WELLFLEET ZONING BOARD OF APPEALS
MINUTES OF MEETING OF APRIL 10, 2003, 7:30 P.M.,
TOWN HALL HEARING ROOM
Present: Steven Rose, Chair; Charles Amsler, Sibel Asantugrul,
William Nicholson, David Rowell, Jeffrey Stewart,
Peter Watts; Birgitta Olson, Clerk.
Regrets: Robert Hankey. Absent: Trevor Pontbriand.
Meeting called to order at 7:30 p.m. by Chair Steve Rose.
7:30. #01-41, Mark & Christine Washburn, 20 3rd Avenue, Lieutenant Island, Map 40, Lot 95: Special Permit Application WZBL S.6.1.5.1(b), volumetric expansion within footprint, including second floor and mezzanine. Case remanded back to ZBA by Superior Court to redetermine petitioners' application consistent with court's findings re proposed renovations. The Board for this hearing consisted of Steve Rose, Chair; Charles Amsler, Sibel Asantugrul, David Rowell and Peter Watts. Attorney James Veara representing the petitioners reviewed the history of this application, and of the Appeal of the decision of the Board by the applicants, noting that in the course of the Appeal he and Town Counsel Elizabeth Lane had entered into an agreement as to the facts of the case. Mr. Veara said the
Judge had found that the decision of the Board is not supported by anything in the record of the hearing, and that he thus annulled the Board's decision and instructed it to go back and hear the petition again, and to make its decision based on the findings made by the Court. Mr.
Veara interpreted this to mean that the proposed renovation will be found to be not substantially more detrimental to the neighborhood, allowing the Special Permit to be granted. He noted that prior objections from abutters had been dropped when the revised plan had been presented, and read a letter from abutters Sumner & Martha Stone in support of the petition.
David Rowell read a letter from Town Counsel Elizabeth Lane dated 2/28/03 stating that the Judge found a lack of explicit statements in the text of the decision that the proposal would be substan- tially more detrimental to the neighborhood, and thus there is no rational basis for a denial. She said the Board is not being asked to change its denial to a granting, but to hear the case anew and substantiate its decision by appropriate findings relating to special permit criteria. Mr. Veara said he had not seen this letter, which seems to say the Board should make a better case for a denial. He does not see how this can be done, given the facts of the case to which both parties have agreed.
Building Inspector Richard Asmann supported the letter from Town Counsel and its interpretation of the Court's stand. He advised the Board to review the case carefully and if it thinks the proposed renovation would be substantially more detrimental to the neighborhood, to make findings that will support this opinion.
The findings should be based on what was discussed at the hearing WELLFLEET ZONING BOARD OF APPEALS MINUTES 4/10/03 2
sessions. Mr. Asmann noted that there were were other issues discussed than the stairs being lowered, for example, the proposed volumetric increase on a very small lot. Mr. Asmann suggested that the Board continue the hearing and have several members compose draft findings to be reviewed by all at the next session.
Attorney Veara argued that the Judge has not said there is not enough here to justify the Board's decision, so go back and try again. He has stated that there is no rational basis for denial of the petition, and has ordered the Board to issue the Special Permit based on the findings of the Court. He said that if Attorney Lane did not agree with this, she should have appealed it at the time.
The consensus of members was that Town Counsel should be present at this hearing. David Rowell MOVED "that the Board of Appeals continue the hearing to May 8, 2003 at 7:30 p.m. for this purpose of consulting with Town Counsel and asking her to be present at the next session of the hearing, and so that the Board can review findings and the whole case." SECONDED by Sibel Asantugrul and CARRIED 5-0.
8:00. #03-1, MacGregor & Alexander Hay, 265 Commercial Street, Map 21, Lot 113: Appeal of Decision of Building Inspector WZBL S.8.4.1/Special Permit Application WZBL S.6.1.4/Variance Application: Reestablish use of three picnic tables. (Continued from 2/27/03.) The board for this hearing consisted of Steve Rose, Chair; Sibel Asantugrul, William Nicholson, David Rowell and Peter Watts. The letter from the Board of Selectmen in response to the Board's request for permanent gifting of the picnic tables to the Town for use on the public beach was reviewed. The Selectmen voted to affirm the fact that the these picnic tables have been in use on the public Marina beach for the past 19 years, and that this Board of Selectmen reaffirms their use. Selectmen in supporting comment on this question
declined to bind future Boards of Selectmen to permanent placement of the tables on Town property.
Attorney Duane Landreth reviewed the chronology of the use of the picnic tables, maintaining that there had been no intent whatsoever on the part of the restaurant owner to abandon the use of the tables. He asked the Board to overturn the decision of the Building Inspector and allow tables to remain on the restaurant property by Special Permit re-establishing that use. Mr. Hay
said the Board should come to grips with the question of whether the tables would be substantially more detrimental to the neighborhood than what is already there. Jerry Houk said this is the primary area in Town where families can come, eat or not eat, and watch the sunset. He also said that the Town never had any conversation with Al Larsen about his giving up his picnic tables; he only asked to locate them on Town property. There was WELLFLEET ZONING BOARD OF APPEALS MINUTES 4/10/03 3
continuing discussion of many isues already discussed. Special
concern was expressed as to the increase in the number of picnic tables if they were to be on both Town property and the Hay property; intensification in use of the property, which is very small; purported negative attitude of the Town towards businesses; the question of whether the public restroom requirement would be triggered with DEP. There was a call for a vote.
The Board made the following findings of fact with reference to the appeal of the Building Inspector's decision.
(1) The three picnic tables have been in Town control since 1984.
There have been no tables on the Larsen/Hay property legally
since that time.
(2) In prior hearings on this property the Board has made it clear that there is to be no seating for this take-out restaurant, either indoor or outdoor. (Decision 4/20/2000)
(3) The Board affirmed in 1983 that there is to be no sale of
restaurant food out of the back of the building where the retail market is located. Sale of restaurant food is allowed
out of the front of the building only where, the take-out
service is located. (Case #83-43)
(4) The Board accepts the arguments made in the October 6, 2002
letter to Mr. Hay from the Building Inspector.
David Rowell MOVED "that the Board of Appeals adopt the findings of fact." SECONDED by Peter Watts and CARRIED 5-0.
Peter Watts MOVED "that the Board of Appeals uphold the decision of the Building Inspector regarding the 3 picnic tables on the south side of the building, namely that they must be removed, based on the findings of fact made by the Board." SECONDED by David Rowell and CARRIED 5-0.
The Board made the following findings of fact with reference to the request to re-establish a discontinued use by Special Permit, namely the presence of three picnic tables on the premises:
(1) The use of picnic tables was discontinued in 1984.
(2) To re-establish the picnic tables would be to allow a use
prohibited as of 1990.
(3) No good faith effort was made to re-establish the use between
1984 and 1990.
(4) The acceptance and execution of a Building Permit on the
property in 2000 acknowledges that there has not been any seating on the property because public restrooms would have
been required.
David Rowell MOVED "that the Board of Appeals adopt the findings of fact." SECONDED by Peter Watts and CARRIED 4-1.
Steve Rose MOVED "that the Board of Appeals deny a Special Permit to re-establish the discontinued use of picnic tables on the premises, based on the findings of fact made by the Board.
WELLFLEET ZONING BOARD OF APPEALS MINUTES 4/10/03 4
The Board made the following finding of fact with reference to the
Variance application to allow the use of three picnic tables under Section 8.4.3 (Variances) of the Wellfleet Zoning Bylaw.
(1) The applicant cannot meet the first criterion for the granting of a Variance, namely that "owing to circumstances relating to the soil conditions, shape or topography of the land or structure specifically affecting such land or structure but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of this Bylaw would involve substantial hardship, financial or otherwise to the petitioner...".
David Rowell MOVED "that the Board of Appeals adopt the finding of fact." SECONDED by William Nicholson.
David Rowell MOVED "that the Board of Appeals deny the Variance, based on the finding of fact made by the Board." SECONDED by William Nicholson and CARRIED 5-0.
9:05: #03-10, Kevin North, 585 Old Wharf Road, Map 35, Lot 11: Special Permit Application WZBL S.6.1.5.1(b)/Floodplain Exemption S.6.14.3, addition/alteration. (Continued from 2/27/03. The Board for this hearing consisted of Steven Rose, Chair; William Nicholson, David Rowell, Jeffrey Stewart and Peter Watts. A letter from the attorney for the applicant stated that engineer's plans are not ready yet and asked for a continuation to the next available meeting. Peter Watts MOVED "that the Board of Appeals continue the hearing to 5/8/03." SECONDED by David Rowell and CARRIED 5-0.
9:10. #01-11, Jeffrey & Marilyn Blaustein, 70 Sandpiper Hill Road, Map 22, Lot 4: Request to amend Special Permit WZBL S.6.1.5.1(b), second floor east deck. The Board for this hearing consisted of Steve Rose, Chair; Sibel Asantugrul, William Nicholson, Jeffrey Stewart and Peter Watts. The Special Permit was granted 6/21/01. Builder Bill Sullivan presented a revised plan extending the deck on the south side by 3 feet in width. The Board made the following findings of fact:
(1) There will be no increase in the use of the property.
(2) The extension of the deck will be a minimal further intrusion
into the setback.
(3) There are no objections from abutters.
(4) Therefore the proposed deck extension will not be substantially more detrimental to the neighborhood.
Peter Watts MOVED "that the Board of Appeals adopt the findings of fact." SECONDED by William Nicholson and CARRIED 5-0.
Steve Rose MOVED "that the Board of Appeals grant the Special Permit, based on the findings of fact made by the Board." SECONDED by William Nicholson and CARRIED 5-0.
WELLFLEET ZONING BOARD OF APPEALS MINUTES 4/10/03 5
9:20. #03-18, Israel & Elva Abroms, Lot 58 Compass Hill Road, Map 41: Special Permit Application WZBL S.6.1.5.1(b), create screened porch from portion of deck. The Board for this hearing consisted of Steve Rose, Chair; Charles Amsler, William Nicholson, David Rowell and Peter Watts. After hearing the presentation of the agent for the petitioners, who noted that there will be no increase in the footprint of the structure, and that the spiral staircase to the roof deck will be eliminated and relocated at a later date; the Board emphasized that there are to be no glass windows in the screened porch, that is, the porch is not to be conditioned space. It was agreed that a revised plan should be presented with the staircase to the roof deck eliminated. Peter Watts MOVED "that the Board
of Appeals continue the hearing to April 17, 2003 to allow for submittal of a revised plan." SECONDED by William Nicholson and CARRIED 5-0.
9:35. #03-19, Joseph Wanco & Robert Derow, Lot 28 State Highway, Map 29: Special Permit Ap[plication WZBL Ss. 8.4.2/6.1.1/6.1.5, replace two cottages. The Board for this hearing consisted of Steve Rose, Chair; Sibel Asantugrul, William Nicholson, David Rowell and Peter Watts. Board members heard the presentation of the petitioners, including a proposal to relocate and replace the year round dwelling on the property, to renovate Cottage #3, and to add second stories to both structures. Abutter Dick French spoke in support of the proposal. Building Inspector
Richard Asmann said that although Cottage #3 will exceed the maximum allowed by the Zoning Bylaw for cottages, the Board could make a finding that this would not be substantially more detrimental to the neighborhood. The Board made the following
findings of fact:
(1) There will be no increase in the use of the property
(2) Lot coverage will remain under the 15% allowed.
(3) The year round dwelling will become conforming with respect
to setbacks.
(4) Although the renovated Cottage #3 will be non-conforming
insofar as it will be larger than the maximum allowed for
cottages, this will not be substantially more detrimental
to the neighborhood.
(5) There are no objections from abutters.
(6) Therefore, the proposed enlargement of the two structures
and the moving of one will not be substantially more
detrimental to the neighborhood.
Peter Watts MOVED "that the Board of Appeals adopt the findings of fact." SECONDED by David Rowell and CARRIED 5-0.
Steve Rose MOVED "that the Board of Appeals grant a Special Permit (1) for the relocation and replacement of the year round dwelling,
to include the addition of a second story, in accordance with the V. DeVito Drawings A-1 & A-3, dated 2/4/03; and (2) for the
WELLFLEET ZONING BOARD OF APPEALS MINUTES 4/10/03 6
Addition of a second story to Cottage #3 in accordance with the
Huntington Homes Plan dated 4/10/03, subject to the following condition: There shall be no deck on the new year round dwelling." SECONDED by William Nicholson and CARRIED 5-0.
Other Business.
- The Minutes of the meeting of 3/27/03 approved, as MOVED by Rose, SECONDED by Rowell and CARRIED 7-0.
- Mail was reviewed.
Meeting adjourned at 10:15 p.m.
Respectfully submitted,
Birgitta V. Olson
Committee Secretary
_______________________
Steven Rose, Chair
Approved 5/8/03
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