Minutes of Zoning Board of Appeals Public Meeting
Date: June 26, 2008
Time: 6:00 PM
Attendees: Vice-Chair Bruce Drucker, Vern Jacob, Robert Hankey, Roger Putnam, William Nicholson, Don Palladino, Manny Heyliger, Helen Miranda Wilson, Tom Reinhart and Christine Bates, Committee Secretary.
Vice-Chair Bruce Drucker called the meeting to order at 6:00 p.m. Drucker gave an overview of the history of the building permit being granted to Blasch Del Mar, LLC (“ Blasch”), the appeals that were filed, and the arguments presented on April 30 and May 1, 2008. He reopened Cases 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. The Board consisted of Bruce Drucker, William Nicholson, Robert Hankey, Roger Putnam and Vern Jacob for each case.
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.
Attorney Ben Zehnder, on behalf of Blasch, requested Helen Miranda Wilson and Tom Reinhart, the two new members on the ZBA, recuse themselves from the hearings because they made statements of opposition to Blasch in previous meetings before their appointment by the Board of Selectmen to the ZBA. Charles Sabatt, attorney for the ZBA, suggested they not participate and refrain from comment. Helen Miranda Wilson stated she has reviewed all paperwork submitted and stated she has no conflict of interest. Sabatt stated this would be “an appearance of impropriety” if the two sat at the table which would potentially create a cloud on the board. Attorney Williams for the Bound Brook Homeowners, stated there is no case law supporting the recusal and this would deny their first
amendment rights. Tom Reinhart recused himself. Helen Wilson did not recuse herself, but stated she would step down and not make any statements.
Drucker invited the representatives from the National Seashore to make any additional comments. Superintendent George Price reiterated his previous statements regarding Wellfleet Zoning Bylaw Section 3.2 and the zoning bylaws in general on nonconforming lots. He introduced Kate Costenbader, Solicitor for the CCNS, who stated the Park is an aggrieved party and has the right to appeal; granting a building permit to Blasch without a Special Permit deprived the National Seashore of the opportunity to express their concerns such as structure size, scenic views, etc. She stated the lot does not conform due to size and argued a Special Permit was reqired under the Bjorklund case. She stated WZBL Section 6.1.5.2 (a) does not apply to the Blasch property and stated there cannot be a conforming
house on a nonconforming lot. The house proposed to be built was non-conforming under the Bjorklund case.
Attorney Williams, representing the Bound Brook Homeowners, stated the dwelling would have a negative impact on both the town and the National Park and stated the Board would be in violation of MGL Chapter 40A and the Bjorklund case if they agreed the building permit was granted by right because the house would be four times larger than the original dwelling on a nonconforming lot. He argued all replacement dwellings should be deliberated by the ZBA for a Special Permit if they are located in the National Park on a nonconforming lot.
Jon Witten, Attorney for the Board of Selectmen, stated the Board must determine how to define a nonconforming structure and a nonconforming lot. He referred to the Bjorkland and Bransford cases and stated if the lot is nonconforming, the replacement structure would be nonconforming based on the two cases. He stated the owner should be made to apply for a Special Permit.
Attorney Ben Zehnder stated the Wellfleet Zoning Bylaw allows this permit to be granted by right. He stated the town can provide more rights to a property owner than the Massachusetts General Law and he gave an overview of all the board meetings which were held in the town to allow a conforming structure to be replaced or altered on a nonconforming lot. The Bjorklund case does not affect Wellfleet ZBL 6.1.5.2 (a). He gave a history of several permits issued within the National Seashore to alter a conforming house on a nonconforming lot that were not appealed. He read an e-mail dated June 12, 2008 from Mary Giorgio, Town Counsel, to Paul Murphy, Building Inspector, regarding the Stossel Building Permit, which stated the Building Inspector should grant a permit based on 6.1.5.2(a) in that matter. In the e-mail, she also referred to the Bjorklund case and stated it would not apply to WZBL 6.1.5.2 (a).
There were five audience members who objected to the project and one audience member who supported the project.
Drucker closed the discussion to the audience and applicants. Attorney Sabatt summarized his views for the Board and stated the issue for the ZBA is to decide if the building inspector’s decision was correct. He stated Wellfleet ZBL 6.1.5.2.( a ) clearly defines how the Building Inspector made his determination. He gave an overview under WZBL of a conforming structure, a conforming lot, an alteration, a non-conforming structure and a nonconforming lot. Sabatt stated the Bjorklund case does not negate WZBL Section 6.1.5.2 (a). The Wellfleet zoning bylaw was designed to allow Wellfleet property owners the right to alter conforming structures on a nonconforming lot so long as they would continue to conform. He stated the Building Inspector properly issued the permit to Blasch.
He also stated WZBL Section 3.2 does not establish a second layer of review where a permit is issued as a right. He stated the Board needs to look at this case in an objective manner with no emotion, and look closely at the bylaws.
He stated “standing” is a challenge in determining who is a person aggrieved. He stated it is a difficult legal question as to who has standing to appeal and that the Board should decline to rule on Blasch’s Motions to Dismiss.
Bruce Drucker moved for Findings of Fact:
1. 1440 Chequesett Neck Road is located within the Cape Cod National Seashore.
2. 1440 Chequesett Neck Road is located within National Seashore Park district as shown on the Wellfleet Zoning Map.
3. The original structure at 1440 Chequesett Neck Road was an approximate 550 sq. ft. cottage.
4. On 10/25/84 a building permit was issued by the Town of Wellfleet Building Inspector to construct a new 1,940 sq. ft. residence on the property.
5. In about 1985 the then existing cottage was demolished and the single family house on the property when these hearings began was constructed pursuant to the 10/25/84 building permit.
6. On March 4, 2008 a building permit was issued by the Town of Wellfleet Building Inspector for the removal of the then existing house and the construction of a new single family house at 1440 Chequesett Neck Road.
7. The Wellfleet Conservation Commission unanimously approved the project subject to conditions. A copy of the Commission’s decision is attached.
8. The Cape Cod National Seashore(appeal # 08-08),Bound Brook Homeowners(Williams, Hurwitz, Dunn, Clayton and Miller) (appeal # 08-10) and Wellfleet Board of Selectmen (appeal # 08-14),have each filed an Application appealing the issuance of the March 4, 2008 building permit as persons aggrieved under MGL ch40A sec 8.
9. The Zoning Board of Appeals held public hearings on April 30, 2008, May 1, 2008, and June 26, 2008 at which each of the petitioners presented evidence and advanced arguments. In addition, the Board heard from the property owner, Blasch Del Mar, LLC. The Board also heard from abutters and other members of the public who objected at the hearings to the construction of the new residence.
10. The Board has received and reviewed briefs and memoranda filed by the petitioners and by Blasch Del Mar., LLC. The Board has reviewed the various plans pertaining to the proposed construction at the 1440 Chequesett Neck Road lot. The Board has made a site inspection of the property located at 1440 Chequesett Neck Road.
11. The 1440 Chequesett Neck Road lot is non-conforming because under WZBL 5.4.1 a minimum of 3 acres is required in the NSP district and this lot is 128,670sf or 2.95 acres.
12. The 1440 Chequesett Neck Road lot was created in about 1952 or 1953.
13. In 1952-1953 there were no zoning restrictions in Wellfleet with respect to lot size.
14. The addressStreet1440 Chequesett Neck Road lot is a lawfully pre-existing non-conforming lot as provided for in WZBL 6.1.5.2. No evidence has been presented to show otherwise.
15. The single family house on the property when these hearings began had approximately 1,900 to 2,000 sq. ft. of living area.
16. The single family house on the property when these hearings began conformed to all dimensional requirements of the WZBL in that it did not intrude on any setbacks, was within the 28’ WZBL height limitation, was a single story house, and was within the 5% lot coverage limitation all as provided for in WZBL 5.4
17. The proposed new house will have approximately 5,848 sq. ft. of living area.
18. The proposed new house will be constructed on a different and larger footprint than the house existing when these hearings began.
19. The lot coverage of the house and the garage existing when these hearings began was 2,555 sq. ft. for lot coverage of 1.89%.
20. The lot coverage of the proposed house is 5,347 sq. ft. for lot coverage of 4.15% which is within the 5% lot coverage allowed by WZBL 5.4.3.
21. The height of the proposed house is 28’ and it is 2 stories which is within the maximum height allowed by WZBL 5.4.4.
22. With the sole exception of the minimum lot requirement contained in WZBL 5.4.1, the proposed new house complies with all other dimensional requirements of the WZBL, namely, the lot coverage, building height and set back requirements of WZBL sections 5.4.2, 5.4.3 and 5.4.4
Roger Putnam moved Findings of Fact 1 – 22 as presented; seconded by Robert Hankey, passed 5-0.
Bruce Drucker proposed the following Finding of Fact:
23. Under WZBL 6.1.5.2(a) and 6.1.5.4(a) a replacement house on a non-conforming lot that complies with the dimensional requirements of the WZBL regarding the lot coverage, building height and set back requirements of WZBL sections 5.4.2, 5.4.3 and 5.4.4 is a conforming residential structure.
Vern Jacob moved Finding of Fact #23; seconded by William Nicholson; passed 3-2.
Bruce Drucker proposed the following Finding of Fact:
24. The single family house proposed to be built at 1440 Chequesett Neck Road will continue to conform within the meaning of WZBL 6.1.5.2(a).
William Nicholson moved Finding of Fact #24; seconded by Vern Jacob; passed 3-2.
Bruce Drucker proposed the following Finding of Fact:
25. The “District Objectives” contained in WZBL 3.2 are not zoning regulations, are not requirements to be met independently as a pre-condition to issuance of a building permit and are not a bar to the issuance of the 3/4/08 permit.
Robert Hankey moved Finding of Fact #25; seconded by William Nicholson, passed 5-0.
Bruce Drucker proposed the following Finding of Fact:
26. The 3/4/08 building permit was properly issued as of right by the Building Inspector.
Vern Jacob moved Finding of Fact #26; seconded by William Nicholson; passed 4-1.
William Nicholson thanked Paul Murphy, Building Inspector, for his professional conduct and fine work in the Town of Wellfleet.
Bruce Drucker moved that based upon the Findings of Fact the decision of the Building Inspector issuing the 3/4/08 building permit from which the Cape Cod National Seashore (appeal # 08-08),Bound Brook Homeowners(Williams, Hurwitz, Dunn, Clayton and Miller) (appeal # 08-10) and Wellfleet Board of Selectmen (appeal # 08-14) have appealed, be affirmed.
Seconded by Vern Jacob; passed 4-1. (Messrs Jacob, Nicholson, Hankey and Drucker in favor; Mr. Putnam opposed).
Bruce Drucker moved the Wellfleet Zoning Board of Appeals makes the following Findings of Fact with regard to the status of each of the petitioners insofar as whether they are a “person aggrieved” within the meaning of M.G.L. Chapter 40A, § 8:
2. The Cape Cod National Seashore is an abutter to the property located at addressStreet1440 Chequessett Neck Road.
3. The Bound Brook Homeowners is an unincorporated group of homeowners consisting of Williams, Hurwitz, Dunn, Clayton and Miller (appeal # 08-10). Each of these individuals are the owners of property within the Cape Cod National Seashore in an area known as Boundbrook Island nearby the site of the property at issue, namely 1440 Chequessett Neck Road.
4. The Bound Brook Homeowners are not abutters to the property located at addressStreet1440 Chequessett Neck Road.
5. The Wellfleet Board of Selectmen (appeal # 08-14) is a “board of … [the] town…” within the meaning of MGL chapter 40A, sec. 8.
6. The Zoning Board of Appeals make no determination as to whether any of the petitioners is as a matter of law “a person aggrieved” within the meaning of M.G. L. Ch. 40A, § 8.
Roger Putnam seconded the above Findings of Fact (#1 - #6); passed 5-0.
Vern Jacob moved the following Finding of Fact:
7. The National Seashore has a remedy to the situation outside of the Wellfleet Zoning Board of Appeals.
Roger Putnam seconded the motion; passed 5-0.
Bruce Drucker moved that the Zoning Board of Appeals respectfully declines to rule on the Motions to Dismiss filed on behalf of Blasch del Mar, LLC; seconded by Roger Putnam; passed 5-0.
Bruce Drucker moved to adjourn at 8:00 pm; seconded by Roger Putnam; passed 9-0.
Respectfully submitted,
Christine A. Bates
Committee Secretary
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