Minutes of Zoning Board of Appeals Public Meeting
Date: August 28, 2008
Time: 7:00 PM
Attendees: Chair Vern Jacob, Bruce Drucker, Robert Hankey, Roger Putnam, William Nicholson, Don Palladino, Manny Heyliger, Tom Reinhart and Christine Bates, Committee Secretary.
Chair Vern Jacob opened the meeting at 7:00 pm. He gave an overview of how the meeting will proceed.
7:03 pm
08-26 Ambrose Homes, Inc., (Albert Davis, owner), 2766 State Highway, Map 15, Parcel 146: Application for a Special Permit under WZB 5.3.2 to change commercial area to include retail, office and gallery area. Retail area to include architectural design services and product displays. The Board consisted of Vern Jacob, Bruce Drucker, Robert Hankey, William Nicholson and Manny Heyliger. Fred Ambrose gave an overview of his building business. He stated no trucks will be located at the site. Seaman’s Bank wrote a letter supporting the change in use of the building. Ambrose stated there will be kitchen displays which would
fall under retail. Bruce Drucker moved for Findings of Fact:
1. The existing structure has in the past been used as an antique shop, art gallery and t-shirt shop.
2. The proposed use will be for architectural and construction services and for displays.
3. The proposed use will not be any more intense than any other of the previous uses.
4. There is no objection from any abutters, and the immediate abutter has written a letter of support.
Robert Hankey moved the Findings of Fact; seconded by William Nicholson; passed 5-0.
Robert Hankey moved to grant the Special Permit based on the Findings of Fact; seconded by William Nicholson; passed 5-0.
7:12 pm
08-19 Judith Ball, Appeal from Person Aggrieved (MGL Ch. 40-A, S.8) by failure of the Building Inspector to enforce commercial use of storage of boats in residential zone at 5 Pinecrest Way, Map 12, Parcel 38 (Cont’d from 7/24/08). The Board consisted of Vern Jacob, Bruce Drucker, Robert Hankey, William Nicholson and Manny Heyliger. Chair Jacob read the July 24, 2008 and July 10, 2008 meeting minutes. Attorney Riley, representing Ms. Ball, referred to the Town of Bridgewater v. Chuckran case.
Riley gave the history of the Pickard property and stated that instead of just storing their own boats, they are now storing boats commercially. Riley stated there are 52 boats on the property and this is a dramatic change to the neighborhood and feels the Pickards should get a Special Permit for the intensity of use. Riley stated Attorney Veara requested a dismissal because Ms. Ball repeatedly goes to new Building Inspectors with her complaints and stated the information requests made do not preclude her from raising the issue because the intensity of use is greater today than 10 or 15 years ago.
Charles Amsler stated he bought property in 1965 in the area and there were boats on the Harrington property in 1966. Ray Razenberg, 144 Hamblin Farm Rd, stated the boat yard is an eye sore in the neighborhood. He stated if the Board has doubts about the case to refer it to mediation to settle the problem.
Attorney Ed Veara, representing the Pickards, presented Jacobs with two letters to read. A letter from Alfred Pickard Sr. was read into the record giving his statement regarding the boats on the property. A letter from Ed Corliss of Truro was read into the record stating there were always boats on the property. Veara stated he made a motion to dismiss the case because Ms. Ball continues to complain to the Building Inspectors and considers it harassment. If a person does not take action within 30 days of a Building Inspectors decision, they lose their right to continue complaining about the same property. He stated pre-existing
nonconforming uses are protected by the bylaws. He stated a person has to be aggrieved, but the papers do not state how or why she is aggrieved.
Attorney Riley stated Judith Ball is the immediate abutter to the property and the assessors gave her an abatement on her real estate taxes because her property is devalued due to the boats. In response to a question from Vern Jacob, Building Inspector Paul Murphy stated his letter confirms his views on the issue. There was discussion regarding the motion to dismiss based on the information in the Building Inspector’s files. Manny Heyliger moved that the Board vote to dismiss the appeal of Judith S. Ball as trustee of the Judith S. Ball Family Trust for lack of jurisdiction, since the applicant has
previously made the same request for zoning enforcement with respect to the same property to a previous Building Inspector, and notwithstanding receiving a decision adverse to her request, the applicant did not appeal the decision within thirty (30) days. There was no second, motion failed.
Drucker stated that based upon all the testimony and documents, he feels this is a pre- existing lawful use and doesn’t feel it is a change in use. Drucker asked if the parties could come to some decision among themselves and to set a limit as to how many boats could be stored on the property. Jacob asked if they would have their discussion and come back after the next hearing with their decision to which the parties agreed.
8:54 pm:
Attorney Veara stated he and Riley would like to go forward with the hearing since they couldn’t resolve the matter. The Board determined they would like to see a firm number of boats that can be stored on the property. Riley stated he asked Building Inspector Murphy if there was an extension in use. Murphy stated he would not take any enforcement action
Drucker stated it is pre-existing, nonconforming up to a certain number of boats, there is no change in use, and we need to look to see if there is substantial extension in use under MGL Chapter 40A, Section 6.
Drucker moved for Findings of Facts:
1. Donna Pickard, Trustee, is the owner of property located at 5 Pinecrest in Wellfleet which is a residential district.
2. On 5/7/08 Riley, Attorney for Judith Ball, asked the Building Inspector to order Donna Pickard to cease the commercial storage of boats at 5 Pinecrest Way. 5 Pinecrest Way has been used for the commercial storage of boats.
4. Pursuant to WZB 5.3.2 the commercial storage of boats in a residential district is only allowed to a Special Permit which has not been applied for or obtained for 5 Pinecrest Way.
5. In a letter dated 5/16/08, the Building Inspector declined to take any enforcement action finding the commercial storage of boats at 5 Pinecrest Way has continued for decades and predated the adoption of the WZB prohibiting the commercial storage of boats in a residential district except by a Special Permit.
6. Donna Pickard, through her attorney, has filed for a motion to dismiss Ball’s appeal to the ZBA. The ZBA respectfully declines to rule on the motion.
7. The ZBA has reviewed the entire file, including all correspondence, photos, the motion to dismiss, etc. The ZBA has made a site visit to the property and has held hearings on 7/10/08 and 8/28/08.
8. In approximately 1996 Ms. Ball verbally complained to the Building Inspector, Victor Staley, regarding the commercial storage of boats at 5 Pinecrest Way. Mr. Staley found that the commercial storage of boats at 5 Pine Crest was a lawful preexisting use.
9. In approximately 2002 or 2003 Ms. Ball complained to Building Inspector Richard Asman about the commercial storage of boats at 5 Pinecrest Way. Mr. Asman found that the commercial storage of boats was a lawful preexisting use and so verbally informed Ms. Ball.
10. There is ample documentary evidence and testimony that the commercial storage of boats at 5 Pinecrest Way is a lawfully preexisting use which predated the publication in August 1966 of the advertisement for the applicable zoning bylaw. The applicable Wellfleet Zoning Bylaws became effective in October 1966.
Mr. Veara and Mr. Riley then asked for a continuation to attempt to agree on the number of boats that can be stored on the property. Vern Jacob moved to continue to 9/11/08; seconded by Drucker; passed 5-0.
8:13 pm
08-21 Alan Michelson, 21 Samoset Ave, Map 28, Parcel 184, Application for a Special Permit under WZB 6.1.5.1 and M.G.L.c40A s 6 to remove and replace a pre-existing nonconforming single-family dwelling (Cont’d from 7/24/08). The applicant requested a continuation. Bruce Drucker moved to continue to Sept 11; 2008; seconded by Robert Hankey; passed 5-0.
8:14 pm.
08-24 LouAnne Johnson, 35 Tecumseh Road, Map 28, Parcel 167: Application for a Special Permit for Affordable Accessory Dwelling Unit. The Board for this hearing was Vern Jacob, Bruce Drucker, Robert Hankey, William Nicholson, and Manny Heyliger. LouAnne Johnson stated she was directed to change an accessory building to an affordable accessory dwelling unit; that she lives here year round and most of the abutters are summer residents. Verm Jacob read letters from abutters Eileen and Richard Collins, Marilyn Cook Williams, Guy Daniels, and the Grandjacques, all objecting to the application and a letter from Agent Greenberg
dated July 2007 identifying there are only three bedrooms allowed on the property. Alan Pierce, an abutter, had a lawyer do research on the property and the main dwelling is assessed at $129,400 and the new building is assessed at $178,600. The older building is rented for the summer. He stated there is obvious evidence that people are inside the accessory building.
Building Inspector Paul Murphy stated that she has not complied with the conditions of issuance of the original permit, that the building has been used as a dwelling, and that the appurtenances of dwelling use have been removed and then replaced. This has been a situation upsetting to the Building Department as well as to abutters. Guy Daniel gave further reasons why he and his abutters are against this application, stating he believes there are several violations, and questioned the Town on many issues. Steven Polowczyk requested her to withdraw her application. Johnson stated she hasn’t done anything wrong and wants the application to go forward.
The Board discussed the three bedroom septic system and Drucker requested the Building Inspector and Health Agent make a site visit to find out what is on the property and to supply a report to the ZBA; seconded by Manny Heyliger; passed 5-0. Bruce Drucker stated the ZBA can’t solve the problems with the neighborhood. Another abutter stated Ms. Johnson lives in the accessory building. A neighbor spoke in favor of Ms. Johnson. Drucker moved to continue to September 11, 2008; seconded by Nicholson; passed 5-0.
9:35 pm
08-25 Terry and Tamara Colvin, 308 Alden Road, Map 24, Parcel 97: Application for a Special Permit under WZB 6.1.1, 6.1.5.1, 8.4.2 and M.G.L. c.40A S 6 to alter a preexisting nonconforming single-family residence by removing existing dwelling and deck and replace on same footprint with the addition of walk-out basement and first floor porch, as well as install two retaining walls to support proposed structure under 6.2 and M.G.L.c40A S 6. Due to an error in processing the abutters listing, the hearing has been rescheduled to September 25, 2008.
Other Business
A letter from Town Counsel, Mary Giorgio, requested the Board approve her signing a Joint Stipulation of Dismissal in the Balch case. Bruce Drucker moved to approve the Joint Stipulation of Dismissal as presented by Town Counsel; seconded by Vern Jacob; passed 8-0.
Bruce Drucker moved to approve the August 14, 2008 meeting minutes as amended; seconded by Roger Putnam; passed 8-0.
Bruce Drucker moved to approve the July 10, 2008 meeting minutes as amended; seconded by Roger Putnam; passed 8-0.
Roger Putnam moved to adjourn at 9:40 pm; seconded by Bruce Drucker; passed 8-0.
Respectfully submitted,
Christine A. Bates
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