Minutes of Zoning Board of Appeals Public Meeting
Date: May 1, 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. He reopened Case
08-09, 08-10, and 08-14 as appeals from Person Aggrieved under MGL Ch. 40-A, S. 8 regarding property located at 1440 Chequessett Neck Rd., Map 18, Parcel 7.
Public Hearings:
Case 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.
Case 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
Case 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.
Drucker read a letter dated May 1, 2008 from the Board of Selectmen requesting a continuation in order to consider whether or not to retain legal counsel in this matter. They need to discuss this at one of the Board’s regular meetings and requested a date certain in June.
Drucker read into the record a letter dated 3/06/08 from the Planning Board to the Selectmen regarding 1440 Chequessett Neck Road. The third paragraph is relevant to these hearings because Price solicited the opinion of the Planning Board with the interpretation of sections of the bylaws. The Planning Board stated they have no divergence of opinion from the Building Inspector’s decision to issue a permit for demolition and reconstruction
Applicants were allowed to make brief statements. George Price referenced Section 3.2 of the bylaws, the proposed changes to the bylaws, and to consider granting the continuation for the Board of Selectmen.
Attorney Williams also referenced Section 3.2 of the bylaws, adding that the Building Inspector did not look at it when he made the decision to grant the Building Permit.
Audience members made the following statements: the ZBA represents the town and should vote in accordance with Section 3.2 to protect the vista as suggested and cooperate with the National Seashore; Since 1984 the Town has had the obligation to consider both the park guidelines and interplay with the bylaws; since there are different rules and regulations, there is a need to protect the owners rights, however, because of the districts, it is important to protect the land in the National Seashore; In 1994 the Cape Cod National Seashore Tax Payers Association got together with the Planning Board and the National Park and they developed a sliding scale for lot sizes and lot coverage as a solution to the problem, however, nothing has been done for 20 years.
Attorney Ben Zehnder gave an overview of the local branches of Government, including the Town Meetings where the residents vote for the bylaws. He stated we live in the National Seashore, not the National Seashore Park and referred to a letter signed by Price in 2006 stating the Wellfleet Bylaws were fine at that time for 1440 Chequessett Neck Road. He submitted meeting minutes of January 6, 1993 between the Planning Board and the National Seashore regarding undersized lots and dwellings being conforming, stating the Blasch dwelling did not require a Special Permit
The Zoning Board went into closed session. There was discussion regarding the Bjorklund Supreme Court case of 2008 and how it may apply to our local bylaws. The Board then talked about quantitative requirements versus qualitative requirements and did the Building Inspector consider both facts. Both issues are subjective, and Drucker stated he felt that if we were to adopt a rule regarding district objectives as a part of granting permits, people would be penalized if they tried to build an addition or make an alteration. He didn’t feel we should make an exception on one house.
Even though the Selectman are monitoring it now and encouraging the Planning Board to recommend changing the bylaws, there are no grounds to suspend this permit. He mentioned there are laws in MA which do not allow the permit to be taken away. Drucker stated he took an oath to uphold the laws as written. Putnam stated there is a question whether or not we should serve as the conscious of this community and suggested we should look at the qualitative issues that are good for the community. Jacob suggested we take more time to look at all the aspects of this case and decide if it requires a special permit. He stated the Building Inspector did not arrive on his decision by himself, that he received consultation from Town Counsel and we should know how he reached his decision.
Paul Murphy, Building Inspector, clarified that when the Blasch’s came to him two years ago, he discussed the proposal with them and he determined they could get a permit by right. The Blasch’s went to the Board of Health and the Conservation Commission and some concerns about the project were raised which became political, so Murphy went to Town Counsel who told him he could issue the Building Permit. He reiterated he never felt he made an error issuing the permit.
Drucker stated the permit was granted according to the current bylaws, and the town has not acted in changing the bylaws in the last quarter of a century, which can only be resolved by going to town meeting and we are here to apply the existing bylaws now. Don Palladino stated the objectives were written for a purpose and the Board needs to take them into consideration with the bylaws. Drucker responded that the National Seashore can condemn the property and purchase it. Discussion followed regarding Bylaw 4.1 and if it applies to these appeals.
The Board took a break at 7:25 pm and reconvened at 7:40 pm.
Dale Donovan, Selectman, stated there were complications regarding counsel, illness of Board members, and lack of meetings for the Board of Selectmen. They had Rex Peterson write up the appeal. They determined Betsy Lane was going to be the ZBA’s Attorney, and the Selectmen need to have a meeting to discuss independent counsel for themselves.
Drucker stated the ZBA asked for independent counsel on March 26 which was denied and was told the Town would not pay for it. Drucker felt it was important for the applicants and the Board. He told the Town Administrator that Kopelman and Page had advised the Board of Selectmen at a meeting to appeal and Drucker felt this act created a conflict. He stated he was told Ms. Lane would be at the hearing and to do the best we could. Drucker told the Town Administrator that we would consult on procedural matters only, but not on substantive matters because there is a conflict of interest. The ZBA has been denied counsel twice. Hankey agreed with Drucker and stated the ZBA does not have the benefit of counsel. Drucker asked Donovan if they would consider getting the ZBA an independent
lawyer since the Board of Selectmen were going to get one for themselves. Donovan stated they would discuss this at their meeting.
Ira Wood stated he had not heard the ZBA wanted counsel until he spoke with Attorney Zehnder. He explained the PersonNameTown Administrator is new and is trying to keep the budgets down and they have not had a full Board to discuss this issue. He feels the Board of Selectmen needs counsel for clarification of the Zoning Bylaws and he feels both parties should have independent counsel and have a continuation.
Attorney Zehnder stated that when Board of Selectmen voted to take this appeal, they publicly supported the Building Inspector and wanted a full hearing but they didn’t know what the grounds were. They made a decision to use Rex Peterson. They didn’t hire an attorney to present an appeal. He doesn’t feel there is any other information that the ZBA requires. He doesn’t feel it is in the interest of fair play or procedure. The other two applicants have not asked for a continuation and they deserve to be heard. He doesn’t think that the ZBA needs an attorney.
Attorney Williams stated he respectfully requested a continuation on behalf of the Bound Brook Property Association and as individuals. George Price requested a continuation for lack of counsel for the Board of Selectmen and the ZBA.
Harry Terkanian stated he feels the ZBA should have independent counsel and not the counsel who advised the Building Inspector or the Board of Selectmen.
Drucker told the representatives of the Board of Selectmen that the ZBA grants continuations for specific items and felt their request was too vague. Donovan responded the issue of counsel was never addressed to the Board of Selectmen and they assumed that Rex would file the documents and then use Town Counsel as their counsel. He stated the determination to have Town Counsel represent the ZBA was made administratively and not determined until 4/30/08. He stated it would be inappropriate for representatives of the Selectmen to say anything.
Drucker recommended a closed session for the ZBA to discuss how to handle the requests.
Zehnder stated the permit has to be acted upon in a certain timeframe and the Blasch’s may act upon the permit.
Discussion took place regarding independent counsel and the request for continuation. Drucker stated he would not be available until the end of June. Zehnder stated he wants the same board to stay in tact. Dale Donovan and Ira Wood agreed the ZBA could provide names for individual counsel to the Board of Selectmen.
June 26, 2008 was the date decided upon for the continuations. Drucker stated arguments would be limited. Zehnder asked if this is for factual testimony or legal arguments. If the new counsels have something to say, the Board will allow it and accept new facts. The ZBA counsel will review all materials and the facts will remain open.
William Nicholson moved to continue all three cases (Case 08-09, 08-10 and 08-14) to June 26, 2008 starting at 6:00 pm at the Sr. Center; seconded by Robert Hankey; passed 6-0.
Bruce Drucker moved to adjourn at 8:45 pm; seconded by Roger Putnam; passed 6-0.
Respectfully submitted,
Christine A. Bates
Committee Secretary
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