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Zoning Board of Appeals Minutes 03/23/2011
MASHPEE ZONING BOARD OF APPEALS
MINUTES
MARCH 23, 2011

The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, March 23, 2011 at 7:00 p.m. (Conference Room #3) at the Mashpee Town Hall, 16 Great Neck Road North.  Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, James Reiffarth, John M. Dorsey and Associate Members Ronald S. Bonvie and Judith M. Horton were present.  Attorney Patrick Costello attended as legal consult for the Board. Associate Peter R. Hinden was not present.

CONTINUED HEARINGS

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. and Cynthia J. West.  Continued from February 9, and February 23, 2011 Public Hearings.

Sitting:  Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, and John M. Dorsey and Associate Member Ronald S. Bonvie.  Board Member James Reiffarth stepped down from this Petition.

Attorney Warren Brodie and Mr. Donald Dickinson, Director of Permitting and Site Acquisition for Habitat for Humanity of Cape Cod, Inc. represented the Petitioner.  Mr. and Mrs. John West, owners of the subject property, also attended the meeting.  

The Petitioner’s efforts to address the Board’s concerns are outlined in the following letter:

Habitat for Humanity of Cape Cod
411 Main Street – Suite 6 • Yarmouth Port, MA  02675
508-362-3559 • fax 508-362-3569 • www.habitatcapecod.org
March 21, 2011

Town of Mashpee
Zoning Board of Appeals
16 Great Neck Road North
Mashpee, MA 02649

Attn:  Robert G. Nelson, Chair

Re: 12 Russell Road (Map 120, Parcel 129A)
     Comprehensive Permit Application (M.G.L., ch. 40B)

Dear Mr. Nelson:

This letter will serve to address several of the requests made by the Board to the petitioner, Habitat for Humanity of Cape Cod, Inc., at the hearing of the above application on February 23, 2011.

In response to the Board’s request that the subdivision plan provide the Wests with a parcel of land having a minimum area of 40,000 square feet of upland and the balance of the original West parcel be a lot rectangular in shape, Habitat requested of Robb Sykes of Eastbound Land Surveying the following:

  • A delineation of any wetlands along the property line of the West property that abuts the Little River.
  • The preparation of a subdivision plan showing the area of the West Property, after subdivision to be not less than 40,000 square feet and the shape of the new parcel to be rectangular.
In response to these requests, Robb Sykes requested Drew McManus, the Conservation Agent for the Town of Mashpee, to delineate the area of any wetlands along the property line that abuts Little River.  Mr. McManus performed the wetlands delineation service on March 9, 2011 and he then sent a letter to Robb Sykes, a copy of which is enclosed, which states in pertinent part:

After walking the property in the area where it abuts Little River, there was no evidence of salt marsh or bordering vegetated wetland above Mean High Water.

Robb Sykes then prepared a new sub-division plan showing the following:

  • The area of the West property after subdivision is 40,012 square feet.
  • The new parcel is rectangular in shape and is 10,047 square feet in area.
A print of the Sub-Division Plan is attached.

Upon Robb Sykes completing the subdivision plan, Peter McEntee of Engineering Works, Inc. prepared a new Site Plan to reflect the change in area and the shape of the new parcel.  A print of the new Site Plan is attached.

Regarding several other issues that were discussed during the hearing of
February 23, 2011:

  • Habitat will work with the owners of the mailboxes that currently are on the parcel and relocate them to the property line.  
  • Habitat will work with the Town to relocate the street signs to the property line.
  • The apparent encroachment of Monomoscoy Road onto the new parcel may have resulted from reading a contour line as the edge of the pavement.  In fact the edge of the pavement is several feet into the right-of-way from the West’s property line.
Habitat’s attorney, Warren Brodie, has conferred with Town Counsel, Patrick Costello, concerning several of these issues.

Habitat looks forward to reviewing this material with you during the next hearing of March 23.

Very truly yours,

Donald S. Dickinson

cc:     Victoria Goldsmith
        Warren Brodie
        Robb Sykes
        Peter McEntee

Plans call for Lot A as containing 40,012 square feet of upland and Lot B as containing 10,047 square feet of land.  Explaining those calculations, Attorney Brodie quoted M.G.L. Chapter 131 Section 40:
“The term “Mean annual high-water line”, as used in this section, shall mean with respect to a river, the line that is apparent from visible markings or changes in the character of soils or vegetation due to the prolonged presence of water and which distinguishes between predominantly aquatic and predominantly terrestrial land. The mean high tide line shall serve as the mean annual high water line for tidal rivers.”  

Attorney Brodie suggested that the Board condition its Decision to address some of the other issues such as the mailboxes and the street signs.  

Mr. Nelson said that he disagrees with the plan showing the tie lines are the mean high water line because the tie lines are inside the wetland.  He said that calculations must be started right up to the bottom of the vertical banking that exists inside the property.  Mr. Nelson said that his upland calculations do not include the land below the bank.  Mr. Nelson said that the Petitioner may consider engaging the services of a Botanist to give his opinion to the surveyor.    

Mr. Bonvie agreed and said that, in most cases, the BVW is substantially higher than mean high water.  He said that the BVW may not be higher in this case because of the slope, where there may be a loss of four or five feet of upland.  Mr. Bonvie said that the letter from the Conservation Agent does not address that particular issue.  

Attorney Patrick Costello said that the appropriate definition of buildable land for lot calculation does not include water or wetlands.  By the very definition of wetlands from chapter 131 section 40 - it is that point in the land where it is altered by some sort of tidal flow that would be that delineation point.  He said that if there is a marked slope, presumably that slope was caused by the flow of water against that particular portion of land.   Attorney Costello said that a plan must show a clear delineation of where the wetlands is and then measurement from that point inland will calculate the upland area.    

Mr. Nelson said that the plan should show the accurate location and shape of the dock, which is a five-sided figure.  

Mr. Dickinson said that he will arrange to meet with Engineer Robb Sykes and Conservation Agent Drew McManus on the site to address the Board’s issues.  Mr. Nelson said that he would volunteer to be at the site visit meeting with the surveyor, the Conservation Agent and Mr. Dickinson.  He also suggested that DPW Director Catherine Laurent should attend the site visit to focus on the issue of Monomoscoy Road lying inside the lot.  

Attorney Costello said that the plan must show that the currently conforming lot contains a minimum of 40,000 square feet of upland, with the residual being left for the Chapter 40B parcel.  Attorney Costello said that the revised plan may require movement of the boundary line which may change the setback waivers that the Petitioner would need for the 40B parcel.  
The Board of Selectmen has indicated that it will not vote on the proposal from the Mashpee Community Preservation Committee to provide $25,000 for construction of the Chapter 40B home until the Petition receives ZBA approval.  

Mr. Nelson said that the driveway along the westerly side of the lot is used for boat access to the water.  Mr. West said that, after he had his property surveyed, the abutter installed a fence on Mr. West’s property.  Attorney Brodie said that the Purchase and Sale Agreement stipulates resolution of that encroachment to ensure a proper title to the parcel.  

Mr. Blaisdell expressed his concern that the Board would be setting a precedent with creation of this undersized 10,000 square-foot lot.  Attorney Costello said that this is not uncommon in Chapter 40B projects.  He said that the most common waivers granted by the Zoning Board are dimensional requirements from lot area and frontage requirements.  Attorney Costello said that the Board should focus on each lot individually.  He said that granting this Petition will not create a precedent which would obligate the Board to grant every future Chapter 40B proposal.  Each proposal must be considered on its own individual merits.  Attorney Costello said that the statute establishing a local interest in creating affordable housing sets paramount significance.  However, the Board must also weigh very seriously the public safety impacts and nuisance violations of each proposal.  

Mr. Nelson said that it is essential for the Petitioner’s proposal to agree with the plan on file with the Town Planner showing Monomoscoy Road as a 40-foot public way.  Attorney Costello said that it is not unusual for ancient ways in Town to measure less than 40 feet in width.  He suggested that the Board obtain a guarantee from the DPW that this proposal will not interfere with the layout and use of the road.  Mr. Furbush questioned the placement of the bound recently set by Robb Sykes.  

Mr. and Mrs. West commented that they want Mr. and Mrs. Hynds to move their fence and the gravel road from the West’s property.  Mr. Nelson said that this issue should be resolved between the two families.  Attorney Costello said that this can be addressed in the Decision and is not a legal impediment to the Board.  

Attorney Costello reviewed the wording in the current deed to the property indicating rights to Russell Road.       

Mr. Blaisdell made a motion to continue the Petition until April 13, 2011.  Mr. Dorsey seconded the motion.  Mr. Blaisdell voted in favor.  Mr. Furbush voted in favor.  Mr. Nelson voted favor.  Mr. Dorsey voted in favor.  Mr. Bonvie voted in favor.

Mr. Reiffarth returned to the meeting.

OTHER BUSINESS

Accept March 9, 2011 Minutes
Mr. Nelson made a motion to accept the Minutes.  Mr. Furbush seconded the motion.  Mr. Reiffarth voted in favor.  Mr. Blaisdell voted in favor.  Ms. Horton voted in favor.  Mr. Dorsey voted in favor.  Mr. Bonvie voted in favor.  Mr. Furbush voted in favor.  Mr. Nelson voted in favor.

Approve March 14, 2011 Voucher:  Reimburse Charles L. Rowley for Engineering Consult Services pertaining to development of property located at 570 Old Barnstable Road, Mashpee, MA.  Breezy Acres Phase II Site Plan, Sewer Lift Station and Force Main Plan.

Mr. Nelson made a motion to approve the voucher.  Mr. Furbush seconded the motion.  Mr. Blaisdell voted in favor.  Ms. Horton voted in favor.  Mr. Dorsey voted in favor.  Mr. Bonvie voted in favor.  Mr. Furbush voted in favor.  Mr. Nelson voted in favor.  Mr. Reiffarth voted in favor.

EXECUTIVE SESSION

Discuss Pending Litigation:  Affordable Housing Association of New England vs. Mashpee Zoning Board of Appeals regarding property located at 72 – 72A Main Street, Mashpee, MA.   Barnstable Superior Court Docket No. BACV2008-00517.  

Discuss Pending Litigation: James Regan vs. Mashpee Zoning Board of Appeals and Opinion of Building Commissioner Richard Stevens regarding proposed development of property located at 12 Brookside Circle, Mashpee, MA.  Owner of record:  Barry J. and Laura J. Marsolais.  Barnstable County Land Court Department.  

Mr. Nelson made a motion to adjourn to Executive Session to discuss the above-referenced legal matters.  He also announced that Open Session will not reconvene.

Mr. Nelson voted in favor.  Mr. Furbush voted in favor.  Mr. Blaisdell voted in favor.  Mr. Dorsey voted in favor.  Mr. Bonvie voted in favor.  Ms. Horton voted in favor.  Mr. Reiffarth voted in favor.

At 8:05 p.m., Meeting was adjourned to Executive Session.      

Respectfully submitted,

Cynthia Bartos
Administrative Secretary
Zoning Board of Appeals



At the Public Hearings on April 11, 2012, the Zoning Board of Appeals voted unanimously to discontinue non-disclosure of the Minutes from Executive Session on March 23, 2011.


MASHPEE ZONING BOARD OF APPEALS
EXECUTIVE SESSION ROLL CALL
DATE: MARCH 23, 2011


Chairman Robert G. Nelson opened the March 23, 2011 ZBA Public Hearings at 7:00 p.m.  

At 8:05 p.m., Mr. Nelson made a motion to adjourn to Executive Session.

Votes were taken in the following order:                
Robert G. Nelson, Chairman:  Yes                                
Jonathan D. Furbush, Vice Chairman:  Yes                                        
William A. Blaisdell, Clerk:  Yes                                                       
John M. Dorsey, Board Member:  Yes                                                      
Ronald S. Bonvie, Associate Member:  Yes                                        
Judith M. Horton, Associate Member:  Yes                                        
James Reiffarth, Board Member:  Yes                                             

EXECUTIVE SESSION

Discuss Pending Litigation: Affordable Housing Association of New England vs. Mashpee Zoning Board of Appeals regarding property located at 72 – 72A Main Street, Mashpee, MA.   Barnstable Superior Court Docket No. BACV2008-00517.  

Attorney Costello said that the trial date for this case is set for April 27, 2011.  He reiterated that this is a pre-existing use and has grandfathered-use status.  The motel has been operating for decades and predates the Zoning By-laws.  The owner/operator of this property continues to use the facility as a motel.

Attorney Costello said that Building Commissioner Richard Stevens and Health Agent Glenn Harrington conducted investigations of complaints lodged by abutting neighbors.  After review of the room reservation logs, it was discovered that there were long-term occupants residing in the motel.  Attorney Costello pointed out that many of the occupancies were in character with a traditional New England motel.  He said that motels on Cape Cod are frequently occupied by long-term residents, an unfortunate development that has evolved over the last couple of decades.  He said that, in many instances, the state is subsidizing the long-term, seasonal residencies in motels to accommodate people in need of affordable housing.

Mr. Stevens issued a Cease and Desist enforcement order stating that the use of the property was not consistent with the use of a ‘motel’, as the term ‘motel’ has been traditionally defined.  This order was appealed to the ZBA.  The ZBA upheld the Building Commissioner’s opinion that the use of this property was not consistent with the pre-existing, non-conforming use: a motel.  

Attorney Costello said that Barnstable Superior Court recently filed a judgment against owners of a Yarmouth motel prohibiting them from accepting new long-term occupants.  He said that the distinction between Mashpee and Yarmouth is that Yarmouth has By-laws with specific definitions of a motel, while there is nothing in the Mashpee Zoning By-law that distinctively defines a motel.

In the absence of a specific By-law, authorities must resort to using the Building Code definition and case law.  Attorney Costello said that case law considers motels as way stations along the way for traveling motorists and are to be used for short-term occupancy.  There is no clear judicial definition of a motel as opposed to a lodging house.  

Mashpee used the definition of a motel as found in the Building Code 6th Edition, which designates motels as an R-2 use group for ‘primarily transient occupancy’ of periods less than 30 days.  The 2008 State Building Code upheld the Building Commissioner’s original Cease and Desist order.  Mr. Blaisdell questioned the definition of ‘primarily’.  Attorney Costello said there are several ways to look at that term and just leads to a debate on semantics.  Attorney Costello stated that the Building Code 7th and 8th Editions have been amended to include two separate use classifications of a motel: 1) transient and 2) non-transient.  This code no longer supports the Board’s position.  

Mr. Bonvie suggested that the Board should present an article for a new By-law at Town meeting.  Attorney Costello said that it would not affect the outcome of this case.  He said that the lack of specification and definition in the Town By-laws make it difficult for the Board to maintain its decision.  He said that the court would question the Board on how it would distinguish between a motel that existed in 2008 and one that exists now.  

Mr. Furbush brought up the public safety concerns and right-of-way issues.  Attorney Costello said that it is in the best interests of the Board and the Town to resolve those issues with the Petitioner, rather than leave it in the hands of the court to determine.

The Board discussed the conditions suggested by Attorney Costello.  Attorney Costello said that reaching a compromise would eliminate the need for a trial and the Board/Town Counsel having to revisit this repeatedly.  He said that having a set of rules and regulations governing the subject property would enable the Town to legally enforce future violations.  (See attached: Conditions and response from Attorney Mills).
 
Mr. Blaisdell said that he has serious reservations concerning the fire safety issues and access.  Mr. Reiffarth agreed and said that Units #30, #31 and #32 in the back of the building should not be used for long-term occupancy.  This would reduce the number of long-term units to six, not nine.  Mr. Bonvie said that he is also worried about the Petitioner not being agreeable to limiting the number of occupants in a unit.  Attorney Costello said that the Petitioner has agreed to a fire emergency vehicle access plan that must be approved by the Fire Chief.  Attorney Costello said that Chief Baker indicated that he feels an acceptable plan can be worked out.  

Attorney Costello said that he will be working with Attorney Mills to come to an agreement with Mr. White.  Attorney Costello said that Mr. White does not quite understand that he doesn’t have a “right” to operate the motel any way he wants. Attorney Costello will update the Board by April 13th on the outcome of his conversations with Attorney Mills.  If the Board agrees to the conditions, the court will be notified that a settlement has been achieved.  The court will then issue an order giving the parties 30 days in which to work out an agreement.  After working out the rules and regulations, the Fire Chief, Building Inspector and Health Agent will have regulations in writing in hand when they conduct inspections of the subject property.  If any violations are found, the Town would have legal recourse through the court system.

Mr. Furbush asked if Attorney Costello thought that the court would vote in favor of Mr. White.  Attorney Costello said that it comes down to the defense of the Cease and Desist order which the Board upheld.  That decision was supported by the Building Code as it existed at that time, which the Board can no longer rely on.  Attorney Costello said that even if the Board won the court case, all the parties would be right back at square one with the same dispute about use.

Attorney Costello said that it creates a difficult situation with Zoning By-law amendments that become effective after a pre-existing situation.  He said that Zoning By-laws are reactive.  Attorney Costello stated that this has not been a burning issue in Town.  He agreed with Mr. Bonvie and encouraged the Board to submit an article defining and providing regulations for the use of motels.

Mr. Nelson suggested modifying Condition #4 regarding pets, which he considered a little harsh.  Attorney Costello said that this issue was raised by neighbors and was included in the Conditions, but is actually outside the scope of zoning regulations.           

Mr. Nelson brought up Condition #5 concerning the dumpster location and said that it must be located within the legal deed for the lot.  He wants Mr. White to be aware that a permanent foundation must be installed when relocating dumpsters.  Attorney Costello said that the configuration of the property can accommodate the condition and he will make it clear to Mr. White that the dumpsters cannot be located on another person’s property.     

Mr. Nelson stated that Condition #7 relating to parking was excessive.  Attorney Costello said that the parking plan from the 1980’s has remained unchanged.  Mr. Nelson asked if the plan can be brought into the ZBA for negotiation.  

Mr. Reiffarth asked if the Conditions would be binding upon a potential new buyer of the property.  Attorney Costello said that this could be stipulated in the Conditions, such as “successors and assigns that use the property”.  

Mr. Furbush said he was inflexible on the issue of fire safety.  Mr. Blaisdell agreed that the Fire Chief must be satisfied with the conditions.  Attorney Costello assured the Board that the Fire Chief will be consulted.  

Attorney Costello said that he will compose a formal response to Attorney Mills with the goal of coming closer to an agreement.  

Discuss Pending Litigation: James Regan vs. Mashpee Zoning Board of Appeals and Opinion of Building Commissioner Richard Stevens regarding proposed development of property located at 12 Brookside Circle, Mashpee, MA.  Owner of record:  Barry J. and Laura J. Marsolais.  Barnstable County Land Court Department.  

Attorney Costello said that he filed a notice of appearance on behalf of the Board, which is all that is required.  He said that the co-defendant, Marsolais, will likely file an appearance and will assist, if not, assume the responsibility of defending the ZBA Decision and the Building Commissioner’s Opinion.  

Attorney Costello said that Mr. Regan has also appealed the Conservation Commission Order of Conditions to the DEP.  Attorney Costello said the aggrieved party appears to be using whatever tactic he can to prevent the abutter from building next to his property.

Building Commissioner Richard Stevens was very clear in his interpretation of the Building Line.  Attorney Costello said that the Building Line is not a requirement of the Zoning By-laws and is not a setback requirement.  He said that the Building Line is not defined as it shows on the plan.  The Building Line was incorporated onto a plan during the subdivision approval stage from a design point of view, which would ensure that abutting properties would follow a symmetrical pattern for aesthetic purposes.  

Attorney Costello said that a Case Management Conference is arranged to assemble the interested parties together to see if an agreement can be reached.  He said that he will keep the Board informed if an appearance by a Board Member in court is necessary.  Attorney Costello said that there is a great degree of deference given by the ZBA, as well as the courts, to the Local Enforcement Officer’s Opinion.  He said that he likes the chances that the Board has in this case and that the case is not a burden on the Town to hold firm to its position.     

Attorney Costello estimated that this case will not be scheduled until sometime in September.

The Board thanked Mr. Costello for his time and expert knowledge.

Mr. Furbush made a motion to adjourn Executive Session.  Mr. Blaisdell seconded the motion.  Votes: Mr. Nelson, yes.  Mr. Furbush , yes..  Mr. Blaisdell, yes.  Mr. Reiffarth, yes.  Mr. Dorsey, yes.  Mr. Bonvie, yes.  Ms. Horton, yes.  Meeting was adjourned at 9:00 p.m.

Respectfully submitted,


Cynthia Bartos
Administrative Secretary
Zoning Board of Appeals