MASHPEE ZONING BOARD OF APPEALS
November 10, 2010
Minutes
The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, November 10, 2010, at the Mashpee Town Hall. Board Members Robert G. Nelson, Jonathan Furbush, and John M. Dorsey and Associate Member Ronald S. Bonvie were present. Building Commissioner Richard Stevens was also in attendance. Board Members William A. Blaisdell and James Reiffarth and Associate Board Member Peter R. Hinden were not in attendance.
Chairman Robert G. Nelson opened the meeting at 7:00 p.m. He announced to everyone that the hearings were being televised live.
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 (opened, but not heard) from September 22, 2010 and October 27, 2010 Public Hearings at request of Petitioner).
The ZBA office received a fax dated November 10, 2010 requesting Withdrawal of the Petition. Messrs. Furbush and Dorsey stepped down from this Petition. Mr. Nelson said that there would not be a quorum.
Mr. Nelson said that the Board does not want to allow the current violation on the subject property to continue without a public hearing being held. There is a tenant currently residing in the accessory apartment on the property, which is in violation of Section 174-45.4(A) of the Zoning By-laws because the primary residence is not currently occupied by the owner of record.
§174-45.4. Accessory Apartment. A Special Permit authorizing one accessory apartment per lot may be granted by the Board of Appeals if consistent with the following:
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.
The Board would like Town Counsel opinion on whether or not it can Deny the request for Withdrawal. If not, the Board will ask the Building Commissioner to enforce Section 174-102 of the Zoning By-laws.
§174-102. Enforcement Authority; Determination of Violation. This Zoning Bylaw shall be enforced by the Building Inspector who, upon being informed in writing of a possible violation of this chapter, or on his own initiative, shall make a cause to be made an investigation of facts and an inspection of the premises where such violation is alleged to exist. The Building Inspector, after review and inspection as aforesaid, shall make a determination as to whether or not a violation exists. If the Building Inspector determines that a violation exists, he shall give written notice of such violation to the owner and to the occupant of such premises and shall demand that such violation be abated within a reasonable time as designated in the written notice. Such notice and demand may be given either in person or by mail addressed to
the owner at the address appearing on the most recent assessing records of the town and to the occupant at the address of the premises where the violation has occurred.
Attorney Gildea said that the Board should not discuss the Petition and should not act on the Petition given that there is no quorum.
Mr. Nelson said that he has the right, as an individual, to ask the Building Commissioner to conduct an investigation of the violation.
The Petition was continued to December 8, 2010 to allow the Board an opportunity to receive Town Counsel opinion.
NEW HEARINGS
James Regan: Pursuant to Chapter 40A Section 15, James Regan Appeals the Zoning Opinion of the Building Commissioner concerning the property located in an R-3 zoning district at 12 Brookside Circle (Map 108 Parcel 37) Mashpee, MA. Owner of record: Barry J. and Laura J. Marsolais.
Mr. Nelson stepped down from this Petition. There is no quorum. The Petition was continued to December 8, 2010.
Clearwire: Requests a modification of a Special Permit (SP-97-79) under Section 174-45.3(J) to allow for co-location onto the existing wireless communication tower site located in an I-1 zoning district at 154 Industrial Drive (Map 88 Parcel 31) Mashpee, MA. Owner of record: SBA Properties, Inc.
Sitting: Board Members Robert G. Nelson, Jonathan Furbush and John M. Dorsey and Associate Board Member Ronald S. Bonvie.
Mr. Eric Kallio Site Acquisition Specialist of Network Building & Consulting, LLC represented the Petitioner. Clearwire is seeking permission to collocate on the existing tower in order to provide wireless broadband service to the town of Mashpee. The proposal calls for installation of three panel antennas along with six lines on the existing tower. A small equipment box will be installed on the ground. There will be no extension of the tower. Mr. Kallio said that the Cape Cod Commission has determined that the proposal does not fall under its jurisdiction.
Mr. Nelson said that the Petitioner presented the project in extensive detail to Plan and Design Review Committees. He said that the Fire Department was satisfied with answers to safety concerns.
Mr. Kallio said that Clearwire will make site visits of at least once a month for routine maintenance of the site. Mr. Nelson commented that this would not involve a significant increase in traffic in the area.
Mr. Kallio submitted photo simulations of the proposal. The panels are 42 inches in height, 12 to 18 inches in width and 3 to 4 inches in depth. The Board said that the changes will be minuscule compared to the size of the existing structure.
No comments were received from abutters.
Mr. Bonvie made a motion to approve the request for Modification to Special Permit (SP-97-79) to allow for the proposal. This Decision is conditioned upon compliance with Fullerton Engineering Consultants plan - Clearwire Wireless Broadband, Site Name: Cape Cod, Site Number: MA-BRNS004-A, Site Address: 154 Industrial Dr. Mashpee, MA 02649, Project Type: New Wimax Antennas and Equipment Cabinet, Equipment Type: DAP, Date 9/28/10, 10/4/10.
Mr. Furbush seconded the motion. Mr. Nelson voted yes. Mr. Furbush voted yes. Mr. Dorsey voted yes. Mr. Bonvie voted yes. Vote was unanimous.
Mr. Nelson requested Mr. Stevens to look into the 701 Great Neck Road South issue. Mr. Stevens said that Attorney Mark Gildea informed him that the owner was having some difficulty in getting the tenant to vacate the premises. Attorney Gildea indicated that an eviction notice had been delivered to the tenant currently occupying the accessory apartment on the property. Mr. Nelson reiterated that the primary residence is still not occupied by the owner of record; therefore, no one should be occupying the accessory apartment.
OTHER BUSINESS
Accept October 27, 2010 Minutes
Mr. Furbush made a motion to accept the Minutes. Mr. Nelson seconded the motion. All voted in favor.
Voucher
Reimburse Mr. Charles L. Rowley for engineering consulting services provided to the ZBA in connection with the First Citizens Federal Credit Union project at 71 Jobs Fishing Road, Mashpee, MA.
Mr. Bonvie made a motion to reimburse Mr. Rowley in the amount of $855.00. Mr. Dorsey seconded the motion. All voted in favor.
Mr. Bonvie reminded the Board that he will not be able to attend the December 8, 2010 Public Hearings.
Mr. Dorsey made a motion to adjourn the meeting at 7:30 p.m. Mr. Bonvie seconded the motion. All were in favor.
Respectfully submitted,
Cynthia Bartos
Administrative Secretary
Zoning Board of Appeals
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