MASHPEE ZONING BOARD OF APPEALS
MINUTES
JULY 27, 2011
The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, July 27, 2011 at 7:00 p.m. (Conference Room #2) 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. Board Member John M. Dorsey was not present due to serious illness.
NEW HEARINGS
Margaret A. Johnson, Trustee: Requests a Variance from Section 174-31 of the Zoning By-laws for permission to vary the lot coverage requirements to allow for installation of a pool on property located in an R-3 zoning district at 47 Godfrey Road (Map 96 Parcel 104K) Mashpee, MA. Petitioner: Kenneth E. Norcross.
Sitting: Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell and James Reiffarth and Associate Member Ronald S. Bonvie.
Attorney Jack McElhinney represented the Petitioner, Mr. Norcross, who also attended the meeting. Mr. Dwayne Stefano represented the current homeowner. Attorney McElhinney stated that the Petitioner has been searching for a home in Mashpee for over two years. The property is under a purchase and sale agreement contingent upon ZBA approval of the pool. Mr. Norcross is very eager to purchase this home and install a pool for his adult handicapped daughter. His daughter is blind and deaf and is a daycare attendee at the May Center. Swimming is a very important part of her therapy.
The original building permit showed lot coverage at 20%, which the Petitioner’s engineer discovered is actually 20.8%. The dwelling is approximately 4,800 square feet with three very large decks, each of which is larger than the proposed pool. The pool will be 30x15 feet - approximately 450 square feet in size. Proposed lot coverage will be increased to 22.7%. Attorney McElhinney said that the Petitioner would like a little leeway and is seeking approval for 24% lot coverage. The property is located on a dead-end street approximately 150 feet from the Mashpee River and is surrounded by a wooded common area owned by the neighborhood association. The proposal meets all of the setback requirements. The gravel walk and gravel driveway reduce the impervious area on the property.
The proposed pool is not within Conservation Commission jurisdiction.
Attorney McElhinney outlined some of the hardships:
- the proximity of the subject property to the river with the required 150-foot setback creates setback constraints that are unique to the property.
- the odd shape of the subject property.
- the unusual configuration of the existing dwelling.
- several large decks that are not actual living space, but are considered part of the lot coverage, another unique feature of the property.
Attorney McElhinney said that a Conservation Commission hearing is scheduled for next week concerning the proposed upgrade of the septic system. A percolation test has been conducted. Mr. Nelson said that the septic system is not under the jurisdiction of the ZBA.
Mr. Furbush said he has a problem with the size of the pool and the request for 24% lot coverage. He asked if the Petitioner would consider ripping off a part of one of the existing decks. Attorney McElhinney said that would be an alternative, but it would be an uneconomical and unattractive option. He said that it would be hard to rationalize destruction of perfectly adequate structures in this economy. Mr. Reiffarth stated that he is not willing to grant 24% lot coverage and that the proposed 30x15-foot pool should be adequate for the Petitioner’s needs. Mr. Nelson commented that the proposed location of the pool would be very close to the dwelling at only four feet away.
Attorney McElhinney said that Mr. Norcross has spent a substantial amount of money on engineering plans and he hasn’t even bought the home yet. Mr. Norcross was waiting for ZBA approval before he spent more money on a fully-engineered pool plan. Attorney McElhinney explained that the Petitioner was looking for a little flexibility with Variance relief from the lot coverage.
Mr. Norcross said that a fiberglass pool would not crush the septic system and would be easier to install on the property. The size of the fiberglass pool is 14x32.6 feet, only five square feet larger than the proposed 15x30. Mr. Norcross said that he taught his daughter how to swim when she was two years old. He said that she was always banging into things and getting hurt. Mr. Norcross said that when his daughter is in the water, she’s liberated. Mr. Norcross said that his daughter has been residing in a shared-living environment in Mashpee since 2005. He has a small condo in the Mews and needs more room to accommodate other family members. He looks forward to integrating them back into his life along with his daughter.
Mr. Nelson commented that Mr. Norcross is trying to put his family back together again and in order to do so, he wishes to install the pool. Mr. Nelson said that it is a valid request and he supports it. He said that if the engineer had used the original calculation of 20% lot coverage, the proposal would be coming in under 21%.
Mr. Reiffarth asked for the explanation of the question mark on the plan. Mr. Norcross explained that it is an enclosed deck off the master bedroom. Mr. Stefano said that it is a platform for a hot tub and is approximately one foot off the ground. Mr. Nelson said it could be argued that this 16x12 foot deck is actually a patio. This would reduce the lot coverage by 192 square feet, nearly half the dimension of the proposed pool.
Mr. Alfred Houston of 52 Old Dock Lane inquired about the flags all over the ground on the subject property. Mr. Norcross explained that the flags located the sprinkler system heads so that the irrigation system wasn’t destroyed when the perc test was conducted. Mr. Nelson said that the concrete patio will only be four to five feet wide around the pool. Mr. Houston asked about proposed tree removal and the fence design. He said he doesn’t like the idea of a vinyl fence and would prefer a wooden fence. He asked the Board to have Mr. Norcross install planting by the fence. Mr. Norcross said that only one dead pine tree will be removed in connection with installation of the pool. Mr. Nelson said that any tree removal in connection with the septic system is outside the ZBA’s
control.
Mr. Michael Aceto, a direct abutter at 39 Godfrey Road, said that Mr. Norcross went through the proper procedures and received unanimous approval from the Baybury Village Homeowners Association for installation of black chain link or black aluminum rail fencing. He said that the Association was opposed to a stockade wooden fence. He and Mr. Norcross confirmed that the fence will be almost invisible. Mr. Nelson suggested that the Petitioner should install the fence two feet away from the property line which would allow him to maintain the fence without encroaching on his neighbor’s property.
Mr. Nelson informed the Board that he knows Mr. Aceto and that Mr. Nelson’s daughter was married to one of Mr. Aceto’s relatives. Mr. Nelson said that this relationship would not affect his decision.
Mr. Edward Tucker of 53 Godfrey Road said that he is also concerned about the appearance of the proposed fence. Mr. Norcross said that existing trees and shrubs will obscure the fence from the abutters’ view.
The Board voted unanimously to grant a Variance of 2.7% from the lot coverage requirements to allow for installation of a pool. This is conditioned upon compliance with Warwick & Associates, Inc. plan entitled: “Site Plan Proposed Pool for 47 Godfrey Road, Mashpee, Mass. Date: 7/02/2011. Plan revisions: 7/1/11 and 7/18/11”.
CONTINUED HEARINGS
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. Continued from June 22, 2011 Public Hearings at request of Petitioner. Opened, not heard.
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. Continued from June 22, 2011 Public Hearings at request of Petitioner. Opened, not heard.
Mr. Furbush made a motion to continue the above-referenced Petitions until August 10, 2011. He also said that this will be the final continuance granted by the Board and that the Petitioner must represent the Petitions on August 10, 2011 or the Board will Deny them. Mr. Blaisdell seconded the motion. Mr. Nelson voted yes. Ms. Horton voted yes. Mr. Bonvie voted yes. Mr. Reiffarth voted yes. Mr. Furbush voted yes. Mr. Blaisdell voted yes. Vote was unanimous.
OTHER BUSINESS
Affordable Housing of New England v. Town of Mashpee Zoning Board of Appeals: Review Site Plan and Definitive Plan of Land received from Town Counsel concerning property located in an R-5 zoning district at 72 – 72A Main Street, Mashpee MA.
The Definitive Plan which is supposed to show the existing parking plan is dated and signed in 2001. No handicap parking spaces are shown. Mr. White has altered an original definitive plan by attaching a sticky note on it.
Item 6 of the Settlement Agreement reads: “AHA-NE must provide the existing 1980’s parking plan to the Building Inspector, as submitted to the Board of Appeals with current/existing conditions, showing all designated parking spaces and identifying which parking space(2), if any, is associated with any particular unit of the Motel.
The “Existing Conditions Plan” is dated October 26, 1982. The Board specified that the Petitioner must submit plans showing the conditions that existed at the time of the settlement.
After looking over the submitted plans, the Board voted unanimously to refer this matter back to Town Counsel. The Board is not satisfied with the plans. The Board would like Mr. White to submit certified, registered, stamped engineered plans that show the conditions that exist today. The Board will leave the matter up to Town Counsel to resolve.
Accept July 13, 2011 Minutes
The Board voted unanimously to accept the Minutes.
Proposed Change in Status/Title of two Board Members
This item will be discussed at the ZBA meeting after the next Board of Selectmen meeting.
Protocol for Requesting Town Counsel Opinion
Mr. Nelson said that Town Counsel will assist the Board on upcoming Petitions such as the Aquaculture farm proposal and the Wampanoag Tribe Affordable Housing Project. Mr. Nelson said that he and Joyce Mason agree that a request for Town Counsel involvement shall be a matter that is discussed and voted on at a Public Hearing by the entire Board. If an individual Board Member feels that a Petition needs Town Counsel advice, that individual should contact the ZBA secretary by email and/or by phone and request the matter to be put on the Agenda for discussion and vote.
Mr. Blaisdell made a motion to adjourn the meeting. Mr. Furbush seconded the motion. All voted in favor. Meeting was adjourned at 8:30 p.m.
Respectfully submitted
Cynthia Bartos
Administrative Secretary
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