MASHPEE ZONING BOARD OF APPEALS
MINUTES
April 28, 2010
The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, April 28, 2010, at the Mashpee Town Hall. Board Members Robert G. Nelson, Jonathan Furbush, James Reiffarth, John M. Dorsey and Associate Member Peter Hinden were present. Building Commissioner Richard Stevens was also in attendance at the meeting. Board Member William Blaisdell and Associate Member Ronald S. Bonvie were not in attendance.
Mr. Eric Bergquist, a participant in the first annual Student Government Day, attended the Public Hearings. He was assigned to the Zoning Board of Appeals to shadow the secretary the next day, April 29th, to learn more about the ZBA’s role in the Town of Mashpee and about local government. Mr. Bergquist introduced himself to the Board and stayed for the entire meeting.
Chairman Bob Nelson opened the meeting at 7:00 p.m.
RESCHEDULED PETITIONS FROM APRIL 14, 2010
Eric M. Benway: Requests a Finding of Fact under Section 174-17 of the Zoning By-laws to allow for construction of an addition to a pre-existing, non-conforming structure on property located in an R-3 zoning district at 2 Point Road (Map 114 Parcel 30A) Mashpee, MA.
Sitting: Robert G. Nelson, Jonathan Furbush, John M. Dorsey and James Reiffarth.
Mr. John Slavinsky from Cape & Islands Engineering represented the Petitioner. He submitted revised plans on the proposal. The Petitioner would like to add the abutting 2,500 square-foot lot to the subject lot and then construct the addition. He said that Great River Road North is a paper road. Mr. Slavinsky referred to letters from two of the abutting neighbors in favor of the proposal. He said that the subject lots were created in 1913 with no setback restrictions. Mr. Slavinsky asked the Board to determine a Finding of Fact that the newly purchased abutting lot also has no setback restrictions. The proposed lot coverage would be 18.6%.
A new septic system has been installed on this property. The Petitioner needs Board of Health and Conservation Commission approval. Mr. Furbush asked how the Petitioner accesses his property. Mr. Nelson read the letter from the Board of Health that stated that a deed restriction is on file with the Registry of Deeds limiting the total number of bedrooms to two. Mr. Slavinsky said that the deed restriction does not apply to the newly acquired abutting parcel.
Building Commissioner Richard Stevens said that because Great River Road North is an unbuildable road, he does not consider the lot to be a corner lot.
Mr. Nelson expressed concern with the filing for a Finding of Fact. He said his opinion is that the Petitioner also needs a Variance. Mr. Slavinsky repeated that the subject parcel was created as an individual lot in 1913 and has no setback restrictions. Mr. Stevens answered that the zoning has changed. Mr. Reiffarth said that the proposal to combine the two lots creates a problem. Mr. Nelson said that he has cautioned the Board about using Section 174-17 (Finding of Fact) when there is also a need for Variance relief. He said that this recent request for an “opinion for a finding of fact” was started by the Town Planner. Mr. Nelson said that the Board is “going too far” in granting a Finding of Fact and including a Variance in the Finding. Mr. Slavinsky offered to
withdraw the Petition and re-file. The Board agreed that it would be a good idea. The Petition was Withdrawn Without Prejudice.
Timothy R. and Charlene Maciel and Deolinda Marinelli: Request a Special Permit under 174-45.4(I) of the Zoning By-laws for a legally existing accessory apartment on property located in an R-5 zoning district at 58 Saddleback Road (Map 43 Parcel 15) Mashpee, MA.
Sitting: Robert G. Nelson, Jonathan Furbush, James Reiffarth, John M. Dorsey, Peter Hinden.
Mrs. Deolinda Marinelli and her daughter, Charlene Maciel, represented the Petition. Mrs. Marinelli and her daughter are the new owners of the home at 58 Saddleback Road. Mrs. Marinelli said that she submitted the proper paperwork to legalize the existing accessory apartment. Mr. Nelson confirmed that with the sale of a home, the Special Permit for an accessory apartment expires. He said that he has no objection to granting the Petition.
Mr. Furbush asked for the dimensions of the accessory apartment. Mrs. Marinelli replied that it consists of a kitchen, living room, bedroom and bathroom. Mr. Furbush asked again for the square footage. Mr. Nelson said that the Building Inspector submitted a letter in approval of granting the Special Permit. Mr. Nelson said, in view of that, the Building Department has examined the situation.
No comments were received from abutters.
Mr. Reiffarth made a motion to grant a Special Permit. Mr. Nelson seconded the motion. All were in favor.
James N. and Sharon A. DeFrancesco: Request a Variance from Section 174-31 of the Zoning By-laws for permission to vary the side and front setback requirements to allow for construction of an addition to an existing home on property located in an R-5 zoning district at 80 Scituate Road (Map 22 Parcel 79) Mashpee, MA.
Sitting: Robert G. Nelson, Jonathan Furbush, James Reiffarth, John M. Dorsey, Peter Hinden.
Mrs. Sharon A. DeFrancesco represented her Petition. She said that she would like to enlarge her home. The proposal calls for a mudroom and a front porch addition. Mrs. DeFrancesco is asking for Variance relief from the side and front setback requirements.
Mr. Nelson read the letter from the Board of Health stating that the proposal will require a septic inspection.
Mr. Nelson drew attention to the setback of the subject home from Scituate Road. He pointed out that the houses on each side are closer to Scituate Road than the subject home. Mr. Nelson said that the Board could apply the “average setback rule” if the abutting houses had been included on the plan; thereby eliminating the need for Variance relief. He said that he has no objection to granting the Variance relief. Mr. Dorsey agreed and said that the proposal only calls for 13% lot coverage.
No comments were received from abutters.
Mrs. DeFrancesco mentioned a minor revision which the contractor made to the plan. She said that 18 feet of the porch would be enclosed to create a foyer. She submitted a plan and explained that the footprint of the proposal would remain the same.
Mr. Reiffarth made a motion to grant the following Variance relief:
7.2 feet from the side setback requirements.
4.4 feet from the front setback requirements.
This is conditioned upon compliance with MacDougall Surveying & Associates, P.O. Box 2428, Mashpee, MA. 02649, J#1198A plan entitled: “Certified Plot Plan For Proposed: Second Floor, Mudroom & Porch, Located at: 80 Scituate Road, Mashpee, MA. Prepared for Sharon & James DeFrancesco. Scale: 1”=20’ September 17, 2009 Rev. March 18, 2010”.
Mr. Dorsey seconded the motion. All were in favor.
NEW PETITIONS
Shane T. Caiazzo: Requests a Modification to a Special Permit (SP-09-18) under Sections 174-17, 174-20 and 174-24C of the Zoning By-laws to allow for construction of a pool on property located in an R-3 zoning district at 8 Chart Way (Map 106 Parcel 16) Mashpee, MA. Request for Withdrawal Without Prejudice.
At the Public Hearings on April 14, 2010, Attorney Kevin M. Kirrane addressed the Board in an informal discussion of the Petition. He referred to the Special Permit granted by the Board in 2009. The Petitioner would now like to make a minor modification to the Special Permit SP-09-18 to allow for slight relocation and shape of the pool. Attorney Kirrane submitted the new plan and asked if the Board would agree to accept the new plan as part of the record in order to allow the Petitioner to continue construction.
Mr. Nelson said that he had discussed this issue with Building Commissioner Richard Stevens, who agreed that it would be sufficient for the ZBA Chairman to note the minor revision on the plan and then initial it. The other Board members also agreed. The new plan was signed and dated by the ZBA Chairman. There was no formal request for Withdrawal of the Petition at this meeting.
At the Public Hearings on April 28, 2010, Mr. Nelson moved to accept the fax from Attorney Kevin Kirrane formally requesting Withdrawal Without Prejudice of the Petition. All were in favor.
Cheryl Bloom: Requests a Finding of Fact under Section 174-17 of the Zoning By-laws for permission to demolish and replace a pre-existing, non-conforming structure on property located in an R-3 zoning district at 176 Daniel’s Island Road (Map 100 Parcel 17) Mashpee, MA.
Sitting: Robert G. Nelson, Jonathan Furbush, James Reiffarth, John M. Dorsey, Peter Hinden.
Attorney Sean Eagan represented the Petitioner. He asked the Board for a Finding of Fact to allow for demolition of a pre-existing, non-conforming dwelling and replacement with a new home. Attorney Eagan said that the Conservation Commission has issued an Order of Conditions, which includes the installation of a denitrification septic system. The cesspool system will be abandoned. The proposal will be under 20% lot coverage.
Mr. Nelson commented that the proposal will not be closer to the wetlands than the existing dwelling. He also noted that the entire new building will be located in the flood plain. According to the submitted plan, the sheds will be removed. Attorney Eagan said that the proposed setbacks will be similar to the prior setbacks. Mr. Nelson said that no major Variance relief from the setback requirements is required. Mr. Dorsey asked for elevation figures. Mr. Nelson said that the plan indicates that the first floor elevation would be 16 feet and that the existing house elevation is currently at 6.4 feet. Building Commissioner Richard Stevens confirmed that the new dwelling has to be at or above the flood plain elevation on the first floor.
No comments were received from abutters.
Mr. Reiffarth moved to grant the Finding of Fact that the proposal is not more detrimental as to setbacks and lot coverage and that there is adequate parking. This is conditioned upon compliance with Falmouth Engineering plan entitled: “Plot Plan for 176 Daniel’s Island Road Prepared for Ron & Cheryl Bloom in Mashpee, MA. Plan Date: November 17, 2009, Project Number: 09039”.
Mr. Dorsey seconded the motion. All were in favor.
Frank C. and Vicky Franklin III: Request a Special Permit under Section 174-45.4(I) of the Zoning By-laws for permission to construct an accessory apartment to an existing dwelling on property located in an R-5 zoning district at 5 Cambridge Drive (Map 16 Parcel 48) Mashpee, MA.
Sitting: Robert G. Nelson, Jonathan Furbush, James Reiffarth, John M. Dorsey, Peter Hinden.
Mr. Che Franklin represented the Petitioner. His mother Vicky Franklin was also present. He said that the Petitioner is looking for approval to construct an accessory apartment to the existing home. Mr. Nelson said that Design/Plan Review spent a considerable amount of time discussing this proposal. He said that the Assistant Building Inspector, Charles Maintanis, requested verification of the 60/40% lot coverage on the apartment. Mr. Franklin said that he did contact Mr. Maintanis. He said that he has been unable to obtain revised plans from his architect. Mr. Nelson read the letter from Mr. Maintanis which reads:
“I have reviewed the comments from the Design/Plan review meeting regarding this property and feel that there are still unresolved issues regarding lot coverage and the square foot calculations of the existing dwelling and the proposed inlaw apartment. The site plan shows over 20% lot coverage and areas that are to be removed in order to come into compliance. Also need an exact square foot calculation on existing living area and of the proposed apartment. Maximum allowable is 40% of existing living space. Need to clarify before Building permit could be issued.”
Mr. Nelson asked if the Petitioner installed the swimming pool with all the decking. Mrs. Franklin said that she had. Mr. Nelson said that the swimming pool is in violation of the Zoning By-laws because it encroaches on the 25-feet rear setback. He said that the wooden deck between the pool and the rear property line is also in violation and the Petitioner needs to obtain a permit. Mr. Nelson said that the Petitioner was informed of these issues at the Design/Plan Review meeting and was told to resolve the violations. Mr. Franklin agreed that he had been informed.
Mr. Nelson said the plans do not clarify where decks will be removed or will remain. He said that the deck around the pool is in violation of the By-laws. Mr. Nelson stated that replacing the deck around the pool with patios would eliminate the By-law violation.
Building Commissioner Richard Stevens said that he would have to conduct research to determine if the proper permits exist for the structures. Mr. Franklin said that the Zoning By-laws were different in 1983 and 1984, when the dwelling and structures were built. Mr. Stevens said that the Zoning By-laws have changed and a Variance would be required. Mr. Nelson said that the plan is cluttered and difficult to read. Mr. Furbush reiterated that the plan must show exact figures of the existing lot coverage, dimensions of the existing dwelling and decks, as well as the proposed construction. Mr. Franklin said that the decks would be removed, except for the top deck which is currently being used as an egress.
The Board advised Mr. Franklin to file a Petition for a Variance and to return with revised, organized plans. The Board voted unanimously to continue the Petition for a Special Permit until May 26, 2010.
David and Trea Alves: Request a Variance from Section 174-17 of the Zoning By-laws to vary the setback requirements from the southerly lot line to allow for construction of a deck on property located in an R-5 zoning district at 52 Lowell Road (Map 52 Parcel 36) Mashpee, MA.
Sitting: Robert G. Nelson, Jonathan Furbush, James Reiffarth, John M. Dorsey, Peter Hinden.
Mr. and Mrs. Alves represented their Petition and said that they would like to add a 12’x16’ deck to their home. Mrs. Alves said that the proposal has been signed off by the Board of Health and the Conservation Commission. Mr. Nelson said that he visited the subject property and confirmed that it is an irregular shape. The proposal will remain well below the maximum allowable lot coverage.
No comments were received from abutters.
Mr. Reiffarth moved to grant a Variance of 10 feet from the southerly lot line. This is conditioned upon compliance with John P. Doyle, Land Surveyor plan entitled: “Foundation As-Built Plan Prepared for David and Trea Alves 52 Lowell Road Mashpee, MA., Scale: 1”= 20’ April 25, 2007”.
Mr. Nelson seconded the motion. All were in favor.
Capewide Enterprises, LLC: Requests a Special Permit under Sections 174-24.A (3), (4); 174-24.C (5); 174-25.D (1); 174-25.G (6), (7), (9), (13), (14) of the Zoning By-laws for permission to construct a warehouse building with incidental office space and outside storage area for non-sale incidental business operations, and necessary site parking and circulation on property located in an I-l zoning district at 153 Commercial Street (Map 88 Parcel 37) Mashpee, MA. OWNER OF RECORD: J. Bruce MacGregor and John J. Paulding, Mashpee Industrial Park Trust, c/o Coastal Management.
Sitting: Robert G. Nelson, Jonathan Furbush, James Reiffarth, John M. Dorsey, Peter Hinden.
Mr. Matthew Eddy of Baxter Nye Engineering and Surveying represented the Petitioners, Richard Capen and Joao Junqueira, who also attended the meeting. Mr. Eddy said that the Petitioners have a Purchase and Sale Agreement with Mashpee Industrial Park Trust. Available underground utilities include water, electric, communication, gas. Capewide Enterprises conducts business as a building contractor and septic installer. The business also rents construction site debris containers.
Mr. Eddy mentioned several recommendations made at the Design/Plan Review meeting. Installation of additional screening was requested on the side of the subject property abutting the healthcare facility. Request was also made for installation of a permanent sediment barrier to further screen the stockpiling of top soil and similar materials.
The proposed building calls for a 2-story wood structure with office space in front of a warehouse area. The office space is incidental to the business. The total square footage for the proposed building is 6,986 square feet, which includes the incidental office space and warehouse space. The basement will be used for mechanicals for the building.
The proposal meets all Zoning setbacks and does not require any relief from the setback requirements. The side setbacks are 30 feet; the proposal is 55 feet from the side setback at the closest point. The rear setback is 50 feet; the proposal provides a 136 foot setback. There is a 10-foot landscape buffer requirement around the perimeter of the project, which the Petitioner has expanded to a 15-foot buffer with maintenance of the existing natural vegetation. There will be a landscape berm in front of the fence to screen the storage yard.
Thirteen parking spaces are required; the proposal will provide 15 spaces. The balance of the site will provide space for normal contractor operation, yard storage and material storage. The warehouse area will have three overhead doors for access to that area. There is a dumpster area for refuse of everyday normal business operation.
For drainage purposes, stormwater management for the site will consist of two areas that will incorporate bio-retention features. The runoff will be conveyed through vegetative swales. The proposal meets or exceeds the stormwater management requirements of the Zoning ordinance.
The proposed septic system is being reviewed by the Board of Health. The design capacity for the septic system is 546 gallons per day.
Mr. Nelson informed the Board that the large amount of paving is required due to the type of equipment and for storage of containers necessary to conduct this type of business. He asked if all of the dumpsters would be stored on the subject property. Mr. Capen explained that the twenty-four 10- to 15-yard containers are 12 feet in length and 8 feet in width. He said that they are the smallest open-top containers that are available for rent in the area. Mr. Capen said that the goal is to keep the containers in customers’ yards. The containers he uses for his own construction business are also stored on the different job sites. He said that it is always to his benefit to have the containers in customers’ yards, as they also provide advertising for his business. Mr. Capen said paving is
very expensive to install and that the paving on the proposal was limited to what was absolutely required. Mr. Junqueira said that paving helps to maintain a clean and aesthetically pleasing appearance of the yard, trucks and equipment. He said that the proposed paving does comply with the By-law requirements. Mr. Nelson said he was just trying to clarify to the Board why more than the usual amount of paving would be required for this project.
Mr. Nelson also said that the Design/Plan Review Committee was very much impressed with the proposed building. Mr. Nelson said that the Committee felt that it would be very beneficial to the Town of Mashpee. He said that the proposed wood building is unusual for that zone and will offer a nicer appearance than the steel frames with cheap facades of the other buildings in that location.
Mr. Nelson explained the ZBA’s decision to hire Mr. Charles Rowley, an outside consultant, will protect the interests of the Town. Mr. Junqueira said that he had no problem with that. Mr. Nelson asked the Petitioner if $3,000 sounded like a reasonable amount. He said that a separate bank account would be set up for purposes of paying for the consultant fees. Any balance would be returned to the Petitioner. Mr. Junqueira asked for the scope of Mr. Rowley’s involvement in the project. Mr. Nelson explained that Mr. Rowley would consult the Board on everything on site and the Building Commissioner would be responsible for inspecting the building.
Mr. Eddy asked if the ZBA would entertain the idea of approving the proposal, with conditions being based on satisfactory compliance with changes as recommended by Mr. Rowley and as determined by the ZBA. He said that the Petitioner is on a strict time constraint with the Purchase and Sale Agreement and would appreciate having the Appeal period start as soon as possible. Other conditions could include installation of evergreen vegetation, white pines, arborvitae and a permanent sediment barrier. Mr. Nelson said that some of the existing vegetation on site could be transplanted for that purpose.
Mr. Nelson brought up the subject of obtaining a permit for a curb cut from the Department of Public Works. He said that there would be a problem if DPW decided to change the location of the proposed curb cut. Mr. Eddy said that he would be in contact with the DPW Director.
The letter from Catherine Laurent, Director, DPW, was received by the ZBA office on April 28th and the Board did not get a chance to look at it until the hearing. It reads as follows:
“A Special Permit is being requested for development of a vacant lot in the Mashpee Industrial Park. The owner of record for the lot is the original developer of Industrial Drive.
For your information, Industrial Drive is a private road. Overall, the condition of the road is deteriorating, due to the apparent lack of maintenance and increasing vehicle load. Maintenance or the lack thereof is the decision of the developer and/or property owners. A hazardous situation has developed on Industrial Drive, however, which impacts use of the road, including emergency access, and which will continue to worse if not addressed.
Approximately 500 feet from the Intersection of Industrial Drive with Route 28 is a low point in the road (see attached map). While there are some drainage structures in this area, they have either failed and/or are inadequately sized. Consequently, during a significant rain storm, the road floods to the extent that it becomes impassable to vehicles. In the last year, at the direction of the Mashpee Police Department, DPW has had to close the road to traffic on a number of occasions.
For this reason, I recommend that any approval of the Special Permit for 153 Commercial Street be conditioned at a minimum upon the correction of the drainage problem in the above area.”
Mr. Nelson then read the letter from Building Commissioner Richard Stevens which reads:
“CAPEWIDE ENTERPRISES: In favor of approval. The letter with comments from the DPW regarding the road conditions came in at the eleventh hour. There was no representative at Plan review to bring this up. I do not feel that I could hold this applicant hostage for the developer’s responsibility. Perhaps requiring a bond for his road frontage would suffice.”
Mr. Junqueira said that the road conditions described above are at least ½ mile away from the subject property. Mr. Nelson said he failed to see how this was the Petitioner’s problem. Mr. Eddy said that the private road is maintained by the Industrial Park Association; not by the Town.
Mr. Furbush asked if septic waste, hazardous waste and/or construction debris would be stored on the property. Mr. Junqueira said no. He said that the containers are emptied before they are returned to the yard. Mr. Nelson said that excavating material from a septic system is stored temporarily while the system is being installed. This consists of sod, gravel and sand. It is then gradually returned to the customer’s property in the course of the installation. Mr. Junqueira said that oil tanks, gas tanks, fueling tanks, etc. will not be stored on the subject property. Mr. Eddy said that the DEP requirement prohibits storage of solid waste unless a business is permitted as a dump or transfer station.
Mr. Nelson asked the members of the Board if they are willing to vote on a conditional approval, subject to the Board being able to review Mr. Rowley’s report and resolve any discrepancies between Mr. Rowley’s report and the engineer’s plan. The Board members indicated that they would be amenable to that. Mr. Dorsey mentioned the subject of the $3,000 bond. Mr. Capen said that he would deliver the check to the ZBA office the next day.
Mr. Furbush moved to grant the Special Permit conditioned upon the following:
1. Review and acceptance of report to be submitted by Engineer Charles Rowley.
2. Installation of additional screen on the side of the subject parcel closest to the Mashpee Health Center.
3. Inclusion of Mr. Charles Rowley’s letter dated April 23, 2010.
4. The Petitioner agrees to deliver a check for $3,000 to the ZBA office by April 30, 2010. The tax collector’s office shall open a separate account in that amount for this project.
5. Installation of a permanent sediment barrier in the rear of the property along the top of the slope at the northerly side of the materials storage area.
6. Compliance with Baxter Nye Engineering & Surveying plan entitled: “Capewide Enterprises, LLC 153 Commercial Street (Formerly #203 Industrial Drive) Mashpee, Massachusetts Prepared For: Capewide Enterprises, LLC, Date: 4/02/10, 04/22/10 Revisions Per Site Plan Review, C-1.0 through C-5.0”.
7. Compliance with SPB Designs Commercial Design & Consulting Easton, MA. entitled: “Commercial Office Design, Capewide Enterprises, Plan Date: 3/30/10”.
8. Above-referenced plans shall be subject to change upon review and approval by Engineer Charles Rowley and the ZBA. (See Condition #1).
Mr. Reiffarth seconded the motion. All were in favor.
OTHER BUSINESS
Accept April 14, 2010 Minutes
Mr. Nelson moved to accept the Minutes of April 14, 2010. Mr. Furbush seconded. All were in favor.
Mr. Nelson moved to adjourn the meeting at 9:10. Seconded. All were in favor.
Mr. Eric Bergquist said he found the meeting interesting and shook hands with all the Board members at the end of the hearing. He said that he produces and appears in a school-sponsored television program on the local Mashpee channel. The Board was very impressed with Mr. Bergquist.
Respectfully submitted,
Cynthia Bartos
Administrative Secretary
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