MASHPEE ZONING BOARD OF APPEALS
MINUTES
AUGUST 22, 2012
The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, August 22, 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. Building Commissioner Richard E. Morgan was also in attendance.
Chairman Jonathan D. Furbush opened the meeting at 6:00 p.m. He announced that the meeting was being televised live.
PLEDGE OF ALLEGIANCE
NEW HEARINGS
Mashpee Housing Authority: Requests Minor Modifications to 1987 Comprehensive Permit (SP-87-06-060) concerning property located at in an R-5 zoning district at 570 Old Barnstable Road (Map 72 Parcel 100) Mashpee, MA. These modifications reflect changes to comply with State regulations and jurisdictional matters. These modifications do not include any change in the approved site design or number of units. Attorney Singer’s July 17, 2012 letter, Exhibit A and Exhibit B are attached to these Minutes.
Sitting: Board Members Jonathan D. Furbush, William A. Blaisdell, Ronald S. Bonvie, James Reiffarth, and Judith M. Horton.
Housing Assistance Corporation: Requests Minor Modifications to 2010 Comprehensive Permit (CP-10-29) concerning development of property located in an R-5 zoning district at 570 Old Barnstable Road (Map 72 Parcel 100) Mashpee, MA. These modifications reflect changes to comply with State regulations and jurisdictional matters. These modifications do not include any change in the approved site design or number of units
Sitting: Board Members Jonathan D. Furbush, William A. Blaisdell, Ronald S. Bonvie, James Reiffarth, and Judith M. Horton.
Attorney Andrew Singer represented the Petitions. Housing Assistance Corporation Project Manager Adrienne Danner and Mashpee Housing Authority Executive Director Leila Botsford were also present. Attorney Singer explained that the Minor Modifications to the 1987 and 2010 Comprehensive Permits are necessary in order to satisfy MassHousing Partnership and lender regulations. Breezy Acres, the housing in the front of the parcel owned by the Mashpee Housing Authority, is Chapter 705 property with its own regulations and funding. The property in the back of the property, which the Housing Assistance Corporation is developing, is now named Great Cove Community. Since both developments will operate under different sets of regulations, the Commonwealth is demanding a very clear delineation between the two
developments on the subject property: the front portion is operating under the 1987 Comprehensive Permit, while the back portion of the property is operating under a 2010 Comprehensive Permit.
The only change to the 1987 Comprehensive Permit granted to the Mashpee Housing Authority is substitution of the first paragraph: See Exhibit B. This reflects that the Breezy Acres development occupies the 1.4 acres in the front of the subject property. The 4.8 acres in the back will be declared ‘surplus’, thereby allowing for an agreement with the Housing Assistance Corporation for development of the Great Cove Community. Attorney Singer suggested that the Decision for a Minor Modification could indicate that paragraph 1 has been substituted and that the original 1987 Comprehensive Permit could be attached as Exhibit A to the Decision.
No comments were received from Town Departments/Boards/Committees or abutters.
Mr. Bonvie made a motion to grant the Minor Modification to the 1987 Comprehensive Permit. Mr. Blaisdell seconded the motion. Votes: Mr. Furbush, yes. Ms. Horton, yes. Mr. Reiffarth, yes. Mr. Blaisdell, yes. Mr. Bonvie, yes. Vote was unanimous.
Attorney Singer outlined the requested changes to the 2010 Comprehensive Permit. Some of the changes will include deleting all references to Mashpee Housing Authority, Breezy Acres I, and Breezy Acres II, leaving the 2010 Comprehensive Permit to reflect only the Housing Assistance Corporation as the Petitioner and Great Cove Community as the development. Other changes will provide the flexibility needed to comply with both the MassHousing Partnership and lender requirements regarding affordable restriction compliance. The MassHousing Partnership and lenders require that the restriction and financial aspects of their regulatory agreements take precedence over the Comprehensive Permits. In addition, the loan documents must be senior to other restrictions to enable the developments to be financeable. Language
will be revised to reflect that the Petitioner has entered into a wastewater agreement with the Town. Lottery preference has been slightly revised. Ms. Danner explained that a lottery for the units will be utilized with 70% residence preference.
Once the ZBA has rendered its Decision, the State no longer considers the Board as part of the process. Instead, the Building Department and the Engineering peer review will determine when the infrastructure for the building has been completed and when the Occupancy permits shall be issued. Attorney Singer asked for the Decision to reference the most recent plan, which was approved by the ZBA at the June 8, 2011 Public Hearings.
No comments were received from Town Departments/Boards/Committees or abutters.
Mr. Bonvie made a motion to grant the Minor Modification to the 2010 Comprehensive Permit. This Decision is based upon compliance with plan from Architects Brown Lindquist Fenuccio & Raber Architect, Inc. and Civil Engineers and Landscape Architects Horsley Witten Group entitled: “PROPOSED BREEZY ACRES EXPANSION FOR HOUSING ASSISTANCE CORPORATION & MASHPEE HOUSING AUTHORITY 570 OLD BARNSTABLE ROAD, MASHPEE, MA ISSUED FOR SPRING 2011 ONE-STOP APPLICATION 4/14/2011. Mr. Blaisdell seconded the motion. Votes: Mr. Furbush, yes. Ms. Horton, yes. Mr. Reiffarth, yes. Mr. Blaisdell, yes. Mr. Bonvie, yes. Vote was unanimous.
Peter Costill: Requests a Variance from Sections 174-31 and 174-33 of the Zoning By-laws to vary the land space requirements and the setback requirements from water and wetlands to allow for construction of a boathouse on property located in an R-3 zoning district at 37 Monomoscoy Road West (Map 114 Parcel 11) Mashpee, MA. Petitioner was unable to commence project and Variance V-2011-13 has lapsed. Expiration date for Special Permit SP-2011-12 allowing for construction of the boathouse is June 8, 2013.
Sitting: Board Members Jonathan D. Furbush, William A. Blaisdell, Ronald S. Bonvie, James Reiffarth, and Judith M. Horton.
Mr. Costill represented his Petition and stated that the 2011 Variance has lapsed due to financial hardship. He stated that he is saving money to go forward with the proposal. Mr. Costill said that he has not made any changes to the plan and asked the Board for a new Variance to allow for construction of the boathouse.
No comments were received from abutters.
Mr. Bonvie made a motion to grant the following Variance relief:
- Variance of 9 feet from the setback requirements from water or wetlands.
- Variance of 4 feet from the side setback requirements to Town-owned property.
- Variance of 28 feet from the front setback requirements from Overland Road.
- Variance of 26 feet from the front setback requirements from Monomoscoy West Road.
This Decision is based upon compliance with Cape & Islands Engineering plan entitled: Proposed Boathouse Located in Mashpee, Mass. Prepared for Peter Costill, Date: Mar.31.2008, Rev’d May 15, 2008; May 20, 2008, July 11, 2008, May 15, 2011, May 31. Mr. Blaisdell seconded the motion. Votes: Mr. Reiffarth, yes. Ms. Horton, yes. Mr. Bonvie, yes. Mr. Furbush, yes. Mr. Blaisdell, yes. Vote was unanimous.
Vicki J. Holmes-McDevitt: Requests a Variance from Section 174-31 of the Zoning By-laws to vary the frontage and lot size requirements in order to restore the property located in an R-5 zoning district at 24 Cranberry Lane (Map 23 Parcel 74) Mashpee, MA as a separate building lot.
Sitting: Board Members Jonathan D. Furbush, William A. Blaisdell, Ronald S. Bonvie, James Reiffarth, and Judith M. Horton.
Ms. Vicki J. Holmes-McDevitt represented her Petition and read the following statement:
In 1974, I was asked to come and see a development known as Santuit Pond Estates, owned at the time by Nancy and Donald Blakeman. I picked out a parcel of land, Lot #47, 30 Cranberry Land and purchased it in 1974. I paid taxes on that lot beginning in 1974 - 22 years as a buildable lot - before eventually building my home on it in 1996.
In December 1998, lot #46 – 24 Cranberry Lane - was purchased. I have paid taxes on that parcel of land for 13 years as a separate and buildable lot, which taxes have included:
- Land tax.
- Street betterment.
- Water district.
- Community Preservation Act (of which committee I was a member to save Brackett Bog and the other 270 abutting acres).
My original intent was to build a home for my parents in their later years to be closer to me for any care giving needs they may have. Now I need to sell that parcel of land so that I can pay off my mortgage balance and keep my own home at 30 Cranberry Lane, as my alimony ends August 2, 2013. Now the sale of that parcel of land is for my survival and to hold onto my home that I have labored many years in my jobs and saved money in order to buy and build my dream home in Mashpee.
Hence, I receive quarterly tax bills for two properties: 24 Cranberry Lane – the buildable lot I purchased – and 30 Cranberry Lane, as they are separately deeded.
William Hauck, the Mashpee Building Inspector at the time of purchase of 24 Cranberry Lane, gave me documentation that 24 Cranberry Lane was a buildable lot in 1998.
When I went through a divorce in 2000, Judge Robert Terry of Barnstable Probate and Family Court deeded over to me my home at 30 Cranberry Lane and the parcel of land at 24 Cranberry Lane as my divorce settlement. Now the only way I can keep my home at 30 Cranberry Lane is to sell that buildable lot at 24 Cranberry Lane. Given the economy, I have reduced the price of that buildable lot many times over to the point of now being below tax value. Variables that played into the land price reduction were:
- Overall economic downfall of the real estate/land market value.
- Santuit Pond pollution.
- Town restrictions and guidelines added after the purchase date of the property that made selling it as a buildable lot almost prohibitive.
My prayers were answered a month ago when a couple wanted to purchase the land and build their retirement home on 24 Cranberry Lane.
As I have been told, the Town changed the land space requirements for buildable lots. This has led me to respectfully request a Variance from this Board to restore this property to its status as a buildable lot for this couple. I have been hopeful, given my observation of Variances that have been granted in the immediate neighborhood; i.e.: the two homes that were built at 15 and 21 Cranberry Lane right after I purchased 24 Cranberry Lane; and then, Melinda Bradley was granted a Variance to re-design three or four lots in Santuit Pond Estates on Cranberry Lane to construct homes, including a home that will be built in close proximity to the bog.
I am also open to the possibility of selling this parcel of land for the full tax value of $126,200 to the Town of Mashpee to be maintained as Conservation land by the Town and to serve as public access to the bog.
Your review and attention to this Variance request is most graciously appreciated.
The couple interested in purchasing 24 Cranberry Lane would like to present their building plans to you at this time.
Thank you, again, for your sincere review in this matter.
Mr. Furbush asked if both lots were purchased separately. Ms. Holmes-McDevitt said that she purchased 30 Cranberry Lane in 1974, got married in 1989, and built a home on the parcel in 1996. She said that she and her husband purchased the lot at 24 Cranberry Lane in 1998. She has been paying taxes on 24 Cranberry Lane as a separate and buildable lot for over 14 years. Ms. Holmes-McDevitt’s name is on the deed for 30 Cranberry Lane and both she and her husband are named on the deed for 24 Cranberry Lane. Mr. Bonvie said that it appears that as part of the divorce settlement, the judge decreed both parcels of land to Ms. Holmes-McDevitt; therefore, merging the lots. Mr. Morgan said that even before the divorce decree, he considers the lots to have been merged because Ms.
Holmes-McDevitt’s name was on both deeds. She said that she does not consider the lots to have been merged because she pays taxes on both lots as separate and buildable. Mr. Morgan said that the Petitioner could have put one of the lots in a different name and this would not be an issue. Mr. Reiffarth said that if there are two separate deeds, there are two separate lots; especially in light of the fact that Mr. McDevitt’s name only appears on one deed.
Gary and Kimberly Ridenour of Franklin, MA, the prospective buyers of the subject property attended the meeting. The Board allowed Mr. Ridenour to discuss his proposal to build a home on the subject property. The Board asked if he would be seeking Variances from the lot coverage and setback requirements. Mr. Bonvie suggested that Mr. Ridenour submit a plan for the Board to review. Mr. Ridenour said that he wants confirmation that the lot is buildable before he expends more money on a surveyed plan. He said that the property passed a perc test and the Board of Health approved installation of a three-bedroom septic system. Mr. Blaisdell said that the Board is not authorized to decide on Mr. Ridenour’s proposal because Mrs. Holmes-McDevitt’s Petition is the only matter that is before the Board
tonight. Mr. Blaisdell said that the ZBA should not be concerned with a proposal that may or may not take place.
Mr. Blaisdell made a motion to grant the following Variance relief:
- A Variance of 50 feet from the frontage requirements.
- A Variance of 67,000 square feet from the land space requirements.
Mr. Bonvie seconded the motion. Votes: Mr. Reiffarth, yes. Ms. Horton, yes. Mr. Furbush, yes. Mr. Bonvie, yes. Mr. Blaisdell, yes. Vote was unanimous.
Approve August 8, 2012 Minutes
Ms. Horton made a motion to approve the Minutes. Mr. Furbush seconded the motion. Votes: Mr. DeBarros, yes. Mr. Dorsey, yes. Mr. Reiffarth, yes. Mr. Blaisdell, yes. Mr. Furbush, yes. Mr. Blaisdell, yes. Ms. Horton, yes. Vote was unanimous.
Approve: Refund balance of deposit for ZBA engineering consultant fees concerning project at 71 Jobs Fishing Road for First Citizens Federal Credit Union. Ms. Horton made a motion to refund the balance of deposit to First Citizens’ Federal Credit Union. Mr. Blaisdell seconded the motion. Votes: Mr. Bonvie abstained. Mr. Reiffarth, yes. Mr. Dorsey, yes. Mr. DeBarros, yes. Mr. Blaisdell, yes. Mr. Furbush, yes. Ms. Horton, yes. Motion passed.
Mr. Reiffarth made a motion to adjourn the meeting. Mr. Dorsey seconded the motion. All voted in favor and meeting was adjourned at 7:00 p.m.
Respectfully submitted,
Cynthia Bartos
Administrative Secretary
Zoning Board of Appeals
attachments
Law Office of Singer & Singer, LLC
26 Upper County Road
P. O. Box 67
Dennisport, Massachusetts 02639
July 17, 2012
Via Email and U.S. Mail
Mashpee Board of Appeals
16 Great Neck Road North
Mashpee, MA 02649
Re: 570 Old Barnstable Road, Mashpee (Assessor’s Map 72, Parcel 100)
Dear Members of the Board:
Upon review of the Comprehensive Permit issued by the Board of Appeals in 2010, regarding the above-referenced land, the Massachusetts Housing Partnership is requiring certain changes in order to comply with State regulations and issue final State approval for the new affordable housing development. Most of these changes relate to lender underwriting requirements and jurisdictional matters residing with the Commonwealth of Massachusetts. In addition, some of the changes reflect conditions imposed by the Board that have been satisfied in the interim.
I am thus writing to request two separate, minor amendments on behalf of two separate
Applicants relating to, respectively, 1) the new affordable housing development proposed for the rear portion of the land and 2) the existing affordable housing development on the front portion of the land, as follows:
1. Amend the 2010 Comprehensive Permit (CP-10-29) for the Housing Assistance Corporation as set forth on Exhibit A attached hereto; and
2. Amend the 1987 Comprehensive Permit (SP-87-06-060) Mashpee Housing Authority as set forth on Exhibit B attached hereto.
On behalf of the respective Applicants, I respectfully request that we be placed on the Board’s agenda for the August 8, 2012, meeting to review these two, proposed minor amendments.
If you have any questions or if I can provide any additional information, please let me know. Thank you for your assistance with these matters.
Very truly yours,
Andrew L. Singer
ALS/a
attachments
EXHIBIT A
Minor Amendment to Comprehensive Permit (CP-10-29) (2010)
1. Delete all references to Mashpee Housing Authority as a co-Applicant or Applicant. The Applicant will be only the Housing Assistance Corporation.
2. Delete all references to Breezy Acres II and replace with Great Cove Community, the new name of the development on the rear portion of the land.
3. Section I(1) – Delete the second sentence and replace as follows: “The Applicant seeks to construct ten (10) rental dwelling units in five duplex buildings on the rear portion of the property.”
4. Section I(2) – Delete this language in its entirety and replace as follows:
“The existing Breezy Acres residential development on the front portion of the property was approved by a Comprehensive Permit filed with the Mashpee Town Clerk on August 13, 1987 (Appeal No. SP-87-06-060). The Great Cove Community will be located on the rear portion of the property, which land is being disposed of by the property owner, the Mashpee Housing Authority, to the Applicant by long-term ground lease. The Mashpee Housing Authority will separately seek an amendment to its Comprehensive Permit to acknowledge such disposal of the rear portion of the property for purposes of the Great Cove Community development. The existing Breezy Acres development and the new Great Cove Community development are separate developments to be governed by their respective Comprehensive Permits.”
5. Section II(4) – Delete the third sentence.
6. Section II(5) – Delete this language in its entirety and replace as follows:
“The Applicant proposes that 100% of the 10 units will be permanently deed-restricted for affordable rentals in accordance with State and Federal regulations, as the same may be amended from time to time.”
This change is being proposed to provide the flexibility needed to comply with both MHP and lender requirements regarding affordable restriction compliance.
7. Section II(6) – Delete the second sentence.
8. Section IV, first paragraph – Delete the reference to (b). There will be only one vote.
9. Section IV(10) – Delete the second sentence and replace as follows:
“The Applicant has entered into a Wastewater Agreement with the Town of Mashpee. No occupancy permit for any of the new units shall be issued until the Applicant provides the Board and Building Department with evidence that the connection to the Town’s wastewater treatment system and the public water supply are operational.”
10. Section IV(13) – Delete this language in its entirety and replace as follows:
“All of the units shall be restricted as affordable rentals in perpetuity with minimums as established in accordance with State and Federal regulations, as the same may be amended from time to time. The rental amount shall be affordable for such households in accordance with any standards imposed by DHCD. The deed rider or use restriction(s) that are required in order to ensure the restrictions on affordability shall be submitted to the Town for review by the Board and its counsel prior to signing. Evidence of the recorded deed rider or use restriction(s) shall be provided to the Board.”
These changes are being proposed to provide the flexibility needed to comply with both MHP and lender requirements regarding affordable restriction compliance and further because MHP and lenders require that the restriction aspects of their regulatory agreements take precedence over the Comprehensive Permit, and the revised language accounts for this.
11. Section IV(14) – Delete the reference to “parents of Mashpee residents” in the current first sentence. This is an impermissible category for local preference. In addition, add a new first sentence as follows: “The Board has determined that there is a need for a local preference and that such local preference will not have a disparate impact.”
12. Section IV(16) – Delete in its entirety. Identifying the manager in the Comprehensive Permit is problematic. HAC has completed the required process of soliciting bids for a manager of the property post construction.
13. Section IV(17) – Revise the first sentence by deleting the phrase (“...[such regulatory agreement] shall be subject to...unreasonably withheld”) and replace with “...[such regulatory agreement] shall be submitted to the Town for review by the Board and its counsel prior to signing.” In addition, change “building permits” to “occupancy permits” in the last sentence.
MHP and lenders require that the financial aspects of their regulatory agreements take precedence over the Comprehensive Permit, and the revised language accounts for this. In addition, lenders require that building permits be issued before closing, and the regulatory agreement is not executed until closing. This change will allow the mechanics of finalizing the regulatory agreement in connection with the financing to work smoothly.
14. Section IV(19)(c) – Delete in its entirety and replace as follows:
“Upon completion of all such Infrastructure for the applicable building, as described above, the Board’s engineer shall inform the Board and Mashpee Building Inspector accordingly, and the occupancy permit may be released. No occupancy permit shall be issued without such notification, and such notification shall be ineffective unless it is in writing.”
An additional requirement to obtain new Board review and authorization for release of occupancy permits is problematic for both MHP and construction lenders in completing the necessary financing for the proposed development. This language places the responsibility for such final review with the Town’s engineer as is customary in such proposals.
15. Section IV(21) – Change the reference to MHA in the first sentence to “property manager”.
16. Section IV(24) – Delete reference to “Board’s Counsel’s fees”. Peer review fees are not allowed to include attorneys fees per regulation and case law.
17. Section IV(28) – Delete the last sentence in its entirety. Under relevant case law, the loan documents must be senior to other restrictions to enable such developments to be financeable.
EXHIBIT B
Minor Amendment to Comprehensive Permit (SP-87-06-060) (1987)
The first project was seeking permission under Massachusetts General Laws, Chapter 40B - a Comprehensive Permit, to construct three two-family houses on the front portion of a parcel of property containing a total of approximately 6.2 acres, more or less. The property was located on Old Barnstable Road in Mashpee and is presently owned by the Mashpee Housing Authority. Mashpee Town Meeting vote authorized the transfer of the property from the Town of Mashpee to the Mashpee Housing Authority. As currently conditioned, such property is to be used for the express purpose of providing low or moderate income housing as defined by the Commonwealth of Massachusetts, including without limitation public housing and other subsidized housing units, containing a total of not more than 40 bedrooms on the property. The three
two-family houses (containing a total of six units and 18 bedrooms) are to be constructed on the front portion of the property containing 1.4± acres (of which 0.2± acres represents an access easement area), it being acknowledged that the rear 4.8± acres of the property (with rights to the access easement area) is to be disposed of by the Petitioner to a third party by long-term ground lease for the purposes of constructing additional affordable housing (containing up to 22 bedrooms) under a separate Comprehensive Permit.
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