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Zoning Board of Appeals Minutes 06/22/2011
MASHPEE ZONING BOARD OF APPEALS
JUNE 22, 2011
MINUTES

The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, June 22, 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 and James Reiffarth and Associate Board Members Ronald S. Bonvie and Judith M. Horton were present.  Acting Building Commissioner Charles R. Maintanis also attended the meeting.  Board Member John M. Dorsey was not present due to serious illness.  
Chairman Robert G. Nelson opened the meeting at 7:00 p.m.

DISCUSSION

Timothy M. Kelly: Requests Discussion of Minor Modification to a site plan for an allowed use to allow for a fruit and vegetable stand on property located in a C-1 zoning district at 538 Falmouth Road (Map 74 Parcel 16) Mashpee, MA.

Mr. Timothy M. Kelly informed the Board that he is appearing before the Board at the request of Acting Building Commissioner Charles R. Maintanis.  He proposes to use a portion of the subject lot for outdoor sale of fruit and vegetables, an allowed use specified in the 1993 ZBA Special Permit under Section 174-25.F.5 (SP-93-16) granted on March 24, 1993 to Joyce M. Lyons of East Falmouth.  Section 174-25.F.5 reads: “Sales places for flowers, garden supplies, agricultural produces partly or wholly outdoors, including commercial greenhouses”.  Mr. Kelly said that the vegetable stand operated for four years.  Mr. Reiffarth confirmed that there was a fruit and vegetable stand on the property.  Mr. Kelly asked for clarification of the ZBA’s jurisdiction over this proposal given that he is neither modifying the Special Permit nor changing any structure.  Mr. Kelly said that his ultimate goal is to make the proposal a success.  

Mr. Nelson said that his point of contention is that the 1993 Special Permit was granted to allow the fruit and vegetable stand to operate outside of the Picnic Box Restaurant.  The 1993 Special Permit reads: “A Petition was filed by Joyce M. Lyons of East Falmouth, Massachusetts for a Special Permit under Section 174-25.F.5 of the Zoning By-laws for permission to operate a fruit and vegetable stand outside of the Picnic Box Restaurant in a C-1 zoning district at 518, 528 and 538 Falmouth Road (Map 74 Parcel 16) Mashpee, MA”.  The Special Permit references the entire lot, which includes all of the buildings on the property located at Map 74 Parcel 16.  

Mr. Kelly said that he will store his produce in a cooler inside Smitty’s Ice Cream.  Mr. Kelly said that the By-law does not have any square foot definition requiring him to provide parking spaces for his outside operation.  Mr. Maintanis agreed and said that he has already consulted about this proposal with Town Planner Thomas Fudala.  Parking spaces would only be required if Mr. Kelly planned on using space inside a building.  Mr. Maintanis reiterated that this proposal is for outside sale of produce, which falls under Board of Health jurisdiction.  The Board of Health has determined that Mr. Kelly’s operation does not fall under Section 103 definition of a Hawker, Peddler, Transient Vendor.  

Mr. Nelson said that the ZBA should have some say over this operation since the ZBA issued the original Special Permit.  He expressed his concern with the poor condition of the road, small parking area and the heavy traffic flow, which he admitted has existed for a long time.  Mr. Bonvie agreed and said that there is a “potential for a stacking situation” and that drivers will be utilizing parking spaces normally used by Picnic Box customers.  Mr. Blaisdell said that the traffic situation is an issue that should be resolved between the tenants occupying the buildings and the property owner, not Mr. Kelly.  Mr. Kelly is not responsible for parking spaces.  Mr. Kelly said that he researched the Building and ZBA files and found that no violations had been issued nor any concerns expressed by any Town Departments regarding the sale of produce on the subject property.  The Board questioned what was on the original site plan from 1993.  Mr. Maintanis said that current site plans address the issue of parking spaces required for the entire property.  

In response to the traffic issue, Mr. Kelly quoted Section 174-24.C.9(B) and said that he “is not increasing the amount of structures on the property by greater than 5%”.  Mr. Kelly said that his hours of operation will be 10:00 a.m. to 7:00 p.m. Monday through Friday.  He will open at 8:00 a.m. in the morning on the weekends.  The stand will be open until Columbus Day.  Mr. Kelly said that Smitty’s Ice Cream opens at 1:00 p.m. and his hours of operation are predominately after 7 p.m.  The stand will be closed by that time.  He stated that the generation of traffic would be harmonious with use and operation of the property by all of the businesses.  The fish market opens at 10:00 a.m.  Mr. Reiffarth questioned if the fish market has inside seating.  Mr. Kelly said that only outside seating of picnic tables is provided.

Mr. Kelly said that he has complied with Board of Health, as well as weights and measure requirements.  The Board thanked Mr. Kelly for his discussion and wished him success in his endeavors.

NEW HEARINGS

Desmond M. and Joan H. Kelly: Request a Finding of Fact under Section 174-17 of the Zoning By-laws for permission to construct a screened porch onto an existing home on property located in an R-3 zoning district at 5 Shore Drive (Map 112 Parcel 73) Mashpee, MA.

Sitting: Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell and James Reiffarth and Associate Member Judith M. Horton.

Mr. Desmond M. Kelly represented his Petition and stated that he would like to enclose his porch.  He said that the pie shape of his property restricts location of the dwelling and creates a hardship for the proposal to meet the setback requirements.  Mr. Kelly invited his neighbors onto his property and detailed his plans.  His neighbors assured him that the proposal does not pose any concerns for any of them.  
Mr. Nelson said that the lot coverage calculation on the site plan is incorrect, but that the proposal would not exceed the 20% allowed.  

No comments were received from abutters.

Mr. Blaisdell made a motion to grant a Finding of Fact to allow for the proposal.  Findings: Such change, extension or alteration shall not be substantially more detrimental than the existing non-conforming structure or use to the neighborhood and that there is adequate land area to provide sufficient parking and setbacks as may be required.  Conditioned upon compliance with plan dated May 24, 2011 and signed by Professional Land Surveyor Kevin E. Danahy entitled: “Cyprus Design, Inc. Plot Plan of Land, 5 Shore Drive, Mashpee, MA. Prepared for Desmond Kelly”.  Mr. Nelson seconded the motion.  Ms. Horton voted yes.  Mr. Furbush voted yes.  Mr. Nelson voted yes.  Mr. Reiffarth voted yes.  Mr. Blaisdell voted yes.  Vote was unanimous.

Stephen Berish, Trustee: Requests a Finding under Section 174-24.J and a Special Permit/Modification under Section 174-25.E(2) to allow for retail and service donut/pastry shop with accessory drive-thru window on property located in a C-2/R-3 zoning district at 439 Nathan Ellis Highway (Map 72 Parcel 23) Mashpee, MA.

Stephen Berish, Trustee: Requests a Variance from Section 174-25.F.7 of the Zoning By-laws to allow for retail and service donut/pastry shop with accessory drive-thru window on property located in a C-2/R-3 zoning district at 439 Nathan Ellis Highway (Map 72 Parcel 23) Mashpee, MA.

Attorney Kevin M. Kirrane said that the Petitioner has requested continuance of the Petitions due to some issues with the prospective tenant.  Mr. Furbush made a motion to continue the Petitions until July 27, 2011.  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.  Vote was unanimous.

Peter R. and Carolie D. Owens: Request a Finding of Fact under Section 174-17 and Rebuild of destroyed or damaged non-conforming structure under Section 174-20 of the Zoning By-laws and a Finding of Fact under M.G.L. Chapter 40A Section 6 to raze and replace a pre-existing, non-conforming structure on property located in an R-3 zoning district at 166 Waterway (Map 111 Parcel 89) Mashpee, MA.

Sitting:  Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell and James Reiffarth and Associate Member Judith M. Horton.  Mr. Ronald S. Bonvie said that he was stepping down from this Petition.

Peter R. and Carolie D. Owens: Request a Variance from Sections 174-31 and 174-33 of the Zoning By-laws to vary the front and side setback requirements and the setback requirements from water and wetlands to allow for construction of a dwelling and pool on property located in an R-3 zoning district at 166 Waterway (Map 111 parcel 89) Mashpee, MA.

Sitting:  Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell and James Reiffarth and Associate Member Judith M. Horton.  Mr. Ronald S. Bonvie said that he was stepping down from this Petition.

Materials submitted: photos of the subject and abutting properties.*

Attorney Kevin M. Kirrane and Architect Timothy Luff represented the Petitioners.  Mr. Todd Pavone, the prospective owner also attended the meeting.  The property is under a Purchase and Sale Agreement with Todd and Dena Pavone.  The existing dwelling will be replaced with a new 4-bedroom residence along with addition of a pool.  Attorney Kirrane said that the pool will be installed within the coastal bank, requiring a 50-foot setback from water and wetlands. He also stated that the existing structure is closer to the northerly and southerly sidelines, closer to the street and closer to the wetlands than the proposed construction.  

Attorney Kirrane said that the coastal bank cuts through a substantial portion of the lot and actually runs through the existing structure.  He stated that the property slopes significantly from front to back with a substantial change in elevations on the property.  These unique circumstances create hardship for the parcel to be developed without Variance relief from the setback requirements.  Mr. Maintanis noted that the proposed retaining wall would appear to be 12 feet in height in some areas on the property.  Attorney Kirrane said that the proposal is consistent with other projects in the area.  

Mr. Luff said that the average grade was determined by Registered Land Surveyor Thomas Bunker.  Mr. Maintanis quoted the By-laws which state that “height shall be measured from the average original grade of the land adjacent to the foundation line of any proposed structure”, rather than average grade on the lot.   

The Board of Health has approved installation of a new Title V Septic System; a vast improvement over the existing cesspool.

Mr. Luff said that the Conservation Commission has demanded a significant amount of mitigation planting on the property along with reduction of the size of the lawn.  The Conservation Commission has scheduled another hearing on the proposal for June 30, 2011.
Mr. Furbush said that he is concerned with the overcrowding of houses in the area and asked if the pool could be moved further away from the lot line.  Mr. Reiffarth made a few suggestions on where the pool could be relocated.  Mr. Luff said that this would re-direct traffic flow too close to the pool for safety or comfort.  Mr. Pavone said that he has several small children.  He desires a larger patio area with as much space as possible between the house and the pool area in order to ensure the wellbeing of his family.  After some discussion, the Board concluded that relocating the pool a meager couple of feet would not have much of an impact on the entire proposal.    

No comments were received from abutters.

Mr. Blaisdell made a motion to grant the Finding of Fact under Section 174-17 and Rebuild under Section 174-20 and a Finding under MGL under Chapter 40A Section 6.  Findings:  Proposal is not substantially more detrimental than existing conditions.  There is sufficient parking and setbacks.  Mr. Furbush seconded the motion.  Ms. Horton voted yes.  Mr. Nelson voted yes.  Mr. Reiffarth voted yes.  Mr. Furbush voted yes.  Mr. Blaisdell voted yes.  Vote was unanimous.

Mr. Blaisdell made a motion to grant the following Variance relief:
  • 50 feet to the setback from water and wetlands.
  • 6.9 feet from the side setback requirements for the pool.
Findings: irregular topography of the lot, soil conditions.  
These Decisions are conditioned upon compliance with the following:
  • BSS Design Engineering & Surveying plan entitled: “PLOT PLAN – RECONSTRUCT HOUSE AND SUBSURFACE SEWAGE DISPOSAL SYSTEM AT 166 WATERWAY, NEW SEABURY, MASSACHUSETTS PREPARED FOR TODD AND DENA PAVONE, date: May 27, 2011, REVISIONS: JUNE 2, 2011, JUNE 14, 2011, title: EXIST CONDITIONS 1 OF 4”.
  • height requirement of 35 feet from the mean grade.
  • Conservation Commission approval of the proposal.
Mr. Furbush seconded the motion.  Ms. Horton voted yes.  Mr. Nelson voted yes.  Mr. Reiffarth voted yes.  Mr. Blaisdell voted yes.  Mr. Furbush voted yes.  Vote was unanimous.

OTHER BUSINESS

First Citizens Federal Credit Union: Distribute Engineer Charles L. Rowley’s June 9, 2011 report of site inspection of property located at 71 Jobs Fishing Road.

Building Commissioner Charles R. Maintanis said that he has issued a temporary Certificate of Occupancy to the credit union.  He stated that some issues still need to be addressed.  The Board is waiting for a final site inspection and report from Engineer Charles L. Rowley.  

Affordable Housing Association of New England (A.H.A.N.E.) 66 Main Street: Distribute notarized letter from Nivaas Corporation giving permission to locate A.H.A.N.E. dumpster on abutting property.

Mr. Nelson asked if the dumpster will be located on a foundation with a fence around it.  The dumpster must be installed in strict compliance with present Board of Health and Fire Department regulations.  Mr. Maintanis said that installation of the dumpster will be handled as part of the negotiated settlement.  

Mr. Nelson said that the hearing for 167 Wading Place Road court case has been postponed.  It has not been rescheduled yet.

Mr. Furbush asked Mr. Maintanis to look into the issue of signage at the corner of Route 28 and Sampsons Mill Road.  He stated that the ZBA decision required installation of a “DO NOT ENTER” sign, which he has not seen installed yet.  There was also some question about the “LEFT HAND TURN ONLY” sign.   

Accept June 8, 2011 Minutes
Mr. Blaisdell made a motion to accept the Minutes.  Ms. Horton seconded the motion.  Mr. Nelson voted yes.  Mr. Furbush voted yes.  Mr. Reiffarth voted yes.  Mr. Bonvie voted yes.  Ms. Horton voted yes.  Mr. Blaisdell voted yes.  Vote was unanimous.

Mr. Nelson stated that he had planned to stay on the Board until the last meeting in June this year.  He said that he has reconsidered his decision because of Mr. Dorsey’s absence due to serious illness.  He said that it would be detrimental to the Town if he chose to step down right now.  Mr. Nelson said that he will reluctantly accept re-appointment, but will not guarantee that he will be staying for very long.  He said that he will remain re-appointed at least until the situation with Mr. Dorsey is resolved so the Board will have alternate members in addition to full Board Members.

Mr. Blaisdell made a motion to adjourn the meeting.  Seconded, passed unanimously.  Meeting was adjourned at 9:00 p.m.

Respectfully submitted,

Cynthia Bartos
Administrative Secretary
Zoning Board of Appeals


*ALL MATERIALS SUBMITTED AT THE MEETING ARE AVAILABLE FOR REVIEW IN THE ZBA OFFICE.