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Date: May 19, 2005
Time: 7:00 PM
Present: Trevor Pontbriand, Chair, Jeffrey Stewart, Robert Hankey, Peter Watts, William Nicholson, , Charles Amsler. Sibel Asantugrul, and Christine Bates, Committee Secretary
Public Hearings:
7:00 05-01: Doris D. Zelinsky, 170 Pond Ave., Map 29, Parcel 382: Application for a Variance and Appeal from Person Aggrieved the Building Inspector stated 170 Pond Ave. is non-buildable. The Board consisted of Trevor Pontbriand, Jeffrey Stewart, Robert Hankey, William Nicholson and Peter Watts. Alan Gold, Certified Shorthand Reported, was hired by Ms. Zelinsky. Attorney Richard Henderson and Chet Lay of Slade Associates represented Ms. Zelinsky. Charlie Amsler recused himself. After the arrival of Sibel Asantugrul, Peter Watts asked to be removed from the Board in the event the hearing was continued. Watts Moved to replace himself with Asantugrul; Seconded by Nicholson; Passed 5-0.
Henderson presented an overview of the history of the property, as well as the various attempts to receive a variance request from the Board and further Court proceedings. He stated the judge sustained the denial that the property is unbuildable. He stated the abutting properties were granted building permits, even though they were smaller in size. He feels the Zelinsky’s should be given a variance as a matter of right. The former Building Inspector told Henderson he would have to prove the lot was buildable, hence the new hearing. Henderson stated Ms. Zelinsky was never a resident of Massachusetts, and therefore, did not receive information of the change in by-laws. The lot was buildable when purchased, but the by-laws changed in 1995, making the lot unbuildable. The lot is
24,600 square feet. The Building Inspector(s) have stated the cul-de-sac and the common owned property could not be included in lot coverage for the Zelinsky’s. Henderson stated Zelinsky owns a contiguous 30,245 square feet which includes the cul-de-sac and common owned property based on an English Common Law, stating Zelinsky would be entitled to all the common area by unity of possession. He states Zelinsky would be the only lot in the subdivision who can claim the common area under tenancy in common, and because the cul-de-sac is an unimproved road, she would own half of the road. He sited several cases throughout Massachusetts where variances were granted in similar situations. Chet Lay displayed several plans of what Zelinsky considered ownership, as well as the surrounding land that is unbuildable due to the title flat and salt marsh. Henderson reiterated that other lots in the subdivision were granted building permits and feels the
Town is being inconsistent. He feels the hardship for Zelinsky is not being able to use her property. He stated he doesn’t feel it would adversely affect the neighborhood, land around their property is unbuildable, there would be no environmental issues, no taxing of services and no traffic congestion.
The ZBA received two letters objecting to the variance: Susan R. Little dated February 17, 2005 and one from Ronald Harper and Constance Harper dated March 27, 2005. The Board asked Building Inspector, Paul Murphy, his opinions. He stated he feels the lot is deficient in lot area, the deed for the common
land states it is for recreational purposes, not residential and the cul-de-sac could be constructed if the common owners wanted to do so. He feels this is a variance request and the lot is still unbuildable in his opinion. Henderson stated the cul-de-sac is not a public way and this is a title issue. Pontbriand closed the meeting to the public at 8:15 pm. The Board determined the property does not have 135 feet for the lot frontage and is an undersized lot. Hankey stated if they don’t have a road, they have no frontage. Stewart questioned if there was any new facts since it was denied in Court (upon reading all the related materials, he doesn’t feel there is any); he questioned if this is such a compelling case, why wasn’t the case appealed to the next higher Court;
and since there is no deed regarding the common land, it should go before a judge to make the determination of ownership, not the ZBA. Stewart stated the property in question has been before the ZBA over the past seven years, been reviewed by Town Counsel, been before three Building Inspectors, and has been brought up twice before in Town Meetings. He does not feel a compelling reason to overturn seven years of previous decisions. Hankey stated he feels there was unfairness with this property, and feels the Planning Board should review the case, based upon their original decision regarding the subdivision. Watts stated he agrees with the Building Inspector and this would be a variance. Nicholson asked if Town Counsel should review this case, as well as other cases where variances were granted to see if Zelinsky is being treated fairly. Watts stated abutters in the other cases were supportive of the applicants, willing to exchange property
in order to that the applicant would have proper frontage. Asantugrul stated this is a legal matter regarding the square footage of the property, and not up to the ZBA to make a determination. Pontbriand stated he would like the Planning Board to review the case and have an opportunity to review the materials handed out at the meeting. Watts stated the Attorney General turned down the case. Stewart stated he supports the Building Inspector and feels Murphy has already talked to our Town Counsel, performed adequate research, and that nothing new has been brought forth to the ZBA. He stated this could be brought to the Selectmen as a warrant and then to Town Meeting. The discussion was opened to the public at 8:40.
Chet Lay stated the reason they are back here is because of the Taute decision. Henderson stated he feels the Judge made an erroneous decision. Hankey Moved to have Planning Board review the case. No Second. Stewart Moved to support the Building Inspector; Seconded by Asantugrul; open to discussion.
Nicholson stated he could allow the cul-de-sac, but not the common land. The vote resulted in a 4-1 decision. Pontbriand read the requirements for a variance. Hankey stated the property did not fall into the first requirement of hardship for topography, soil, shape of property, etc. Watts stated the hardship is lack of square footage. Hankey Moved this case does not meet the criteria for the first requirement of a variance; Seconded by Asantugrul; Passed 4-0-1 (one abstention). Pontbriand Moved to deny the Variance request based on findings; Seconded by Hankey; Passed 4-0-1 (one abstention). Stewart asked the Certified Shorthand Reporter if we could get a copy of his transcription. He will contact Christine Bates.
8:50 #05-16 Paul Renaud, 45 Whitman Lane, Map 29, Parcel 110: Application for a Special Permit under WZB 6.1.1: Alteration to a non-conforming single residential structure: Extend deck to end of house on road side. Stewart made the statement he lives on the road but has no financial interest in the property. No one objected to his being on the Board. The Board consisted of Trevor Pontbriand, Jeffrey Stewart, Robert Hankey, Peter Watts and William Nicholson. Renaud, builder, stated the deck is non-conforming at this time. The owner would like to demolish it and rebuild. The increase in nonconformance would be 1 foot, 2 inches. A letter from abutter Simko had no objection, as well as an e-mail from Hilde Ritzman and an e-mail from Anne
Hoenigswald with no objection to the project. Watts moved for Findings:
Minimum intrusion in the front set back
No increase in use.
No objection from abutters
This is not a habitable space
No increase in lot coverage
Watts Move to accept Findings of Fact; Seconded by Hankey, Passed 5-0. Hankey Moved to grant the Special permit based on Findings of Fact; Seconded by Pontbriand; Passed 5-0. Renaud asked if he could remove the current decking at this time, to which the Building Inspector replied yes.
8:59 #05-13 Tim Dickey, 295 Main Street, Map 14, Parcel 181 (Wellfleet Marketplace). Application for a Special Permit under WZB 7.3.2: Erect a sign of 30 square feet. The Board consisted of Trevor Pontbriand, Jeffrey Stewart, Robert Hankey, Peter Watts and William Nicholson. Dickey stated the pre-existing sign was 36 square feet and they want to install a 30 square foot sign, reducing the size of the sign. Hankey Moved for Findings of Fact:
This is a reasonable reduction in the size for the sign
No objection from abutters
Significant improvement over original sign
The application is keeping with the intent of the bylaw in regards to size
Hankey Moved to accept the Findings of Fact; Seconded by Watts; Passed 5-0. Pontbriand Moved to grant the Special Permit based on Findings of Fact; Seconded by Hankey, Passed 5-0.
9:03 #05-17 Jeff Carlson/Bennett & O’Reilley (Zina Miller property), 24 Crowell Road, Map 28, Parcel 145: Application for a Special Permit under WZB 5.4 and 6.15: Demolish existing non-conforming building and rebuild new dwelling on existing foundation on non-conforming lot. The Board consisted of Trevor Pontbriand, Jeffrey Stewart, Robert Hankey, William Nicholson and Sibel Asantugrul. David Bennett and Jeff Carlson represented the members of the family. Bennett stated the project has been approved by the Board of Health. He explained the oil spill on the property and the various methods of clean up that have been done. The basement will be non-habitable, used only for utilities and have 28” x 17” windows. There will be no egress.
There will be a slight volumetric increase in the proposed dwelling. There was discussion regarding the grade of the land, and Bennett stated the grade around the basement will come up 4 feet and the front of the house will be at street level. The house will be a two story. Bennett stated the parking would be at the right hand side of the building. The septic system will be a denitrification system. Bennett stated the oil spill clean up is not complete, and is in the sparging process at the present time. Wells are tested in the area every 6 months. Reports are filed with the State, and copies provided to the Board of Health and Fire Department. Abutter Christian Boden asked if the retaining wall in the rear of the property will be replaced. Carlson stated yes, and the legal easement granted to Boden will not be affected by the project. The Board requested the applicants come back with 1) elevation showing grade on
all four sides of the foundation; 2) an existing floor plan; and 3) the Board of Health approval. Pontbriand Moved to continue to July 14, 2005; Seconded by Hankey, Passed 5-0.
9:46 #05-15 Randy Williams, Corner of Commercial and Bank Streets, Map 15, Parcel 92: Application for a Special Permit under WZB 5.3: Change the use of the art gallery to a surf shop. The Board consisted of Trevor Pontbriand, Jeffrey Stewart, Robert Hankey, Peter Watts, and William Nicholson. Olaf Valli and Chad Williams came to the table. A letter dated 05/14/05 from Marion Voltara stated she had no objection for the project. Olaf stated he would like to use the space for selling and renting surf gear and offering surfing lessons. This will be seasonal from May to October. He will be reusing the sign the previous tenant had. Robichald (ck) stated he had conversations with several abutters and all are in favor of the project. Pontbriand Moved
for Findings of Fact:
No objection from abutters
There will be adequate parking.
Use will be no more intense than previous use.
Perpetual use for applicant
Hankey Moved to approve the Findings of Fact; Seconded by Stewart; Passed 5-0 with conditions:
Hours of operation will be 7 am to 9 pm seven days per week.
Pontbriand Moved to approve the Special Permit; Seconded by Stewart; Passed 5-0.
Stewart told the Board there will be a site inspection at WHAT on Wednesday, May 25. He asked the Board to bring pertinent papers (Cape Cod Commission report), and plans to the meeting. Copies of previous Meeting Minutes regarding WHAT will be provided to members of the Board. He stated Board members will be responsible for specific items regarding the hearing, which will be discussed at the hearing on May 26. He stated he will request the applicant to provide materials one week in advance of the hearing, and if unable to do so, to mail each member of the Board the materials overnight.
Trevor Pontbriand Moved to adjourn the meeting at 10:12 pm; Seconded by Robert Hankey; Passed 5-0.
Respectfully submitted,
Christine Bates
Committee Secretary
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