MASHPEE ZONING BOARD OF APPEALS
MINUTES
SEPTEMBER 12, 2012
The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, September 12, 2012 at 6:00 p.m. in Conference Room #1 at the Mashpee Town Hall, 16 Great Neck Road North. Board Members Jonathan D. Furbush, William A. Blaisdell, Ronald S. Bonvie, and Judith M. Horton and Associate Members John M. Dorsey and Domingo K. DeBarros, along with Building Commissioner Richard E. Morgan were present. Attorney Patrick Costello attended as legal counsel to the Board. Board Member James Reiffarth was unable to attend.
Chairman Jonathan D. Furbush opened the meeting at 6:00 p.m. He announced that the meeting was being televised live. He reminded anyone wishing to address the Board to wait to be recognized by the Chair, at which time they can approach the microphone, state their name and address, and make a brief statement.
PLEDGE OF ALLEGIANCE
NEW HEARINGS
The Petitions concerning Janet E. and Barry Krock, Trustees, are Hearings Upon Remand from The Land Court in accordance with the July 16, 2012 Order of the Court re: Land Court No. 09-MISC-395229 KCL.
Janet E. and Barry Krock, Trustees: Request a Special Permit under Sections 174-20 and 174-24.C of the Zoning By-laws for permission to demolish a pre-existing, non-conforming dwelling and replace it with construction of a single-family dwelling on property located in an R-3 zoning district at 4 Cross Street (Map 128 Parcel 15) Mashpee, MA.
Sitting: Board Members Jonathan D. Furbush, William A. Blaisdell, Ronald S. Bonvie, Judith M. Horton, and Associate Member John M. Dorsey.
Janet E. and Barry Krock, Trustees: Request 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 single-family dwelling on property located in an R-3 zoning district at 4 Cross Street (Map 128 Parcel 15) Mashpee, MA.
Sitting: Board Members Jonathan D. Furbush, William A. Blaisdell, Ronald S. Bonvie, Judith M. Horton, and Associate Member John M. Dorsey.
Janet E. and Barry Krock, Trustees: Request a Variance from Sections 174-28 and 174-31 of the Zoning By-laws concerning land space requirements to vary the front setback requirements and the lot coverage requirements to allow for construction of a single-family dwelling on property located in an R-3 zoning district at 4 Cross Street (Map 128 Parcel 15) Mashpee, MA.
Sitting: Board Members Jonathan D. Furbush, William A. Blaisdell, Ronald S. Bonvie, Judith M. Horton, and Associate Member John M. Dorsey.
Attorney Gary S. Brackett represented the Petitioner who has resided at the subject property for over 40 years. Attorney Brackett said that the 5,000 square-foot parcel is unique, being bordered on two sides by roads and on a third side by an unbuildable coastal parcel. The Petitioner also owns the directly abutting house to the subject property. The existing dwelling is less than 22 feet from Cross Street, less than 10 feet from Pine Avenue and less than 10 feet from the side setback. The proposal calls for demolition of the existing 975 square-foot dwelling to be replaced with a 3,000 square-foot, 2 ½ story, 2-bedroom dwelling. The non-conformity from the front setback to Cross Street will be reduced. Lot coverage will increase from 19.5% to 30%. The new structure will comply with current
building code requirements, reducing the risk of fire hazard. Because the property is assessed at 2.7 million dollars, the Petitioner feels that the proposal is in keeping with other homes in the neighborhood. Attorney Brackett said that the unique conditions of the subject property create hardship for the Petitioner to meet the requirements of the By-laws.
Mr. Furbush commented that previously, the Board asked the Petitioner to consider reducing the proposed 24.5% lot coverage; now the Petitioner is requesting 30% lot coverage. All of the Board members said that they consider 30% lot coverage to be excessive. Mr. John Slavinsky of Cape & Islands Engineering said that the Board granted a Variance of 29% lot coverage to a homeowner in the neighborhood. Mr. Slavinsky said that the proposal will be closer to the ocean side. He stated that the bottom of the coastal bank is not the edge of the BVW; and that the nearest coastal resource area is the Mean High Water Mark.
The Board of Health has approved installation of a new Title V Septic System. The Conservation Commission has approved the project which will include installation of extensive plantings.
DPW Director Catherine Laurent required storm water drainage to be handled on the subject property. Revised plans include leaching basins which will contain all drainage on the subject property.
Mr. Bonvie read letters (attached to these Minutes) in opposition to the proposed lot coverage of 30% from:
Peter and Sharon Readel, 22 Pine Avenue.
Dee and Henry Sockbeson, 294 Shore Drive.
Jon and Kim Jodka, 10 Cross Street.
Walter Dardano, 14 Rock Island Road.
In response, Attorney Brackett reiterated that the Conservation Commission has approved the proposal. Mr. Slavinsky said that similar projects have been built and have had no adverse impact on or erosion of the coastal bank.
Public comments:
Mr. Jeremy Carter, 7 Pine Street, stated that neighbors are not opposed to construction of a new house. Since the topography of the bank rises on approach to the beach, the proposal would negatively impact views. Mr. Carter said that the Krock family blocks access to the street and uses it for their own benefit. He said that a financial hardship does not exist and that 30% lot coverage is unreasonable.
Mr. Paul Dardano, 23 Pine Avenue, stated his opposition to grant of 30% lot coverage. He said that Mr. Krock built a patio on the bluff, which is not his property. Mr. Krock also built a stairway to the beach without Conservation Commission approval.
Mr. Jim Collins has owned his home at 6 Rock Island Road for 39 years. He said that he does not object to construction of a new home; however, 30% lot coverage is “too intense for that small 5,000 square-foot lot.”
Attorney Costello advised the Board to consider each of the three Petitions separately and to focus on the criteria that would apply to the Board’s deliberation. He said that the Request for a Special Permit under Section 174-20 is directly related to the request for a Written Finding under Section 174-17. Attorney Costello quoted the criteria for grant of a Written Finding under Section 174-17 for the Board to consider during deliberations: Any changes, extensions, or alterations of non-conforming single- or two-family dwelling structures which do not meet the applicable dimensional requirements as set forth in the By-law, and changes, extensions, or alterations of all other non-conforming structures, or non-conforming uses, may not be made unless there is a Written Finding by the Board of Appeals that such change,
extension or alteration shall not be substantially more detrimental than the existing non-conforming structure or use to the neighborhood and that there is adequate land area to provide sufficient parking and setbacks as may be required. Although said Written Finding shall not constitute a Special Permit as defined by the general laws and the By-law, the Board shall apply the same procedural requirements for a Special Permit.
Attorney Costello quoted the Special Permit criteria that would be applicable as set forth in Section 174-24.C of the By-laws: A Special Permit may be issued only following the procedures specified by General Laws and may be approved only if it is determined that the proposed use or development is consistent will applicable State A special permit may be issued only following the procedures specified by the General Laws and may be approved only if it is determined that the proposed use or development is consistent with applicable state and town regulations, statutes, bylaws and plans, will not adversely affect public health or safety, will not cause excessive demand on community facilities, will not significantly decrease surface or groundwater quality or air quality, will not have a significant adverse impact on wildlife
habitat, estuarine systems, traffic flow, traffic safety, waterways, fisheries, public lands or neighboring properties, will not cause excessive levels of noise, vibrations, electrical disturbance, radioactivity or glare, will not destroy or disrupt any species listed as rare, endangered or threatened by the Massachusetts Natural Heritage Program or any known historic or archaeologic site, will not produce amounts of trash, refuse or debris in excess of the town’s landfill and waste disposal capacities, will properly dispose of stumps, construction debris, hazardous materials and other waste, will provide adequate off-street parking, will not cause excessive erosion or cause increased runoff onto neighboring properties or into any natural river, stream, pond or water body and will not otherwise be detrimental to the town or the area.
Attorney Costello urged the Board to focus on these criteria when deliberating on whether or not to grant the requests for a Written Finding under Section 174-17 and a Special Permit under Section 174-20 and 174-24.C. He suggested, for organizational and consistency purposes, that the Board first consider the request for a Written Finding and the Special Permit.
Mr. Bonvie made a motion to GRANT a Written Finding, conditioned upon compliance with Cape & Islands Engineering Plan entitled: Proposed Leaching Catch Basin Prepared for The Hubert Trust Hse. No. 4 Cross Street Mashpee, Mass. Date: Sept. 5, 2012. Mr. Furbush seconded the motion. Votes: Mr. Blaisdell, opposed. Mr. Bonvie, opposed. Ms. Horton, opposed. Mr. Dorsey, opposed. Mr. Furbush, opposed. Vote was unanimous. Mr. Bonvie stated that he believes that the proposal is substantially more detrimental; that the abutting properties would be negatively affected; that the proposal does not meet the criteria for grant of a Written Finding.
Mr. Bonvie made a motion to DENY a Written Finding, as detailed in Cape & Islands Engineering Plan entitled: Proposed Leaching Catch Basin Prepared for The Hubert Trust Hse. No. 4 Cross Street Mashpee, Mass. Date: Sept. 5, 2012. Mr. Furbush seconded the motion. Votes: Mr. Blaisdell, in favor of Denial. Mr. Bonvie, in favor of Denial. Ms. Horton, in favor of Denial. Mr. Dorsey, in favor of Denial. Mr. Furbush, in favor of Denial. Vote was unanimous.
Mr. Bonvie made a motion to GRANT a Special Permit, conditioned upon compliance with Cape & Islands Engineering Plan entitled: Proposed Leaching Catch Basin Prepared for The Hubert Trust Hse. No. 4 Cross Street Mashpee, Mass. Date: Sept. 5, 2012. Mr. Furbush seconded the motion. Votes: Mr. Blaisdell, opposed. Mr. Bonvie, opposed. Ms. Horton, opposed. Mr. Dorsey, opposed. Mr. Furbush, opposed. Vote was unanimous.
Mr. Bonvie made a motion to DENY a Special Permit, as detailed in Cape & Islands Engineering Plan entitled: Proposed Leaching Catch Basin Prepared for The Hubert Trust Hse. No. 4 Cross Street Mashpee, Mass. Date: Sept. 5, 2012. Mr. Furbush seconded the motion. Votes: Mr. Blaisdell, in favor of Denial. Mr. Bonvie, in favor of Denial. Ms. Horton, in favor of Denial. Mr. Dorsey, in favor of Denial. Mr. Furbush, in favor of Denial. Vote was unanimous.
Attorney Costello reiterated that the Board must find each one of the following statutory requirements has been met in order to grant Variance relief: (1) owing to the circumstances relating to the soil conditions, shape or topography of the land or structures and especially affecting such land or structures, but not affecting generally the zoning district in which it is located. (2) a literal enforcement of the provisions of the By-law would involve substantial hardship, financial or otherwise, to the Petitioner. (3) that 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-law.
Mr. Bonvie made a motion to GRANT a Variance, conditioned upon compliance with Cape & Islands Engineering Plan entitled: Proposed Leaching Catch Basin Prepared for The Hubert Trust Hse. No. 4 Cross Street Mashpee, Mass. Date: Sept. 5, 2012. Mr. Furbush seconded the motion. Votes: Mr. Blaisdell, opposed. Mr. Bonvie, opposed. Ms. Horton, opposed. Mr. Dorsey, opposed. Mr. Furbush, opposed. Vote was unanimous.
Mr. Bonvie made a motion to DENY a Variance, as detailed in Cape & Islands Engineering Plan entitled: Proposed Leaching Catch Basin Prepared for The Hubert Trust Hse. No. 4 Cross Street Mashpee, Mass. Date: Sept. 5, 2012. Mr. Furbush seconded the motion. Votes: Mr. Blaisdell, in favor of Denial. Mr. Bonvie, in favor of Denial. Ms. Horton, in favor of Denial. Mr. Dorsey, in favor of Denial. Mr. Furbush, in favor of Denial. Vote was unanimous.
Attorney Costello explained that, in the case of a Remand Order, the Board must file its Decision within 30 days after the Public Hearing. Ten days after the Decision is filed with the Town Clerk, Town Counsel and Counsel for the Petitioner will submit an updated status report to the Land Court relative to the action taken by the Board. After that the Land Court will consider the arguments presented.
Due to another commitment, Mr. Bonvie left the meeting at 7:35 p.m.
George H. Ryan, III: Requests a Written Finding under Section 174-17 of the Zoning By-laws to allow for construction of a therapeutic lap pool and enclosed three-season sunroom onto a pre-existing, non-conforming dwelling on property located in an R-3 zoning district at 180 Ninigret Avenue (Map 65 Parcel 89) Mashpee, MA.
Sitting: Board Members Jonathan D. Furbush, William A. Blaisdell, Judith M. Horton and Associate Members John M. Dorsey and Domingo K. DeBarros.
Mr. George H. Ryan III represented his Petition and said that plans call for removal of the existing hot tub. This will be replaced with a therapy swim spa that will facilitate his wife’s recovery from a broken neck injury. The swim spa will be enclosed within a three-season sunroom. The proposal will increase lot coverage from 22% to 23%. Mr. Ryan said that the pool and the water will be heated so that his wife can use the pool year-round. Mr. Dorsey reminded Mr. Ryan that heat to service the three-season room is prohibited.
Mr. Morgan questioned why Mr. Ryan’s fence and two of his sheds are illegally located in the right of way and not on his property. Mr. Morgan asked if Mr. Ryan would be willing to remove two of the sheds and relocate the fence to his own property. After a short discussion with his architect Bruce Devlin, Mr. Ryan agreed to remove two of the sheds, move the third shed so that it will be located one foot from the driveway, and relocate the fence to his property. The Petitioner shall submit revised plans to the ZBA office.
Ms. Mary Hallinan of 10 Metacom Road sent a letter in approval of the proposal.
Board of Health comments: “In Zone II. No heat may service the three-season room.”
The Conservation Commission approved the project and issued a negative determination on a Request for Determination of Applicability on July 13, 2012.
Mr. Blaisdell made a motion to approve the Written Finding, subject to submission of a revised plan showing removal of two sheds, relocation of the large shed currently in the right of way to the subject property one foot from the driveway and relocation of the fence so that is completely on the Petitioner’s property. The revised plan shall also include the total proposed lot coverage calculations. Ms. Horton seconded the motion. Votes: Mr. DeBarros, yes. Mr. Dorsey, yes. Mr. Furbush, yes. Mr. Blaisdell, yes. Ms. Horton, yes. Vote was unanimous.
On September 17, 2012, the ZBA office received revised plans dated September 14, 2012 from Cape & Islands Engineering.
Nathan Kalowski, Trustee: Requests a Written Finding under Section 174-17 of the Zoning By-laws to allow for construction of an addition to a pre-existing, non-conforming dwelling located on property located in an R-3 zoning district at 35 Waterline South Drive (Map 120 Parcel 151) Mashpee, MA.
Sitting: Board Members Jonathan D. Furbush, William A. Blaisdell, Judith M. Horton and Associate Members John M. Dorsey and Domingo K. DeBarros.
Mr. and Mrs. Kalowski attended the meeting. Mr. Kalowski stated that he bought the house in May 2000 and would like to increase the living area to accommodate his growing family. Plans call for addition of an 11x13-foot bedroom with a bath located behind the garage. The addition would be accessed from the existing sunroom. One of the existing bedrooms will be converted into office or playroom space. Existing lot coverage is 23.73% of upland area. Proposal will increase lot coverage to 26.22% of upland area. Mr. Kalowski said that the proposed addition is not luxurious and represents a practical size given the expense of remodeling.
The Board expressed concern with the proposed increase in lot coverage. Mr. Furbush asked if the Petitioner would consider removing the garage or part of the existing large deck to reduce lot coverage. Mr. Kalowski stated that part of the enjoyment of the summer home is use of the deck. Mrs. Kalowski said that the Petition would not pose an adverse impact on other neighbors or on their views. Mr. Kalowski asked what kind of Variance relief that the Board would be agreeable to. Mr. Furbush said that he would be very comfortable with anything just under 24% lot coverage. He commented that the subject dwelling is very large and is quite nice. Mr. Kalowski challenged the Board to think about other homes in Little Neck Bay, which he claims are twice the size of his dwelling. Mr. and Mrs.
Kalowski requested a continuance of the Petition to allow them an opportunity to consult with an engineer about reducing the size of the proposal. Mr. Furbush made a motion to continue the Petition until October 24, 2012. Mr. Blaisdell seconded the motion. Votes: Ms. Horton, yes. Mr. DeBarros, yes. Mr. Dorsey, yes. Mr. Furbush, yes. Mr. Blaisdell, yes. Vote was unanimous.
OTHER BUSINESS
Approve August 22, 2012 Minutes
Ms. Horton made a motion to accept the Minutes. Mr. Furbush seconded the motion. Votes: Mr. DeBarros, yes. Mr. Dorsey, yes. Mr. Blaisdell, yes. Mr. Furbush, yes. Ms. Horton, yes.
Mr. Furbush made a motion to adjourn the meeting. Mr. Blaisdell seconded the motion. Votes: Ms. Horton, yes. Mr. Dorsey, yes. Mr. DeBarros, yes. Mr. Blaisdell, yes. Mr. Furbush, yes. Meeting was adjourned at 8:15 p.m.
Respectfully submitted,
Cynthia Bartos
Administrative Secretary
Zoning Board of Appeals
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