MASHPEE ZONING BOARD OF APPEALS
February 9, 2011
Minutes
The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, February 9, 2011, at the Mashpee Town Hall. Board Members Robert G. Nelson, Jonathan Furbush, James Reiffarth, William A. Blaisdell and John M. Dorsey along with Associate Board Members Ronald S. Bonvie and Judith Horton were present. Building Commissioner Richard Stevens also attended the meeting. Associate Board Member Peter R. Hinden was unable to attend.
Chairman Robert G. Nelson opened the meeting at 7:00 a.m.
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.
Sitting: Board Members Jonathan Furbush, William A. Blaisdell, John M. Dorsey and James Reiffarth and Associate Board Member Ronald S. Bonvie. Mr. Robert G. Nelson stepped down from this Petition.
Attorney Mark Gildea represented the Appellant who also attended the meeting. Attorney Gildea claimed that the Building Commissioner made a mistake with the above-referenced Opinion. Attorney Gildea submitted copies of a cluster subdivision plan approved in 1984 and an aerial photograph of the subdivision. He said that construction of a dwelling on the lot should be behind the ‘BL’ line as indicated on the plan. Attorney Gildea maintains that ‘BL’ means Building Line.
Attorney Gildea referred to Section 9.42 of the By-law concerning Exception for Cluster Development which states: “The minimum lot width at the building line shall be not less than one hundred (100) feet.” Attorney Gildea said that the owner of the subject property should not be able to build within the building line. Correspondence dated September 16, 2010 sent by Building Commissioner Richard Stevens to Attorney Gildea reads: “The current setbacks for Cluster Subdivisions in the Town of Mashpee are 30 feet from the front, 15 feet on the sides and 20 feet at the rear. These are the only setbacks I would be able to enforce under the Town of Mashpee Zoning Bylaws.” Attorney Gildea said that the ‘BL’ line shown on the plan should be enforced as a Building Line.
Attorney Gildea stated that the owner of the subject property has received approval from the Conservation Commission and is in the process of obtaining DEP approval. Attorney Gildea asked the Board to interpret the subdivision plan as approved as a cluster zoning and require that any structure should be placed behind the building line.
Mr. Furbush stated that the developer sold the lot as a buildable lot and that the current owner has been paying taxes on the lot for years and should be allowed to build. Attorney Gildea countered that he wasn’t saying that the lot could not be developed, but that the owner should be required to adhere to the subdivision plan as approved by the Planning Board and as recorded at the Registry. Mr. Bonvie said that the owner could consider requesting a Variance from the ZBA in order to build on the lot.
Mr. Bonvie suggested that the Petitioner should investigate what the Planning Board meant by the initials “BL.” Mr. Furbush said he has not come across anything in the Zoning By-law that refers to a building line. Attorney Gildea agreed, but asked the Board to require the owner to comply with the approved plan.
Building Commissioner Richard Stevens said that there is no definition in the Zoning By-laws about a building line. He said that he can only enforce the setback requirements for a cluster subdivision, 30 in the front, 15 on the sides and 20 in the rear. The owner of the subject property has not even applied for a Building Permit yet.
Attorney Gildea quoted Section 174-21.D of the Zoning By-laws, which states: “Building lots in cluster subdivisions created under previous provisions of the Mashpee Zoning By-Law not requiring a special permit may be developed pursuant to the lot size, frontage and setback regulations applicable to the original approval of said subdivision, but subject to any other currently applicable provisions of this by-law.” Attorney Gildea said that other developed lots in the subdivision have constructed behind the ‘BL’ line. Mr. Bonvie said that there is a substantial difference between “maybe” and “will be”. He suggested that the word “maybe” indicates that it is up to the Building Commissioner’s interpretation which By-law requirements should be applied.
Mr. Stevens said that the subject property is a buildable lot, but the owner has not applied for a Building Permit. Mr. Reiffarth pointed out that the three abutting lots are twice the size of the subject property and could easily comply with the 60-foot setback. He said that the owner of the subject property has a significant hardship to conform to the 60-foot setback.
Attorney Kevin M. Kirrane represented Mr. and Mrs. Marsolais, owners of the subject property. He said that he agrees with the Building Commissioner and that the setback requirements as set forth in the By-laws should be enforced. Attorney Kirrane said that Section 9.42 requires certain restrictions on lot developments in a cluster subdivision. The first items of the Section set out the creation of the plan and Provisions 8 and 9 define the construction of a dwelling. He suggested that the intent of having the ‘BL’ line on the plan is to demonstrate (in a cluster development with undersized lots and reduced frontage) that the subject lot, particularly on a cul-de-sac, has sufficient width and shape to enable a building to be placed on that lot consistent with the requirements of the Zoning By-law
– 30 feet from the front, 15 side and 20 rear setbacks. Attorney Kirrane reiterated that there is no definition in the Zoning By-laws for a building line. He said that if ‘BL’ was intended to be the setback line when the Plan was approved, then the lots would be required to be 100 feet wide.
Attorney Kirrane said that the Conservation Commission has approved plans for a three-bedroom dwelling which does comply with the 30-foot front setback requirements on the subject property. The Rivers Protection Act also restricts placement of the dwelling. The Rivers Protection Act is to protect the commonwealth's rivers, streams and adjacent lands, which is necessary for the immediate preservation of the public convenience.
Mr. Blaisdell made a motion to grant the Appeal of the Building Commissioner’s Opinion. Mr. Reiffarth seconded the motion. Mr. Blaisdell voted no. Mr. Bonvie voted no. Mr. Reiffarth voted no. Mr. Furbush voted no. Mr. Dorsey voted no. Petition was unanimously DENIED.
NEW HEARINGS
Martin K. and Kathleen A. Clark: Request a Special Permit under Section 174-45.4 of the Zoning By-laws to legalize an existing accessory apartment on property located in an R-3 zoning district at 76 Cayuga Avenue (Map 58 Parcel 17) Mashpee, MA.
Sitting: Board Members Robert G. Nelson, Jonathan Furbush, William A. Blaisdell, John M. Dorsey and James Reiffarth.
Mr. and Mrs. Clark represented their Petition and said they are the new owners of the subject property. They submitted photos along with a hand-drawn rendition of the existing accessory apartment. Mr. and Mrs. Clark are seeking a Special Permit for the accessory apartment in their name which will be recorded at the Barnstable County Registry of Deeds.
Mr. Nelson read the Board of Health memo which states that the existing leaching system will accommodate a 5-bedroom dwelling. He said there is no need for the Petitioner to appear before Design Review and Plan Review. The Fire Department and the Building Department are requesting a re-inspection of the accessory apartment, for which there will be no charge.
No comments were received from abutters.
Mr. Blaisdell made a motion to grant the Special Permit contingent upon successful completion of a re-inspection by the Fire Department and the Building Department. Mr. Furbush seconded the motion. Mr. Blaisdell voted yes. Mr. Reiffarth voted yes. Mr. Dorsey voted yes. Mr. Nelson voted yes. Mr. Furbush voted yes. Petition was unanimously granted.
Habitat for Humanity of Cape Cod, Inc.: Requests a Comprehensive Permit under Massachusetts General Laws Chapter 40B to allow for construction of a single-family home on property located at 24 Russell Road (Map 120 Parcel 129A - tentative address contingent upon final ZBA approved plan) Mashpee, MA. Owner of record: John L. West and Cynthia J. West.
Sitting: Board Members Robert G. Nelson, Jonathan Furbush, William A. Blaisdell and John M. Dorsey and Associate Board Member Ronald S. Bonvie. Board Member James Reiffarth stepped down from this Petition.
The following letter from Attorney Robert Finnegan was read into the record:
In response, Mr. Nelson said: “To the best of my knowledge, all Town Boards have conformed to the Open Town Meeting Rules. I know of nobody on any Board that has violated anything up to the moment, despite what the client says here”.
Attorney Warren Brodie represented the Petition. Habitat for Humanity of Cape Cod, Inc. Past President Donald Dickinson and Executive Director Vicki Goldsmith attended the meeting. Mr. and Mrs. West, owners of the subject property, were also present.
Attorney Brodie said that Habitat for Humanity of Cape Cod, Inc. (The Petitioner) is a non-profit corporation and a 501(c)3 charitable corporation under Federal statutes. He said that The Petitioner has built over 70 homes on Cape Cod in the last 20 years.
The Petitioner and Mr. and Mrs. West have entered into a conditional purchase and sale agreement for purchase of a portion of the subject property for a sum of $25,000. The Petitioner is requesting waivers of any ZBA fees. The West family resides on the subject property along with tenants in the accessory apartment in the dwelling.
The Petitioner’s application for Community Preservation Committee funds to fund the purchase of the property from the West family was denied.
The Petitioner has received a letter in support from the Mashpee Board of Selectmen which is a prerequisite to filing a Project Eligibility Letter under the Local Initiative Program (LIP) of the Department of Housing and Community Development (DHCD). DHCD approved the project on November 15, 2010 for project eligibility under the LIP, thereby providing The Petitioner with a subsidy required by the Comprehensive Permit statute. Under LIP, The Petitioner must also demonstrate that the development will be consistent with local needs.
Attorney Brodie said that the West family obtained approval from the Planning Board for subdivision of the subject property. Subdivision of the property will create two lots with one consisting of 40,000 square feet of land and the other consisting of 10,059 square feet of land. The Petitioner is requesting relief from Section 174-31 of the Zoning By-laws concerning lot size requirements to allow for construction of the Habitat home. Attorney Brodie stated that the proposed lot would have 150 feet of required frontage on Russell Road and will meet the setback requirements. He said that creation of the small lot will be adequate for construction of a one-story, three-bedroom, 1,324 square-foot home with two parking spaces.
Attorney Brodie said that several of the lots directly across from the subject property are smaller than the proposed lot. He said that the proposed construction is more than 100 feet from the wetlands and the flood hazard zone. Attorney Brodie said that The Petitioner believes that the development is appropriate for the neighborhood which is a mixture of small, medium and large houses.
The Board of Health memo sent to the ZBA stating that plans have been approved for a three-bedroom dwelling with a proposed conventional Title V septic system.
If approved, the constructed house will be sold for $125,000 and will be designated as affordable housing for a family earning a maximum of 65% of the median income of Barnstable. The Petitioner is the mortgagee. The home will remain affordable in perpetuity. It cannot be rented. The Petitioner requires that the home must be properly maintained. Another requirement is that the family purchasing the home must contribute “sweat equity” into the construction - 250 hours for a single-parent family and 500 hours for a two-parent family.
Attorney Brodie said that Community Preservation Funds received by The Petitioner will be used to construct the home, not to purchase the lot.
Mr. Nelson said that the site plan referred to as Exhibit A in the Petition is incorrect and shows that Lot 1 contains 11,642 square feet and Lot 2 contains 40,028 square feet. He said the site plan is entirely different from the plan being submitted to the Board now. Mr. Nelson said that Lot A must have a minimum of 40,000 square feet of upland. He also pointed out the discrepancy between the plan and the deed referred to in the Petition. The Board requested a plan showing the location of the upland on the subject property. Mr. Nelson said that Engineer Rob Sykes submitted a plan of the subject property to the ZBA in 2007 which shows a total of 51,670 square feet. The current plan submitted by Mr. Sykes shows that the property consists of 50,059 square feet of land. Mr. Nelson said that the
older plan corresponds with the deed.
Mr. Donald Dickinson said that the parcel was re-surveyed and the plan was approved in August 2010 by the Planning Board. Mr. Nelson said that the property has been registered land from the beginning. The land court defined the distance on Monomoscoy Road and Russell Road and the property bordering the Hynds’ property. At the end of the property, the Land Court refers to it merely as open water. Mr. Nelson commented that it is very unusual for the Land Court to leave a property open and reiterated that The Petitioner must submit a plan that shows the location of the upland line.
Mr. Nelson said that the 150 feet of frontage is not required under a Chapter 40B Comprehensive Permit because the Board could decide to waive that requirement. He said that the proposed 10-foot x 61-foot strip of land will be worthless to the potential buyer. He suggested a revision of the plan with removal of the 610-foot strip, which would enable The Petitioner to locate the proposed house 30 feet from Monomoscoy Road. Attorney Brodie claimed that The Petitioner was advised by the Town Planner to include that pork-chop strip on the plan in order to receive Planning Board and ANR approval. He said that The Petitioner would have no problem revising the plan.
Mr. Nelson pointed out that the plan shows a portion of the travel way on Monomoscoy Road as actually lying inside the subject property. He said that he discussed the issue with DPW Director Catherine Laurent. The ZBA and DPW will meet with Town Counsel on February 18, 2011 to discuss this Petition.
Mr. Nelson said that the plan shows a portion of the neighbor’s (Mr. and Mrs. Hynds) driveway lies within the subject property. Mr. Nelson inquired whether an agreement was being pursued between The Petitioner and the neighbors to allow the Petitioner to use a portion of the Hynds’ driveway. He also said that he sees no reason for the Board to approve the proposed shed.
Mr. Furbush said that the lots across the street from the subject property may be smaller than what is proposed, but they are older lots that are most likely grandfathered. Mr. Blaisdell agreed that those lots are pre-existing, non-conforming and predate zoning. He said that The Petitioner is creating a new, non-conforming lot. Mr. Nelson said that the ZBA must abide by the 40,000 square-foot minimum lot size as voted for and passed at Town meeting.
Mr. Nelson said that the West family withdrew their request in 2007 when it became apparent that the Board was not going to grant a Variance to allow for subdivision of their parcel of land. Mr. Nelson said that the West’s have come back with this idea and are deliberately creating an undersized lot. He said that it sets a bad precedent and the Board is not looking for more Petitioners to do the same in the name of providing affordable housing. Mr. Furbush said that he is not aware of the ZBA ever having created a new, non-conforming lot. Mr. Nelson agreed and said that he has never voted in favor of one in his 17 years on the Board. Attorney Brodie argued that this is exactly what Chapter 40B was intended for. Mr. Nelson countered that landowners on Monomoscoy Road have combined lots to increase
the size of the lot, but this is the first time that somebody has subdivided a lot to decrease the size of their lot.
Mr. Nelson referred to the Board of Health memo and Attorney Brodie assured the Board that BOH concerns have been resolved.
Mr. Nelson read the following list of abutters/neighbors who have signed in opposition to the proposal:
Daniel Bohnenberger 43 Riverside Road
Kris Bohnenberger 47 Riverside Road
Raymond Perry 37 Riverside Road
Paula Haynes~ 345 Monomoscoy Road
William Simmons 339 Monomoscoy Road
Rebecca Zuwallack 314 Monomoscoy Road
Steven Hynds 333 Monomoscoy Road
Marie Brako 24 Hamblin Road
Nicholas Ashford 322 Monomoscoy Road
Mr. Nelson read the following list of abutters and others who support the proposal:
Patricia Kirby (now deceased ) 26 Russell Road
Joan Bourget (now deceased) 33 Russell Road
Cindy Bourget 33 Russell Road
Joan Dillon 29 Russell Road
Edmund and Rosemary O’Rourke 37 Great River Road
Mike and Shirley Granfield 91 Monomoscoy W. Road
Nina and Jim Hanks 362 Monomoscoy Road
George Leach 30 Overland Road
Deb (Spohr) Martin 328 and 338 Monomoscoy Road
Nancy Hood 222 Monomoscoy Road
Jerome and Patti Hart 305 Monomoscoy Road
Ken and Trish Parolski 351 Monomoscoy Road
Michael Lemish 42 Great River Road
Connie and Steve Goulet 207 Monomoscoy Road
Bob Sherman Former resident and Mashpee Conservation Agent
Steven Pinard Mashpee Project Manager of water sampling program
John and Cindy West 26 Russell Road – owners of the subject property
Tom Kirby 26 Russell Road – tenants of 26 Russell Road accessory apartment
Mr. Nelson read the following letter dated September 27, 2010 from the Department of Housing and Community Development:
“Please be advised that the Mashpee Board of Selectmen on Monday September 23, 2010, by a vote of 4-1, agreed to support the Local Initiative Program application of Habitat for Humanity for property identified as 12 Russell Road, Mashpee, Massachusetts. The Town has agreed to waive fees for all permits upon purchase of the property by Habitat for Humanity.”
Correspondence from abutters and others approving the proposal:
Sent: Monday, December 20, 2010 11:45:15 AM
Subject: Re: Request for Habitat Support
Hi John and Cindy,
Nina and I have read your letter and investigated more details about the Habitat for Humanity program. The organization seems to have taken several steps to insure that recipients of the housing will be a positive force in the community. The fact that the owners are required to put in many hours of "sweat equity" makes us feel that they will take pride in their new housing, maintain it, and hopefully wish to participate in community activities.
We therefore support the project you propose.
Best regards, Nina and Jim Hanks
362 Monomoscoy Rd.
Mashpee, MA 02649
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12/29/2010
To Mashpee Zoning Board
Please accept this letter in support of the Habitat for Humanity project being proposed on John and Cindy West property located at Russell Rd on Monomoscoy Island. I am a full time resident of Monomoscoy Island and life long summer resident, 3rd generation. I fully support the proposal and the work Habitat is doing in Mashpee. I am currently a Habitat volunteer at both the Lakewood and Fox Hill Rd construction sites in Mashpee and I look forward to working on this project in my neighborhood.
Thank you
George Leach
30 Overland Rd
Mashpee Ma
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John & Cindy,
Best of luck with your project.
Mike & Shirley
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December 23, 2010
John and Cindy:
We read the article in THE MASHPEE ENTERPRISE and also received your email regarding the Habitat for Humanity house that is being planned for construction at the corner of Russell and Monomoscoy Roads. We agree that the project will be “an asset to our community” and would like to extend our support for the project at the upcoming public hearing with the Mashpee Zoning Board.
We are familiar with Habitat for Humanity since we are friendly with several people who volunteer for that agency. We feel strongly that there is a great need for affordable housing in Massachusetts, especially given the current state of our economy.
Good luck with this endeavor!
Edmund and Rosemary O’Rourke
37 Great River Road
Mashpee, MA 02649
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January 11, 2011
Dear Mr. Chairman:
Please accept this as a letter supporting the proposed project at 26 Russell Road, Mashpee. The property is owned by John and Cindy West and is a proposed location for a Habitat for Humanity home. We support the owner's right to develop private property.
Our home is located at 305 Monomoscoy Road, which is located two homes away from the proposed project.
Thank you for your attention and consideration with this letter of support.
Very truly yours,
Jerome and Patricia Hart
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To: The Mashpee Board of Appeals
From: Robert Sherman
Re- Habitat for Humanity of Cape Cod, Inc. Requests a comprehensive permit under Mass. General Laws Chapter 40B to allow for construction of a single-family home located at 24 Russell Rd.(map120 Parcel 129a. tentative address contingent upon ZBA approved plan) Mashpee ma, .Owner of record: John L. West and Cynthia J. West.
Date: January 22, 2011
To The Board-
Though I am not a resident of Mashpee, I did serve as Conservation Agent for the Town for seventeen years, retiring to my current home in Lake Arrowhead, CA in 2005. During my years in Mashpee, I developed a love for Mashpee, its residents and its natural beauty, which extends to this day. I still follow Mashpee issues to the best of my ability.
I am writing to urge you to vote in favor of this Habitat for Humanity project on Monomoscoy Island. I have reviewed the plans and spoken with the current Health Agent and Conservation Agent. They have told me that the project is in compliance with all applicable regulations and standards. The design of the project thus having met the standards that protect public health and environmental values, it should be further noted
that its completion would serve genuine and much needed humanitarian values.
I commend the Wests for fostering the project and would hope that the BOA looks favorably upon it.
Bob Sherman
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To whom it may concern,
I have known John West and his wife Cindy for the past several years, primarily for his strong commitment and participation in the Mashpee Water Quality Test Team which conducts volunteer Water Quality Testing under the guidance of the University of Massachusetts School of Marine and Science Technology. SMAST is under contract with the Town of Mashpee ( in partnership with the Wampanoag Indian Tribe) to conduct these tests annually. John manages the Waquoit Bay portion of the tests and oversees approximately 15 volunteers and Boat Captains which are in operation throughout the summer.
John is known for his commitment to protect the environment and support clean waters around Waquoit Bay and the island of Monomoscoy. Having had the opportunity to enjoy this area, John has encouraged others to share all the advantages of living here. His well know efforts to donate a portion of his property to facilitate the construction of a home as part of the Habitat for Humanity Program is admirable.
It seems obvious that his vision is an asset to this Town and we hope that his efforts are successful. I support his dream and generosity.
Steven Pinard
3 Mizzenmast
Mashpee, MA 02649
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Sent: Tuesday, January 18, 2011 11:00:43 AM
Subject: Habitat proposal
To whom it may concern:
WE would like to add our support for the proposed Habitat for Humanity house to be built on Monomoscoy Island. We have lived on Monomoscoy for 35 years and our family has owned a summer cottage here since the early fifties. Habitat for Humanity has an excellent reputation for building modest, sensible homes in a professional and timely manner. I am confident that the Town has thoroughly vetted this project as has Habitat for Humanity.
Thank you,
Ken Parolski and Trish Parolski
351 Monomoscoy Road
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This project will provide a worthy family with moderate income the opportunity to join our community, whereas otherwise it might not be possible. Many of the surrounding properties are valued far too high so as to put them beyond the reach of a family with only moderate income. We believe Monomoscoy Island needs more full time residents and more diversity. Some of the houses and building lots in the nearby vicinity are similar in size to this proposed building lot and the modest home proposed by Habitat would fit in nicely. Presently, the local zoning laws would not allow building on this proposed lot without a variation in the building laws. The proposed Chapter~ 40-b designation would enable the Zoning Board to grant this variation. We are very passionate about this proposal and we see it as a opportunity of a lifetime for us and
also for some needy family. We and many of our caring neighbors encourage this Board to grant this variance.
John and Cynthia West
26 Russell Road
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February 2, 2011
To Whom it May Concern:
My husband and I are property owners on Monomoscoy Road in Mashpee. I would like to voice my support for the project Mr. John West is attempting to get approved at the corner of Monomoscoy and Russell Road. I feel as though a Habitat for Humanities home at that location would be a positive addition to our community.
Sincerely,
Connie Goulet
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The Board opened the meeting to public comment.
Mr. Daniel Bohnenberger said that he recently built his home on a pre-existing, non-conforming lot on Riverside Road. He said that he did not feel the proposal was appropriate for Monomoscoy Island.
Ms. Marie Brako of 24 Hamblin Road said that she is a financial supporter of Habitat for Humanity. She expressed concern with the impact that construction would have on the endangered species in the area. Ms. Brako said that she is sensitive to affordable housing needs, but feels that this proposal is not appropriate for the area. She said that the area is isolated in the winter and suggested that another area would be more conducive to ‘integration’. She also mentioned the flood plain.
Mr. Nelson said that Monomoscoy Road is in a price category far different from what Habitat for Humanity normally develops. He said that no one can judge as to whether or not the affordable housing family will fit in with their neighbors. He said that the flood plain does not preclude anyone from building on a lot.
Mr. Walter Abbott from the Affordable Housing Committee said the committee is in support of the proposal. The committee forwarded the following letter to the ZBA:
February 9, 2011
Jonathan Furbush, Acting Chairman
Zoning Board of Appeals
Town of Mashpee
16 Great Neck Road
Mashpee, MA 02649
Subject: Habitat for Humanity Chapter 40B Comprehensive Permit Application
24 Russell Road, Mashpee
Dear Mr. Furbush:
Please be advised that at its meeting held on January 4, 2011, the Mashpee Affordable Housing Committee reviewed the Petition for a Comprehensive Permit submitted by Habitat for Humanity dated December 8, 2010, and voted unanimously in support of said petition.
Sincerely,
MASHPEE AFFORDABLE HOUSING COMMITTEE
By: /s/ Alan G. Trebat__________________________
Alan G. Trebat, Chairman
Mr. Kris Bohnenberger of 47 Riverside Road said that the undersized lots on Monomoscoy Island were established in the 1930’s. He said that requiring 40,000 square-foot lots is environmentally responsible and addresses the septic issues. Mr. Bohnenberger praised Habitat for Humanity for their charitable work, but didn’t feel that the proposal was appropriate for the area. He said that the Town has an obligation to abutting landowners to protect the investment they have made on their properties. He expressed concern with property values being lowered because of the proposal.
Mr. George Benway of 11 Bay Road said that, as a private developer, he has built eight Chapter 40B single-family homes which he still owns. He said that he supports the proposal from the developer’s point of view because “he would love to chop up all kinds of lots and build all kinds of houses”. From a resident’s point of view, he asked the Board to consider the danger of setting this kind of precedent by allowing Applicants to split lots into any given size under the auspices of Chapter 40B.
Mr. Nelson said that Mr. Benway has owned several lots on Monomoscoy Road and commended Mr. Benway for building a garage, rather than another home, on a non-conforming lot.
Mr. Mark Scofield of 378 Monomoscoy Road said that he is not in support of the proposal and challenged the proposal being represented as a “friendly 40B”.
Mr. Bonvie questioned if the normal appeals procedure is different if the ZBA denies a LIP (versus denying a Chapter 40B). Attorney Brodie said that the normal procedure is to appeal to the Housing and Appeals Committee.
Mr. Scofield mentioned the $25,000 from the Community Preservation Act and disputed Attorney Brodie’s statement that tax payer money was not being used to build the proposal. Attorney Brodie clarified that Habitat will use the $25,000 to construct the house, not to purchase the property. He said that grant money from a private foundation will be used to purchase the property. Mr. Nelson said that the $25,000 is subject to a vote at Town Meeting in May.
Attorney Rob Finnegan who represents the immediate abutters, Mr. and Mrs. Steven Hynds, clarified his letter. He said that he meant no disrespect and was not implying that there was any impropriety or absence of appropriate notice. Attorney Finnegan said that it appears that the Selectmen are under the impression that there is no opposition to this proposal. He said that many of the part-time residents on Monomoscoy Island were surprised to read in the paper that the proposal was a “friendly chapter 40B” and that taxpayer money had been allocated to fund the project.
Attorney Brodie said that the project is not contingent upon approval of Town Meeting funding.
Mr. Nelson asked Attorney Finnegan if Mr. and Mrs. Hynds are aware that a portion of their driveway lies within the subject parcel. Attorney Finnegan said that he has not had the opportunity to discuss that issue with his clients.
Mrs. Cynthia West of 26 Russell Road said that the community on Monomoscoy Island is made up of seasonal residents as well as families with children that live there year-round. She said that this is a beautiful place for a family. Mr. Furbush said that Mrs. West came before the ZBA in 2007 trying to subdivide and sell a portion of the lot. He said that he is more than a little confused that now she wants to give it away.
Mr. Nelson made a motion to continue the Petition until February 23, 2011. He said that he will be meeting with Town Counsel on February 18th regarding this proposal. Mr. Blaisdell seconded the motion. Mr. Furbush voted yes. Mr. Blaisdell voted yes. Mr. Dorsey voted yes. Mr. Bonvie voted yes. Mr. Nelson voted yes.
Mr. Nelson introduced newly-appointed Associate Member Judith Horton.
OTHER BUSINESS
Accept January 26, 2011 Minutes
Mr. Dorsey made a motion to accept the Minutes. Mr. Blaisdell seconded the motion. All voted in favor.
Vote on Article submitted for May 2011 Annual Town Meeting:
For May, 2011 Annual Town Meeting
Article
To see if the Town will vote to amend the Zoning By-law as follows:
In Subsection 174-48.C. add the following new sentence after the current second sentence:
“In addition, the Chairmen of the Planning Board and Board of Appeals, respectively, may appoint any number of alternate members from their Board, who may be designated by the Chairman to replace the regular member when the regular member is unable to attend a meeting of the Committee.”;
In Sections 174-48 and 174-48.1 replace the term “Board of Zoning Appeals” wherever it occurs with the term “Board of Appeals”;
or take any other action relating thereto.
Submitted by Board of Appeals and Planning Board
Explanation:
This article would provide for alternate Planning Board and Board of Appeals members to the Design Review Committee, so that those Boards will be represented on the Committee if the regular member (only one is currently provided for in the by-law) is unable to attend a meeting of the Committee. The article also replaces the term “Board of Zoning Appeals” where it appears in the sections dealing with the Design Review Committee and the Plan Review Committee with the term “Board of Appeals”, which is generally used throughout the rest of the zoning by-law.
Mr. Furbush made a motion to approve the above-referenced Article. Mr. Blaisdell seconded the motion. Mr. Furbush voted yes. Mr. Bonvie voted yes. Mr. Reiffarth voted yes. Ms. Horton voted yes. Mr. Dorsey voted yes. Mr. Nelson voted yes. Mr. Blaisdell voted yes.
Approve voucher to Reimburse: Charles L. Rowley for construction inspections of Capewide Enterprises at 153 Commercial Street.
The Board voted unanimously to approve the above-referenced voucher.
Mr. Blaisdell made a motion to adjourn the meeting. Mr. Dorsey seconded the motion.
Mr. Furbush voted yes. Mr. Bonvie voted yes. Mr. Reiffarth voted yes. Ms. Horton voted yes. Mr. Dorsey voted yes. Mr. Nelson voted yes. Mr. Blaisdell voted yes.
Respectfully submitted,
Cynthia Bartos
Administrative Secretary
Zoning Board of Appeals
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