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ZBA denies special permit and variance for family daycare in small Route 28 condominium unit
Summary
The Yarmouth Zoning Board of Appeals denied both a special-permit request and a variance for a home-based family daycare at 785 Route 28 after finding the location conflicts with the condominium master deed, has limited indoor and outdoor space, and creates parking and safety concerns.
The Yarmouth Zoning Board of Appeals on April 10 denied a special permit and then denied a variance for a family day-care operation run from a unit at 785 Route 28 (unit 9), concluding the operation does not meet the town’s special-permit criteria and also conflicts with the condominium master deed.
Applicant Andrea Paiva told the board she currently cares for six children in the unit and operates under a Massachusetts EEC (Early Education and Care) license that allows up to eight children indoors but limits outdoor capacity. Paiva said most families walk or arrive at staggered times; she said she has the landlord’s permission. She said an outside fenced deck is used for outdoor time and that she runs the program Monday–Friday from about 7 a.m. to 5 p.m.
Board members and staff identified two central concerns. First, the condominium master deed prohibits business uses; the building inspector issued a violation notice on March 3 indicating the use requires a special permit in a B-2 zone but may conflict with condominium restrictions. Second, board members said the unit’s small interior area (board members estimated the total unit square footage at roughly 700–800 square feet) and limited outdoor space create potential congestion, safety and nuisance problems given Route 28’s traffic and the complex’s tight parking.
“Under the master deed of the condominium, business uses are prohibited,” the board said during deliberations, and members concluded the petition did not meet the bylaw criteria for a special permit. A motion to approve the special permit failed on a 0–5 vote. The board then moved to deny the variance request; that motion carried unanimously.
Paiva received public support from several local speakers who urged the board to consider the childcare’s value to working families. The board acknowledged community need for family day cares but said that need does not override the master deed restriction and the site-specific safety and parking concerns.
The board’s denial leaves Paiva’s operation subject to the building department’s enforcement action; she was advised of the decision and the available administrative options, including landlord and condominium-level remedies.
