MASHPEE ZONING BOARD OF APPEALS
MINUTES
JULY 28, 2010
The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, July 28, 2010, at the Mashpee Town Hall. Board Members Robert G. Nelson, William A. Blaisdell, James Reiffarth and John M. Dorsey along with Associate Member Ronald S. Bonvie were present. Board Members Jonathan Furbush and Peter Hinden were not in attendance.
Mr. Nelson opened the hearings at 7:00 p.m. He announced that Associate Member Ronald S. Bonvie would be acting as the fifth member of the Board.
NEW HEARINGS
Gilbert A. and Sondra Alexander: Request a Variance from Section 174-31 of the Zoning By-laws for permission to vary the side setback requirements to allow for construction of a garage on property located in an R-3 zoning district at 35 Grant Breen Drive (Map 81 Parcel 104) Mashpee, MA.
Sitting: Board Members Robert G. Nelson, William A. Blaisdell, James Reiffarth and John M. Dorsey and Associate Board Member Ronald S. Bonvie.
Mr. and Mrs. Alexander represented their Petition. Mr. Alexander said that they are year-round residents and would like to expand their existing garage to accommodate both of their vehicles during inclement weather. The existing garage is 12 x 22 feet and the proposed addition would be 14 x 22 feet. The proposal calls for Variance relief from the side setback requirements. Mr. Nelson read the letter signed by the abutters residing at 11 Grant Breen Drive, Bryan and Amy Lihzis, in favor of the proposal. The letter reads:
“The Mashpee Zoning Board of Appeals
We live on the property adjacent to the Alexander’s proposed garage addition and would like to state that we do not have any objections to their project.”
Mrs. Alexander said that a densely wooded area exists between the subject property and the abutting house on the side of the proposed addition.
The Board questioned the percentage of lot coverage, which does not appear on the plan. The Board determined that the proposal would not exceed the maximum allowable lot coverage.
No other comments were received from abutters.
Mr. Dorsey made a motion to grant a Variance of 5 feet from the side setback requirements. Mr. Blaisdell seconded the motion. All were in favor. This Decision is conditioned upon compliance with Eagle Surveying, Inc. plan entitled: “Plot Plan in Mashpee, MA. Feb. 13, 2001 Revised: May 4, 2010 Project No. 97-274-L13A”.
William Sullivan: Requests Variances from Sections 174-31 and 174-33 of the Zoning By-laws to vary the front setback requirements and the setback to the wetlands to allow for construction of a garage/barn as well as additions to a home on property located in an R-3 zoning district at 180 Daniel’s Island Road (Map 100 Parcel 18) Mashpee, MA.
Cape & Islands Engineering, Agent for the Petitioner, sent a letter to the ZBA office requesting continuance of the Petition to allow for Conservation Commission approval. Mr. Nelson made a motion to continue the Petition until August 25, 2010. Mr. Blaisdell seconded the motion. All were in favor.
Olavo Macedo, Jr. et al: Requests a Variance from Section 174-31 of the Zoning By-laws for permission to vary the side and rear setback requirements to allow for construction of a swimming pool on property located in an R-3 zoning district at 16 Driftwood Circle (Map 126 Parcel 34) Mashpee, MA.
Sitting: Board Members Robert G. Nelson, William A. Blaisdell, James Reiffarth and John M. Dorsey and Associate Board Member Ronald S. Bonvie.
Mr. Dan Buckley of One Pointe Home Curators represented the Petition. He said that a Variance from the rear setback requirements is not needed. The proposal is seeking a Variance from the side setback requirements to allow for construction of a swimming pool. The existing septic system restricts location of the swimming pool on the property. Lot coverage will remain well below the allowed 30%. Building Commissioner Richard Stevens issued a memo stating that the subject property is a level lot, but “there are septic restrictions which would favor granting relief”.
Direct abutters, Mr. and Mrs. Peltzman of 18 Driftwood Circle, sent a letter in opposition to the proposal. The letter reads:
The Peltzman’s
18 Driftwood Circle
Mashpee, MA 02649
25 July, 2010
Dear Cynthia and Members of the Mashpee Zoning Board;
As per the Public Hearing Notice we recently received, we see that a request for variance is under review by the Mashpee Zoning Board of Appeals on July 28, 2010. Unfortunately, we are unable to attend this meeting due to the arrival of a new grandchild out of state; hence our need to communicate via letter.
We are abutters of the Macedo property at 16 Driftwood Circle, where there is a request for a variance as part of a proposed plan to build a pool and surrounding deck area. We are concerned with the location of the pool. When we built a pool on our property, we were required to maintain set-backs from abutters on both sides of the property as well as from the conservation land behind. When our pool was constructed, to meet these set-backs it was necessary to alter the rectangular shape of the pool that was found to be approximately five inches in violation of the set-back for about 3 feet.
As we understand the Macedo proposal, the entire length of their pool and deck (approximately 40 feet) would parallel our property line only several feet away from our property. The proximity to our outdoor living space is the cause for our concern (though we have no objection to their having a pool). In addition, we viewed 2 separate plans at Town Hall: one a conceptual drawing and one a proposed construction plan. On the conceptual plan, pool equipment and a “spa” were shown in locations that were fine; however, on the more recent “proposal”, we are concerned that these items, if built, might be moved to a less satisfactory location, as they appeared absent from the formal plan.
We love our neighborhood and we love our pool and have found tremendous value in utilizing it with our family and friends. We reside approximately half the year in Mashpee and spend as much of our time as possible outside. We want to be good neighbors and we also want to minimize the impact of this construction and Request for Variance on our privacy.
Some questions:
1. Are there alternatives that can be implemented to avoid a variance or minimize the impact on our privacy?
2. Is there a spa and, if so, where?
3. Where is the pool equipment?
Thank you for your consideration of these concerns,
Very truly yours,
Steve and Susan Peltzman
Mr. Buckley said that the pool equipment will be installed behind the garage. Mr. Bonvie asked why that wasn’t shown on the plan. Mr. Blaisdell asked for the location of the spa. Mr. Buckley said that the Petitioner may opt for a portable spa, so its location will vary.
Mr. Reiffarth asked for the exact dimensions of the pool, which are not shown on the plan. Mr. Buckley said that the size of the proposed pool is 18 x 35 feet. Mr. Bonvie said the entire length of the pool runs parallel to the Peltzman’s property. He expressed concern that if installation of the pool was skewed even just a little, the proposal would not be in compliance with the plan. Mr. Buckley said that he knows that he needs a certified ‘as built’.
Mr. Nelson said that the setbacks are determined by distance to the water and not to the apron. The apron of the pool exists outside that area. He said that he was concerned that the apron runs very close to the lot line, but that the apron is “not covered by this Board”. Mr. Buckley agreed and said that the apron is about 5 feet from the Peltzman’s lot line.
Mr. Nelson asked if the shrubs and vegetation would be removed in that area. Mr. Buckley said that the proposal requires review by the New Seabury Architectural Review Committee, which he is certain will require planting in the area between the apron and the lot line. For clarification, the Architectural Review Committee is not a Town of Mashpee Committee. Mr. Bonvie asked why the setback “goes to the water and not to the nearest point, such as coping, etc.” Mr. Nelson said that all of the pools in the state of Massachusetts are measured in that way – to the water. Mr. Bonvie said that the intrusion actually exists with the apron, which can go all the way to the property line. Mr. Nelson said that the apron is not considered a structure if it is at ground level. Mr. Reiffarth
said that the coping and apron are not calculated as part of lot coverage, but a deck would be counted as part of the lot coverage. Mr. Bonvie repeated his concern with the proposed location of the swimming pool and the fact that the Petitioner could be lounging by the pool right up to the Peltzman’s property line. Mr. Buckley said that a patio could be constructed right up to the lot line.
Mr. Nelson said that if the Board approves this Petition, it should specify that the pool corners must be staked by a land surveyor and after the pool is poured it must be certified by a land surveyor.
Mr. Dorsey said that the Petitioner should submit a certified plan showing the exact dimension of the pool, the exact location of the pool equipment and the exact location of the ‘portable’ spa.
Mr. Nelson said that the plans should have been available and submitted at the time that the Petition was filed with the Town Clerk. The ZBA office requested the plans on numerous occasions from Mr. Buckley. When Mr. and Mrs. Peltzman came to the ZBA office to review the plans, none were available. Mr. Bonvie asked if the Peltzmans had seen the certified plan. The ZBA office had to call One Pointe Curators again requesting the plan, which was faxed. Mr. Bonvie said that the abutters did not see the certified plan.
Mr. Buckley said that he submitted conceptual and landscape plans prior to the meeting. Mr. Reiffarth repeated that the plan must show the exact location of the pool equipment. He expressed concern that the equipment could be placed right next to the pool. Mr. Buckley said that the Decision could be rendered with that stipulation. Mr. Reiffarth reiterated that the plan should show the exact location of the equipment. Mr. Nelson said that the plan should show the exact size of the pool. He asked if the Petitioner had received Board of Health and Conservation Commission approval. Mr. Buckley said that the proposal does not fall within Conservation Commission jurisdiction.
Mr. Blaisdell read the memo from Building Commissioner Richard Stevens, which reads:
“Olavo Macedo/16 Driftwood Circle: This is a Cluster subdivision and setbacks are 30’ from road 15’ sides and 20’ from rear with 30% lot coverage. The lot is level however there are septic restrictions which could favor granting relief.”
The Board allowed Mr. Buckley an opportunity to present some options and tried to work with the inconsistent plans. Mr. Bonvie restated that he feels the Board should take the Peltzman’s concerns into consideration and that the plan should be more detailed. Mr. Nelson said that one of the plans shows the location of the deck, which will be 6 feet from the property line. Mr. Nelson said that another plan shows a landscaping plan with shrubbery to be planted, which details do not appear on the certified plan.
Mr. Buckley said that the existing fence is five feet with a one-foot lattice top.
Mr. Blaisdell said that he was confused because one of the plans shows a deck, but the certified plan does not include the deck. Mr. Buckley said that the word ‘deck’ was handwritten on the plan, but is actually a patio, a coping. He said that this plan is a ‘conceptual plan’. Several plans are now on file, but are confusing because of the discrepancy between them.
Mr. Buckley assured the Board that the pool equipment and the spa will be located next to the garage and not next to the abutter’s property line.
The Building Department issued a request to the ZBA office concerning ZBA Decisions. Once a favorable Decision has been rendered by the Board, the Building Department would like a copy of the Decision citing the approved plans. The plans should be signed by the Board and should be on file in the Building Department when Applicants file for building permits. This will allow the Building Department to ensure that construction is done according to an exact plan that has the ZBA’s approval.
The Board repeated to Mr. Buckley the necessity of submitting a certified plan showing pool dimensions and spa and pool equipment locations. Mr. Buckley said that he’s aware of the Peltzman’s concerns, but that all he is asking for is a five-foot relief from the sideline. He said that the only jurisdiction that the Board has is on the setback. Mr. Reiffarth repeated again that the dimensions of the pool are missing on the certified plan. Mr. Bonvie said that it is important for the Board to try to protect the neighbor’s interests. Mr. Blaisdell said that the Board must cite a specific plan with details. Mr. Buckley offered to handwrite and sign the plan with the location of the pool equipment. Mr. Nelson said that the Board is looking for “one plan showing everything that
is going to be done”, including planting of the shrubbery. Mr. Buckley protested to having to submit a certified plan with shrubbery and said that he has “never had that done.” Mr. Nelson said that two sheets could be submitted. Mr. Nelson said that the Building Commissioner also has the option of requesting Design Review of the proposal, which will require all of the proposed landscaping to be submitted on the plan.
Mr. Reiffarth questioned the ‘portable spa’. Mr. Buckley said that the spa is not built into the ground and can be moved around the property. He said that those kinds of spas “are usually around 6 x 6 or so or something like that.”
Mr. Nelson said that the Board will require a revised plan. He advised Mr. Buckley to take the two different plans and ask the Building Commissioner what kinds of details the Building Department would require on the certified plot plan. Mr. Nelson said he is not really interested in the proposed vegetation, but that it does appear on one of the submitted plans. Mr. Reiffarth clarified again that the following details must be shown on the certified plan: pool size, location of the spa and location of the pool equipment, along with proposed landscaping if required by the Building Department.
Mr. Nelson made a motion to continue the Petition until August 11, 2010 to allow the Petitioner an opportunity to submit the requested revised plans. Mr. Dorsey seconded the motion. All were in favor.
Mashpee Baptist Church: Requests a Finding of Fact under Section 174-17 of the Zoning By-laws for permission to construct an addition to a pre-existing, non-conforming structure on property located in an R-5 zoning district at 27 Great Neck Road North (Map 36 Parcel 6) Mashpee, MA.
Sitting: Board Members Robert G. Nelson, William A. Blaisdell, James Reiffarth and John M. Dorsey and Associate Board Member Ronald S. Bonvie.
Mr. Paul Ferazzi, contractor for the project, and Attorney Steven Tessier represented the Petition. Pastor Curtis Frye, Jr. and Mr. Robert McManus were also present.
The Board reviewed the plans. Mr. Nelson stated that the proposed addition is actually 5.3” further away from the street than the existing structure. He also said that the 23 x 30-foot addition is not going to create any problem nor is it more detrimental than what currently exists. Attorney Tessier said that the Church also owns Parcel B, formerly Collins Road, but the two parcels have not been merged. He also said that the pre-existing non-conforming structure does not conform to current zoning as to use and to setbacks.
No comments were received from abutters.
Mr. Blaisdell moved to grant the Finding of Fact with the following findings:
- that the alteration shall not be substantially more detrimental than the existing non-conforming structure or use to the neighborhood.
- that there is adequate land area to provide sufficient parking and setbacks as may be required.
This is conditioned upon compliance with J. Doyle Associates’ Plan entitled “Sewage System Upgrade Plan Prepared for Mashpee Baptist Church 27 Great Neck Road North Mashpee, MA. April 28, 2010 Revised May 4, 2010”.
Mr. Nelson seconded the motion. All were in favor.
INFORMAL DISCUSSION
Mashpee Fish and Lobster: Requests an informal discussion for permission to relocate a dumpster on property located at 538 Falmouth Road (Map 74 Parcel 16) Mashpee, MA.
Mr. Michael McCarthy, owner of Mashpee Fish and Lobster, asked the Board for permission to relocate the dumpster. The dumpster has already been moved to the new area. Mr. Nelson said that the Board of Health allowed Mr. McCarthy to move the dumpster even though earlier this year, the ZBA approved a plan showing the dumpster in a different location. Mr. McCarthy explained that he was under the impression that he only needed permission for the dumpster location from the Board of Health. He said that the current location of the dumpster is an improvement because it is out of sight and is at least 25 feet from the building. Mr. Nelson said that state law requires dumpsters to be located at least 50 feet away from the building.
Mr. Nelson suggested that the Board should require the Petitioner to receive approval for relocation of the dumpster from the Board of Health and the Fire Department. The ZBA will also require approval from those two departments in written form. The Petitioner shall also submit a revised plan showing the type of foundation on which the dumpster sits and the exact location of the dumpster on the subject property. The Board instructed the ZBA office to follow up and ensure that a revised plan along with the two Town Department letters in approval of the relocated dumpster is received.
Mashpee Housing Authority and Housing Assistance Corporation: Request a Comprehensive Permit under Massachusetts General Laws Chapter 40B to allow for construction of Breezy Acres Phase II consisting of ten affordable residential rental housing units within five two-story buildings (eight two-bedroom units and two three-bedroom units) on property located in an R-5 zoning district at 570 Old Barnstable Road (Map 72 Parcel 100) Mashpee, MA.
Petitioners are requesting an Extension of the Public Hearing date to August 4, 2010 to allow Petitioners’ representatives to be in attendance.
Mr. Nelson says that this Extension requires a vote of the Board and in order to do so, it must be established as to who the Board is. He said: “For purposes of this Motion, and this Motion only, let the record show that the five people present here tonight will constitute the Board.”
Sitting: Board Members Robert G. Nelson, William A. Blaisdell, James Reiffarth and John M. Dorsey and Associate Board Member Ronald S. Bonvie.
Mr. Nelson further clarified that when the Board meets on August 4th, who is actually sitting on this Petition will be announced at that time. He also said that the record should show that no public testimony was taken on this Petition at this time. Mr. Nelson asked the ZBA office to confirm that Engineer Charles Rowley will be available for the ZBA on August 4th.
Mr. Blaisdell moved to grant the Extension as requested and continue the above-referenced Petition to August 4, 2010 ZBA Public Hearings. Mr. Reiffarth seconded the Motion. All were in favor.
OTHER BUSINESS
340 – 342 Main Street, LLC: Requests a three-year Extension of Comprehensive Permit SP-07-28, which was approved by the Zoning Board of Appeals at the Public Hearings on August 9, 2007 allowing for construction of Main Street Village Phase II on property located at Assessor’s Map 36 Parcel 50 (behind Schooner Lane) Mashpee, MA.
Petitioner states that severe economic conditions have substantially impacted commencement and completion of the project.
Sitting: Board Members Robert G. Nelson, William A. Blaisdell, James Reiffarth and John M. Dorsey and Associate Board Member Ronald S. Bonvie.
The Board discussed the Request for Extension at length. Questions arose as to the name of the current owner, the financial situation of the owner and the likelihood that development of Phase II will actually be completed. Mr. Nelson said that the Board must proceed very carefully with this project, based on its previous experience with the Petitioner and the project.
Mr. Bonvie asked what kind of accounting/profits that the Town will require in reference to Chapter 40B projects. He said that one of the key ingredients to a Chapter 40B proposal concerns the profit structure.
Mr. Nelson said that the Board is not necessarily compelled to grant a three-year Extension. He said that the Comprehensive Permit SP-07-28 names Southside Realty Trust as the Petitioner and that Attorney Kirrane has requested the Extension on behalf of Southside Realty Trust. Mr. Nelson objected to the condition of the property and said that the property is a mess and that the Petitioner seemed to have started the project, dismantled the area and stopped in midstream. He said all of this happened before the present economic conditions.
Mr. Nelson said that the Board asked McShane Construction Company to perform minor jobs, such as filling in a portion of a trench, which the Petitioner refused to do. Mr. Reiffarth called the Board’s experience with McShane “a horror show”. The Board discussed allowing the Comprehensive Permit to expire and requiring the Petitioner to re-file. Mr. Nelson suggested the option of continuing the Petition long enough to allow the Petitioner and attorney an opportunity to present their case to the Board.
Mr. Nelson moved to continue the hearing for 60 days until October 9, 2010 and requested that the Petitioner and the attorney appear before the Board prior to that date. Mr. Dorsey seconded the motion. All were in favor.
NEW BUSINESS
Discuss revision of protocol concerning signature page for Decisions.
Mr. Nelson said that he had received disapproval from some of the Board members about the inconvenience of having to come back to Town hall to sign the signature sheets. He understands that everyone on the Board is a volunteer and spends a lot of time conducting research on behalf of the Town. Mr. Nelson said that he discussed the matter with the Selectmen’s office. One concern is that the Decisions are not reviewed by the Board before being filed with the Town Clerk for recording at the Registry. Mr. Nelson proposed that four members of the Board can sign the signature sheet on the night of the hearing. The fifth member, the Chairman, would not sign the signature sheet until after approval of the Decision. The Decision will be sent by email for approval. Mr. Nelson said that he would be
willing to come in to sign the signature sheet once he has reviewed and approved the Decision. He said that it would eliminate oversights and mistakes and would also satisfy the concerns of the Selectmen’s office. Mr. Nelson said that he would like to be able to designate an alternate, namely the Vice Chairman, in the event he is not available to come in to Town Hall to sign the signature sheets. If neither the Vice Chairman nor the Clerk is available, obviously one of the other members would have to serve as the alternate to sign the signature sheets. The Board agreed to the revised protocol concerning signature sheets for Decisions.
Mr. Bonvie asked if the Town supplies identification for volunteer Board members to use while in the field in performance of their duties. The ZBA office will request badges for the Board through the Selectmen’s office.
Accept Minutes
June 23, 2010 Minutes and July 14, 2010 Executive Session and Public Hearing Minutes.
Mr. Nelson made a motion to accept the above-referenced Minutes. Mr. Dorsey seconded the motion. All were in favor.
Mr. Blaisdell made a motion to adjourn the meeting. Mr. Dorsey seconded the motion. All were in favor. Meeting was adjourned at 9:00 p.m.
Respectfully submitted,
Cynthia Bartos
Administrative Secretary
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