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Zoning Board of Appeals Minutes 10/27/2010
MASHPEE ZONING BOARD OF APPEALS
MINUTES
October 27, 2010

The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, October 27, 2010, at the Mashpee Town Hall.  Board Members Robert G. Nelson, Jonathan Furbush, William A. Blaisdell, James Reiffarth and John M. Dorsey and Associate Members Peter R. Hinden and Ronald S. Bonvie were present.  Building Commissioner Richard Stevens was present.  Engineer Charles Rowley was also in attendance as Consultant to the Board.  

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

CONTINUED HEARINGS

First Citizens Federal Credit Union: Requests a Special Permit under Sections 174-25.D(1), 174-25.E(4), and 174-25.F(6) to allow for construction of a bank with office space and drive-through windows on property located in a C-1 zoning district at 71 Job’s Fishing Road (Map 74 Parcel 19B) Mashpee, MA. (Continued from October 13, 2010 to allow Petitioner an opportunity to submit revised plans).

Sitting: Board Members Robert G. Nelson, Jonathan Furbush, William A. Blaisdell, James Reiffarth and Associate Board Member Peter R. Hinden

First Citizens Federal Credit Union: Requests a Variance from Sections 174-31, 174-31 footnote 14, and 174-40 of the Zoning By-laws to vary the front setback requirements, the buffer zone requirements and the accessway requirements in a non-residential district to allow for construction of a bank with office space and drive-through windows on property located in a C-1 zoning district at 71 Job’s Fishing Road (Map 74 Parcel 19B) Mashpee, MA.  (Continued from October 13, 2010 to allow Petitioner an opportunity to submit revised plans).

Sitting: Board Members Robert G. Nelson, Jonathan Furbush, William A. Blaisdell, James Reiffarth and Associate Board Member Ronald S. Bonvie.

Attorney Kevin M. Kirrane represented the Petitioner.  Also in attendance for these Petitions:
        Peter Muise, President/CEO, Director, First Citizens Federal Credit Union
        Frank Almeida, VP, Retail & Marketing, First Citizens Federal Credit Union
        Michael Borselli, Falmouth Engineering
        Robert Morris, New England Design

Mr. Nelson referred to the draft of the Cape Cod Commission Decision on this proposal.  The Cape Cod Commission Decision is scheduled for CCC approval at its November 1, 2010 meeting.  Mr. Nelson said that the Board could use the Commission’s draft with the stipulation that, if any changes are made by the Commission, the Petitioner would have to appear before the ZBA with those changes.  Mr. Nelson also said that the proposal is subject to approval by the Board of Health.

Attorney Kirrane said that the Petitioner has addressed the concerns raised by Engineer Charles Rowley in his site review letter dated October 26, 2010.  Revised engineering plans were submitted to the ZBA office on October 27, 2010.  Revisions include reduction of the proposed width of the drive, elimination of the proposed retaining wall from the southwesterly corner of the site and installation of swales to address runoff issues.  The sidewalk in front of the building will be connected to the sidewalk which will provide handicap access to the building.  

Since the driveway now conforms to the By-law, Attorney Kirrane said that the Petitioner will no longer require a Variance from Section 174-31 footnote 14 or Section 174-40 of the By-laws.  The Petitioner is seeking a Variance from the setback requirements from Job’s Fishing Road and a Variance to allow encroachment into the buffer zone in order to accommodate the drainage treatment and relocation of the overflow reserve pit.  

Mr. Borselli said that Mr. Rowley’s concerns were addressed with the exception of item 6 concerning stormwater and septic system frames, grates and covers, which the Board could condition on approval of the proposal.  Mr. Borselli went through the list of items with Mr. Rowley and the Board.  Mr. Rowley said that he is satisfied with the revised plans and requested a copy of the second sheet of the revised plans for his review.

Detailed landscape plans were delivered to the ZBA office on October 25, 2010, prior to the revised October 27, 2010 engineered plans.  Attorney Kirrane assured the Board that the landscaping will be consistent with the revised engineering plans.   

Mr. Nelson said that a catch basin proposed on the southerly lot line is within the 10-foot buffer zone, which requires a ruling by the Board as to whether or not this is permissible.  He said that the relocated easement for the leaching pits is also within that buffer zone.  Mr. Rowley suggested moving the leaching pits an additional 8 feet, then re-grading to stay outside the 10-foot buffer.  Mr. Nelson mentioned that the Board should grant a Variance for relocation of the easement.

No comments were received from abutters.

Mr. Blaisdell made a motion to grant a Special Permit under Sections 174-25.D(1), 174-25.E(4), and 174-25.F(6) to allow for construction of the proposal.  This is subject to the following:
  • Review by the Cape Cod Commission.  The Petitioner must notify and submit to the ZBA any major changes made to the Cape Cod Commission Decision.
  • Approval by the Mashpee Board of Health.  The Petitioner must notify and submit to the ZBA any changes made by the Board of Health.
This is conditioned upon compliance with the following plans:
  • Falmouth Engineering plan entitled: “Site Plan and Cross Section for #7 Job’s Fishing Road Prepared for First Citizens Federal Credit Union in Mashpee, MA  Plan Date: July 23, 2010, Revision Date 8/10/10, 8/16/10, 8/23/10, 10/12/10, 10/21/10, 10/27/10”.
  • Mary L. LeBlanc landscaping plan entitled: “Landscape Plan First Citizens’ Federal Credit Union  Date: 10-24-10”.  The Petitioner shall submit to the ZBA revised landscape plans which will conform to the site plan regarding the buffer area, location of parking spaces, connection of the walkways and the increase in the radius of the islands.
Mr. Furbush seconded the motion.  Mr. Nelson voted yes.  Mr. Furbush voted yes.  Mr. Blaisdell voted yes.  Mr. Reiffarth voted yes.  Mr. Hinden voted yes.  Motion was passed unanimously.

Attorney Kirrane signed a request for Withdrawal of a Variance from Section 174-31 footnote 14 and Section 174-40 of the Zoning By-laws, which was granted by the Board.  A copy of the Withdrawal will be filed with the Town Clerk and will be attached to the Board’s Decision.  

Mr. Blaisdell made a motion to grant the following:  
  • A Variance of 26 feet from the front setback requirements from Job’s Fishing Road.
  • A Variance to allow for disturbance of the buffer zone along Route 28 and Job’s Fishing Road.  The Petitioner will re-vegetate that area.
This is subject to the following:
  • Review by the Cape Cod Commission.  The Petitioner must notify and submit to the ZBA any major changes made to the Cape Cod Commission Decision.  
  • Approval by the Mashpee Board of Health.  The Petitioner must notify and submit to the ZBA any changes made by the Board of Health.
This is conditioned upon compliance with the following plans:
  • Falmouth Engineering plan entitled: “Site Plan and Cross Section for #7 Job’s Fishing Road Prepared for First Citizens Federal Credit Union in Mashpee, MA  Plan Date: July 23, 2010, Revision Date 8/10/10, 8/16/10, 8/23/10, 10/12/10, 10/21/10, 10/27/10”.  
  • Mary L. LeBlanc landscaping plan entitled: “Landscape Plan First Citizens’ Federal Credit Union  Date: 10-24-10”.  The Petitioner shall submit to the ZBA revised landscape plans which will conform to the site plan regarding the buffer area, location of parking spaces, connection of the walkways and the increase in the radius of the islands.
Mr. Furbush seconded the motion.  Mr. Nelson voted yes.  Mr. Furbush voted yes.  Mr. Blaisdell voted yes.  Mr. Reiffarth voted yes.  Mr. Bonvie voted yes.  Motion was passed unanimously.

Mr. Nelson suggested that copies of the Decisions should be mailed to the Cape Cod Commission, which will be done when the Decisions are filed with the Town Clerk.

Mr. Nelson complimented the Petitioner’s engineers and Mr. Rowley for their prompt work and said that it has been a pleasure dealing with everyone involved in this proposal.  

NEW HEARINGS

Stephen M. and Constance R. Goulet: Request a Special Permit and Finding of Fact under Sections 174-17 and 174-20 of the Zoning By-laws and M.G.L. Chapter 40A Section 6 for permission to demolish a pre-existing, non-conforming structure and replace it with construction of a single-family residence on property located in an R-3 zoning district at 207 Monomoscoy Road (Map 114 Parcel 59) Mashpee, MA.

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

Stephen M. and Constance R. Goulet: Request Variances from Section 174-31 of the Zoning By-laws for permission to vary the front, side and lot coverage requirements in order to demolish a pre-existing, non-conforming structure and replace it with construction a single-family residence on property located in an R-3 zoning district at 207 Monomoscoy Road (Map 114 Parcel 59) Mashpee, MA.

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

Attorney Kevin M. Kirrane represented the Petitioner.  Mr. Stephen Goulet was also present along with the builder, Joao Junqueira of Capewide Enterprises.  Attorney Kirrane said that the non-conforming, undersized lot consists of only 7,723 square feet of land.  It also abuts two streets with 80 feet of frontage on Monomoscoy Road and 95 feet on an undeveloped dirt road known as Overland Road.  This creates a hardship for the Petitioner’s proposal to conform to two front setbacks.  

Attorney Kirrane submitted photos of the subject property and the existing single-story, ranch-style dwelling which was built in the 1960’s.  The existing dwelling does not conform to either of the front setback requirements or the side or rear yard setback requirements.  The existing lot coverage is 25%.  The proposal calls for removal of the carport and reduction of the lot coverage.  The photos of the surrounding homes indicate that the proposal will be similar to other raze-and-replace construction projects on Monomoscoy Road.

The proposed construction will result in a three-bedroom dwelling that will conform to current building codes and will be an improvement to the neighborhood.  The proposal will maintain the same setback from both Monomoscoy Road and Overland Road.  The southwesterly side setback will be improved.  With removal of the accessory structure, the proposal will conform to the rear/side setback requirements.  Lot coverage will be reduced from 25% to 21% lot coverage.  

Parking will be relocated from Monomoscoy Road onto the property with access to the garage from Overland Road.  The Board commented that relocation of the parking area and removal of the unsightly carport will be a vast improvement.

Architect John W. Priestley, Jr. explained the reason for the discrepancy between the lot coverage calculations as shown on the engineer’s plan and on his plan.  Mr. Priestley said that his calculations do not include the outside second-floor staircase, which the engineering plan included as part of the lot coverage.

Building Commissioner Richard Stevens confirmed that the proposed stairway leading to the second level is allowed within the setback area because it is a means of egress.  

Attorney Kirrane respectfully requested a Finding of Fact from the Board that the proposal results in a change that is not more substantially detrimental than the existing non-conforming structure to the neighborhood and that there is adequate land area to provide sufficient parking.  

The Board questioned if the Petitioner needed Conservation Commission or Board of Health approval.  Mr. Junqueiro said that the property is more than 100 feet from the wetlands.  No changes will be made to the existing septic system.  Mr. Junqueiro said that the Petitioner must receive prior approval from all of the appropriate departments in order to apply for the building permit.

No comments were received from abutters.

Mr. Blaisdell made a motion to grant a Special Permit and Finding of Fact under Sections 174-17 and 174-20 of the Zoning By-laws and M.G.L. Chapter 40A Section 6 for permission to demolish a pre-existing, non-conforming structure and replace it with construction of a single-family residence.  The Board’s findings:
  • The change shall not be substantially more detrimental than the existing, non-conforming structure or use to the neighborhood.  
  • There is adequate land area to provide sufficient parking.
This is conditioned upon compliance with JC Engineering, Inc. plan entitled: “Proposed Site Plan at 207 Monomoscoy Road Mashpee, MA  Prepared for: Capewide Enterprises
Date: September 28, 2010”.

Mr. Reiffarth seconded the motion.  Mr. Nelson voted yes.  Mr. Furbush voted yes.  Mr. Blaisdell voted yes.  Mr. Reiffarth voted yes.  Mr. Dorsey voted yes.  The motion was passed unanimously.

Mr. Blaisdell made a motion to grant the following:
  • A Variance of 2.8 feet from the side setback requirements.
  • A Variance of 24.5 feet from the front setback requirements from Overland Road.
  • A Variance of 18 feet from the front setback requirements from Monomoscoy Road.
  • A Variance of 1% from the lot coverage requirements.
This is conditioned upon compliance with JC Engineering, Inc. plan entitled: “Proposed Site Plan at 207 Monomoscoy Road Mashpee, MA  Prepared for: Capewide Enterprises
Date: September 28, 2010”.

The Board’s findings:
  • Because the subject property abuts two streets and has two front setbacks, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the Petitioner.
  • This circumstance affects such land or structures but does not affect generally the zoning district in which it is located.
  • Because the parking will be relocated onto the property, the proposed lot coverage will be reduced, the southwesterly side setback will be improved and the proposal will conform to a rear setback requirement, desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.
This is conditioned upon compliance with JC Engineering, Inc. plan entitled: “Proposed Site Plan at 207 Monomoscoy Road Mashpee, MA  Prepared for: Capewide Enterprises
Date: September 28, 2010”.

Mr. Reiffarth seconded the motion.  Mr. Nelson voted yes.  Mr. Furbush voted yes.  Mr. Blaisdell voted yes.  Mr. Reiffarth voted yes.  Mr. Dorsey voted yes.  The motion was passed unanimously.

CONTINUED HEARINGS

Brian Hyde, Trustee of Krisharl Realty Trust: Requests a Special Permit under Section 174-45.4 of the Zoning By-laws to allow for an existing accessory apartment on property located in an R-3 zoning district at 701 Great Neck Road South (Map 104 Parcel 125) Mashpee, MA.  (Continued from September 22, 2010 at request of Petitioner).

Messrs. Dorsey and Furbush stepped down from this Petition and left the room.  

Mr. Brian Hyde said that he has been a resident of Mashpee for 25 years and has seven children.  He has worked for the Town of Mashpee for the last 22 years and is currently employed by the Town as Assistant Principal of Mashpee High School.  Mr. Hyde said that his lawyer was unable to attend the meeting and respectfully requested a continuance of his Petition until November 10, 2010 to allow his attorney to represent him.  Mr. Hyde said that he did not feel comfortable without legal representation.  

Several abutters were also present.

Mr. Nelson informed Mr. Hyde that Town Counsel has advised the Board that, unless the owner of record is residing in the primary residence on the subject property, the ZBA cannot grant the Special Permit.  Mr. Nelson referred Mr. Hyde to the By-law, which Mr. Blaisdell read into the record:

Ҥ174-45.4. Accessory Apartment. A Special Permit authorizing one accessory apartment per lot may be granted by the Board of Appeals if consistent with the following:
History: Added 10-20-2003 ATM, Article 16, approved by Attorney General 11-14-2003.
A. In order for an accessory apartment to be permitted, in addition to meeting all of the requirements under subsections B-I, the principal dwelling unit shall not be occupied by anyone other than the property owner as listed on the latest recorded deed. On an annual basis coinciding with the initial date of issuance of the Special Permit, the property owner shall submit to the Building Inspector sufficient evidence to demonstrate occupancy of the principal dwelling unit.”

Mr. Stevens provided Mr. Hyde with a copy of the By-law.  

The Board voted to continue the Petition until November 10, 2010 in order for the Petitioner to be represented by his attorney.

OTHER BUSINESS

Accept October 13, 2010 Minutes
Mr. Nelson made a motion to accept the Minutes of October 13, 2010.  Mr. Furbush seconded the motion.  All were in favor.

Mr. Blaisdell made a motion to adjourn the meeting at 8:40 p.m.  Mr. Furbush seconded the motion.  All were in favor.

Respectfully submitted,

Cynthia Bartos
Administrative Secretary
Zoning Board of Appeals.