MASHPEE ZONING BOARD OF APPEALS
MINUTES
JUNE 23, 2010
The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, June 23, 2010, at the Mashpee Town Hall. Board Members Robert G. Nelson, Jonathan Furbush, William Blaisdell and Associate Members Peter Hinden and Ronald S. Bonvie were present. Building Commissioner Richard Stevens was present. Board Members James Reiffarth and John M. Dorsey were not able to attend the meeting.
Mr. Nelson opened the hearings at 7:00 p.m.
CONTINUED HEARINGS
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. Continued from April 28, and May 26, 2010 Public Hearings.
Sitting: Board Members Robert G. Nelson, Jonathan Furbush and William Blaisdell, and Associate Members Peter Hinden and Ronald S. Bonvie. Mr. Nelson informed the Petitioners that Associate Board Members Peter Hinden and Ronald S. Bonvie would fill in for the two Board members not in attendance.
Architect Mark R. Marinaccio represented the Petitioner. Mr. Che Franklin, the Petitioner’s son, also attended the meeting. The proposal calls for addition of an accessory apartment to the home. The gross floor area of the proposal will be 37.5% of the gross floor area of the house, below the 40% maximum allowed under the By-laws.
Mr. Nelson read the following memo from Town Planner Thomas Fudala concerning the proposal:
To: ZBA / Building Dept.
From: Town Planner
Date: 5-24-10
Re: Zoning Applicable to 5 Cambridge Drive
Based on a review of ownership on the above lot (Map 16, Block 48) and all adjacent lots, the lot has been separately owned from all adjacent land since it was bought from L&L Associates by deed recorded January 20, 1984
Therefore, the zoning in effect on that date applies with regard to area, frontage, width, yard or depth requirements.
On January 20, 1984 the following applied:
The lot was in an R-2 zoning district.
The By-law as amended on June 23, 1983 applied.
I have attached the Land Space Requirements Table from that by-law.
Please note that lot frontage and lot size were smaller at the time the lot was created in 1972, and the 1984 sale happened at a time when the Town’s zoning by-law grandfathered all old undersized lots (as a result of the Indian land suit). That by-law was amended in 1985, and the lot size and frontage applicable in January 1984 technically applies to the property, but the lot had already been sold before the change and the house was built in 1987.
Applicable setbacks would be 40 ft. front and 15 feet side and rear.
Mr. Nelson commented that the side and front setbacks are the same today.
Mr. Marinaccio said that the total proposed lot coverage will be 20% with removal of portions of some of the decks and/or converting some of the decks into patios. The lower and pool decks will be changed to
patios and the upper deck will be reduced to 75 square feet. This will bring the proposal to 20% lot coverage. Mr. Marinaccio said that the proposal will maintain the same number of bedrooms currently in the
dwelling. Two of the bedrooms in the house will be combined. The proposal calls for construction of a one-bedroom apartment, for a total of three bedrooms in the entire dwelling. There will be adequate parking
with four parking spaces along with garage parking.
Mr. Nelson requested a stamped plan. Mr. Marinaccio said that he would drop off a stamped plan to the ZBA office in the morning. The plan was delivered as promised.
No comments were received from abutters.
Mr. Blaisdell moved to grant the Special Permit, subject to receiving a stamped plan showing removal of structures and the proposed reconstruction. This is conditioned upon plan drawn by Mark A. Marinaccio, Architect entitled: “Revised Design For Frank and Vicky Franklin Project Number 102009 Date 6-1-10.”
Mr. Nelson seconded the motion. All were in favor.
NEW HEARINGS
Ethan S. and Sandra G. Bornstein: Request a Variance from Section 174-31 of the Zoning By-laws to vary the lot coverage requirements to allow for construction of a shed on property located in an R-3 zoning district at 4 Pine Avenue (Map 123 Parcel 35) Mashpee, MA.
Sitting: Board Members Robert G. Nelson, Jonathan Furbush and William Blaisdell, and Associate Members Peter Hinden and Ronald S. Bonvie.
Mr. Thomas Quinn represented the Petitioner. The Board granted the Petitioner Variance relief in 2008 to allow for construction of the home. Placement of the shed is restricted by the small size of the lot, which consists of only 5,000 square feet of land. The proposed shed would be used to store trash bins, bicycles and other items to tidy up the yard. The topography of the lot steps down approximately 3.5 feet in grade with a stonewall surrounding the entire back portion of the lot with a drywell under the patio area. The shed will be constructed with the same material and shingles and color of the home for an aesthetically-pleasing appearance. In response to correspondence from an abutter concerned with the appearance of the shed from Pine Avenue, Mr. Quinn said that the Petitioner would be amenable
to installing cedar trees to shield the shed from the street. The shed will not be installed on a foundation but will be properly supported on blocks.
Mr. Quinn explained that the plan shows the original lot coverage before demolition as 25.8%. The proposed foundation coverage was 24.6%. The as-built is 24.2%. The proposed lot coverage with the foundation and the shed is 25.6%, 1% larger than the original approved lot coverage.
Mr. Quinn said that a direct abutting neighbor approved of the Petitioner’s removal of a dilapidated wall between the two properties. The Petitioner rebuilt the entire wall along one side of the property and lined the area with 12 to 14 cedars. Mr. Quinn said that the Petitioner has spent a great deal of money on landscaping and stone work and that the shed would fit in with the tastefully manicured lawn and home.
Mr. Nelson said that he visited the site and was impressed with the very neat landscape and screening of the subject lot. He said that construction of the shed would improve the overall appearance of the yard with removal of the trash bins that are currently stored outside. Mr. Quinn agreed and said that it would also eliminate foraging by wild animals.
Mr. Nelson asked if the cantilevering was included in the lot coverage. Mr. Quinn said that it was included on the plan.
Mr. Furbush read Mr. Peter Readell’s letter into the record:
Mr. Robert Nelson, Chairman
Mashpee Zoning Board of Appeals
Re: Bornstein, Variance request for lot coverage and construction of shed.
As a part time resident of Pine Ave and an active member of the Rock Landing Park Association I am writing to express my concerns about the Variance Request for 4 Pine Avenue, to be heard by the Mashpee Zoning Board of Appeals on June 23, 2010.
It is my impression that the new structure that the Bornsteins' built on the lot at 4 Pine Avenue, although closely following the footprint of the previous existing structure, is already in excess of the allowable 20% lot coverage . As you and the other members of the ZBA are aware there have been 2 or 3 previous request for excessive lot coverage, within the RLPA, that have been refused or tightly limited and I would expect the same action for this request. If the shed can be built so that the total lot coverage does not exceed 24% then I would have no further concern about the lot coverage issue. However, there does remain a very serious concern, on my part, dealing with the location of the proposed shed. There are no auxiliary sheds associated with any home on Pine Ave that are visible from Pine Ave and it is my desire to see that
nothing is permitted to change that. If Mr. and Mrs. Bornstein can locate the "shed" in the rear portion of the lot, not visible from Pine Ave, and plant landscaping that will, immediately, reduce the visibility from abutting properties, my concerns would, again, be minimized.
To summarize my concerns:
Lot coverage not to exceed 24%
Shed to be positioned so that it is not visible from Pine Ave and landscape screened so as to minimize visibility from abutting properties.
~As I have stated above I would like my concerns read into the record during the "Public Comment" session of this hearing.
Thank you for your consideration.
Peter F. Readel
22 Pine Ave.
Mashpee, Ma. 02649
108 William St.
Geneva, NY 14456
No other comments were received from abutters.
Mr. Nelson recommended that the Variance should include a stipulation that the shed shall be located 40 feet away from Pine Avenue. Mr. Quinn said that it would be very close and offered to install the shed as far away from Pine Avenue as possible. A distance of 35 feet was agreed upon.
Mr. Blaisdell moved to grant a Variance of 1% from the lot coverage requirements, bringing the total lot coverage of the existing dwelling along with the proposed shed to 25.6%. This is conditioned upon the following:
- the front of the shed shall be installed a minimum of 35 feet away from Pine Avenue.
- installation of two cedars in front of the shed facing Pine Avenue.
- compliance with Cape & Islands Engineering Plan entitled: “Plot Plan of Land Located in Mashpee, Mass. Prepared For Ethan Bornstein Date: Mar.9.2009 Rev’d June 21, 2010.”
Mr. Furbush seconded the motion. All were in favor.
Doris K. Perillo, Trustee: Requests a Variance from Section 174-31 of the Zoning By-laws to vary the lot coverage requirements and the front setback requirements from Pond Street to allow for construction of a deck to an existing home on property located in an R-3 zoning district at 4 Pond Street (Map 117 Parcel 257) Mashpee, MA.
Sitting: Board Members Robert G. Nelson, Jonathan Furbush and William Blaisdell, and Associate Members Peter Hinden and Ronald S. Bonvie.
Mr. and Mrs. Perillo represented their Petition. Mr. Perillo said that the size of the deck is necessary to accommodate two handicapped people living in the home who use wheelchairs. The Town recently changed their address from 131 Shore Drive to 4 Pond Street.
Mr. Nelson said that he visited the subject property and questioned the distances shown on the plan and the distance of the dimensions on the deck on which construction had been started. Construction of the deck was undertaken and the Petitioner discovered that there was not enough room for handicap access. The Petitioner halted construction because increasing the size of the deck would increase the lot coverage. He was advised to Petition the Zoning Board of Appeals for a Variance. Mr. Bonvie asked if the existing deck would be increased in size and asked for its location on the plan. Mr. Perillo said that the deck would be larger to accommodate the wheelchairs.
Mr. Nelson said that the front setback applies on both streets with a corner lot. Mr. Nelson asked: “Is this what they have actually built, 10 feet X 28.67?” Mr. Perillo confirmed the statement. Mr. Perillo said that there are two doors going to the deck. Mrs. Perillo said that she has two sisters living with her and her husband, both of whom are handicapped and use wheelchairs.
Mr. Hinden questioned if the plan shows what currently exists on the property. Mr. Perillo said that the deck is not completed, but the addition has been completed. He reiterated that he stopped construction of the deck because the size was inadequate for the family’s needs. Mr. Bonvie asked where the Petitioner is planning to add an additional four or five foot onto the existing deck. Mr. Perillo tried to clarify some of the details. He said that there is corridor running through the house to the deck. Mrs. Perillo said that there is an oversized door going out to the deck. The threshold is flush with the deck.
Mr. Nelson said: “Once again, I will say to you, what you’re asking us to allow you to have – is that identical to what we’re looking at on this plan?” Mr. Perillo affirmed that it is.
No comments were received from abutters.
Mr. Bonvie moved to grant the following:
- a Variance of 4 feet from the front setback requirements from Pond Street.
- a Variance of 3 percent from the lot coverage requirements.
Findings: that the lot is a corner lot and creates a hardship for the Petitioner to meet the setback requirements; the lot is not comparable to other lots in the area.
This is conditioned upon compliance with J.K. Holmgren Engineering, Inc. plan entitled: “131 Shore Drive Mashpee, Massachusetts 02649 Prepared for James Callahan Sanitary Disposal System Repair Plan Date: 1-20-2010, Rev 2-12-10, 2-16-10, 3-11-10, 5-12-10, 5-17-10, 6-16-10.”
Mr. Hinden seconded the motion. All were in favor.
Roger Schiffman and Patricia M. Donnelly: Request a Variance from Section 174-31 of the Zoning By-laws to vary the rear setback requirements to allow for an existing deck on property located in an R-3 zoning district at 43 Driftwood Circle (Map 125 Parcel 196) Mashpee, MA.
Sitting: Board Members Robert G. Nelson, Jonathan Furbush and William Blaisdell, and Associate Members Peter Hinden and Ronald S. Bonvie.
Mr. Schiffman represented the Petition and said that he appreciated the opportunity to request the Variance. When he and his wife purchased the house in 2000, they were unaware that the existing deck at the time encroached on the setback. Mr. Schiffman said that he has increased the size of the deck, further encroaching into the rear setback requirements. The portion of the land that encroaches into the setback abuts Conservation land. The Petitioner discovered the setback violation when a survey was completed to prepare for relocation of the existing jacuzzi and installation of a small pool. The Building Department has issued a permit for the pool. Mr. Schiffman said he would prefer not to have to take out a portion of the deck. Mr. Furbush asked exactly what the deck infringes upon. Mr.
Schiffman said it is the rear of the yard abutting the Conservation land.
Mr. Bonvie questioned the 20-foot setback instead of the usual 15-foot setback in an R-3 zoning district. Building Commissioner Richard Stevens explained that the property is in a cluster subdivision and the rear setback requirements are 20 feet.
Total lot coverage will remain below the 20% maximum allowed. Mr. Bonvie asked if the Conservation land was considered part of the wetlands. The Petitioner said that he did not think so.
No comments were received from abutters.
Mr. Nelson moved to grant a Variance of 8.4 feet from the rear setback requirements on the westerly side of the subject property to the corner of the deck. This is conditioned upon compliance with Yankee Land Survey Co., Inc. plan entitled: “Plot Plan Of Land Located at: 43 Driftwood Cir. Mashpee, MA. Prepared for Patricia Schiffman May 28, 2009 REV: April 19, 2009”.
Mr. Blaisdell seconded the motion. All were in favor.
Steven M. Mills: Requests a Variance from Section 174-31 of the Zoning By-laws to vary the front setback requirements and the side setback requirements to allow for construction of a covered porch on property located in an R-3 zoning district at 65 Sakonnet Drive (Map 65 Parcel 74) Mashpee, MA.
Sitting: Board Members Robert G. Nelson, Jonathan Furbush and William Blaisdell, and Associate Members Peter Hinden and Ronald S. Bonvie.
Mr. Dzmitry Mazheika of Belport Building & Remodeling, LLC represented the Petition. The home is a small summer cottage. Mr. Mazheika said that the proposed addition of the porch will be open-style and there are no future plans to enclose the porch. He said that several homes in the area have similar porches and are a beautiful improvement to the homes. The Board questioned the lot coverage. Mr. Mazheika said that he did not have the exact figure, but is sure that it is below the 20% allowed. The house is 600 square feet and the shed is 8 x 10 feet.
Mr. Nelson said that he didn’t see any problem with the lot coverage. He said if the addition was slightly reduced so as not to run across the whole front of the house, it would maintain the same 10.8’ on the corner.
Mr. Mazheika said that the next-door neighbors on the side where the porch will be built, Cynthia and Albert Li of 136 Ninigret Avenue, are in favor of the project and have also engaged his construction services. He offered to obtain a letter in favor of the proposal. Mr. Nelson said he was just suggesting an alternative and did not object to granting the Variance.
No comments were received from abutters.
Mr. Blaisdell moved to grant the following:
- a Variance of 7.3 feet from the front setback requirements.
- a Variance of 5.8 feet from the side setback requirements.
This is conditioned upon compliance with CapeSurv plan entitled: “PLOT PLAN at 134 Ninigret Avenue Mashpee, Mass. Date: 24/MAY/2010 Prepared For: Steven M. Mills, 16 Crystal Road Wilmington MA 01887”.
Mr. Hinden seconded the motion. All were in favor.
OTHER BUSINESS
Mashpee Housing Authority and Housing Assistance Corporation: Petitioner
seeks waiver of fees for development of Breezy Acres II under a M.G.L. Chapter 40B Comprehensive Permit on property located at 570 Old Barnstable Road (Map 72 Parcel 100) Mashpee, MA.
Ms. Adrienne Danner, Housing Assistance Corporation Project Manager, Attorney Andrew Singer and Leila Botsford, Executive Director of the Mashpee Housing Authority attended the meeting. Ms. Danner addressed the Board and said that the proposal calls for development of an additional 10 housing units to the existing Breezy Acres property located at 570 Old Barnstable Road. She asked for waiver of the $10,000 fees - $5,000 for legal services and $5,000 for financial expert services.
Attorney Singer said that there are two applicants for this project: Housing Assistance Corporation (a non-profit organization) and the Mashpee Housing Authority (a public entity). He said that they are not seeking reimbursement of the $1,250 Petition fee. Attorney Singer said that funds are extremely scarce for affordable housing and requested waiver of the two $5,000 checks. He said that those funds could then be used by the Co-Petitioners towards the numerous costs and actual provision of affordable housing.
Mr. Nelson said that the legal services fee will be set aside to reimburse Attorney Jason Talerman who will be representing the Town as legal counsel on this project. Mr. Nelson said that the Town will be incurring engineering expenses as well. The Board has asked Engineer Charles Rowley to represent the Board on this proposal. Mr. Nelson suggested that the request should be taken under advisement for discussion with Attorney Talerman at the July 14, 2010 ZBA Public Hearings.
Mr. Nelson read Mr. Rowley’s estimate into the record.
Mr. Nelson recommended that the Petitioner should try to tie in with the High School septic system, which is not operating efficiently due to the lack of fluid running through it at times. He said that he had heard the proposed numbers from the Town are quite high. Attorney Singer said that the Petitioner has met with the High School and the tie-in costs are prohibitive. Mr. Nelson said that the obligation of the Board is to protect the interests of the Town. Ms. Danner said that the Housing Assistance Corporation would be more than happy to tie into the existing High School septic system; however, the operating costs that the Town proposed to the Petitioner were not affordable.
Attorney Singer asked the Board to consider the waiver. Mr. Nelson said that the waiver will be taken under advisement.
153 Commercial Street: Messrs. Joao Junqueira and Richard Capen of Capewide Enterprise LLC attended the meeting. Mr. Junqueira said that he and Mr. Capen have discussed a small change to the plans with Building Commissioner Richard Stevens. Plans call for a change from installing stone to installing a concrete wall for the retaining wall on their project. Mr. Junqueira said that plans now call for constructing the wall three blocks high with a portion of the lower block being buried in the ground. The overall height will be five feet. The Petitioner has a Building Permit for the wall.
Building Commissioner Richard Stevens sent the following memo concerning the change:
Cynthia,
I understand that Capewide Development is requesting a change from stone to concrete for the retaining wall at their project.
I DO NOT have any issue with that change particularly where it is not visible from Commercial Street.
Thank You,
Richard
The Board decided that the minor change does not need any further ZBA action.
Discussion: Final plan review report submitted by Engineer Charles Rowley concerning development of property located at 153 Commercial Street (Map 88 Parcel 37) Mashpee, MA.
Approve and sign revised Baxter Nye Engineering plans for the above-referenced proposal. Mr. Nelson signed the two plans. Per Mr. Rowley’s request to the office, one of the plans was marked “Inspections”.
Voucher: Authorize payment of consultant fees to Engineer Charles Rowley for above-referenced report.
Mr. Blaisdell moved to authorize payment to Mr. Charles Rowley. Mr. Hinden seconded the motion. All were in favor.
Accept June 9, 2010 Minutes
Mr. Hinden moved to accept the June 9, 2010 Minutes. Mr. Nelson seconded the motion. All were in favor.
52 Mercantile Way: Mr. Nelson said that the ZBA authorized construction of four buildings at 52 Mercantile Way. He said that a neighbor is unhappy with the condition of the lot with all the abandoned items including a camper trailer, a utility truck and several other trucks.
The letter from Building Commissioner Richard Stevens in response to a complaint about the condition of the lot:
“I am responding to your written complaint dated June 7, 2010 regarding the Town of Mashpee Zoning By-law violation of property owned by Timothy W. Kelley located at 52 Mercantile Way, specifically a Table of Use under Section 174-25.H.3, 10. I recently spoke to Mr. Kelley regarding this complaint and ask that he take some action to abate the violation. Mr. Kelley stated that he is a casualty of the economy. He is on the verge of bankruptcy and about to lose everything, but he would simply attempt to comply with my request. I am not too certain, however, that this will actually take place. I informed Mr. Kelley that I am sending him a certified letter outlying his need for compliance and the potential for legal action for non-compliance. Unfortunately should he not comply, the legal process is
very slow and tedious. I will work toward that end, however.”
Mr. Nelson said that he wanted to inform the Board that the Town is acting on complaints filed against the owner of the property.
27 Great Neck Road North: Mashpee Baptist Church located at 27 Great Neck Road North is interested in constructing an addition to the building to accommodate more seating. The proposal needs a Finding of Fact from the ZBA. The Board decided to waive the Petition Fee.
Mr. Hinden asked whether every corner lot in Town is in non-compliance if it does not have the required 40’ front setback requirements. Mr. Nelson said that a pre-existing, non-conforming condition precludes having to comply with that requirement. He said that the area on Shore Drive predates Zoning. Mr. Hinden said that he was told that only owners with corner lots who come into the Building Department (for permits) will have to undergo an address change. He questioned why everyone’s address wasn’t going to be changed. Mr. Nelson said that the Town Clerk has a policy in place.
Mr. Blaisdell moved to adjourn the meeting. Mr. Nelson seconded the motion. Meeting was adjourned at 8:40.
Respectfully submitted,
Cynthia Bartos
Administrative Secretary
Zoning Board of Appeals
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