MASHPEE ZONING BOARD OF APPEALS
AUGUST 26, 2015
MEETING MINUTES
The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, August 26, 2015, at 6:00 p.m. in the Waquoit Room at the Mashpee Town Hall, 16 Great Neck Road North. Board Members Jonathan D. Furbush, William A. Blaisdell, Ronald Bonvie, Richard Jodka, Domingo K. DeBarros and Associate Member, Scott Goldstein were present. Also present was Town Counsel, Attorney, Patrick J. Costello, and Building Commissioner, Michael Mendoza.
PLEDGE OF ALLEGIANCE
NEW HEARINGS
Jonathan Furbush, Chairman rearranged the Agenda hearings to accommodate Town Counsel’s schedule as he will be participating in the hearing for 29 Echo Road.
29 Echo Road: Triple M Management Company, LLC request a Special Permit under §174-24 (J) to construct a 1,500 sq. ft. +/- building to be utilized as a Medical Marijuana Treatment Center on property located in an I-1 Zoning District, (Map 19 Parcel 3 Ext. 9), Mashpee, MA.
29 Echo Road: Triple M Management Company, LLC request a Variance under §174-31 for relief from the front setback requirement to construct an 8’ x 8’ security booth on property located in an I-1 Zoning District, (Map 19 Parcel 3 Ext. 9), Mashpee, MA.
Attorney, Mark Gildea, of Clark, Balboni and Gildea, represented the applicant for the special permit and variance request for 29 Echo Road. Also present was Jonathan Herlihy, President of Triple M Management, Jim Vaccaro, Consultant, and Raul Lizardi-Rivera, P.E. of Holmes and McGrath, Inc.
Mr. Gildea stated he met with the Board of Selectmen, the Design/Review Committee, and the local police department on the proposed project and received favorable approval. The Town adopted allowable use for Marijuana Treatment Centers/Registered Dispensaries back in January 2013, and became a Town bylaw in October 2013; it was approved by the Attorney General in December 2013.
Mr. Gildea provided the Board with a detailed application, including site and floor plans, elevation plans, lighting plans, and a drainage report. The proposal is to construct a 1,500 sq. ft. metal building on a lot that consists of approximately 40,910 sq. ft. situated in an industrial zone (I-1). There will be seven employees on site, two of those will be security personnel. The facility will be open limited hours, and patients will be seen by appointment only with fifteen appointments per day, and will eventually be open six days a week.
There should not be any issues with traffic flow because this is one of two facilities that will be licensed on Cape Cod. There is a State approved project proposed in Dennis that is going through the process as well.
In addition to the on-site staff, the applicant has a retired State police officer as the director of security, and has reviewed the security plans with Town officials. There’s also a chief operating officer, a compliance officer, and medical director. The applicant has provided a detailed security plan that has been reviewed and approved by the Mashpee Police Department.
The site plan depicted a wired fence surrounding the outer property, and a more secure fence on the inside of the property. There will be a security booth that will be manned when the facility is open, and designed when patients drive up, their car will be checked at the security gate, and they will need to provide their authenticated documents or the armed gate will not open. There are segregated parking areas for employees and patients for safety purposes. The property is somewhat void of landscaping because regulations require there be a distance of 50 feet to any entrance or any parking spaces so someone cannot hide behind landscaping and surprise patients or employees.
The proposed project meets and exceeds all of the front, side and rear setbacks with the exception of the guard house which is a variance request for a front yard setback. The floor plans are designed to comply with both the Town and State regulations. Inside the building there are segregated areas for the product. There’s a secured patient waiting area with a security guard at the front desk who will check people’s credentials. There will be no overnight storage of product or money, and if this agreement changes, the applicant will have to return to the Board of Selectmen to discuss these changes.
The bylaw for the parking requires 10 parking spaces including one ADA parking space. There will be 21 parking spaces provided including four ADA available spaces. The reason for the additional spaces are as follows:
- Four ADA are given the needs of the patients that are expected to use the facility.
- Due to the segregation of the parking for employees and patients, there is a need for additional parking.
- The Zoning parking requirements are based on square footage because there will be two security personnel onsite, and an additional space is required for those individuals.
Raul Lizardi-Rivera, of Holmes and McGrath addressed the Board to discuss the drainage and septic system. He reviewed the plans with Charlie Rowley, the Town’s Engineering Consultant. The site has been split into three drainage areas. There’s a drainage area in the front, a sub-surface drainage system, and a rear section. All three have the same cross sections with a two foot swale. The sub-surface leaching is composed of two galleys with crushed stone, and will accommodate the 100-year storm event.
The septic system is in the back of the property with two leaching fields, a primary and a reserve. The Town requires the system to be rotated every couple years.
Attorney Gildea stated he would like the Board to grant the front yard setback variance for the security booth which is important to the security of this facility, secondly he asked for the additional parking under §174-39 of the bylaw, and finally, a special permit under §174-24 (J) of the bylaw.
Mr. Furbush asked Raul to respond to Charlie Rowley’s four additional items from his report that he requested in his letter dated August 25, 2015. Mr. Bonvie would like to see a revised letter from Charlie stating he is satisfied with those four additional items. Mr. Gildea said that those items can be conditioned in the decision from the Board.
Mr. Mendoza stated he can make a condition prior to any issuance of a building permit until he receives a letter of acceptance from Charlie Rowley that these items were addressed. He also wants clarification on the signage and logo. Mr. Gildea said the logo will only be on the sign in front. There are limitations to the lighting of that sign, and are set forth in the State regulations.
Mr. Furbush mentioned that the applicant would have to return to Design/Review if there’s an issue with queuing on Echo Road.
Mr. Jodka questioned why only 15 patients per day would be visiting the facility since it will be servicing half the Cape. Mr. Gildea said it’s a small number based upon a limited operation facility for patients by appointment only.
Mr. Herlihy approached the Board and said that a patient spends about 30 minutes in the facility and subsequent visits are less than 10 minutes. The population who qualify is roughly 2% of the Cape. There will be a facility in Dennis in the near future, and Orleans has been approved by the State. There will be no treatments administered onsite at the facility. The patients will take their prescriptions home.
Mr. DeBarros asked what the security aspects of the facility would be. Mr. Gildea said there’s a security plan onsite with the police department and with security personnel. Regulations require video surveillance cameras on the building and will be monitored.
Mr. Bonvie made a motion to issue a Variance to Triple M Management Company, LLC at 29 Echo Road under §174-31 for relief from the front setback requirement of 75 feet for a Variance of 72 feet to construct an 8’ x 8’ security booth on property located in an I-1 Zoning District, (Map 19 Parcel 3 Ext. 9), Mashpee, MA.
Mr. Blaisdell seconded, yes, Mr. Furbush, yes, Mr. Jodka, yes, and Mr. DeBarros, yes. All were in favor accepting the 72 foot Variance request for the security guard booth.
ON THE ISSUE OF PARKING
Attorney Costello stated that under §174-39 of the bylaws, provided an applicant can establish circumstances or conditions relative to a property that would justify deviating from the 10 parking spaces, the Board can approve a modification or deviation. It’s not a variance per se, it’s merely a vote of the Board acknowledging the circumstances and approving the additional parking, and does not have to be advertised.
Attorney Costello suggested the motion to the Board, with respect to the plans submitted by the applicant requesting 21 parking spaces as proposed. The Board would be to render a Finding under §174-39 of the Zoning Bylaw due to certain circumstances relating to this particular project, that the 21 proposed parking spaces is acceptable and appropriate.
Mr. Bonvie made a motion. Mr. Blaisdell, seconded, yes, Mr. Furbush, yes, Mr. Jodka, yes, and Mr. DeBarros, yes. All were in favor of the additional 21 parking spaces.
ON THE ISSUE OF THE SPECIAL PERMIT
Mr. Bonvie made a motion to issue a Special Permit to Triple M Management Company, LLC, 29 Echo Road under §174-24 (J) to construct a 1,500 sq. ft. +/- building to be utilized as a Medical Marijuana Treatment Center on property located in an I-1 Zoning District, (Map 19 Parcel 3 Ext. 9), Mashpee, MA.
Under this motion, a Site Plan titled: Revisions, update profile, add construction entrance, revise details, add perk. Test location, 7/27/15. Proposed layout prepared for Triple M Management, 29 Echo Rd., Mashpee, MA. Scale: 1” = 20’, dated: August 26, 2015, Holmes and McGrath, Inc., Civil Engineers and Land Surveyors, 205 Worcester Ct., Falmouth, MA., Drawn: RLR, Job No.: 215142, DWG. No. N/A, Sheet 1 of 1. Also reference a plan titled; Dispensary Floor Plan A-101 dated 8/25/2015 3/8” = 1’, and A-104 Dispensary Perspective floor plan dated 8/25/2015 drawn by BCE.
Mr. Bonvie conditioned the following: Under §174-24 J. Special Permit use for 29 Echo Road: As listed in the bylaw; Item 9 of 11: External Signage; referencing the word “limited” should be changed to “illuminated”. Prior to an issuance of a building permit by the Town of Mashpee, the Building Department receives notification in writing by Charles Rowley, Engineering Consultant for the Town stating that he is satisfied with the applicants design, and is conditioned that it meets the criteria prior to occupancy. Referencing Charles Rowley’s letter addressed to the Zoning Board of Appeals, dated August 25, 2015, with four issues that need to be addressed prior to the issuance of a building permit. Also, if queuing on Echo Road becomes an issue, the applicant has to return to the Design/Plan Review Committee. Also
Board of Health comments; “The plan meets the minimum requirements for Title V. If the facility becomes a dispensary for recreational marijuana, the use is expected to substantially increase so installing a larger leaching facility now is recommended. The reserve area will also be installed at the same time as the primary so there is a fail-safe built into the situation.”
Mr. Blaisdell, seconded, yes, Mr. Furbush, yes, Mr. Jodka, yes, and Mr. DeBarros, yes. All were in favor to issue a Special Permit for the Medical Marijuana Treatment Center.
51 Waterline South Drive: Owner, George M. Locarno requests a Written Finding under §174-17 of the Zoning Bylaws to allow for construction of a 4 ft. wide deck extension and an 8’ x 12’ screened porch addition on property located in an R-3 Zoning District (Little Neck Bay Overlay). Assessors Map 120 Parcel 145, Mashpee, MA.
Attorney, Kevin Kirrane represented the applicant for a very modest addition to an existing deck at 51 Waterline Drive. The plan depicts an existing non-conforming deck structure being set closer to the side line that is currently allowed, and the lot is also non-conforming. There are some non-conforming accessory buildings, a shed on one side and a shed on the other side of the property which are both within the 50 ft. setback requirements from the adjacent wetland resource areas.
The plot plan depicts the proposed 4 ft. wide addition to the existing deck, and at the end of that deck is a proposed rectangular shaped screened-in porch. A portion of that screened porch is located over the existing deck, and is not increasing the side yard non-conformity. The overall square footage of the new construction is 296 square feet, 70 feet of that is situated over the existing deck. The total additional lot coverage that is being proposed is 226 square feet.
The project is located in the Little Neck Bay cluster development which allows 30% lot coverage. In this particular case, the lot coverage is 23.6% with the additional 226 feet of lot coverage, the figure will increase to 25%, and is well within the allowed requirement. Therefore will not create a condition that is substantially more detrimental to the neighborhood than what currently exists. This project was approved by the Conservation Commission, and included in the narrative is a letter of approval letter from the Little Neck Bay Association.
Mr. Furbush read the Inspection Department comments into the record; “the area is zoned R3 and is in the Pre-contact Archaeology Sensitivity area – listed as “High Sensitivity”. Seeking a Written Finding under Article V §174-17 regarding a determination from the Board if the extension of the deck and the addition of a screen porch would increase the non-conforming nature of the home.”
Mr. John Power, an abutter located at 47 Waterline Drive approached the Board stating he is concerned that the addition is too close to the property line.
Mr. Gary Locarno, homeowner stated he provided a tremendous amount of landscaping surrounding his property for privacy.
Mr. Bonvie made a motion to issue a Written Finding to Mr. Locarno. The Board has determined that the applicant meets all the conditions of a Written Finding under Mass General Law 40A Section 6. Plot Plan prepared by Cape & Islands Engineering, Owner of Record: Locarno Family Residence Trust c/o Gary M. Locarno, 339 Marlborough St., Boston, MA. Applicant: Gary M. Locarno, 339 Marlborough St., Boston, MA.
Project: Site Plan for Conservation, 51 Waterline Drive South in Mashpee, MA. Sheet No.: 1 of 1, Date: 5/29/15. Drawing File Name: Waterline_51_Locarno, Drawn by: WD, Checked by: MC. Drawn by: Chris Costa dated 5/29/15. Also referencing building plans prepared by Ed Ciambriello, Architectural Design for Gary M. Locarno, 51 Waterline South Drive, Mashpee, MA. Scale ¼” = 1’ dated 6/12/15, drawn by FDC, Dwg. 1 of 3. Stamped by Richard P. Anderson.
Mr. Blaisdell, seconded, yes, Mr. Furbush, yes, Mr. Jodka, yes, and Mr. DeBarros, yes. All were in favor that the deck extension and screened porch is not more non-conforming than what currently exists.
1178 Great Hay Road: Owners, Scott A. and Denise C. Fronius request a Special Permit under §174-45.4 of the Zoning By-laws to allow for construction of a 676 sq. ft. accessory apartment on property located in an R-3 Zoning District, (Map 103 Parcel 9), Mashpee, MA.
The five regular Board members will hear this application.
Mr. Scott Fronius, the homeowner represented himself, and his wife Denise stating he wants to build an accessory apartment for his elderly parents. The 26’ x 26’ addition will be located in the rear of the home and the lot coverage will increase from 11.2% to 13.9%. The existing dwelling is 1,774 square feet without the apartment, and with the apartment would become 2,450 square feet. It will become 27.6% total lot coverage, and will have a total of 3 bedrooms, two in the primary residence, and one in the apartment.
Mr. Blaisdell indicated that a letter from the homeowner must be submitted to the Building Department every year showing current ownership.
Mr. Furbush read the Board of Health comments into the record and will be conditioned; “Floor plans required to determine bedrooms and decrease in bedrooms to allow for the in-law apartment. New septic proposed. Building permit shall not be approved by BOH until licensed septic installer obtains septic install permit.”
Mr. Bonvie made a motion to issue a Special Permit. Site Plan titled: Proposed “In-Law” Apartment, 1178 Great Hay Road, Mashpee, MA. Prepared for: Scott & Denise Fronius, 1178 Great Hay Rd, Mashpee, MA. Engineering by Engineering Works, Inc., 12 West Crossfield Road, Forestdale, MA 02644, Surveying by: Warner Surveying 22 Long Road, Harwich, MA. Scale: 1” = 20’, Drawn: P.T.M., Job No.: 120-5, Dated: 5/7/15, Checked P.T.M., Sheet No.: 1 of 2, and 2 of 2, Stamped by Peter T. McEntee, Civil Engineer, No. 35109. Also a house plan, depicting the building sheets 1 through 5 inclusive dated 7/12/15 prepared by David McLean, Architectural Design Services.
Board of Health Requirements – Dwelling is limited to 3 bedrooms. -Floor plans are provide for the existing dwelling prior to building permit. -Fence is enclosed and alarmed around the pool. -All on-site driveway is used for parking. The homeowner must comply with all sections listed under Section 174-45.4. The Special Permit is not transferable and will lapse upon sale and/or transfer to another property owner.
Mr. Jodka, seconded, yes, Mr. Furbush, yes, Mr. Blaisdell, yes, and Mr. DeBarros, yes. All were in favor to issue a Special Permit for the accessory apartment.
22 Leeshore Drive: Owners, Kenneth D. and Sharon B. Klint, Trustees request Variance relief of the rear yard setback to allow for construction of a 24’ x 24’ detached garage on property located in an R-3 Zoning District, (Seabrook Village District), (Map 102 Parcel 54), Mashpee, MA.
The five regular Board members will hear this application.
Mr. Ken Klint representing himself, and his wife Sharon for the proposed project. Also present were two Board members Peggy Feeney and William Krylowicz from the Seabrook Village Association. He supplied a plot plan depicting the requested 24’ x 24’ detached garage, and a letter of approval by the Seabrook Village Association. He stated the rear setback is 20 feet and is in an R-3, and cluster zone. The hardship is the turning radius and topographic issue because the front of the property drop off; therefore he is requesting a 4 ft. variance in the rear. The lot coverage is 11.3% and with the addition of the garage will be 14.6.
Mr. Richard Jodka read a letter of approval dated July 23, 2015 by the Seabrook Village Association into the record.
Mr. Blaisdell read Board of Health comments into the record; septic inspection performed July 21, 2015 as required. No habitable, heated space above allowed.
Mr. Furbush read the Inspection Department comments into the record; “the area is zoned R3 and is in the Pre-contact Archaeology Sensitivity area – listed as “Moderate Sensitivity”. The property is within the Seabrook Village Cluster, which requires a detached garage to be no closer than 20 feet to the rear property line. But the applicant is seeking a Variance to be closer to the rear property line.”
Mr. William Krylowicz, the Chairman for ARC at Seabrook Village approached the Board and stated he approved the project.
Mr. Bonvie made a motion to issue a 4 ft. Variance to the applicants. Referencing the following; Plot Plan titled: Plan of Proposed Garage Prepared for Kenneth Klint, 22 Leeshore Drive, in Mashpee, MA. Seabrook Village, Map 102 Parcel 54. Scale: 1”= 20’, Date: Jan. 15, 2015, by Holmes and McGrath, Inc. Civil Engineers and Land Surveyors, 205 Worcester Ct, Unit A4, Falmouth, MA. Signed by Michael B. McGrath, No. 28978 Registered Engineer. Drawn: PJR, Job No.: 215001, DWG. No.: 88-4-63, Sheet 1 of 1. Also referencing Elevation Building Plans, 1 through 6 inclusive, drawn by David McLean, Architectural Services, dated 7/19/15, Design: DAM, Scale: ¼” = 1’. Conditioned upon the following; septic inspection performed July 21, 2015 as required. No habitable, heated space above allowed.
Mr. Jodka, seconded, yes, Mr. Furbush, yes, Mr. Blaisdell, yes, and Mr. DeBarros, yes. All were in favor to issue a 4 ft. Variance for the detached garage.
67 Popponesset Island Road: Owners, David J. and Ann T. Paparella, Trustees request a Written Finding under §174-17 of the Zoning Bylaws to allow for construction of a 14’ x 16’ kitchen addition on property located in an R-3 Zoning District, (Map 106 Parcel 9), Mashpee, MA.
Mr. Bonvie and Mr. Goldstein stepped down from this hearing.
Mr. Furbush announced that every petitioner is entitled to have five board members to be present. There are only a total of six members. In order for the petition to pass, there must be four positive votes. Two members have stepped down.
Mr. David Paparella and his sister are Trustees of the property representing the proposed project. He addressed the Board and decided to move forward with the petition. He stated that the property is occupied by his 82 year old handy-capped aunt, and he and his sister decided to make the property more accessible. The design is to construct a handy-capped accessible kitchen and bathroom. He stated he got approval by the New Seabury ARC Committee, Board of Health approved the Title V inspection, and also was approved by the Conservation Commission. The Building Department denied the proposal because the lot is a non-conforming lot due to the setback of the house and the proximity to the water and therefore required a ZBA application.
The addition is 14’ x 16’ to be built over an existing deck, so the lot coverage will increase slightly from 16.2% to 17%. There’s an existing bathroom on the first floor that will become larger but is not part of this project. No additional bathrooms or bedrooms. There is no wall separating the kitchen addition from the rest of the house.
Mr. Furbush read the Inspection Department comments into the record; “the area is zoned R3 and is in the Pre-contact Archaeology Sensitivity area – listed as “Moderate Sensitivity”. The property is in the AE Flood Zone. Seeking a Written Finding under Article V §174-17 regarding a determination from the Board if the proposed kitchen addition would increase the non-conforming nature of the home.”
Mr. Furbush read the Board of Health comments into the record; “Septic inspection performed on July 7, 2015. Floor plans not reviewed but as long as is for an open kitchen, no further comments.”
Mr. Furbush read the Conservation comments into the record; there are no issues.
Mr. Blaisdell, made a motion to approve the Written Finding for the applicants. Site Plan prepared for David Paparella of 67 Popponesset Island Road, Mashpee, MA. J.E. Landers-Cauley, PE, Civil Environmental Engineering, PO Box 364 West Falmouth, MA 02574, ASS.#106-9, Date: 12/02/14, Scale: 1” = 10’, Drawn by: JDR, Job No.: 2469, Sheet 1 of 1, Rev: 01/20/15, Rev: 07/20/15. The Board determined the applicant has met all conditions as stated under Mass General Law 40A Section 6.
Mr. Jodka, seconded, yes, Mr. Furbush, yes, and Mr. DeBarros, yes. All were in favor that the kitchen addition is not more non-conforming than what currently exists.
26 Cross Tree Way: Owners, John A. and Janet L. Hayden request a Written Finding under §174-17 of the Zoning Bylaws to allow for construction of 10’ x 16’ addition and a 17’ x 19’ sunroom on property located in an R-3 Zoning District, (Map 112 Parcel 24), Mashpee, MA.
26 Cross Tree Way: Owners, John A. and Janet L. Hayden request a Variance under §174-33 of the Zoning Bylaws proximity from water and wetlands to allow for construction of 10’ x 16’ addition and a 17’ x 19’ sunroom on property located in an R-3 Zoning District, (Map 112 Parcel 24), Mashpee, MA.
Mr. Steve Cook, of Cotuit Bay Design representing the homeowners. The Hayden’s are looking to expand their house with a 10’ x 16’ addition on the northerly side of the property where an existing deck structure is located and brings the 38’ within the inside face of the existing bulkhead. They are also proposing to construct a 17’ x 19’ sunroom on the southerly side of the property, which is noted on the plan as 46 feet from the interior of the bulkhead, but is actually 51 feet to the outer edge of the bulk head or stone retaining wall. He received approval from the Conservation Commission and the ARC. The deck doesn’t expand any closer to the bulkhead or the side property lines as currently exists. The design meets all side and rear setbacks and the lot coverage stays at 19.7%.
Mr. Bonvie wanted clarification regarding tearing down the existing structure and building a new structure. Mr. Mendoza stated under the bylaws, he does not have the authority to approve these non-conforming building applications.
Mr. Furbush read the Inspection Department comments into the record; the area is zoned R3 and part of the property is in the Pre-contact Archaeology Sensitivity area – listed as “Moderate Sensitivity”. Most of the property is in the AE Flood Zone (which the house resides in) but a portion of it is also in the VE Flood Zone. Seeking a Written Finding under Article V §174-17 regarding a determination from the Board if the addition and sunroom would increase the non-conforming nature of the home.
Mr. Furbush read the Board of Health comments into the record; Septic inspection performed as required on July 27, 2015. Floor plans reviewed, no issues.
Mr. Furbush read the Conservation Comments into the record; no issues for the deck. The applicant did not get approved for the sunroom.
Mr. Cook stated that the homeowners were planning on constructing the sunroom within the next two years and he wanted to save them time and money. The Variance will expire in one year.
Mr. John Hayden, homeowner stated he has no intension to build the sunroom this year. He is willing to withdraw or will accept any condition submitted by the Board. There will have to be approval by the Conservation Commission before building the sunroom. He wants to extend the addition so he can move into the home full time.
Mr. Furbush wanted to know if there is a time limit on Conservation approvals.
Mr. Bonvie made a motion to issue a 12 ft. Variance for the applicant to allow for construction of the proposed addition. The applicant is required to obtain Conservation approval for the sunroom prior to the issuance of a building permit. Referencing a Site Plan prepared for John Hayden of 26 Cross Tree Way, Mashpee, MA. By J.E. Landers-Cauley, P.E., Civil Engineering, PO Box 364 West Falmouth, MA. ASS. #112-24, Date: 05/07/15, Scale: 1” = 10’, Drawn by: JDR, Job No. 2465PROP, Sheet 1 of 1, Rev. 07/23/15. Also a set of plans A1 & A2 drawn by Cotuit Bay Design LLC, 43 Brewster Road, Mashpee, MA. Scale: 1/4” = 1’0”. Titled; New Addition, Hayden Residence, dated 7/21/2015. Conservation approved the proposed addition only.
Mr. Blaisdell, seconded, yes, Mr. Furbush, yes, Mr. Jodka, yes, and Mr. DeBarros, yes. All were in favor to issue a 12 ft. Variance for the proposed addition.
Mr. Bonvie made a motion to issue a Written Finding for the applicant to allow for construction of a 10’ x 16’ addition. The Board has determined the applicant meets all requirements under M.G.L. 40A Section 6.
Mr. Blaisdell, seconded, yes, Mr. Furbush, yes, Mr. Jodka, yes, and Mr. DeBarros, yes. All were in favor that addition is not more non-conforming than what currently exists.
21 Deborah Bottle Road: Owners, Christopher L. and Mary E. Winslow request a Variance under §174-31 of the Zoning By-laws for relief from frontage and lot size requirements to deem lot buildable on property located in an R-5 Zoning District, (Map 71 Parcel 89-0-R), Mashpee, MA.
Attorney, Kevin Kirrane represented the applicants for the Variance request. He introduced Mr. Allan Winslow who is a previous owner of the lot and a member of the Winslow family who has owned the property before it was sub-divided. He supplied the Board a copy of the sub-division plan, the assessors map, and various deeds relating to the title and the adjacent lot. There is a variety of circumstances where a lot would ordinarily be considered buildable but the lot is deemed not buildable at the present time. The property was sub-divided between 1985 and 1986. During this period of time, when there was a good deal of development taking place in the Town of Mashpee, the preliminary sub-division plan was filed when the zoning for this section was 15,000 square foot lots. Between the time that the preliminary sub-division
was filed in November of 1985, and the time the definitive plan was approved by the Planning Board in April of 1996, the zoning changed from 15,000 sq. ft. to 40,000 sq. ft.
The Winslow’s sold the lot as one large parcel of land, and the sub-division occurred within a year of the development of the approval of the sub-division, and the adjacent lot 6 was sold. So effectively within a year of the creation of this lot, it was held separately from any adjoining lot because the only thing that adjoined it other than lot 6 was open space.
The developer ran upon some hard times and the Winslow’s granted a mortgage to the developer and the Winslow’s agreed to take back the lot in lieu of a foreclosure of that particular mortgage. The lot was taken back in 1997 but stilled remained separately owned from the adjacent lot which was sold out in 1987 (referencing a deed by the developer).
When lot 5 was taken back by the Winslow’s in 1997, it was still separately held from lot 6 which is the adjacent lot. One of the criteria that has to be established under M.G.L. 40 Section 6 is at the time of the approval of the sub-division plan, and the creation of the lot, the lot had to conform to zoning but could not conform to zoning because at the time the preliminary plan was filed, and the time the definitive plan, was approved the zoning had changed.
Mashpee has a bylaw under Section 174-21, lots created by a sub-division plan may be developed in pursuant to lot size frontage setback regulations applicable to the original approval sub-division plan if within 8 years of the endorsement which was in April of 1986 performance guarantee required under Section 81U was released regarding said lot and said lot became separately owned from all adjacent lots. No one paid attention to this issue. This lot is over 31,000 square feet. A hard-ship has been created since this is one of the last lots.
Mr. Furbush spoke to Tom Fudala, Town Planner and he was told that the actual changing of the lot size from 15,000 to 40,000 took place on February 11, 1985, which is the date the lot became separately owned. Mr. Kirrane said he understood that a definitive plan has to follow within 8 months. Mr. Kirrane has a date showing November 10, 1987 on the deed.
Mr. Bonvie thought that 40A Section 6 was preliminary if it falls within 7 months of the application of a definitive plan, than locking in zoning approving the definitive plan.
There were no comments from any abutters.
Mr. Furbush made motion to continue the hearing until a discussion with Town Counsel. Mr. Bonvie, agreed to continue, Mr. Blaisdell, agreed to continue, Mr. Jodka, not in favor, Dom DeBarros, not in favor. A vote of 3-2 in favor.
Mr. Furbush would like all the Board members to send a list of questions to Mary Ann for Town Counsel to review prior to meeting September 9, 2015.
Mr. Furbush made a motion to continue until September 9, 2015. Mr. Blasdell seconded yes, Mr. Bonvie, yes, Mr. Jodka, no, Mr. DeBarros, yes. A 4 to 1 voted positive to continue.
Mr. Blaisdell made a motion to approve July 22, 2015 meeting minutes. Mr. Furbush, seconded, yes. All were in favor.
Mr. DeBarros made a motion to adjourn. All were in favor.
Respectfully submitted,
Mary Ann Romero
Administrative Secretary
Zoning Board of Appeals.
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