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Zoning Board of Appeals Minutes 02/22/2012
MASHPEE ZONING BOARD OF APPEALS
FEBRUARY 22, 2012
MINUTES

The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, February 22, 2012 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, James Reiffarth, and Ronald S. Bonvie, and Associate Board Members John M. Dorsey and Judith M. Horton were present.  Building Commissioner Richard E. Morgan attended the meeting.

Chairman Robert G. Nelson opened the meeting at 7:00 p.m.

PLEDGE OF ALLEGIANCE

OTHER BUSINESS

Distribute/Discuss:
List of retail items for sale at gas station on property located at 723 Falmouth Road.

Attorney Ford reminded the Board that one of the conditions of Special Permit SP-2011-39 required the Petitioner to submit a list of proposed retail sale items on the subject property to the Building Department and the ZBA.  The ZBA office received the list in a memo dated February 10, 2012 from Vanasse Hangen Brustlin, Inc.  

Building Commissioner Richard Morgan said that he is aware that the ZBA approved the site plan, but expressed concern about safety with the location of the soda machines.  He asked where the items for sale - cigarettes, anti-freeze, oil, windshield wiper fluid and wipers, candy and soda - are going to be stored on the property.  Mr. Morgan said that a speeding driver could pose a potential problem for customers entering and exiting the kiosk to purchase the retail items.  

Attorney Ford said that the Design Review and Plan Review Committees approved the location of the vending pad and vending machines.  He questioned why the Building Commissioner is raising safety concerns now.  He said that, if the ZBA insists, the Petitioner would relocate the vending pad and vending machines.  Attorney Ford said that the oil and anti-freeze would be stored in a metal container on the property.  Attorney Ford said that the Petitioner’s policy has always been to sell products no larger than the smallest unit sold in a retail store.  Attorney Ford reiterated that there would be no storage of retail sale items on the property.  Items for sale would be replenished by delivery truck.  Mr. Nelson stated that the smallest unit of soda sold at a retail store is an 8 oz can.  Attorney Ford said that the vending machines would dispense 12-oz cans.

Mr. Bonvie said that the proposed metal container and its location should be shown on the plan.

To Mr. Reiffarth’s questions, Attorney Ford confirmed that the owner of the property is liable for the property and all activity on the property.

Mr. Nelson questioned if removal of the store/service bays causes the pre-existing, non-conforming status to cease.  Attorney Ford said that the Board has already issued a Decision and the Petitioner is trying to abide by the conditions of the Decision.  

Mr. Morgan asked Attorney Ford to provide a statement of the exact amount of items for retail sale.  The statement shall include the following:
  • total square footage being used for cigarettes and candy.
  • that the soda machine will be placed on the vending pad.
  • list of products that will be stored in the metal container.
  • retail items for sale will not be stored on the subject property for reserve/back up.  
The Board agreed.  Attorney Ford confirmed that he would provide the statement and the engineer would submit a revised plan depicting the metal container and its location on the subject property.  

NEW HEARINGS

Robert H. and Maura B. Wittstein:  Request a Variance from Section 174-33 of the Zoning By-laws to vary the setback to water and wetlands to allow for addition of a deck to an existing dwelling on property located in an R-3 zoning district at 55 Monahansett Road (Map 123 Parcel 100) Mashpee, MA.

Sitting:  Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, James Reiffarth, and John M. Dorsey.

Mr. Wittstein represented his Petition and stated that the proposal calls for addition of a 12’x12’ deck to his home.  The close proximity of wetlands creates a hardship for the Petitioner to meet the setback requirements to water and wetlands.  The deck will be approximately 39 feet from the Bordering Vegetated Wetlands (BVW) and the stairs will be approximately 35 feet from the BVW.  The proposal conforms to the side setback, front setback, and lot coverage requirements.  Mr. Wittstein explained that the single-story home declines significantly from front to back, creating two stories in the rear of the property.  Current access to the back of the property is through an unfinished basement.  Mr. Wittstein said that addition of the deck would allow his family access and use of the back of the property.  The deck would create a pleasing flow from the sunroom into the back yard.  Mr. Wittstein said that the proposal will not derogate from the intent of the By-laws nor be a detriment to the neighborhood because it would be an attractive improvement to the existing dwelling.  The result will be aesthetically pleasing and will fit in nicely with the style of other abutting homes in the neighborhood.  He said that the existing garage will only be used for storage.  The gravel walkway will be replaced with pavers.  

Mr. Furbush questioned if the Petitioner received Conservation Commission approval for removal of all of the trees.  Mr. Wittstein confirmed that the Conservation Commission approved the proposal (negative determination of the RDA – Request for Determination of Applicability) with no further conditions.  Mr. Nelson asked what the Petitioner plans to do with all of the wood from removal of the trees.  Mr. Wittstein said that he plans to install a fire pit.  Mr. Nelson asked if the Fire Department would have a problem with a fire pit.  Mr. Morgan said that the ZBA does not have jurisdiction over fire pits.

Mr. Bonvie referenced M.G.L. Chapter 131 Section 40 and questioned if the figure for the Variance should be calculated from top of the inland bank, not from the BVW.  Mr. Nelson read Section 174-33 of the Zoning By-laws: “Any building or structure, exclusive of fixed or floating piers, wharves, docks, bridges or boardwalks, shall be set back at least fifty (50) feet from anywater or wetland as defined by MGL C. 131, §40”.  Mr. Morgan said that the Variance figure should be calculated from the deck to the wetlands.  

No comments were received from abutters.

Mr. Blaisdell made a motion to grant a Variance of 11 feet from the deck to the edge of the BVW.  Variance findings:  
  • Owing to circumstances relating to soil conditions, sloping topography and presence of water and wetlands on the subject property, a literal enforcement of the By-laws would involve hardship;
  • that the proposal will be an enhancement to the home; therefore, desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the By-laws.
This Decision is conditioned upon compliance with Engineering Works, Inc. plan: “Proposed Deck and Stairway, 55 Monahansett Road, Mashpee, MA.  Prepared for: Robert Wittstein, 280 Webster Woods Lane, No.  Andover, MA.  Date: 1/23/12”.  Mr. Furbush seconded the motion.  Mr. Dorsey voted yes.  Mr. Blaisdell voted yes.  Mr. Nelson voted yes.  Mr. Reiffarth voted yes.  Mr. Furbush voted yes.  Vote was unanimous.

Robin Mastandrea: Requests a Variance from Section 174-31 of the Zoning By-laws to vary the lot size requirements and the frontage requirements for permission to divide an existing lot into two buildable lots on property located in an R-5 zoning district at 188 Pimlico Pond Road and 194 Pimlico Pond Road (Map 2 Parcel 192 and Map 2 Parcel 191) Mashpee, MA.  (The 1998 Variance, V-98-117, has lapsed due to failure of owner to record document in a timely manner).

Sitting:  Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, James Reiffarth, and John M. Dorsey.

Ms. Charlene Antrim, Project Planner, Cape & Islands Engineering, Inc. represented the Petitioner.  She stated that the ZBA granted a Variance on the subject parcel in 1998, but the certified copy was not recorded at the Barnstable County Registry of Deeds until 2008.  The lots were created by a subdivision plan approved by the Planning Board on August 18, 1999.  The Petitioner is requesting a Variance from the lot frontage on Lot #2.  

The Town Planner’s memo dated January 30, 2012 reads: “The Mastandrea lots both meet the current 80,000 sq. ft. lot size requirement.  The variance should only need to be for frontage.  Also, as the lots already exist (they are not “an existing lot”), there is no need for permission to divide the lots (which would require Planning Board approval), but only to make them separately buildable.  Map 2, Block 191, by the way, currently meets both the lot size and lot frontage (150’) requirements contained in Section 174-31 and does not need a variance at all.  The lots were created by a subdivision plan approved by the Planning Board on August 18, 1999, which references the V-98-117 variance allowing the 128 ft. frontage on Map 2, Block 192 (which already had a house on it), indicating the Planning Board’s approval (which is required, in addition to the zoning variance) of that undersized frontage.  As the plan has been recorded, no re-approval by the Planning Board is required.”

Mr. Nelson said that he sees no problem with granting the Variance again.  

No comments were received from abutters.

Mr. Blaisdell made a motion to grant a Variance of 21.31 feet from the frontage requirements on Lot #2 to make the subject lots separately buildable.  Variance findings:  
  • Owing to circumstances relating to unusual long and narrow shapes of the subject properties, a literal enforcement of the By-laws would involve hardship;
  • that the subject parcels meet the 80,000 square-foot minimum requirements;
  • that the subdivision plan has been approved by the Planning Board; therefore desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the By-laws.  
This Decision is conditioned upon compliance with Cape & Islands Engineering: “Subdivision Plan of Land Located in Mashpee – Mass. Prepared for Robert T. Cardillo Date: June 14, 1999.”  Mr. Nelson seconded the motion.  Mr. Furbush voted yes.  Mr. Dorsey voted yes.  Mr. Reiffarth voted yes.  Mr. Nelson voted yes.  Mr. Blaisdell voted yes.  Vote was unanimous.

OTHER BUSINESS

Distribute: Correspondence from Robert Lalime and Kathleen Pierce concerning commercial business conducted on property located in a residential zoning district at 593 Main Street.  The Board discussed the Petitioner’s deceitful misrepresentation of his commercial business as a “hobby” to the ZBA.  Mr. Morgan said that the whole problem is an “awful mess”.  The neighbors have continued to submit formal complaints to the Town.  Town Counsel is involved.  Mr. Nelson said that he was absent when the Board granted the Variance and he takes issue with the Board’s Decision because hardship was not in fact established.  Mr. Morgan said that he would ensure that Town Counsel has all the appropriate documents.

Distribute: Correspondence from James P. Candito concerning development of parcel located at 56 Kim Path.

Breezy Acres Phase II:  On February 21, 2012, Housing Assistance Corporation submitted plans to the ZBA office.  On February 21, 2012, the ZBA office distributed copies of the plans to the Board of Health, Building Department, Conservation Commission, DPW, Fire Department, Planning Department, and Police Department for their review/comments.  

Accept February 8, 2012 Minutes
Mr. Nelson made a motion to accept the Minutes.  Mr. Blaisdell seconded the motion.  Ms. Horton voted yes.  Mr. Bonvie voted yes.  Mr. Reiffarth voted yes.  Mr. Furbush voted yes.  Mr. Nelson voted yes.  Mr. Dorsey voted yes.

Mr. Dorsey made a motion to adjourn the meeting.  Mr. Blaisdell seconded the motion.  Ms. Horton voted yes.  Mr. Bonvie voted yes.  Mr. Reiffarth voted yes.  Mr. Furbush voted yes.  Mr. Nelson voted yes.  Mr. Dorsey voted yes.  Meeting was adjourned at 8:00 p.m.

Respectfully submitted,


Cynthia Bartos
Administrative Secretary
Zoning Board of Appeals