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Decision-GRANT-Variance 9-9-2020TOWN OF DARTMOUTH Office of the Zoning Board of Appeals 400 Slocum Road, Dartmouth, MA 02747 Tel. No. 508-910-1868 Board Members Halim Choubah, P.E., Chairman Michael Medeiros, Esq., Clerk Robert Gardner, Jr., Member DECISION APPROVAL OF VARIANCE HEARING DATE: August 26, 2020 (via Zoom) CASE: VARIANCE CASE NO: 2020-14 PETITIONER/APPLICANT: 958 Reed Road, LLC PROPERTY OWNER: 958 Reed Road, LLC SUBJECT PROPERTY: 919, 956, and 958 Reed Road DISTRICT: Limited Industrial Map: 61 Lot(s) 4 & 45 Map: 60 Lot: 26 BRISTOL COUNTY REGISTRY OF DEEDS: Book: 3864 Page: 282 (Map: 61 Lot(s) 4 & 45) Book: 5582 Page: 168 (Map: 60 Lot: 26) PRESENT By Roll Call: The Board: Acting Chairman Michael Medeiros-present, Robert Gardner Jr.-present, Alvin Youman-present. ASSOCIATE MEMBER(s): Dr. Rahim Aghai-present and Halim Choubah-present Zoning Staff Assistant/Principal Clerk: Michelle Vieira The Petitioners were seeking a Variance to construct a 33,750 square foot storage building with a near zero setback from “Old Reed Road” where 50’ is required and less than 100’ setback from the residential zoning district. (Article 21, Section 375-21.4 E., Development Standards), (Article 33, Section 375.33.2 (D), Setbacks). DECISION It was the unanimous decision of the Board of Appeals to GRANT the requested Variance to allow the Petitioners to construct a 33,750 square foot storage building with a near zero setback from “Old Reed Road” and less than 100’ setback from the residential zoning district. Also, elimination of the front yard setback and for the buffer zone reduction from the residential zoning district which requires a 50’ front yard setback. The Board determined the following: The subject property is located at 958 Reed Road, Dartmouth and has been owned by 958 Reed Road, LLC, since May 5, 1997. The property is located in a Limited Industrial Zone, contains 7 buildings on a 9.1 acre site, and is composed of Assessor’s Map 60 Lot 26 and Map 61 Lots 4 and 45. The property is located in an aquifer overlay district and has wetlands along its southern lot line. The property has been used in the operation of Dartmouth Building Supply for some 35 years. The Petitioner seeks to improve a lumber storage area by paving and constructing an open-air building consisting of a roof and one western facing wall over the existing southern lumber storage area. The subject property borders Old Reed Road on the east side. Old Reed Road is essentially an abandoned roadway which serves only the petitioner and Colonial Beverage. The Petitioner seeks a Variance from Article 28 Section 375-21.3 E which requires a 100 foot setback from residentially zoned districts; and requires a Variance from Article 33 Section 375-33.2 D which requires a 50 foot front yard setback from a public way. The Board finds the requested Variance meets the statutory requirements for grating a Variance pursuant to Massachusetts General Laws Chapter 40A §10 as follows: (i) There are circumstances related to soils, shape, and topography that especially affect the subject property that do not generally affect the zoning district in which the structure or land is located. This property is unique as it abuts Old Reed Road, a former North to South thoroughfare in Dartmouth which has been bisected by the construction of Route 195. The construction of Route 195 resulting in Old Reed Road, turned a thoroughfare into a cul-de-sac some 500 feet from the entrance to the Petitioner’s property. The southernmost 500 feet of Old Reed Road, currently provides no access to abutting properties, structures, or other locations. This is unique within the zoning district. Further, because the Petitioner’s lot abuts Route 195, the shape of the lot is unique in the zoning district as it follows the curvilinear shape of the highway exit ramp from Route 195 which itself is zoned residential. The result of this is that the Petitioner’s lot, which directly abuts Route 195, is over 900 feet from any residential properties, but because Route 195 is zoned Residential, it technically abuts a residential zone. Lastly, the composition of the soils here are Paxton extremely stony fine sandy loam and Whitman extremely stony fine sandy loam; glacial tills of extremely low permeability. This is unique to the characteristics of the aquifer and generally are unique to the zoning area. The unique soil composition especially affects the property at issue relative to the abutting properties as it creates erosion problems, it makes ingress and egress to certain working areas much more difficult and potentially dangerous during wet months; and makes the problem of surface water recharge much more difficult on this parcel of land than on others within the aquifer. (ii.) A literal enforcement of the provisions of the by-law would involve substantial hardship, financial or otherwise, to the petitioner. Literal enforcement here would prevent the improvements proposed by the petitioner because of a failure to meet setback requirements. This would result in substantial hardship to the petitioner as it would make ingress and egress to various work areas more difficult and potentially dangerous; it would deny the Petitioner the erosion control which the project offers; and, it would allow the current drainage issues the property experiences, which have had a negative effect on the property, to go unaddressed. (iii.) Desirable relief may be granted without substantial detriment to the public good. Here, the roadway which the proposed structure abuts is a 500 foot section of Old Reed Road which has no buildings or structures of any kind and which terminates in a cul-de-sac just short of Route 195. While the structure would abut a road, it is not a road which is in use in the ways that would create detrimental circumstances for the public. Further, while the structure would be within 100 feet of a residential zone, it is at least 900 feet from the nearest residential dwelling. Accordingly, the Board finds that desirable relief may be granted without substantial detriment to the public good. (iv) The variance will not nullify or substantially derogate from the intent or purpose of the by-law. Granting relief will simply allow an existing industrial use to make better, safer and more productive use of the property despite the fact that it borders a residential district which is actually an interstate highway, and a dead end road which has minimal use. Accordingly, the Board finds that the proposed structure would not derogate from the intent or purpose of the by-law. THE BOARD’S APPROVAL SHALL BE SPECIFICALLY CONDITIONED UPON COMPLIANCE WITH THE FOLLOWING: The Petitioner and/or any subsequent owner will secure all of the necessary permits and approvals from all applicable Boards and Agencies prior to the issuance of a building permit. The Board approved plans referenced as: Cover, Sheet 1 of 6 Existing Conditions Plan, Sheet 2 of 6 Site Layout Plan - Sheet 3 of 6 Grading; Drainage, & Utilities, Sheet 4 of 6 Erosion Control Plan – Sheet 5 of 6 Detail Sheet 6 of 6 Prepared for: Dartmouth Building Supply Prepared by: Prime Engineering Dated: June 25, 2020 revised through August 18, 2020 Preliminary Plans First Floor Plan Elevations Prepared for: Dartmouth Building Supply Prepared by: Cape Building Systems Inc. Dated: June 30, 2020 Notice of Appellate Rights No Variance, or any extension, modification or renewal thereof, shall take effect until a copy of the decision bearing the certification of the city or town clerk that twenty (20) days have elapsed after the decision has been filed in the office of the city or town clerk and no appeal has been filed, or that if such appeal has been filed, that it has been dismissed or denied, is recorded in the registry of deeds for the county and district in which the land is located and indexed in the grantor index under the name of the owner of record or is recorded and noted on the owner’s certificate of title. The owner or applicant shall pay the fee for recording or registering. Appeals, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws, Chapter 40A, and shall be filed within twenty (20) days after the date of filing of this Decision in the office of the Town Clerk. If the rights authorized by a Variance are not exercised within one year of the date of grant of such Variance such rights shall lapse; provided, however, that the permit granting authority in its discretion and upon written application by the grantee of such rights may extend the time for exercise of such for a period not to exceed six months; and provided, further, that the application for such extension is filed with such permit granting authority prior to the expiration of such one year period. If the permit granting authority does not grant such extension within thirty days of the date of application therefore, and upon the expiration of the original one year period, such rights may be reestablished only after notice and a new hearing pursuant to the provisions of Massachusetts General Laws Chapter 40A, §10. Copies of the minutes of this hearing are available, upon request, at the office of the Board of Appeals. ZONING BOARD OF APPEALS, TOWN OF DARTMOUTH By: _______________________________ Michael Medeiros, Esq., Acting Chairman