ZBA-Minutes
Approved
Wellfleet Zoning Board of Appeals
COA, 7:00 pm
Meeting Minutes of September 12, 2019
Attendees: Sharon Inger, Bruce Drucker, Manny Heyliger, Mick Lynch, Reatha Ciotti, Trevor Pontbriand, Wil Sullivan, Jan Morrissey, and Christine Bates, Committee Secretary
Regrets: Trevor Pontbriand
7:00 pm
19-19 Slackman, Inc. dba Pearl, Appeal from Person Aggrieved, regarding Mac’s Seafood located at 265 Commercial Street, Map 21, Parcel 113, and Town of Wellfleet, 255 Commercial Street, Map 21, Parcel 114 for lack of enforcement to remove picnic tables from adjoining public land and because the placement of such tables intended for its customers constitutes an unlawful expansion of Mac’s Seafood’s use non-conforming as a drive-in restaurant. At the request of the applicant. Mick Lynch moved to continue to November 14, 2019; seconded by Manny Heyliger; passed 5-0.
7:05 pm
11-24 Cumberland Farms, Inc. Amendment, 2586 State Highway, Rte 6, Map 23, Parcel 39; Request for Amendment to Special Permit 11-24 for modifications to the building, lighting and signs. Jan Morrisey stated she was on the Planning Bd when this came before them for a Development of Significant Impact. The Board consisted of Sharon Inger, Bruce Drucker, Mick, Lynch, Manny Heyliger and Wil Sullivan. Other members of the Board in attendance were Jan Morrissey, and Reatha Ciotti. Attorney Douglas Troyer spoke on behalf of the applicant. He
provided an overview of the previously approved project. He stated the prototype style of buildings for Cumberland Farms has changed since the original Special Permit. There will be a reduction in the size of the building. Shawn Riley of Coastal Engineering provided the following modifications to the plan which included: an easement will be used for the eastern side of the building; the retaining wall will be removed on the right side of the property; and the existing garage at the rear of the property will be removed. On the westerly end of the building, there will be a “jog”.[SI1] Dawn Johnson, Planning Department of Cumberland Farms, explained the different style for the front of the building, adding that the height of the building has been reduced. The sign will be smaller, and the front design of the gables has been reduced. There will be double hung windows with siding between them. The outside of the building will be fiber cement. The lighting will be on the sides which is accent lighting, and in the front of the building will be canned lights. There will be no internal illumination. The stonework will be eliminated. Mary O’Sullivan Donal, direct abutter, objected to the up lighting on the sides of the building. Helen Miranda Wilson, citizen, expressed concern with the effects on the environment by cutting down the trees on the south of the parking lot and the rest rooms, which provided shade. Mick Lynch stated the lighting was important to the Board for down lighting[SI2] and Ms. Johnson stated they will change the lighting to be down. Coastal Engineering stated the trees have to be cut down due to the location that they would be in the middle of the building. The Board reviewed the approved plan and compared it to the proposed plan. The changes are due to the reduction in height. The proposed design is not the corporate look. They felt this proposed design is in more in line with Wellfleet. The landscaping plan will not change. The building footprint reduction is 30 square feet. The reduced height will fit in better to[SI3] the property. Mick Lynch moved for Findings of Fact; seconded by Manny; Heyliger passed 5-0.
The applicant, Cumberland Farms, Inc., owns property located at 2586 State Hwy (Route 6), Map 23, Parcel 39 within the commercial district. The applicant seeks to amend Special Permit 11–24 dated January 26, 2017 to make certain modifications to the exterior elevation plans and floor plan to incorporate some of the newer features the applicant uses today since it applied for the original special permit approximately eight years ago.
The ZBA has reviewed all memorandum, plans &[SI4] drawings provided with the application.
In a February 8, 2012 decision, the ZBA denied the applicant’s two special permit requests (i) to authorize a filing station use, and (ii) to add another principal use (the filing station) on its property principally because the then WZBL 6.30 required a Formula Business Special Permit from the Wellfleet Planning Board.
The applicant appealed the denial to the Land Court which issued a decision, dated October 6, 2015, vacating the ZBA's February 8, 2012 decision, invalidating Wellfleet's Formula Business Bylaw, and remanding the application to the ZBA for issuance of the two special permits.
The Land Court's decision was unanimously affirmed by the Massachusetts Appeals Court in a decision dated December 2, 2016.
On January 26, 2017, as ordered by the Land Court the ZBA granted the applicant’s request for a Special Permit for the filing station and to locate more than one principal use on the lot.
The applicant’s proposed modifications are minor, are not a substantial deviation from the conditions of the January 26, 2017 Special Permit, will not result in any change or increase in use[SI5] and don’t [SI6] create any building non-conformities. For example, the modified plan provides for a 12-inch jog into the tenant space resulting in a reduction of 30 ft.² thus reducing the size of the tenant space from approximately 2727 ft.² to 2697 ft.². There are modest exterior elevation changes all within the 28 foot height limit specified in the WZBL; the proposed signage will be smaller: stonework will not be utilized; there are window changes; and up/down wall lights have been proposed for the building’s left side, rear and right side. All such lighting will be in conformity with the requirements of the WZBL and all applicable state statutes and regulations and the applicant has agreed to install only down lighting.
There were two objections to the proposed amendments.
The Board reviewed the Special Permit granting criteria of WZBL 8.4.2 and finds as follows with respect to the proposed amendments:
The ZBA finds pursuant to WZBL 8.4.2.1(a) that nearby land uses consist primarily of commercial uses, which will be neither supported or damaged by the proposed amendments The proposed amendments will not generate traffic patterns, noise and daily activities any more or less harmonious and consistent with neighborhood activities than the 1/26/17 Special Permit 11–24
The ZBA finds pursuant to WZBL 8.4.2.1(b) that this consideration is not relevant as the site will continue to be used commercially and will not displace or preempt other uses.
The ZBA finds pursuant to WZBL 8.4.2.1(c) that Route 6 is adequate for the proposed amendments. Public utilities provide service and are adequate. Drainage is adequate for the location and will not be diminished by the proposed amendments.
The ZBA finds pursuant to WZBL 8.4.2.1(d) that the proposed amendments will not impact the factors in this section.
The ZBA finds pursuant to WZBL 8.4.2.2(a) that the proposed amendments will not contribute to or diminish the diversity of services or housing opportunities since the use will remain the same.
The ZBA finds pursuant to WZBL 8.4.2.2(b) that the proposed amendments will not add to peak period congestion.
The ZBA finds pursuant to WZBL 8.4.2.2(c) that this consideration is not relevant since the proposed amendments will not impact services or year-round activities
The ZBA finds pursuant to WZBL 8.4.2.2(d) that this consideration is not relevant since the proposed amendments will not affect employment opportunities for residents.
The ZBA finds pursuant to WZBL 8.4.2.2(e) that the proposed amendments will not impact affordable housing for year-round residents.
The ZBA finds pursuant to WZBL 8.4.2.3(a) that that scenic views from public ways and developed properties will not be impacted by the proposed amendments.
The ZBA finds pursuant to WZBL 8.4.2.3(b) that this consideration is not relevant as parking is not impacted by the proposed amendments.
The ZBA finds pursuant to WZBL 8.4.2.3(c) that this consideration is not relevant as the site does not contain or implicate public access to the shoreline.
The proposed amendments will not be substantially more detrimental to the neighborhood than the current Special Permit, and the applicant has demonstrated that the benefits of the proposed amendments will outweigh any adverse effects on the Town and the vicinity after considering the District Objectives for the commercial district as provided for in the WZBL.
Move to grant the application to amend Special Permit 11–24 dated January 26, 2017 regarding only Conditions 1c,1d,1h, and 1i as follows:
Delete “c. Layout & Materials Plan C2.1.1- revised January 20, 2012” and replace it with “c. Layout & Materials Plan C2.1.1- revised July 16, 2019.”
Delete “d. Grading, Drainage & Utilities Plan C2.2.1- revised January 20, 2012” and replace it with “d. Grading, Drainage & Utilities Plan C2.2.1- revised July 16, 2019”
Delete “h. Schematic Exterior Elevations A3.1 & A3.2- dated September 26, 2011” and replace it with “h. Schematic Exterior Elevations A3.1 & A3.2- dated May 31, 2019”
Delete “i. Floor Plan and Partition Types A1.1 - dated September 27, 2011” and replace it with “i. Floor Plan and Partition Types A1.1 - dated May 31, 2019”
Except as specifically stated in paragraphs A, B, C and D above the January 26, 2017 Special Permit 11–26 and the conditions in it are affirmed in all respects. In addition, the proposed up/down lighting will just be down lighting.
Mick Lynch moved the Findings of Fact; seconded by Manny Heyliger; passed 5-0. Based upon the Findings of Fact, Mick Lynch moved to grant the amended Special Permit seconded by Manny Heyliger; passed 5-0.
8:05 pm
19-23 Nature’s Alternative, Inc., 2393 State Highway, Map 23, Parcel 211, Application for a Special Permit for retail marijuana use operation pursuant to the WZB s. 5.4.2 (Use Tables) and s. 5.4.13 (more than one principle use) The Board consisted of Sharon Inger, Mick Lynch, Manny Heyliger, Bruce Drucker, and Jan Morrissey. Also in attendance were Board members Wil Sullivan and Reatha Ciotti. Attorney Ben Zehnder represented the applicant and provided an overview of the project. Ryder Wilcox were at the table. Attorney Zehnder stated there are a number of leased spaces in the building and the old antique store will be converted into the marijuana retail space. There will be no alterations to the building, other than the front facade of the building to provide a secure frontage to the facility. The corridors will provide access for delivery. He gave an overview of the interior space, identifying the employee areas, security, retail space, etc. There is a community host agreement with the town. Lisa Toomey, Cove Rd., questioned where the deliveries will be made, hours of operation, expressed concern with lighting facing her home, odor control, how will smoking outside in the parking park be secured, people “hanging around”, as well as entrance and egress from the parking lot. The hours will be 9:00 am to 8:00 pm; deliveries will be either from the front door or side door which faces the Post Office. There will be down lighting. Nancy Sheldon stated the area will be monitored by cameras 24 hours and the police will frequently monitor the store/area. There will be no odor from the products since there is no cultivation and the products are packaged in plastic, and under displayed under glass in the store. There was no traffic study performed because it is the same use, and there are 4 entrances / exits near the Cove Road area. From the audience, Beth Singer stated the parking lot is also a school bus stop for both the am and pm (before and after school). She is concerned with the traffic danger and difficulty accessing Route 6. A letter of opposition from Jim and Marcia Arnold was read expressing concern with traffic, safety, and impaired drivers.
Wil Sullivan questioned the use of the school buses on the property[SI7] and Attorney Zehnder stated the owner of the property had never restricted the use as long as the tenants didn’t [SI8] have any problems. Attorney Zehnder stated he didn’t[SI9] think the location of the marijuana store would impact the children since they could not purchase any products. Ms. Sheldon stated there will be a liaison with the police department to ensure they are always informed. There will be a parking person to direct traffic, and if necessary due to a large number of customers, sales will be an appointment only schedule[SI10] . The company will make arrangements with the tenants, police, and other agencies to ensure safety. Attorney Zehnder suggested a condition for a detailed police presence during the first month. He believed the turnover of people buying products would be approximately 15 minutes (in and out). Off-site parking could be made available if necessary. The company has to go the Cannabis Control Committee. Bruce Drucker stated most of the problems with traffic will be in the summer months and we cannot predict what will happen. He stated this is a political issue. He stated he feels the abutters should get together with the Selectmen to make sure the town works with the police, the owners, etc. and the funding received from the sales per the Host Agreement supports the efforts of the agencies. Attorney Zehnder stated a school bus stop doesn’t [SI11] have required limited distance to marijuana stores (schools have 500 feet). There are approximately 123 parking spots on the property. Jan Morrissey expressed concern with the number of accidents in the Cove Road area. She stated a traffic report was done and recommendations were made, but never implemented. She questioned the use of the outside door for entrance to the rest room,[SI12] and Ms. Sheldon stated there will be security at both the doors to the store. Mick Lynch moved for Findings of Fact; seconded by Manny Heyliger; passed 5-0
In connection with the granting of this Special Permit, pursuant to Section 8.4.2 of the Bylaw, the Board found the benefits of the proposed use of the property as an Adult Use Marijuana Establishment for the operation of a marijuana retail establishment will outweigh any adverse effects on the Town, based on the following findings:
The property comprises approximately 101,192 square feet of land and 300 linear feet of frontage on Route 6 State Highway in the Commercial zoning district where 40,000 square feet of land and 200 feet of frontage are required.
The property is improved with a two-story brick commercial structure with approximately 16,833 square feet of floor area containing a Dunkin' Donuts establishment, hair salon, a former antique store, thrift store and self-storage units.
The structure is conforming as to lot coverage, height, and all building sideline setbacks save for the south side which is 25.3 feet from the sideline where 35 feet is required.
The property is nonconforming with regard to parking area setback requirements – the parking areas being 0 feet from Cove Road where 10’ are required, and 15’ from Route 6 where 35 feet are required.
The applicant proposes establishing a marijuana retail store in 3,130 square feet of the first floor presently the location of a retail antique store.
The use of the space as a retail store is not changing.
The remaining uses of the building are not changing.
The site plan shows 107 parking spaces where 77 are required.
The building is well set back from Route 6 – being 215.7 feet, and from Cove Road, being 76 feet.
The property provides two entrance / exits onto Route 6 and affords relatively straight and clear sight lines.
The property also provides entrances onto Cove Road and the adjacent Post Office / Theatre property, both of which provide nearby access to Route 6.
Retail sales of marijuana is not separately defined or regulated by the Wellfleet Zoning Bylaw but is rather a Retail Trade use permitted in the Commercial Zoning District by special permit.
The proposed use is not a change of use of the building, and therefore the Parking Requirement provisions of Section 6.3 and Landscaping requirements of Section 6.12 do not apply to this application
The proposal is projected to provide significant additional revenue to the Town of Wellfleet.
Route 6 provides adequate access and other public services to the property.
There is no reasonable likelihood of environmental damage from the proposal since the exterior of the building and the parking areas will remain the same.
The proposal will beneficially increase the diversity of services available locally as it will create a new and dynamic business.
There will be a seasonal increase in traffic due to numerous factors during the summer- tourist season but given the volume of traffic and use of Route 6 and adjoining roads, the increase is not projected to be significantly detrimental.
The proposal will create needed year-round employment as 18 employees at maximum shift are anticipated.
There will be no impact on any scenic views from the proposal.
The proposal provides for adequate delivery and service areas.
The proposal will not affect public access to or along the shoreline.
There were 3 objections to the application.
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.
Bruce Drucker moved the Findings of Facts; seconded by Mick Lynch, passed 5-0. Mick Lynch moved to grant the Special Permit with the following conditions; seconded by Manny Heyliger, passed 5-0.:
The Board grants this approval for a Special Permit subject to the following conditions:
The adult use Marijuana Establishment shall be permitted to operate between the hours of 9:00 a.m. and 8:00 p.m. for adult use marijuana retail purposes.
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.
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”).
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, Police Chief and the Board with a copy of the applicable Final License from the CCC for an adult use marijuana retail establishment.
The Applicant shall provide an annual report of its operations to the Board and other Town officials no later than January 31st of each year, including a copy of all current state licenses and demonstrating continued compliance with the conditions of this special permit. Any change in ownership of the property or change in management staff and individuals with key access to the marijuana establishment shall also be reported within 30 days of such change.
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.
Smoking, burning and consumption of marijuana or marijuana infused products on the premises for personal or consumer use is prohibited.
The permit holder shall notify the Building Commissioner, the Health Agent, the Fire Chief, the Police Chief, and the Board 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.
The Special Permit shall lapse upon the expiration or termination of the Applicant’s license by the Cannabis Control Commission.
There shall be a valid Host Community Agreement in effect at all times during the operation of the adult use marijuana retail establishment.
The Security Plan and Emergency Procedures shall be approved by the Police Chief and Fire Chief prior to commencing operations. 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.
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.
No deliveries will be made to the facility from the Cove Road side of the property.
The applicant will employ a detail officer to control traffic for the first few months of operation or as deemed necessary by the chief of police.
Business: none
Meeting Minutes: Bruce Drucker moved to approve the amended August 8, 2019 meeting minutes; seconded by Manny Heyliger; passed unanimously.
Mick Lynch moved to adjourn at 9:15 pm; seconded by Manny Heyliger, passed unanimously.
Respectfully submitted,
Christine Bates, Committee Secretary