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ZBA Minutes 02/10/05
Date:           February 10, 2005
Time:           7:00 PM

Present:  Steve Rose, Chair, David Rowell, Robert Hankey, Peter Watts, William Nicholson, Trevor Pontribiand, and Charles Amsler.   Christine Bates, Committee Secretary

Regrets:  Sibel Asantugrul and Jeffrey Stewart

Public Hearings:

7:00    #98-10  Harold J. McGinn, 2318 State Highway, Map 23, Parcels 18 and 20:  Remand Hearing:  Appeals as a Person Aggrieved by Decision of the Building Inspector / Wellfleet Zoning Board of Appeals regarding Uses on the Property (Cont’d from 12/02/04).  Robert Hankey stated he had not had an opportunity to review the file and was willing to be replaced by another Board member.  Jamie Veara, Attorney for the applicant, was willing to accept a continuance, if necessary.  Peter Watts stated he would like to proceed with the hearing.  The Board for this hearing consisted of David Rowell, Vice Chair, Peter Watts, Robert Hankey, William Nicholson and Trevor Pontbriand (David Rowell Chaired the original meeting).  Attorney Veara gave the history of the property and of the Special Permit issued in 1997.  The Findings of Fact stated all uses were pre-existing non-conforming grand-fathered uses (including the loam processing).  In 1998, upon an Appeal by the applicant, the ZBA members stated “they did not wish to revisit the issue” of the loam processing, thus not determining the status of loam processing.  The issue of setbacks of where the loam was being placed was in contention; and McGinn and Veara do not feel the new bylaws referred to the bulk storage (mounds of dirt).  Watts stated he felt the Board had allowed commercial use in a residential district.  Veara stated the issue is in regards to the loam processing.  A letter was read from abutter Beverly Crowell, who states the loam screening is a nuisance to the neighborhood, the setback requirements are not being met, and the materials on McGinn’s property have encroached her property.  Veara stated the loam processing is performed 50 to 100 feet from the property of the abutter.  It is done for five (5) days per year consecutively.  The Board asked Veara if it were possible for him and the applicant to have a discussion with the abutter to possibly work out a schedule so the abutter would be aware of the days and hours the loam processing would be taking place.  Veara agreed to contact abutter Crowell.  David Rowell Moved to continue the hearing to March 24, 2005; Seconded by Peter Watts, Passed 5-0.

7:35    #04-56  Todd E. LeBart and Hugh L. Dunbar, Jr., Cahoon’s Hollow Road, Map 17, Parcel 8:  Application for a Special Permit under WZB 6.1.5.1.b and 8.4.2:  Demolish two cottages and replace with two new cottages (Cont’d from 12/16/04).  Members of the Board for this hearing were Steve Rose, Chair, David Rowell, Robert Hankey, Peter Watts and William Nicholson.  Chet Lay, of Slade Associates, Inc., met with Lauren McKeen of the National Park.  A letter from Michael B. Murray of the National Park Service dated February 10, 2005, was read for the record.         
It stated the Building Inspector issued a finding on May 3, 2004 that this property is not considered a two-unit cottage colony, which now allows size increases consistent with other provisions of the zoning bylaw.  Chet Lay stated the Certificate of Suspension of Condemnation would not be taken away.  A letter from David J. Skiba, Attorney, dated February 1, 2005 was read into the record.  A discussion took place regarding the definition of the two new dwellings the volumetric increase, as well as the question if they would be substantially more detrimental.  The Board was under the assumption there were two decks on the one dwelling.  Mr. LaBart stated there would only be one deck.  Jack McCormick, Attorney for an abutter, requested copies of all new materials.  He questioned if the second structure was a guest house, to which Mr. Lay stated it is pre-existing.  Paul Murphy, Building Inspector, stated the Park refers to the second structure as a guest house for their terminology, but the Zoning Board determines what it is.  Steve Rose Moved to continue to March 10, 2005 to enable the applicant to produce a parking plan, define elevations and volumetric increases; Seconded by Robert Hankey; Passed 5-0.

8:06    #04-54  John Duane, 348 Main Street, Map 14, Parcel 7:  Application for a Special Permit under WZB 5.3.2:  Change the use of the property and change number of parking spaces (Cont’d from 12/02/04).  The Board consisted of  David Rowell, Vice Chair, Robert Hankey, Peter Watts, William Nicholson, and Trevor Pontbriand.  Mr. Duane stated he is creating five (5) parking spaces instead of two which will allow for a maximum of six (6) employees.  A letter was received from the Historical Review Board dated September 8, 2005.  David Rowell Moved for Findings of Facts:
Applicant has complied with requests regarding parking changes and requesting Historical Review Board input.
No objection from abutters.
Parking deficiency will be compensated with municipal parking.
Applicant has kept the historical nature of the building in tact.
Proposed plan meets with the District’s objective with job creation and use of the property.
Peter Watts Moved to accept the Findings of Fact; Seconded by Robert Hankey, Passed 5-0.  Based on the Findings of Fact, Robert Hankey Moved to approve the Special Permit; Seconded by Peter Watts, Passed 5-0.

8:25    #04-52  Patricia Pajoron and Maria Kalantzis, 33 Leeside Hollow road, Map 8, Parcel 161:  Application for a Special Permit under WZB 6.11:  Conversion of cottages to condominiums (Cont'd from 12/02/04).  The Board consisted of David Rowell, Vice Chair, Robert Hankey, Peter Watts, William Nicholson, and Charles Amsler.  Amsler replaces Sibel Asantugrul who is absent with applicants permission.  George Cavanough, Attorney for applicants, produced a letter from  former owner of the property, John. J. Thomas, and two letters from abutters who stated the two dwellings have always been year-round dwellings (Gerald Auch and Darlene Frazier).  A letter from Elisha Mallory Grant dated January 18, 2005 was also received with some history on the property.  Steve Rose, a former abutter, stated the same facts.   A letter from the Planning Board dated October 21, 2004 stated they had no objection to the proposal; however, they did suggest the applicants consider a subdivision of the property under Section 81-L of the Subdivision Control Law.  Peter Watts stated this could create more variances if divided with more non-conformities.  

Peter Watts Moved for Findings of Facts:

The proposed use of the premises does not substantially change the then existing use of the premises.
The proposed condominium documents (e.g. Master Deed, Declaration of Trust, By-law, Rules and Regulations, etc.) explicitly define the proposed use (e.g. seasonal use, time sharing use, number of units, existence or absence of kitchen facilities, etc.)
The condominium documents are written with proper management authority to insure maintenance and repair of public health and safety aspects (e.g. water lines, sewage facilities, etc.) of real property being converted.  Each such special permit shall provide that the condominium documents may not be changed so as to alter the three (3) findings required by the preceding sentence without first obtaining a special permit from the Board of Appeals permitting such alteration.
There are two single family dwellings which are year-round buildings that pre-date the adoption of zoning laws and there, are pre-existing, non-conforming.
No increase of uses on the property.

Robert Hankey Moved to approve the Findings of Fact; Seconded by William Nicholson; Passed 5-0.  Robert Hankey Moved to grant the Special Permit with conditions ; Seconded by David Rowell, Passed 5-0.   The following conditions shall apply:
The Board of Health shall review the proposal.
The Condominium documents must be read and approved by Town Counsel.

8:48    #04-57  Todd A. Barry and Mignon Muirhead, 385 Chequessett Neck road, Map 19, Parcel 142:  Applicant appeals a determination of Building Inspector regarding Hearing 02-02 regarding crawlspace; application for a special permit to modify  conditions set in Case #02-02.  The Board for this hearing were Steve Rose, Chair, David Rowell, Robert Hankey, Peter Watts and William Nicholson.  Ben Zehnder, Attorney for the applicant, gave the history of the property.   The original Decision for Hearing #02-02 stated only a crawl space could be used in the replaced dwelling.  A furnace was placed in the crawl space.  The applicant stated the ceiling height in the cellar is approximately 7 feet tall now with a dirt floor.  No other utilities are located in the cellar.  Applicant states it could not be utilized for a habitable area; therefore, there are no changes in the conformance of conditions.  Paul Murphy, Building Inspector, stated it has changed since the occupancy permit was granted.  The following letters were read into the record:  Paul Murphy to Benjamin Zehnder dated November 4, 2004 stating the property is in violation of the special permit; Letter to the ZBA dated January 7, 2005 from Daniel Ranalli and Tabitha Vevers, abutters, objecting to allowing a cellar; and Letter to the ZBA from Richard S. Handman and Marily McDevitt dated January 25, 2005 with objections.  Zehnder stated there is no volumetric increase, everything is in setbacks, lot coverage conforms, and no change in use; therefore, this is not substantially detrimental to the neighborhood.  Peter Watts Moved to uphold the decision of the Building Inspector; Seconded by Steve Rose; passed 5-0.  Various people from the audience supported the allowance of a cellar at the property.  Rowell questioned how high the applicant wished the height of the ceiling to be, with the response 7 feet.  The history of the property was further discussed, including the fact that the then Inspector did not want the cellar to be used for a potential habitable area.  There is no interior door to get to the cellar.  Zehnder stated utilities drop down from the ceiling (such as water pipes, etc.).  Gerry Bessette, of the audience, stated there are four windows in the cellar.  Trevor Pontbriand stated the original plans which were approved were for louvered vents.  After discussion on use of property and the fact the applicant did not come forward to get an amendment, Rowell stated he would like to see a poured concrete floor be added which would allow for a 6 foot, 11 inch ceiling.  

        Steve Rose Moved to amend the conditions in Case #02-02 to allow four windows and door to the cellar, along with a cement floor making it no more than 6 feet, 11 inches from ceiling joints to floor; Seconded by David Rowell.  Watts and Hankey stated their objection to not upholding the original condition.  Helen Miranda Wilson, of the audience, asked what is the difference in use of habitation or use as storage?   Could there be a yearly inspection done by the health Agent?  She asked if there were any fines involved and the answer was no.  Zehnder stated they would provide an as-built.  Steve Rose brought the Board back to the motion.  Vote taken:  4-1 to amend the condition in #02-02.

9:35    #05-01  Doris D. Zelinsky, 170 Pond avenue, Map 29, Parcel 382:  Application for a Variance and Appeal from Person Aggrieved that the Building Inspector stated 170 Pond Avenue is non-buildable.  The Board consisted of Steve Rose, Robert Hankey, Peter Watts, William Nicholson and Trevor Pontbriand.  Attorney Richard Henderson wrote a letter requesting a continuation to April 14 due to unforeseen illnesses.  Steve Rose moved to continue to April 14, 2005; Seconded by  Robert Hankey; Passed 5-0.

9:35    #04-18  Wellfleet Harbor Actors Theater, Route 6, Map 23, Parcel 212:  Applicant appeals a determination that the proposed non-profit theater use is not a permitted public or semi-public institution of a philanthropic or charitable purpose; Applicant requests a Special Permit under WZB 5.4.13 to allow two principal uses and two principal buildings on one lot in the C zoning district; a Special Permit under WZB 6.3.13 as a Development of Significant Impact to determine that traffic impact and financial impact studies are deemed unnecessary; Special Permit under WZB 5.2 for a use closely resembling in its neighborhood impacts a use listed as a permitted or authorized use under Special Permit in the Commercial Zoning District, and Special Permit under WZB 6.11 to allow the conversion of the property to the condominium form of ownership (Cont’d from 12/16/04).  The Board consisted of Steve Rose, David Rowell, Robert Hankey, Peter Watts, and William Nicholson.  Trevor Pontbriand recused himself as an abutter.   
 
        Chair Rose reviewed the six items the Board had requested from the applicant:
1.      Scaled plans for the site building plans
2.      Existing floor plans (Post Office and 2nd floor)
3.      Request for temporary tent to be placed outside of the set backs
4.      Written position from church regarding water easement
5.      If a new egress could be made with abutter to form one egress
6.      A discussion with Chief Rosenthal

Rose stated the new plans presented to the Board did not include existing Post Office Building.  
Andrew Singer, Attorney, stated the only change to the site plan is the relocation of the tent, which will be located in the reserved parking area.  A copy of a letter from St. James the Fisherman dated January 3, 2005 granting approval for the easement of the water on their property with the condition church members could utilize the parking lot on Sunday mornings.  A letter was received from Alan Platt, of the Cape Cod Commission, supporting the WHAT project.  

Singer stated there is nothing on record regarding the access easement for abutter, Mrs. Arnold.
Rose read a letter from Attorney Spaulding dated July 9, 1987 stating an easement would be made, if all parties were in agreement.  Singer responded that it was probably not executed, but would do further investigation regarding this matter.   A person from the audience stated they did not believe the easement was ever finalized.  Arlene Kirsch identified herself as an employee of WHAT and a member of the Wellfleet Finance Committee.  She wanted to emphasize the longer it takes for approval, the higher the costs and WHAT did not have all the money in hand.  

Rose closed the hearing to the public at 9:50 pm for Board discussion.  Rowell listed concerns / questions he felt the Board needed to identify prior to referring the case to the Planning Board.  They included the lack of scaled plans on existing floor plans (1st floor and 2nd floor) identifying square footage; the need for seating occupancy delineations on the plan which would identify 60 seats for the tent and 190 for the theater; discrepancies found in plans dated 12/16/04 and 1/14/05 with a 200 square foot difference; concerned about the lack of a page from the Conditions on a prior Special Permit (WZB Case 86-12) included in the application; would like resolution to the easement question regarding Mrs. Arnold’s potential easement;  need full scale plans of the parking lot(s); the impromptu area is listed on one plan as a stage and as a deck on another plan and it needs to be identified properly for both our Board and the Cape Cod Commission; and  the signage is 400% larger than allowed, therefore the Board needs new plans with conforming signage.

There was discussion regarding the curb cuts (particularly the entrance to the Theater and PO) which would move the well water radius restrictions.  Amsler stated Coastal Engineering did make plans regarding curb cuts and easement rights and recommended further investigation based on previous hearings on this property by contacting Ansel Chaplin, an attorney who was involved in the cases.  Rose reviewed some of the conditions placed by the Cape Cod Commission, particularly the impromptu “stage” area and how many people would be added to the already 250 seat capacity.  Rose also noted the adjacent parking lot was not being cleared of the snow and is the access permissible for theater patrons?  He stated WHAT’s parking should be on their property and now the overflow area will be covered with the tent.  Amsler stated there is a cemetery located at St. James the Fisherman’s and asked if it would have any impact on the water issues.   Amsler also questioned if the existing well was going to be done away with and the new well is going to take care of everything (including Cove Corners).  He questioned if the well was going to be tested.  Rose questioned if there was going to be a restaurant/snack bar, what would the hours be, would it be open to the public.  Amsler stated DEP had called him regarding the restaurant in the former IGA building.  He stated if the existing well is going to serve both properties, it would be encroaching on the existing radius of the well.  

Steve Rose opened the discussion to the audience at 10:10 pm.  
Singer requested the formal referral be made tonight to the Planning Board with the questions brought up.  He stated the 40 foot easement is not noted on Arnold’s title.  He stated the cemetery contains ashes and the Health Department confirmed to him it will not affect the water issue.  In regards to parking, Singer said the parking is based on square footage of the buildings and parking is encouraged to take place on site; however, the bylaws give the ZBA the ability to make adjustments with conditions.  Jeffrey Zinn stated the concept of the outdoor stage, was to mitigate traffic and congestion.  If there were a musician, etc. outdoors, it would be to entertain people for a short period of time, spreading out the flow of traffic.  He states there is no intention to exceed the 250 people capacity.  He also stated the Cape Cod Commission left it flexible for WHAT to be able to have the seating capacity change in the tent and theater, depending on the particular performances and not limit the tent to 60 people.  Based on ticket sales, WHAT will be able to determine number of people attending, not to exceed 250 people.  The signage shown on the plans is for decoration purposes, not a sign.  They will remove if necessary.  He stated that while the theater is under construction, they would like to locate the tent in the reserve parking area.  If the reserved parking is required, they would relocate the tent to the south portion of the property.  There will be no restaurant, only a small concession area with prepackaged items.  

A new septic plan will be available to the Board before the next meeting.  Mr. Sculley, WHAT’s traffic coordinator, stated 90% of the traffic will go north on Route 6 after leaving the theater. He reiterated the lack of impact on Route 6 based on when the theater gets over at night, there will be no policemen needed to direct traffic per Chief Rosenthal, and the applicant cannot close any of the egresses.  If there are problems with the connecting egress between the theater parking lot and IGA’s, it could be closed off.  He stated if there are any changes with tress, signs, etc., it must go through MA Highway authorities.  

The architect stated there are 176 fixed seats with 13 moveable seats.  He stated the difference in the square footage is the surveyor counted the footprint of the building and the architects counted the silhouette of the inside floor plan.  The terms used for the outdoor area (decking and stage) were not updated in the latest plans.  (Page A11 identified it as stage, the full page plan calls it decking).
There will be no plumbing at the concession area.  The Board of Health is reviewing the requirement for the shower, and water usage will be monitored.  Conditions were set by the Cape Cod Commission limiting number of shows which limits the amount of water usage by monitoring.  Rose asked how to control the number of people on the property.  Singer responded the Cape Cod Commission report (page 15) conditioned number of shows which controls the water usage.  There will be no overlap of parking lot usage.  

Peter Watts motioned to refer to the case to the Planning Board; Seconded by William Nicholson.
 
Rowell stated the Board required delineation of all uses in the Building (Post Office, Office Use, etc.).  He also stated he wanted delineation of seating in the tent and theater.  Discussion took place regarding the number of people the tent could hold, based on the fact the theater may not have full capacity.  The Board will submit questions to the Planning Board.  Nicholson stated he would like to see crosswalks added to the parking lots for the walkway.  Questions will be forwarded to Andy Singer.    
Rose brought the Board back to the motion:  Vote to refer to the Planning Board Passed 5-0.  Rose moved to continue to the hearing to March 24, 2005; Seconded by Robert Hankey, Passed 5-0.

Meeting adjourned at 11:10 pm.

Respectfully submitted,
Christine Bates
Committee Secretary