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Zoning Board of Appeals 11/18/04
Date:           November 18,2004        
Time:           7:00 PM
Location:               Town Hall Meeting Room

Attendees:      Steve Rose, Chair, David Rowell, Peter Watts, William Nicholson, Jeffrey Stewart, Trevor Pontbriand, Charles Amsler and Christine Bates, Committee Secretary

Regrets:                Robert Hankey, Sibel Asantugrul

        Steve Rose, Chair, called the meeting to order at 7:00 pm.

Public Hearings:

7:00    #04-48, Olga B. Kahn, 30 Marsh View, Assesors Map 28, Parcel 224:  Application for a Special Permit under WZB 6.21:  Renovate dwelling to include an Affordable Accessory Dwelling Unit.  Board members for this hearing were Steve Rose, David Rowell, Peter Watts, William Nicholson and Charles Amsler.  A site visit was made. A letter from abutter Catharie Conway Nass had no objection; letter from Rex Peterson stated tenant qualified as income eligible.  Ms. Kahn stated Paul Murphy, Inspector of Buildings, had made a site visit and made recommendations to her regarding upgrades she needs to make to the dwelling.  She explained the floor plan.  

Peter Watts Moved for Findings of Fact:
1.      Unit is located within principal dwelling.
2.      Unit is no larger than one thousand two hundred square feet.
3.      Owner will occupy primary residence.
4.      Septic system meets current Title 5 standards and shall be reviewed and approved by the Health Agent.
5.      The Inspector of Buildings and Health Agent shall inspect the premises for compliance with public safety and public health codes.
6.      No affordable accessory dwelling unit shall be separated by ownership from the principal dwelling unit or principal structure.  Any lot containing an affordable accessory dwelling unit shall be subject to a recorded restriction that shall restrict the lot owner’s ability to convey interest in the affordable accessory dwelling unit, except leasehold estates, for the term of the restriction.  
David Rowell Seconded the findings of facts; Approved 5-0.
Peter Watts Moved to grant the Special Permit for the Affordable Accessory Dwelling Unit based on Findings of Fact; Seconded by David Rowell; Passed 5-0 with conditions:


1.      The Special Permit conditions that follow shall be deemed an affordable housing deed restriction in a form satisfactory to the Zoning Board of Appeals in accordance with Section 6.21.2 of the Wellfleet Zoning By-laws.  Failure to comply with any of these provisions shall be considered a violation of Special Permit requirements.  Failure to comply with any of the provisions may result in fines established in Section 8.3 of the Wellfleet Zoning By-laws and in enforcement require removal of the unit.

2.      All occupants of the affordable accessory dwelling unit described herein shall upon initial application and annually thereafter on the first of September, submit to the Town or its agent necessary documentation to confirm their eligibility for the dwelling unit. Specifically, all dwelling units must be rented to those meeting the guidelines for a low or moderate-income family.  For the purpose of this section, low income families shall have an income less than eighty (80) percent of the Town of Wellfleet median family income, and moderate income families shall have an income between eighty (80) and one hundred twenty (120) percent of the Town of Wellfleet median family income, as determined by the United States Department of Housing and Urban Development (HUD) Published Income Guidelines, and as may from time to time be amended.

3.      Maximum rents for the affordable accessory dwelling unit described herein shall be established in accordance with HUD published Fair Market Rental Guidelines.  Property owners are required to submit to the Town or its agent information on the rents to be charged.  Each year thereafter on the first of September, they shall submit information on annual rents charged to the Town or its agent.  Forms for this purpose    shall be provided.  Rents may be adjusted annually in accordance with amendments to the Fair Market Rental Guidelines.

4.      The property owner named herein shall complete and submit to the Inspector of Buildings an application for a Building Permit to allow a change in use.


5.      The property owner named herein shall obtain a Certificate of Occupancy from the Inspector of Buildings prior to the affordable accessory dwelling unit being occupied.


6.      Plans provided will be highlighted to define Affordable Accessory Dwelling Unit area and stamped.

7:30    #04-49: Donald C. and Barbara L. Sullivan, 111 3rd Street, South Wellfleet, MA  02663:  Application for a Special Permit under WZB 6.2:  Erect a shed within setbacks.  The Board consisted of Steve Rose, David Rowell, Peter Watts, William Nicholson, and Trevor Pontbriand.  A site visit was made.  Updated plans were distributed to members of the Board. The location of the shed was changed due to the location of the septic system.  Mr. Sullivan stated the land abutting them is owned by the Town. Rowell stated this is a variance because it is an accessory building and not attached to the dwelling.  Discussion took place if the shed could be located against the house or to the rear of the property and the Board questioned if this application fits the criteria for a variance due to hardship, topography, soil conditions or shape of the land.  Mr. Sullivan stated there are several sheds in the area of which the Board stated they are illegal.  Further discussion took place regarding the lack of detriment to the neighborhood, the possibility of going before the Planning Board to change the bylaws, and to have a discussion with the Inspector of Buildings to define what constitutes an attachment (lattice, stairs, etc.).
The Board stated they could continue the hearing and advertise the case as a Variance request and/or a Special Permit.  Due to the Sullivan’s being off-Cape for the remainder of the winter months, they requested a withdrawal without prejudice.  David Rowell Moved to accept Withdrawal without Prejudice; Seconded by William Nicholson; Passed 5-0.   

  
7:50 - # 04-38 John A. and Lorraine D. Nealon,  95 LeCount Hollow, Assessor’s Map 30, Parcel 10:  Application for a Special Permit under WZB 6.1.5:  alteration of pre-existing, non-conforming, single family residence – replace existing deck with three (3) season room (Cont’d from September 23, 2004).   The Board consisted of Steve Rose, David Rowell, Peter Watts, William Nicholson and Jeffrey Stewart.  The continued hearing was scheduled for January 6, 2005 but due to an added meeting date in November, the Committee Secretary scheduled the hearing for November 18, 2004.  The hearing was posted both in the Cape Codder newspaper, the Town Hall, as well as the Town Website.  The applicant was informed there could be a risk by going ahead with the hearing in the event of an abutter appealing the decision.  Mr. Nealon stated he would like the hearing to go forth.  Mr. Nealon produced evidence of a Building Permit dated 07/20/99 granting the deck.  Meeting minutes of 09/23/04 were read.  Discussion included the project is not detrimental to the neighborhood and the lot coverage will not be jeopardized.  Steve Rose Moved for Findings of Fact:
1.      Minimum intrusion into side setback.
2.      No objection from abutters.
3.      Under 15% lot coverage.
4.      No increase in use.

Seconded by Watts; Passed 5-0.  Watts Moved to issue a Special Permit with conditions; Seconded by Nicholson; Passed 5-0.
Conditions:
1.      Maintain a six (6) foot opening from dwelling to new room.
2.      Maintain that this is an extension to the dwelling and not a three-season room.

8:15- #04-50, Richard Lopasta and Karen Kaminsky, 10 Samoset Road, Map 28-1, Lot 183:  Application for a Special Permit under WZB 6.1.5: alteration of pre-existing, non-conforming, single family residence – Reconstruction of dwelling.  The Board consisted of Steve Rose, David Rowell, Peter Watts, William Nicholson, and Jeffrey Stewart.  A site visit was made.  Jay Horowitz, architect, came to the table with the applicants.  

Steve Rose stated the Board needed to make a decision if this was a repetitive petition.  He asked the Board to agree that all future petitions that have previously been denied be sent to the Planning Board for their input and advice to determine if it is repetitive.  Peter Watts stated the Planning Board had asked to see this petition. Steve Rose Moved that every petition that comes back to the Wellfleet Zoning Board of Appeals within a two year period must go to the Planning Board; Seconded by David Rowell; Passed 7-0.  Mr. Horowitz stated he felt the application should come before the ZBA first.

Statements from the Board members included they felt the new plans show a reduction in size of the dwelling as compared to those in Case 01-36; the profile is changed and there is a reduction in bedrooms; however, the footprint remains the same on an overdeveloped lot with setback issues.  The dwelling is located in the setbacks, lot coverage is 20%, and parking is an issue.  Horowitz stated the new plans lowered the height of the building, reduced the living space by 14%, reduced bedrooms from 4 to 3, decking is reduced by 26%, and the new entry allows for sufficient parking, compared to the previous plans.  

Rowell Moved to have the petition sent to the Planning Board to determine if this is a repetitive application; Seconded by Peter Watts, Passed 3-2. Based on vote, ZBA must hear case and not send to Planning Board.

Horowitz reiterated the advantages of the proposed plan, stating it would be less detrimental to the neighborhood than the current dwelling is.  It has a low profile from the water, design is similar to other dwellings, and if a full cellar was put in under the current building, it would be substantial work and substantial disturbance to the neighborhood.

Letters were read from abutters:  Attorney Carl S. Back on behalf of Hiawatha Condominiums dated October 12, 2004 objecting due to nitrates in the water supply, Hiawatha Condominium Association dated October 14, 2004 objecting due to well locations and setback reductions, and John Simone, abutter, dated November 11, 2004 with no objection.  Curt Ferry, abutter, stated he has no problem with the project.  He does not feel water issues are related to the nitrates from this well.  Rowell asked if the building could be torn down and moved back to allow for further parking of which Horowitz responded that it would encroach on the leaching area.  Stewart pointed out that the current lot coverage is 21.5%; the rejected project was 19.6%; and the proposed coverage is 20.4%, which does not include decks.  The goal of the ZBA is 15%.  Further discussion took place regarding Title 5, number of bedrooms, volume and height of proposed plan, parking and living area of proposed plan.  Applicant asked to withdraw application without prejudice.  David Rowell Moved to allow the application be withdrawn without prejudice; Seconded by Peter Watts; Passed 5-0.

9:13  #04-53  Leif A. and Jacquelyn Johnson, 95 Herring River Road, Assessor’s Map 8, Parcel 1:  Application for a Special Permit under WZB 5.2:  Construct three (3) car garage.  Board members for this hearing were Steve Rose, David Rowell, Peter Watts, William Nicholson and Charles Amsler.  A site visit was made.  Rowell stated the Inspector of Buildings deemed there were already two existing garages and felt a Special Permit was necessary for the construction of a three (3) car garage.  The Board felt they needed to determine if this required a Special Permit.  Rose stated he interpreted the Bylaws as not needing a Special Permit.  Applicants stated the garage will be recessed into the ground and feels it would not impact the neighborhood.  The following letters were received from abutters with no objections:  George Bono and Mary E. Manning; Richard P. Rosenthal, John Ferro and Pegi Kuchinsky.  Abutter Andrew Goldstone sent a letter objecting.  Abutter Roberta Gordan expressed her concerns to the Board.  Abutters Gary Petchinski and Grace Ebert told the Board they had no objection to the project.  Mr. Johnson presented a letter dated November 18, 2004 he sent to Paul Murphy regarding the vacancy of his tenant, Arthur Hultin.  The Board determined the coverage of the lot is under 15%; the three stall garage is separate from those in the dwelling, and everything meets the Bylaws.  Rowell Moved this application is not deemed for a Special Permit and requires no relief from the Zoning Bylaws; Seconded by Steve Rose; Passed 4-1.

Business Meeting:

·       The Board will hear the WHAT hearing at the Town Hall meeting room.
·       A letter received from Attorney Henderson (Kaminsky case) requested why the Board went into Executive Session for the Taute hearing.  The Board stated it was to discuss strategy on pending litigation.
·       Amsler asked the Board if his permit was good for two years and the response was yes.  The Board asked Amsler when the fencing would be installed and he replied in the Spring of 2005.

Rowell Moved to adjourn the meeting at 9:55 pm; Seconded by Rose;
Passed 6-0.

        Respectfully submitted,

        Steve Rose, Chair                                       Christine Bates,
                                                                        Committee Secretary