MASHPEE ZONING BOARD OF APPEALS
MAY 25, 2011
MINUTES
The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, May 25, 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 and James Reiffarth and Associate Board Members Ronald S. Bonvie and Judith M. Horton attended the meeting. Associate Board Member Peter R. Hinden submitted his resignation effective May 12, 2011. Attorney Patrick Costello attended the meeting as counsel for the Board. Acting Building Commissioner Charles Maintanis also attended the meeting. Board Member John M. Dorsey was not present due to illness.
Chairman Robert G. Nelson opened the meeting at 7:00 p.m. and announced that the Public Hearings were being televised live.
CONTINUED HEARINGS
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 Furbush, William A. Blaisdell, James Reiffarth and Associate Member Ronald S. Bonvie.
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. Stow Petitions Continued from April 13, 2011 to allow Petitioner an opportunity to obtain comments from Conservation Commission, Waterways Commission, Harbormaster, Shellfish Warden.
Sitting: Board Members Robert G. Nelson, Jonathan Furbush, William A. Blaisdell, James Reiffarth and Associate Member Ronald S. Bonvie.
Mr. John Slavinsky of Cape & Islands Engineering represented the Petition and said that plans for a dock, ramp and float have been withdrawn. Conservation Commission has issued an Order of Conditions approving a raised walkway across the marsh going down to the beach. The walkway will only be fifteen inches above the marsh. Mr. Slavinsky said that the Petitioner has a mooring and beach at the end of the walkway. The Board expressed concerns about safety and that the Petitioner could add a float in the future. Mr. Slavinsky said that a ramp is not possible with the walkway since State law requires a 5-foot clearance at the mean high water mark for a ramp. Mr. Slavinsky offered to call the proposal a 98-foot long bench or a 32-inch wide fence.
Mr. Maintanis confirmed that the side setback for structures is 15 feet.
Attorney Brian Wall represented direct abutter Mr. Jack Carter of 17 Monomoscoy Road West. He explained his client’s opposition to the proposal – that the Boardwalk is only allowed as an accessory use to a principal use. The principal use proposed for this lot is agriculture. Attorney Wall argued that a dock is not an accessory use to agriculture. He said that the owner cannot claim hardship since the owner was aware that the property could not be used without grant of Variance.
Mr. Nelson said that the situation has not changed from a few years ago when the Board denied this request. The rest of the Board agreed and said that they would not support the proposal.
After Mr. Blaisdell read Section 174-25.H(7), Mr. Slavinsky admitted that the proposal does not fall under the category of a dock. He chose to withdraw both Petitions without Prejudice.
Mr. Blaisdell made a motion to accept the request to Withdraw Without Prejudice the Petition for a Special Permit and the Petition for a Variance. Mr. Furbush seconded the motion. Mr. Nelson voted yes. Mr. Furbush voted yes. Mr. Blaisdell voted yes. Mr. Reiffarth voted yes. Mr. Bonvie voted yes. Vote was unanimous.
Peter Costill: Requests a Special Permit under Section 174-25.H(7) of the Zoning By-laws for permission to construct a boathouse on property located in an R-3 zoning district at 37 Monomoscoy Road West (Map 114 Parcel 11) Mashpee, MA.
Sitting: Board Members Robert G. Nelson, Jonathan Furbush, William A. Blaisdell and James Reiffarth.
Peter Costill: Requests a Variance from Sections 174-31 and 174-33 of the Zoning By-laws to vary the land space requirements and the setback requirements from water or wetland to allow for construction of a boathouse on property located in an R-3 zoning district at 37 Monomoscoy Road West (Map 114 Parcel 11) Mashpee, MA. Costill Petitions Continued from April 27, 2011 to allow for Town Counsel opinion.
Sitting: Board Members Robert G. Nelson, Jonathan Furbush, William A. Blaisdell and James Reiffarth.
Mr. John Slavinsky represented the Petitioner and said that the proposal will not be called a boathouse. It will be a garage. He said that the proposal does not cross over any other properties. The Conservation Commission has issued an Order of Conditions.
Mr. Slavinsky referred to Section 174-24.J of the By-laws, which Attorney Costello read: “Where a use is not specifically listed in the §174-25 Table of Use Regulations, said use may be allowed if a finding is made by the Zoning Board of Appeals that said use may be allowed in a specific district on the basis that it is substantially similar in its construction, operation, traffic and environmental impact to a specific use allowed as of right or by special permit in said district and it is substantially dissimilar in those respects from any uses prohibited in the district.” Attorney Costello said that this Section gives the Board the right to vote in favor of a use (a boathouse) that is similar to a use that is allowed under the By-laws. He also stated that the wording in the Decision could reflect the word “garage”, even though the proposal was advertised as a boathouse.
Mr. Nelson said that Overland Road is a 25-foot wide paper street, not an 8-foot wide road as claimed by an abutter at the last public hearing.
Attorney Brian Wall represented Mr. Jack Carter, an abutter at 17 and 20 Monomoscoy Road West. He said that the proposal is not allowed under 174-25.H(7) because it doesn’t meet the setbacks requirements; and therefore, is not eligible under Section 174-24J of the By-laws. Attorney Wall said that he interprets lot coverage as met “and approved” as meaning approval from the Planning Board and that it will comply with minimum zoning requirements.
Attorney Costello said that Section 174-25.H.7 of the Zoning By-laws does give the Board discretion to determine if a Variance could be granted. He quoted the By-law: “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.” Attorney Costello said that this section does not mention lot coverage “as set forth in the Table of Use Regulations”. He said that the filing seeking a Special permit and the Variance allows for permit issuance under this By-law.
Mr. Costill said that he will be storing one boat and one vehicle inside the structure. After a short discussion by the Board, Mr. Costill agreed to reduce the size and move/rotate the location of the proposal.
Mr. Blaisdell made a motion to continue the Petitions until June 8, 2011 to allow for submission of revised plans. Mr. Furbush seconded the motion. Mr. Nelson voted yes. Mr. Furbush voted yes. Mr. Blaisdell voted yes. Mr. Reiffarth voted yes.
Jeremy N. Stevenson, et al, Trustees: Requests a Special Permit under Section 174-25.I(9) to allow for construction of a pier, ramp and float that will extend across a total of more than seventy feet of coastal beach, coastal bank, salt marsh or bordering vegetated wetlands on property located in an R-3 zoning district at 431 Monomoscoy Road (Map 124 Parcel 53) Mashpee, MA. Not heard. Continued from May 11, 2011 at request of Petitioner to allow for Conservation Commission approval.
Sitting: Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, Ronald S. Bonvie and Associate Member Judith M. Horton. Mr. Reiffarth stepped down.
Mr. John Slavinsky of Cape & Islands Engineering represented the Petition and said that the Shellfish Warden and Acting Harbormaster have approved the proposal. The Conservation Commission has issued an Order of Conditions and is allowing a 36-foot walkway over the fragile marsh area along with relocation of the proposed dock. The proposal will extend a total of 110 feet in order to accommodate Conservation’s requirements. Mr. Slavinsky said that the Petitioner owns all of the salt marsh area shown on the plan.
No comments were received from abutters.
Mr. Blaisdell made a motion to grant the Special Permit. Mr. Furbush seconded the motion. Mr. Nelson voted yes. Ms. Horton voted yes. Mr. Bonvie voted yes. Mr. Furbush voted yes. Mr. Blaisdell voted yes. Vote was unanimous.
This Decision is conditioned upon compliance with Cape & Islands Engineering plan entitled: “Raised Wooden Walkway, Pier, Ramp & Float, Proposed Site Plan Located in Mashpee, Mass. Prepared for Jeremy Stevenson, Date: Feb. 10, 2011, Revd. May 10, 2011 Remove 64’ of Walkway, Remove 4’ Pathway & Move Proposed Pier to the Vicinity of the Existing Dock”.
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 in an R-3 zoning district 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, March 23, 2011 Public Hearings and closed to Public Testimony at April 13, 2011 Public Hearings. Continued from May 11, 2011 to allow for Town Counsel opinion.
Mr. Nelson announced that due to illness of a Board member, only four members of the Board are eligible to sit on this Petition. Sitting: Board Members Robert G. Nelson, Jonathan D. Furbush and William A. Blaisdell and Associate Member Ronald S. Bonvie.
Attorney Patrick Costello said that he is satisfied with the accuracy of the site plan showing configuration of the master parcel as slightly in excess of 40,000 square feet of upland. Mr. Nelson said that he accepts Attorney Costello’s opinion and will no longer pursue that issue.
Attorney stated that the proposal to pave Russell Road met with some resistance from the Conservation Commission because of the creation of an impermeable area.
The Petitioner received approval from the Board of Health for a Title V septic system. Attorney Costello stated that the Board of Health also issued a well permit to the abutter at 333 Monomoscoy Road. That application did not reference the septic system permit that had been issued earlier in the year for the subject property. Attorney Costello said that the septic system permit issued in February 2011 is valid.
Attorney Costello said that denials of Chapter 40B proposals are typically based on concerns with public safety, health and welfare, increase of density, overcrowding issues, excessive burden on abutters, travelers on ways, as well as Police and Fire access issues. The Board must have a very compelling set of factual circumstances to override the presumption for local need of affordable housing.
Mr. Blaisdell made a motion to approve the Petition for a Comprehensive Permit. This will be conditioned upon compliance with the draft Decision composed by Attorney Costello. Mr. Bonvie seconded the motion. Mr. Nelson voted yes. Mr. Furbush voted no. Mr. Blaisdell voted no. Mr. Bonvie voted yes. Vote did not carry.
Attorney Costello advised the Board to make a motion to deny the Petition since the vote to grant did not carry.
Mr. Blaisdell made a motion to deny the Petition. Mr. Furbush seconded the motion. Mr. Bonvie voted no. Mr. Furbush voted yes. Mr. Blaisdell voted yes. Mr. Nelson voted no.
Mr. Brodie asked for a statement of reasons for the denial, which Mr. Blaisdell read. They are as follows:
- This proposed single family home will be built on a substantially undersized parcel of land, which has an area well below the 40,000 square foot minimum lot size established by §174-31 of the Mashpee Zoning Bylaw (“Bylaw”) for lots within an R-3 District. The density of this proposed Project far exceeds the density limits currently in effect for residential developments under provisions of applicable Bylaws, Regulations and/or Codes.
- Even with potential conditions to mitigate negative impacts, the development of a single family house on this undersized lot would pose significant health and public safety impacts for the residents of the proposed structure as well as owners/occupants of neighboring parcels.
- Even with potential conditions to mitigate negative impacts, the creation of a new, non-conforming lot and development of a single family house on said newly created, non-conforming lot would be inconsistent with the purpose, intent and objectives of the Mashpee Zoning Bylaws, Subdivision Rules and Regulations, Master Plan and Affordable Housing Production Plan.
- Even with potential conditions to mitigate negative impacts, the development of a single family house on a newly created undersized/non-conforming lot would not advance the planning and regulatory efforts of the Town of Mashpee, which do acknowledge and foster the development of affordable housing in the Town, however, also emphasize a need to maintain conformity with applicable land use regulations and to avoid the creation of non-conforming lots, structures and uses.
- Even with potential conditions to mitigate negative impacts, the development of a single family house on this newly created undersized/non-conforming lot is not consistent with the local needs of the Town of Mashpee for the reasons stated hereinabove.
OTHER BUSINESS
Affordable Housing Association of New England v. Town of Mashpee Zoning Board of Appeals: Barnstable Superior court C.A. No. BACV2008-00517 regarding property located in an R-5 zoning district at 72-72A Main Street (Map 47 Parcel 59) Mashpee, MA. Discuss terms of Settlement Agreement.
Attorney Costello said that in 2007/2008 the Building Commissioner determined that the Petitioner was not operating his business in the strict sense of a motel as described in the 6th edition of the State Building Code definition. That Code described a motel as occupants primarily residing for less than 30 days. A year after the Petitioner appealed the Building Commissioner’s determination, the State Building Code was amended. The Code now includes definition of two types of motels – long-term and transient. Long-term motels are specifically allowed by the Building Code for use in excess of 30 days.
Attorney Costello summarized some of the details of the settlement agreement. The Fire Department is satisfied with the settlement agreement. The fire lanes are clearly marked. The septic system is capable of handling the increase in motel occupants. Attorney Costello said that the agreement will limit use of the number of units occupied by long-term residents. Only 9 of the 19 units at any one time will be designated for long-term occupancy. The Petitioner will be limited to having 10 units at a time occupied for 90 days or less. Attorney Costello said that the State Department of Revenue recently rendered a ruling stating that motel/hotel stays of 90 days or less are subject to tax, whereas stays in excess of 90 days are viewed as more permanent residential occupancy. The settlement
agreement is binding upon the current owner, his successors and assigns, in perpetuity. The dumpster on the site will always be at least 40 feet away from any residential structure. The abutter has agreed to submit a letter authorizing Mr. White to locate the dumpster on the abutting property. All parking spaces will be shown on the plan and will be filed with the Town and maintained by the Building Inspector. Attorney Costello said that this is a reasonable settlement agreement giving the Town control of how the property will be used, as well as the authority to impose conditions, rules, regulations and guidelines for the operation of the motel. He stated that the settlement agreement gives the Building Inspector a clear set of criteria to apply and authorizes him to enforce action against the Petitioner.
Attorney Costello said that a Stipulation of Dismissal will be filed before the deadline. The settlement agreement will be signed and forwarded to the Board.
Accept May 11, 2011 Minutes
Mr. Furbush made a motion to accept the Minutes. Mr. Blaisdell seconded the motion. Mr. Nelson voted yes. Ms. Horton voted yes. Mr. Reiffarth voted yes. Mr. Bonvie voted yes. Mr. Furbush voted yes. Mr. Blaisdell voted yes.
Mr. Blaisdell made a motion to adjourn the meeting. Mr. Nelson seconded the motion. Ms. Horton voted yes. Mr. Reiffarth voted yes. Mr. Bonvie voted yes. Mr. Furbush voted yes. Mr. Blaisdell voted yes. Mr. Nelson voted yes.
Meeting was adjourned at 9:00 p.m.
Respectfully submitted,
Cynthia Bartos
Administrative Secretary
Zoning Board of Appeals
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