ZONING BOARD OF APPEALS
MINUTES – WEDNESDAY, JANUARY 13, 2010
The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, January 13, 2010, at the Mashpee Town Hall. Board Members Robert Nelson, Jonathan Furbush, James Reiffarth, Jack Dorsey, and William Blaisdell were present. Member Peter Hinden was absent. Building Commissioner Richard Stevens also attended the meeting.
Chairman Robert Nelson opened the hearings at 7:01 p.m. He said that the Board has only one Associate Member who will be absent for the next three months. This makes it incumbent for each of the other ZBA Members to be present at every meeting. Mr. Nelson referred to Article 21 which was adopted at the Annual Town Meeting of October 16, 2006. The purpose of the Article is to “enable members of Town boards, commissions and committees who have been absent for a single session of a respective hearing of those bodies to remain voting members after having submitted written certification that the member has reviewed an audio or video recording of the missed session or a transcript thereof”.
Article 21 of Chapter 39 of the General Laws §23D: “(a) Notwithstanding any general or special law to the contrary, upon municipal acceptance of this section for 1 or more types of adjudicatory hearings, a member of any municipal board, committee or commission when holding an adjudicatory hearing shall not be disqualified from voting in the matter solely due to that member’s absence from no more than a single session of the hearing at which testimony or other evidence is received. Before any such vote, the member shall certify in writing that he has examined all evidence received at the missed session, which evidence shall include an audio or video recording of the missed session or a transcript thereof. The written certification shall be part of the record of the hearing. Nothing in this section
shall change, replace, negate or otherwise supersede applicable quorum requirements. (b) By ordinance or by-law, a city or town may adopt minimum additional requirements for attendance at scheduled board, committee, and commission hearings under this section.”
Mr. Nelson said that four members constitute a quorum and the ZBA is reserving the right to conduct Public Hearings with four members. He also said that the Petitioner has the choice to request either four or five Members to vote on a Petition.
New Public Hearings
Joann Wilson: Requests a Special Permit/Finding of Fact under Sections 174-17, 174-20, 174-24 and Massachusetts General Laws Chapter 40A §6 for permission to demolish a pre-existing, non-conforming structure on property located in an R-3 zoning district at 12 Rock Island Road (Map 128 Parcel 24) Mashpee, MA.
Joann Wilson: Requests a Variance from Section 174-31 of the Zoning By-laws for permission to vary the side setback and lot coverage requirements in order to replace a pre-existing, non-conforming structure on property located in an R-3 zoning district at 12 Rock Island Road (Map 128 Parcel 24) Mashpee, MA.
Sitting: Robert Nelson, Jonathan Furbush, James Reiffarth, Jack Dorsey, and William Blaisdell.
Mr. Furbush read the Special Permit Petition into the record. Attorney Kirrane asked for the Variance Petition to be read. Mr. Nelson said that Town Counsel has submitted an opinion that, if the Board grants the Special Permit/Finding of Fact, there would be no need for granting of the Variance.
Attorney Kirrane represented the Petitioner and submitted photographs of the property and copies of Land Court Plans dated in 1941 and 1964, along with plans from Cape & Islands Engineering. He said that the lot is a result of a merger of two lots, Lot 4 as shown on Land Court Plan 6811E and Lot 449 as shown on Land Court Plan 11408-38. The 1941 Land Court Plan shows Rock Island Road, while there is no reference to the road on the 1964 Land Court Plan. Attorney Kirrane suggested that the most recent Land Court Plan shows two lots that have been merged with an undefined private way running through one of those lots. He said that the undefined private way indicates that the lot is either a 7,000 square-foot or a 7,260 square-foot lot. By deducting wetlands and the private way, proposed lot coverage would
amount to either 20.7% or 20.8%. He referred to the Assessor’s map which shows the lot as a 9,000 square-foot lot.
Attorney Kirrane reminded the Board that the ZBA has granted lot coverage variances in this area on at least nine other instances, including one variance at 29%.
Mr. Nelson said that the 1964 Land Court Plan specifically names Rock Island Road, which corresponds to the previous 1941 Land Court Plan and that all of the Rock Island Road lays in the area of lot 449. Mr. Kirrane countered that Rock Island Road is not shown on the 1964 Land Court Plan.
Mr. James Collins, owner of properties at 4 and 6 Rock Island Road, addressed the Board. He said that in 1941 the map shows Rock Island Road as a 40-foot wide road running down on the western side of the property. In 1960, the New Seabury Corporation provided the residents of Rock Landing Park with land which would serve as a perimeter around their properties. Mr. Collins said that New Seabury wanted to provide a buffer from the intensification resulting from its construction. That land was then divided into 28 lots that are approximately 50 x 60 feet each. He said that there are buffer lots on Shore Drive and Pine Avenue and that the buffer lots are not buildable lots.
Attorney Kirrane said that lots adjacent to one another under common ownership are merged. He said that none of the houses on Rock Island Road has access to Rock Island Road without utilizing the land that is part of those 3,000 square-foot lots. Mr. Nelson said that Lot 4 is 50 x 120 feet, which equals 6,000 square feet, not 7,000 square feet.
Mr. Dorsey clarified that if the lot was deemed to be 7,000 square feet, the proposal would be at 20.8% lot coverage and at 6,000 square feet lot coverage would be 25%.
Attorney Kirrane said that House 17 is at 22.3% lot coverage, House 16 is at 21.5% and House 6 is at 22.8%. He also said that 4 Pine Avenue is at 24.2% lot coverage, 19 Pine Avenue is at 22%, 23 Pine Avenue is at 21.3%, and 15 Cross Street is at 29.6%.
Attorney Kirrane said that the Petitioner has asked for Variance relief from the lot coverage and side setback requirements. He said that the existing structure is within four feet of the northerly abutting property. The proposal is to center the house, thereby improving the existing non-conformance.
Mr. Nelson questioned the cantilevers being proposed. Mr. Kirrane referred to cantilever construction previously approved by the Board and allowed by the By-laws. Architect Michael Jimerson clarified the placement of the cantilevers on the proposal.
Mr. Paul Dardano at 23 Pine Avenue said that that the proposed 25% lot coverage seems “just absolutely absurd” and he would “object vehemently” to the proposal.
Mr. Nelson asked Building Commissioner Richard Stevens to clarify how lot coverage is calculated. Mr. Stevens said that lot coverage is governed by living space and that his interpretation is that the cantilevers are encumbrances on the setback, not on the lot coverage. Mr. Nelson said that the plan should show specifically where the Board needs to grant a Variance from the setback requirements to allow for a structure (cantilevers) that is within eight feet of the property line.
Engineer John Slavinsky said that cantilevering started with the ZBA approximately seven years ago. He said that the Board suggested cantilevering for proposals coming before the Board that exceeded the lot coverage requirements. Mr. Nelson agreed with Mr. Slavinsky’s statement and added that it was “when there was a builder on the Board”.
Attorney Kirrane said that a reasonable argument can be made that ownership rights go to the middle of the road, subject to the rights of way that others have over Rock Island Road.
Mr. Nelson said that Land Court Plan 6811E shows a 15-foot building lot running parallel to Rock Island Road. He asked if the proposed building would encroach within that building line with the cantilevered window. Attorney Kirrane said that if there is concern with the projection of the proposed bay window in the front, his client would be amenable to removing it.
Mr. Collins said he was unable to read the small print on the plan. Mr. Jimerson informed Mr. Collins that the plans are scaled with 1 1/16 inch equaling 1 foot. Mr. Jimerson also clarified for Mr. Collins that the front window projects out by 4.5 feet, not 8 feet.
Mr. Walter Dardano at 14 Rock Island Road said that the proposal “is an overwhelming structure for this neighborhood.” He claimed that it does not line up with the road.
Mr. Brian Flaherty represented his brother Gerard Flaherty, an abutter at 10 Rock Island Road. He referred to his email sent to the Board on behalf of his brother who currently resides in another country. Mr. Flaherty expressed concern over the retaining wall being damaged by the proposed installation of a septic system in the front of the house at 12 Rock Island Road. He also took exception to the proposal as not fitting in with the street and the “original zonings plans designed to preserve the look of the street” and requested that no variances be granted.
Mr. Nelson said that the Board of Health has jurisdiction over the septic system. Mr. Kirrane said that the proposal is only two feet wider than the existing system. Mr. Nelson read into the record a letter dated January 13, 2010 from the Board of Health which stated that “an enforceable agreement has been filed between the new property owners and the Board of Health for installation of a 3-bedroom septic system by August 7, 2010. If the Board votes favorably upon the request for a Special Permit and Variance relief, please incorporate the condition into the Decision.”
Mr. Slavinsky said that a similar situation exists on Cayuga Road. He said that, in his opinion, the dashed lines on the Land Court Plan show the original layout of the road in 1941, but the road appears to have been abandoned and thus became part of the subject lots.
Attorney Kirrane said that the Town of Mashpee adopted Subdivision Control Law in 1966. He said that both Land Court Plans predate that particular Law. Mr. Nelson said that at the time the subject house was built, the Land Court Plan titled 6811E was in effect. He said that this established the street line at the time of the construction of the home on Rock Island Road. The size of the home at that time was 50 x 120 feet. Mr. Nelson said that the road was a 40-foot wide layout.
Mr. Walter Dardano said that in the 1950’s the road was called a sand and oil road.
Attorney Kirrane and the Board discussed at some length the actual size of the subject property.
Mr. Dorsey asked for clarification of ownership of some of the abutting lots. Mr. Collins said that the 3,000 square-foot buffer lots were deeded to the residents of Rock Island Road for the purpose of right-of-way and for New Seabury to access Maushop Village.
Mr. Dorsey referred to the opinion submitted by Town Counsel five years ago that these are separate lots that should not be combined for building purposes.
Mr. Dorsey asked Mr. Flaherty again about his concerns. Mr. Flaherty said that the retaining wall would be undermined by installation of the septic system.
Mr. Walter Dardano said that the proposed construction of a 34 x 150-foot house is a “god-awful big house.”
Allison Flaherty asked for clarification of the cantilevers. She also asked if the proposal was for a 3-story home. Mr. Jimerson said that the proposal is actually 2 ½ stories with attic space on the top floor.
Mr. Furbush read an email submitted by abutter Peter Readel owner of 22 Pine Avenue who resides in Geneva, NY. Mr. Readel requested that his concerns be read into the minutes. The letter reads:
“As a member of Rock Landing Park Association, which includes Rock Island Rd., I wish to express my concerns on the requested variance. The lots on Rock Island Rd are somewhat unique in so far as they are divided Rock Island Road and I thought that a ruling had been determined that the land on the South side of Rock Island Road, which I consider to be an East-West roadway, would not be counted as part of the lot when computing lot coverage percentage. If that is the case then I believe that lot coverage of the proposed dwelling is in excess and should be lessened. It is my understanding that the planned dwelling has one or more ‘cantilevered’ faces. These do not show as part of the foundation footprint but are, in face, impervious structures, which increases the storm-water runoff. One of
the basis reasons for limited lot coverage. Therefore I believe that where the cantilevered faces intersect the ground surface should be included in overall square foot lot coverage computation. I believe that the Zoning Board of Appeals should require that the new dwelling be located in such a position that it, in no way, eliminates, reduces, impedes or changes the water view from the currently existing dwellings on Rock Island Road, especially those located to the West (inland) of the proposed dwelling. The positioning of the Title V septic system should be evaluated with regards to the leach field or pump-out requirements and proximity to neighboring lots or public right of ways. The topography of the lot in question should be evaluated so the height of the proposed dwelling is in compliance with existing regulations, which I believe, say measurement shall be from the average height of the land mass, not the highest nor lowest point on the lot.
Unfortunately the proposed dwelling’s height is such that it will reduce natural sunlight, mornings and late afternoons, available to abutters and the new dwelling should be located to minimize that effect.”
Mr. James Collins read his letter into record. He challenged the architectural and engineering plans as being inaccurate. He said that the dimensions are incomplete. He said that the cantilever windows project into the setbacks. He questioned the height of the building. He questioned the lot coverage calculations and asked which one was accurate - the 20.8% (7,000 square feet), 16.7% (9,000 square feet) or 25% (6,000 square feet). Mr. Collins referred to a letter dated December 8, 2004 from the law firm of Merrick, Lewison and Costello to the ZBA. He said that the proposed construction during the summer months of July and August will adversely affect the abutting homeowners and may affect the ability of homes to be rented due to the congestion and construction noise.
Mr. Walter Dardano expressed his frustration and confusion that the Board is still discussing the actual size of the lot.
Mr. Collins protested that this would “open the neighborhood to a lot of problems.” He said that other homeowners in the area will also try to combine their buffer lot with their developed lot. He asked for the Board to get Town counsel’s opinion.
Mr. Paul Dardano said that the Board appears to be reversing their decision. He said that this will be “opening up a can of worms” and urged the Board not to grant the Petitions.
Mr. Brian Flaherty said he would like to see a detailed plan. He said that the proposal will “cast shadows” on abutting homes and will “impact views.”
Mr. Paul Dardano asked if the Board will still be discussing the size of the house and the size of the lot if the Petition is continued to a future date.
Mr. Christopher Simcik, owner of 15 Seagrass Lane, remarked that the other homeowners in the area with 25% lot coverage were not present to express their concern. Mr. Simcik felt that the Petitioner wasn’t asking for “anything out of the ordinary” and that the “plan looks beautiful”. He expressed his support for the proposal and that it would be a significant increase in value to the community and would improve the value of the neighboring homes. He also said that the proposal was not one of the largest properties and referred to at least three other homes in the
neighborhood that were currently at 29% lot coverage.
Mr. Nelson said that he felt the proposal needed some revision. He also assured those present that the ZBA would be making a formal request for Town counsel opinion on this matter.
Mr. Nelson made a motion to continue the Petitions until February 10, 2010. Mr. Reiffarth seconded the motion. All were in favor.
Other Business
Accept Withdrawal of Petition SP-09-38 (Yarmouth Fish and Lobster d/b/a Mashpee Fish and Lobster)
Sitting: Robert Nelson, Jonathan Furbush, James Reiffarth, Jack Dorsey, and William Blaisdell.
Mr. Nelson made a motion to accept the Withdrawal. Mr. Furbush seconded the motion. All were in favor.
Accept December 9, 2009 Minutes
Sitting: Robert Nelson, Jonathan Furbush, James Reiffarth, Jack Dorsey, and William Blaisdell.
Mr. Nelson made a motion to accept the December 9, 2009 Minutes. Mr. Reiffarth seconded the motion. All were in favor.
January 27, 2010 Public Hearings
Mr. Nelson made a motion to cancel the January 27, 2010 Public Hearings. Mr. Blaisdell seconded the motion. All were in favor.
Mr. Nelson made a motion to adjourn the meeting. Mr. Furbush seconded the motion. All were in favor. Meeting was adjourned at 9:20 p.m.
Respectfully submitted,
Cynthia Bartos
Board Secretary
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