MASHPEE ZONING BOARD OF APPEALS
MINUTES
AUGUST 11, 2010
The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, August 11, 2010, at the Mashpee Town Hall. Board Members Robert G. Nelson, Jonathan Furbush, William A. Blaisdell, and James Reiffarth along with Associate Members Peter R. Hinden and Ronald S. Bonvie were present. Attorney Jena Caruso Muñoz was present as legal counsel for the Board. Board Member John M. Dorsey was not able to attend the meeting. Chief George Baker was also in attendance.
Chairman Robert G. Nelson opened the hearings at 7:00 p.m. and stated that the meeting was being televised.
CONTINUED HEARINGS
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. Continued from July 28, 2010 Public Hearings to allow Petitioner an opportunity to submit revised and detailed plans of the proposed construction.
Sitting: Board Members Robert G. Nelson, William A. Blaisdell and James Reiffarth, and Associate Board Members Peter R. Hinden and Ronald S. Bonvie.
Mr. Daniel Buckley of One Pointe Home Curators represented the Petitioner. He submitted revised plans showing the exact dimensions of the proposed pool, as well as the location of the pool equipment and the spa. There is no need for a Variance from the rear setback requirements.
Mr. Nelson mentioned the letter from abutters concerned with the close proximity of the pool to their property. He suggested that the Board could prohibit the Petitioner from storing any materials on or close to the lot line and that excavation should be kept away from that side of the property during construction of the project. Mr. Nelson said that the Petitioner will need approval from the Architectural Review Committee (ARC). The ARC is a neighborhood committee, not a Town committee. Mr. Nelson said that the pool must be staked out prior to construction and a certified plan must be done after the construction. Mr. Nelson said that there will be a patio area, but there shall be no decking.
Mr. Steven Peltzman, direct abutter at 18 Driftwood Circle, said that he was interested in maximizing his privacy and expressed concern with the encroachment of the construction into the side setback.
Mr. Nelson said that the location of the septic system restricts location of the proposed pool.
Mr. Blaisdell made a motion to grant a Variance of five feet from the side setback requirements. The Board determined that there is no need for a Variance from the rear setback requirements. The Decision is conditioned upon compliance with the following:
- During construction of the project, no materials of any kind shall be stored on or close to the lot line referred to on the plan as South 70Oaks and Coombs. The Petitioner was not able to obtain an easement because the heirs have not been located.
- The Petitioner was unable to obtain an easement from 78 Main Street because the owner, Nivaas Corporation, is unwilling to grant it. The Petitioner only has permission from the Nivaas Corporation to drive across the property at 78 Main Street.
- The dumpster is located 50 feet away from the building.
- The Petitioner’s opinion is that there is adequate Fire Department access.
Attorney Mills submitted a copy of the parking plan and said that he didn’t obtain a stamped engineered plan because he is working within a tight budget. State law requires handicap parking spaces, which are not provided for on that plan.
Mr. White said that the BSS Design plan dated July 26, 2004 has been approved by the Town on several occasions, which the Board should accept. Mr. Nelson said that the plan shows the septic design and does not prove ownership.
Mr. Nelson tried to explain to Mr. White that the property deed gives him the right to access property that he owns (Lot 5), not property that someone else owns.
The Board and Mr. White discussed at length the definition of the terms ‘primarily transient in nature’ and number of occupants versus number of nights, the fact that the four issues had not been resolved, and the absence of a stamped engineered plan.
Mr. Nelson read a letter from Mr. White to Town officials requesting the following statement from them on behalf of the Town:
“The La Plaza Del Sol Motel is permitted to operate on a year-round basis. The Motel may provide extended stays and temporary lodging for seasonal employees and other local residents.
There are no limits to the length of stays for Motel guests.”
The Board of Health Agent, the Building Inspector and the Town Planner refused to provide that statement for Mr. White.
Fire Chief George Baker addressed the Board and referenced the State Law 527 C.M.R. 25, the Fire Prevention Regulations for Access and Egress and Ingress for Fire Departments. He said: “For buildings of habitable occupancy, each building built for residential occupancy after the approval of 527 C.M.R. 25 shall have a suitable paved access for Fire apparatus on at least one side of the structure.” Chief Baker said that the front access is not paved, that it is 157 feet away and is obstructed by a pool. He said that this is not suitable access. The fire hose lines come in 150-foot pre-connected sections. Answering a call would require the small on-duty crew of the rural Mashpee Fire Department to use special equipment to attach adapters, disconnect the attack hose lines and reconnect them – all of which takes valuable time while a structure is burning.
Chief Baker said Fire Department access to the motel across an abutting neighbor’s yard is not guaranteed. That access can change quickly and without recourse for the Town.
Chief Baker said that the attack pumper could access the property during a snowstorm, but would have a great deal of difficulty exiting afterwards. The access provided is only 18 feet wide and does not fit the standard of a road. Chief Baker said that it is impossible to get a Fire truck into that area without scraping the side mirrors and the side of the truck. He said that the truck doesn’t fit and the Fire Department does not have access.
Chief Baker suggested that the Board could designate the units that are within 150 feet of the hose line as the extended-stay units. He said: “We know that fires are created by three things. Men, women and children and the stuff they bring with them. So, … as you set up long-term living, you bring with you microwave ovens, floor heaters, TV sets, extension cords” and all the other things that increase the risk.
Chief Baker said that he does not sleep well knowing that 50% of the property does not have suitable Fire Department access and that he would not be comfortable with the proposal. He said the Petitioner needs to implement changes, including deeded access for fire apparatus on a paved all-weather surface of which the Petitioner has ownership.
The Board members agreed and said that they will not render a Decision that would jeopardize the health, safety and well-being of anyone.
No comments were received from abutters.
Attorney Muñoz assisted the Board in the wording of the motion. Mr. Furbush said: “I make a motion that the Applicant’s proposed use as set forth in its Application is not substantially more detrimental to the neighborhood than the existing non-conforming use and there is adequate land area to provide sufficient parking and setbacks as required, provided that the following conditions are met:
- Suitable Fire Department access to all areas of the property.
- Installation of handicap parking spaces as required by law.
Mr. Blaisdell seconded the motion. Mr. Nelson voted to oppose the motion. Mr. Furbush opposed the motion. Mr. Blaisdell opposed the motion. Mr. Reiffarth opposed the motion. Mr. Hinden opposed the motion. Motion denied.
OTHER BUSINESS
Accept July 28, 2010 Minutes and August 4, 2010 Minutes
Mr. Furbush made a motion to accept the July 28th and August 4th Minutes. Mr. Blaisdell seconded the motion. All were in favor.
Sign voucher to Reimburse Engineer Charles L. Rowley for:
Consult services during the month of July 2010 for review of plans and application documents for
development of Breezy Acres Phase II on property located at 570 Old Barnstable Road.
Amount authorized: $1,187.50
Inspections of development by Capewide Enterprises of property located at 153 Commercial Street.
Amount authorized: $190.00
Mr. Furbush made a motion to sign the voucher to reimburse Mr. Rowley. Mr. Nelson seconded the motion. All were in favor.
Mr. Blaisdell made a motion to adjourn the meeting. Mr. Reiffarth seconded the motion. All were in favor. Meeting was adjourned at 8:20 p.m.
Respectfully submitted,
Cynthia Bartos
Administrative Secretary
Zoning Board of Appeals
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