MASHPEE ZONING BOARD OF APPEALS
MINUTES
AUGUST 8, 2012
The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, August 8, 2012 at 6:00 p.m. in Conference Room #2 at the Mashpee Town Hall, 16 Great Neck Road North. Board Members Jonathan D. Furbush, William A. Blaisdell, Ronald S. Bonvie, James Reiffarth and Judith M. Horton and Associate Members John M. Dorsey and Domingo DeBarros were present. Conservation Commission Agent Drew McManus attended the meeting as expert counsel to the Board regarding wetlands, coastal banks, uplands and other Conservation Commission regulations.
Mr. Furbush opened the meeting at 6:00 p.m.
CONTINUED HEARINGS
The following Petitions were continued from July 25, 2012 Public Hearings to allow the Board an opportunity to receive Town Counsel opinion on upland/wetland/lot coverage calculations:
Owner of record Janice A. McGoldrick: Requests a Special Permit under Section 174-20 of the Zoning By-laws to allow for replacement of a non-conforming structure destroyed by fire, flood, lightning, wind or otherwise on property located in an R-3 zoning district at 172 Waterway (Map 111 Parcel 90) Mashpee, MA. Petitioner: Peter and Linda Connly. Conservation Commission approved proposal on 7/12/2012. Order of Conditions issued 7/23/2012. Board of Health comments: In Zone II, proposal restricted to four bedrooms.
Sitting: Board Members Jonathan D. Furbush, William A. Blaisdell, Ronald S. Bonvie, James Reiffarth, and Judith M. Horton.
Owner of record Janice A. McGoldrick: Requests a Written Finding under Section 174-17 of the Zoning By-laws and under M.G.L. Chapter 40A Section 6 regarding changes, extensions or alterations of a pre-existing, non-conforming structure to allow for construction of a new four-bedroom dwelling on property located in an R-3 zoning district at 172 Waterway (Map 111 Parcel 90) Mashpee, MA. Petitioner: Peter and Linda Connly. Conservation Commission approved proposal on 7/12/2012. Order of Conditions issued 7/23/2012. Board of Health comments: In Zone II, proposal restricted to four bedrooms.
Sitting: Board Members Jonathan D. Furbush, William A. Blaisdell, Ronald S. Bonvie, James Reiffarth, and Judith M. Horton.
Owner of record Janice A. McGoldrick: Requests a Variance from Sections 174-31 and 174-33 of the Zoning By-laws to vary the side setback requirements, the front setback requirements, the lot coverage requirements and the setback requirements from water and wetlands to allow for construction of a new four-bedroom dwelling on property located in an R-3 zoning district at 172 Waterway (Map 111 Parcel 90) Mashpee, MA. Petitioner: Peter and Linda Connly. Conservation Commission approved proposal on 7/12/2012. Order of Conditions issued 7/23/2012. Board of Health comments: In Zone II, proposal restricted to four bedrooms.
Sitting: Board Members Jonathan D. Furbush, William A. Blaisdell, Ronald S. Bonvie, James Reiffarth, and Judith M. Horton.
At the July 25, 2012 Public Hearings, Attorney Kirrane stated that plans call for demolition of the existing deteriorating dwelling at 172 Waterway. It will be replaced with construction of a four-bedroom, two-story dwelling. The lot is non-conforming and consists of 14,000 square feet of land with only 100 feet of frontage on Waterway. The existing dwelling does not conform to current front setback requirements. It encroaches into to the setback to water and wetlands. Plans to remove the lawn and replace it with environmentally-friendly landscaping are a significant improvement to the site conditions and reduce the impact on the surrounding properties and wetlands.
The Architectural Review Committee of New Seabury has approved the proposal.
Conservation Commission approved the proposal and issued an Order of Conditions on July 23, 2012.
A Title 5 septic system was installed in 1994 on the subject property. The Board of Health is restricting the proposal to four bedrooms.
A letter from abutter Paul Morgenstern at 189 Waterway was read into the record: My concerns regarding these Petitions are: 1. Written Finding. In my opinion, the proposed plans constitute a substantially more detrimental situation because it does not comply with front setbacks, side setbacks and wetland setbacks. The new house is more than twice the size of the existing building thereby greatly aggravating the existing non-conformance. 2. Variance. The proposed new building will more than double the lot coverage from 15.6% to 32.5%. The new house should not exceed the existing lot coverage of 15.6%.
Attorney Kirrane stated that, in the past, the Board has not deducted coastal bank from the total land area to calculate lot coverage. Using that formula, Attorney Kirrane said that proposed lot coverage, excluding vegetated wetland, would be 21.46%. After a lengthy discussion, the Board decided to request Town Counsel opinion on how to calculate upland and wetland square footage and percentage of lot coverage.
At the continued hearings on August 8, 2012, Attorney Kevin M. Kirrane, Architect Timothy Luff, and wetlands delineation expert Jack Vaccaro represented the Petitions. The prospective buyers of the subject property, Mr. and Mrs. Peter Connly, were also at the meeting. Attorney Kirrane said that discussions with Town Counsel, Conservation Commission Agent Drew McManus, and wetlands expert Jack Vaccaro have confirmed that the coastal bank is not defined as a wetland under the State Wetlands Protection Act.
Revised plans were submitted with removal of a small jog from one side of the proposed structure, eliminating encroachment into the setback on the westerly side of the building. The proposed patio has been removed, further reducing the lot coverage to 21.22%.
Attorney Kirrane said that the issue of the patio will be addressed with the Building Commissioner at a later time. Mr. Luff said that after the landscaping and hardscaping have been installed, Building Commissioner Richard Morgan will conduct a site visit to specify exactly what he considers “on grade” for placement of the patio/raised patio.
Mr. Reiffarth questioned the discrepancy of the size of the property between the assessor’s calculation of 12,960 square feet and the engineer’s calculation of 14,000 square feet. Attorney Kirrane said that the tax records are not as accurate as a surveying engineer’s stamped plan. Mr. Reiffarth said that the difference in the two figures could be a result of deeded land along the water and another party, such as New Seabury Limited Partnership, may be paying taxes on a portion of the lot. Attorney Kirrane explained that the size of the property was calculated excluding vegetated wetland. After seeing that the 21% lot coverage is based upon a 12,960 square-foot parcel, Mr. Reiffarth was satisfied. However, he remarked that the plan is confusing because it does not specifically state the
square footage of the lot.
Mr. Furbush asked Conservation Commission Agent Andrew McManus for his opinion on the calculation of the lot coverage on the submitted plan. Prior to the meeting, Mr. McManus submitted a letter to the Board clarifying the definition and functions of coastal banks. Mr. McManus addressed the Board and said that the language in State Wetlands Protection Act 310 CMR 10.0 does not clearly explain the separation of resource area vs. wetlands. He stated that wetlands have very specific criteria. They contain vegetation that are adapted to certain hydric (very wet) soil conditions that contain moisture for most, if not all, of the year. These types of vegetation are “obligate” species that cannot grow anywhere else outside of wetlands. Mr. McManus stated that there is a clear distinction between
what is classified as a wetland and what is classified as a coastal bank.
Mr. McManus said that wetland resource areas, such as coastal banks, inland banks, flood zone and bordering land subject to flooding, are areas that are upland of wetlands. They do not contain wet conditions year round and sometimes do not contain wetland characteristics at all, but merely abut wetlands. They are included as part of the jurisdictional protection of 310 CMR 10.0, as well as Chapter 172 of the Mashpee Wetland By-law. Mr. McManus explained the different types of coastal banks that the Conservation Commission deals with in various projects. 1) Eroding coastal banks, such as exist out on the Sound, provide a sediment source for coastal beaches and coastal dunes. 2) Non-eroding, vegetated coastal banks are fully vegetated with trees and shrubs that provide a vertical buffer to storm and flood
damage and also provide wildlife habitat corridors. 3) The coastal banks, as seen in areas of New Seabury, are considered coastal banks by definition only, with a 10:1 slope, or steeper, criteria. Mr. McManus said that the topography features in this particular area of New Seabury are all artificial, manmade. Although this third type of banks provides a vertical buffer to storm damage and flood control, it holds no wildlife habitat value. Mr. McManus said that the third type of coastal bank is not a naturally-occurring land form; therefore, the performance standards (natural functions) associated with coastal banks are not applied. There is even a Town By-law provision for a waiver of the requirements. This allows for encroachment on or over these coastal banks closer to the wetlands, as long as compensatory (mitigating) plantings are proposed. Mr. McManus said this mitigating planting actually works in Conservation Commission’s favor
because turf is replaced with natural vegetation. This helps eliminate runoff of phosphorus, nitrogen and other elements into the wetlands. To Mr. Bonvie’s question, Mr. McManus answered that the coastal bank running through 172 Waterway does not qualify as a wetland and should be considered upland. Mr. McManus said that he agrees with the lot coverage calculation of 21.22%.
Mr. Paul Morgenstern at 189 Waterway delivered a letter to the Board just a few minutes before the meeting started, which Mr. Blaisdell read into the record.
Doris and Paul Morgenstern
189 Waterway
Mashpee, Massachusetts 02649
Tel 508-477-3566
August 8, 2012
Mashpee Zoning Board of Appeals
ATTN: Jonathan D. Furbush, Chairman
16 Great Neck Road North
Mashpee, MA 02649
Subject: 172 Waterway
Dear Chairman Furbush:
As an interested party by virtue of our proximity to the subject property, I wish to bring to the attention of the Zoning Board of Appeals my concerns regarding two of the three petitions presently before the Board relating to this property.
Written Finding
The petitioner’s representatives claim that the new dwelling structure constitutes an improvement because it will conform to the current building code, will add substantial value to the property, and will enhance the neighborhood. I maintain that these goals are achievable without subjecting the neighborhood to the more substantially detrimental effects of decreased setbacks and significant higher lot coverage. The key to this is architecturally innovative building plans.
For example, the petitioner cites the abutting property at 166 Waterway that was approved for construction with 21.9 percent lot coverage. Instead, I cite the property directly across the street at 161 Waterway that was renovated recently without any change in setbacks or lot coverage. The neighborhood received all of the benefits without suffering any of the detrimental effects.
The petitioners also claim that the proposed design is more compatible with the changing character of the neighborhood. I maintain that the changing character of the neighbor-hood is in conflict with the intent of the zoning regulations and that continued issuance of variances ultimately will destroy the environmental beauty of this neighborhood. The lots in Bright Coves Village are small averaging 13,875 sq. ft. – as such they are not suitable for large footprint homes.
There are approximately 105 parcels of land in Bright Coves Village located on Town Map 111. An analysis of a random sample from this population showed that the existing average lot coverage is 14.1 percent. Consequently, the proposal to build a structure with lot coverage of 32.5 percent most certainly is not compatible with the neighborhood. There is no merit in the trend to cover over every square inch of ground space so that the only views left are those of your neighbor’s bedroom.
If the goal of the petitioners truly is to upgrade the structure presently on the parcel at 172 Waterway to be compatible with the neighborhood, then the building’s current design needs to be modified to more closely blend with the Bright Coves Village environment.
Variance
It is my opinion that the Board should withhold approval of a variance on the proposed building design pending a suitable modification to this design. The lot at 172 Waterway is just too small for the proposed size house thereby causing substantial detriment to the public good and substantially derogating from the intent or purpose of the zoning ordinances.
Sincerely yours,
Paul Morgenstern
The ZBA office received the following email on August 7, 2012:
Dear Zoning Board staff:
I'm writing to express a Mashpee land owner's opinion on the zoning question at 172 Waterway.~
The zoning laws were put into place for a reason: to protect the beauty and ecology of the Cape. These laws were carefully thought-out by people with the best interests of the entire populace and future generations in mind. I can see that area already has many places that have built on the entire lot and down all the way to the water. That makes the pockets of trees and natural shoreline all the more important to birds, plants, fish and all the other elements that make the Cape attractive. Natural shoreline fills an important role in water filtration, habitat and as a buffer for weather. Pockets of trees allow birds to migrate across the towns and maintain the "Cape" feel of the area. We must look back and take seriously the good reasons why these zoning laws were put in place originally.~
We are against granting zoning exception at 172 Waterway.
Sincerely,
The Aronow Family
Living on John's Pond for more than 50 years
Attorney Kirrane countered that the proposal is not substantially more detrimental because the area is changing in character and the proposal is consistent with many projects that have received ZBA approval over the last few years.
Mr. Bonvie made a motion to grant a Special Permit to allow for demolition and replacement of the dwelling on the subject property. This Decision is conditioned upon compliance with:
- BSS Design Engineering & Surveying plan entitled Plot Plan Proposed House at 172 Waterway New Seabury, Mashpee, Massachusetts Prepared for Peter & Linda Connly, Date: June 27, 2012. Revisions: Aug 2, 2012, Aug 7, 2012.
- Building plans with revisions that reflect changes on the site plan will be submitted to the ZBA office.
- Conservation Commission Order of Conditions issued on July 23, 2012.
- Board of Health order restricting proposal to four bedrooms.
Mr. Blaisdell seconded the motion. Votes: Ms. Horton, yes. Mr. Reiffarth, yes. Mr. Furbush, yes. Mr. Blaisdell, yes. Mr. Bonvie, yes. Vote was unanimous.
Mr. Bonvie made a motion to grant a Written Finding to allow for construction of the new dwelling. Findings:
1) Proposal will not be substantially more detrimental than the existing non-conforming structure because:
- the new dwelling will be an improvement and will conform to current building code requirements;
- it is comparable in size and character to other structures in the neighborhood;
- installation of environmentally-friendly landscaping rather than lawn improves the site conditions and impact on surrounding properties, neighborhood, and wetlands.
2) There are sufficient parking and setbacks as may be required.
This Decision is conditioned upon compliance with:
- BSS Design Engineering & Surveying plan entitled Plot Plan Proposed House at 172 Waterway New Seabury, Mashpee, Massachusetts Prepared for Peter & Linda Connly, Date: June 27, 2012. Revisions: Aug 2, 2012, Aug 7, 2012.
- Building plans with revisions that reflect changes on the site plan will be submitted to the ZBA office.
- Conservation Commission Order of Conditions issued on July 23, 2012.
- Board of Health order restricting proposal to four bedrooms.
Mr. Blaisdell seconded the motion. Votes: Ms. Horton, yes. Mr. Reiffarth, yes. Mr. Furbush, yes. Mr. Blaisdell, yes. Mr. Bonvie, yes. Vote was unanimous.
With the revised plan, there is no longer an encroachment into the side setback requirements. The pre-existing, non-conforming dwelling is currently located within the setback to the water and wetlands and encroaches into the front setback requirements. In view of the foregoing, the Board determined that Variance relief is not necessary to allow for the proposal. Attorney Kirrane requested a Withdrawal Without Prejudice of the Petition for a Variance. Mr. Bonvie made a motion to accept the request. Mr. Blaisdell seconded the motion. Votes: Ms. Horton, yes. Mr. Reiffarth, yes. Mr. Furbush, yes. Mr. Blaisdell, yes. Mr. Bonvie, yes. Vote was unanimous.
The Board thanked Mr. McManus for attending the meeting and clarifying the wetlands/upland issue.
OTHER BUSINESS
Approve July 25, 2012 Minutes
Mr. Furbush made a motion to approve the Minutes. Mr. Blaisdell seconded the motion. Votes: Ms. Horton, yes. Mr. Dorsey, yes. Mr. DeBarros, yes. Mr. Reiffarth, yes. Mr. Bonvie, yes. Mr. Blaisdell, yes. Mr. Furbush, yes. Vote was unanimous.
Ms. Horton made a motion to adjourn the meeting. Mr. Blaisdell seconded the motion. Votes: Mr. Reiffarth, yes. Mr. Dorsey, yes. Mr. DeBarros, yes. Mr. Bonvie, yes. Mr. Blaisdell, yes. Mr. Furbush, yes. Ms. Horton, yes. Meeting was adjourned at 7:45 p.m.
Respectfully submitted,
Cynthia Bartos
Administrative Secretary
Zoning Board of Appeals
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