Minutes of Zoning Board of Appeals Public Meeting
Date: April 30, 2008
Time: 6:00 PM
Attendees: Vice-Chair Bruce Drucker, Vern Jacob, Robert Hankey, Roger Putnam, William Nicholson, Don Palladino and Christine Bates, Committee Secretary.
Regrets: Manny Heyliger and Trevor Pontbriand,
Vice-Chair Bruce Drucker called the meeting to order at 6:00 p.m. Drucker gave an overview of the hearing process, noting there will be four hearings. He explained the owner has filed a motion to dismiss three of the appeals (the Cape Cod National Seashore, the Gilson’s, and the Bound Brook Homeowners). Drucker stated the Board will adjudicate whether or not the permit was properly issued for the construction of a new house on the property. All four cases will be opened, allowing each applicant to make a presentation, with a follow up of questions from the Board and allowing Blasch’s Attorney, Ben Zehnder to make statements. He stated it will take four (4) affirmative votes to sustain any application. After hearing all parties, the Board will take comments from the
audience. He explained we may have to continue to Thursday night if there is no decision.
Public Hearings:
08-10 Gilson, Appeal from Person Aggrieved under MGL Ch. 40-A, S.8 regarding property located at 1440 Chequessett Neck Rd., Map 18, Parcel 7. An e-mail addressed to Attorney Ben Zehnder from the applicant dated 4/29/08 stating they were going to withdraw without prejudice was read into the record. An e-mail addressed to Christine Bates dated 04/29/08 was read into the record stating their official notice to withdraw the appeal. Robert Hankey moved to accept the withdrawal without prejudice; seconded by Roger Putnam. Passed 6-0.
Attorney Ben Zehnder noted that he filed a motion to dismiss Case 08-09. The board acknowledged the motion and will take it under advisement.
08-09 Cape Cod National Seashore, Appeal from Person Aggrieved under MGL Ch. 40-A, S.8 regarding property located at 1440 Chequessett Neck Rd., Map 18, Parcel 7. The Board consisted of Bruce Drucker, Vern Jacob, William Nicholson, Robert Hankey and Roger Putnam. Superintendent George Price and Lauren McKean represented the National Seashore. Price stated he does not consider the motion to dismiss valid as the National Seashore is an abutter and as such, can appeal as a person aggrieved. Price gave an oral review of his brief.
The Board asked if the park considered this a pre-existing, non-conforming property and they responded yes. There was discussion regarding the sensitivity of the area. McKean reiterated they would like additional environmental reviews done on this property because of detrimental affects from beach erosion and the movement of the sands once the dwelling is in place; however she is not aware of this being a requirement for any past hearings or future development. Drucker questioned where this type of review is located in the local bylaws and McKean referred to Section 3.2, citing the National Seashore Park objectives. Drucker stated he could not locate a bylaw authorizing the Zoning Board of Appeals to order a review once a building permit is issued for a conforming building. McKean feels
the project as a whole should be reviewed by the Zoning Board and then the project should be reviewed for the erosion issues. Price stated the J. Stephen Bjorklund & another trustees v. Zoning Board of Appeals of Norwell, 450 Mass. 357 (2008) reflects the reason the National Seashore wants to have this case be heard by the Zoning Board of Appeals because there was an increase in size. Drucker responded that he has to interpret our local bylaws. Price stated town citizens as well as the National Park are concerned with the proposed structure. The current structure was built in 1984 which received a permit and was approved by the park. Price stated there were math errors according to the newspapers and the owners added additional square footage to the dwelling that the park was not aware of. Drucker asked if the certificate of suspension is still in effect at this time, and the answer was yes. McKean stated the Bjorklund case is
relevant because the proposed dwelling is three times larger in mass than the original structure.
Drucker questioned what kind of review did they want from the ZBA, and McKean stated she wanted a normal ZBA review to determine if it is more detrimental to the neighborhood and how it may be adjusted to be more in conformance with the neighborhood. Robert Hankey stated an environmental review is not within the scope of the ZBA and McKean stated the applicant should provide the information. Nicholson asked what would trigger this as a special permit versus a matter of right. Price stated this is a nonconforming lot and there is a volumetric increase which should have a ZBA review and he believes the character of the seashore district in the town of Wellfleet needs to be protected. Nicholson stated there is no legal basis for that.
Attorney Zehnder introduced the parties he is representing. He stated the Board needs to determine if the building inspector properly and lawfully issued a permit. He stated the laws are very clear. He referred to Bylaw 6.1.5.2 “if the structure will continue to conform”. He requested a copy of a land court document dated 1952 be added to the file, identifying the original lot 5 and lot 6. It had an area of 3.091 acres when it was created and there were no bylaws at that time. Lot 6 was deeded out in December 1952 identifying that this was held in single ownership. The Seashore agrees this is a pre-existing non-conforming lot. The proposed house that is designed is conforming. It received approval from the Conservation Commission, the National
Seashore reviewed the project, it received MESA review, and conditions were set at the Conservation Commission hearing. He stated the Building Inspector made a determination to issue the building permit because all setback requirements were met, the height requirements were met, and the calculations of the lot coverage met the requirements. He stated the district objectives don’t control how and when people can build a house, but explain why we have regulations. The guidelines talk about the use of the land and that is not a determination the Building Inspector should make. Zehnder stated Price raised the issue of this house having a history of being nonconforming. He stated when the National Seashore Act was created, the Secretary of the Interior created Federal Minimum Zoning standards and when a town creates a bylaw, if they are consistent with the Federal minimum zoning standards, the Seashore cannot take away improved properties.
If there are bylaws that are inconsistent with the minimum Federal standards, then the seashore can come in and take away the Certificate of Suspension. The 1961 guidelines have not been changed. He stated if the Blasch’s had done something illegal, the seashore could take the property away in eminent domain. Zehnder stated the house conforms to the bylaws and the Building Inspector was authorized to issue the permit. The Bjorklund case is a state regulation; however, in 1993 the town of Wellfleet voted to allow dwellings to be built on a nonconforming lot if they are within the setbacks. Drucker and Zehnder reviewed bylaws 6.1.5, 6.1.5.1 and 6.1.5.2 and 6.1.5.2(a) and 6.1.5.2(b). The case is being kept open.
Attorney Ben Zehnder motioned to dismiss Case 08-10. Drucker stated the Board acknowledged the motion and will take it under advisement.
08-10 Bound Brook Homeowners (Williams, Hurwitz, Dunn, Clayton and Miller), Appeal from Person Aggrieved under MGL Ch. 40-A, S.8 regarding property located at 1440 Chequessett Neck Rd., Map 18, Parcel 7. John Taylor Williams represented the Bound Brook Property Association. He stated each person signed the application so they are individuals appealing. He objected to the Blasch’s being referenced as resident owners because he believes the property is owned by a corporation. He gave a history of how the town was transformed by the National Park and how the park ran out of money and time. He stated a new bylaw is going to be
forthcoming and questioned if we want to let a house be built now. He stated the view will be detrimental, the house will be 12 times larger than what was allowed originally and after referencing bylaw 3.2, he stated the proposed house is not what the park wants and the case should go back to the Building Inspector and the Conservation Commission. He stated the guidelines have always been dependent upon the town and the park working together. He stated the Building Inspector publicly stated he did not look at anything other than the bylaws.
Nicholson asked Town Counsel if we have the right to send something back to the Building Inspector in regards to 3.2. Betsy Lane referred to chapter 40A regarding the powers of the ZBA, and she interprets it to mean there is no remand to the Building Inspector and the Board has the power of the Building Inspector and can affirm or overturn the Building Permit. Attorney Williams repeated that the Building Inspector did not consider the district.
Betsy Lane again stated the Zoning Board has the power of the Building Inspector. Drucker stated we would have to make a determination if the Building Inspector has to consider 3.2. Williams reiterated there are 4 districts in the town and the Building Inspector needs to look at it. The case will be kept open.
Attorney Zehnder responded to Williams stating that when you look at the district objectives, it refers to the use regulations. He doesn’t think the Building Inspector has a responsibility to read and interpret 3.2. It would be arbitrary for the Building Inspector to determine what is allowed and what is not allowed using 3.2. This bylaw doesn’t give guidelines on setbacks, etc.
08-14 Wellfleet Board of Selectmen, Appeal from Person Aggrieved under MGL Ch. 40-A, S.8 regarding property located at 1440 Chequessett Neck Rd., Map 18, Parcel 7.
Ira Wood stated they have not met as a Board since the night they decided to send in the application. They want all sides to be heard, but want to make sure all bylaws and regulations are reviewed clearly. They are submitting their application on the papers without argument.
Bruce Drucker opened the hearing for comments from the audience. Dale Donovan asked what was in the letter received from the seashore in 1984 from Olsen (8/21/84) approving the drawings for the house. Bruce Drucker read the letter. Donovan asked if the current supervisor’s letter is attached to the current building permit. Bob Costa stated he was on the ZBA in 1984 and the superintendent at that time stated the guidelines were not enforceable and was reluctant to give any advice to the ZBA. He referred to the character of Wellfleet, and he stated he was happy to hear Town Counsel’s statement that we have a legal right to act as the Building Inspector.
Peter Watts stated if this house were built it would build a ridge between the town and the park. The location of the property is a very visible and fragile piece of land and that every teardown in the National Seashore should be sent to the ZBA. Kathleen Bacon, resident, is concerned about the pilings required to anchor the house on the dune, the sand movement, and the upcoming Herring River Restoration project. Dana Franchitto, resident, stated even though he will not see the house, he doesn’t want to see the house built. He doesn’t feel land is a commodity and the property should be preserved. Irene Deitch, resident, stated the land is irreplaceable and asked people to support the park, the views, etc. Griswold Draz, a resident in the park, gave his point of view
regarding private property interest and community interest and the fact that the town and people have agreed to preserve the character of the park. Tom Reinhart requested the Blasch’s to redesign the house and make it smaller. Barbara Gray spoke as an individual and stated this should come before the ZBA. She is concerned that work has already started on the property. Helen Miranda Wilson urged the board to give this a closer look and to consider the scenic value of this sight.
Drucker gave the appellants another opportunity to discuss their concerns. George Price gave a history of the nature of the National Park system and stated Cape Cod was unique because it included homes within the Park. He stated he would like to talk with prospective owners and work with them regarding the size of the houses. Attorney Williams stated there were goals when the National Seashore was put in, and this project has too much volume. Attorney Zehnder agreed with George Price that when the seashore was created it was a difficult undertaking because the original property owners were afraid of losing their property. If people misuse the property within the Seashore, the park can take over the property. The town said if you build a house that is conforming, you could build by
right. He reiterated that this project is within all the bylaws and the ZBA has to stay within the laws as they are written now. Lauren McKean referred to Section 3.2 and she then referred to the federal regulations which are in the Wellfleet Zoning Bylaws.
Drucker asked the Board to go into closed session. Putnam, Hankey, Nicholson and Jacob agreed to continue to May 1, 2008 in order to review paperwork and bylaws. Putnam asked Town Counsel to reiterate her previous statement:
Betsy Lane stated the Board’s powers per Chapter 40 state when reviewing the actions of the Building Inspector, you have the same powers he does to apply the zoning bylaws as you find them. It may be a different interpretation than the laws and the Board should take the facts and apply those laws to the facts.
Lane asked about the construction in 1984 and referred to the legality of the current house because it was made larger than what was permitted or approved. She recommended the Board determine if the current structure is still lawful. She stated the advice the town received was prior to the determination of the Bjorklund hearing. That case established a new way of looking at the nonconforming nature of a single residence. Our bylaw is different than Norwood’s. Bylaw 6.1.5.1 is “by right” whereas, 6.1.5.2 requires a special permit. One refers to the Building Inspector and one does not. Then when you look at the subsections (b)where there are differences “an increase in non-conforming nature “, the other states “after the alteration will not
continue to conform”, you have to ask yourself if they are the differences without a distinction. She said the district should be considered when there is a special permit, and asked the Board to look at the Bjorklund case with reference to 6.1.5.2 or only to 6.1.5.1 She stated the Board needs to determine if this is by right or by special permit.
The attorney for the landowners has made reference to civil rights liability. She stated the board consists of volunteers and stated as long as you stay within the scope of your powers, it does not create torte claims act or civil liability.
Drucker stated the hearings will continue to 5/1 starting at 6:00 pm. He recommended the board come back with findings. Ms. Lane will not be available for the hearing tomorrow. Aerial photographs of the existing site were reviewed by the Board.
Attorney Zehnder stated that the path of the case to this board may have been improper. He stated the Civil Attorney present and the owners of the property are not suggesting the Board is unable to hear this case. Ms. Lane sat at a town meeting and advised the selectmen. He was told she advised the selectmen on filling out the form. Zehnder stated Lane gave information to the board which did not answer the question clearly as to what their role is and offered alternative ways on how to override the Building Inspector. Zehnder stated he is offended by this action. Drucker stated the Board can accept advice or reject it.
Drucker asked if there had been any discussion between the home owner and the seashore and would it be helpful to have additional time and Zehnder stated no. Zehnder stated there has been no request to alter the project.
Drucker moved to continue case 08-09 (National Seashore) to May 1, 2008 1 at 6:00 pm; seconded by Nicholson; passed 5-0.
Drucker moved to continue case 08-10 (Boundbrook Homeowners) to May 1 at 06:00 pm; (the homeowners stated they may not be able to attend and Drucker stated two days were allocated for these hearings. He stated there are time requirements to render a decision. Williams stated they want to be recognized as individuals in the appeal). Drucker moved to continue case 08-10 (Williams, Jencks, Hurwitz, Dunn, Clayton and Miller) to May 1, 2008 at 6:00 pm; seconded by William Nicholson; passed 5-0.
Drucker moved to continue case 08-14 (Board of Selectmen) to May 1, 2008 at 6:00 pm; seconded by Vern Jacob; passed 5-0.
Roger Putnam moved to adjourn at 8:50 pm; seconded by William Nicholson; passed 6-0.
Respectfully submitted,
Christine A. Bates
Committee Secretary
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