MASHPEE ZONING BOARD OF APPEALS
MINUTES
March 10, 2010
The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, March 10, 2010, at the Mashpee Town Hall. Board Members Robert Nelson, Jonathan Furbush, John Dorsey, William Blaisdell, and Associate Member Ronald Bonvie were present. Board Member James Reiffarth and Associate Member Peter Hinden were not in attendance.
Mr. Blaisdell wished Mr. Nelson a Happy Birthday. Chairman Robert Nelson opened the hearings at 7:00 p.m.
NEW HEARINGS
Habitat for Humanity of Cape Cod, Inc.: Requests a Comprehensive Permit under Massachusetts General Laws Chapter 40B and a Variance from 174-31 of the Zoning By-laws for permission to vary the minimum lot size requirements, lot frontage requirements, and front setback requirements to allow for construction of a single-family home on property located in an R-5 zoning district at 19 Lakewood Drive (Map 28 Parcel 109) Mashpee, MA.
Sitting: Robert Nelson, Jonathan Furbush, William Blaisdell, John Dorsey, and Ronald Bonvie.
Mr. Furbush read the Petition into the record. Attorney Warren Brodie represented the Petitioner along with Mr. Donald Dickinson, Project Permitting and Site Development Director and Vice Chair of the Land Acquisition Committee in Harwich. Mr. Brodie said the Petitioner is requesting a Comprehensive Permit under Massachusetts General Laws Chapter 40B and is seeking permission to vary the lot size, lot frontage and front setback requirements to allow for construction of an affordable single-family three-bedroom home on the subject property. The property was the subject of a land disposition agreement between the Town of Mashpee and Habitat for Humanity of Cape Cod, Inc. on August 24, 2009. Mr. Brodie said that Habitat for Humanity is the grateful recipient of the Town’s largesse with respect to this parcel
and two other parcels of land. Habitat for Humanity has received a deed from the Town for this parcel.
The subject lot will have to comply with restrictions imposed pursuant to a Department of Housing and Community Development (DHCD) restrictive rider which will ensure that the lot will remain an affordable lot in perpetuity and will count towards the Town’s affordable housing inventory in perpetuity.
The Town will receive a local preference approval from the DHCD so that two of the three affordable homes proposed by Habitat for Humanity of Cape Cod, Inc. will be reserved for residents of the Town of Mashpee. Residents are defined as persons currently residing in Mashpee, persons currently employed by the Town of Mashpee, or families living out of town with children in schools in Mashpee.
Mr. Nelson confirmed that the Petition was filed correctly as a Petition for a Comprehensive Permit. He also said that all of the abutters were notified as required by law. Mr. Brodie said that the Comprehensive Permit statute permits the ZBA as the permit granting authority under Chapter 40B to grant Variance relief from the By-law. Mr. Nelson assured Mr. Brodie that the final Decision would include reference to Chapter 40B, Comprehensive Permit and affordable housing.
Mr. Furbush asked for clarification of the nitrogen aggregation plan. Mr. Brodie said that the development of the property is possible because of the Town’s provision of various parcels of land within the same watershed that would be considered undevelopable. Situated in the same watershed, the undevelopable parcel would be aggregated with the subject parcel to create a larger parcel of land. This zoning district requires at least 10,000 square feet of land per bedroom. This makes it possible for Habitat for Humanity to construct a three-bedroom home on this parcel, as well as two other parcels in the town. This was approved in Article 16 of the Town’s annual meeting warrant of October 15, 2007. Mr. Brodie said that the proposal is very similar to other developed homes in the
area.
Mr. Dickinson said that the proposal has received approval from the Board of Health and the nitrogen aggregation plan has been approved by the Department of Environmental Protection.
The Board reviewed the plans and calculated the Variance relief being requested.
No comments were received from abutters.
Mr. Furbush moved to grant the Petition for a Comprehensive Permit and to grant the following Variances on the subject property:
- a variance of 68,612 square feet from the lot size requirements.
- a variance of 60 square feet from the lot frontage requirements.
- a variance of 5 feet from the front setback requirements.
This Decision is conditioned upon compliance with plan dated 5/19/2009, J. M. O’Reilly & Associates, 1573 Main Street, Route 6A, Brewster, MA.
Mr. Blaisdell seconded the Motion. All were in favor. The vote was unanimous.
Habitat for Humanity of Cape Cod, Inc.: Requests a Comprehensive Permit under Massachusetts General Laws Chapter 40B and a Variance from 174-31 of the Zoning By-laws for permission to vary the minimum lot size requirements and lot frontage requirements to allow for construction of a single-family home on property located in an R-5 zoning district at
67 Fox Hill Road (Map 21 Parcel 40) Mashpee, MA.
Sitting: Robert Nelson, Jonathan Furbush, William Blaisdell, John Dorsey, and Ronald Bonvie.
Mr. Furbush read the Petition into the record. Attorney Warren Brodie represented the Petitioner along with Mr. Donald Dickinson, Project Permitting and Site Development Director and Vice Chair of the Land Acquisition Committee in Harwich. Mr. Brodie said the Petitioner is requesting a Comprehensive Permit under Massachusetts General Laws Chapter 40B and is seeking permission to vary the lot size and lot frontage requirements to allow for construction of an affordable single-family, three-bedroom cape-style home on the subject property. He said that Habitat for Humanity of Cape Cod, Inc. is very grateful to the Town for its generosity in providing the property for development. Mr. Brodie said that Habitat for Humanity is the grateful recipient of the Town’s largesse with respect to this parcel and two other
parcels of land in Town.
The property is subject to the nitrogen loading requirements. The nitrogen aggregation plan has been approved by the Department of Environmental Protection. The proposal has also received approval from the Board of Health.
The lot will be subject to restrictions imposed pursuant to a Department of Housing and Community Development (DHCD) restrictive rider which will ensure that the lot will remain an affordable lot in perpetuity and will count towards the Town’s affordable housing inventory in perpetuity.
The Town will receive a local preference approval from the DHCD so that two of the three homes will be reserved for residents of the Town of Mashpee. Residents are defined as persons currently residing in Mashpee, persons currently employed by the Town of Mashpee, or families living out of Town with children in schools in Mashpee. Mr. Brodie said this will be a wonderful opportunity for a deserving family to occupy an affordable home.
Mr. Nelson read a letter from Building Commissioner, Richard Stevens. His comments included a reference to the absence of paving to the subject property. He said that, while desirable, he did not feel that paving would be required. Mr. Stevens’ letter further stated that Section 174-32 of the Zoning By-laws allows for use of materials other than asphalt. Mr. Nelson said that the paving ends just before the subject lot. Mr. Brodie said that the road is sufficient to support traffic in the area. Mr. Nelson said that there is no turn-around at the end of the road due to a cable that has been installed across the road prohibiting anyone from going into that area. He said the cable is a safety and liability issue. It also poses a hindrance to emergency vehicles turning around in that area.
Mr. Nelson asked for comments from the audience. Mr. Leonard Federico who resides at 61 Fox Hill Road said that the above-referenced encroaching shed belongs to him and was installed due to a surveying error. Mr. Federico also admitted to placing the cable across the road to prevent young people from going into that area and engaging in illegal activities, such as drinking and drug use. Mr. Federico said that he also installed “no trespassing” signs. He said that he has called the Police Department on numerous occasions.
Mr. Federico said that he has no problem with the proposal, but alleged that the abutting Wampanoag Rod and Gun Club presents a hazard. He claimed that he can hear bullets flying through the back of his yard and that his garage and truck have been hit by shells. He said that he can’t let his grandchildren play in the backyard because of the gun club. Mr. Federico expressed his concern with the proposed construction being so close to the gun range.
Mr. Nelson thanked Mr. Federico for his comments, but said that the Board has no authority to regulate the operation of the gun club. Mr. Nelson read an email sent by the Board Secretary to Mr. Dickinson concerning a phone call from Mr. Mark Corbett representing the Wampanoag Rod and Gun Club. Mr. Corbett said that the gun club is not opposed to the Petition, but wants to be sure that Habitat for Humanity was aware that the gun club is an abutter and that it was there before the Petitioner.
Mr. Robert Dillon at 57 Fox Hill Road addressed the Board and also expressed his concern with the rod and gun club presenting a potential danger to neighbors.
The Board expressed their understanding and suggested that the abutters look into engaging the services of a lawyer and contacting the Police Department with their concerns.
No other comments were received from abutters.
Mr. Furbush moved to grant the Petition for a Comprehensive Permit and to grant the following Variances on the subject property:
- a variance of 67,500 square feet from the lot size requirements.
- a variance of 50 square feet from the lot frontage requirements.
This Decision is conditioned upon the following:
- Planning Board/Town Planner approval of a suitable paving topcoat.
- removal of the encroaching shed from Lot 29.
- compliance with plan dated 5/18/2009, J. M. O’Reilly & Associates, 1573 Main Street, Route 6A, Brewster, MA.
Mr. Blaisdell seconded the motion. All were in favor. The vote was unanimous.
Gordon J. and Catherine Vanderbrug: Request a Finding of Fact under Section 174-17 of the Zoning By-laws to allow for construction of an addition to an existing home on property located in an R-3 zoning district at 181 Daniel’s Island Road (Map 100 Parcel 39) Mashpee, MA.
Sitting: Sitting: Robert Nelson, Jonathan Furbush, William Blaisdell, John Dorsey, and Ronald Bonvie.
Mr. Furbush read the Petition into the record. Mr. Jason Cox represented the Petitioner and said that the Petitioner desires to install a master bathroom in the 22’ x 6.5’ addition. He said that this residence has received a number of Special Permits from the ZBA in the past. Mr. Cox stated that the existing dwelling is a non-conforming structure. He asked the Board for a Finding of Fact that the proposal will not be substantially more detrimental than the existing non-conforming structure or use to the neighborhood and that there is adequate land area to provide sufficient parking and setbacks as may be required.
Mr. Nelson mentioned that the connecting roof to the garage makes the dwelling one structure and therefore, the roof becomes part of the lot coverage.
Mr. Blaisdell asked for the existing lot coverage and the proposed lot coverage figures. Mr. Cox did not have that information available. Mr. Furbush said that he needed to have those figures before he would vote on this Petition. Mr. Cox said that the proposal was designed not to exceed the lot coverage, but that he didn’t have the exact figures. Mr. Nelson pointed out to the Board that this Petition is requesting a Finding of Fact and that, in this case, the Board is not ruling on lot coverage, square footage or setbacks. He reminded the Board that the Finding of Fact is limited to determining whether the proposal is substantially more detrimental than the existing non-conforming structure. Mr. Blaisdell agreed. Mr. Furbush said that if the lot coverage exceeds the maximum allowed then he
would find it more detrimental. Mr. Nelson said that lot coverage cannot be calculated from the plan and that the Petitioner would be put to a lot of expense for something that is not mandatory. Mr. Furbush defended his viewpoint.
No comments were received from abutters.
Mr. Nelson moved to grant a Finding of Fact that the proposal will not be substantially more detrimental than the existing non-conforming structure or use to the neighborhood and that there is adequate land area to provide sufficient parking and setbacks as may be required. Mr. Blaisdell seconded the motion. Mr. Nelson polled the Board by individuals. Messrs. Dorsey, Bonvie, and Blaisdell voted in favor. Mr. Furbush voted against. Mr. Nelson voted in favor. Motion carried 4 to 1.
This Decision is conditioned upon compliance with plan entitled: “BSS Design Engineering & Surveying, Certified Plot Plan Proposed Addition 181 Daniel’s Island Road, Mashpee, Massachusetts Prepared for Gordon & Catherine Vanderbrug, date: Feb 26, 2010, job number 10021”.
CONTINUED HEARINGS FROM JANUARY 13, & FEBRUARY 24, 2010
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, William Blaisdell, John Dorsey, and Ronald Bonvie.
Mr. Furbush read both Petitions into the record. Attorney Kevin Kirrane, Engineer John Slavinsky, and Architect Michael Jimerson attended the meeting along with the Petitioner, Mr. Michael Wilson. Attorney Kirrane recapped some of the information presented at the last two public hearings on these Petitions:
- the subject lot consists of 9,000 square feet with merging of the buffer lot.
- the subject lot consists of 7,000 square feet with the By-law definition of a lot area exclusive of any road or street that is situated in the lot.
- the subject lot consists of 7,260 square feet according to a land court plan dated in 1964.
Mr. Nelson said that Town Counsel and the Board conducted extensive research on this particular situation and that the opinion is that the subject lot is 6,000 square feet.
The first plan presented by the Petitioner included the cantilevering and consisted of 1,700 square feet for 28.3% lot coverage of a 6,000 square foot lot. The next plan proposed 1,528 square feet, which constituted 25.5% lot coverage of a 6,000 square foot lot. Attorney Kirrane presented a plan to the Board with a proposed dwelling consisting of 1,450 square feet for 24.1% lot coverage of a 6,000 square foot lot. He urged the Board to use fairness in rendering this Decision.
Mr. Nelson brought up the land court plan dated in 1941 which shows Rock Island Road as a 40’ way.
Attorney Kirrane said the current plan calls for a dwelling that is 29 feet wide and 50 feet long for a total of 1,450 square feet. The dwelling would be situated in the middle of the lot and have 10.5 foot side setbacks, which would be an improvement on the setbacks of the current dwelling. No cantilevering is proposed. The master bedroom on the first floor is essential in order to accommodate the Petitioner’s health issues and the eventual need for handicap access. This dictates the need for the proposed layout of the dwelling.
Mr. Dorsey said that several homes in the neighborhood have been granted permission to exceed the lot coverage requirements. He said that he did not have a problem with the proposal.
Mr. Nelson read the letter from Building Commissioner Richard Stevens which included the following comment: “…we need to clarify just where the ‘Horizontal Cross Section of structures’ is taken for calculating lot coverage. Is it at the foundation, mid-section, top plate or ridge of the structure? It would surely make a difference for the purpose of calculating lot coverage.”
Mr. Nelson told Mr. Wilson: “…in all sincerity I want to say … we’re not trying to make a case out of you. You’re entitled to get the same consideration that everybody else has received in this entire area.”
Mr. Nelson said that he agreed with the Building Commissioner’s comments and suggested that the Board use the distance from the foundation to calculate lot coverage. Mr. Furbush said that he feels lot coverage is a bird’s eye view - look down to calculate lot coverage.
Mr. Nelson said: “We can’t have this gentleman feeling that he’s being persecuted. It’s not our intention to persecute him.” He said that he was concerned with other Petitioners coming in requesting excessive lot coverage.
Mr. Blaisdell said that he wants something in writing from Town counsel upholding the 2004 opinion. Mr. Furbush said that he also wants written affirmation from Town counsel.
Mr. Furbush said that Mr. Wilson should not be in the middle of this debate. Mr. Furbush indicated that he would approve the proposal.
Mr. Slavinsky submitted plans showing lot coverage based on a 6,000 square foot lot. Mr. Nelson said that the Petitioner has made a good effort to revise the plan. He said that it corresponds with quite a few other houses in the area.
Mr. Nelson asked for comments from abutters.
Mr. Mark Gildea who resides at 282 Shore Drive said that he grew up in Maushop Village and has seen the changes in the neighborhood over the last several decades. He acknowledged the sharp increase in land value in the area. He said it appeared that when Petitioners come before the ZBA and then receive Variance relief, they seem to forget and then oppose someone else’s project. Mr. Gildea says that he supports the proposal. He referred to all the Variance relief granted to homes in the immediate neighborhood. He said that as an abutter and a neighbor, he supports the project. His opinion is that the Board is not setting a precedent and that relief can be granted without derogating from the public good.
Mr. Nelson asked if any of the above-referenced people are “environmentalists” or “are any of them concerned about the lot coverage that’s being given out these days. They’re saying we’ve got to save America. Are we going to save it by putting up bigger houses on smaller lots? I don’t think so.” Mr. Gildea said that this neighborhood is unique and just wanted to express his support of the project.
Mrs. Ann Flaherty who lives in Westwood and owns property in Mashpee said that this was a nice cottage community that was peaceful at one time. She felt that it was a “wonderful place that was being devastated with these big houses and it’s a shame that it’s gone the way it has.” She thanked the Board for listening to the abutters’ concerns.
The Board acknowledged that the Petitioner has made sincere efforts to satisfy the Board’s demands for revised plans in an effort to mitigate abutters’ complaints. At this and previous Public Hearings, the Board listened to lengthy arguments presented by the Petitioner’s representatives and carefully considered abutters’ objections regarding excessive building height and lot coverage. The Board also read several letters and emails from abutters into the official Minutes. The Board admitted that the proposal is similar to quite a few other houses in the area and that several homes in the neighborhood have been granted permission by the ZBA to exceed the lot coverage requirements.
Mr. Furbush moved to grant the Finding of Fact/Special Permit. Mr. Blaisdell seconded the motion. Mr. Nelson asked each of the Board members for their vote. Messrs. Dorsey, Bonvie, Blaisdell, and Furbush voted yes. Mr. Nelson abstained. The motion carried.
This Decision is conditioned upon compliance with Cape & Islands Engineering plan revised March 9, 2010. The Board asked for a new plan with amendment of all the revisions.
Mr. Furbush moved to grant a Variance of 4.5 feet on each side from the side setback requirements and a Variance of 4.1% from the lot coverage requirements. The average setback rule applies. Mr. Blaisdell seconded the motion. Mr. Nelson asked each of the Board members for their vote. Messrs. Dorsey, Bonvie, Blaidell, and Furbush voted yes. Mr. Nelson abstained. The motion carried.
This Decision is conditioned upon compliance with Cape & Islands Engineering plan revised March 9, 2010. The Board asked for a new plan with amendment of all the revisions.
OTHER BUSINESS
Accept February 24, 2010 Minutes
Mr. Dorsey moved to accept the February 24, 2010 Minutes. Mr. Blaisdell seconded the motion. All were in favor.
Discuss ZBA Petition Procedures
The Board discussed the Petition procedures and suggested a few revisions for clarification purposes. Mr. Blaisdell moved to accept the revised Petition procedures. Mr. Nelson seconded. All were in favor.
Mr. Nelson mentioned that he would be attending the Design and Plan Review meeting the next day for a Chapter 40B Petition by Breezy Acres. The Petitioner is proposing the construction of five duplex buildings. Mr. Nelson said that he has asked the Selectmen’s office for outside legal counsel and engineering consultation on this project.
Mr. Nelson adjourned the meeting at 9:10 p.m. All were in favor.
Respectfully submitted,
Cynthia Bartos
Board Secretary
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