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Minutes of Zoning Board of Appeals Public Meeting
Date: February 28, 2008
Time: 7:00 PM
Attendees: Trevor Pontbriand, Bruce Drucker, Roger Putnam, Manny Heyliger, William Nicholson, Don Palladino, Vern Jacob and Christine Bates, Committee Secretary
Regrets: Robert Hankey
Chair Pontbriand called the meeting to order at 7:00 p.m. and gave an overview of the hearing process.
Public Hearings:
7:05 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.” (Cont’d from 01/24/08). Sarah Turano Flores represented the applicant. The Board consisted of William Nicholson, Manny Heyliger, Trevor Pontbriand, Roger Putnam, and Don Palladino. Chair Pontbriand read the meeting minutes of 01/24/08 and summarized MGL Ch. 40A, Section 14 regarding modifications of existing Special Permits. Attorney Turano-Flores reiterated the changes in
the circumstances from 1993 and stated the application was published, advertised, and abutters were notified. A new site plan was presented to the Board, identifying a total of 27 parking spaces which resembles the parking allowed in the original Special Permit. An e-mail from the Sharps was read stating they objected to the new site plan and Pam Poindexter, an abutter spoke in opposition to the application. Brian Lavalle of the audience stated the issues could be resolved with planting of trees or vegetation. Building Inspector, Paul Murphy, stated after seeing the plan, has since changed his mind from the time he wrote his letter of September 11, 2007. Jessica Hearn, owner of a condo, questioned the entrance of Cassick Valley Road because it appears to be on Caulfield’s property. Chet Lay stated the road was built incorrectly and the road needs to be relocated at the expense of the owners in the area because it is a private
road as recorded in the Registry of Deeds. Discussion took place regarding the commercial operation and being sensitive to the residents. Pontbriand stated the Building Inspector’s new interpretation is clearer and it would eliminate any issue with the Board. After identifying parking spots which were to be eliminated, there was discussion if parking could take place close to the rear property line. Turano-Flores stated they did not want more restrictions put on the property and the direct abutter to the north supports Caulfield’s proposal. Flores stated Caulfield stores his boat on the property. Trevor Pontbriand moved to amend condition #3 of the original special permit:
Amended Condition #3: There is to be no parking or outside storage on the north side of the building as indicated on the plan entitled “ Parking Plan of Land in Wellfleet MA made for Frank Caulfield showing existing conditions and proposed parking dated February 28, 2008, Plan #2008-24 as prepared by Slade Associates; seconded by Roger Putnam. The amended condition #3 passed 5-0.
8:10 pm
08-04 Replansky, 420 Chequessett Neck Rd., Map 19, Parcel 45, Application for a Special Permit under WZB 6.1.1 to construct a deck. The Board consisted of Trevor Pontbriand, Bruce Drucker, Don Palladino, William Nicholson and Vern Jacob. Andrew Parkington represented the applicant and stated he has an existing permit to renovate the cottage and they want to add an additional 8 x 16 foot deck to the already existing deck. Pontbriand stated a surveyed site plan was not submitted to accurately identify the dimensions of the deck and location of the setbacks. Trevor Pontriand moved to continue to 03/13/08 so that the applicant could provide the
site plan; seconded by Bruce Drucker; passed 5-0.
8:25 pm
08-05 Balch / Case, 250 Commercial St., Map 21, Parcel 106: Application for a Special Permit under WZB 6.1.4 to re-establish preexisting, nonconforming restaurant use. Ben Zehnder represented the applicant. Roger Putnam recused himself from the hearing. The Board consisted of Trevor Pontbriand, Bruce Drucker, Don Palladino, Manny Heyliger and William Nicholson. Jeanne Coser, daughter of Betty Balch, the owner of the property, and Attorney Ben Zehnder gave the history of Special Permit 07-41 which was granted on 01/24/08 and has since been appealed. Zehnder reminded the Board there was discussion regarding abandonment in
connection with Special Permit 07-41 and he referred to the Building Inspector’s letter of 10/17/07 stating the property was not abandoned. He referenced to WZB 6.1.4 that reasonable efforts were made to reestablish the use. Zehnder presented an affidavit from Jeanne Coser dated February 28, 2008. Coser stated the last use of the restaurant was approximately September 14, 2004. Zehnder gave an overview of the contents of the affidavit, showing a timeline of activity on the property. Dana Heilman, the individual purchasing the property, stated he had contact with Jeanne Coser from the summer of 2005 and had kept abreast of the activity of the property. The evidence of trying to protect the use of the property included the design for a new septic system, renewal of liquor license in 2005, renewal of business insurance and worker’s compensation in 2005, fire systems inspected, water turned on and leaks fixed and repair of the ice
machines. Due to fire system requirements and the reconstruction necessary, the family decided to put the restaurant up for sale in July 2005. At the end of 2005 the business license for 2006 was applied for and paid for. Between July 2005 and August 2006, East Cape Engineering secured approvals from the Conservation Commission and the Board of Health for the proposed septic system. An
e-mail was written to the Building Inspector by Coser on 05/31/06 asking whether the use of the restaurant could be continued and Paul Murphy responded on 06/01/06 that they had not effected any abandonment of the restaurant.
Letters of support from Brad and Lorna Kaplan and Mac Hay were read into the record. Attorney Jack McCormack, who filed the appeal on behalf of Central Wharf Associates, LLC in Special Permit 07-41, stated restaurants are not allowed in the Central District and gave his overview of the strict requirements of the bylaws. He stated there was no reason the property owner didn’t continue to use the restaurant because the existing septic could still have been used to preserve their pre-existing, nonconforming use. Shannon Betram, a Wellfleet resident, supported the project. Zehnder identified the owners of Central Wharf Associates, LLC. Discussion took place regarding the positions Coser and
her brother held in Captain Higgins Seafood Restaurant, Inc. and their efforts to get the various licenses. Zehnder stated alternative uses such as condominiums were mentioned by the engineer during the septic design. Zehnder pursued the discussion about the definition of abandonment and discontinuance.
Drucker stated the restaurant use was discontinued but not abandoned. The Board then discussed mitigating factors of what the owners had done and what they had not done.
Trevor Pontbriand moved for Findings of Fact:
1 The property has operated as a restaurant since approximately 1943/1944.
2 The use as a restaurant is nonconforming due to its not being allowed in the Central District.
3 The property was last used as a restaurant in September 2004.
4 The use was not abandoned because there was no intent to abandon as evidenced by the Coser affidavit.
5 The use as a restaurant was discontinued as of September 2004 as defined under WZB 6.1.4..
6 The property has not been used as a restaurant since September 2004 through the date of this hearing.
7 The applicant has provided ample evidence that they intended to sell the property as a restaurant.
8 During the period between September 2004 and September 2006, the applicant applied for a liquor license, had the property fire inspected, retained engineers to apply for a septic system to enable a transfer of the property, and obtained a business license in 2005 for the year 2006. In addition, the applicant had certain refrigeration equipment repairs and repairs made on the roof.
9 The applicant requested an opinion from the Building Inspector regarding the status of the restaurant’s use on May 31, 2006.
Trevor Pontbriand moved the Findings of Fact as written; seconded by William Nicholson; passed 5-0.
Trevor Pontbriand moved that the applicant/owner made a good faith effort to reestablish the use within two (2) years based upon the above Findings and submitted evidence; seconded by William Nicholson; motion failed 3 – 2 and the application fails.
Zehnder reiterated the efforts of the applicants and asked the Board to reconsider; Dana Heilman stated it was important to the owners that the restaurant was going to be run well; and Attorney McCormick stated the Board made a decision and should consider the case closed.
9:45 pm
08-03 Bezio, 135 Marven Way, Map 21, Parcel 25, Application for a Special Permit under WZB 5.3 to build a horse stable for private use. The Board consisted of Trevor Pontbriand, William Nicholson, Bruce Drucker, Vern Jacob and Roger Putnam. Popntbriand explained to the applicants the ZBA can only grant a permit after they receive approval from the Board of Health. The Bezio’s stated they want to have two horses, the property is over 6 acres, and 1.5 acres is upland. The stable will be above the 100 foot tide and will be located over 100 feet from the well. Letters of objection were read from the Fowler’s, Durkee’s, the
Rae’s, Ms. Carroll. Bruce Drucker moved to include the remaining letters as part of the permanent file, noting that they are all in opposition to the petition: Frank Dunau, Amy Davis, 2/12/08, 131 Marvin Way; Richard and Janice Gallivan, 2/12/08, Kim Walker, 2/18/08, executor of estate of 105 Marvin Way; Robert and Marsha Dubeau, 02/18/08 and 02/19/08, 40 Richmond Lane; seconded by Trevor Pontbriand; passed 5-0.
The following people spoke in opposition to the proposed stable: Richard Gallivan, 110 Marvin Way, Frank DuNeau, Karen Cooper on behalf of her mother who is an abutter, Robert DuNeau, and Steve Durkee. All expressed concern for the neighborhood regarding the smell, well water quality, lighting, if areas would be clear cut, a covenant written over 30 years that states only household pets can be in the neighborhood, concern for the wetlands, devaluing the homes in the neighborhood, and the area should be kept residential.
The Board requested the applicant provide a site plan drawn by a certified engineer identifying setbacks, well location, and location of the stable and fencing. Trevor Pontbriand moved to continue to March 13, 2008; seconded by Roger Putnam,
passed 5-0.
10:15 pm
08-06 Danforth, 5 Holbrook Ave, Map 21, Parcel 105: Appeal from Person Aggrieved (MGL Ch. 40-A, S.8) of Building Inspector regarding size of deck in front of dwelling. The Board consisted of Trevor Pontbriand, William Nicholson, Bruce Drucker, Vern Jacob, and Don Palladino. Danforth stated it is a front porch and she built it the same size as it was before construction started on her house and the Building Inspector advised her she had to build it code compliant. She stated she needs access to the septic tank and wants a removable stair and removable walkway to cover the septic leach field. The posts that support the steps would be placed on the septic so she wouldn’t have to dig new holes. Paul Murphy, Building Inspecator, stated Danforth raised her
house and went ahead and built a “landing” which is too big. Drucker stated she violated the code by building it without a special permit. After further discussion regarding the need for a Special Permit to enlarge the porch, Danforth requested to withdraw her appeal without prejudice. Bruce Drucker moved to accept the withdrawal; seconded by Trevor Pontbriand; passed 5-0.
Other Business
Trevor Pontbriand moved to adjourn at 10:35 pm; seconded by Manny Heyliger, passed 8-0.
Respectfully submitted,
Christine Bates
Committee Secretary
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