WELLFLEET ZONING BOARD OF APPEALS
MINUTES OF MEETING OF JANUARY 10, 2002
7:30 P.M.
TOWN HALL HEARING ROOM
Present: Steven Rose, Chair; Charles Amsler, Sibel Asantugrul, Robert Hankey, William Nicholson, Trevor Pontbriand, David Rowell, Jeffrey Stewart, Peter Watts; Birgitta Olson, Clerk.
Meeting called to order at 7:30 p.m. by Chair Steven Rose.
#01-38, William & Caroline Toner, 10 Centre Street, Lot 124, Map 36: Special Permit Application, living room addition. The Board reviewed a request from the applicant to continue the hearing to allow him time to finalize a revised plan. David Rowell MOVED "that the Board of Appeals continue the hearing to February 14, 2002." SECONDED by Robert Hankey and CARRIED 5-0.
#01-40, Eric & Denise Kandel, 60 Bayview Avenue, Lot 37, Map 35: Special Permit Application, expansion. The Board reviewed a request from the attorney for the applicants to postpone the hearing, since he could not be present on 1/10. Robert Hankey MOVED "that the Board of Appeals continue the hearing to February 14, 2002." SECONDED by David Rowell and CARRIED 5-0.
#01-4, Kristofer Elbing, 3255 Ridgeway Road, Lot 144, Map 24: Change in Plan/Request for amendment of Special Permit. The Board for this hearing consisted of Steven Rose, Chair; Robert Hankey, William Nicholson, David Rowell and Peter Watts.
Builder John Ferro, said the dwelling has been found incapable of bearing a second story due to deterioration, and the petitioner would like to replace the structure, including the foundation, remaining within the existing footprint. David Rowell read a letter from the Cape Cod National Seashore stating that they had no objection to the proposed revision of the original project. The Board than made the following findings of fact:
There will be no increase in the use of the property.
The replacement of the structure will mean better conformance with the current Building Code.
There are no objections from abutters, including the Seashore.
Therefore the proposed replacement of the structure will not be substantially more detrimental to the neighborhood.
David Rowell MOVED "that the Board of Appeals adopt the findings of fact." SECONDED by William Nicholson and CARRIED 5-0.
David Rowell MOVED "that the Board of Appeals amend the Special Permit granted 2/15/01 as requested, based on the findings of fact made by the Board, and subject to the following condition: The top of the new foundation is to be at the same elevation as the existing foundation." SECONDED by William Nicholson and CARRIED 5-0.
#02-1, David Rheault, 735 Chequessett Neck Road, Lot 112, Map 19: Special Permit Application, bathroom & living room additions. The Board for this hearing consisted of Steven Rose, Chair; Robert Hankey, William Nicholson, David Rowell and Peter Watts.
After having made a site inspection; and after hearing the presentation of builder Lloyd Howard on behalf of the petitioner, including descriptions of the proposed bathroom addition over an existing bulkhead on the north side and of the proposed living room addition in place of a fireplace on the south side, both under an existing overhang; the Board made the following findings of fact:
There will be no increase in the use of the property.
The further volumetric intrusion into the front setback is minimal.
There are no objections from abutters.
The proposed additions are very considerate of public views.
Therefore, the proposed additions will not be substantially more detrimental to the neighborhood.
David Rowell MOVED "that the Board of Appeals adopt the findings of fact." SECONDED by Robert Hankey and CARRIED 5-0.
David Rowell MOVED "that the Board of Appeals grant the Special Permit as requested, based on the findings of fact made by the Board." SECONDED by Robert Hankey and CARRIED 5-=0.
#02-2, Todd Barry & Mignon Muirhead, 385 Chequessett Neck Road, Lo 142, Map 19: Special Permit/Variance Application, replace dwelling. The Board for this hearing consisted of Steven Rose, Chair; Robert Hankey, William Nicholson, David Rowell and Peter Watts.
Attorney Benjamin E. Zehnder described the property as having three year round dwellings on one lot, a duplex and two singles, consti-tuting a non-conforming use. The applicant wishes to enlarge an existing 475 square foot 2-bedroom cottage used for housing employees to 768 square feet, and relocate it to avoid intrusion into the setback. The bedrooms are very small, and passage to the bathroom is through one of them. A letter from Building Inspector Richard Asmann dated 11/20/01 states that the proposed work will increase the nature of the non-conforming use on the lot by increasing the living area of one of the dwellings, and would require a Special Permit. He also stated that for the building to be rebuilt on a larger footprint with greater volume, a Variance would be necessary. Mr. Zehnder said he is asking
for a deter- mination that the intensity of use is not increased. Letters in opposition to the proposal were read from abutters Richard Alexander, Samuel & Patricia Gill, and Tabitha Vevers & Daniel Ranalli on grounds of undesirable increase in intensity of use on an already heavily used property; strain on the water supply; and noise. Discussion followed on the actual number of bedrooms in the cottage, with some feeling that it cannot be more than one, and that enlargement to four would mean going from one to four people. David Rowell thought the Board should have a floor plan of the existing structure. Mr. Zehnder argued that increasing the size of the bedrooms does not increase the use. It was established that Board of Health approval for the expansion has not yet been obtained. A poll of the Board showed all members finding the proposal an increase in the intensity of use of the property. Mr. Zehnder asked for a continuation to allow for submittal of a floor
plan and a possible change in configuration of the proposed new structure, for Board of Health approval.
Robert Hankey MOVED "that the Board of Appeals continue the hearing to March 14, 2001." SECONDED by Peter Watts and CARRIED 5-0.
#02-3, John & Janie MacArthur, 155 Samoset Avenue, Lot 103, Map 28: Appeal of Decision of Building Inspector. The Board for this hearing consisted of Steven Rose, Chair; Robert Hankey, William Nicholson, David Rowell and Peter Watts.
The Board had made a site inspection. Attorney Benjamin E. Zehnder, representing the applicants, made the argument that they cannot be prevented from repairing a permitted structure on their property, with no dimensional change, nor can they be compelled to abandon a permitted use which has been there for more than ten years. He reviewed the history of a prior application for an Exemption from Special Flood Hazard District Regulations for the replacement of the dwelling on the property, noting that the plan has been approved by the Conservation Commission. At that time the Board had raised the issue of whether a Special Permit is needed for the new dwelling because of its proposed increase in lot coverage and consequent increase in non-conformity. At that time the Board had voted that the structure in question could
not be counted towards existing lot coverage due to its state of disrepair. Mr. Zehnder argued that the structure, which predates zoning, is a permitted non-conforming use which contributes to excess lot coverage. It consists of a roof set on a foundation, and had garage doors, electricity and a paved driveway. It was used for storage by the former owner, and the only reason the current owner did not use it for this purpose was because of the hole in the roof. Abutter David Wright said that, while other buildings on the property had been fixed up, this structure has been abandoned for well over three years and was a ruin by the time the property changed hands. Mr. Zehnder maintained that the applicants had purchased the property with the intention of redesigning and rebuilding the dwelling using the structure as part of the calculation of existing lot coverage. Neither the structure nor its use was abandoned; it was always part of the rebuilding
plans. He stated that the applicants now wish to have the right to repair the roof on this structure to remove the impediment to its being counted as part of the existing lot coverage.
In a letter to the applicants' builder dated 11/14/01, Building Inspector Richard Asmann wrote denying a Building Permit on the ground that incomplete plans have been submitted to him concerning how the roof will be repaired, for example, what will the walls be made of? how will the roof be attached? has wave uplift been calculated in?; etc. He said he also has insufficient information to decide whether the proposed work will increase the existing non-conformity of the lot with reference to building coverage, and noted that the Board of Appeals has already found that this capped foundation does not count as lot coverage because it does not repel water and has been in disrepair for a long time.
Mr. Asmann spoke from the floor stating that this is not a water tight structure, and that in order to issue a Building Permit for construction in a high velocity zone, he would have to have Conservation Commission approval. He said the applicant appears to be trying to fix the use so that the structure will count as lot coverage, allowing a larger dwelling. Mr. Zehnder countered that what is a Building Code issue cannot be denied on zoning grounds, and that the applicant has the absolute right to repair the roof on this structure. He would prefer not to do this, and will indeed ask not to have to do it once the right to a Building Permit has been established. Mr. Zehnder said the applicant has counted on this structure for his redesign project and will have to go to court if necessary to protect its use.
Discussion continued for some time.
The Board made a determination that the use and rights of this structure were knowingly and willingly discontinued many years ago. Therefore, any rights this structure had were given up, including the right to use its square footage in any calculation of existing lot coverage for the purpose of replacement of any structure on the property.
The Board also determined that the remains of the structure have been exposed to the elements for too many years to consider them anything other than debris, and that they are not safe for repair or reconstruction.
David Rowell MOVED "that the Board of Appeals uphold the Decision of the Building Inspector to deny a Building Permit for replacement of the roof on the accessory structure." SECONDED by Peter Watts and CARRIED 3-1-1.
Other Business
The Minutes of the meeting of 12/13/01 were approved, as MOVED by Rowell, SECONDED by Rose, and CARRIED 9-0.
Mail was reviewed.
There was discussion of a possible violation of conditions on a Comprehensive Permit granted to the Wellfleet Housing Authority due to clear-cutting of the whole lot. The Building Inspector has already issued a stop-work order because work commenced without the obtaining of necessary permits. It was agreed that the Chair should confer with the Building Inspector and the Assistant Town Administrator as to how to handle this.
Meeting adjourned at 10:00 p.m.
Respectfully submitted,
Birgitta V. Olson
Committee Secretary
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Steven Rose, Chair
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