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Zoning Board of Appeals 08/11/05

Minutes of Zoning Board of Appeals Public Meeting

Date:           August 11, 2005
Time:           7:00 PM

Present:  Trevor Pontribiand, Jeffrey Stewart,  Robert Hankey, Peter Watts, William Nicholson, Sibel Asanturgul, Vernon Jacob, Bruce Drucker and Christine Bates, Committee Secretary.  

Regrets:   Charles Amsler

Public Hearings:

7:00    #05-31  Andrew J. Parkington, 15 Kear Circle, Map 42, Parcel 46:  Application for a Special Permit under WZB 8.4.2 (Light Industry):  Use of one of the bays in the Service Trades Bldg located at 15 Kear Circle (Andrew J. Parkington Building & Remodeling, LLC).

The Board consisted of Trevor Pontbriand, Robert Hankey, Jeffrey Stewart, Bruce Drucker, and Vern Jacob.  Attorney Ben Zehnder represented the applicant.  He asked the Board to amend the application, adding Service Trades.  He stated Parkington would not make any interior changes to the bay; that materials will be stored there, but no major construction work will be performed in the bay.  Stewart read the decision of Case 04-23 (Wellfleet Steel Works) into the record.  Watts expressed concern about parking and the number of vehicles for the property.  There are currently 10 spaces available for the property.  Zehnder stated Parkington’s work trucks will come and go during the day, and the vehicles parked at the site will be primarily trucks (no heavy equipment).  Stewart asked if this might fall under Development of Significant Impact if there are 10 or more vehicles.  After further discussion, it was determined the application is for the use of one bay, and Zehnder stated the building is not 4,000 square feet as defined in the regulations for Significant Impact studies.  Pontbriand stated a Development of Significant Impact is triggered when 10 or more parking spaces are required.  It was determined the application would not be sent to the Planning Board.  The definition of C2 zone was read and it was agreed this property fits into that category and within regulations.  Zehnder stated the Fire Department has signed off on the property.  Pontbriand moved to amend the application and add “Service Trades”: seconded by Hankey, passed 5-0.  Pontbriand moved for Findings of Fact:  
1.      The proposed use conforms with the intent of the C2 district
2.      The proposed use is within the scope and intent of the July 21, 2004 Special Permit (Case 04-23)
3.      There is no objection from abutters
4.      There is adequacy of roads, drainage and other public services with this location
5.      Proposal contributes to the diversity of services available

Hankey moved to accept the Findings of Fact; seconded by Pontbriand; passed 5-0.  Pontbriand moved to grant the Special Permit with conditions; seconded by Hankey; passed 5-0.


CONDITION:

Hours of operation will be from 6:00 am to 9:00 pm.

7:35    #05-32  Thomas C. Adams, 15 Kear Circle, Map 42, Parcel 46:  Application for a Special Permit under WZB 8.4.2 (Light Industry):  Use of one of the bays in the Service Trades Bldg located at 15 Kear Circle (Wellfleet Electric, Ltd.).

The Board consisted of Trevor Pontbriand, Jeffrey Stewart, Robert Hankey, William Nicholson, and Bruce Drucker.  This case was combined with Case 05-31 (Parkington) and the proposal was discussed in length regarding parking issues, use and the C2 zoning district.   It was agreed that discussions from Case 05-31 are relevant and applicable to this case.  Attorney Ben Zehnder had requested the Board amend the application and include Service Trades as in Case 05-31, which was approved.  Pontbriand moved for Findings of Fact:  
1.      The proposed use conforms with the intent of the C2 district
2.      The proposed use is within the scope and intent of the July 21, 2004 Special Permit (Case 04-23)
3.      There is no objection from abutters
4.      There is adequacy of roads, drainage and other public services with this location
5.      Proposal contributes to the diversity of services available

Pontbriand moved to adopt the Findings of Fact; seconded by Hankey, Passed 5-0.  Pontbriand moved to grant the Special Permit based on the Findings of Fact; seconded by Hankey, passed 5-0 with the following condition:

CONDITION:
1.      Hours of operation will be from 6:00 am to 9:00 pm.

#05-33  Audrey Danforth, 5 Holbrook Avenue, Map 21, Parcel 105:  Application for a Special Permit under WZB 6.1.5.2 (non-conforming lot) and 5.3.5 (live stock):  Enlarge side porch to allow room for a stairway and permission to keep 3 turkeys on the property.  The Board consisted of Trevor Pontbriand, Jeffrey Stewart, Robert Hankey, William Nicholson, and Sibel Asantugrul.  Ms. Danforth represented herself.  Danforth explained she needed to have the stairway cantilevered due to having the property and dwelling located within wetlands and complying with Conservation issues.  A letter from Joseph Downey, abutter, stated he had no objection.  Abutter Steven Coser objected to the project in a letter, and a letter from Hillary Greenberg, Conservation and Health Agent for the Town of Wellfleet was received stating the status of previous hearings with the Board of Health as well as the Conservation Commission.  Building Inspector, Paul Murphy, stated no poultry is allowed in the Central District.  Danforth asked permission to withdraw that portion of her application without prejudice regarding live stock; Nicholson moved to allow the withdrawal without prejudice; seconded by Pontbriand; passed 5-0.

Pontbriand asked why the stairwell was being located outside versus inside the dwelling and within the existing footprint.  Danforth stated there is not enough room within the dwelling, and after numerous engineering plans, this was the best plan which would not impact the wetlands by any digging.  She explained she proposes changing the floor plan and moving the second bedroom upstairs.  After reviewing the paperwork submitted, it was determined the site plan was not sufficient in showing the setbacks.  Pontbriand moved to continue to September 8, 2005 in order for the applicant to provide a better site plan; seconded by Stewart, passed 5-0.


Case 05-04  Lucienne R. L. Pinto and Gregory Pinto, Appeal from a Person Aggrieved:  Appeal against the Building Inspector regarding failure to stop violations on 85 Old Paine Hollow Road (Townsend property).  (Cont’d from 07/14/05).  The Board consisted of Trevor Pontbriand, Jeffrey Stewart, Peter Watts, Robert Hankey and Sibel Asanturgrul.  The Board made site visits on July 13, 2005 and August 10, 2005.  Duane Landreth, Attorney, and Gregory Pinto came to the table.  Landreth gave an overview of the Appeal, and reviewed statements made from a sworn affidavit from former Building Inspector, Victor Staley.    He stressed the Townsend business is in the Residential District and many of the uses on the property are not allowed.  Landreth stated the 1996 permit allowed for a Landscaping and firewood business.  He stated that there is currently an excavating business, a snow removal business, a land clearing business, and a tree service business which requires heavy equipment located on the property.  Pontbriand asked Mr. Landreth what he would like the Zoning Board of Appeals to do.  His response was:
1.      Clarification on setbacks
2.      Only one commercial vehicle weighing 10,000 pounds
3.      Eliminate uses not authorized
4.      Eliminating the snow removal, land clearing and excavating business
5.      Remove fuel tank on property
6.      Get logs off  abutter’s property across the street
7.      Remove junk off the property and keep it off (i.e. demolish the salt/sand structure, remove wood chips and chippers)
8.      Allow no maintenance of equipment
9.      No use of the garage for operations of the business
10.     No use of the property as a transport terminal.
11.     Charge $50.00 per day for each separate offense per Wellfleet Zoning By-Law section 8.3.

Pontbriand asked the current Building Inspector, Paul Murphy, for his input.  Murphy stated he has been in contact with Dennis Townsend and is aware that one of the storage containers has been removed and they are in the process of removing the other one.  He stated it is not mandatory to issue fines and that it is at the Building Inspector’s discretion to impose fines.  

Ben Zehnder, attorney for Townsend’s, stated in reference to the Staley affidavit that it is difficult to go back and review what a Building Inspector said 10 years ago and that the current Building Inspector is the person who will enforce the issues now.  He stated there were 21 letters of support for the Townsend’s at the 1996 hearing.  He stated the bulk storage setbacks didn’t apply to the 1996 bylaws.  He noted all dialogue at meetings is not put into meeting minutes (or decisions).  Landreth objected to the copies of the 21 letters being distributed to the Board at this meeting because they were not distributed 2 weeks in advance.  Pontbriand stated the Board was not interested in letters 10 years old.

Pontbriand closed the meeting to the public at 8:42 pm.  

Pontbriand asked Paul Murphy for any comments.  Murphy stated he feels the Townsend’s are in compliance.  He feels the bylaws of 1994 were not clearly stated, and felt the language regarding setbacks in the November 21, 1996 Special Permit referred only to structures.  Pontbriand reviewed the conditions from the November 21,1996 Special Permit and focused on the 3rd condition:  “There is to be not more than 25% lot coverage by the bulk storage of equipment and materials, and all setbacks are to be observed.”  Pontbriand feels the wording of the November 21, 1996 Special Permit meant that storage of the bulk materials and equipment should not be in the setbacks; Watts felt the Board meant bulk storage should be out of the setbacks; and Stewart stated he felt this has been  an on-going position of the Board

for a number of years; Hankey stated businesses did not have bulk storage issues back then; and Asantugrul said Condition #3 is not crystal clear and that the new Building Inspector needs to make the interpretation.

The Board reviewed the December 8, 2004 letter from Duane Landreth to Building Inspector Murphy listing what the applicant considered “Violations of and Exceeding Rights Granted by the Special Permit” as well as “Zoning ByLaw Violations”.   After discussing each item in Mr. Landreth’s letter , the Board came to the following findings of fact (the word “owner” refers to Townsend):

1.      Item A-1  Pontbriand moved that the operation of heavy equipment, wood processing equipment, wood chipping equipment and commercial vehicles falls within the intention of the 1996 Special Permit and is not detrimental and offensive by reason of fumes, smoke, refuse, vibration, danger of fire or explosion, and traffic congestion, seconded by Hankey, passed 5-0.
2.      Item A-2  Pontbriand moved that the owner stores materials and equipment within the minimum setback area in violation of the November 21, 1996 Special Permit.  Henceforth, the owner shall not store materials, equipment or bulk storage within the minimum setbacks of 30 foot front/rear, and 25 foot sides.  Move seconded by Watts; passed 5-0.
3.      Item A-3 (“The owner illegally stores materials and equipment not contemplated under the Permit, which is prohibited in the R1 zone” will be addressed by the Board when referring to “Zoning ByLaw Violations” found in Section B of Mr. Landreth’s letter)
4.      Item A-4 (The owner carries on various business activities not contemplated in the Permit, in the manner that is not secondary to the use of the dwelling unit for residential purposes, which is prohibited in the R1 zone, ByLaw Section 6.23.1).  Pontriband moved this is not applicable pursuant to MGL 40A section 6, because Wellfleet Zoning Bylaw 6.23.1 did not exist when the 1996 Special Permit was granted; seconded by Stewart, passed 5-0.
5.      Item A-5 Pontbriand moved the log trucks are to access the property via Old Route 6 as it abuts the Townsend property and not Old Paine Hollow Road as per the conditions of the 1996 Special Permit; seconded by Hankey, passed 5-0.
6.      Item A-6   The Board could not determine at the site reviews if the bulk storage of equipment and materials exceeded twenty-five percent.  No evidence was presented that the bulk storage of equipment and materials exceeded twenty-five percent. Stewart moved the bulk storage of equipment and materials shall not exceed 25% as per the conditions of the 1996 Special Permit; seconded by Pontbriand ; passed 5-0.
7.      Item B-1  Pontbriand moved the previously observed camper has been removed from the property per site visits of  07/13/05 and 08/10/05; seconded by Watts; passed 5-0.
8.      Item B-2   Pontbriand moved the owner does not operate a Contractor’s Yard as defined in WZB 2.1 per site visits of 07/13/05 and 08/10/05; seconded by Watts; passed 5-0.
9.      Item B-3   Pontbriand moved the owner does not operate a Home Industry as defined in WZB 2.1 per site visits of 07/13/05 and 08/10/05; seconded by Watts; passed 5-0.
10.     Item B-4   Pontbriand moved there is no evidence the owner engages in Incidental Motor Vehicle Repair as defined in WZB 2.1 per visits of 07/13/05 and 08/10/05; seconded by Stewart; passed 5-0.
11.     Item B-5   Pontbriand moved the owner does not engage in Bulk Storage, Open, of materials and equipment other than those allowed under the Special Permit per site visits of  07/13/05 and 08/10/05; seconded by Watts; passed 5-0.
12.     Item  B-6   Pontbriand moved that the previously observed Bulk Storage, Tanks, have been removed from the property per site visits of  07/13/05 and 08/10/05; seconded by Hankey; passed 5-0.


13.     Item B-7    Pontbriand moved that the owner does not presently operate a Dump as defined in WZB 2.1 per site visits of 07/13/05 and 08/10/05; seconded by Stewart; passed 5-0.
14.     Item B-8   Pontbriand moved that the owner does not operate a Junk Yard as defined in WZB 2.1 per site visits of 07/13/05 and 08/10/05; seconded by Watts; passed 5-0.
15.     Item B-9  Stewart moved that the owner does not operate a Heavy Industry as defined in WZB 2.1 per site visits of 07/13/05 and 08/10/05; seconded by Pontbriand; passed 5-0.
16.     Item B-10:  Pontbriand moved that the owner does not operate a Motor Vehicle Junk Yard as defined in WZB 2.1 per site visits of 07/13/05 and 08/10/05; seconded by Stewart; passed 5-0.
17.      Item B-11  Stewart moved the owner has certified to the Town of Wellfleet that the location of his barn complies with WZB 5.4.2 per verbal statement from the Building Inspector on 08/11/05; seconded by Pontbriand; passed 5-0.
18.     Item B-12  Pontbriand moved that the owner has not certified to the Town of Wellfleet that the height of the barn complies with the height limits per WZB 5.4.4 per verbal statement of the Building Inspector; seconded by Hankey, passed 5-0.
19.     Item B-13:  Pontbriand moved that the owner does not have two principal buildings on the lot per site visits of  07/13/05 and 08/10/05; seconded by Hankey; passed 5-0.
20.     Item B-14:  Pontbriand moved the owner does not conduct at least two principal uses on the lot per site visits of  07/13/05 and 08/10/05; seconded by Watts; passed 5-0.
21.     Item B-15 through B-19:   Pontbriand moved that these items are non-applicable pursuant to MGL 40A section 6, as the Wellfleet Zoning ByLaws did not contain Section 6.23.1 when the Special Permit was granted on November 21, 1996; seconded by Stewart; passed 5-0.
22.     PAST ENFORCEMENT VIOLATIONS:  It was determined the Wellfleet Zoning Board of Appeals cannot enforce implied past enforcement violations.

Pontbriand moved to Uphold the Decision of the Building Inspector with regards to the Appeal with the following exceptions:

A.      The owner stores materials and equipment within the minimum setback area in violation of the    November 21, 1996 Special Permit.  Henceforth, the owner shall not store materials, equipment or        bulk storage within the minimum setbacks of 30 foot front/rear, and 25 foot side setbacks.  

B.      The owner shall certify to the Town of Wellfleet that the height of the barn complies with the height limits per WZB 5.4.4 as per the request of the Building Inspector.

The Wellfleet Zoning Board of Appeals respectfully directs the Building Inspector to enforce the above items A and B.

Seconded by Hankey; passed 5-0.

Pontbriand moved to adjourn the meeting at 10:25; seconded by Stewart; passed 8-0.

Respectfully submitted



Christine A. Bates
Committee Secretary