WELLFLEET ZONING BOARD OF APPEALS
MINUTES OF MEETING OF MAY 22, 2003, 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 Steve Rose.
7:30. #03-24, Donald Heinze, Lot 223D Fox Island Road, Map 28: Special Permit Application, construct/replace decks. The Board
for this hearing consisted of Steven Rose, Chair; Charles Amsler, Robert Hankey, David Rowell and Peter Watts. Builder George Moe said there had been insufficient time to consult with the condominium association and he would like to continue the hearing to September to do so. Attorney Duane Landreth, representing the association, said that the abutters object to the petition, which proposes putting a deck in the common area, which is not allowed. He argued that the petitioner has no right to apply for a Special permit for that purpose, and that the Board has no authority to grant one. Abutter Heidi Ganss said Mr. Heinze has made this proposal several times and each time it has been rejected. The Board had received letters from the association and Ms. Ganss. The consensus of the Board was
that the petition should be withdrawn until this issue is settled. David Rowell MOVED "that the Board of Appeals allow the petition to be withdrawn without prejudice." SECONDED by Robert Hankey and CARRIED 5-0.
7:45. #03-25, Kellyn Lemmon, 241 Main Street, Map 15, Lot 61: Special Permit Application, partial foundation & cellar. The Board for this hearing consisted of Steven Rose, Chair; Robert Hankey, William Nicholson, David Rowell and Peter Watts. Builder Al Rich described the project. Richard Robichaud representing the Methodist Church asked that no work be done Sunday mornings between 9 & 12:00, and that the church driveway not be blocked. The Board made the following findings of fact:
(1) The dwelling is non-conforming with respect to lot size,
setbacks, and lot coverage.
(2) The proposed further intrusion into the setback is for access
to the basement only via a bulkhead and not for living space.
(3) There will be no increase in the use of the property.
(4) There are no objections from abutters.
(5) The removal of the metal shed will improve the rear access to
the building.
(6) Therefore, the proposed foundation 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 under Section 6.1.5.1(b) of the Wellfleet Zoning Bylaw, based on the findings of fact made by the Board, and WELLFLEET ZONING BOARD OF APPEALS MINUTES 5/22/03 2
subject to the following conditions: (1) The metal shed is to be removed. (2) No work shall be done between 9:00 a.m. and 12:00 noon on Sundays." SECONDED by Robert Hankey and CARRIED 5-0.
8:00. #03-26, William & Valerie Scheel, 1005 Cemetery Road, Map 36, Lot 7: Special Permit Application, screened porch. The Board for this hearing consisted of Steven Rose, Chair; Robert Hankey, William Nicholson, David Rowell and Peter Watts. Petitioner William Scheel described the proposed 14' by 5' porch, stating that the house had been moved out of the road layout when Route 6 was constructed, which is probably why it is such a long and narrow lot. He said the house meets residential setbacks, but not the setbacks for the new C-2 Zone in which it now finds itself. Approval for the porch has been given by the Historical Review Board. David Rowell read a letter in sup[port of the petition from abutters Sally & Edward Schultze. Building Inspector Richard Asmann noted that two
residential subdivisions in this area will be allowed to comply with the residential requirements for setbacks until 2005, so to deny this request would be an odd inequity. The Board made the following findings of fact:
(1) The proposed screened porch meets residential setbacks.
(2) There will be no increase in the use of the property.
(3) Approval has been given by the Historical Review Board.
(4) There are no objections from abutters.
(5) It was not the intent of the C-2 District to prohibit
residential growth in the district.
(6) Therefore the proposed porch 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.
Robert Hankey MOVED "that the Board of Appeals grant the Special Permit as requested, based on the findings of fact made by the Board, and subject to the following condition: The screened porch is to have no windows except in the gable and the skylights as shown on the plan, and is to remain unconditioned space." SECONDED by David Rowell and CARRIED 5-0.
8:15. #03-29, Malcolm Murphy, 18 Indian Walk East, Map 14, Lot 87: Special Permit Application, replace flat with pitched roof. The Board for this hearing consisted of Steven Rose, Chair; Robert Hankey, William Nicholson, David Rowell and Peter Watts. Petitioner Malcolm Murphy said he wishes to change to a pitched roof because the flat roofs have a limited life span before leaking. The Board made the following findings of fact:
(1) The dwelling is non-conforming with respect to the side setback.
(2) A minimal volumetric increase into the setback is proposed.
(3) The proposed volumetric increase is not creating habitable
area, but is strictly roof structure.
(4) There will be no increase in the use of the property.
(5) There are no objections from abutters.
WELLFLEET ZONING BOARD OF APPEALS MINUTES 5/22/03 3
(6) Therefore, the proposed pitched roof 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.
Robert Hankey MOVED "that the Board of Appeals grant the Special Permit as requested, based on the findings of fact made by the Board." SECONDED by David Rowell and CARRIED 5-0.
8:30. #03-27, Alfred Kraft, 145 West Main Street, Map 14: Special Permit Application, condominium conversion. The Board for this hearing consisted of Steven Rose, Chair; Robert Hankey, William Nicholson, David Rowell and Peter Watts. The Chair said that, following an external site inspection, the Board considers this portion of the hearing as an information gathering session. Attorney James Falla, representing the petitioner, described the property, which consists of a dwelling with incidental retail uses and a barn housing two retail uses. He said there will be no change in the use of the property, as stated in Section 7, of the Master Deed. David Rowell read a letter from the Board of Health approving the condominium conversion, and a letter from the Planning Board stating that after an
initial review of the conversion request they wish to make a site visit. Building Inspector Richard Asmann said the commercial uses in Unit 2, the barn, should not be allowed to increase at all into the abutting residential zone. There was discussion of the following: space in the floor plan that is not identified as to use, including the third floor of Unit 1, the dwelling; legal establishment of a second kitchen in the house, but no legal establishment of a second dwelling unit; potential for use as affordable housing in both the house and the barn; retail use in the house restricted to two rooms; and parking, with four spaces allowed in the residential portion of the property; adequacy of parking, with 14 spaces allotted to the barn and the remaining 8 to the residence. Abutter Diane Goldstein expressed concern about more parking in the residential zone behind their house, where nuisance already exists from noise, fumes and talking early in the morning.
She also feared that if the owner of Unit 1 were to have exclusive use of the large area behind the house, another residential unit might be constructed on the residential portion of the property. She was assured that this is not possible because of the size of the lot.It was agreed that the condominium documents should be submitted to Town Counsel for review, and that a second interior siteinspection should be made. Robert Hankey MOVED "that the Board of Appeals continue the hearing to June 26, 2003 for these purposes." SECONDED by Steve Rose and CARRIED 5-0.
9:25. #03-28, Michael Taute, 58 Kerouach Way, Map 13, Lot 53:
Appeal of Decision of Building Inspector, grandfathering of lot.
The Board for this hearing consisted of Steve Rose, Chair; Robert Hankey, William Nicholson, David Rowell and Peter Watts. Attorney Paul Revere, representing the applicant, reviewed the petition and WELLFLEET ZONING BOARD OF APPEALS MINUTES 5/22/03 4
submitted additional information as to the status and ownership of the property, emphasizing that this is not a variance situation, but a case of interpretation of what the Wellfleet Zoning Bylaw said before 1985. He said the petitioner's position is that the lot is grandfathered under Massachusetts General Laws, Chapter 40-A, Section 6, since it was in separate ownership when later Zoning Bylaw changes occurred. Mr. Taute has paid taxes on the basis of the lot being buildable since 1977. Mr. Revere stated that Mr. Taute had 20,000 square feet all along, until 1985, counting the square footage he owns from the fee in the road to the center line. He was entitled to use the area in a private road not open to public use, except for subdivision owners passing. He maintained that the 1985 Zoning Bylaw
change in the definition of "lot area," to exclude any area on a street or way open to public or private use does not affect Mr. Taute. Mr. Revere argued that Kerouach Road does not qualify as a road open to public use (1) since there is no right of use by adverse possession for 20 years; (2) there has been no specific grant or act to make it open to the public; and (3) there has been no act by public authority to make the way public. Mr. Taute thus owns 19,358 square foot on Lot 11, plus approximately 2,000 square feet in Kerouach Road, for a total of approximately 21,358 square feet. Building Inspector Richard Asmann stated that the lot had been created when the lot size requirement was 15,000 square feet. He said the definition of lot area did not change in 1985. The change that occurred only closed a loophole with respect to road rights. The lot was 19,358 square feet when created, and has not changed since. It became non-conforming in 1975, when it was
held in common ownership. Mr. Taute had a window of five years after the subdivision was approved to build under then-current zoning. In answer to a question from Peter Watts, Mr. Asmann said houses in the Kerouach Road subdivision built after the 5-year grace period are non-compliant. Regarding the use of area in Kerouach Road for lot area, Mr. Asmann said other people have the right to cross the entire 40-foot way, and it cannot be used for two purposes, that is, as a road and as part of a building lot. Mr. Asmann found Mr. Revere's arguments more pertinent to a variance request than to the overturning of his decision. He suggested that the Board may wish to have Mr. Revere's arguments reviewed by Town Counsel. There was discussion of the case made by the Building Inspector; of the fact that only 20 lots in town are in this category and the impact of building on such lots; of the approval by the Town Meeting of giving these lots building rights and the
subsequent overturning of this amendment to the Zoning Bylaw by the Attorney General; and of the fact that when the matter was put to the Town Meeting a second time, it was voted down; and of the inability to consider hardship since this is not a variance case.
David Rowell MOVED "that the Board of Appeals adopt findings of fact 1-18 made by Attorney Revere as written." SECONDED by Steve Rose and CARRIED 3-2.
WELLFLEET ZONING BOARD OF APPEALS MINUTES 5/22/03 5
Steve Rose MOVED "that the Board of Appeals overturn the Building Inspector's decision, based on the findings of fact made by the
Board." SECONDED by David Rowell. VOTE: 3 for the motion, 2 against. Motion FAILS.
There was further discussion. David Rowell noted that if the Taute lot were taken by the Town for taxes, affordable housing would probably be built there, which does not seem fair. Steve Rose said he feels that overturning the Decision of the Building Inspector can be done within the intent of the Bylaw, whereas a Variance could not be granted within the intent of the Bylaw. Jeff Stewart asked for reconsideration. He feels strongly that we should take more time with this decision and try to resolve the problem. Mr. Taute has been trying to find a solution for a long time; the
Building Inspector took nine months to reply to his request for a ruling. Mr. Stewart said there is merit to both sides and urged the Board to talk to Town Counsel. Mr. Asmann said those voting against overturning his decision could ask for reconsideration of the vote. Robert Hankey MOVED "that the Board of Appeals reconsider its vote. SECONDED by Peter Watts and CARRIED 9-0.
David Rowell MOVED "that the Board of Appeals vacate its vote and re-open the hearing." SECONDED by Steve Rose and CARRIED 5-0.
David Rowell MOVED "that the Board of Appeals continue the hearing to July 10, 2003 in order to have the findings of the attorney for the petitioner, which it adopted, along with the Decision of the Building Inspector, reviewed by Town Counsel." SECONDED by Robert Hankey and CARRIED 5-0.
Other Business.
- Steve Rose reported that Kevin North has asked to be allowed
to withdraw his petition without prejudice. Town Counsel has
said there is no reason for not allowing him to do so.
- The Minutes of the meeting of 5/8/03 were approved as amended,
as MOVED by Rose, SECONDED by Hankey, and CARRIED 9-0.
- Mail was reviewed.
- Elizabeth Lane and Rick Asmann are writing the decision in the Washburn case and have said that the 14-day filing period does not apply to a remand. The Chair said a motion should be made to cover this situation. Steve Rose MOVED "that the findings in the Washburn case are being worked on and will be approved
at the June 12th meeting." SECONDED by Robert Hankey and
CARRIED 9-0.
Meeting adjourned at 10:40 p.m.
Respectfully submitted,
______________________
Birgitta V. Olson Steven Rose, Chair
Committee Secretary Approved 6/12/03
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