Minutes of Zoning Board of Appeals Public Meeting
Date: March 8, 2007
Time: 7:00 PM
Place: Wellfleet Senior Center
Attendees: Trevor Pontbriand, Vern Jacob, William Nicholson, Charlie Amsler, Roger Putnam, Robert Hankey, Bruce Drucker, and Christine Bates, Committee Secretary.
Regrets: Jeffrey Stewart
Chair Pontbriand called the meeting to order at 7:00 pm. Chair Pontbriand gave an overview of the hearing process.
Public Hearings:
7:00 pm 06-41 Denis and Judith Moran, 1937 State Highway, Map 29, Parcel 269K: Amendment to Special Permit under WZB 6.1.1 expansion of cottage. The applicant requested a continuation to 4/26/07. Trevor Pontbriand moved to continue to April 26, 2007; seconded by Robert Hankey; passed 7-0.
7:04 pm 06-21 Phyllis Lewis / Jamie Johnson, Harbor Lights, Map 20, Parcel 19 (Site 2048): Application for a Special Permit under WZB 6.1.1 to replace existing deck with screen porch and deck (cont’d from 06/22/06). The Board for this hearing consisted of Trevor Pontbriand, Bruce Drucker replacing Jeffrey Stewart, Robert Hankey, William Nicholson and Charlie Amsler replacing Sibel Asantugrul, with the applicant’s approval. The minutes of 06/22/07 were read into the record. Jamie Johnson gave an overview of the project, noting there was a change in the plans from the original plan submitted. The condo Cooperative has approved the new plans. The proposed project is within the 840 square feet of site coverage conditioned in the Special Permit granted to
Harborside Village Cooperative. The project has been approved by the Conservation Commission. The Building Inspector told Ms. Johnson the proposed decking and screen porch do not have to be constructed above the flood elevation because they are not increasing the value of the structure by 50%. Trevor Pontbriand moved for Findings of Fact:
1) The trailer park is a pre-existing nonconforming use.
2) There was no objection from abutters.
3) The applicant has approval from Harborside Village Cooperative.
4) There will be no change in use.
5) There will be no changes to or increases in the non-conformities.
6) The proposed alteration is not substantially more detrimental to the neighborhood.
Trevor Pontbriand moved to approve the Findings of Fact; seconded by Bruce Drucker; passed 5-0. Trevor Pontbriand moved to approve the Special Permit based on the Findings of Fact; seconded by Bruce Drucker; passed 5-0.
7:18 pm 07-10 Gordon and Kim Hayward, 24 Bluefish Lane, Map 30, Parcel 1.2: Application for a Special Permit under WZB 6.21 for an Affordable Accessory Dwelling Unit. The Board for this hearing consisted of Trevor Pontbriand, William Nicholson, Robert Hankey, Bruce Drukcker and Vern Jacob. The Hayward’s gave an overview of the project. The Board determined the square footage meets the requirements for an Affordable Accessory Housing Unit. Trevor Pontbriand moved for Findings of Fact:
1) The affordable accessory dwelling unit has been constructed as a detached unit.
2) The affordable accessory dwelling unit is not larger than 1,200 square feet of livable floor area.
3) The proposed affordable accessory dwelling unit meets all setback requirements.
4) The owners will occupy the principal dwelling.
5) The septic system meets Title 5 standards.
6) The Inspector of Buildings and Health Agent shall inspect the premises for compliance with public safety and public health codes.
7) The affordable accessory dwelling unit shall not be separated by ownership from the principal dwelling unit or principal structure.
Trevor Pontbriand moved to approve the Findings of Fact; seconded by Bruce Drucker; passed 5-0. Trevor Pontbriand moved to approve the Special Permit based on the Findings of Fact with the following conditions: seconded by Bruce Drucker; passed 5-0.
STANDARD CONDITIONS FOR AFFORDABLE ACCESSORY DWELLING UNITS
IN ACCORDANCE WITH SECTION 6.21 OF THE WELLFLEET ZONING BYLAW
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 Bylaw. Failure to comply with any of these provisions shall be considered a violation of special permit requirements and may be subject to fines established in Section 8.3 of the Zoning Bylaw and/or to enforcement requiring 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 documentation to confirm their eligibility for the dwelling unit. All dwelling units must be rented to those meeting established guidelines for low or moderate income families. For the purpose of this section of the Bylaw low income families shall have an income less then 80% of the Town of Wellfleet median family income, and moderate income families shall have an income between 80% and 120% of the Town of Wellfleet median family income, as determined by the United States Department of Housing and Urban Development (HUD) published Income Guidelines, 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 rent 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 on forms provided for this purpose. Rents may be adjusted annually in accordance with amendments to the HUD Fair Market Rental Guidelines.
4. The property owner named herein shall complete and submit to the Building Inspector 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 Building Inspector prior to the affordable accessory dwelling unit being occupied.
7:28 pm 07-04 MacDonald / Young, 30 9th Street, Map 40, Parcel 147: Application for a Special Permit under WZB 6.1.5.1 and 8.4.2 to add a deck and garage within front setback or alternately, an application for a variance to construct deck and garage within front yard setback (cont’d from 02/08/07). Trevor Pontbriand read the meeting minutes of 2/8/07. The Board for this hearing consisted of Trevor Pontbriand, Robert Hankey, William Nicholson, Vern Jacob, and Roger Putnam. Attorney Ben Zehnder represented the applicant. A letter from Town Counsel was read into the record which stated the ZBA does not have the authority to grant a Special Permit, but can hear the case under an Application for a
Variance Request. Zehnder agreed with the information provided by Town Counsel but questioned if they answered the original question regarding whether the lot is pre-existing and pre-dating zoning bylaws regarding setbacks. He stated this is a lawfully compliant structure. Based on information provided by Town Counsel, the Board discussed in detail the request to hear this as a Variance and reviewed the criteria required to meet the Variance by-law. Paul Murphy, Building Inspector, gave his opinion of Chapter 40A, Section 6 which applies to vacant land which is protected and remarked that there is one opportunity to build on such property. The Board again reviewed the requirements for a Variance and discussed the topography of the property and perception of hardship. Zehnder stated the garage has to be located out of the buffer zone due to the Wetlands Protection Act., even though the property is buildable based on square footage. Mr.
McDonald gave his opinion of various hardships, including weather, topography, and his desire to have a garage. The McDonalds do not own to the center of the road.
Trevor Pontbriand moved for Findings of Fact under WZB 8.4.3:
1) The circumstances related to soil conditions, shape or topography of the land do not prevent the proposed structure from being built according to current bylaws.
2) A literal enforcement of the provisions of this by-law would not involve substantial hardship.
Roger Putnam moved to approve the Findings of Fact as written; seconded by Robert Hankey; passed 4-1.
Based upon the Findings of Fact, Trevor Pontbriand moved to deny the Variance Request; seconded by Roger Putnam; passed 4-1.
Attorney Zehnder requested the Board review Bylaw 6.1.5.1b which is identified as applying to non-conforming structures only, (as opposed to pre-existing non-conforming). Building Inspector, Paul Murphy, stated he does not feel this is a lawfully built structure, and either the former Building Inspector made a mistake by granting the permit or felt the property fell under 40A-Section 6, with no setback requirements. There was discussion regarding the letter from Town Counsel and it was determined they did not address the original question. Zehnder stated this is a non-conforming structure on a lot which is conforming, with over 5,000 square feet of area. Murphy stated he was willing to go back to Town Counsel for a more relevant opinion, but agreed this is a non-conforming structure located on
property over 5,000 square feet. Based on the above information, the Board determined they would consider this as a Special Permit application under 6.1.5.1b.
Pontbriand moved for Findings of Fact:
1) The applicant’s lot was held in single ownership prior to the enactment of any zoning bylaws in the town of Wellfleet; the lot is more than 5,000 square feet and has more then 75’ of frontage.
2) The house on the applicant’s lot was lawfully constructed in 1984.
3) The existing dwelling is non-conforming due to an intrusion into the front setback.
4) There is no change or increase in use.
5) There is no objection from abutters.
6) The proposed garage is not any closer to the front setback than the existing structure.
7) The proposal is under 15% lot coverage.
8) The proposed garage is not more detrimental to the neighborhood.
Trevor Pontbriand moved to approve the Findings of Fact; seconded by Robert Hankey; passed 5-0. Trevor Pontbriand moved to grant the Special Permit based on Findings of Fact; seconded by William Nicholson; passed 5-0.
Other Business:
The Board discussed the increase in requests for amendments to Special Permits already granted. Trevor Pontbriand moved to charge $50.00 for requests for amendments to active Special Permits; seconded by Robert Hankey; passed 7-0.
The Board had a discussion regarding applications which require other Boards approval (i.e. Board of Health and Conservation Commission). The Board concurred there is no set practice or rule that the applicant go before other Boards prior to the Zoning Board of Appeals. The applicant can discuss their applications with the Building Inspector, the Health/Conservation Agent, or their agent for direction as to which order to appear before the Boards.
Trevor Pontbriand moved to adjourn at 9:37; seconded by Robert Hankey; passed 7-0.;
Respectfully submitted,
Christine Bates, Committee Secretary
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