At the Public Hearings on April 11, 2012, the Zoning Board of Appeals voted unanimously to discontinue non-disclosure of the Minutes from Executive Session on July 20, 2012.
MASHPEE ZONING BOARD OF APPEALS
MINUTES – EXECUTIVE SESSION
JULY 20, 2011
The Mashpee Zoning Board of Appeals held a meeting on Wednesday, July 20, 2011 at 3:15 p.m. (Conference Room #1) at the Mashpee Town Hall, 16 Great Neck Road North. Board Members Robert G. Nelson, Jonathan D. Furbush and William A. Blaisdell and Associate Board Member Ronald S. Bonvie were present. Associate Board Member Judith M. Horton also attended the meeting as an observer. Attorney Patrick Costello joined the meeting by telephone.
CONVENE OPEN SESSION
At 3:15 p.m., Chairman Robert G. Nelson convened open session. At 3:15, he made a motion to immediately adjourn to Executive Session. He stated the Purpose of Executive Session.
EXECUTIVE SESSION
Commonwealth of Massachusetts Department of Community Affairs Housing Appeals Committee Case No. 2011-01: Habitat for Humanity of Cape Cod, Inc. v. Zoning Board of Appeals of Mashpee. Discussion of Board’s course of action in response to Petitioner’s Appeal of Board’s June 25, 2011 Decision to Deny a request for 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.
Next, Chairman Nelson announced that Open Session will not reconvene.
At approximately 3:17 p.m., Attorney Patrick Costello joined the meeting by telephone. He said that he attended the Mandatory Counsel’s Conference on July 7, 2011 before Housing Appeals Committee (HAC) Chairman Werner Lohe. Attorney Costello reminded the Board that a denial of a Comprehensive Permit requires proof by the ZBA of very substantial public safety, health or welfare issues that would preclude development of the property or override the significant local need for affordable housing. Attorney Costello said that the HAC Commissioner noted the fact that the ZBA has a very positive attitude toward affordable housing. However, Attorney Costello said that it would be difficult for the ZBA to defend its denial of this case upon Appeal. He said that the ZBA’s chances of prevailing in this case
are less than 25%. Attorney Costello said that the Chairman of the HAC, Werner Lohe, will be the sitting Hearing Officer in this case. After the Counsel’s Conference on July 7, 2011, Mr. Lohe strongly suggested that in the absence of significant zoning issues, the HAC will base its decision on issues such as house design, site design and whether the proposal fits in reasonably well with the other houses in the neighborhood. Mr. Lohe also indicated that he considers diversity in a neighborhood a great idea.
Attorney Costello said that if the Board is interested in a settlement, this can be done with Habitat’s counsel or through the formal mediation process. The HAC offers 8 hours of mediation service free of charge in which the parties involved meet in conference in a formal mediation to discuss settlement.
Attorney Costello said that if the Board wants to pursue this case, he has to prepare a very detailed brief with statements of the facts, legal arguments, witness lists, documents lists, etc. by August 4, 2011. He said he would be happy to do so, but cautioned the Board that this will be a very costly undertaking for the Town in litigation fees.
Attorney Costello said that it is very likely that the abutters, Mr. and Mrs. Steven Hynds, will try to interfere with issuance of the Comprehensive Permit.
Mr. Furbush questioned if the Board is wasting its time in pursuing this Denial. Attorney Costello said that the HAC is an agency that is very much pro affordable housing and will most likely overturn the Board’s denial. He mentioned a situation in another Town in which a three-family structure was denied in a very tightly developed neighborhood because the Fire Chief had legitimate concerns with access. The HAC overturned the Denial as insufficient grounds and ruled that as long as ladders on the truck could reach the building, the need for affordable housing superseded that safety concern.
Attorney Costello said that Fire Chief Baker has no problems with this project. The Board of Health has issued a septic system permit. Neither Police Chief Rollins nor DPW Director Catherine Laurent has expressed concerns with the project. Attorney Costello said that there are numerous other properties in the vicinity of 24 Russell Road of similar or smaller size as this proposal. He said that there is no record of any emergency vehicle access issues in this area.
The Board discussed whether paving should be installed on frontage on Russell Road in order to be consistent with the Town’s general policy of only allowing new residential developments on paved roads. Attorney Costello said that he is waiting for a return phone call from Conservation Commission Agent Andrew McManus. The Conservation Commission has indicated that it is opposed to additional paving and prefers not to have more impermeable surfaces in a flood plain. Attorney Costello advised the Board not to insist on the paving if Conservation has flood plain/wetlands restrictions. At 95 feet long and 18 feet wide, Mr. Bonvie estimated that paving would cost approximately $3,000 to install 1 ½ inches of asphalt. Mr. Furbush said he considered it silly to pave only a portion of the road in front of
the new home. Attorney Costello said that the road might look worse with partial paving of the road. Mr. Bonvie insisted that he wanted the Petitioner to install paving. Mr. Nelson agreed.
Attorney Costello said that the Town tactfully disclosed to Habitat that the Town was not very pleased with the Appeal; particularly when the ZBA has worked so cooperatively with Habitat and the Town has donated land to Habitat for affordable housing projects.
Attorney Costello said that his job as Town Counsel is twofold: to zealously defend any Board or Officer of the Town and to look out for the overall interests of the Town. He said no testimony or evidence at the ZBA meetings was submitted that posed a health, safety or welfare hazard. He also stated that there is ample room on the 10,000 square-foot lot and there is adequate access. There will be no adverse impacts on traffic since a single-family home will not create multiple vehicle trips that other affordable housing projects would. Mr. Furbush said the he didn’t want to incur further legal costs for the Town in a losing battle. Mr. Nelson said that he wasn’t concerned about the ZBA creating one more under-sized lot in that area.
Mr. Blaisdell expressed concern with the specific findings in the Decision not being factual. Attorney Costello reassured the Board that the Decision was a ‘boilerplate’ using formulaic language, ‘general catchall’ phrasing.
Mr. Blaisdell made a motion authorizing Attorney Costello to engage in settlement negotiations with Habitat and to agree to settle the case upon the best terms he deems appropriate. Mr. Nelson seconded the motion. Votes: Mr. Furbush, yes. Mr. Bonvie, yes. Mr. Blaisdell, yes. Mr. Nelson, yes.
Attorney Costello thanked the Board for their time and assured them that he is aware of their concerns with this particular project. He said that he will contact Habitat and inform them that it is “with great reluctance and anguish that the Board voted to authorize Counsel to try to settle the case” and a settlement must be worked out that will be agreeable. Messrs. Furbush and Blaisdell did not insist that Attorney Costello pursue the paving issue. Mr. Bonvie was adamant about the paving, which he said would address plowing issues.
Mr. Nelson made a motion to adjourn the meeting. Mr. Furbush seconded the motion. Votes: Mr. Blaisdell, yes. Mr. Bonvie, yes. Mr. Furbush, yes. Mr. Nelson, yes. Meeting was adjourned at 4:00 p.m.
Respectfully submitted,
Cynthia Bartos
Administrative Secretary
Zoning Board of Appeals
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