Skip Navigation
This table is used for column layout.
 
Zoning Board of Appeals Minutes 01/26/2011
MASHPEE ZONING BOARD OF APPEALS
January 26, 2011
Minutes

The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, January 26, 2011, at the Mashpee Town Hall.  Board Members Robert G. Nelson, Jonathan Furbush, James Reiffarth and John M. Dorsey and Associate Board Members Peter R. Hinden and Ronald S. Bonvie were present.  Board Member William A. Blasidell and Associate Board Member Judy Horton were not in attendance.  

Chairman Nelson opened the hearings at 7:05 p.m.  He said that he is glad to be back and extended his thanks to all of the Board Members for all the consideration that they have given him the last two months during his prolonged operation and recovery.  

CONTINUED HEARING

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.  Continued from November 10, 2010 at the request of the Appellant.

Mr. Nelson stepped down from this hearing and left the room.  Mr. Furbush opened the Petition and continued it to February 9, 2011 due to the absence of the Building Commissioner, whose Zoning opinion is being appealed.  Mr. Furbush apologized for the inconvenience.  Mr. Nelson returned to the room.

NEW HEARINGS

Ronald and Cheryl Bloom:  Request a Special Permit under Section 174-25.I (9) of the Zoning By-laws to allow for construction of a pier, ramp and float that will extend across a total of more than 70 feet of coastal beach, coastal bank, salt marsh or bordering vegetated wetlands on property located in an R-3 zoning district at 176 Daniels Island Road (Map 100 Parcel 17) Mashpee, MA.

Sitting:  Board Members Robert G. Nelson, Jonathan D. Furbush, James Reiffarth, and John M. Dorsey and Associate Board Member Peter R. Hinden.

Mr. Michael Borselli, an engineer from Falmouth Engineering, represented the Petition.  He stated that the homeowners wish to construct a private, recreational pier, ramp and float on the subject property.  The proposal will be constructed of timber and pile-supported by 10-inch diameter pilings that will be spaced 18 feet on center with a four-foot wide walkway.  This will be elevated above the salt marsh to provide for public access underneath in accordance with the provisions of Chapter 91.  This will also allow for adequate sunlight penetration under and around the structure to prevent shading of the salt marsh.  Fifty-percent sunlight-penetration decking material will also be used.  Plans call for a 16-foot long ramp with an 8x20-foot float.  Mr. Borselli said that the length of the structure is necessary due to the shallow water depth.  The proposal has received Conservation Commission and Shellfish approval.  

Mr. Furbush questioned when the structure will be built.  Mr. Borselli said that the Petitioner hopes to start construction in the early summer.  Mr. Furbush expressed concern with safety issues since the parcel has not yet been developed.  Mr. Nelson suggested that the Board condition the Special Permit to be issued after construction of the dwelling and after obtaining state approval.  Mr. Borselli said that would not present a problem for the Petitioner.

Mr. Joseph Colasuonno, a direct abutter at 27 Sand Dollar Lane, said that he was concerned about the close proximity of an existing mooring with a sailboat to his dock.  He said that navigation is very difficult through the narrow channel.  Mr. Colasuonno said that he has no problem with the proposal, but would like to have the mooring moved to allow for easier navigation.  The Board said that he should bring this matter up with the Harbormaster.   

No other comments were received from abutters.

Mr. Reiffarth made a motion to grant the Special Permit.  This Special Permit is conditioned upon compliance with the following:  
  • The building permit for this Special Permit will not be issued until after the Certificate of Occupancy permit for the dwelling has been issued.  
  • Falmouth Engineering plan entitled: “Proposed pier, ramp and float for #176 Daniel’s Island Road Prepared for Ron & Cheryl Bloom in Mashpee MA. Plan date: October 26, 2010”.  
Mr. Nelson seconded the motion.  Mr. Furbush voted yes.  Mr. Dorsey voted yes.  Mr. Hinden voted yes.  Mr. Reiffarth voted yes.  Mr. Nelson voted yes.   

Thomas J. and Deborah L. Perry:  Request a Special Permit under Section 174-45.4 of the Zoning By-laws for permission to construct an accessory apartment to an existing dwelling on property located in an R-5 zoning district at 6 Autumn Drive (Map 22 Parcel 10B) Mashpee, MA.

Sitting:  Board Members Robert G. Nelson, Jonathan D. Furbush, James Reiffarth, and John M. Dorsey and Associate Board Member Ronald S. Bonvie.

Mr. and Mrs. Thomas J. Perry represented the Petition.  Mr. Perry stated that he and his wife have owned the home since 1990.  They would like to convert part of the existing space in the walk-out basement into an accessory apartment.  Mr. Perry submitted photos of the dwelling and clarified details of the plan for the Board.  Mr. Perry said the home was originally built with two bedrooms in the upper level and one bedroom with a bathroom in the basement.  Mr. Perry said that plans call for addition of a kitchen in the basement.     

The proposal has received Design Review and Plan Review Committee approval with conditions.  The Board of Health has restricted the dwelling to three bedrooms.  At 525 square feet, the gross floor area of the accessory apartment will exceed the required minimum of 300 square feet and will be less than the allowed 40% of the gross floor area of the structure.   

Mr. Nelson mentioned the three issues raised at the Design Review Committee meeting.  The Petitioner delivered a certified plot plan.  Mr. Perry said that he will address the second issue and change the fire alarm system and it will meet carbon monoxide codes.  The third issue concerning the second means of egress must receive Building Department approval.

Mr. Nelson expressed concern with parking and said that he would like to restrict use of the driveway from Attaquin Street.

No comments were received from abutters.

Mr. Reiffarth made a motion to grant the Special Permit.  The Special Permit is conditioned upon compliance with the following:
  • use of the driveway from Attaquin Street will be restricted to use by the current residents only (prohibiting tenant parking from Attaquin Street entrance).
  • installation of a fire alarm system which will meet carbon monoxide codes.
  • Building Department approval of the second means of egress.
  • Down Cape Engineering plan entitled: “Site Plan of Land in Mashpee, MA #6 Autumn Drive Prepared for Thomas & Deborah Perry Date 1-22-2011”.
Mr. Dorsey seconded the motion.  Mr. Furbush voted yes.  Mr. Bonvie voted yes.  Mr. Reiffarth voted yes.  Mr. Nelson voted yes.  Mr. Dorsey voted yes.   

Hatem Enterprises Nominee Trust:  Requests a Modification of a Special Permit SP-00-215 and/or a Finding of Fact under Section 174-17 of the Zoning By-laws (for a continuance, extension, alteration to a pre-existing, non-conforming structure) which will allow for replacement of an existing canopy and fuel pumps with installation of a new canopy, new fuel pumps, and a new kiosk on property located in an I-1 zoning district at 723 Falmouth Road (Map 81 Parcel 2) Mashpee, MA.  

Sitting:  Board Members Robert G. Nelson, Jonathan D. Furbush, James Reiffarth, and John M. Dorsey and Associate Board Member Ronald S. Bonvie.

Hatem Enterprises Nominee Trust: Requests a Modification of a Variance V-00-215 to allow for replacement of an existing canopy and fuel pumps with installation of a new canopy, new fuel pumps, and a new kiosk on property located in an I-1 zoning district at 723 Falmouth Road (Map 81 Parcel 2) Mashpee, MA.~~

Sitting: Board Members Robert G. Nelson, Jonathan D. Furbush, James Reiffarth, and John M. Dorsey and Associate Board Member Ronald S. Bonvie.

Attorney Mike Ford represented the Petitions.  The Petitioner, Mr. Hatem was also present.  Also representing the Petitions were the following employees of the engineering firm Vanasse Hangen Brustlin, Inc. of Watertown, Massachusetts:
  • Randall C. Hart, Principal and Director of Transportation Planning & Engineering.
  • Taylor Dowdy, Senior Project Engineer.
  • William S. Taber, Senior Project Manager.
Attorney Ford was the first to address the Board and said that Mr. Hatem is the owner of the subject property and Johnny’s Tune and Lube on the site.  Plans call for replacement of the existing three pumps with installation of four pumps which will accommodate eight cars at a time.  The proposal calls for upgrade of the tank and piping system.  The canopy and pumps will be placed perpendicular to the street, which will improve the layout and access to the pumps, ingress and egress, and will expedite deliveries.  An attendant will be on site inside a small kiosk in the middle of the canopy, but the gas pumps will be self-serve.  

Deputy Fire Chief Sheldon Hamblin sent a memo indicating that the proposal satisfies fire truck maneuvering requirements.  

The existing septic system is properly sized to allow for the additional pump.  The Board of Health sent a memo concerning this Petition to the Board which reads:
        “The applicant must provide a letter from a Registered Professional Engineer
        stating the existing soil absorption system will accommodate
        the proposed increase in flow.  A septic inspection is also required”.  

Attorney Ford said that the Petitioner is in the process of receiving Board of Health approval.  

Mr. Taylor Dowdy said that the existing stormwater system will capture any water before it drains onto Route 28.  This water will be diverted into deep sump catch basins going into underground leaching chambers.

Attorney Ford said that Mr. Hatem’s long-term goal is to operate the service garage only and is considering the possibility of leasing the gas-dispensing operation to another user.  Mr. Bonvie expressed concern with traffic problems and queuing if the property is operated by two different owners with two separate operations.  Mr. Randall C. Hart said that the fueling facility and the service garage are complementary uses.  He said that the proposal provides 28 feet between the face of the building and the back of the kiosk.   State law prohibits customers from backing vehicles out of the service bays.  This will be performed by Hatem employees of the service garage, which will ensure safe exiting from the bays.  Mr. Hart said that creating eight fueling positions perpendicular to Route 28 allows for better stacking and will minimize congestion.  Mr. Dowdy said that this layout is larger than normal and is acceptable for the proposed use and the anticipated volume of business.

The Petitioner has received both Plan Review and Design Review Committee approval for the proposal.  Mr. Nelson said that the landscaping also requires Design Review approval.  The January 18, 2011 combined meeting of Design Review and Plan Review Committees and Minutes are attached to the Minutes.

Mr. William S. Taber detailed the proposed environmental safety features.  Plans require upgrading to the latest materials for gasoline fueling facilities.  Some of the features include double-walled, non-corrosive, underground storage tanks with a brine-filled space with sensor monitors.  The tanks have fiberglass containment solutions and have a 30-year warranty.  Double-walled, non-corrosive piping will also be installed.  Continuous monitoring systems will be installed to monitor the sumps, the brine and the piping.  Vapors displaced by the fuel tankers during filling will be diverted back into the tanker truck.  Vapors displaced by fueling customers will be drawn back into the system.  Overfill protection will prevent spillage from the tanker to the tanks.  Spill containment manholes will collect any losses from the tanker hoses.  

Mr. Taber said that Massachusetts Law requires a self-serve station to have an attendant on site during all hours of operation.  The system will not operate unless an attendant authorizes and activates the fuel dispensers.  In addition, the fuel pumps have line leak detectors which sense any pressure loss and will shut down the dispenser pumps.  Dispenser shear valves on the fuel pumps will close the line in the event of a fire or impact.  Dispenser hose break-away valves prevent vehicles from being driven away with a pump hose attached to the vehicle’s gas tank.  Dispenser sumps will have sensor monitors.  Positive limiting barriers around each fuel pump dispenser are designed to contain as much as 10 gallons of spilled gasoline.  Monitoring wells will be installed on both ends of the tank.  Emergency shut-offs will be placed on each dispenser.  There is a panic button next to the cash register inside the kiosk.  A camera system will be installed to monitor all of the fuel pump locations.  A fire-suppression system (both automatic and manual) inside the canopy will engage in the case of a fire.  Mr. Taber said that a dry powder, silica-type material used for fires works very efficiently.  He said that the substance is inert, very sticky and coats everything.  A spill response kit will be maintained on site.  

Mr. Taber said that in the event of spills greater than 10 gallons, the Mass. DEP and Fire Department must be notified within several hours.  The DEP will also make an on-site visit to ensure clean up.  Mr. Bonvie suggested that the Board should condition a regular maintenance program of the sump catch basins and hoods within the catch basins.  Mr. Dowdy assured the Board that the owner is required to conduct ongoing maintenance of the sumps catch basins.

Mr. Nelson said that the Petitioner should receive Board of Selectmen approval before the ZBA can act if plans call for a change in the size of the tanks.  Attorney Ford said that ZBA approval is contingent upon upgrading and meeting state requirements and that he was advised to start with the ZBA.  He said that the proposal will go to the Fire Marshall, the Fire Department and the Board of Selectmen only if the Petitioner gets approval from the Special Permit granting authority, the ZBA.  
Attorney Ford referred to the stormwater management report conducted by Vanasse Hangen Brustlin, Inc.  Attorney Ford also referred to the traffic report and asked if the Board had any questions.  The Board said it would need more time to study the report.

Mr. Dowdy said that the air pump will be placed where the vending machine is located on the plan.  Mr. Taylor said that there would probably be a coin-operated vacuum installed in the same area.      

Mr. Nelson felt that it was unusual for one person to be running a repair shop and another person running the gasoline pumps.  He said that the Board could grant a change to the property specifically with Mr. Hatem in mind; and if in the future Mr. Hatem decides to lease the pump to someone else, he could come back before the ZBA to request permission for that end user.  Attorney Ford said that it is perfectly legal for a fuel-dispensing business to be operated as a different entity, particularly in the self-serve business.  He said that Mr. Hatem would remain the owner of the subject property and would retain responsibility for all operations and actions of the tenant.

Attorney Ford said that sale of items such as cigarettes, window wash and motor oil is accessory to the business.  No large retail sales are planned.  He said that the Board can condition/restrict retail sales by the Petitioner on the property.  

Mr. Reiffarth questioned the adequacy of the proposed parking and suggested adding two more parking spaces next to the handicapped parking space.  Based on many years of experience, Mr. Hatem feels that the proposed parking is adequate; however, the engineers said they would look into the possibility of adding more parking.  Mr. Furbush said that the more parking is always better.  Attorney Ford said that removing a large portion of pavement not being utilized and replacing it with landscaping would improve the impervious condition on the site.
  
Attorney Ford said that the parking table references an apartment which does not exist and the plans will be revised to reflect that.    

Mr. Nelson opened the Hearing to public comment.  

Ms. Courtney O’Connor of 22 Black Watch Way said that she is in support of the proposal.  She is a frequent customer and said that it’s nice to see a local business owner making improvements to his business.

Mr. Justin Rykers of Brewster operates a landscaping business and said he was very enthusiastic about the proposal.  He is a regular customer and said that the perpendicular parking will be more convenient and safer for him when he is hauling his landscape trailers.

Ms. Kathleen Creedon from Cape Cod Healthcare expressed her support of the proposal.  She said that she and many of her co-workers frequent the gas station, which offers great customer service and convenience at a great price.  Ms. Creedon said that she would not mind pumping her own gas.

Mr. Nelson said that the business will lose a few customers with elimination of full service.  Attorney Ford mentioned that gas station attendants are required by law to assist a customer who has a handicapped license plate or placard.

Mr. John Rosengren of Orleans said that he is in Mashpee often and that the proposed changes will be of benefit to the environment and hopes that the Board votes in favor of it.

Mr. Dale Weissman of 2 Shipwreck Drive said that he is in favor of the proposal and gets his gas and inspection stickers at the station.

Mr. Michael Gibbons of Orleans said that he is frequently in Mashpee and is a loyal customer of Johnny’s and supports the proposed changes.  

Mr. Christian Rykers of Brewster said that he is frequently in Town and is encouraged by the proposed environmental improvements and safety features to the property.

Mr. Furbush made a motion to continue the Petitions until February 23, 2011 to allow the Board an opportunity to read the traffic and stormwater management reports.  Mr. Reiffarth seconded the motion.  Mr. Dorsey voted yes.  Mr. Furbush voted yes.  Mr. Bonvie voted yes.  Mr. Reiffarth voted yes.  Mr. Nelson voted yes.

OTHER BUSINESS

Mashpee Wampanoag Tribe Housing Project:  Distribute documents: MEPA Site Visit, Environmental Notification Form, Cape Cod Commission Report.

Minutes:  
Accept December 8, 2010 Minutes.  
Mr. Furbush made a motion to accept the December 8, 2011 Minutes.  Mr. Hinden seconded the motion.  Mr. Dorsey voted yes.  Mr. Furbush voted yes.  Mr. Bonvie voted yes.  Mr. Reiffarth voted yes.  Mr. Nelson voted yes.  Mr. Hinden voted yes.

Discussion:  Designate alternate ZBA Member to attend Design and Plan Review Committee Meetings during Chairman’s absence.
Mr. Nelson said in the absence of the Chairman, the Vice-Chairman acts in the same capacity as the Chairman.  Section 174-48 of the Zoning By-laws states that the Chairman of the ZBA shall appoint a ZBA member to the Design Review Committee.  Mr. Nelson said that it has become obvious that the ZBA needs an alternate to attend Design Review Committee meetings.  This alternate shall be sworn in by the Town Clerk.   Mr. Bonvie agreed and said that the Design Review and Plan Review Committees were implemented to expedite the process for applicants and for Town Boards and Committees to offer input before they get to the ZBA.  Mr. Bonvie suggested that the ZBA appoint another alternate in the event that the Chairman and Vice-Chairman are unavailable.  Mr. Bonvie reiterated that it would be very unfair if an Applicant appeared before the ZBA with the impression that he had received Design Review and Plan Review Committee approval only to be told that the ZBA wants to make further changes to the proposal.

The Design Review Committee is advisory to the Building Inspector, Planning Board and ZBA.  Mr. Nelson suggested that Mr. Furbush be appointed to the Design Review Committee as an alternate in Mr. Nelson’s absence.  He also suggested that the appointment should run until the end of June 2011.  He proposed that a Design Review alternate should be appointed when the ZBA reorganizes in the first meeting of July and that appointment should run for three years.

Mr. Nelson said that the ZBA member does sit in on the Plan Review Committee Meetings, but does not have a right to vote on Plan Review nor has a right to make a motion.  

Mr. Nelson moved to adjourn the meeting.  Mr. Hinden seconded motion.  Mr. Dorsey voted yes.  Mr. Hinden voted yes.  Mr. Reiffarth voted yes.  Mr. Nelson voted yes.  Mr. Bonvie voted yes.

Respectfully submitted,

Cynthia Bartos
Administrative Secretary
Zoning Board of Appeals