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Zoning Board of Appeals Minutes 08/04/2010
MASHPEE ZONING BOARD OF APPEALS
MINUTES
AUGUST 4, 2010

The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, August 4, 2010, at the Mashpee Town Hall.  Board Members Robert G. Nelson, Jonathan Furbush, William A. Blaisdell, James Reiffarth and John M. Dorsey along with Associate Members Peter R. Hinden and Ronald S. Bonvie were present.  Attorney Jason Talerman was present as legal counsel to the Board.  Engineer Charles Rowley was present as a Consult to the Board.

Chairman Robert G. Nelson opened the hearings at 7:00 p.m.  

CONTINUED HEARING FROM JULY 28, 2010

At the request of the Petitioners, the following Petition was opened without testimony at the Public Hearings on July 28, 2010 and continued to the August 4, 2010 Public Hearings.

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.

Mr. Nelson announced that the five Board Members are sitting on this Petition, with the two Associate Members being present.

Sitting:  Robert G. Nelson, Jonathan Furbush, William A. Blaisdell, James Reiffarth and John M. Dorsey.

Also in attendance:
        Adrienne Danner, Project Manager                                
        Kate Ferreira, Assistant Project Manager
        Housing Assistance Corporation

        Andrew L. Singer, Attorney for the Petitioners
        Law Office of Singer & Singer, LLC

        Christian T. Valle, Project Manager
        The Valle Group, Inc. – Construction Contracting Company

        Richard P. Fenuccio, Architect
        Christopher W. Raber, Architect
        Brown, Lindquist, Fenuccio & Raber Architects, Inc.
        
        
        Mark E. Nelson, Engineer
        Brian Kuchar, Engineer
        Horsley Witten Group

        Walter Abbott
        Affordable Housing Committee

As required by the Comprehensive Permit Rules, the Petitioner deposited two $5,000 checks to cover the Board’s legal counsel fees and financial expert fees.  Mr. Nelson said that the Board has decided to drop the $5,000 fee for the retention of a financial expert.  He asked if the Petitioner would agree to the Board using that $5,000 check to cover the engineering costs. Attorney Jason Talerman said that statute Chapter 44 §53G provides for accounting of money received by the Board in connection with employment of outside consultants to assist with the permit granting process.  M.G.L. Chapter 44 §53G reads:

CHAPTER 44. MUNICIPAL FINANCE
MISCELLANEOUS PROVISIONS
Chapter 44: Section 53G. Employment of outside consultants
Section 53G. Notwithstanding section 53, any city or town that provides by rules promulgated under section 9 or 12 of chapter 40A, section 21 of chapter 40B, section 81Q of chapter 41 or section 31 of chapter 111, or by rules promulgated by a conservation commission established by a city or town under section 8C of chapter 40 when implementing the authority conferred under said section 8C of said chapter 40, section 40 of chapter 131, or under any local wetlands ordinance or by-law, for the imposition of reasonable fees for the employment of outside consultants may deposit such fees in a special account. Such rules shall provide for an administrative appeal from the selection of the outside consultant to the city council or town board of selectmen. The grounds for such an appeal shall be limited to claims that the consultant selected has a conflict of interest or does not possess the minimum, required qualifications. The minimum qualifications shall consist either of an educational degree in or related to the field at issue or three or more years of practice in the field at issue or a related field. The required time limits for action upon an application by a municipal permit granting board shall be extended by the duration of the administrative appeal. In the event that no decision is made by the city council or the town board of selectmen within one month following the filing of the appeal, the selection made by the municipal permit granting authority shall stand. Such an administrative appeal shall not preclude further judicial review, if otherwise permitted by law, on the grounds provided for in this section. Any such account shall be established by the municipal treasurer in the municipal treasury and shall be kept separate and apart from other monies. The special account, including accrued interest, if any, shall be expended at the direction of the authorized board or authority without further      appropriation; provided, however, that such funds are to be expended by it only in connection with carrying out its responsibilities under the law. Any excess amount in the account attributable to a specific project, including any accrued interest, at the completion of said project shall be repaid to the applicant or to the applicant’s successor in interest and a final report of said account shall be made available to the applicant or to the applicant’s successor in interest. The municipal accountant shall submit annually a report of said special account to the chief elected body and chief administrative official of the municipality for their review. Said report shall be published in the city or town annual report. The municipal      accountant shall submit annually a copy of said report to the director of the bureau of accounts.
Attorney Talerman said that he estimates his legal counsel fees will amount between $2,500 and $5,000.   He said that both of the $5,000 checks shall be deposited into a special account, separate from the Town’s general fund.  This will allow the Board to monitor disbursement of funds and to return any balance remaining to the Petitioner.   

Ms. Danner and Attorney Singer agreed to the arrangement.  

Mr. Nelson submitted the Board of Health comments to Attorney Singer to pass along to the Petitioner’s engineer.

Ms. Danner said that the Mashpee Housing Authority chose the Housing Assistance Corporation in September 2009 to carry out this project.  She said that the architects will address the Board first.  Then the engineers will make their presentation.  Attorney Singer will conclude with his summary.

Architect Richard Fenuccio said that the proposed development received preliminary determination of Project Eligibility from the Massachusetts Housing Partnership (MHP) on October 21, 2009.  Mashpee Housing Authority and the Housing Assistance Corporation are co-Petitioners in this project.  Mr. Fenuccio said 37% of the site will be developed with construction of the five new buildings, which will be consistent with the existing buildings on the site.  The Petitioner is a non-profit organization and controls the site.

All of the ten units shall be affordable to households earning up to 50% of the A.M.I. (Area Median Income).  The affordability requirements will be documented and recorded prior to the mortgage with the appropriate covenants and deed restrictions.  

Timeline:
  • October 2009:  Housing Assistance Corporation selected to develop the project.
  • October 8, 2009: Massachusetts Historical Commission issues a “Determination of Non-Applicability”.
  • Early 2010:  Several meetings with Town Departments to review site and building design.
  • March 11, 2010: Mashpee Design Review Committee and Plan Review Committee combined meeting.  
  • Approved Project Eligibility Letter dated June 14, 2010 from Mass. Housing Partnership to Housing Assistance Corporation.
  • June 18, 2010: Comprehensive Permit Petition filed with the Town Clerk and submitted to the ZBA.  
  • June 29, 2010: Request for Massachusetts Endangered Species Act (MESA) Project review filed with the Natural Heritage & Endangered Species Program.
  • No approval required from the Conservation Commission.
The subject property consists of 6.2 acres within an R-5 zoning district and a Groundwater Protection Overlay district.  Of the 6.2 acres, 5.5 acres are mapped as Priority Habitat or Estimated Habitat of Rare Species for Eastern Box Turtles.  A Conservation Restriction is not required, as long as a Protection Plan is established prior to construction for the Eastern Box Turtle.  

Construction is planned for the most level area of the property.  Access to natural gas, water, power, telephone and cable television from the road exists.  

Existing parking will be modified to allow for creation of an access driveway from the existing site entry curb.  There are currently three duplex buildings with six units and eighteen bedrooms on the subject property.  Plans call for construction of ten new additional rental units consisting of 8 two-bedroom units and 2 three-bedroom units.  This final site development will result in a total of 8 duplex buildings with 16 units and 40 bedrooms.  In an attempt to create one coherent community, the proposal calls for orienting the buildings east/west with long roofs to allow for the optional installation of solar systems in the future

One of the proposed units will be handicap accessible.  Another one of the units will be a sensory-impaired unit with audible and visual alarms for either a hearing-impaired or visually-impaired person.  

All of the first-floor units will be ‘visitable’, with a minimum of steps leading to the unit.  The first floor units will be constructed low to the ground, and in combination with transitional walkways, will provide most individuals with access to those first-floor units.  

The Petitioner has received comments from the Fire Department with concerns about access to the building farthest away.  Fire alarm systems will be installed in compliance with local By-laws.   

In order to stay within the tight budget, the site development area has been reduced.  This allows for containment of pavement, drainage and costs.  Those savings can be used to create better performing buildings in the form of blown-in cellulose insulation, fire-rated heating systems and energy-efficient windows.  This will, in turn, help cut utility costs for the families.

The proposed multi-unit project and the density require ZBA approval.  The Zoning By-laws require 80,000 square feet; the property consists of 269,900 square feet.  By-laws require frontage of 150 feet; the property has 400 feet of frontage.  Setback requirements are 40 feet in the front, 25 feet on the side and 25 feet in the rear.  The property has 176 feet in the front, 63 feet on the side and 212 feet in the rear.  Building height must not exceed 35 feet and 2 ½ stories; the proposal calls for 26 feet height with 2 stories.  Parking requirements of two spaces per unit – 20 parking spaces - will be provided.  Maximum lot coverage is 20%; the proposal will only be 16% lot coverage.

Next to address the Board was Engineer Brian Kuchar from the Horsley Witten Group.  He said that the main entrance will be connected to the existing access point on Old Barnstable road with a 22-foot wide access road coming into the site and leading into the parking area.  Walkways are proposed throughout the site to create a neighborhood feel.

Mr. Kuchar clarified some of the drainage details and said that all of the stormwater will be controlled and managed on the site and will not be discharged out onto Old Barnstable Road or its catch basins.  The drainage system was developed to allow the water to drain as naturally as possible.  Bioretention areas will contain landscaping features adapted to treat stormwater runoff on the site and will incorporate species that can thrive in both drought and rainy conditions. Water will run into bio-retention areas for pre-treatment.  Pitch and grade of the property will direct runoff for discharge.  Catch basins will also be installed.  Improvements will be made to the site to address current water drainage problems.  The bioretention areas will capture the first runoff and overflow will be discharged into the underground recharge chambers.  

Mr. Kuchar discussed some of the proposed landscaping details which include planting of trees and shrubs.  He said that screening will be provided along the edge of the parking area and the sidewalks to create a separation from the parking area and the units.  Landscaping will be designed to screen back yards and sheds.   
Connection to the Mashpee High septic system is being studied and discussed with Town officials.  The alternative is an on-site advanced Nitrex wastewater treatment collection system.  This system addresses nitrogen removal requirements without the need for costly, disruptive and widespread sewerage systems.  The Nitrex system can easily meet the required standards of 10 mg per liter.  

Engineer Mark E. Nelson from the Horsley Witten Group started his discussion with a letter from Natural Heritage and its findings concerning the project.  The Petitioner was required to submit a “Notice of Project Review” for activities that take place within habitats for rare species.  The response was that this project can proceed with the condition that an investigation shall be conducted to determine if there any Eastern Box Turtles in the area that could be harmed by the construction.  Disturbed areas will be cordoned off and the turtles will be relocated outside the area of construction, which is standard procedure for construction taking place within this kind of habitat.  

Mr. Mark Nelson said that a feasibility study was conducted and the site is within the drinking water Zone II Bioretention area for two of the wells.  Title V, which governs wastewater for on-site disposal, allows 440 gallons per day per acre in those areas.  If extra treatment is provided, 660 gallons per day per acre is allowed.  This will not address the estimated 2,000 gallons per day with connection of the existing buildings and the proposed buildings on the property.  For this to be viable, the Petitioner requires an easement from the Town within the Zone II that would restrict discharges of nitrogen on an additional 1 ½ acres of land in order to allow the 40 bedrooms to be built.  The Petitioner is currently discussing the nitrogen easement with the Town.

There are ongoing discussions with the Town for installation of a pump station for the existing and proposed homes on the subject property with a connecting line to the High School wastewater treatment plant to discharge the effluent there.  Mr. Mark Nelson said that the Petitioner will pay for the connection, as well as an annual operation and maintenance fee.  That figure is based on what the units can afford and what the budget can sustain.  

Mr. Mark Nelson said that he High School treatment system is designed for 18,000 gallons a day, but only gets 2,000 to 3,000 gallons of effluent per day while school is in session.  Mr. Nelson said that the system is oversized and requires a large amount of carbon and food source for the bacteria to break down the ammonia in the effluent, which this residential project would provide.  If the Breezy Acres’ project is connected with the High School, it would provide a more steady flow rate, more efficient operation of the system and reduction of chemical treatment costs.  The Housing Authority factors in the monthly cost by determining the yield it will receive.  Mr. Nelson said that costs will range from $600 to $700 per unit annually, which is not a typical cost for a sewer bill on Cape Cod, and particularly not for affordable housing units.

Mr. Fenuccio said that three different building types are proposed.  Variations on the material palette and colors will provide diversity.  Plans call for forced hot water heating systems.  No air conditioning will be provided in an effort to minimize construction costs.  Full basements will maximize resident storage within each unit.  Energy-star rated doors and windows will be installed.  

Attorney Andrew L. Singer stated that the Petitioner is seeking the following:     
  • Housing Assistance Corporation is seeking a Comprehensive Permit for development of Breezy Acres Phase II.      
  • Mashpee Housing Authority requests a Modification of a 1987 Comprehensive Permit (SP-87-06-060) to allow for development of Breezy Acres Phase II on a surplus portion of the subject property.
Attorney Singer said that the Mashpee Housing Authority owns the subject property and manages Breezy Acres Phase I.  He said that the Housing Assistance Corporation will lease Breezy Acres II and will develop the new units.  After construction is completed, The Mashpee Housing Authority will manage both phases.  Attorney Singer said that all of the units on the property will be permanently protected as affordable rentals.  

Attorney Singer said that the Board has the authority to waive local requirements of the Zoning By-laws to allow for the proposal.  Waivers do not need to meet the Criteria necessary for grant of a Variance.  Without these waivers, the proposal would become uneconomic.  The Petitioner seeks the following waivers:
  • Article IV, Section 174-12 (number of principal buildings on residential lot).
  • Article V, Section 174-17 (extensions and alterations of non-conforming dwelling structures).
  • Article VI, Section 174-23 (performance bond for building construction).
  • Article VI, Sections 174-25 and 174-46 (two-family, duplex dwelling use).
  • Article VI, Section 174-26 (growth management).
  • Article VI, Section 174-27 (water quality report).
  • Article VI, Section 174-27.2 (stormwater management).
  • Article VII, Section 174-28 (conformance).
  • Article VIII, Section 174-37 (parking facilities location).
  • Article VIII, Section 174-41 (parking lot design – non-residential).
  • Article XIII, Sections 174-81 and 174-82 (Groundwater Protection District).
Ms. Danner submitted a budget report (see attachment).

A lengthy discussion ensued about wastewater management and the Petitioner’s options.

Ms. Danner said that installation of the Nitrex system is approximately $473,000 and the cost to connect to the High School system would be approximately $417,000.  The Town has asked for an initial cost of $15,000 per year for connecting to the High School treatment system.  Ms. Danner said that the Petitioner’s operating budget for water and sewer is $11,000.  She said that installation of the booster pump station on the subject property will require daily inspections and will incur running costs of approximately $7,000 per year.  Mr. Mark Nelson said that the cost to run an on-site system would be approximately $5,000 per year.  Ms. Danner said that connecting with the High School treatment system will be expensive for the Petitioner during the first two years of operation.  However, those operating costs will be reduced as time goes on.  The Petitioner also suggested using the same company that monitors the Town’s system.

Mr. Mark Nelson said that drainage calculations are dependent on the answer to the septic system.  

Chairman Robert Nelson commented that the Mashpee Housing Authority has proven itself with development of the senior citizen housing and that the Board is very pleased with the 50 units at the senior citizen housing.  

Fire Department access was then discussed.  Mr. Fenuccio said that the Petitioner is currently addressing Fire Department concerns.  Attorney Talerman said that it is vital to the project to receive Fire Department approval.  He questioned the eave height of the second floor and expressed his concern with emergency vehicle access to the property.   

Ms. Danner said that the Petitioner would like to apply in the September 16th funding round.  Attorney Talerman said that it would be difficult for the Board to render a Decision before the middle of September.  Chairman Robert Nelson said that the Board cannot render a Decision without a definite on the septic system.  Ms. Danner said having to wait for the February funding round would have a negative impact on the Petitioner, but it would be achievable.  

Mr. Walter Abbott from the Affordable Housing Committee said that there is a real need for affordable housing on the Cape.  He said that that the Committee is in favor of the Breezy Acres’ proposal.  He said that very few communities meet the goal of 10% affordable housing.  

Attorney Talerman asked for the Petitioner to submit a copy of the 1987 Comprehensive Permit.  He said that the Petitioner needs to resolve the Fire Department concerns, as well as the wastewater treatment decision.  

Attorney Talerman referred to Mr. Rowley’s report.  Mr. Rowley said that the Permit must be conditioned to allow him an opportunity to study and address details of the plans.  Attorney Talerman said that this will enable Mr. Rowley to have responsibilities post-permit.  Drainage calculations should be submitted prior to the Board granting the Permit.  Mr. Rowley asked about the general configuration and layout and questioned accessibility to the parking from some of the proposed buildings.  In order to submit a consulting report for the Board, Mr. Rowley said that he would like a consensus from the Board that the plan submitted by the Petitioner is the one that he will be working with.

There was a prolonged debate about the location of the buildings.  Mr. Fenuccio assured the Board that the Petitioner will be discussing the building locations, proximity to the street and other concerns with the Fire Department.

Attorney Talerman said that he would draft a Decision to help expedite the Petition process.  

Mr. Furbush moved to continue the Petition until September 1, 2010.  Mr. Blaisdell seconded the motion.  All were in favor.  

Mr. Dorsey moved to adjourn the meeting.  All were in favor.  Meeting was adjourned at 9:00 p.m.

Respectfully submitted,


Cynthia Bartos
Administrative Secretary