Minutes of Zoning Board of Appeals Public Meeting
Date: January 10, 2008
Time: 7:00 PM
Attendees: Trevor Pontbriand, Roger Putnam, Manny Heyliger, William Nicholson, Robert Hankey, Don Palladino, Bruce Drucker and Christine Bates, Committee Secretary
Regrets: Vern Jacob
Chair Pontbriand called the meeting to order at 7:00 p.m. and gave an overview of the hearing process.
Public Hearings:
7:02 pm
01-31 Blaustein, 70 Sandpiper Hill Rd., Map 22, Parcel 4: Application for a Special Permit under WZB 6.2: Construct 10’ by 12’ shed within setbacks (Cont’d from 2/13/07). Pontbriand read the meeting minutes of 10/25/07 and gave a summarization of the letter from Town Counsel, which stated the shed cannot be located within the front setback without a request for a variance. The
applicant had been advised that he did not have to attend the hearing and had agreed to have the Board either approve or withdraw his request for a Special Permit, based on Town Counsel’s determination. Pontbriand therefore moved to withdraw the application without prejudice; seconded by Roger Putnam, passed 7-0.
7:05 pm
01-39 Spottiswoode, 1937 State Hwy, Map 29, Parcel 269, Unit 3: Application for a Special Permit under WZB 6.1.1: Expand cottage. The Board consisted of Trevor Pontbriand, William Nicholson, Bruce Drucker, Manny Heyliger, and Don Palladino. A site visit was made. Ms. Spottiswoode stated the addition is for a family room and that the existing cottage is approximately 292 square feet. The expansion
will bring the cottage into conformity with the 550 square feet which is allowed. Pontbriand moved for Findings of Fact:
1. The property is a pre-existing nonconforming cottage colony under a condominium form of ownership.
2. The application is in reference to unit #3.
3. There were no objections from abutters.
4. There is no change in use.
5. The addition will bring the subject cottage into conformity with the minimum square footage as defined in the bylaws.
6. Therefore, the proposed addition will not be substantially more detrimental to the neighborhood than the existing nonconformity.
Bruce Drucker moved the Findings of Fact; seconded by William Nicholson; passed 5-0. Bruce Drucker moved to grant the Special Permit based upon the Findings of Fact; seconded by Don Palladino; passed 5-0.
7:18 pm
01-40 Laughlin, 25 School St., Map 13, Parcel 82: Application for a Special Permit under WZB 6.1.5.1 to remove shed and barn and reconstruct an addition within the existing footprint. Manny Heyliger recused himself. The Board consisted of Trevor Pontbriand, Bruce Drucker, William Nicholson, Don Palladino and Roger Putnam. Steve Curley represented the Laughlin’s, stating this is a pre-existing
nonconforming structure dating back to approximately 1800. The new addition will be for a master suite. There are two other bedrooms in the existing structure. The new addition will not infringe on the setbacks any further than what is existing. The proposal has not been before the historical review board as yet. Pontbriand moved for Findings of Fact:
1. This is a pre-existing, nonconforming structure circa 1800’s, according to the Assessor’s office.
2. The existing property is nonconforming due to area.
3. The existing structure is nonconforming due to an intrusion into the front setback.
4. The proposed structure will not extend any further into the front setback.
5. There will be a minor volumetric increase within the front setback.
6. There is no change in use.
7. There was no objection from abutters.
8. Therefore, the proposed addition will not be substantially more detrimental to the neighborhood than the existing nonconformity.
Bruce Drucker moved the Findings of Fact; seconded by William Nicholson; passed 5-0. Bruce Drucker moved to grant the Special Permit based upon the Findings of Fact; seconded by William Nicholson; passed 5-0.
7:28 pm
07-37 Caulfield, 1500 State Highway, Map 30, Parcel 29: Appeal from Person Aggrieved (MGL Ch. 40-A, S.8) Appeal the Building Inspector in regards to rear property line. Attorney Sarah Turano-Flores represented the applicant. The Board consisted of Trevor Pontbriand, Bruce Drucker, William Nicholson, Manny Heyliger, and Don Palladino. Building Inspector Paul Murphy had sent a letter to Caulfield on September 11, 2007 directing him to remove all equipment and supplies past the rear (north) line of the building. Turano-Flores stated Caulfield had obtained a Special Permit in 1993 to operate his automotive repair shop and that there is a difference of opinion regarding Condition #3, which refers to parking and storage on the north side of the
building. She produced a site map approved by the ZBA, dated 02/18/93, identifying “no parking” and “no storage” areas highlighted in red ink. She produced a site plan identifying the three spaces directly behind the building and a site plan which Building Inspector Murphy outlined, showing the entire north side of the property as no parking. She also read Condition #3 of the ’93 Special Permit regarding parking and outside storage on the north side of the building. The applicant interprets the “no parking” to consist only of 3 parking spaces directly behind the building. Abutter Pam Poindexter stated she feels the entire north side should be interpreted as no parking, and not just behind the building. Richard Mason, abutter, stated it was described as a buffer zone between the residents and the business operation. Turano-Flores stated a complaint had been lodged in 1998 with Building Inspector
Staley regarding parking, and Staley determined it was only for the three parking spaces directly behind the building on the north side. She questioned the three “X’d” parking spaces on the left side of the building, located on the west side of the property, as no parking spaces identified in the approved site plan dated 02/18/93. The condition references only the north side, not the west side. There was discussion regarding not filing the appeal within 30 days.
Pontbriand stated the Decision dated 02/25/93 is not clear and feels the reference to the north side of the building should serve as a buffer zone between the service station and the residents. Torano-Flores doesn’t feel that is the correct interpretation, and that the direct abutter supports the proposed change in Condition #3. She stated Caulfield had previously violated the condition with the three parking spaces, but has since abided by the condition. She pointed out there are wetlands on the west side of the building and parking should be encouraged on the north side. Murphy stated he originally thought it was for perimeter buffering and did not have the original plan. He interpreted the condition
that there be no parking or storage on the north side of the property. Robert Hankey, who attended the 1993 meeting, stated the condition covered the entire north side. Bruce Drucker moved for Findings of Fact:
1. The applicant has been operating a motor vehicle repair shop at 1500 State Highway since 1993, pursuant to a Special Permit dated 02/25/93.
2. The 02/25/93 Special Permit provides in Condition #3 that “there is to be no parking or outside storage on the north side of the building as indicated on the plan”.
3. On 07/31/07, the Building Inspector issued a letter to the applicant “requiring that all storage be relocated off the northerly property line and out of the rear line setback”
4. On 09/11/07, the Building Inspector issued a letter to the applicant “requiring no parking or outside storage be located past the rear line of your building”
5. On 10/18/07, the applicant filed this petition under MA G.L. 40A, section 8, as a person aggrieve by the Building Inspector’s 09/11/07 letter.
6. The Building Inspector is entitled to exercise reasonable discretion in interpreting and applying the conditions of the 02/29/93 Special Permit.
7 At various times, the applicant has utilized some of the area on the north side of the building for parking and storage.
Trevor Pontbriand moved the Findings of Fact as stated so far; seconded by Don
Palladino; passed 5-0.
Bruce Drucker moved the following finding:
1. The Building Inspector abused his discretion in his letter of 09/11/07 by requiring that there be no parking or outside storage beyond the rear line of the building. No Second.
Bruce Drucker requested to rephrase the finding:
1. The Building Inspector was in error in his 09/11/07 letter requiring that no parking or outside storage be located past the rear line of the building. No Second.
Trevor Pontbriand moved for the following Finding:
1. The Zoning Board is in support of the Building Inspector’s letter dated 09/11/07.
Pontbriand moved the Finding of Fact; seconded by Don Palladino; passed 4-1.
Pontbriand moved that based upon the Finding of Fact vote, the application for an appeal of the Building Inspector is denied; seconded by Don Palladino; passed 5-0.
8:15 pm.
93-02 Caulfield, 1500 State Highway, Map 30, Parcel 29: Application to amend Special Permit 93-02 by removing Special Condition #3 which states “there is to be no parking or outside storage on the north side of the building as indicated on the plan.”. The Board consisted of Trevor Pontbriand, Bruce Drucker, William Nicholson, Manny Heyliger, and Don Palladino. Attorney Sarah Turano-Flores represented the applicant and stated the applicant is requesting to remove Condition #3 entirely. Due to the Wetland Protection
Act, the wetland on the west side of the property has eliminated the original parking spaces on the west side of the building. The Conservation Commission requested emergency action be taken due to the drainage on the property, and Emily Beebe worked with Caulfield to put in drainage, vegetation and fencing. The direct abutter has written a letter in support of allowing parking and storage. Letters of objection to changing or eliminating Condition #3 were received from Joseph and Ann Marie Sharp, Kimberly Drew, Michael Walczak and Harriet Samuelson, two additional letter’s from the Sharp’s, and Robert Peacock. Richard Mason, abutter, stated there are a large number of boats being stored on the property, so the argument for additional parking spaces seems moot. Pam Poindexter, abutter, feels her property is devalued due to the parking and storage, and will make it more difficult to
rent her property. She supports the business, but is concerned with the storage that is going on. She questioned how many parking spaces are needed to keep the auto shop in operation. She expressed concern with environmental issues. She stated there has been some adverse behavior by Caulfield when he blocked off some of Cassick Valley Road.. Patricia Elwell, abutter, feels the buffer is important, and the increased use of storage on Caulfield’s land makes the property look bad. Turano-Flores stated this application is only for condition #3 and not opening this up to increased or varying uses. There was a requirement under the original Special Permit how many spaces the business had to have; they are not looking for an increase, but looking for what they had originally applied for. She stated the traffic on Cassick Valley Road was running on Caulfield’s property and he allowed people to use his property to drive
on. Drucker questioned the timeframe of changing a condition and where is the Board’s authority to change the conditions and how would this affect other Special Permits? Turano-Flores responded there is a change in circumstances due to the wetlands which eliminated some of the parking areas. There was further discussion regarding the Board’s authority to change, delete, or modify conditions. She stated circumstances for the buffer has gone away because the immediate abutter is not objecting to parking / storage, and the wetlands prohibit parking on that portion of the property. Pontbriand requested a new parking design plan and requested the applicant stake out where the parking spaces were lost. Drucker asked Turano-Flores to identify the area under the law where it gives the Board authority to make changes to Condition 3. Pontbriand moved to continue to January 24, 2008; seconded by William Nicholson; passed 5-0.
9:00 pm
07-41 Coser/Balsh (Captain Higgins Restaurant), 250 Commercial St., Map 21, Parcel 106, Application for a Special Permit under WZB 6.1.1 to increase the use by adding roofing over decking, build walk-in refrigeration unit, and build a second floor deck. The Board consisted of Trevor Pontbriand, Bruce Drucker, William Nicholson, Manny Heyliger and Roger Putnam. Attorney Ben Zehnder represented the owners of the property, Coser and Balsh, and Dana Hallman and Steve Swain, property developers, came to
the table. Hallman stated he operates and owns the Roobar restaurant and wants to do extensive renovations, including the additional outside seating to take advantage of the season. Zehnder stated the restaurant has not operated in two calendar years, and Building Inspector Murphy advised him this is not an abandoned establishment. Some of the increases will be in the setbacks. Zehnder stated there have been a number of permits issued to other restaurants in the past which included structural changes, increased space and kitchens. None of the structure is in the flood zone according to Surveyor Tim Brady. A letter from the Planning Board was read into the record. David Rowell stated there will be an increase in lot coverage and it is prohibitive and feels the bylaws need to be changed and wants restaurants to be included in the central district. Trevor Pontbriand questioned the application coming in under WZB 6.1.1 and Zehnder stated the
use of the property will not be increased but the area increased. Building Inspector Murphy stated he was not comfortable issuing a permit and that is why he advised them to come to the ZBA. Drucker stated this is a commercial structure, and doesn’t feel we have the authority to increase the non conformity. Zehnder stated 40 A, Section 6, gives permission to make structures and uses changes. Drucker disagreed and stated we have to go with Wellfleet Bylaws. Putnam stated this is in the Central District and in the ACEC. Zehnder referred to other restaurants that have made changes. 40A Section provides protection to preexisting, nonconforming structures, including commercial uses. Zehnder requested a list of what the Board has concerns with. Zehnder stated if you do not increase the number of seats, but increase lot coverage, the Board can
still make a decision. Drucker concerned with increase in use (decking on second floor). Pontbriand expressed concerns in an increase in lot coverage and use of land as defined as lot coverage. Zehnder stated there are uses of land that do not have structures on it. Swain stated they want to make the building look better. Putnam stated he feels this is an increase in use and stated he would like to see less decking. Nicholson has concern with legal issues. Further discussion took place regarding what bylaws / regulations this application should come under. Jeffrey Stewart stated the ad was incorrectly advertised. Roger Putnam motioned to continue to January 24, 2008 and readvertise; seconded by Trevor Pontbriand; passed 5-0.
Pontbriand moved to adjourn at 10:10 pm; seconded by Bruce Drucker; passed 7-0.
Other Business
Respectfully submitted,
Christine A. Bates
Committee Secretary
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