MASHPEE ZONING BOARD OF APPEALS
DECEMBER 14, 2011
MINUTES
The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, December 14, 2011 at 7:00 p.m. in Conference Room #1 at 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 unable to attend due to serious illness. Building Commissioner Richard E. Morgan also attended the meeting.
Chairman Robert G. Nelson opened the meeting at 7:00 p.m. and announced that the meeting was being televised live.
PLEDGE OF ALLEGIANCE
NEW HEARINGS
David M. and Ana Ferris: Request a Variance from Section 174-33 of the Zoning Bylaws concerning setback from water and wetlands for permission to construct an addition, breezeway and deck onto a pre-existing, non-conforming home on property located in an R-3 zoning district at 36 Seconsett Point Road (Map 124 Parcel 38) Mashpee MA.
Sitting: Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, and Ronald S. Bonvie and Associate Board Member Judith M. Horton. Board Member James Reiffarth stepped down from this Petition and took a seat in the audience.
Engineer John Slavinsky from Cape & Islands Engineering represented the Petition. The proposal calls for moving the dwelling at 38 Seconsett Point Road and adding it to the dwelling at 36 Seconsett Point Road. Proposed lot coverage will be 19.6%.
The Board of Health has approved the proposed new septic system, which will accommodate five bedrooms. The Conservation Commission has also approved the proposal and issued an order of Conditions.
No comments were received from abutters.
Mr. Blaisdell made a motion to grant a Variance of 8 feet to the setback from water and wetlands to allow for the proposed addition. Findings: shape of the lot - long, narrow lot; lot is impacted by salt marsh and wetlands; proposal has received Board of Health and Conservation Commission approval. This Decision is conditioned upon compliance with Cape & Islands Engineering plan entitled: “Single Family Residence Addition. Proposed Sewage Disposal System Prepared for Ana & David Ferris Hse. No. 36 Seconsett Point Rd., Mashpee, Mass. Date: Nov.16, 2011”.
Mr. Nelson seconded the motion. Mr. Furbush voted yes. Ms. Horton voted yes. Mr. Bonvie voted yes. Mr. Nelson voted yes. Mr. Blaisdell voted yes. Vote was unanimous.
Richard R. Manganiello and Jennifer D. Manganiello: Request a Written Finding under Section 174-17 and a Special Permit under Section 174-20 of the Zoning By-laws concerning continuance, extensions and alterations of pre-existing, non-conforming structures and rebuilding of destroyed or damaged non-conforming structures, and M.G.L. Chapter 40A Section 6 concerning existing structures, uses, or permits for permission to demolish a pre-existing, non-conforming structure and replace it with a new single-family home on property located in an R-3 zoning district at 56 Kim Path (Map 117 Parcel 97) Mashpee, MA.
Sitting: Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, James Reiffarth, and Ronald S. Bonvie.
Richard R. Manganiello and Jennifer D. Manganiello: Request a Variance from Section 174-31 of the Zoning By-laws for permission to vary the front setback requirements to allow for construction of a new single-family home on property located in an R-3 zoning district at 56 Kim Path (Map 117 Parcel 97) Mashpee, MA.
Sitting: Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, James Reiffarth, and Ronald S. Bonvie.
Attorney Kevin M. Kirrane, Engineer John Slavinsky, Architect Timothy Luff, and Landscape Architect Michael Talbot represented the Petitions. The pre-existing non-conforming dwelling does not meet the front, side or rear setback requirements. It exceeds the lot coverage requirements. The lot does not conform to current lot size and frontage requirements. The subject property lies within the Popponesset Overlay District and is impacted by a Coastal Dune.
Plans call for the existing cottage-like structure to be demolished and replaced with a new three-bedroom 2,700 square-foot home. The proposal will meet the side setback requirements. Encroachment into the rear setback will be improved, going from less than one foot to over 12 feet. Lot coverage will be reduced from 24.1% to less than 22%. The proposal will not conform to the rear setback requirements or the front setback requirements. It will not conform to the setback to water and wetlands or the lot coverage requirements.
Significant improvement to the lot calls for extensive landscaping that will replace invasive species with plants indigenous to the coastal area.
Attorney Kirrane said that the narrowness of the lot and the location of the Coastal Dune through a portion of the lot create hardship for the Petitioner to re-develop the lot without Variance relief from the yard setback and setback to water and wetlands requirements.
Referencing Section 174-17 of the By-laws, Attorney Kirrane stated that the proposal shall not result in a condition that is substantially more detrimental to the neighborhood than the current condition. The new dwelling will be valued substantially higher than the existing home and will generate more tax revenue for the Town. There is adequate land area to provide sufficient parking and setbacks as the Board may require. He also commented that the proposal is consistent in size and height with other recently renovated homes in the neighborhood.
The Board of Health has approved the proposal for construction of a three-bedroom home. The Conservation Commission has also approved the proposal and issued an Order of Conditions on November 30, 2011.
Mr. Nelson read the following email in opposition to the Petition:
To whom it may concern,
We currently have a summer residence at 54 Kim Path and are responding to the notice we received regarding the Mashpee Zoning Board of Appeals for December 14, 2011. Our concern is regarding the request for variance by our neighbors at 56 Kim Path. We are unable to attend this meeting this evening and wish our voice to be heard.
We are against their wish for a variance at this location. We understand their desire to build a new home at this location and wish them all the best in that endeavor, however they should remain as the zoning by laws state within the current footprint of their home. We purchased our home in 2001 and similarly requested a variance to allow for a front porch and we were denied. Our neighbors argued that it would infringe upon their views of the beach and it was not something that should be granted. We agreed with that decision and wish to state the same in this case. All over Popponessett they are tearing down cottages and building these huge homes on these tiny lots. Currently our home is for sale and because of the uncertainty of this construction no one is willing to take that risk and make an offer on our home. Again we do not
begrudge our new neighbors their desire for a new home at that location however we would like to state for the record that we are against any variance that would make their home any larger than the current footprint of their home.
Thank you for your consideration in this matter.
John and Carolynne Cronin
54 Kim Path
Mashpee, MA
Mr. Bonvie questioned “top of concrete of first floor” and asked what the difference in elevation of the first floor will be with the proposal. He referred to FEMA and 100-year storms and 10-foot elevations. Mr. Luff said that he would provide those elevation figures. He stated that the floor has been lowered and the proposal does not exceed the height restriction. Mr. Luff said that the existing dwelling is below the flood zone requirements. He said that the “design of the house is just below the maximum allowed building height, which is 30 feet from average grade, not from the top of the first floor”.
Building Commissioner Richard E. Morgan questioned the height of the proposal including the cupola. Mr. Luff referred to the cupola as a ‘widow’s walk’ and that “it is allowed to go above the 30 feet, if it’s less than 100 square feet”. Mr. Nelson said that his definition of a widow’s walk is a railed rooftop platform surrounding an area of a building. He and Mr. Bonvie expressed concern with objections from abutters about obstructed views. Attorney Kirrane said that the structure on the top floor is not habitable and is just an “oversized cupola” that provides lighting. Mr. Luff said that access to the cupola has to meet fire safety requirements. Mr. Nelson said that the cupola could be eliminated if it is only for aesthetic reasons. Mr. Reiffarth commented that a 9x9-foot cupola is quite large and suggested installation of a skylight. Mr. Furbush asked if the area could eventually be turned into a sitting area. Mr. Luff suggested creating a two-story shafted space.
Environmental Landscape Consultant Michael Talbot addressed the Board with the landscaping details. The Popponesset Beach Association granted the Petitioner permission to restore a large portion of the dune area to native habitat. He said that the Conservation Commission was very impressed with the planned removal of invasive plants and extensive dune nourishment with native plantings. He said that the mitigating area is four times larger than what the Conservation Commission required. Mr. Talbot said that the sensitive resource areas constrain the re-development of the lot. Mr. Nelson suggested that the Board require installation of a temporary snow fence to protect the dune area. Mr. Talbot said that the silt fence and hay bale line would be landward of the dune line. No building or landscaping
activity will be allowed to encroach onto the dune. Mr. Reiffarth questioned why the location of the hay bale line is not shown on the plan.
Mr. Slavinsky said the small 6,500 square-foot lot consists of 1,100 square feet of dune area. The existing deck will be replaced with a patio, decreasing the lot coverage from 24.1% to 21.7%. Attorney Kirrane said that the proposal is smaller than the existing footprint and will be further away from the abutter at 54 Kim Path.
To Mr. Furbush’s question about drainage problems in that area, Mr. Slavinsky said that dry wells will be installed on the property.
Mr. Nelson questioned Mr. Slavinsky about a discrepancy in the plans and the proposed front setback calculations.
Mr. Nelson opened the discussion to audience comments.
Mr. Michael Kelley at 49 Kim Path expressed his opposition to the Petition. He admitted that other homes on the street do not meet the front setback requirements, but said they are not as close to the street as this proposal will be. He said that the request for the front setback Variance is “exorbitant” and “excessive”.
The Board suggested that the engineer could use the average setback rule by determining the front setback of the other homes on the street. Attorney Kirrane suggested saving the Petitioner engineering and surveying costs by moving the house back a couple of feet. Mr. Morgan confirmed that setbacks in the Popponesset Overlay are 25 feet in the front, and 15 feet in the rear and on the sides. The Board said it would be agreeable to a 20-foot front setback.
Mr. James Candito of 70 Nick Trail said that he has lived there for 35 years and has witnessed the transformation of the area with teardowns and rebuilds. He requested that the Petitioner relocate the enclosed porch so that he can continue to enjoy his views of the islands and lighthouses. He suggested changing the enclosed porch to a flat deck. Mr. Candito showed the Board views from his home on his IPhone.
Mr. Slavinsky said that Mr. Candito is confused and the corner he is referring to is the proposed house, not a porch. Mr. Luff said that the corner conforms to the front and side setback requirements and that the Petitioner is within his right to build there. Attorney Kirrane agreed and said, “A view is not a proper zoning consideration.” He said that the corner of the structure conforms to zoning. Attorney Kirrane reiterated that obstructed views are not within the purview of the ZBA’s authority.
Mr. Morgan said that he would ensure that the architect resolves any issues relating to the height of the building. Mr. Nelson voted to continue the Petitions until January 25, 2012 to allow the Petitioner’s engineer time to submit a revised plan at that meeting showing that the house has been relocated to 20 feet from the front setback from Kim Path. Mr. Furbush seconded the motion. Mr. Bonvie voted yes. Mr. Reiffarth voted yes. Mr. Blaisdell voted yes. Mr. Furbush voted yes. Mr. Nelson voted yes. Vote was unanimous and Petitions were continued to January 25, 2012.
CJWKC, LLC: Requests a Written Finding under Section 174-17 and a Special Permit under Section 174-20 of the Zoning By-laws concerning continuance, extensions and alterations of pre-existing, non-conforming structures and rebuilding of destroyed or damaged non-conforming structures and M.G.L. Chapter 40A Section 6 concerning existing structures, uses, or permits for permission to demolish a pre-existing, non-conforming structure and replace it with a new single-family home on property located in an R-3 zoning district at 36 Fiddler Crab Lane (Map 105 Parcel 101) Mashpee, MA.
Sitting: Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, James Reiffarth, and Ronald S. Bonvie.
CJWKC, LLC: Requests a Variance from Sections 174-31 and 174-33 of the Zoning By-laws for permission to vary the front setback requirements and the setback from water and wetlands to allow for construction of a new single-family home on property located in an R-3 zoning district at 36 Fiddler Crab Lane (Map 105 Parcel 101) Mashpee, MA.
Sitting: Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, James Reiffarth, and Ronald S. Bonvie.
Attorney Kevin Kirrane and Builder Glenn MacKenzie represented the Petitions. Attorney Kirrane stated that the non-conforming lot fails to meet the 40,000 square-foot minimum lot size and the structure fails to meet the 40-foot front-yard setback requirements.
The proposal calls for demolition and replacement of the 1,500 square-foot dilapidated structure on the subject property. Construction of a two-story, 2,000 square-foot home with an attached garage will replace the existing structure. The proposal conforms to the side and rear setback requirements, as well as the lot coverage requirements. Encroachment into the front yard setback will be reduced. The irregularly shaped property, situated on a cul-de-sac, contains significant sloping topography. Due to the impact of wetlands on the property and location of the existing Title 5 septic system, a small portion of the dwelling will be situated seven feet into the setback to water and wetlands.
Attorney Kirrane said that replacement of the rundown structure will be a significant enhancement. Extensive mitigation planting will be another vast improvement. The proposed dwelling will be further away from the street than the existing dwelling. The new dwelling will be valued considerably higher than the existing structure, will generate more tax revenue for the Town, and improve the value of the properties around it. There is adequate parking and sufficient setbacks to accommodate this proposal. Attorney Kirrane asked the Board to determine that the proposal is not substantially more detrimental to the neighborhood than what currently exists. The unique site conditions, such as the wetlands and the significantly, sloping topography, impact the property and create substantial hardship for the
Petitioner to meet setback requirements. Attorney Kirrane said that a family member of the Petitioner owns the abutting home most directly affected by the proposal. Attorney Kirrane requested Variance relief from the front setback requirements and setback requirements to water and wetlands. He said that desirable relief may be granted without detriment to the neighborhood and without derogating from the intent of the By-law.
Mr. Reiffarth discovered an error on the plan concerning the proposed deck. He said that the calculations to wetlands should be from the corner of the deck, which is on sono tubes, and not from the house. The Board commended Mr. Reiffarth for discerning the mistake. Variance relief requested should be 13 feet, not 7 feet.
No comments were received from abutters.
Mr. Blaisdell made a motion to grant a Written Finding and a Special Permit. Findings:
There is sufficient parking and setbacks; proposal is not substantially more detrimental than what currently exists. This Decision is based upon compliance with plans entitled:
“Site Plan 36 Fiddler Crab Lane, Mashpee, MA. Engineering by: Engineering Works, Inc. Surveying by: Warner Surveying, Date 4/26/11, Plan Revisions: 6/22/11, 9/28/11, 10/17/11”.
Yarosh Associates, Inc. plan entitled: “Brennan Residence 36 Fiddler Crab Lane, Mashpee, MA. Date: 08-18-2011”.
Mr. Furbush seconded the motion. Mr. Reiffarth voted yes. Mr. Bonvie voted yes. Mr. Nelson voted yes. Mr. Blaisdell voted yes. Mr. Furbush voted yes. Vote was unanimous.
Mr. Blaisdell made a motion to grant the following Variance relief on the subject property:
a Variance of 13 feet to the setback to water and wetlands.
a Variance of 14 feet from the front setback requirements.
Findings: irregular shape and sloping topography of the lot; impact of wetlands. This Decision is based upon compliance with plans entitled:
“Site Plan 36 Fiddler Crab Lane, Mashpee, MA. Engineering by: Engineering Works, Inc. Surveying by: Warner Surveying, Date 4/26/11, Plan Revisions: 6/22/11, 9/28/11, 10/17/11”.
Yarosh Associates, Inc. plan entitled “Brennan Residence 36 Fiddler Crab Lane, Mashpee, MA. Date: 08-18-2011”.
Mr. Furbush seconded the motion. Mr. Reiffarth voted yes. Mr. Bonvie voted yes. Mr. Nelson voted yes. Mr. Blaisdell voted yes. Mr. Furbush voted yes. Vote was unanimous.
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-5 zoning district at 6 Park Place Way (Map 37 Parcel 201) Mashpee, MA. Owner of record: Town of Mashpee.
Sitting: Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, James Reiffarth, and Ronald S. Bonvie.
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-5 zoning district at 9 Park Place Way (Map 37 Parcel 173) Mashpee, MA. Owner of record: Town of Mashpee.
Sitting: Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, James Reiffarth, and Ronald S. Bonvie.
The following individuals attended the meeting in behalf of the Habitat for Humanity Petitions: Selectperson Carol Sherman, Habitat Board Member Donald S. Dickinson, Executive Director of Habitat for Humanity of Cape Cod, Inc. Victoria Goldsmith, Attorney Warren Brodie, and Affordable Housing Committee Chairman Walter Abbott.
Attorney Brodie addressed the Board and stated that Habitat for Humanity of Cape Cod, Inc. (the “Petitioner”) is a Massachusetts non-profit corporation and an affiliate of Habitat for Humanity International. The Town of Mashpee owns both parcels at 6 Park Place Way and 9 Park Place Way.
At Special Town Meeting on May 3, 2010, the residents of Mashpee voted to transfer three parcels of land to the Board of Selectmen to solicit proposals for the development of the parcels as affordable housing. This included a grant of nitrogen credit land sufficient to enable the construction of a three-bedroom home on each of the parcels. (The Petitioner withdrew the parcel located at 10 Tritown Circle from the application. It was determined to be undevelopable owing to the substantial wetlands on the parcel).
On January 28, 2011, the Petitioner submitted its proposal for the development of the affordable homes. On February 14, 2011, the Board of Selectmen voted to accept the Petitioner’s proposals and entered into an agreement with the Petitioner. On April 11, 2011, the Board of Selectmen and the Petitioner entered into a Land Disposition Agreement. After receiving letters of support from the Board of Selectmen on May 23, 2011 and the Affordable Housing Committee on June 7, 2011, the Petitioner submitted its Limited Initiative Program (LIP) application on October 31, 2011 to the Department of Housing & Community Development (DHCD) for its review and approval. On November 14, 2011, DHCD sent a letter in approval of the applications for project eligibility under the LIP.
On November 16, 2011, the Petitioner filed Petitions for Comprehensive Permits with the Mashpee ZBA. On November 18, 2011, the ZBA distributed copies of the Petitions to the appropriate Town Departments for review and comment.
As of June 30, 2011, Attorney Brodie said that Mashpee had 224 affordable housing units, 3.5% of 6,473 year-round homes. The threshold for Chapter 40B is 10%.
Under the Land Disposition Agreement, the Petitioner prepared a nitrogen loading aggregation plan and submitted it for review by the Town and subsequent submission to the Massachusetts Department of Environmental Protection (DEP) for approval. DEP has approved this plan.
Attorney Brodie said that the proposal calls for construction of a 44x30-foot, three-bedroom on each parcel. Interior space will consist of 1,200 square feet in addition to a 120 square foot porch. Each dwelling will have an unfinished basement area.
Under the Land Disposition Agreement, the Petitioner will select purchasers for each dwelling in accordance with established procedures at a sale price consistent with DHCD’s LIP and its affirmative fair marketing prices. The Petitioner’s goal is to select families whose income is no more than 65% of the median income of Barnstable County. The ultimate selection is accomplished by a lottery supervised by the Housing Assistance Corporation of Cape Cod. Preference in the lottery for one of the homes will be restricted to a local resident. A local resident is defined as someone living in the Town, employed in or by the Town, or attending school in the Town. Upon issuance of the Building Permits, the Petitioner agrees to proceed without unnecessary delay to construct the homes and convey them to
eligible purchasers. Each dwelling will be conveyed subject to an affordable housing restriction rider approved by the DHCD that will ensure that the units will be affordable in perpetuity.
Attorney Brodie said that both parcels are in an R-5 zoning district that requires 80,000 square feet of land. Neither parcel meets the lot size requirements. The non-conforming parcel at 6 Park Place Way consists of 23,157 square feet of land. This parcel meets the lot coverage, frontage, front setback, side setback and rear setback requirements. The non-conforming parcel at 9 Park Place Way consists of 22,877 square feet of land. This parcel does not conform to the front setback requirements of 40 feet. To Mr. Bonvie's question as to why this proposal fails to conform to the front setback requirements, Mr. Dickinson responded that the parcel at 9 Park Place Way is very narrow and abuts a church. The Petitioner chose to situate the house on the parcel in order to provide more back yard space and
privacy for the church and the homeowner. Although this requires encroachment into the front setback, a nice buffer of trees in the rear of the parcel will be preserved.
DPW Director Catherine Laurent requested a change in the site plans so that vehicles would not have to back out of the driveways directly into the street. DPW also requested installation of a paved apron from the edge of the paved road to the property line. On December 13, 2011, the Petitioner submitted revised site plans with those changes to the ZBA. Mr. Dickinson said that one of the driveways will be paved and one will be gravel.
Mr. Dickinson said that the Petitioner is aware that Park Place Way is currently being upgraded and there is an $8,000 betterment assessment on each parcel on the street. Current homeowners on Park Place Way have petitioned the Town to take over the street as a public way. Mr. Dickinson said that Petitioner will work with the affordable housing homeowners, if and when, the Town accepts the street as a public way.
No comments were received from abutters.
Mr. Blaisdell made a motion to grant the request for a Comprehensive Permit on 6 Park Place Way and to waive 56,843 square feet from the lot size requirements.
This Decision is conditioned upon compliance with the following:
- J. M. O'Reilly & Associates, Inc. plan entitled: "Habitat for Humanity of Cape Cod, Site & Sewage Disposal System Design 6 Park Place, Mashpee, MA. Date: 05/31/11, Revised 9-1-11, 12-8-11."
- Board of Health approval.
- DEP approval.
Mr. Furbush seconded the motion. Mr. Reiffarth voted yes. Mr. Bonvie voted yes. Mr. Blaisdell voted yes. Mr. Furbush voted yes. Mr. Nelson voted yes. Vote was unanimous.
Mr. Blaisdell made a motion to grant the request for a Comprehensive Permit on 9 Park Place Way and waive the following:
- 57,123 square feet from the lot size requirements.
- 15 feet from the front setback requirements.
This Decision is conditioned upon compliance with the following:
- J. M. O'Reilly & Associates, Inc. plan entitled: "Habitat for Humanity of Cape Cod, Site & Sewage Disposal System Design 9 Park Place, Mashpee, MA. Date: 05/31/11, Revised 9-1-11, 12-8-11."
- Board of Health approval.
- DEP approval.
Mr. Furbush seconded the motion. Mr. Reiffarth voted yes. Mr. Bonvie voted yes. Mr. Blaisdell voted yes. Mr. Furbush voted yes. Mr. Nelson voted yes. Vote was unanimous.
OTHER BUSINESS
Distribute: December 6, 2011 letter from Mashpee Commons, LP concerning Building 1 with updated tables showing wastewater capacity and available parking totals.
Vote to approve Vouchers to reimburse ZBA Engineering Consultant: Charles L. Rowley provided inspection services regarding development of properties located at 570 Old Barnstable Road (Breezy Acres Phase II) and 52 Mercantile Way (Franey Medical Laboratories, Inc.).
Board Member Ronald S. Bonvie stepped down. Mr. Blaisdell made a motion to approve the vouchers. Mr. Reiffarth seconded the motion. Ms. Horton voted yes. Mr. Nelson voted yes. Mr. Furbush voted yes. Mr. Reiffarth voted yes. Mr. Blaisdell voted yes. Vote was unanimous.
Vote to Approve November 9, 2011 Minutes
Mr. Blaisdell made a motion to accept the Minutes. Mr. Furbush seconded the motion. All voted in favor. Vote was unanimous.
Mr. Blaisdell made a motion to adjourn the meeting. Mr. Furbush seconded the motion. All voted in favor. Meeting was adjourned at 9:50 p.m.
Respectfully submitted,
Cynthia Bartos
Administrative Secretary
Zoning Board of Appeals
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