WELLFLEET ZONING BOARD OF APPEALS
MINUTES OF MEETING OF NOVEMBER 20, 2003, 7:30 P.M.
TOWN HALL HEARING ROOM
Present: Stephen Rose, Chair; Charles Amsler, Robert Hankey
William Nicholson, David Rowell, Jeffrey Stewart,
Peter Watts; Birgitta Olson, Clerk,
Regrets: Sibel Asantugrul.
Absent: Trevor Pontbriand
Meeting called to order at 7:30 p.m. by Chair Steve Rose.
7:30. #04-40, Betty Allison & Arthur Stedman, 14 Railroad Avenue,
Map 21, lot 72: Special Permit Application, replace dwelling.
(Continued from 9/25/03.) The Board for this hearing consisted of Steve Rose, Chair; William Nicholson, David Rowell, Jeff Stewart and Peter Watts. Charlie Amsler left the table. Jeff Stewart read the Minutes of 9/25/03. Chet Lay said what the Board has requested has been provided. However, he did not see the house plans until today and the screened porch and deck are not shown on the site plan. The building has been moved back substantially, with lot coverage going from 3/7% to 8% Also, access via the Frazier property has been eliminated and a driveway proposed from Railroad Avenue. There was a question as to whether the petitioners have gone through the formal procedure with the railroad for building on the former right-of-way. Discussion on the studio building followed. Building Inspector Richard Asmann said it is
permitted for a workshop and studio, that is, two accessory uses in one accessory structure. David Rowell said he has serious reservations about the so-called studio, which has undergone many changes. He raised the question of whether it is a non-complying structure. Jerry Houk said the former owner had no permits to move the studio building and did it at night on rollers. He also noted that the former Health Agent had no allowed it to be hooked up to the other structure's septic system because of the density of the immediate area, and thought it should go under Board of Health review. Board members were in agreement that the following should be submitted: (1) A history of the use of the property, including any permits granted, (also Special Permits). (2) Labelled floor plans of both existing buildings, drawn to scale. (3) Board of Health approval of a septic system serving both buildings. (4) A letter from the Fire Chief concerning adequacy of access to the rear building.
These materials are to be submitted 7 days prior to the hearing. Peter Watts MOVED "that the Board of Appeals continue the hearing to 12/18/03." SECONDED by Steve Rose and CARRIED 5-0.
7:55. #03-50, Doris Zelinsky for property owned by Stephen & Barbara Jupinka, 40 Ridge Street, Map 29. Lot 379: Appeal of refusal of Building Inspector to enforce Zoning Bylaw with reference to house built on lot not meeting minimum area requirements. The Board for this hearing consisted of Steven Rose, Chair; Robert Hankey, William Nicholson, David Rowell and Peter Watts. Charles Amsler left the table.
WELLFLEET ZONING BOARD OF APPEALS MINUTES 11/20/03 2
Attorney Richard A. Henderson presented the case, stating that the Building Inspector has refused to enforce the Zoning Bylaw with respect to this property, for which an illegal Building Permit was issued, and on which a house was constructed on a lot not meeting minimum area requirements. He reviewed the history of the subdivision, noting that when the 1985 Zoning Bylaw change occurred, the Jupinka lot as well as the Zelinsky lot was held in common ownership and therefore not grandfathered as to area and frontage. Mr. Henderson said the Jupinka Building Permit was issued three and a half years after the grace period of protection for undersized lots had expired, and claimed the 10-year statute of limitations has not run out. He was ignored by Building Inspector Richard Asmann when he asked him to look into this. Mr.
Henderson maintained that if you have an illegal structure, you can be required to move it or remove it. He said that at the least, the property owners should be required to seek the proper relief to meet what the law requires. David Rowell read a letter from the Jupinkas in objection to being used as a means to achieving the Zelinsky end.
The Chair asked to hear from the Building Inspector. Mr. Asmann stated that he has consulted with Town Counsel. He said the Jupinka lot is non-conforming and was not protected at the time it was built on. He presented a foundation plan and noted that there are no zoning violations with reference to setbacks or height. The structure was not built exactly in accordance with the foundation plan, but he feels that there is 90% compliance with the Building Permit, given the practice followed in Wellfleet. Mr. Asmann said the structure is being used for what it was permitted for, and he can see no reason for removing it. He also noted that the statute of limitations is six years, not ten. Steve Rose pointed out that the building had passed all inspections.
The Board then made the following findings of fact.
(1) The six year statute of limitations for removal of an illegal
structure has run out. MOVED by Steve Rose, SECONDED by Peter
Watts, and CARRIED 5-0.
(2) Building Permit #93220 was issued by the person duly authorized to issue such permits. MOVED by Peter Watts, SECONDED by David
Rowell, and CARRIED 5-0.
(3) The structure was built substantially in compliance with the
Building Permit according to the paper work shown the Board by
both the petitioner and the Building Inspector. MOVED by Robert Hankey, SECONDED by Peter Watts, and CARRIED 5-0.
Attorney Henderson registered the complaint that Building Inspector Asmann has presented records tonight which he was seeking in April and was told were not available. Mr. Asmann said those plans were discovered in Board of Health files only after he had been cited to appear by Attorney Henderson, and he was not
obliged to share them with Mr. Henderson. He stated that he did share them with Wellfleet Town Counsel.
WELLFLEET ZONING BOARD OF APPEALS MINUTES 11/20/03 3
VOTE: Robert Hankey MOVED "that the Board of Appeals uphold the position of the Building Inspector that no action was required regarding Lot #379, based on the findings of fact made by the Board." SECONDED by Peter Watts and CARRIED 5-0.
8:45. #03-51, Doris Zelinsky, 170 Pond Avenue, Map 29, Lot 382:
Appeal of Decision of Building Inspector that subject lot is unbuildable because it does not meet minimum lot requirements.
The Board for this hearing consisted of Steven Rose, Chair; Robert Hankey, William Nicholson, David Rowell and Peter Watts. Charles Amsler left the table. There was discussion of whether or not this is a repetitive petition. Attorney Richard A. Henderson, representing the applicant, claimed that it is not because he is in this petition arguing that Lot 170 is complying when the lands abutting the lot in which the petitioner has a proprietary interest are added to it. He presented briefs which he said contain new material.
Building Inspector Richard Asmann questioned the propriety of the applicant presenting this new petition to the Board of Appeals before coming to him for a determination. He said that only if he denies a Building Permit for the situation currently proposed is there ground for an appeal to the Board. Chair Steve Rose agreed with this. Board members declared themselves unwilling to hear the case at this time, having been given substantial new material only this evening. Mr. Henderson said he is willing to do whatever the Town wants. It was the consensus of the Board that the petition should be withdrawn so that the applicant can go to the Building Inspector for a determination. It was also agreed that the new brief should be handed back to the petitioner's attorney. Mr. Henderson asked to be allowed to withdraw the petition
without prejudice.
David Rowell MOVED "that the Board of Appeals allow the petition to be withdrawn without prejudice." SECONDED by Robert Hankey and CARRIED 5-0.
Other Business.
- The Minutes of the meeting of 11/6/03 were approved, as MOVED
by Hankey, SECONDED by Rowell, and CARRIED 7-0.
- Mail was reviewed.
- Charles Amsler stepped down and made an inquiry concerning the
Meyer property, Pilgrim Road. The foundation is 1" over the north setback line and 2" over the side setback line. It was agreed that the project is in substantial compliance with the original plan and a modification of the Special Permit is not necessary.
WELLFLEET ZONING BOARD OF APPEALS MINUTES 11/20/03 4
- Steve Rose stepped down and made an inquired whether the Board
would consider adding a bathroom in the basement a major change
to the plan. David Rowell MOVED "that the addition of a bathroom
in the basement is not significantly different from the original
application and does not require modification of the Special Permit." SECONDED by Robert Hankey and CARRIED 6-0.
- Peter Watts asked that at the December 4th meeting the Board
discuss and prioritize proposed changes to the Zoning Bylaw
in preparation for a meeting of himself and Steve Rose with
two members of the Planning Board.
- Peter Watts agreed to serve as the Board's representative on
the Local Housing Partnership.
- Jeff Stewart reported on the 11/19 Planning Board meeting.
Meeting adjourned at 9:30 p.m.
Respectfully submitted,
Birgitta V. Olson ______________________
Committee Secretary Stephen Rose, Chair
Approved _________
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