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Zoning Board of Appeals Minutes 04/13/2011
MASHPEE ZONING BOARD OF APPEALS
MINUTES
APRIL 13, 2011
The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, April 13, 2011 at 7:00 p.m. (Conference Room #1) 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 Peter R. Hinden, Ronald S. Bonvie and Judith M. Horton were present.  Chairman Robert G. Nelson opened the meeting at 7:00 p.m. and announced that the hearings were being televised live.
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 Mashpee, MA.  Owner of record: John L. and Cynthia J. West.  Continued from February 9, February 23, and March 23, 2011 Public Hearings.
Sitting:  Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, John M. Dorsey and Associate Member Ronald S. Bonvie.  Board Member James Reiffarth stepped down.
Attorney Warren Brodie referred to the site visit conducted on April 4, 2011 by ZBA Chairman Robert G. Nelson, Building Commissioner Richard Stevens, Conservation Commission Agent Andrew McManus, Director of Permitting and Site Acquisition for Habitat for Humanity, Donald Dickinson and Land Surveyor Robb Sykes.  Attorney Brodie said that the purpose of the site visit was to determine the precise location of the high tide line on the lot where it abuts water.  Mr. Nelson said that the Board was not challenging the location of the high tide line.  He reiterated that the Board is looking for a plan with a line showing where the upland is.  Mr. Nelson questioned the additional square feet calculation with the dimension of 20.35 feet on the Russell Road side of the subject property compared to the March 23, 2011 plan showing 14.79 feet on that side.  
Mr. Sykes said that the site visit was not conducted to establish high water or wetland.  He said that the line on the March 23rd plan was a tie line, not a property line, not a high water line.  He said that the boundary along the tie line is indeterminate.    Mr. Sykes said that he located the line by instrument right after Mr. Nelson left the site.  He said that Mr. McManus stated that the high water line, which is the property line, is where the water touches the sand.  This is actually 15 feet closer to the water than where the stakes have been set.  Mr. Nelson said that the Board should have been informed that the line was going closer to the water than what was shown on the previous plan.  Mr. Nelson said that he does not agree with what is shown on the plan because there is a bank on the property and the Board needs that second line drawn on the plan indicating where the upland is.  
Mr. Sykes said that wetland and bank have different definitions.  He also stated that it’s either wetland or upland and they’re on the same line.  Mr. Nelson disagreed.  Mr. Sykes said that Mr. McManus has determined that there is no wetland resource on this site.   Mr. Bonvie said that if there is no BVW inclusive of bank, etc. high water is the extent of upland.  
Attorney Brodie read MGL 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 said that in the absence of a BVW, everything upland from the mean annual high water line, which in this case is the mean high tide line, is upland, by definition of the statute.  
Attorney Brodie stated that the Petitioner has done everything to satisfy the Board and has spent funds on extra surveying costs.  He said that the proposal has complied with requests from other Town Departments, including the Board of Health, Conservation Commission and the DPW.  The Petitioner has also agreed to accommodate the ZBA’s request regarding placement of street signs and mailboxes.   
Mr. Nelson said that all of the documents regarding this Petition will be sent to Attorney Costello, who will compose the Decision.  If Attorney Costello concurs with the plan, Mr. Nelson said that he will not continue to pursue the issue of the upland. If Attorney Costello questions the plan, the plan will need to be revised.
Mr. Sykes offered to revise the plan and note the upland/wetland delineation line with mylar. Mr. Nelson said that the property calculations would need to be reconfigured.  Mr. Bonvie suggested that Mr. Sykes could draw a line from stake to stake on one of the earlier submitted plans, calculate southbound from those stakes the square footage of the lot and label that 'high water and the extent of wetland line'.  He said that instead of moving the line, the older plan can be revised with a line showing the location of the stakes.  Mr. Nelson said that the biggest problem is that the last stake nearest the water is not on the subject property.   Mr. Sykes said that the deed states that ownership is to high water.  Mr. Bonvie said that this is problematic because the line has moved to show high water, but the Board is looking for high water and/or BVW to show upland.  
Mr. Nelson said that the discrepancy on the three plans on the line coming in from Russell Road to the end of the line showing 83.53 feet, 14.79 feet and 20.35 feet must be resolved. The Board wants to ensure that the West family has 40,000 square feet of upland in order to eliminate any problems should they decide to sell their property in the future.  Attorney Brodie said that if the West family had created a lot that is less than 40,000 square feet, the onus would be on the West family.  The Board repeated that a person cannot subdivide a piece of property and create two non-conforming lots.  One of the lots must conform.  
Attorney Robert Finnegan, representing Mr. and Mrs. Steven Hynds, said that the Petitioner has failed to submit a plan showing delineation of the upland line.  He said that his clients would like an opportunity to have the final plan reviewed by their surveyor, Mr. John Slavinsky, before the Board sends documents to Town Counsel.  He said that he is also confused by the inconsistencies in the plans, specifically the March 23rd plan showing a bound line of 397.17 feet, but the April 11th plan shows that distance as 298.85, a discrepancy of 98 feet.  
Attorney Finnegan asked the Board to delay making a decision to allow Mr. Slavinsky time to research the original land court plans to ensure compliance.  Mr. Sykes said that he has already researched the land court plan and confirmed the accuracy of the plan.  He said that the boundaries are the same as the original decree plan and that only the tie lines have changed.  Mr. Sykes explained that before Monomoscoy Road was taken by the Town, the properties extended out to the bound.  When the Town took the road in 1935, the Town took that part of it.  Mr. Sykes said that the stone bound is very old and is in good condition and is in agreement with land court plans.  He said that the edge of the road is by decree of the taking.  Mr. Sykes said that his plan shows the bounds of record - the bounds that land court originally considered when they set the decree.  He said that all the other bounds set by unknown individuals are noted on his plan as "FNL" (Found not Located) and are not recognized by land court.  Mr. Sykes said that the neighbors moved their fence within the last week, indicating that they are in agreement with the bounds of record.  
Mr. Nelson apologized for creating any problems as a result of his mistaking part of Monomoscoy Road as lying inside the parcel.  He said that he misinterpreted a contour line as being a travel way line.  
Mr. Blaisdell made a motion to close the hearing to public testimony on this Petition.  He moved to adjourn the Petition until after the other Petitions on the Agenda have been heard, at which time the Board will discuss the Petition further.  Mr. Furbush seconded the motion.  Mr. Nelson voted yes.  Mr. Blaisdell voted yes.  Mr. Furbush voted yes.  Mr. Dorsey voted yes.  Mr. Bonvie voted yes.  Vote was unanimous.  
Mr. Dickinson asked for clarification of the motion.  Mr. Dorsey explained that the Board will forward all pertinent documents to Attorney Patrick Costello for legal opinion.  The Board will then render a Decision based on Town Counsel's advice.  
Attorney Brodie thanked the Board for their time and consideration.  Mr. Dorsey thanked Mr. Brodie for his patience with the Board.
NEW HEARINGS
Nancy J. Cleary:  Requests a Variance from Section 174-33 of the Zoning By-laws for permission to vary the setback from water and wetlands to allow for construction of  a screened porch onto an existing dwelling on property located in an R-3 zoning district at 19 Tide Run (Map 126 Parcel 41) Mashpee, MA.
Sitting: Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, James Reiffarth and John M. Dorsey.
Mr. Timothy Luff of Archi-Tech Associates represented the Petition and stated that the house was built in 1994.  The proposal calls for an additional 47 square feet with construction of a screened porch onto the existing deck.  The Petitioner is seeking Variance relief to allow for construction of the porch.  The existing deck is 18 feet from water and wetlands and the proposal will be 24 feet away at its closest point.  Lot coverage will increase from 24.43% to 24.79%.  
The Conservation Commission has issued an Order of Conditions on the proposal.     
No comments were received from abutters.
Mr. Blaisdell made a motion to grant Variance relief of 26 feet from water and wetlands to allow for the proposed addition.  Findings: the increase in lot coverage is insignificant; topography and irregular shape of the lot.  This Decision is conditioned upon compliance with BSS Design, Inc. plan entitled: "Plot Plan - Proposed Additions and Alterations Prepared for John & Nancy Cleary, 19 Tide Run, New Seabury, Mashpee, Massachusetts, Date: Dec 22, 2010".  
Mr. Furbush seconded the motion.  Mr. Nelson voted yes.  Mr. Reiffarth voted yes.  Mr. Dorsey voted yes.  Mr. Blaisdell voted yes.  Mr. Furbush voted yes.  Vote was unanimous.
Jeffrey T. and Christine J. Dennis: Request a Variance from Section 174-31 of the Zoning By-laws to vary the front, side and lot coverage requirements to allow for construction of a deck onto an existing home on property located in an R-5 zoning district at 19 Park Road (Map 1 Parcel 13) Mashpee, MA                                                      
Sitting: Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, James Reiffarth and John M. Dorsey.
Jeffrey and Christine Dennis, residents of Sandwich, represented their Petition and said they grew up in that neighborhood and purchased the home in October 2010.  The proposal calls for addition of a deck to the home, which will be used as rental property.
Several of the Board members said that they visited the site.  Mr. Furbush said that the area is very crowded and the homes are very close to each other.  He expressed concerns about the proposal, particularly the increase in lot coverage to 27%.  Mr. Nelson confirmed that the lots in the area are all approximately 5,000 square feet in size.  
Mrs. Dennis said that other homes in the area have decks similar to her proposal.  She said the deck would enhance the value, appeal and living space of the home with a view of the water.  Mr. Hinden asked if they would consider addition of a patio rather than a deck.  Mrs. Dennis said that cars parked in the neighboring driveways block the view to the water from ground level of a deck.  
Mr. Nelson suggested using the average setback rule for the front setback.  With the houses on either side of the subject property at 20.14' and 24.15', the Petitioner would have a front setback of 22.15'.  If the size of the deck was reduced in size from 12 feet to 8 feet, this would reduce at least 80 square feet from the proposed lot coverage.  The Board said it considers a request for Variance relief of 7% as excessive.   
Mr. Dennis asked if the Board would allow a 10-foot deck.  After some discussion, Mr. Bonvie suggested removal of the shed to reduce the total lot coverage by 84 square feet.  Mr. Nelson suggested reducing the size of the proposed deck from 12 feet to 10 feet.  
Mr. Blaisdell made a motion to continue the hearing until April 27, 2011 to allow the Petitioner to submit a revised plan with above-referenced changes along with calculation of the total lot coverage.  
Mr. Furbush seconded the motion.  Mr. Reiffarth voted yes.  Mr. Dorsey voted yes.  Mr. Nelson voted yes.  Mr. Blaisdell voted yes.  Mr. Furbush voted yes.  Vote was unanimous.   
Elizabeth J. Stow, Trustee: Requests a Special Permit under Sections 174-25.H.(7) and 174-25.I.(9) of the Zoning By-laws to allow for construction of a wooden walkway, ramps, steps and float that will extend across a total of more than seventy (70) feet of coastal beach, coastal bank, salt marsh or bordering vegetated wetlands on property located in an R-3 zoning district at 25 Monomoscoy Road West (Map 114 Parcel 19) Mashpee, MA.
Sitting:  Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, James Reiffarth and John M. Dorsey.
Elizabeth J. Stow, Trustee: Requests a Variance from Section 174-31 Footnote 10 of the Zoning By-laws to vary the side setback, lot frontage and lot size requirements to allow for construction of a wooden walkway, ramps, steps and float that will extend across a total of more than seventy (70) feet of coastal beach, coastal bank, salt marsh or bordering vegetated wetlands on property located in an R-3 zoning district at 25 Monomoscoy Road West (Map 114 Parcel 19) Mashpee, MA.
Sitting: Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, James Reiffarth and John M. Dorsey.
Mr. Nelson informed the Board that a dock had been constructed illegally on the subject property several years ago.  He said that the ZBA finally had the dock removed after a long struggle with the owner.  
Mr. John Slavinsky of Cape & Islands Engineering represented the Petitions and said that the proposal calls for the float to be anchored with sealflex elastic rodes with helix anchors.  The total length of the structure is 117 feet.  
Mr. Slavinsky gave the Board a history course on the property.  The Stow's bought the small lot in 2002, which is on the same deed as the other lot on which their house sits.  Mr. Stow applied for a dock in 2005.  At that time the Conservation Commission demanded replanting of the property on which Mr. Stow had performed unauthorized cutting and removal of landscaping.  The Petition for the dock was subsequently withdrawn.
Mr. Slavinsky said that in July 2006, Mr. Stow submitted plans for a dock and received an Order of Conditions from the Conservation Commission.  The ACEC (Area of Critical Environmental Concern) also approved plans for the dock.  Mr. Slavinsky arrived at the point in time which Mr. Nelson had referred to earlier.  Mr. Slavinsky said that: "Suddenly the thing starts being built".  He said that Mr. Stow's contractor was building the dock, not Mr. Stow.  Work was stopped and the dock was removed.  The ZBA Petition for this dock was withdrawn.  
Mr. Slavinsky said that in 2009, Mr. Stow installed a 6' x 8' travel trailer for storage of personal watercraft on the lot.  After being notified by the Town to apply for a Special Permit from the Building Department and a Variance from the ZBA to allow for the trailer, Mr. Stow decided to remove the trailer.
The Board commented on the close proximity of this latest proposal to the existing docks on either side and expressed concern about the potential for navigation issues.  Mr. Hinden questioned if the dock could be installed at an angle to allow for more distance between the docks.  The Board expressed concern with the dock being installed on property that is not within sight of the owner's residence.  Mr. Bonvie questioned why a small piece of property is going to be used for a dock that will create liability.  Mr. Nelson said that there are many 25-foot lots all along Monomoscoy with docks.  Mr. Slavinsky said that many docks exist in Town that are owned by seasonal people.      
The Board instructed Mr. Slavinsky to obtain comments on this proposal from the Conservation Commission, Shellfish Commission, Waterways Commission and the Harbormaster.  
Attorney Brian J. Wall addressed the Board in behalf of his client Mr. Jack G. Carter, Jr.  Mr. Carter owns 17 and 20 Monomoscoy Road West and is a direct abutter to the subject property.  Attorney Wall insisted that the proposal is allowed only as an accessory use.  (Part of Attorney Wall's subsequent argument was based on his opinion that the dock is only allowed as an accessory use).   
Mashpee Zoning By-laws allow for this proposal under Section 174-25 - TABLE OF USE REGULATIONS - Subsection H -OTHER PRINCIPLE USES (7):  "Private one or two-car garage, greenhouse, or dock as a principle use where the lot cannot be developed with a principle residential use, provided that there be no commercial use or storage outside of buildings, that no structure exceed fifteen (15) feet in height and that all applicable setbacks and lot coverage requirements are met and approved, that a special permit for such use is approved by the Board of Appeals."  While this is an allowed principle use, the proposal does not meet the setback requirements.  Therefore, the ZBA must determine whether hardship exists and whether Variance relief can be granted).
Attorney Wall said that the proposed planting of the huckleberry patch as a primarily agricultural use, with the dock as an accessory use, does not meet "eligibility".  He said that this does not establish the proposal as a farm or livestock or farm stand and the dock is not "incident or subordinate to" the principal use of agriculture.  
Attorney Wall quoted 174.25.I(9): "The Board shall not grant the special permit if the structure will unduly interfere with free passage of travel by water".  Attorney Wall said that Mr. Carter bought his property specifically because it had an existing dock.  Attorney Wall said that constructing this dock between two other existing docks will result in unreasonable interference with safe boating.  
Attorney Wall quoted 174-24.C.(2) which provides that a Special Permit may be issued only if it is determined that the proposed use or development will not adversely affect public health or safety and will not have a significant adverse impact on neighboring properties.  Attorney Wall said that this proposal will adversely impact Mr. Carter's ability to enjoy his property.  Attorney Wall said that Mr. Carter is also concerned with the safety of children being attracted to the dock without adult supervision.  
Attorney Wall said that the Petitioner must establish hardship and demonstrate that granting the Variance will not derogate from the intent and purpose of the By-law.  He said that the title on the property reveals that it has been in the Stow family since 2002 with inter-family transfers.  A deed recorded in 2009 shows a transfer of interest in property with the new owner as Elizabeth Stow, Trustee.  Attorney Wall said that she "is a new legal entity, separate and distinct from Mr. and Mrs. Stow who owned it before".  He said that "Mrs. Stow, the Trustee, acquired the property with full knowledge about the problems regarding the dock, and therefore, she can't claim any kind of hardship to ask for Variances" and "she was well aware of the hardship issues before she purchased".  Attorney Wall said establishing setback  requirements prevents crowding and ensures that residential neighborhoods have adequate separation from each other so that the owners can have peace and tranquility.  The subject lot is only 25 feet wide with 15-foot setback requirements.  Attorney Wall asked the Board to deny the request for a Special Permit and a Variance.
Mr. Nelson said that he measured the distance between the existing wooden piers, center line to center line at the mean low water, at 112 feet.  Attorney Wall said that under Chapter 91, anyone constructing a dock must receive a license from the State because the land below the low water mark is owned by the Commonwealth of Massachusetts.  He also said that State policy is for anyone proposing construction of a dock within 25 feet of an extended property line to receive permission of the abutter before the dock can be built.    
Mr. Furbush questioned the argument about the dock as a principle use versus accessory use.  Attorney Wall said that any use not mentioned in the By-law is prohibited.  He said that his interpretation of the Mashpee By-laws is that there is no way for a dock to be applied for as a "primary" use under the Mashpee By-laws.  (See Section 174-25.H.7 referenced above).  
Mr. Jack G. Carter, Jr. said that he is concerned that his peace and enjoyment will be disturbed by the construction of more docks in the area.  He said that: "I can subdivide a little 25-foot out here.  From what I heard, I'd have one uncompliant lot and I'd still have a 40,000 square foot lot.  Put a dock on it and sell it for $150 grand."  Mr. Carter said that he is concerned about "opening the floodgates and all these little slivers of land are going to end up with docks on them and ruin the whole atmosphere and the environment."  
Mr. Blaisdell corrected Mr. Carter's comment based on what “he had heard here tonight” that he would be able to subdivide his lot and build on it.  Mr. Blaisdell said that the Board has not ruled on the Chapter 40B Petition yet.
Mr. Blaisdell made a motion to continue the hearing until May 25, 2011 to allow the   Petitioner an opportunity to obtain comments from other Town Departments and Commissions.  Mr. Furbush seconded the motion.  Mr. Dorsey voted yes.  Mr. Reiffarth voted yes.  Mr. Nelson voted yes.  Mr. Blaisdell voted yes.  Mr. Furbush voted yes. Vote was unanimous.  
REOPENED HEARING:
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 Mashpee, MA.  Owner of record: John L. and Cynthia J. West.  Continued from February 9, February 23, and March 23, 2011 Public Hearings.
Sitting:  Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, John M. Dorsey and Associate Member Ronald S. Bonvie.  Board Member James Reiffarth stepped down.
The Board continued its deliberation on the Habitat for Humanity Petition.  Mr. Nelson said that Attorney Costello "wants all the Board Members' ideas so he can write the Decision".  
Mr. Furbush said that he is not in favor of splitting the lot.  He said that he hasn't heard anything to change his mind.  Mr. Furbush said that the Board will be sending the wrong message of splitting single-family lots to create a smaller lot to be used as a Chapter 40B for  one house.  He said that he does not believe the 40B law was created for the particular purpose of subdividing single-family lots.  
Mr. Dorsey disagreed with Mr. Furbush.  He said that the Petitioner has tried to conform to the ZBA's demands and this has gone on long enough.  He said he can't see denying Habitat for Humanity after all the plan revisions that the Board has demanded.  Mr. Dorsey quoted Attorney Costello's statement that this would not be setting a precedent.
Mr. Hinden agreed with Mr. Furbush and said that this sets a very bad precedent of having single-family lots turned into 40B housing.  He said that the intent and spirit of 40B housing law was to take parcels of land where multiple dwellings could be built for affordable housing.  Mr. Furbush said that would also allow for open space.  Mr. Hinden said that Chapter 40B was not created to allow someone to subdivide their lot to make money and circumvent the spirit of the law.
Mr. Furbush appreciated that Habitat has tried to meet the Board's requests and that the attorneys have worked diligently on the Petition.  He said that the project has been flawed from the beginning.  
Mr. Blaisdell said that the Board works hard to approve Habitat projects.  He said that he has a problem with this proposal.  
Mr. Nelson said that a Chapter 40B requires a simple majority vote of the Board - a vote of three Members.
The Board requested that the following documents be sent to Attorney Costello:
  • Dates/Minutes of Hearings.
  • Date of site visit.  
  • Copies of all the submitted plans (final plan needs a definitive line showing the location of the upland and showing square footage of all of the upland).  
  • Inform Attorney Costello that there is no encroachment of Monomoscoy Road onto the subject parcel.
  • Encroachment of fence issue has been resolved with relocation of the fence.  
  • Mr. Nelson explained the reason for the inclusion in the Decision of the following paragraph from the quitclaim deed from the Spohr's to the West's.  He said that the wording ensures that the owner of the newly created Habitat property understands that public use of the road is allowed and should be enforced.  Mr. Nelson cited the many occasions that the Police Department has had to intervene because Mr. West refuses to let the public access the road.  Mr. Nelson reiterated that the Public has the right to access the road.
  • "So much of said land as is included within the limits of Russell Road, Great River Road, Hamblin Road and the Way, shown on said plan, is subject to the rights of all persons lawfully entitled thereto in and over the same, and to rights of way as set forth in two stipulations filed with the papers in this case on May 31, 1956, one between the petitioners and Barbara J. Moran, and the other between the petitioners and the Town of Mashpee, et al, being document Nos. 39,176 and 59,177".    
  • Removal of the proposed shed from the plan.
  • The two street signs on the corner of the lot shall be combined into one sign.
  • Recommendation of combining multiple mailboxes onto one post.   
OTHER BUSINESS
Accept March 23, 2011 Minutes
Mr. Furbush made a motion to accept the Minutes.  Mr. Blaisdell seconded the motion.  All voted in favor.  
Voucher:  Balance of ZBA Consulting Fee Deposit returned to Capewide Enterprises, LLC.  Property located at 153 Commercial Street (Map 88 Parcel 37) Mashpee, MA.
Mr. Nelson informed Capewide that the Board will release the balance of the deposit only after it is completely satisfied that all of the work has been completed.  Engineering Consultant Charles L. Rowley will be instructed to make arrangements for a site inspection with Capewide.
Mr. Dorsey made a motion to adjourn the meeting.  Mr. Blaisdell seconded the motion.  All voted in favor.
Meeting was adjourned at 10:00 p.m.  
Respectfully submitted,

Cynthia Bartos
Administrative Secretary
Zoning Board of Appeals