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Zoning Board of Appeals Minutes 09/14/2011
MASHPEE ZONING BOARD OF APPEALS
SEPTEMBER 14, 2011
MINUTES

The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, September 14, 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 and Ronald S. Bonvie and Associate Board Member Judith M. Horton were present.  Associate Board Member John M. Dorsey was not present due to serious illness.

Chairman Robert G. Nelson opened the meeting at 7:04 p.m. and announced that the meeting was being televised live.  

CONTINUED HEARINGS

Leslie A. Wagner Caffyn, et al:  Request Appeal under Massachusetts General Laws Chapter 40A Sections 8 and 15 of the Building Commissioner’s Decision regarding his enforcement jurisdiction on the proposed offshore aquaculture farm on property abutting an R-3 zoning district at 10 Popponesset Island Road (Map 105 Parcel 267A) Mashpee, MA.  Appellants request reversal of the Building Commissioner’s Determination and issue a ruling that the proposed aquaculture grant is subject to, and prohibited by, the Town’s By-laws.  Petition closed to public testimony and continued from August 10, 2011 Public Hearings.  

Sitting:  Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, James Reiffarth and Ronald S. Bonvie.

Mr. Nelson said that the Board has received considerable documentation regarding this Petition from Attorney Costello and from Attorney Wall over the past few weeks, which the Board has had sufficient time to review.  Mr. Nelson asked each of the Board Members to make a statement and/or ask a question regarding the Petition.  He expressed confidence that a Decision will be rendered at tonight’s meeting.  

Mr. Bonvie stated that he has read all of the correspondence and believes it has come down to a legal issue.  He said that he concurs with Town Counsel’s opinion that the matter does not fall under the Building Inspector’s enforcement jurisdiction, nor is it prohibited by the Town’s By-laws.       

Mr. James Reiffarth agreed with Mr. Bonvie’s statements and said that Town Counsel has submitted all of the information that the Board needs to make an informed Decision.  

Mr. Blaisdell agreed with Mr. Bonvie and Mr. Reiffarth.  He said that he concurs with Town Counsel advice and with the Building Inspector’s Determination that the Aquaculture Grant is situated in an area of Popponesset Bay, which is owned and controlled by the Commonwealth of Massachusetts, and, as such, the Town of Mashpee  By-laws do not apply to the aquaculture grant.  

Mr. Jonathan Furbush said that he has reviewed all of the documentation and sympathizes with the abutters’ concerns.  He said that the Board has been asked to render a Decision on an Appeal of the Building Inspector’s Determination.  He said that the crux of the matter is whether the Building Inspector’s jurisdiction includes regulation of land below the mean low water line of tidal bodies of water.  He said that this is not a zoning issue, but a matter for the Board of Selectmen who issued the permit allowing for the aquaculture grant.  He said that he agrees with the rest of the Board.

Mr. Nelson said that the Board has not been charged with determining public safety or welfare.  He said that he concurs with the other Board Members and upholds the Building Inspector Determination.  He said that, by express language in our By-law, the Building Inspector is the ultimate arbiter of where boundary lines lie and the Building Inspector’s Determination is supportable as a matter of law.

Mr. Nelson moved that the Board supports the Building Inspector’s Determination and his actions regarding this Petition.  Mr. Furbush seconded the motion.  All voted in favor.  

(I reminded the Board that their vote should be to Deny or Approve the Appeal).  

Mr. Blaisdell made a motion to vote in favor of the Appeal.  Mr. Furbush seconded the motion.  Mr. Bonvie voted no.  Mr. Reiffarth voted no.  Mr. Blaisdell voted no.  Mr. Furbush voted no.  Mr. Nelson voted no.  Vote was unanimous to Deny the Appeal.  
 
NEW BUSINESS

Franey Medical Laboratories, Inc.: Requests a Special Permit under Sections 174-25.D(2), 174-25.D(3), and 174-24.C(1) of the Zoning By-laws for permission to construct a medical office, laboratory, and warehouse on property located in an I-1 zoning district at 52 Mercantile Way (Map 88 Parcel 85) Mashpee, MA.  Owner of record: The Community Bank.  Property under agreement with Petitioner: Franey Medical Laboratories, Inc.

Materials submitted: Attorney Kirrane’s written presentation.  Photos of the property.  Stormwater management agreement with Board of Health.**

Sitting:  Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, James Reiffarth and Ronald S. Bonvie.

Attorney Kevin M. Kirrane represented the Petitioner.  Ms. Kathleen M. Franey attended the meeting along with her parents, Robert and Dorothy Mr. Franey.  Engineer Matthew Eddy of Baxter-Nye Engineering and Surveying and Construction Supervisor Joao Junqueira of Capewide Enterprises, LLC also represented the Petitioner.  

Attorney Kirrane reminded the Board that it granted a Special Permit to the previous owner allowing for construction of four separate contractor bay buildings on the subject property.  That previous owner has been foreclosed upon.  

The Petitioner, Franey Medical Laboratories, Inc. recently signed a Purchase and Sale Agreement on the property.  The subject property is located in an Industrial Zone and consists of 1.64 acres of land with the required 200 feet of frontage.  The proposal calls for construction of a 5,700 square foot wood frame building with shingles and clapboard on a concrete slab, which will replace the existing concrete slab on the property.  The building will be used for corporate offices and medical laboratory purposes in the front, and a warehouse with a loading dock to the rear of the building.  Twenty-two parking spaces will be provided.  Proposed lot coverage will be approximately 8%.  This new location will allow the Company to continue to expand and more efficiently provide services to its clientele, which consists largely of physicians, the Courts and corporate employers.    

Attorney Kirrane stated that the laboratory function involves the preparation of a specimen, which is almost exclusively urine and collected off-site, analyzing the specimen, and then generating a report for transmittal to the client.  All specimens are retained for 30 days, providing the Petitioner opportunity to dispose of all specimens properly.  Hours of operation will be Monday through Friday from 8:00 a.m. to 5:30 p.m.   Deliveries are made via UPS or FED-EX trucks.  Small cars are also used to make deliveries.  There will be no large tractor trailers. This is an allowed use under Section 174-25.D(2) and 174-25.D(3) with grant of a Special Permit from the ZBA.     

Attorney Kirrane stated that the proposed use is far less intense in nature than the use previously approved for this site by the Zoning Board of Appeals in 2008.  The proposed location of the facility will be 100 feet farther away than the buildings previously approved by the Board in the 2008 Decision.  Referring to Section 174-24.C(1) of the Zoning By-laws, Attorney Kirrane said that there will be no adverse impacts on public facilities, surface and groundwater quality, traffic and neighboring properties.  All runoff on site will be retained and dispensed into vegetated drainage facilities.  The proposal will not generate excessive noise or hazardous waste.   

Mr. Nelson said that the Board will require a deposit from the Petitioner for fees incurred by a consulting engineer who will be acting on behalf of the Board.  After a brief discussion, the Board and the Petitioner agreed to a figure of $3,000 which will be deposited into an account from which the consulting engineer will be paid.  

Mr. Nelson said that parking in front of the building requires ZBA approval.  

Mr. Junqueira said that the signage will only be 2’ x 8’ or 2’ x 10’ in size.  

Mr. Eddy said that the photometric plan shows that lighting is designed to illuminate up to 20 feet from the property line with zero light intensity at the property line along the rear and the sides – all at ground level.  The luminaires are shoebox-style light fixtures with 90 degree cutoffs.  

The Board of Health has asked for the following conditions to be incorporated into the Decision:  
  • A contract for servicing of the Bio-Retention swales and catch basins shall be submitted annually to the Board of Health.
  • Hazardous materials shall be limited in volume to 200 pounds dry weight and 220 gallons of liquid storage.  Hazardous waste shall be limited according to 310 CMR 30.00, Massachusetts Hazardous Waste Regulations.  Storage of hazardous materials outside is prohibited.
  • All changes in ownership/tenancy shall be approved by the Board of Health.
  • Material Safety Data Sheets (MSDS) shall be kept on-site in bound notebooks for all hazardous products.  The MSDS shall be made available for inspection by an Agent of the Board of Health.
Responding to Mr. Bonvie’s question about disposal of toxic wastes, Mr. Franey said that materials that are toxic to the aquatic environment are not disposed of down the drain.  He said that this type of business is regulated by the federal Clinical Laboratory Improvement Act and the state Department of Public Health.  

Mr. Bonvie strongly urged the Board to include the Stormwater Management Agreement in the Decision.  He commended the Petitioner for submitting the agreement with a maintenance plan.  

The Design Review and Plan Review Committees have approved the project.  The Fire Department has confirmed that it has adequate access to the property.          

Mr. Nelson referred to a letter submitted by the abutters at Sugar Pine Circle.  He said that the warehouse is located over 300 feet from the property line of the abutters, not 150 feet as stated in the letter.

Mr. Scott Gabriel, an abutter at 24 Sugar Pine Circle, asked about the screening trees in the rear of the property.  Mr. Junqueira said that light motion detectors could be installed instead of having the lights on 24 hours a day.  

Mr. Richard Boyden, an abutter at 16 Sugar Pine Circle, expressed concern with the height of the building and said that Leyland Cypress trees maintain greenery all year long.  He insisted that the Petitioner plant them at 10-foot intervals for a distance of 100 feet on the rear of the property.  Mr. Eddy said that the Town’s Design Review/Plan Review landscape architect recommended planting of White Pine, a large, fast-growing native tree much like the Leyland Cypress.  Mr. Nelson said that the building will have a peaked roof and will appear to be just a large house from a distance.  He asked if the Petitioner would agree to installation of a window in the back of the building to make it more aesthetically pleasing.  Mr. Junqueira suggested the addition of a round attic vent to the back of the building.  
  
Mr. Seth Zarum of 24 Sugar Pine Circle said that he prefers Leyland Cypress rather than White Pine.  He said that he wants to enjoy peace and quiet in his back yard.  

Mr. Eddy said that the septic system is located under the parking lot in the rear corner of the property more than 100 feet from any residential wells.  The leaching field is more than 100 to 200 feet away from residential wells.  Mrs. Joan Pietrzak of 28 Sugar Pine Circle expressed concern with leaching of toxic materials into the groundwater.  Attorney Kirrane said that the concentration of specimens disposed of at the facility is significantly less than the concentration compared to an individual flushing a drug down a drain in his home.

Mr. Scott Gabriel asked what the hours of construction will be.  Mr. Nelson said that the Building Permit should spell that out.  (The Board should make that specific request to the Building Inspector).  Mr. Furbush said that there are Town Regulations on construction noise.  (No such By-law exists.  In the future, the Board can consider conditioning commercial construction Decisions by restricting construction hours during the week/weekends, etc).  

Mr. Blaisdell made a motion to grant the following:
  • the Special Permit;
  • permission to allow for parking in front of the building;
  • permission for one sign that shall not exceed 2 feet x 10 feet;
This is conditioned upon compliance with the following:
  • SPB Designs architectural plan dated 6/27/2011 entitled: “Franey Medical Labs for Capewide Enterprises, Commercial St., Mashpee, MA”.  
  • Baxter-Nye Engineering & Surveying Site Construction Plans ten sheet set entitled: “Franey Medical Labs, 52 Mercantile Way (Lot 20) Mashpee, Massachusetts, Prepared for Franey Medical Labs, Cover Sheet Date 09-09-2011”.   
  • Stormwater Management System and Inspection & Monitoring Plan dated 9/9/11.   
  • Board of Health memo dated 9/13/2011:  1)  A contract for servicing of the Bio-Retention swales and catch basins shall be submitted annually to the Board of Health.  2)  Hazardous materials shall be limited in volume to 200 pounds dry weight and 220 gallons of liquid storage.  Hazardous waste shall be limited according to 310 CMR 30.00, Massachusetts Hazardous Waste Regulations.  Storage of hazardous materials outside is prohibited.  3) All changes in ownership/tenancy shall be approved by the Board of Health.  4)  Material Safety Date Sheets (MSDS) shall be kept on-site in bound notebooks for all hazardous products.  The MSDS shall be made available for inspection by an Agent of the Board of Health.
  • ReflexLighting Photometric plan dated 8/15/11.  
  • installation of light motion detectors.
  • the existing concrete slab shall be removed and replaced with the new foundation.
  • deposit of $3,000 by the Petitioner to cover engineering consult fees.  Any excess balance shall be returned to the Petitioner.
  • minor modifications can be made with the approval of the consulting engineer, Charles L. Rowley.
  • major modifications shall require ZBA approval.
Findings: there are no public safety issues, no health issues, no traffic issues, no environmental issues.  Mr. Furbush seconded the motion.  Mr. Reiffarth voted yes.  Mr. Nelson voted yes.  Mr. Bonvie voted yes.  Mr. Blaisdell voted yes.  Mr. Furbush voted yes.  Vote was unanimous to grant the Special Permit.

Although not on the Agenda, the Board allowed Mr. Donald Douglas of 21 Edgewater Road to address the Board.  Mr. Douglas stated that he was instructed to ‘just show up at the ZBA meeting’.  Mr. Douglas said that he was told that the Police Department does not have the personnel to increase patrols in his neighborhood.   He said that he and some of his neighbors plan to install speed bumps on their street to discourage speeding drivers.  The speed bumps will be removed during the winter months.  Mr. Nelson said that, since Edgewater Road is a public street, this is a DPW issue.  Mr. Douglas said that he has received approval from DPW.  Mr. Reiffarth urged Mr. Douglas and his concerned neighbors to submit license plate numbers of the speeding motorists to the Police Department.  The Board also encouraged the neighbors to contact DPW about installing more caution signs on the street.  
 
OTHER BUSINESS

Discussion/Vote: Reciting the Pledge of Allegiance at commencement of ZBA Meetings.  Mr. Blaisdell made a motion to recite the Pledge of Allegiance at commencement of ZBA meetings, as long as there is a flag in the room.  Mr. Nelson seconded the motion.  Ms. Horton voted yes.  Mr. Bonvie voted yes.  Mr. Furbush voted yes.  Mr. Blaisdell voted yes.  Mr. Reiffarth voted yes.  Mr. Nelson voted yes.  Vote was unanimous.

Discussion: Appointment of ZBA Alternate(s) to Design Review Committee.  Mr. Nelson read the letter dated August 23, 2011 from the Attorney General approving Articles 14, 17, 19 of the Mashpee Town Meeting.  After a brief discussion, Mr. Nelson appointed two alternates (who also volunteered), Mr. Furbush and Mr. Blaisdell.  Mr. Nelson said that the alternates will not have to worry about attending many of the Design Review meetings since he is rarely absent.  He suggested that the term of this appointment shall be concurrent with the alternates’ ZBA appointment terms.

Vote:  Cancel or hold ZBA Public Hearings on September 28, 2011.  Celebration of Rosh Hashanah begins at sundown.  No new Petitions filed.  Mr. Blaisdell made a motion to cancel the meeting.  Mr. Nelson seconded the motion. Ms. Horton voted yes.  Mr. Bonvie voted yes.  Mr. Furbush voted yes.  Mr. Blaisdell voted yes.  Mr. Reiffarth voted yes.  Mr. Nelson voted yes.  Vote was unanimous.  Meeting shall be canceled.
 
Distribute Confidential Litigation Documents: 24 Russell Road. (For transmittal purposes only – not a public document, not for public discussion).

Accept August 10, 2011 Minutes
Mr. Furbush made a motion to accept the Minutes.  Mr. Blaisdell seconded the motion.  Ms. Horton voted yes.  Mr. Bonvie voted yes.  Mr. Furbush voted yes.  Mr. Blaisdell voted yes.  Mr. Reiffarth voted yes.  Mr. Nelson voted yes.  Vote was unanimous.

Mr. Nelson made a motion to adjourn the meeting.  Mr. Blaisdell seconded the motion.  Ms. Horton voted yes.  Mr. Bonvie voted yes.  Mr. Furbush voted yes.  Mr. Blaisdell voted yes.  Mr. Reiffarth voted yes.  Mr. Nelson voted yes.  Vote was unanimous.  Meeting was adjourned at 8:50 p.m.

Respectfully submitted,


Cynthia Bartos
Administrative Secretary

**All materials submitted during the meeting are on file in the ZBA office.