Minutes of Zoning Board of Appeals Public Meeting
Date: April 24, 2008
Time: 7:00 PM
Attendees: Vice-Chair Bruce Drucker, Vern Jacob, Robert Hankey, Roger Putnam, Manny Heyliger, , William Nicholson, Don Palladino and Mary Rogers, Committee Secretary.
Regrets: Trevor Pontbriand,
Vice-Chair Bruce Drucker called the meeting to order at 7:00 p.m. Drucker gave an overview of the hearing process.
Public Hearings:
7:05 p.m.
08-03 Bezio, 135 Marven Way, Map 21, Parcel 25, Application for a Special Permit under WZB 5.3: Build stable for private use (Cont’d from 02/28/08). The Board consisted of: William Nicholson, Bruce Drucker, Vern Jacob, Roger Putnam and Don Palladino. Drucker read the minutes of the February 28, 2008 to review the case. The case had been continued twice.
Nicholson read into the record the Board of Health conditions as emailed 4/18/08:
1.) A silt barrier will be placed at the 100’ coastal bank line to control erosion.
2.) The paddock fence is to be set back 5 feet from the south east side with plantings outside of the fence to provide a visual screen.
3.) The stable is for personal private use only with no commercial boarding.
4.) If any additional horses come to the property for visitation, the applicant shall provide prior notice to the Health Department.
5.) A manure management plan is to be submitted to the Health Department.
6.) The permit is subject to annual review.
7.) There shall be no access to the beach.
Mr. & Mrs. Bezio were present to explain their reasons for having horses on their property. Mr. Bezio stated that the covenants of the subdivision that prohibited large farm animals had expired. Mr. & Mrs. Bezio addressed questions from the Board about the route out of the property for horseback riding; the intended number of horses (2); the size and location of the fenced in corral; setback from the paving of the Marven Way cul-de-sac, and expiration date of the covenant (2006).
Bruce Drucker read into record the abutters’ letter of opposition to the Special Permit for horses dated 3/16/08, signed by Kim Walker (105 Marven Way), Phyllis M. Smith (addressStreet60 Marven Way), Kathleen M. Smith (addressStreet30 Nauhaught Bluff Rd.), Dale C. Smith (30 Nauhaught Bluff Rd.), Robert & Marsha DuBeau (40 Richman Lane), Steven Durkee (125 Marven Way), Martha Carroll (25 Richman Lane), Mollie Ann Steele (45 Marven Way), Marta R. Wilson, (45 Marven Way), Lois & Ramon Rustia (2507 State Highway), Paula Richman (15 Richman Lane), Campbell C. & Nancy Rea (35 Pine Point Way), Frank R. Dunau, Amy Davis, Richard Gallivan & Janice Gallivan (130 Marven Way), and Jean O. Cooper (59 Pine Point Way). The letter included the ZBA cases of approval of Special Permits for stabling horses in
neighborhoods with no abutter objections. Attached to the letter was a Penn State document on manure management.
The neighbors spoke on the inappropriate setting for horses in their neighborhood; the intent of the original covenant for the character of the neighborhood; and the perception of fencing as part of the barn’s structure.
In response, Mr. Bezio discussed aquaculture as a form of agriculture. He said that Wellfleet was considered a rural community and horses were in keeping with a rural community.
The ZBA discussed aquaculture, neighborhood opposition to the stable, access to Route 6 and the trails, Special Permits for horses, the nature of covenants, and the close proximity of the horses to neighbors and the shellfishing area. Drucker explained the process of withdrawing a petition without prejudice before the ZBA voted on a case. Mr. & Mrs. Bezio conferred with each other and withdrew their application.
Bruce Drucker moved to withdraw the petition without prejudice.William Nicholson seconded and the motion to withdraw without prejudice carried 5-0.
7:40 p.m.
08-12 Palmer / Chang, 100 Pine Point Rd., Map 21, Parcel 63: Application for a Special Permit under WZB 6.1.5 to alter a pre-existing non-conforming residential structure which includes demolishing a barn and rebuilding a new barn. The Board was set as Bruce Drucker, William Nicholson, Robert Hankey, Vern Jacob and Manny Heyliger.
Architect Sibel Asantugrul and the applicant Julian Chang came forward and distributed a site plan signed and stamped by Slade Associates. Julian Chang explained the purpose of the project. Because the old barn was in poor and unsafe condition, he would like to reconstruct the barn and has the permission of the Historic Review Board. The new structure is close to the original in size although it is higher and has an increase in volume. There is also an old pre-existing addition to the main house that the Historic Review Board also approved for reconstruction. The existing 3-bedroom count would remain the same. Putnam asked whether the creation of Alves Rd. created the side setback non-conformity, which was unknown. Proposed alterations for the main house are within setbacks. The
Special Permit request is for a portion of the barn/garage. There will be less of a setback because of increased volume with a covered porch in the new barn/garage
Drucker asked about use of the building, which Asantugrul said would be an artist’s studio with a bathroom. Jacob asked about the demolition permit, which Asantugrul already has. Manny Heyliger asked about the height of the structure. She said it is less than 28 feet. ZBA had no further comments except to commend Asantugrul for her preparation for the hearing by providing the ZBA with a written description of the project.
Drucker moved for Findings of Fact:
1. The building designated as barn/garage is a pre-existing non-conforming structure built at an unknown time on property with a main house constructed sometime in the 1850s.
2. It is non-conforming due to intrusion into the setbacks of 20 ft. from addressStreetAlves Rd. side of the structure.
3. The barn/garage will be built in a similar style and size.
4. The structure has been approved by Historical Review Board.
5. There is no additional significant intrusion of the new barn/garage into side setback of about 20 feet.
6. There is no change in use.
7. There is no increase is use.
8. There are no objections from the abutters.
9. The proposed construction will not be substantially more detrimental to the neighborhood than the existing non-conformity.
William Nicholson moved the Findings of Fact as written. Vern Jacob seconded, and the motion carried 5-0.
Bruce Drucker moved to approve the Special Permit based on the Findings of Fact. Robert Hankey seconded, and the motion carried 5-0.
8:05 p.m.
08-13 O’Brien, 2207 State Highway, Rte, 6, Map 23, Parcel 317: Application for a Special Permit under WZB 5.3.2 to construct a 23’ x 16.5’ wood roof awning over patio seating area. The Board was set as Bruce Drucker, William Nicholson, Robert Hankey, Vern Jacobs and Roger Putnam.
John O’Brien came forward to explain his proposal. Mr. O’Brien explained that the roof would be a shed roof with a membrane and would provide protection from the elements for restaurant patrons in the patio area. He gave the dimensions of the roof. When questioned about seating, Mr. O’Brien said there were 66 seats for diners inside with 10 seats in a second area for a bar. Mr. O’Brien said that the ice cream service area would be outside. Mr. O’Brien said that he understood that the seating could not be increased and that the beer and wine license would not extend to the outdoor area. O’Brien said he intends to keep the lattice fencing as a barrier between the patio and the parking area.
Building Inspector Paul Murphy explained why he had referred the project to the ZBA. The restaurant is in a C2 District and is already a non-conforming use, he said.
Derrick Oliver, an abutter, spoke in opposition to the application. Mr. Oliver said he had some strong concerns about noise, lighting and traffic at the restaurant. He was concerned about a precedent being started with a roof over the patio and going into further expansion in the future. Oliver reported past noise from Eric’s Restaurant, including the outdoor seating area. From the floor, Jeff Stuart asked about “wood roof-awning.” Stuart said it has to be either a roof or an awning. He perceived a roof as an extension of use, which the ZBA had addressed in the past.
Mr. O’Brien said there had been no expansion to his knowledge. He said there would be 5 or 10 seats less in the patio area. The Health Inspector had listed everything Mr. O’Brien needed to do to bring the restaurant up to code, and he had complied. Mr. O’Brien said the addition is on the highway side of the building and didn’t think that lighting would affect the neighbors. The outside area is basically for picking up ice cream but would accommodate short periods of sitting outside, he said.
The Building Inspector addressed Special Permits for outdoor seating. There is no service planned by wait staff to the outside. There would be no seating outside the fenced area. Mr. O’Brien said the ice cream would be located and served on the patio area. The Building Inspector Paul Murphy said that outside seating at the restaurant had been in practice prior to 1999.
ZBA considered increase in use; traffic flow of diners inside and the ice cream patrons outside; the number of parking spaces; the restaurant’s pre-existing use; and a wooden roof as an increase in use. Drucker said a fabric awning was a real awning, but the wood roof constituted an increase in use. This could lead to further enclosure, Hankey said. He also had concerns about parking. Drucker said he did not favor granting the Special Permit.
Vern Jacob asked if an awning would need a Special Permit. PersonNamePaul Murphy said that a fabric awning was a temporary item and could be installed by right. Mr. O’Brien said he could live with a fabric awning and withdrew his application. Bruce Drucker moved to withdraw the petition without prejudice. Robert Hankey seconded, and the motion carried 5-0.
Mr. Oliver said he still had concerns about noise, traffic and lighting.
Other Business
Drucker requested that the ZBA plan ahead for next week’s hearing. Drucker distributed an email he had drafted to the Town Administrator at the suggestion of other ZBA members renewing the ZBA’s request to have access to independent counsel. The Board approved sending the email and suggested emphasizing that the ZBA is convinced that it needs independent counsel. Drucker foresaw the possibility of continuances of the hearing because of the complex nature of the appeals. Drucker stated that he would not be available for the month of May if there was a continuance.
Drucker also said the ZBA should plan the order of the hearings. Palladino said independent counsel could give advice on this. Drucker’s chairmanship of the hearings also had to be determined since Trevor Pontbriand has recused himself and Drucker anticipates being away throughout the month of May.
Vern Jacob moved to adjourn. Bruce Drucker seconded, and the motion carried 7-0. The meeting was adjourned at 9:00 p.m.
Respectfully submitted,
Mary Rogers, Committee Secretary
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