry store.  The hours scheduled will be 8:00 am to 8:00 pm seven days a week.  During the off season they may open later in the morning.  Manny Heyliger moved for Findings of Fact; seconded by Jan Morrissey.  Sharon Inger aye; Manny Heyliger aye; Jan Morrissey aye; Andy Freeman aye; and Trevor Pontbriand aye.  5-0

FINDINGS:

Retail Trade is a use allowed by special permit in the Central Zoning District.  Since an Adult Use Recreational Marijuana Retailer is not a use expressly allowed under Section 235.3 of the Zoning By-laws, the use may be allowed by special permit pursuant to Section 8.4.2, provided the Board determines that the use closely resembles, in its neighborhood impacts, a use allowed by right or by special permit in the zoning district. This proposed use is located in the Central Zoning District, which allows a Retail Trade by special permit pursuant to Section 8.4.2, and if the property is located in the Medical Marijuana Overlay District, a Registered Marijuana Dispensary, a similar use, is allowed by special permit.  The Board determined that an Adult Use Recreational Marijuana Retail establishment is similar to a Registered Marijuana Dispensary in terms of neighborhood impacts.

Applying the criteria for a Special Permit, pursuant to Section 8.4.2 of the By-laws, the Board found the benefits of the proposed use of the property as an Adult Use Marijuana Retail Establishment will outweigh any adverse effects on the Town, based on the following findings:

  1. The property site comprises approximately 17,424 square feet of land in the Central zoning district where 20,000 square feet of land is required. Retail Trade and a Registered Marijuana Dispensary are uses allowed by special permit in the Central District and Medical Marijuana Overlay District, and therefore, the Board finds this is a suitable use of the property and activity in the zoning district.
  2. There are two structures on the property. The larger structure is a 2.5 story Mansard roof building with an attached addition to the south. The second structure is a combination flat and pitched roof building in the southern corner of the property.
  3. The property is pre-existing and non-conforming under current zoning as to minimum setbacks: the existing front yard setback is 20 feet where 25 feet is required; the existing side yard setbacks are 45 feet on the east and 0’ on the west where 20 feet is required.
  4. The property is conforming with regard to lot coverage and rear setbacks.
  5. The applicant proposes establishing a marijuana retail store of 676 square feet.
  6. The applicant has submitted that he will meet or exceed all security requirements for retail marijuana establishments pursuant to 935 CMR 500.
  7. The use of the space as a retail store is not changing.
  8. There will be no change to the existing jewelry studio located in the building in the rear of the property. 
  9. Pursuant to Section 235-6.3 of the Bylaws, the proposed use, as a retail business, requires two spaces for each establishment or one space for each 150 square feet of floor area, whichever is larger, plus one space for each three employees or nearest multiple thereof.
  10. The proposed use will occupy 676 square feet, as per plans filed with the Board, and thus requires 5 spaces for the retail establishment.
  11. The proposed use will employ 6 employees, and thus requires 2 spaces for employees.
  12. The total number of spaces required for Applicant’s use is 7 spaces.
  13. The additional store on the property occupies 336 square feet and has three employees for a need for 4 spaces.
  14. The site plan shows 13 parking spaces where 11 are required.
  15. Retail sale of marijuana is not separately defined or regulated by the Wellfleet Zoning By-laws, but Retail Trade is a use permitted in the Central Zoning District by special permit from the Board, and to the extent applicable, a Registered Marijuana Dispensary is also allowed by special permit from the Board in the Commercial Zoning District.
  16. The proposal is projected to provide significant additional revenue to the Town of Wellfleet. The Board also finds that customers of the Applicant will support surrounding businesses.
  17. Existing roads are adequate for the proposed use. The property has existing public services that are adequate for the proposed use.
  18. There will be no alterations to the site.                   
  19. There will be no impact on any scenic views from the proposal.
  20. The proposal will not affect public access to or along the shoreline.
  21. There were no letters or appearances in support of the application. There was one letter and appearance in opposition to the application.
  22. The proposal will not be substantially more detrimental to the neighborhood than current uses and structures at locus, 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 Special Permit Granting Objectives as set forth in Section 8.4.2 of the Wellfleet Zoning Bylaws.

CONDITIONS:

The Board grants this approval for a Special Permit subject to the following conditions:

  1. The adult use Marijuana Establishment shall be permitted to operate between the hours of 8:00 a.m. and 8:00 p.m. Monday through Sunday.
  2. This Special Permit is limited to the operation of a facility as an adult use marijuana retail establishment for the sale of adult recreational marijuana and marijuana products directly to adult consumers. 
  3. The adult use marijuana retail establishment may not operate, and the Special Permit will not take effect, until the Applicant has obtained all final license approvals from the Cannabis Control Commission (the “CCC”).
  4. Prior to commencing operations on the Property for the sale of adult recreational marijuana and marijuana products, the Applicant shall provide the Building Commissioner, Health Agent, Fire Chief, and the Police Chief with a copy of the applicable Final License from the CCC for an adult use marijuana retail establishment. 
  5. This Special Permit is not transferrable or assignable to another party or entity and shall remain exclusively with the Applicant for the operation of the facility as an adult use marijuana retail establishment for the sale of adult recreational marijuana and marijuana products directly to adult consumers.  Events deemed a transfer or assignment of the Special Permit shall include, without limitation: (i) the Applicant’s takeover or merger by or with any other entity; (ii) the Applicant’s outright sale of assets and equity, majority stock sale to another organization or entity for which the Company does not maintain a controlling equity interest; (iii) or any other changes to a majority of the founding member ownership or status of the Applicant.  A Special Permit may be transferred or assigned only with the approval of the Board in the form of an amendment to the Special Permit.
  6. Smoking, burning and consumption of marijuana or marijuana infused products on the premises for personal or consumer use is prohibited.
  7. The permit holder shall notify the Building Commissioner, the Health Agent, the Fire Chief, and the Police Chief in writing within forty-eight hours of the cessation of operation of the adult use marijuana retail uses or the expiration or termination of the license holder’s Final License CCC.
  8. The Special Permit shall lapse upon the expiration or termination of the Applicant’s license by the Cannabis Control Commission.
  9. There shall be a valid Host Community Agreement in effect at all times during the operation of the adult use marijuana retail establishment.
  10. Prior to commencing operations, the Applicant shall submit proof that the Security Plan and Emergency Procedures have been reviewed and approved by the Police Chief and Fire Chief. Any changes to the Security Plan and Emergency Procedures shall be reported, in writing, to the Police Chief and Fire Chief within 14 days of such changes taking effect.
  11. The Applicant shall provide to the Building Inspector and Chief of the Police Department, the name, telephone number and electronic mail address of a contact person in the event that such person needs to be contacted after regular business hours to address an urgent issue. Such contact information shall be kept updated by the permit holder.
  12. Applicant shall comply with the regulations promulgated by the Massachusetts Cannabis Control Commission, including but not limited to, proper disposal of waste and marijuana products.

Trevor Pontbriand moved the Findings of Fact; seconded by Manny Heyliger.  VOTE:  Trevor Pontbriand aye; Manny Heyliger aye; Andy Freeman aye; Jan Morrissey aye; and Sharon Inger aye.   5-0.

Trevor Pontbriand moved to grant the Special Permit with conditions; seconded by Manny Heyliger VOTE:  Trevor Pontbriand aye; Manny Heyliger aye; Andy Freeman aye; Jan Morrissey aye; and Sharon Inger aye.   5-0.

7:20 pm

23-09  Pelletier & Gensler, 1937 State Highway, Route 6, (Unit 2), Map 29, Parcel 269-B, Application for a Special Permit under MGL Ch. 40-A, S. 9/6 and Section 235-5.4 and 6.2 to build a 12’ x 16’ three season porch addition onto existing 302 sq. ft. cabin, bring total square footage to approximately 494 sq. ft.  Intensity of use regarding setback from access road and an alteration/extension on east side of cottage.  The Board consisted of Trevor Pontbriand, Jan Morrissey, Al Mueller, Reatha Ciotti and Sharon Inger.   Sarah Benjamin, Attorney, provided an overview of the project identifying the setback issues.  There were no letters supporting or objecting to the project.  An e-mail supporting the project was received from the Condo Association.  The Board had no concerns with the project.  Al Mueller moved for Findings of Fact; seconded by Jan Morrissey.  Trevor Pontbriand aye; Jan Morrissey aye; Al Mueller aye; Reatha Ciotti aye; and Sharon Inger aye.  5-0.

  1. This is an application under the Wellfleet Zoning Bylaws (WZBL) to build a 12’ x 16’ three season porch (hereby referred to as “the addition”) onto an existing 302 sq. ft., one-bedroom dwelling. The addition would bring the total square footage to approximately 494 sq. ft. and will be built on Diamond Piers.
  2. The dwelling is entitled to treatment as a lawfully pre-existing, nonconforming structure having been built in 1945 according to the Assessor’s Office.
  3. The dwelling is located in Brownies Cabins cottage colony. The pre-existing, non-conforming cottage colony is located on a 1.55-acre (approx. 67,518 sq. ft.) lot in the Residential 1 (R1) zoning district, and consists of nine one-bedroom cottages, two two-bedroom cottages, one two-bedroom house, and a small office building with no facilities.
  4. The Zoning Board of Appeals (hereby referred to as “the Board”) has received and reviewed the plans and drawings pertaining to the addition, all of which are in the file.
  5. The Board has made a site inspection of the subject lot.
  6. The dwelling is pre-existing, non-conforming in that it consists of 302 sq. feet of floor area where a minimum of 550 sq. ft. is required.
  7. The applicable provisions for this application under the WBZL are sections 235-3.2 District Objectives; 235-5.4.B Minimum yard requirements; 235-5.4.L, Intensity of use application to cottage colonies; 235.6.1.E Alterations to nonconforming single- or two-family residential structures; and 235-8.4.B Special Permits.
  8. There will be an increase in building coverage.
  9. There will be no change or increase in use.
  10. The addition will make the dwelling less non-conforming,
  11. The applicant submitted an email from Brownies Cabins association trustees approving the proposed addition, with comments.
  12. There were no appearances in support of or in opposition to the application
  13. There were no objections from the abutters.
  14. WZBL 235-3.2: The Board finds that the use conforms with the objectives of the R1 District as stated in WZBL 235-3.2.
  15. WZBL 235-6.1.E: The Board finds that the addition will not be substantially more detrimental to the neighborhood than the existing nonconforming structure.
  16. WZBL 235-8.4.B: The Board finds that the applicant has demonstrated that the benefits of the modification will outweigh any adverse effects on the Town and the vicinity; that the modification is suitable in that it is compatible with nearby land uses which would not be damaged by the construction of the modification; that the modification will not contribute to environmental damage; that the roads, drainage, and other public services are adequate for the modification; that the modification will not affect diversity of services or housing opportunities or have seasonal consequences; and that there will be no adverse effect on scenic views, existing parking areas, or traditional public access to or along the shoreline.

Jan Morrissey moved the Findings of Fact; seconded by Al Mueller.  Trevor Pontbriand aye; Jan Morrissey aye; Al Mueller aye; Reatha Ciotti aye; and Sharon Inger aye.  5-0.

Al Mueller moved to approve the Special permit based on the /findings of Fact; seconded by Jan   Morrissey.  Trevor Pontbriand aye; Jan Morrissey aye; Al Mueller aye; Reatha Ciotti aye; and Sharon Inger aye.  5-0.

Business:

Reorganization – Chair Inger stated everyone has been reappointed with the Town, with the exception of Reatha, who is leaving the Board.  The Board thanked Reatha for her participation with the Board and wished her well for her future.    

Sharon Inger moved to move Mick Lynch to an alternate member and Jan Morrissey to a regular member.  Trevor Pontbriand will become the new Vice Chair and Jan Morrissey will be the new Clerk.  VOTE:  Trevor Pontbriand aye; Jan Morrissey aye; Al Mueller aye; Reatha Ciotti aye; Sharon Inger aye; Andy Freeman aye; Manny Heyliger aye.  7-0.

Al Mueller moved to adjourn at 7:45 pm; seconded by Andy Freeman.  VOTE:  Trevor Pontbriand aye; Jan Morrissey aye; Al Mueller aye; Reatha Ciotti aye; Sharon Inger aye; Andy Freeman aye; Manny Heyliger aye.  7-0.

Respectfully submitted,

Christine Bates, Committee Secretary

Documents:  Robicheau:  back up materials

                      Pelletier & Gensler – Special Permit Application and back-up materials